C-94/82

on the interpretation of the C o m m u n i t y provisions on the free m o v e m e n t of goods in o r d e r to enable it to determine the compatibility with Articles 30 and 36 of the E E C T r e a t y of certain provisions of the N e t h e r l a n d s Bierver- o r d e n i n g [Beer O r d e r ] 1976,

DE KIKVORSCH

T H E C O U R T (Second C h a m b e r )

composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges,

Advocate G e n e r a l : G. F. Mancini Registrar: H . A. Rühi, Principal Administrator

gives the following

JUDGMENT OF 17. 3. 1983 — CASE 94/82

3. Article 7 (2) of the Bierverordening p. 17). That proposal, which did not states that it is prohibited to market in regulate the degree of acidity and the Netherlands beer of which the contained no provision concerning a extract strength of the original wort does statement of the extract strength of the not fall within one of the categories original wort on pre-packaging or labels, referred to in Article 7(1). The reference was subsequently withdrawn. to the category in which the beer is included must under Article 9 (1) (b) be stated on the pre-packaging as follows for example: "Category II" for beer 7. Having raised of his own motion which has an extract strength of the the question of the compatibility of original wort of between 7 and 9.5 the above-mentioned provisions with inclusive. On the other hand, Article Community law, the Economische 7 (3) provides that the extract strength of Politierechter of the Arrondissements- the original wort itself is not to be stated rechtbank, Arnhem, decided to stay the on the pre-packaging or on the label. proceedings under Article 177 of the EEC Treaty and refer the following question to the Court for a preliminary ruling: 4. The Bierverordening was adopted under a decision of the Committee of Ministers of the Benelux Economic "Assuming that the rules on the trade in Union of 31 August 1973 on the har- beer in one Member State: monization of legislation concerning beer (Basic Text Benelux 1973/1974, p. 1680 et seq.). That decision also contains Define beer as: a prohibition of the marketing of beers of which the pH is less than 3.9, but it The beverage which is obtained by does not contain any prohibition of the alcoholic fermentation of wort prepared statement of the extract strength of the form raw materials containing starch and original wort. sugar, of hops (including hop powder and hop extract) and of drinking water;

Define pre-packaging as: Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. However, the Court Packaging made and sealed in advance requested the Commission to inform it in with a capacity of not more than five writing before the hearing whether the litres; laws of the other Member States contained provisions similar to the Prohibit the marketing or causing to be Netherlands provisions in question. marketed of beer, not being sour beer, in which the degree of acidity (pH) of the beer is 3.9 or less; In addition, the Commission and Government of the Netherlands were requested to bring to the hearing an Prohibit the marketing or causing to be expert on the production of beer. marketed of beer if the pre-packaging of the beer or label thereon states the original wort strength of the beer; By order of 17 November 1982, the Court decided to refer the case to the Is the application of one or both of the Second Chamber pursuant to Article provisions containing such prohibitions 95 (1) and (2) of the Rules of procedure. to beer which is imported from one Member State, where it is lawfully manu- factured and marketed, to be regarded as a measure having an effect equivalent to a quantitative restriction, which is II — W r i t t e n o b s e r v a t i o n s sub- prohibited by Article 30 of the EEC mitted to the C o u r t Treaty, in so far as the marketing of beer is thereby impeded or precluded?" A — The observations of De Kikvorsch

De Kikvorsch points out in this regard So far as the prohibition of a statement that Mr Teeuwen, a lawyer attached to of the extract strength of original wort the Produktschap voor Bier [The Beer of the beer is concerned, De Kikvorsch Production Board] stated as a technical states that linguistically the words expert before the national court that the "stamwortgehalte" [strength of original acidity was vital for the beer to keep well wort] and "alcohol" in Dutch, like the and that the minimum p H was fixed at words "Stammwürze" and "Alkohol" in 3.9 on the basis of considerations German, are clearly distinct and do not relating to consumer protection and resemble each other in any way either in public health. However, that expert writing or in relation to the way in provided no support for that statement, which they are pronounced. since he did not explain why a minimum p H of 3.9 was technically necessary in order to ensure that the beer would keep To assume that there would be a well. confusion between the extract strength of the original wort and the alcoholic Moreover, Mr Kok, another expert who content is to under-estimate the public, is in the International Affairs Depart- even though the public at large does not ment of the Ministry of Public Health, know enough about brewing methods to Hygiene and the Environment, understand the precise significance of the contradicted Mr Teeuwen's statement by expression "extract strength of the declaring that considerations relating to original wort". De Kikvorsch does not the protection of public health did not see how the prohibition of any statement play any role in the determination of the of the strength of the original wort on acidity. Mr Kok further stated that the the label may be based on grounds of decision of the Committee of Ministers consumer protection which are so of the Benelux Economic Union, by compelling as to justify the resulting virtue of which the Bierverordening was interference with the free movement of adopted, fixed the degree of acidity of goods. beer on the basis of the beer traditionally consumed in the Benelux countries. De Kikvorsch therefore suggests that the question submitted for a preliminary De Kikvorsch concludes that at the time ruling should be answered as follows: when the Bierverordening was drawn up, it simply was not envisaged that a beer might have a degree of acidity lower "The application of one or both of the than 3.9. prohibitory provisions contained in Articles 6 (4) and 7 (3) of the Bierver- De Kikvorsch also submits that Berliner ordening of 1976 to beer which is Kindl Weiße is a well-known beer imported from another Member State in

which it is lawfully manufactured and that the beer in question was of a higher marketed must be regarded as a measure percentage and therefore a product of having an effect equivalent to a better quality. Furthermore that is quantitative restriction on imports, which scarcely likely to promote fair trading. A is prohibited by Article 30 of the EEC detailed study has shown that in practice Treaty, in so far as the marketing of beer even the statement of the two rates on is thereby impeded or precluded." the label of the bottle is not capable of preventing confusion among members of

The Committee of Ministers of the Benelux quality of beer is based on the levels of Economic Union, on which the carbonic acid, the acidity, the aroma Netherlands Bierverordening is based, resulting from fermentation, the aroma was related to a traditional idea of the of hops, the bitterness and the taste of beer. percentage of alcohol. The four first- mentioned characteristics have as a In relation to the prohibition of any whole no relation to the strength of the statement of the extract strength of original wort whereas the percentage of original wort, which appears in Article alcohol is only remotely connected 7 (3) of the Bierverordening, the therewith." Government of the Netherlands states that it was taken from the previous The Government of the Netherlands order entitled "Verordening Verbod concludes that the Produktschap based Vermelding Stamwortgehalte van Bier" the prohibition of' any statement of the [Order prohibiting any statement of the strength of the original wort of beer on a extract strength of the original wort of desire to protect and inform the beer] of 1964. That prohibition was consumer. enacted at that time because there was a requirement in the Netherlands that the percentage of alcohol should be stated. The Netherlands Government in this C — Observations of the Commission connection quotes the following passage from the annual report of the In relation to the provision on acidity Produktschap voor Bier for 1964: "A contained in Article 6 (4) of the Bierver- statement (of the strength of the original ordening, the Commission observes that wort) was not compulsory but neither Mr Kok stated before the national court was it prohibited. The Board of the (see A. above) that the determination of Produktschap considered that a the degree of acidity "was based on the statement of that kind would interfere beer which is commonly found in with the provision concerning the Benelux.

JUDGMENT OF 17. 3. 1983 — CASE 94/82

"Lambic". In the Commission's opinion that shows that the definition of sour In Belgium and the Federal Republic of beers is borrowed from traditional Germany, however, fermentation is Belgian beers. based on mixtures of yeast and lactic acid bacteria (mixed acidic fermen- . The Commission points out that the tation), which produces large quantities Director of the Institut CIVO-Analyse of lactic acid in addition to alcohol. Thus T N O classifies the German Weißbiere beers are obtained such as the Lambic and Weizenbiere in the same category as and Gueuze in Belgium and inter alia the the Gueuze and Lambic and that Mr Weißbiere and the Weizenbiere in Teeuwen confirmed in his evidence (see

In this way it is possible to Furthermore, it is not disputed that the prevent the formation of too great beer in question is traditionally produced acidity, which would not correspond to in the Federal Republic of Germany and the desired type of beer. At the same has been marketed there for many years. time a kind of protection is furnished The legislation in the Federal Republic against any adulteration which might of Germany, a country in which the result in pH values lower than 3.9 . . ." production of beer is a very old tradition, does not contain any provision concerning the degree of acidity.

DE KIKVORSCH

grounds of the protection of public State prohibiting the marketing or health. The prohibition of marketing in causing to be marketed of beer where: the Netherlands beers imported from other Member States which do not meet that requirement therefore constitutes a (a) the acidity (pH) of the beer, not measure having an effect equivalent to a being sour beer, is 3.9 or less quantitative restriction on imports. and/or (b) the extract strength of the original In relation to the prohibition of any wort of the beer is stated on the pre- statement of the extract strength of the packaging or on the label of the original wort which is contained in beer." Article 7 (3), of the Bierverordening, the Commission observes that the consumer is perfectly capable of distinguishing between the alcoholic content and the strength of the original wort, especially Ill — Oral procedure where both are stated. It considers that although the extract strength of the original wort is not a well-known concept, at least for the consumer in the At the sitting on 20 January 1983 oral Netherlands, it would be excessive to argument was presented and questions conclude that the consumer would put to the parties by the Court were assume that beer carrying such a answered by the following: W. Aerts, for statement has a certain degree of alcohol the accused in the main action; J. W. de or is a product of a better quality. The Zwaan, acting as Agent, assisted by prohibition of marketing in the G. Derdelinckx acting in the capacity of Netherlands beer imported from other a technical expert, for the Government Member States where the extract of the Netherlands; A. Carnelutti, acting strength of the original wort of the beer as Agent, assisted by Mr Hulaud, acting is stated on the pre-packaging or on the in the capacity of a technical expert, for label must therefore in the Commission's the French Government; and Mr opinion be considered to be a measure Haagsma, a member of the Legal having an effect equivalent to a Department, for the Commission of the quantitative restriction on imports. European Communities.

2 That question arose in the context of criminal proceedings brought against a beer importer, who was accused of marketing in the Netherlands a beer imported from the Federal Republic of Germany and described as "Berliner Kindl Weiße", the acidity of which exceeded the limit laid down in Article 6 (4) of the Bierverordening, which had not been manufactured according to the processes provided for in Article 1 (j) for the preparation of so-called "sour" beers and the label of which stated the strength of the original wort of the beer, contrary to Article 7 (3) of the Bierverordening.

3 With regard to the provisions on acidity, it is clear from the file, as supplemented during the oral procedure before the Court, that the Bierver- ordening was adopted under a decision of the Committee of Ministers of the Benelux Economic Union of 31 August 1973 on the harmonization of legislation concerning beer (Basic Text Benelux 1973/1974, p. 1680 et seq.) and that the purpose of the relevant part of that decision was to define the different types of beer traditionally brewed in the Benelux countries and to protect their typical taste.

4 The prohibition of a statement of the strength of the original wort of the beer on the pre-packaging or label was taken from the Verordening Verbod Vermelding Stamwortgehalt van Bier [Order prohibiting any statement of the strength of the original wort of beer] of 1964. It is connected with the requirement that the alcoholic content must be stated on the packaging which is contained in Article 14 (1) (b) of the Drank- en Horecawet [Law on beverages and cafés, hotels and restaurants] of 7 December 1964 (Staatsblad, p. 386). It is clear from the file that the Produktschap wished to avoid the

s The extension to imported beer of national rules prohibiting the marketing of beer which does not comply with the conditions on acidity is likely to preclude beer lawfully produced and marketed in other Member States from being marketed in the Member State in question. That obstacle to the free

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movement of goods between Member States cannot be justified by the need to define the different types of beer traditionally brewed in a certain part of the Community and to protect their typical taste. In particular, no consideration relating to the protection of the national consumer militates in favour of a rule preventing such consumer from trying a beer which is brewed according to a different tradition in another Member State and the label of which clearly states that it comes from outside the said part of the Community.

9 The answer to that part of the question for a preliminary ruling must therefor be that, if the rules on trading in beer, adopted by a Member State in order to define the different types of beer traditionally brewed in a certain part of the Community and to safeguard its typical taste, prohibit the marketing of any beer whose acidity exceeds a certain level, unless that beer is produced by processes traditionally used in that part of the Community to obtain sour beer, the extension of that prohibition to beer lawfully produced and marketed in another Member State must be regarded as a measure having an effect equivalent to a quantitative restriction, which is prohibited by Article 30 of the Treaty.

n The answer to the latter part of the question referred to the Court for a preliminary ruling should therefore be that the extension by a Member State of the prohibition of a statement of the strength of the original wort of beer on the pre-packaging or the label to beer imported from other Member States, necessitating an alteration of the label under which the imported beer is lawfully marketed in the exporting Member State must be regarded as a measure having an effect equivalent to a quantitative restriction, which is prohibited by Article 30 of the Treaty, unless such statement, regard being had to its specific terms, is of such a kind as to mislead the purchaser.

Costs

The costs incurred by the Governments of the French Republic and the Kingdom of the Netherlands and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, costs are a matter for that court.

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On those grounds,

T H E C O U R T (Second Chamber),

H. A. Rühi P. Pescatore Principal Administrator President of the Second Chamber