C-407/85

OPINION OF MR MANCINI — CASE 407/85

OPINION OF MR ADVOCATE GENERAL MANCINI delivered on 26 April 1988 *

Contents

Page

1. The questions submitted for a preliminary ruling by the pretori of Bolzano and Milan 4247

2. Italian pasta products and German beer: a misleading parallel 4248

9. Continuation: the case of sparkling wines produced by the 'méthode champenoise' (Regu­ lation 3309/85) 4260

10. The proposal for a directive on pasta products of 7 November 1968 4262

11. The labels examined by the pretori of Bolzano and Milan 4264

12. The views of the parties on the answers to be given 4264

13. 'Pasta' and 'spaghetti' inside and outside Italy 4266

14. Visit to a Luxembourg supermarket: the problems arising from labels which merely conform

Mr President, wheat in the manufacture of dry pasta Members of the Court, intended to be marketed in the territory of that Member State is lawful if it is estab­ lished and proved that that obligation: 1. By order of 31 October 1985, in proceedings brought by the German company 3 Glocken GmbH and by Mrs (a) Was imposed solely in order to Gertraud Kritzinger against Provincia safeguard the superior properties of autonoma di Bolzano, which had accused pasta manufactured using only durum them of infringing certain Italian provisions wheat; on trade in pasta products, the pretore of Bolzano referred the following questions to the Court under the second paragraph of (b) Does not entail any discrimination to Article 177 of the EEC Treaty: the detriment of products with the same characteristics coming from other Member States, or to that of Community traders in those products, in (a) Is the prohibition ... contained in so far as traders of the aforesaid Article 30 of the EEC Treaty to be Member State are also subject to the interpreted as preventing, in regard to same restrictions; the importation of pasta products, application of the provisions of Italian law ... which prohibit the use of (c) Was not introduced in order to pursue common-wheat flour in the production protectionist aims to the advantage of of pasta products where those products the domestic product and to the have been lawfully produced and detriment of products made elsewhere marketed in another Member State . .. in the Community and having the same characteristics?'

Commission of the European Communities. the two nations are concerned — many The Greek Government participated in the thought — beer has the status in Germany hearing, in addition to those mentioned that spaghetti has in Italy; so much so that above, whereas Provincia autonoma di the protests with which the Italians received Bolzano did not appear. the order made by the pretore of Bolzano appear to echo those of the Germans. The pasta case is therefore a replica of the beer 2. As the questions submitted by the two case and, once transferred from the national courts are the same, I shall consider them jurisdiction to Luxembourg, it can only give

itself. I should point out in the first place that the present proceedings are concerned with a preliminary ruling on the interpretation of The image to which I refer can be described a Community provision; in other in few words. By a quirk of fate, the words — needless to say — the proceedings compatibility with Article 30 of the Treaty are different from those in Case 178/84, of the Italian provisions on pasta products particularly as regards the matter of fell to be considered in Bolzano at a rather evidence and the effects produced in each unpropitious time, namely when the media separate case by the judgment given. were full of protests from German brewers However, it is true that, likewise when and consumers reacting against the dealing with a case under Article 177, the 'challenge' which the Commission had Court must know upon what issue it is dared to issue against the superior quality of adjudicating. The manner in which the German beer by attacking before this Court national court applies the provision inter rules on purity dating back to the time of preted in Luxembourg may have, and

ground to the legal and non-legal problems had failed to fulfil its obligations under the Treaty. in relation to which the Court must appraise the compatibility with Community law of the contested national provision is illustrated by the Commission in fulfilment of a duty The process of de-trivialization to which I which has been defined as that of amicus have referred is made necessary by those curiae. However, in this case that duty has circumstances. As far as the interests remained substantially unfulfilled.

3 GLOCKEN AND ANOTHER v USL CENTRO-SUD AND ANOTHER

made known that it had not 'attaqué l'Italie of incompatibility by the Court, but, devant la Cour tout en expliquant à la Cour aligning themselves with the views of the elle-même, dans une affaire préjudicielle,' Commission, they do not remove the obli­ that, in its opinion, the Italian prohibition of gation incumbent upon Italian producers to imports of common wheat pasta constituted use only durum wheat; and in those circum­ 'une restriction incompatible avec l'article stances it is obvious that the latter producers 30' of the EEC Treaty (Agence Europe, 19 would suffer discrimination by comparison March 1988, No 4747, p. 11). But matters with foreign producers or parallel importers did not proceed in that way. It must be and producers of common-wheat pasta stated with regret that, in addition to products and consequently would be remaining silent as to its reasons for powerless to avoid competition from the declining to take the hallowed path of latter products. Or, to avoid such an Article 169, as in the beer case, the iniquitous result, the same States would Commission has been a poor amicus curiae. release all producers from that obligation: There are three suitable adjectives to and then we would witness that 'degree of describe its submissions: contradictory, [progressive] substitution' of common wheat inexact and incomplete. for durum wheat which the Commission envisages — or, rather, exorcises — in the first of the statements quoted.

OPINION OF MR MANCINI — CASE 407/85

cannot therefore be attributed to other thus brought to an end the trade war institutions; on the contrary, it must be declared against us when, in June 1985, the recognized, as we shall see in due course (in United States put an embargo on such Part 10), that it was the Commission which products. decided at a certain point to abandon the venture.

That reticence is particularly serious if it is That is not all. In a different part of the borne in mind that the agreement related same observations the Commission states only to pasta manufactured from durum that it is reviewing the 'possibility of wheat: it having been established that indis­ submitting a [new] proposal for Community criminate liberalization of intra-Community legislation', having regard to the fact that trade in common wheat would give rise to a the Community is now self-sufficient in 'degree of substitution' of the latter product durum wheat as a result of the accession of for durum wheat, the question arises Spain and Portugal. In reality, it emerges whether that result might jeopardize from the Commission's reports on European compliance with international obligations agriculture that the Community became undertaken by the EEC vis-à-vis its most self-sufficient in durum wheat as early as important trading partner. That question is the 1980/81 marketing year. I would add particularly important in the context of that in the year 1985/86 (the latest period proceedings concerned with the Italian for which statistics are available), the degree purity law. Italy in fact — and the of self-sufficiency in that product amounted Commission likewise did not see fit to refer to 122%, having reached a peak of 133 % to this important detail either — supplies in 1984/85 (and therefore prior to the 99.9% (1987) of the American demand for accession of the two Iberian States). European pasta products.

overall net value-added in the industry, thus certain categories of producers or certain preventing the positive effect of the budget regions, the Council decided to make them transfers and ever-increasing productivity acceptable by adopting a measure which from being proportional to the increase moved in the opposite direction and was of thereof over the period in question; far from even greater scope. Durum wheat, as benefiting farmers, an increasing percentage everybody knows, is the subject of of the resources allocated to agriculture is Community aid, the purpose of which at passed on to the consumers, to the present is 'to ensure a fair standard of living processors and, in the form of refunds, to for farmers in regions .

culture which includes amongst its principle features a 'rigorous policy as regards pricing'. As far as the matter at issue is What can be said of all this? It seems to me concerned — says the Commission — that that a first result has been achieved. The policy is reflected, on the one hand, in its pasta case is much more complex than it has proposal to bring closer together for the been made to appear by virtue of facile 1986/87 season the intervention prices for comparisons, glaring inaccuracies and durum wheat and common wheat by enigmatic omissions. I shall go further: it is reducing that of the latter by 4 %, and, on different from any other previous case the other, by the positive way in which that concerning the free movement of goods suggestion was received by the Council because the contested national legislation is (1987 Report, pp. 15 and 16).

Having realized that the measures in question would give rise to serious and urgent problems (in 4. These general considerations having been particular, a reduction of income) for discussed; it is time to examine the

provisions in question, but without concerned, they must be prepared using analysing — this is done excellently in the only durum wheat flour and must be report for the hearing — the many and marketed under the designation 'pasta di intricate details thereof. Let me say straight semola di grano duro' (durum-wheat flour away that Law No 580 of 4 July 1967 is pasta), followed by a list of the ingredients not — as it was described at the hearing by added (for example, spinach or artichokes: the Commission — a mere 'recipe-law' but Article 30 (2)), and 'egg pasta' Article is rather a wide-ranging and systematic 31 (2). In the preparation of other types, on measure containing all the rules concerning the other hand, it is lawful to use the 'manufacture and marketing of cereals, common-wheat flour (Article 33 (3)); and flour, bread and pasta products'. In the Italian Government has explained in particular, pasta products are governed by various ways the reasons for this particular rules contained in Articles 28 to 36, in Title exception. The most valid, in my opinion, is IV, and by a number of transitional that based on the fact that fresh pasta is provisions: including Article 50 (1), which prepared in a very large number of places contains the prohibition with which the and as a result it is difficult to ascertain questions submitted by the pretori of whether it contains common wheat.

. di grano duro' applies particularly in the north, was not always to products obtained from the 'drawing, made from durum wheat. rolling and subsequent drying of mixtures prepared . . . exclusively . . . from durum- wheat flour and water'. The foodstuffs whose composition and compulsory desig nation are thus determined are the 'dry' pastas which I shall refer to as standard; therefore, they do not account for the full range of pasta which can be lawfully Pasta, types of pasta, pasta products: those

3 GLOCKEN AND ANOTHER v USL CENTRO-SUD AND ANOTHER

The first, prepared. I would add that the first must regarding which no party has raised any appear on every packet of the products in doubts, is to guarantee the quality of the question and is always followed by the pasta and, thereby, the interests of second. Pursuant to Article 35, 'the consumers. It is well known that only pasta packages or wrappings must bear, in the made with durum wheat does not become Italian language . . . the designation and type sticky during cooking and arrives on the of pasta .

In other words, by compelling pasta makers to use only that type of wheat an endeavour was made to ensure that anyone who grew it At this point it is appropriate to establish, as had a steady commercial outlet for it and, regards in particular dry-pasta products, accordingly, a secure income. In that what technical meaning may be attached to connection it should be borne in mind that words not referred to in the law such as durum wheat cannot be used for animal 'spaghetti', 'vermicelli', 'bucatini', feedingstuffs and, apart from a very small 'maccheroni', 'rigatoni', 'fusilli', 'penne', amount used for couscous, it is used only 'linguine', 'orecchiette', 'malloreddus' and for the pasta industry.

OPINION OF MR MANCINI — CASE 407/85

and marketing within the Community of same four countries imported from Italy durum wheat pasta products. For that respectively 278 692, 377 441 and 75 758 purpose, I shall rely upon the documents quintals of durum-wheat pasta. The second submitted by the Unipi (Annexes Nos 5, 10 set of data relates to the period from 1967 and 17) and the volumes published annually to 1987: whilst in the first half of that by the Italian Central Statistical Office period, up to 1976, annual exports of the (Istat). type of pasta at issue here from Italy to the rest of the common market increased from 102 182 to 684 808 quintals, in the second half of the period they achieved 1 680 686 Three types of data appear to me to be of quintals. In other words, during the first 20 particular interest. The first relate only to years under Law No 580, the quantity of 1985. In that year: (a) Community wheat pasta exported by Italy within the production of pasta (in general) totalled EEC grew by 1 645 %. 2 316 000 tonnes, of which 71 % (1 650 000 tonnes) was manufactured in Italy; (b) among the Member States where there are no purity laws similar to the Italian law, Finally, let us consider the exports of pasta Germany produced 209 000 tonnes, the from Italy to the four Member States to Netherlands 32 000 tonnes, and Belgium which I have just referred in the years 1981 and Luxembourg 22 000 tonnes; (c) the and 1987:

(in quintals)

Pasta Pasta containing containing eggs no common-wheat Other flour or meal

Common Customs Tariff (1902/19.00) (1902/19.10) (1902/19.90)

As will be seen, whilst the exports of pasta qualitative and technical characteristics containing egg (regarding which it is establishing that pasta made therefrom is not impossible to determine whether common sticky when cooked' (Regulation (EEC) No wheat has also been used) show a decrease, 2835/77 of 19 December 1977, Official attributable in particular to Germany, those Journal 1977, L 327, p. 9); and, on the of durum wheat pasta are increasing other, that intervention will be available everywhere to a considerable extent.

For provisions. As far as durum wheat is example, there is a conspicuous preference concerned, the grant of aid is conditional among consumers in the 'Nordic' countries upon a 'gastronomic' requirement, which for pasta made from common wheat. relates directly to the choice made by the consumer: an extremely close relationship is thus established between the raw material and the character of the finished product, which enables durum-wheat pasta products Based as it is on experience stretching over to be distinguished not only from those a thousand years — de gustibus non est made with common wheat but also from disputandum — the remark made by the those made with a mixture or — why not? Netherlands is on target.

I refer to the criteria established by the Commission for the payment of aid in respect of durum wheat and for determination of the inter 6. The references which I have just made to vention price with regard to the other type aid and to the intervention price for durum of wheat. wheat and common wheat bring me to the matter of Community policy and the rules on the common organization of the markets in cereals. To summarize, and having regard to the details given on the subject in the More specifically, it is provided, on the one Report for the Hearing, the present hand that, in order to be eligible for situation in the Community with respect to Community aid durum wheat must 'have durum wheat may be described as follows:

(c) Although durum wheat is in surplus, the (d) The decisions progressively to reduce cereal is imported, and increasingly so, from the spread between the intervention prices non-Member countries including, prin­ for the two types of wheat and to tighten cipally, the United States. According to the the criteria for granting aid in respect of Commission, responsibility for this durum wheat (non-stickiness when cooked) phenomenon is borne both by the Member appear above all designed to avoid 'an States of central and northern Europe and increase of the areas planted [with durum by the Italian pasta manufacturers. The wheat towards] the north [of the former, which, it is well known, do not Community] ... to the detriment of produce durum wheat or else produce only common wheat' (Commission's observations a little, prefer to obtain their supplies from in Case 407/85). We know, however, that markets outside Europe; the latter buy it not the Council has also increased the aid; and because of a shortage of raw material but it is obvious that, applying to a market solely for reasons of quality. It appears that, situation where there is an abundant supply when mixed with European durum wheat, of the product in question, that measure was the American product gives the pasta adopted solely for social reasons. In other 'certain visible characteristics (in particular words the aid, which was introduced to the aspect of colour) which are demanded encourage the growing of a product which by consumers . . . [and cannot be obtained] was in chronic deficit, today satisfies a by the use of additives or colorants requirement which is heterogeneous and also prohibited by law' (reply by the Commission takes priority over all the imperatives to a question put by the Court, p. 2.) governing Community action in the industry: to ensure that the farmers of southern Europe enjoy an adequate standard of living. That implies, however, that, despite the formidable growth in trade recorded over the last 20 years, the pasta- That information — I must add — is products industry does not yet provide a accompanied by an observation and an sufficiently stable and remunerative omission which cause further puzzlement as economic outlet for those farmers.

In the light of those facts, let us examine the nevertheless adds — such measures will not repercussions on the relationship between see the light of day in the near future; hence durum wheat and pasta and on the it will be appropriate, pending their Community budget which might, according adoption, for the States involved to continue to the Commission, stem from an to require pasta manufacturers within their amendment of the national purity laws. The territory to comply with the purity rules. Commission concedes in the first place that the prohibition of the marketing of pasta containing common wheat is of some sig­ nificance as regards both the disposal of the durum wheat produced (and therefore for the producers) and, above all, the expen­ I have already drawn attention to the diture borne by the common organization contradiction inherent in that reasoning. I of the market in cereals. Indeed — the would now add that it reveals a discon­ Commission states — 'if the decrease in certing naivety: although fully aware of the consumption of durum wheat does not troubles which it risks bringing upon itself, come about by way of a reduction of the Commission seeks to rely upon Article imports, the unused portion of Community 30 and then hopes that some divine inter­ production will have to be exported to vention — an early consensus within the non-member countries, either after passing Council and benevolence on the part of the through intervention storage or directly Member States — will save its bacon. But from the market. But it must be borne in that is not how the world works. What mind that the possibilities of disposal on the counts in cases like this is not good world market are very limited. In the event intentions but rather the laws of the of sales on that market, the budgetary costs marketplace and of competition, particularly relating thereto, calculated on the basis of where the product intended to be liberalized the intervention and export costs adopted is widely consumed every day and is of a for the 1985 budget, may be estimated at composition such that a purchaser may be about ECU 39 million, if pasta were easily deceived as to its real nature. allowed to contain 10% common wheat, and about ECU 195 million if a 50 % common-wheat content were allowed' (Commission observations in the same case).

I do not deny that such a far-reaching settlement of 15 September 1987 (Official decision — which, I repeat, is liable utterly Journal 1987, L 275, p. 38). to disrupt the common organization of an agricultural and commercial sector, in an industry which, moreover, during the years of coexistence of the national purity laws and the Community provisions, has seen the In short, the agreement provides that the EEC change from a net importer to a net Community is to export 50 % of the pasta to exporter of durum wheat — is justifiable by the United States under what are known as virtue of higher values. But I must say that it 'inward processing relief arrangements' cannot, as the Commission would prefer, (Regulation (EEC) No 1999/85 of 16 July merely be 'followed' or 'accompanied' by 1985, Official Journal 1985, L 188, p. 1) adjustment or support provisions. A decision and without paying refunds; in return, a of that kind must be preceded by or form part proportional quantity of durum wheat is to of a comprehensive legislative reform which be allowed into Europe free of duty.

7. The recent agreement concluded between 11). the EEC and the United States on Community exports of pasta to that country also forms part of the Community policy and provisions concerning durum wheat. The events date back to 1985. For reasons It is impossible for me to predict whether which it would be superfluous to go into indiscriminate liberalization of Community here, the Americans decided, in disregard of trade in pasta from our American trading their GATT commitments, to levy partners would be a measure liable to additional duties on imports of European 'undermine the effects or operation' of the pasta; and, considering that 'these measures settlement. Common sense, however, caused significant injury to the Community prompts me to take the view that, if forced producers concerned' (that is to say the to face competition in their respective growers of durum wheat and pasta makers), countries from pasta products containing the Council reacted by increasing the duty common wheat which were in circulation on American exports of citrus fruit and nuts subject only to the conditions laid down by (Regulation (EEC) No 3068/85 of 27 June the directive on labelling, the European 1985, Official Journal 1985, L 292, p. 1). durum-wheat pasta producers would not The negotiations lasted for over a year and remain passive; nor does it seem to be were very difficult. Finally, with a view to unreasonable to suppose that their first putting an end to a dispute which was reaction would be to reduce the production damaging to all parties and in order to costs by eliminating or reducing the use of 'avoid a new conflict .

3 GLOCKEN AND ANOTHER v USL CENTRO-SUD AND ANOTHER

certainly not stop exporting to the United of health. In particular, it would be super­ States; and at this stage, a change having fluous to adopt new rules concerning pasta been brought about that would affect the products if in fact the directive in question reciprocal obligation which is at the centre already requires that the consumer be made of the agreement, the Community would aware of the nature of the raw materials probably be accused of failing to fulfil its used in the manufacture of the products by international commitments. means of a list thereof on the label (Communication to the Council of 19 March 1979, COM(79) 128 final).

OPINION OF MR MANCINI — CASE 407/85

6 2 ( ) ( c )— does not exist where the with durum wheat and common wheat, are product consists 'of a single ingredient'. to move freely within the common market without damaging the interests of consumers or infringing other imperative requirements of a domestic or international nature. Moreover, in various sectors and in response to similar problems, rules of that kind have already been issued. I am That is a first detail which undermines the thinking, in particular, of a European view put forward by the Commission in its product which is as well known as Italian Communication of 1979. Article 6 (2) spaghetti: French champagne. applies to every kind of spaghetti, whether prepared using durum wheat, common wheat or soya; and in those circumstances, at least as far as certain types of pasta are concerned, the directive falls far short of protecting the consumer. Quite the

. . to distinguish it suffi would frustrate his expectations. ciently from other products in the same category which compete with it on the market' (recital No 3); and for that purpose it was decided to prohibit producers who do not operate in the Champagne district from referring directly or indirectly to the method of preparation known as 'methode Perhaps that is the reason for which Article champenoise', although that wording has 6 (6) provides that 'Community provisions been used for a considerable time and is or, where there are none, national even subject to specific rules in some provisions may lay down that the name Member States (Italy and the Federal under which a specific foodstuff is sold is to Republic of Germany). I would add that, be accompanied by mention of a particular precisely for that reason, the prohibition ingredient or ingredients' (emphasis added). was made operative as from 1994, that is to

The expressions used are ambiguous in so far as they do not make it clear whether the term 'reasons of public interest' is used in The reason for this is clear. I have already order to justify the prohibition of reference stated that, since it might significantly to the 'méthode champenoise' or to explain change the present competitive relationship the deferment of its entry into force until between durum- wheat and common-wheat the expiry of a long transitional period. I pasta products, any repeal of the purity laws shall therefore say that that postponement could have adverse affects on Community answered the twofold requirement of trade (in particular Italian trade) with the allowing the sparkling wine already bearing United States, in both directions; with the labels with that wording to be sold and to further consequence of bringing to an accustom purchasers to the new desig­ end — or at least, as Mr Foster Dulles nations. The reasons which prompted the would have said, of exposing to an imposition of the prohibition were 'agonizing reappraisal' — an agreement threefold: to prevent, as I have said, which the EEC imposed upon the consumers from being deceived, to protect Americans in order to defend its producers the wine-growers of the Champagne district of durum wheat and of pasta. But, how and — see the ninth recital — to ensure could such a misfortune be avoided except compliance with the 'international obli­ by regulating the entire pasta industry, from

OPINION OF MR MANCINI — CASE 407/85

immediately. More specifically, it wishes to whilst 'spaghetti' is not. Moreover, liberalize two economic activities (the 'spaghetti', stated the Commission in its production and marketing of pasta) which observations in the Zoni case, is a word in are governed by national purity rules which current use in the German language and the Community has accepted for 20 years does not therefore evoke the idea of a and, what is more important, it seeks to do product of Italian origin.

Community language simply because, like entered vis-à-vis the United States. 'champagne', it describes something Whatever its reasons for so doing, it is untranslatable. Moreover, I am convinced difficult to imagine a course of action more that, when reading that word on any packet remote from the policy followed in the case of pasta, Mr Schmidt and Mr Van Dijk do of sparkling wines. not associate it with the image of a Bierstube or a windmill but rather with the hubbub of a Roman trattoria or the sound of a guitar with Vesuvius in the back

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. . is [in any event] governed by using durum wheat, and reserving five new rules governing the labelling of food descriptions for them ('superior quality stuffs in general. On the basis of those rules, pasta products', 'pasta products', and so pasta products . . . intended for the final forth). Other pasta products, on the other consumer must . . . bear a list of the ingre hand, could be produced and marketed, but dients informing the purchaser of the type only within the Member States concerned. of raw materials used'.

The Parliament justified its decision by saying that the draft took account neither of an Let me read Article 5 of the latter. The essential aspect, namely the protection of Member States — says Article 5 (1) — 'shall purchasers, nor of the tastes of those people take all appropriate measures to ensure that who consume pasta products made exclu the products listed in the annex can be sively from common wheat; and its Legal marketed only if the packaging thereof Affairs Committee aggravated the criticism contains the following information, in a by stating that the text submitted to it did clearly visible, legible and indelible form: (a) not clearly show whether, in addition to the the designation reserved for the products in five designations just mentioned, protection question [for example "superior quality was provided for 'the designations in pasta products", made of course exclusively ordinary commercial usage such as from durum wheat], with or without an spaghetti, macaroni, pasta di minestra, and indication of the form [for example

OPINION OF MR MANCINI — CASE 407/85

producer. On the back there is a list of As will be seen, the Commission of 1968 ingredients. According to the plaintiffs in understood, at least in nuce, that intra- the main proceedings, that presentation Community trade in pasta products involves satisfies the requirements of Directive a requirement which cannot be waived: on 79 / 112 / EEC . the packages the generic designation 'superior quality pasta' (which indicates the raw material, durum wheat) and the specific designation 'spaghetti' or 'vermicelli' (which The label examined by the pretore of Milan refers to the form of the pasta) must appear (Case 90/86) is only in German and bears

11. A preliminary observation is called for before I consider the substance of the case. The questions submitted for a preliminary ruling derive from the fact that in Bolzano 12. We now come to the substance of the and Milan the supervisory authorities found case. Gertraud Kritzinger, 3 Glocken, in Mrs Kritzinger's shop and on Mr Zoni's Giorgio Zoni, the Netherlands Government premises pasta products imported from the and the Commission propose that the Court Federal Republic of Germany, but made should give the following answer to the from a mixture of common wheat and questions submitted by the two national durum wheat, which therefore could not be courts: Article 30 of the EEC Treaty does marketed in Italy by virtue of Law No 580. not allow a Member State to impose the

This is the important point. If we use the I believe that both those views come up words just quoted, the difficulty in the against insuperable obstacles. The first is present case lies in ascertaining what the based on the conviction that the opponents of Law No 580 take for granted, requirement of consumer protection is namely whether Directive 79 / 112 / EEC already satisfied by Directive 79 / 112 / EEC : effectively ensures that the Italian consumer it provides the Italian purchaser with all the and Community consumers are given infor­ details he needs, without hindering — as mation as to the nature and identity of the does, by contrast, Law No 580 — the product enabling them to make a well- movement of pasta products lawfully manu­ informed choice from among pasta products factured in other Member States using of varying compositions. It follows from the recipes different from those prescribed in conclusion which I reached in part 8 of this Italy. But is that assumption well founded? Opinion, and as will be better illustrated in due course, that the reply can only be negative.

that view. But courts work on the basis of jurisprudence constante ... que, dès lors que legal provisions and, in their eyes, until such la Communauté a établi une [telle] organ­ time as Community law has upheld the ization ... dans un secteur déterminé, les superiority of such pasta products, other États membres sont tenus de s'abstenir de pasta products will also enjoy a recognized toute mesure unilatérale qui rentre de ce status and freedom of movement. chef dans la compétence de la Communauté. Il incombe donc à la Communauté et non à un Etat membre de If these observations are correct, it seems to rechercher une solution à ce problème dans le me to be superfluous to set out the cadre de la politique agricole commune' arguments advanced to prove that Law No (judgment of 23 February 1988 in Case 580 is compatible with Community law. The 216/84 Commission v France [1988] judgment in the German beer case has ECR 793, paragraph 18, emphasis added). rendered them obsolete. Or rather, it has obliterated all of them except one: the one which saves the law in question by Although it does not fulfil the objective for describing it as essential to the common which it was intended, the argument as to policy on durum wheat. The prohibition of the superiority of pasta products made from using other cereals — it is said — responds durum wheat may nevertheless serve to an imperative Community requirement; another purpose, namely that of high­ and its repeal would totally negate all the lighting the fact that, if it really intends to progress achieved by the Community in the liberalize trade in pasta products, the last 20 years both with respect to the Commission must impose legal conditions production of durum wheat and with capable of protecting the designation and respect to the farmers who grow it. And the presentation of such products. Only by from the financial point of view, the disap­ means of such rules can Community pearance of a reliable commercial outlet for consumers continue to exercise their pref­ the type of wheat at issue here would entail erence for durum-wheat pasta prod­ a considerable accumulation of surpluses ucts — all consumers, including there­ and the costs of assimilating them would fore those in the north of Europe who, constitute a heavy burden upon Community although having demonstrated a growing resources. predilection for such products, are for obvious reasons those least well equipped to recognize them.

'Bier' could not be dissociated from the It is admittedly legitimate to seek to enable image of a beverage produced using only consumers to attribute specific qualities to the ingredients prescribed by law; and the beers manufactured from particular raw Court's reply deserves to be reproduced in materials to make their choice in the light of full. that consideration. However, as the Court has already emphasized ... that possibility may be ensured by means which do not prevent the importation of products which have been lawfully manufactured and marketed in other Member States and, in 'Firstly, consumers' conceptions which vary particular, "by the compulsory fixing of from one Member State to the other are suitable labels giving the nature of the also likely to evolve in the course of time products sold". By indicating the raw within a Member State. The establishment materials utilized in the manufacture of beer of the common market is ... one of the "such a course would enable the consumer factors ... in that development. Whereas to make his choice in full knowledge of the rules protecting consumers against facts and would guarantee transparency in misleading practices enable such a devel­ trading and in offers to the public". ... opment to be taken into account, legislation contained in the Biersteuergesetz prevents it from taking place. As the Court has already held in another context ... the legislation of a Member State must not "crystallize given consumer habits so as to consolidate an Contrary to the German Government's advantage acquired by national industries view, such a system of consumer information concerned to comply with them". may operate perfectly well even in the case of a product which, like beer, is not [always] supplied to consumers in bottles or in cans capable of bearing the appropriate details. That is borne out once again, by the German legislation itself [which] provides Secondly, in the other Member for a system of consumer information in States ... the designations corresponding to respect of certain beers, even where those the German designation "Bier" are generic beers are sold on draught, when the designations for a fermented beverage requisite information must appear on the manufactured from malted barley, whether cask or the beer taps' (paragraphs 32 to 36, malted barley on its own or with the emphasis added). addition of rice or maize. The same approach is taken in Community law as can be seen from heading No 22.03 of the Common Customs Tariff. ... It seems to me that there are two consider­ ations in that passage which deserve to be emphasized. In the first place, in the Court's view the German designation 'Bier' and the The German designation "Bier" and its corresponding words in the other equivalents in the languages of the other Community languages are generic and Member States of the Community may cannot therefore be reserved for a given therefore not be restricted to beers manu­ type of beer. Moreover, before factured in accordance with the rules in de-restricting the German beer market, the force in the Federal Republic of Germany. Court sought to check in detail whether the

information provided to the consumer was mandatory designation, reserved for food really sufficient. Can it be said that the same stuffs produced from that cereal and is conclusions — in other words, that 'pasta' is generic; it must also appear on the wrapping a generic term and the purchaser is effec regardless of the form of the pasta inside; tively protected — be applied to the present (b) this labelling requirement ensures the case? The Commission thinks they can. For necessary clarity as to identity (pasta) and consumers not to be led into error — the nature (durum wheat meal) of the product, Commission has told us — it is sufficient if but leaves the manufacturers free to describe the package identifies the product as 'pasta' by the most varied names (spaghetti, and lists the ingredients from which it is vermicelli, and so on) the form of the pasta made (durum wheat, common wheat or marketed by them; (c) this freedom is others).

'Spaghetti', 'vermicelli' and so on are therefore specific terms, distinct from the term 'pasta di semola di grano duro', Let us see why. In the first place, the fact they indicate the form of the pasta and they must be repeated that durum-wheat pasta do not in any way refer to its nature. and common-wheat pasta products are different from each other. That is clearly the case as regards their nature. And it is also true from the commercial point of view if it is borne in mind that: (a) the Common Customs Tariff classifies them under This clear separation between the desig different subheadings; (b) as far as the nation 'pasta' and the terms used for its one relationship between the raw material and hundred or one thousand forms exists, as the finished product is concerned, one is the far as I know, only in Italy.

that 'spaghetti' (or 'macaroni') cannot be classified as an unequivocally specific desig nation like yoghurt or, to mention two products with which the Court will have to concern itself in the near future, sausages Having said that, let me come back to the and 'Edam'. 'Edam' is not a synonym for basic features of the Italian system, which cheese, not even in the small city where it can be summarized in three statements: originated or in the famous Alkmaar (a) 'pasta di semola di grano duro' is a market.

Indeed, we can say that, by contrast with 'beer', pasta may well be a generic term, but it does not have the same generic signifi­ The four packets were made, in order, in cance in all the Member States of the Italy, Belgium, Germany and Switzerland Community. In Italy, it indicates above all and, as you will see, they all bear the clearly the mixture from which the various pasta legible word 'spaghetti'. But what is this products are obtained by means of a tradi­ spaghetti made of? The only packet front tional process; outside Italy, pasta also has which tells us anything specific in that that meaning and, at the same time, regard and does so in three languages, of indicates a food product that is long, which two are spoken in the Grand Duchy, flexible and not hollow (spaghetti) or, is the last one: the raw materials for the sometimes, one comprising unfilled tubes of product contained in the bag are 'whole' (an varying length and thickness (macaroni). adjective, moreover, which is rather Conversely, whereas 'spaghetti' or equivocal) wheat and soya. The 'macaroni' are, in Italy, specific terms which others — except the first on which appear indicate two of the many ways in which the words, but only in Italian, 'pasta di pasta is presented, outside Italy they are semola di grano duro' — say nothing. To generic designations in habitual use. find out more, it is necessary to read the information which appears, in microscopic letters, on the back; we then learn that the second packet is made from durum wheat and the third from a mixture of durum wheat and common wheat plus 150 grams of egg — 'fresh', of course — per kilogram.

It is easy to say: an appropriate label, 'ça suffit'. But in practice, as has just been shown, daily dealings in pasta products raise problems which the labels prescribed by the directive are absolutely incapable of resolving. This brings to mind again the observation of the Parliament's Legal Affairs Committee which suggested to the Brussels Once again, the difficulty lies in the use of experts that rules should also be adopted for the designation 'spaghetti'. For those who the 'designations in current use in the trade, have purchased and consumed for years (or, such as spaghetti or macaroni'. But in in the Mezzogiorno, for ever) only durum particular Article 5 (2) of the proposal for a wheat spaghetti, the term 'pasta di grano directive on pasta products becomes tenero' cannot be considered sufficiently pertinent. You will recall the text: 'where informative where there appears above the mandatory details [namely the specified them, in very large letters, the word designations and the terms for shapes of spaghetti. Today the habitual consumer of pasta] do not appear in the ... national champagne who is offered a bottle of 'vin

3 GLOCKEN AND ANOTHER v USL CENTRO-SUD AND ANOTHER

What then? I believe that if the Italian (or French or Greek) legislature intended setting up a really perfect system of That having been said, let us read paragraph consumer information only one course 15 of the Fietje judgment cited earlier: the would be open to it: to require foreign extension of a national provision 'which producers to have the designation 'spaghetti prohibits the sale of certain alcoholic di grano tenero' (or 'vermicelli di grano beverages under a description other that tenero', and so on) printed in all cases, prescribed by national law to beverages alone, on the front of the packet. But would imported from other Member States' and a rule of that kind be lawful? Here too my thus makes 'it necessary to alter the label answer is negative. If the first solution does under which the imported beverage is not go far enough, this second solution goes lawfully marketed in the exporting Member too far; so far, I fear, that it would be State, is to be considered a measure having tantamount to a measure having equivalent an effect equivalent to a quantitative effect. restriction ... in so far as the details given on the original label supply the consumer with information on the nature of the product in question which is equivalent to that in the description prescribed by law' (emphasis added). In my example, the infor­ mation available on the back of the packet is without doubt equivalent to that required by the Italian, French or Greek rules on the I will illustrate this by giving an example. presentation of pasta. If he were compelled Let us suppose that a Netherlands pasta to change the word 'spaghetti' on his label maker produced only common-wheat pasta. to 'spaghetti di grano tenero', the Since 'spaghetti' is a word which is Netherlands producer would then be fully understood throughout the Community the entitled to invoke Article 30 of the Treaty.

16. This point having been reached, one referred to by the applicants' (paragraph conclusion seems to me to be obvious: 54). national shoncuts are not a tenable prop osition and are even liable to have pernicious effects. To liberalize Community trade in pasta products and then to leave What should be the scope of such a matters to Member States would not only measure? Let us consider the American make it impossible for their legislative auth experience. Under the Food, Drug and orities to devise measures providing appro Cosmetic Act, the Food and Drug Adminis priate protection for the interests of tration adopted in 1964 a series of rules producers and consumers. Such an inchoate concerning 'macaroni and noodle products'. manoeuvre would do worse: it would Having laid down in subparagraph (a) that encourage the various pasta makers, in the 'macaroni products [that is to say pasta] are awareness that they could rely upon the class of food each of which is prepared inadequate rules on designation and presen by drying formed units of dough made from tation, to win new markets by manufac semolina, durum flour, farina, flour or any turing products which would be sold at ever combination of two or more of these, with decreasing prices, but would be increasingly water and with or without one or more of misleading as regards their identity and the optional ingredients. . . ', Section

Finally, sibility for finding a solution attaches 'à la Sections 16.2 to 16.5 cover respectively Communauté et non à un État membre'. In 'milk macaroni', 'whole wheat macaroni', other words, if it is desired to provide 'wheat and soy macaroni' and 'vegetable freedom of movement for all pasta products macaroni'. According to the shape and the manufactured in the various Member States, raw material used in their preparation, each at the same time avoiding the problems to of those products has a mandatory desig which I have referred, the Community must nation, such as 'whole wheat spaghetti', intervene directly in its own right and must 'wheat and soy spaghetti', 'spinach do so by a means placed at its disposal by spaghetti', and so on. the Treaty which, although perhaps not the simplest or the most rapid, is certainly the one best suited to the purpose, namely the

3 GLOCKEN AND ANOTHER v USL CENTRO-SUD AND ANOTHER

Belgian, Luxembourg, Netherlands, German, and after them United Kingdom, Irish and Danish, consumers have shown an 17. At the present time, the question increasing preference for that type of food submitted by the national courts cannot be product. It is therefore above all for them answered clearly — or at least the answer that we must provide a guarantee, to repeat would only be regarded as clear by someone once again the words of the German beer who was prepared to put up with a situation judgment, a 'system of information .

It durum wheat and the agreement between should be borne in mind that, according to the EEC and the United States on the Article 39 (2) of the EEC Treaty, 'in production and marketing of pasta manu working out the common agricultural factured from that cereal are based. policy . . . account shall be taken of: (b) the need to effect the appropriate adjustments by degrees; (c) the fact that in the Member States agriculture constitutes a sector closely What is to be done then? The course of linked with the economy as a whole' action which I think is preferable takes the (emphasis added); and we should not forget form of a compromise and, like the that that obligation is binding upon courts celebrated Order of 29 May 1974 made by no less than upon legislators.