C-76/86
ECLI:EU:C:1989:94
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OPINION OF MR JACOBS —CASE 76/86
OPINION OF MR ADVOCATE GENERAL JACOBS delivered on 28 February 1989 *
My Lords, declaration that, by refusing to admit to the German market milk substitutes lawfully manufactured and marketed in other Member States, the Federal Republic of Germany had failed to fulfil its obligations 1. Paragraph 36 of the German Milk Law under Article 30 of the EEC Treaty. (Milchgesetz), under the title 'Imitation of Milk and Milk Products', provides:
4. On 26 May 1986 the proceedings were '(1) It shall be prohibited to imitate milk suspended by an order of the President. On and milk products for use as foodstuffs 2 July 1987 the Council adopted Regulation or to offer or display for sale, to sell or No 1898/87 (Official Journal 1987, L 182, otherwise put into circulation such p. 36), Article 5 of which provides: imitation foodstuffs. 'Member States may, until the end of the fifth period of application of Article 5c of Regulation (EEC) No 804/68 [i.e. 31 March 1989] and in compliance with the general provisions of the Treaty, maintain (2) This prohibition shall not apply to the their national regulations which restrict the production of margarine.' manufacture and marketing in their territory of products not fulfilling the conditions referred to in Article 2 of this regulation.' Article 2 defines 'milk' and 'milk products' and stipulates what may be called 'milk' and what designations may be used for milk 2. The Commission took the view that, in products. so far as it restricted the importation and sale in the Federal Republic of Germany of milk substitutes lawfully manufactured and marketed in other Member States, the prohibition in Paragraph 36(1) of the German law was contrary to Article 30 of the EEC Treaty. 5. By an order of the President of 6 October 1987 the proceedings were resumed. A defence and a reply were lodged, as were observations by the French Republic intervening in support of the 3. Accordingly, by an application lodged on Federal Republic of Germany. Then on 12 March 1986, the Commission sought a 23 February 1988 the Court delivered
* Original language: English.
COMMISSION v GERMANY
judgment in Case 216/84 Commission German Government seeks to draw is v France [1988] ECR 793, to the effect that: without substance. Both parties agree on the effect of the national provision in question, which is to impose a complete marketing ban on foodstuffs which resemble, but are not, milk or milk products. In my view, the purport of the application is clear and the 'By prohibiting the importation of terms of the declaration sought are apt to substitutes for milk powder and concen cover the national prohibition in question trated milk under any name whatsoever and notwithstanding the use of the word the sale of such imported products, the 'substitutes' rather than the word French Republic has failed to fulfil an obli 'imitations'. gation incumbent upon it under Article 30 of the EEC Treaty.'
8. Next, the German Government submits 6. That judgment resolved a number of the that the application is inadmissible because points hitherto at issue between the parties. the Commission should have gone through Only the rejoinder and the oral arguments the administrative procedure under Article at the hearing were submitted after the 169 afresh following the adoption of Regu delivery of judgment in Case 216/84. It is lation No 1898/87. However, it is clear that possible therefore to deal with the Article 5 of the regulation applies only if the outstanding points shortly rather than repeat national provision in question is 'in the arguments as they originally stood. compliance with the general provisions of the Treaty' (see in particular paragraph 22 of the judgment in Case 216/84), which leaves open the question whether the national provision is contrary to Article 30 of the Treaty. Since the regulation does not 7. The Federal Republic of Germany makes change that issue and since the a preliminary point on the subject-matter of Commission's application has not been the application, on which it placed amended to include reference to it, the particular emphasis at the hearing, that the application in my opinion remains prohibition in question is not on milk admissible. 'substitutes' but only on such products which 'imitate' milk. As long as they cannot be mistaken for milk, substitute products are not caught by the prohibition. The Commission, however, clearly acknowledged that fact in its application. In 9. As to the substance of the case, it is not the Commission's view, the relevant fact is contested that the national measure in that a product constitutes an 'imitation' question is a measure having an effect equi under Paragraph 36 of the German law by valent to a quantitative restriction on virtue of its objective properties (the imports contrary to Article 30 of the intention of the producer or trader being Treaty. The question between the parties is irrelevant) and the provision prohibits the whether it is justified by Article 36 or by the marketing of 'imitations' even if clearly mandatory requirements accepted by the labelled as not being milk or milk products. Court in Case 120/78 Rewe [1979] ECR It seems to me that the distinction which the 649, at p. 662 ('Cassis de Dijon') confirmed
OPINION OF MR JACOBS — CASE 76/86
in paragraphs 6 and 7 of the judgment in 11. As to the alleged mandatory Case 216/84. In this connection the German requirements of the common agricultural Government, supported by the French policy, it is clear from the judgment in Government, advances three possible justifi Case 216/84, paragraphs 18 and 19, cations. It submits that Paragraph 36 of the confirmed in paragraphs 21 and 22 of the German law is justified by the mandatory judgment in Case 274/87, that it is for the requirements of consumer protection and Community and not for a Member State protection of fair trade as well as by the unilaterally to decide on the appropriate mandatory requirements of the common treatment of milk substitutes in the context agricultural policy, namely protecting the of the common agricultural policy and that income of Community milk producers by national measures may not run counter to a restraining competition from substitute fundamental Community principle such as products at a time when the Community the free movement of goods. It follows in rules themselves are restricting the my view that none of the three justifications production of milk. put forward by the German Government can be upheld, and the national measure in question is prohibited by Article 30 of the Treaty.
10. As to consumer protection and the protection of fair trade, the German Government's arguments are met by the judgment in Case 216/84. Moreover, they are contradicted by the fact that Paragraph 36(2) of the German law already allows the production of margarine. This demonstrates that the purpose of the prohibition is not, or not primarily, to protect the consumer or 12. Finally the German Government, fair trade but to prevent other milk supported by the French Government, has substitute products from entering the market argued that Regulation No 1898/87 allows in order to protect sales of milk and milk the maintenance of the national provision. products. Even if the main purpose of the However, in my view, because that provision were to protect the consumer or provision is contrary to Article 30 of the fair trade, a complete ban on marketing Treaty it is not 'in compliance with the such as that in issue here would be out of general provisions of the Treaty' as required proportion. Those purposes could be by Article5 of the regulation and is attained by less onerous restrictions such as therefore not authorized by the regulation: a requirement to provide adequate infor see paragraph 22 of the judgment in Case mation about the product: see Case 216/84, 216/84. At the hearing the German paragraphs 9 to 13, and the judgment of Government submitted that Paragraph 36 2 February 1989 in Case 274/87 of the law had lost its character as a purely Commission v Germany ('Sausages'), para national provision and been given a graphs 12 to 19. Community dimension by the regulation. I
COMMISSION v GERMANY
do not think that such an argument can be reference to the Commission's reasoned reconciled with the wording of Article 5 of opinion in the pre-contentious proceedings the regulation, which specifically refers to with the addition of certain further points. 'national' measures and, far from purporting The reply is pleaded in the same way. While to incorporate them into Community law, it is desirable that pleadings should be brief sets a limit on the time for which they may and should avoid unnecessary repetition, it be maintained. Therefore that argument also is also desirable, and perhaps necessary to falls to be rejected. comply with Article 38(1) of the Rules of Procedure, that the application should set 13. Before concluding, I would add that the out, albeit briefly, the substance of the application in this case is pleaded by applicant's contentions.
14. In conclusion, I consider that the Commission is entitled to a declaration that by refusing to admit to the German market milk substitutes lawfully manufactured and marketed in other Member States, the Federal Republic of Germany has failed to fulfil its obligations under Article 30 of the EEC Treaty, and is entitled to costs.