C-286/86

In respect of that importation, he was pros- ecuted and convicted of passing off constitutes a quantitative restriction on ('usurpation d'une dénomination') liable to imports or a measure having equivalent mislead the buyer as to the nature and effect thereto?' inherent qualities of the goods concerned. He appealed to the Court of Appeal, Colmar, on the basis that Community law allowed him to import the cheese into Mr Deserbais relies on Article 30 as inter- France under the appellation 'Edam' preted in the Court's case-law on the free because it was lawfully manufactured and movement of goods, asserts that consumers marketed under that name in the Federal were adequately protected by the infor- Republic of Germany. mation on the label, and submits that the

OPINION OF SIR GORDON SLYNN — CASE 286/86

30. It submits accordingly that the question should be answered along the lines that national rules which, for the purpose of The Netherlands Government contends protecting a trade name, prohibit the that, although the appellation 'Edam' is now marketing of cheese having a different fat applicable to cheese manufactured outside content from that stipulated are to be the Edam region of the Netherlands it must regarded as measures having an effect equi- be confined to cheese complying with a valent to a quantitative restriction contrary certain technical description and in to Article 30 of the Treaty where such particular having a fat content of at least cheese has been imported from another

It therefore proposes that the question should be answered along the lines that Community law does not prohibit It is well established in the case-law of the national provisions which allow a name to Court that a marketing restriction which be used for cheese only if certain charac- operates by way of a restriction on the use teristics are complied with such as those of a name, rather than directly on the stipulated inter alia in the Stresa Convention product, can none the less be a restriction and the Codex Alimentarius. for the purposes of Article 30 of the EEC Treaty: see, for example, the judgment of 26 November 1985 in Case 182/84 Miro [1985] ECR 3731 and the judgment of 12 The Commission adopts an interpretation of March 1987 in Case 178/84 Commission v the law on free movement of goods similar Germany (the 'beer' Case).

National legislation such as the French specific to an area becomes a generic name, legislation in issue in the present case does but it seems on all the evidence that 'Edam' restrict or may restrict the sale of goods has now become a generic name and falls imported from other Member States, which within the rule just stated. In any event as I brings it within the definition of a measure see it 'Edam' does not fall within the having an effect equivalent to a quantitative provisions of Article 36 of the EEC Treaty restriction on imports laid down by the relating to the protection of industrial and Court in its case-law, particularly Case 8/74 commercial property. Dassonville [1974] ECR 837. Accordingly, it is prohibited by Article 30 of the EEC Treaty unless it falls within one of the exceptions in Article 36 or, if applicable, one of the 'mandatory requirements' recognized by the Court in Case 120/78 Reive v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 (the 'Cassis de In the present state of Community law there Dijon' Case) and subsequent cases. are no Community rules governing the names or designations of origin of different types of cheese within the Community. As the Court held at paragraph 8 of 'Cassis de Dijon', in the absence of such common rules, 'it is for the Member States to As the Netherlands Government admits, regulate all matters relating to the 'Edam' long ago ceased to be reserved for production and marketing of [the product] cheese made in the Edam region of the on their own territory. Obstacles to Netherlands, and so it cannot be regarded movement within the Community resulting as a designation of origin. Indeed in the from disparities between the national laws Stresa Convention 'Edam' is not classified relating to the marketing of the products in among the 'designations of origin' but only question must be accepted in so far as those among the 'names' of cheeses for which a provisions may be recognized as being lesser degree of protection is provided. It is necessary in order to satisfy mandatory now a name for a type of cheese but no requirements relating in particular to . . . the longer with any geographical limitation on fairness of commercial transactions and the its place of production. defence of the consumer'.

Edam with a 3 0 % fat content has repre- operate to ensure that the goods in question sented one third of German production of do not bear a wholly inappropriate desig- Edam cheese. In such circumstances I do nation. That seems to me to be the present not consider that any mandatory require- case. Secondly, in the exceptional case ment as to the fairness of commercial trans- where the exporting Member State's law actions can justify one Member State in does allow the production and marketing of banning the sale of Edam with a 30% fat a product under a name which might content from another Member State. seriously mislead consumers in an importing Member State, the mandatory requirement of consumer protection would come into play so as to allow measures more restrictive than a mere labelling requirement to be applied, subject always to a condition of proportionality ('necessary in order to satisfy As regards the defence of the consumer, it is mandatory requirements': paragraph 8 of well-established in the Court's case-law (for 'Cassis de Dijon'). I do not consider, example, the 'beer' Case) that such a total therefore, that applying the 'Cassis de ban is disproportionate to the purpose of Dijon' principle of free movement in the protecting the consumer from deception if area of cheese names presents a real risk of the same purpose can be achieved by less robbing those names of their meaning. restrictive means such as labelling. That rule seems to me to apply in the present case, and it appears from the order for reference that the cheese in question was adequately labelled. Furthermore, the need to protect consumers from fraud must be set against the rule that national legislation 'must not crystallize given consumer habits so as to consolidate an advantage acquired by national industries concerned to comply with them': judgment in the 'beer' Case, paragraph 32.

179/85 Commission v Germany (the It remains to be considered whether the 'pétillant de raisin' Case), 'whereas the "fair existence of the Stresa Convention alters and traditional usage" test may be appro- that result. I think not. priate in a case like Prantl where the question of indirect designation of origin arose, it does not seem to me that it has to be established in every case. If it did, the development and marketing of new products would be stifled. The appropriate test in a case like the present is in my view that stated in 'Cassis de Dijon' — whether the product was "lawfully produced and The Netherlands Government has argued marketed" in one Member State. If it is, it that the Stresa Convention, along with the may be marketed in another Member State Codex Alimentarius, represents an interna- subject to mandatory requirements of the tionally agreed quality standard which kind indicated in 'Cassis de Dijon' and deserves to be protected under Community subject to the provisions of Article 30 of the law. Since a number of Member States, Treaty'. Although the judgment in that case particularly the Federal Republic of (4 December 1986) made reference again to Germany, have not accepted the standard the 'fair and traditional practice' test, in the thus proposed, I find it difficult to say that subsequent 'beer' Case judgment (of 12 they are rules of Community law which March 1987), the Court did not use the 'fair override or qualify the rule in Article 30. and traditional practice' test but struck down the German restriction on foreign beers simply on the condition that they had been lawfully manufactured and marketed in their Member State of origin. In my view a similar approach should be followed in the present case. As the Court held in its judgment of 11 March 1986 in Case 121/85 Conegate v Customs and Excise [1986] ECR 1007 (paragraph 26 of the judgment and point 2 of the operative part), Article 234 of the EEC Treaty must be interpreted as meaning that an agreement concluded prior to the entry into force of the EEC Treaty (which the Stresa Convention was) may not be relied upon in order to justify restrictions on For the reasons given above I do not trade between Member States. consider that any of the relevant mandatory requirements under 'Cassis de Dijon' or the relevant provisions of Article 36 apply to a national measure such as that at issue in the present case. Accordingly, in my view, a prohibition such as that contained in the French legislation in question may not be applied to a product such as the German Edam in issue because it has been lawfully Different factors would fall for produced and marketed in its Member State consideration if the name in question was an of origin. appellation or designation of origin.

The costs of Mr Deserbais in these proceedings fall to be decided by the national court. The costs of the Commission and the Netherlands Government are not recoverable.