C-274/87

COMMISSION v GERMANY

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 29 November 1988 *

Mr President, ingredients other than meat, subject to Members of the Court, exceptions for specified products the composition of which is defined, with a requirement, in certain cases, for specific information to be given on the packaging or 1. The legislation of the Federal Republic displayed on signs. of Germany provides that meat products may be imported only if they comply with the standards laid down in the Fleisch- Verordnung, a federal regulation of 21 January 1982 governing meat. Is the consequent ban on the importation of products lawfully manufactured and 4. The Court's consideration of the present marketed in another Member State but not case will involve only an assessment of the meeting the requirements of the German justifications and derogations put forward standards contrary to Article 30 of the EEC by the Federal Republic of Germany. It is Treaty? That is the question which the undisputed that the German legislation has Court must decide in this action brought by a restrictive effect on imports. The Federal the Commission for a declaration that the Republic does not deny that its legislation Federal Republic of Germany has failed to excludes from the German market products fulfil its obligations. which have been lawfully manufactured and marketed in other Member States, and therefore does not object to its description 2. The question is raised at a time when the as a measure having an effect equivalent to Court's case-law, especially its more recent a quantitative restriction on imports. It case-law, has clearly defined the scope of endeavours to demonstrate, however, that the justifications and derogations which the reasons underlying the measure are such Member States may put forward to rebut a that it cannot be held to be a breach of the charge that they have infringed Article 30. principle of the free movement of goods. In the field of foodstuffs — liquid or This Opinion will therefore be devoted solid — the Court's recent decisions in cases exclusively to a consideration of those dealing with beer, 1 milk substitutes 2 and reasons. pasta products 3spring immediately to mind.

I — Protection of health 9. It should first be observed that the situation of the German population as regards protein availability does not appear to be as critical as the Federal Republic has made out. According to a report on nutrition published by the German 6. The defendant State claims, first of all, Government in 1980, 'average protein that the contested provisions are intended to intake meets the recommended quantity of ensure an adequate supply of certain 0.9 g per kg per day'. However, the report essential nutrients which are contained in mentions that the situation 'differs greatly meat, particularly proteins, iron and according to age group. While all adults of thiamine. According to official reports both sexes are more likely to exceed the referred to by the German Government, recommended quantities, young people meat consumption is not adequate even tend, almost without exception, to fall today in certain groups of the population. slightly short of the recommended quantities The aim of ensuring adequate meat and this tendancy is even quite marked in consumption in Germany could not be the 13- to 14-year-old age group'. But it achieved if ingredients other than meat were then goes on to state: 'Recommended levels, generally authorized, which would allow however, particularly those for proteins, are the distribution of products which were set with such high safety margins that the both cheaper — and thus more lower protein intake found in the case of attractive — and poorer in essential young people does not pose a threat to nutrients. growth or health'. Finally, after noting that substances commonly found in the presence of proteins, essentially purine, cholesterol and saturated fatty acids, can be harmful to health, it states that 'any further increase in the consumption of meat and meat products by adults should be viewed critically'. 4 7. The Commission considers that those arguments are not well founded. In its view, meat consumption in the Federal Republic of Germany has increased considerably since the 1960s and is now such that inter­ nationally recommended protein intake levels have been partially exceeded. In those circumstances, and in view of the fact that the protein needs of the German population are met mainly by fresh meat, the slight 10. Furthermore, the report on nutrition changes in the composition of meat published by the German Government in products prohibited by the contested 1984 points out that meat and meat provisions would have practically no effect products are also important as a source of on public nutrition or health. thiamine, riboflavin, niacin and iron, and then goes on to state that 'their contribution to human nutrition lies not only in the proteins and other essential nutrients which they contain but also in their fats and, moreover, ... they contain variable quan- 8. Let me say at the outset that I am no more convinced than the Commission by the 4 — Quotations from the report taken from the French version of documentation note No II distributed to the Court, pp. arguments of the German Government. 14 and 15.

11. Those conclusions reached by official reports on nutrition in the Federal Republic 14. In my view, those observations cast of Germany prompt a number of remarks. doubts on the need for, and even the usefulness of, the national measure in question as far as the protection of the health of the German population is concerned. Such doubt can but be streng­ thened by a scrutiny of one of the Court's 12. First, the nutritional situation of the most recent decisions. German population, viewed as a whole or in groups identified according to age or sex, does not appear to be one of danger or even one merely giving cause for concern. Were that not so, the two official repons would not have both come to the conclusion that 15. In the present case, the German an increase in the consumption of meat or Government has put forward arguments meat products was not nutritionally comparable in some respects to those of the desirable. Consequently, it does not appear French Government in the judgment of 23 to be necessary, on health grounds, to limit February 1988 in Case 216/84 Commission the proportion of ingredients other than 6 v France. With regard to legislation prohi­ meat in meat products. From that point of biting the importation and sale of substitutes view alone, I do not believe that the ban on for milk powder and concentrated milk, imports of meat products whose ingredients which the French Government endeavoured other than meat do not comply with the to justify, inter alia, on grounds of the requirements of the Fleisch-Verordnung can protection of public health, by the lower be related to the aim of protecting public nutritional value of the substitutes, the health sufficiently closely for the purposes Court held that of Article 36 of the Treaty.

16. The Court thus answered the question concerning the extent to which the aim of protecting health may be relied on in the case of certain products, not because they II — Consumer protection are harmful but because their nutritional value is lower. In answering that question it followed a line of reasoning which, in my view, can be transposed directly to the circumstances of the present case. The fact that meat products manufactured in other Member States contain less meat, and thus 18. The Federal Republic of Germany also lesser quantities of animal proteins, thiamine claims that the legislation at issue is based and other essential substances, does not, in on mandatory requirements relating to my view, constitute a more real threat to consumer protection. Paragraphs 4 and 5 of human health than that alleged in relation the Fleisch-Verordnung are, it claims, to milk substitutes, since if those meat measures which are appropriate to ensure products were imported, German consumers that the consumer is not misled, in view of would still have the choice of fresh meat, the fact that 'as a result of habits which date which provides an optimum supply of back several decades', 9 the German proteins and other essential substances, or consumer 'assumes that products purchased national products containing a higher under a trade description representing them proportion of meat. A sufficient proportion as a meat product are composed only or of essential substances in the nutrition of 1 essentially of meat'. 0In the absence of any groups considered to be 'vulnerable' harmonization, which is, in the German could be ensured by that possibility of Government's view, the only appropriate choice. means of dealing with the problems posed by the protection of consumers against misleading information or practices, the German legislation, which cannot be inter­ 17. Those observations lead me, therefore, preted as an absolute ban on importation to consider that the German legislation since it allows for exceptions under certain cannot be held to be 'necessary for the specified conditions, lays down appropriate effective protection' 8 of human life and rules for providing such protection. The health, to use the wording which has extreme diversity of meat products available become traditional at the Court's decisions, in the 12 Member States makes it impossible to resort to less restrictive measures regu- 7 — Paragraph 15 of the judgment. 8 — Most recently in the judgment of 4 February Ī988 in Case 261/85 Commission v United Kingdom [1988] ECR 547, 9 — German Government's statement of defence, p. 6. paragraph 12. 10 — Ibid.

lating the marking of the products in available in the 12 Member States, a system question. of consumer information for listing and describing ingredients is perfectly conceivable within the framework of 19. The Commission considers that in Council Directive 79/112/EEC of 18 adopting its position on consumer December 1978 (hereinafter referred to as protection the defendant State is in fact 'the directive'),11as the Fleisch-Verordnung putting forward two arguments — one itself shows. The Commission points, in relating to national quality policy and the particular, to the possibilities provided by other to the need to counteract misleading Article 7 (3) of the directive, which allows practices regarding the description and for provisions stipulating that quantities of composition of meat products. certain ingredients must be indicated, thus providing the option, where the composition of products is particularly complex, of requiring for example only a brief indication 20. In the Commission's view, not only is it of the main ingredients. doubtful whether the aim of a national quality policy may be regarded, in the light of the Court's previous decisions, as a mandatory requirement of public interest but, even assuming that such an aim were admissible, the criterion used in the German legislation — that is to say, the elimination of any ingredient other than meat — is 22. That exchange of arguments between inappropriate as a means of achieving it. the Commission and the defendant State has The quality of meat products is in no way now become standard in proceedings determined essentially by the exclusive use relating to measures restricting imports of of meat in their composition. The foodstuffs. In recent judgments in such Commission considers that quality must proceedings, to which I have already prevail on the market; it is open to manu­ referred, the Court has adopted positions facturers and retailers of German meat which are themselves in the process of products to promote those products by becoming standard. I therefore consider that means of advertising campaigns. Moreover, it will be sufficient, essentially, to refer to it is open to the German legislature, if it those judgments in the present case. wishes to ensure that quality products are not at a competitive disadvantage, to enact provisions governing the presentation and description of meat products, standards and categories of quality for certain types of product and consumer information, without hindering imports.

'legitimate to seek to enable consumers who attribute specific qualities to pasta products made exclusively from durum wheat to make their choice in the light of that consideration', 26. It is true that, in view of the different ways in which food products are distributed — they may be sold in packaged the Court considered that form or loose, or consumed in restaurants — consumer information poses problems which are considerably more 'that possibility may be ensured by means complex in the case of meat products which do not prevent the importation of (whose extreme diversity is stressed by both products which have been lawfully manu­ parties) than in the case of pasta products, factured and marketed in other Member in which the question was only of enabling States and, in particular, "by the consumers to distinguish between pasta compulsory affixing of suitable labels giving made exclusively from durum wheat and 3 the nature of the product sold" '. 1 pasta containing common wheat. I believe, however, that, despite that complexity, a system of consumer information, built on rules governing the labelling and description 24. One cannot fail to see the analogy of products, would enable the German between the Italian argument on ensuring Government to achieve its legitimate aims.

'the superior quality of pasta, which is an 1 Italian product with a long tradition' 4

and the German argument that 27. First of all, as the Commission has rightly stated, the directive provides a wide range of possibilities. In particular, Article 6 'as a result of eating habits which date back (5) (a) provides that the list of ingredients several decades, German consumers have which, according to Article 3, the labelling clear ideas about what to expect from the must show 'shall include all the ingredients meat products they buy'. 15 of the foodstuff, in descending order of weight, as recorded at the time of their use 13 — Paragraph 16 of the judgment. in the manufacture of the foodstuff'. It is to 14 — Ibid. be preceded by a suitable heading which 15 — German Government's statement of defence, p. 6. includes the word 'ingredients'. Article 6 (6)

28. It is not for the Court, nor for myself, 31. Like the Commission, I consider that to prescribe a detailed system for the those provisions do not preclude short or labelling and description of meat products simplified labels showing the main ingre­ for the Federal Republic of Germany. But, dients together with their percentages if like the Court, I am bound to find that, in appropriate. In my view, such indications view of the possibilities offered by the would provide the consumer with the infor­ directive, the Federal Republic of Germany mation relevant to his expectations of may not maintain that a barrier to quality. In particular, he would certainly be importation constitutes the only means of able to determine whether the product he protecting the consumer. was being offered was made solely from meat or essentially from meat, or whether it contained a significant proportion of ingre­ dients other than meat, such as, for 29. In the case of packaged foodstuffs, for example, eggs or milk. Since a Member which the provisions of the directive are the State is not precluded from using such strictest, I cannot see what could prevent methods of providing information, I the consumer from obtaining from the list consider that it may not maintain, in the of ingredients on the package sufficient case of foodstuffs sold in bulk, that the information about whether the product in national measure at issue is necessary in question possesses the qualities he expects of order to protect consumers in their quality it. expectations.

prohibition is not to apply to products in the to which they refer, lead me to conclude manufacture of which certain specific that the German legislation already lays substances are used under certain well- down very precise rules with a view to defined conditions (Paragraph 4 (2)). It also ensuring that consumers are informed of the provides, by way of derogation from the presence of certain specific ingredients in prohibition, for the possibility of marketing certain meat products. I also note that in the products to which certain specific substances case of some specified products no special have been added under certain well-defined consumer information is required if they conditions, provided that certain rules contain certain ingredients. In those circum­ relating to the information to be shown on stances, one may wonder why a rule laid packages, or displayed on signs in the case down in the Federal Republic of Germany of foodstuffs sold in bulk, or on menus or requiring consumers to be informed of the price lists where the products are consumed use of certain ingredients in specified in restaurants (Paragraph 5), are observed. proportions in certain products — which, it may be assumed, is considered by the German Government to be a satisfactory rule, since it enacted it — should cease to be practicable or satisfactory when the same 34. It may thus be noted, for instance, that ingredients are used in higher proportions, the use of liquid egg or frozen egg yolk in or other ingredients are introduced into the the manufacture of such products as liver products. Why, for example, should the pâté or poultrymeat pâté, up to a maximum indication, on packages or signs, 'sausages proportion of 5 % of the quantity of meat for boiling with egg white and milk and fat, is no bar to their being marketed, proteins' be apparently satisfactory when the nor is any special measure of consumer proportions of those ingredients do not information required. Similar remarks may exceed 3 and 2 % respectively of the quan­ be made with regard to the use of dried tities of meat and fat and cease to be so in blood plasma in the manufacture of certain the case of boiling sausages containing a types of sausage, or of edible gelatine in the slightly higher percentage of the same ingre­ manufacture of jellied preparations, cooked dients? ham or tongue. It may also be noted that liquid or frozen egg white may be used in the manufacture of certain sausages for boiling and similar products, up to a maximum proportion of 3 % of the quan­ tities of meat and fat used; at the marketing stage the products must bear the words 'with egg white'. Likewise, cooked meat spreads, poultrymeat pâtés and game pâtés, meat balls and forcemeats may contain solu- bilized milk proteins up to a maximum proportion of 2 % of the meat and fat used, provided that the products bear the words 'with milk proteins' at the marketing stage.

constitute such a radical innovation that the III — Protection of traders and producers in consumer information system set up by that Germany regulation, or another system based thereon, would be brought to naught or deprived of all its effectiveness. The possibility referred to above, of prescribing the indication of percentages for certain ingredients, could clearly be used to improve a system of the 39. The Federal Republic of Germany also kind laid down by the Fleisch-Verordnung. maintained that its legislation was based on a concern to protect producers and distributors of meat products from the unfair competition which arises if 'some traders offer their inferior products for sale in a form bound to give consumers the impression that they are of higher quality'. 37. With regard, finally, to products sold in Since 'such inferior goods are much cheaper restaurants, I would likewise point out that to produce' their producers obtain 'a Paragraph 5 (2) of the Fleisch-Verordnung, competitive advantage which, since it is cited above, provides that indications such based, in the final analysis, on deceit, is 1 as, inter alia, 'with milk proteins', 'with egg contrary to the principles of fair trading'. 7 white' or 'made with the use of milk' must 'be shown on the menu or price list or, if there is no such menu or price list, by some other means or by a written notice'. For certain mass-catering establishments, 'it shall be sufficient to indicate the substances by 40. In reply to that argument, the means of notes which may be consulted by Commission, referring to the Court's the doctor responsible and, on request, by case-law, states that: the consumers'. Here, again, it is difficult to see how a consumer information system of this kind could be rendered inoperative or ineffective in the case of the 'new' products to which I have referred, especially if the 'neither possible economic pressure nor even improvements which can be made to the a requirement of national law extending to system on account of the diversity of the national products rules applicable to products are taken into consideration. products from other Member States can ever justify the application of measures 8 which are incompatible with Article 30'. 1

It went on to state that

42. Lastly, in support of its legislation, the Federal Republic of Germany relies on 'even if they support a common policy of mandatory requirements relating to the the Community, national measures may not common agricultural policy. It submits that conflict with one of the fundamental prin­ the common organizations of the markets in ciples of the Community — in this case that beef and veal and in pigmeat both have the of the free movement of goods — unless same aim of providing an adequate standard they are justified by reasons recognized by of living for the farming population and that Community law'. 20

aim would be jeopardized if the surpluses already in existence were further exacerbated by an increased use of ingre­ dients other than meat, particularly soya, in That position has most recently been reaf­ meat products. Since the common market firmed in the Court's judgment in the 3 21 organizations have not led to comprehensive Glocken case, cited above. harmonization in the field of the marketing of meat and meat products, they must be 45. Since, as we have seen, none of the supplemented by existing national rules other reasons put forward by the Federal meeting the same aims, such as Paragraphs Republic of Germany can justify the failure 4 and 5 of the Fleisch-Verordnung. of the national legislation on meat to observe the principle of the free movement of goods, reference to the common agri­ cultural policy alone cannot provide such justification.

43. In the Commission's view, the 19 — Case 216/84, cited above, paragraph 18 of the judgment. application of the provisions governing the 20 — Ibid., paragraph 19 of the judgment. free movement of goods cannot be 21 — Case 407/85, cited above, paragraph 26 of the judgment.