C-298/87

SMANOR

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 2 June 1988 *

Mr President, The milk used for the manufacture of the Members of the Court, yoghurt must not have been reconstituted. However, powdered milk, whether skimmed or not, may be added, up to a maximum dose of 5 grams of powder per 100 grams of milk used. 1. Smanor SA (hereinafter referred to as 'Smanor') is a French company specializing in the manufacture and wholesale of deep- frozen products, in particular natural After the coagulation of the milk, the yoghurts and yoghurts containing pieces of yoghurt must not be subjected, to any fruit which it subjects to a deep-freezing treatment other than refrigeration, and process on the basis of an invention for possibly stirring. which it holds the patent. Since 1977 Smanor has been the subject of several attempts by the French authorities to prohibit it from marketing those products The amount of live lactic acid contained in under the name 'yoghurt' and to require it the yoghurt must not be less than 0.8 grams to sell them on French territory under the per 100 grams at the time of sale to the name 'deep-frozen fermented milk'. consumer.'

3. The question referred to the Court by 2. In France, the use of the name 'yoghurt' the tribunal de commerce, L'Aigle, before is governed by Article 2 of Decree No which Smanor is the subject of compulsory 63-695 of 10 July 1963 on the prevention of reconstruction proceedings, relates to fraud with regard to fermented milk and the interpretation, with regard to the yoghurt, as amended by Decree No 82-184 abovementioned national rules, of of 22 February 1982. Article 2 is in the following terms:

1. Articles 30 to 36 of the EEC Treaty 286/81 (Oostboek's Uitgeversmaatschappij [1982] ECR 4575, at paragraph 9), the Court expressly found that 'the application of Netherlands legislation to the sale in the Netherlands of encyclopaedias produced in 4. In its written observations, the French that country is in no way linked to the Government argues that 'in this case the importation or exportation of goods and Court is faced with a situation which falls does not fall within the scope of Articles 30 outside the purview of Community law, and and 34'. in particular Article 30 et seq. of the EEC Treaty, inasmuch as the main proceedings concern only 'the application of French law to a French company which produces deep- frozen "yoghurt" on French territory' and, 8. But it must not be overlooked that, in the it later adds, 'markets them in France'. context of a reference for a preliminary ruling, the Court is not required to examine directly the main dispute and the facts of the case. The question whether, on its facts, the case does indeed, relate to a purely 5. France therefore proposes that the Court internal situation is for the national court to should rule that 'Article 30 et seq. of the decide. EEC Treaty do not apply to situations which are purely internal to a Member State such as that at issue here'.

SMANOR

questions were asked in the context of indirectly, actually or potentially, intra- proceedings being in the nature of Community trade are to be considered as 4 measures having an effect equivalent to 'pre-arranged procedural devices'. That is clearly not so in the present case. quantitative restrictions.' (paragraph 5).

11. The national court seems to take the 15. The regulations in question ban the sale view that it is faced with a problem having in France under the name 'yoghurt' of at least some connection with intra- products lawfully manufactured and Community trade. It is not asking the Court marketed under that name in other Member to rule on Smanor's situation in relation to States on the sole ground that they have French legislation, but in its question is undergone a treatment other than refrige­ raising two problems relating to the inter­ ration or stirring, in actual fact deep­ pretation of Community law. freezing. It is evident from the Commission's observations that deep-frozen yoghurt is in fact manufactured and lawfully marketed under that name in the United Kingdom and in Ireland. There are 12. The first is in effect whether Article 30 therefore at least potential channels of of the EEC Treaty precludes a Member trade. State from restricting the right to use the name 'yoghurt' solely to the fresh product, to the exclusion of deep-frozen products.

OPINION OF MR MISCHO — CASE 298/87

Such rules must also be 19. On the other hand, as the Commission proportionate to the objective pursued. If a rightly pointed out in its written obser Member State has a choice between vations (point 48), a measure such as the different measures for achieving that one at issue, although indirectly applicable objective, it must choose the means which to imported and domestic products, has the impinges the least on freedom of trade. effect of placing at a disadvantage imported products the transport and stocking of which in deep-frozen form would represent a considerable advantage in distribution, in favour of domestic production, which is more readily distributed in a fresh state.

23. Since then Council Regulation No 1898/87 on the protection of designations used in marketing of milk and milk products has entered into force. 8But, although, on 6 the one hand, this regulation expressly 21. The Court has consistently held that, refers to yoghurt (see the Annex thereto), it in the absence of common rules governing contains no specific rules relating to its the marketing of the products in question, manufacture and composition and, moreover, continues to refer in the second 5 — Case 120/78 REWE v Bundesmonopolverwaltung für Branntwein [1979] ECR 649. indent of Article 2 (2) to descriptions within 6 — See, in addition to the 'Cassis de Dijon' judgment of 20 the meaning of Article 5 of Council February 1979, cited above under footnote 5, in particular Directive 79 / 112 / EEC which, as we shall the 'Beer' judgment of 12 March 1987 in Case 178/84 Commission v Germany [1987] ECR 1227, at paragraph 28, as well as the judgments of 26 June 1980 in Case 788/89 Gilti [1980] ECR 2071, at paragraph 6, 9 December 1981 7 — See the very recent 'Milk substitutes' judgment of 23 in Case 193/80 Commission v Italy [1981] ECR 3019, at February 1988 in Case 216/84 Commission v France [1988] paragraph 21, and 10 November 1982 in Case 261/81 Rau ECR 793, at paragraph 6. [1982] ECR 3961, at paragraph 12. 8 — Official Journal 1987, L 182 of 3 July 1987, p. 36.

see, are those laid down in the laws, regu acknowledged that a Member State's lations or administrative provisions concern to avoid confusion in the minds of applicable to the products in question in the consumers between products of the same Member States. On the other hand, Article type but having different characteristics and 5 thereof, authorizes the Member States to to inform them in as accurate a manner as maintain their national rules restricting the possible about such differences particularly manufacture and marketing on its territory as regards their manufacture and compo of products not complying with the sition, is in itself entirely legitimate and not conditions referred to in Article 2 thereof open to question. only 'subject to observance of the general principles of the Treaty'. It follows, as the Court stressed in its judgment of 23 February 1988 in Case 216/84 (Commission v France [1988] ECR 793), that if the 27. Nevertheless, consumer protection may national rules in question are contrary to in general be effectively 'ensured by Article 30 of the EEC Treaty, it in no event methods which do not impede the satisfies the conditions laid down by the importation of products lawfully manu aforesaid Article 5 (see paragraph 22). factured and marketed in other Member States, in particular by means of the

On the other have undergone. hand it is clear from the documents in the case that, when such products were being exported to non-member countries, the French authorities recognized that they were of 'sound, proper and merchantable quality' and conceded that 'no substance 29. Such a solution is all the more appro harmful to the health of consumers is used priate in the light of the expert opinion in their manufacture.' which Mr Hermier, Director of Research of the Institut national de recherches agron

OPINION OF MR MISCHO — CASE 298/87

'Yoghurt sold in a fresh state and deep- Codex Alimentarius of the Food and Agri­ frozen yoghurt contain viable lactic bacteria. cultural Organization (FAO) and the World The quantity thereof present in yoghurt sold Health Organization ( WHO ) (Standard No fresh may remain constant during the whole A-11 a) merely requires that in the finished period of sale permitted by the regulations. product, the micro-organisms must be in a On the other hand, in the case of deep- viable state and present in abundant quan­ frozen yoghurt, the number of viable lactic tities. bacteria inevitably diminishes during the freezing process and then during the period of conservation in the frozen state. However, in spite of this diminution, the number of such bacteria may remain greater 32. That being so, the other imperative than the minimum of 100 million per gram requirement within the meaning of the (limit set by the Decree of 22 February 1982 'Cassis de Dijon' judgment, namely the for yoghurt sold in a fresh state) for some fairness of commercial transactions, cannot months at -18° C' justify a Member State's prohibition of the sale under the name 'yoghurt' of fermented milk, even in a deep-frozen state, coming from other Member States, provided that it is properly and traditionally produced and marketed under the same name in the 30. At the hearing, the agent of the French Member State of origin and the buyer is Government acknowledged that it is given the appropriate information. possible for the limit set by the French regu­ lations to be complied with during the first three or four months of deep-freezing. The more recent scientific studies to which he referred as pointing to the existence of a 33. In fact, the Court has always held that tendency for the 'actual activity' or the in a common market system, interests such 'effectiveness' or the 'vitality' of the as fair trading must be guaranteed with surviving lactic bacteria to diminish during regard on all sides for the fair and tradi­ this period appear not to be relevant in this tional practices observed in the various case, as the French rules merely require the Member States. 11 bacteria to be alive.

35. On the basis of all these considerations, 38. Although Article 3 of the directive sets I propose that the Court's reply to the first out the only particulars including primarily partof the question asked by the tribunal de the name under which the product is sold commerce, L'Aigle, should be that: which, subject to certain exceptions, must be mentioned on the labelling of foodstuffs, it does not attempt to harmonize the content of those particulars. On the contrary, Article 5 (1) expressly states that: 'The prohibition of measures having an equivalent effect to quantitative restrictions on imports within the meaning of Article 30 of the EEC Treaty precludes a Member 'The names under which a foodstuff is sold State from applying to products imported shall be the name laid down by whatever from another Member State national rules laws, regulations or administrative which restrict the right to use the name provisions apply to the foodstuff in question "yoghurt" to fresh yoghurt alone to the or, in the absence of any such name, the exclusion of deep-frozen yoghurt, when name customary in the Member State where such products are properly and traditionally the product is sold to the ultimate produced and marketed under the consumer . . . '. description "deep-frozen yoghurt" in their Member State of origin and buyers are given appropriate information.' 39. It follows, in my opinion, that the reference to Articles 15 and 16 of the Treaty is not relevant, as the French Government has moreover argued. 2. Council Directive 79/112/EEC

(i) as to the characteristics of the 42. As far as Article 5 is concerned, foodstuff and, in particular, as to its although it is true that it refers to the names nature, identity, properties, compo­ provided for by the laws, regulations or sition, quantity, durability, origin or administrative provisions of the Member provenance, method of manufacture States, its meaning and precise scope must or production, . .. '. nevertheless be assessed in the light of its general context.

46. This rule also applies to Member States in respect of the rules adopted by them with 43. The sixth recital in the preamble to regard to the names under which products Directive 79 / 112 / EEC states that: are sold. Since that name is one of the particulars which under Article 3 must appear on the label, it must not be capable of misleading the buyer. It is also significant 'The prime consideration for any rules on that, in the absence of such rules, Article the labelling of foodstuffs should be the 5 (1) provides that that name shall consist need to inform and protect the consumer.' of

It appears from the following recital that it 'a description of the foodstuff and, if was for this purpose that the list of infor­ necessary, of its use, that is sufficiently mation which must in principle appear on precise to inform the purchaser of its true the label was decided upon. nature and to enable it to be distinguished from products with which it could be confused'.

44. The 12th recital states that: 47. Furthermore, Article 5 (3) provides that:

'The rules on labelling should also prohibit the use of information that would mislead the purchaser. . ., to be effective, this 'The name under which the product is sold prohibition should also apply to the presen­ shall include or be accompanied by tation and advertising of foodstuffs.' particulars as to the physical condition of the foodstuff or the specific treatment which it has undergone (e.g. powdered, freeze- dried, deep-frozen, concentrated, smoked) 45. Article 2 implements this prohibition by in all cases where omission of such infor­ providing in paragraph 1 thereof in mation could create confusion in the mind particular that: of the purchaser.'

48. Like the Commission, I think that it preliminary ruling, by the court making the may legitimately be inferred therefrom that reference. a Member State cannot refuse to authorize a certain name for a product solely on the 51. It will find useful guidance on this point ground that that product has undergone a in the report drawn up by Mr Hermier, specific treatment, such a deep-freezing, Director of Research of the Institut national provided, of course, that it continues, even de recherches agronomiques, to which I after undergoing that treatment, to satisfy referred above. In particular, it will be for the other conditions laid down by the the national court to examine the conditions national rules for the authorization of the under which the deep-freezing is carried out use of the name in question. and to take account of the minimum durability period which Smanor marks on its products (this date is one of the 49. Any other solution would bring about a particulars which, under Article 3 of reasult contrary to that which is sought. To Directive 79 / 112 / EEC , must be indicated prohibit the use of the name 'yoghurt' for on foodstuffs). deep-frozen yoghurt would be likely to mislead the consumer and to conceal from 52. In the light of the foregoing obser­ him the true nature of the product. The vations, I propose that the Court's reply to name imposed by the French authorities, the second part of the question referred to it namely 'deep-frozen fermented milk', seems by the tribunal de commerce, l'Aigle, should to me particularly open to criticism in this be as follows: respect since fermented milk does not normally contain germs of the streptococcus thermophilus or the lactobacillus bulgaricus, 'The provisions of Directive 79 / 112 / EEC , whereas the product at issue in the main in particular Article 5 thereof, must be inter­ proceedings does. preted as meaning that they prohibit a Member State from refusing to permit goods to be sold under the name "yoghurt" 50. Whether the product, having been in the case of products, whether imported deep-frozen, still satisfies the other or of national origin, which have undergone conditions required by the national rules in deep-freezing, provided that they comply order for the name 'yoghurt' to be used is a with the other requirements laid down by question of fact which falls to be the national rules for the authorization of determined, in the context of a request for a such name in the case of fresh products.'

3 — See to this effect the Mathot judgment (cited above) at paragraph 7.