C-67/88

OPINION OF MR VAN GERVEN —CASE C-67/88

O P I N I O N OF M R ADVOCATE GENERAL VAN GERVEN delivered o n 5 July 1990 *

Mr President, 3. The Italian Government does not deny Members of the Court, that the obligation to add sesame oil to the products in question is in principle to be regarded as a measure having equivalent effect to a quantitative restriction within the meaning of the judgment in Dassonville.4

1. In this case the Commission is asking the Court to declare that the Italian Republic has failed to fulfil its obligations by making The parties also agree that the measure is the marketing of edible vegetable oils, other applicable without distinction to the than olive oil, and of margarine and solid domestic and imported goods in question. edible fats of animal or vegetable origin, other than butter and lard, imported from other Member States conditional on the addition of colour-reactive sesame oil. It is also common ground that the dispute must be resolved in accordance with the settled case-law of the Court of Justice (see primarily the 'Cassis de Dijon' judgment 5 ) according to which, in the absence of Community rules, obstacles to the free 2. A common organization of the market movement of goods resulting from exists both in the sector of oils and fats 1 disparities between national laws must be and in the sector of milk and milk accepted in so far as those rules are products. 2 However the Commission is not applicable without distinction to domestic asking the Court to declare that the Italian and imported goods and in so far as they Republic has infringed any provision of the are necessary in order to satisfy imperative common organizations of the market. The requirements which include the protection Commission's case rests solely on Article 30 of the consumer and fairness of commercial of the EEC Treaty, although the prohibition transactions, and the resulting obstacle to on measures having equivalent effect to the free movement of goods is not dispro- quantitative restrictions forms an integral portionate to the aim pursued and the actual part of both common market organiz- implementation thereof. ations. 3

necessary in order to satisfy the aforemen- add sesame oil to edible vegetable oils other tioned imperative requirements. As I have than olive oil. Whenever a sufficient already stated in my Opinion in another proportion of sesame oil is added to other case 6(at point 8), this condition is twofold: vegetable oils, there is a change of colour. the measure in question must be relevant, In this way pure olive oil can be visibly that is, such as to achieve the object distinguished from a mixture of olive oils envisaged, and essential, because there is no and other vegetable oils. The disputed alternative that would achieve the aim measure is therefore said to be necessary for envisaged in a manner less restrictive of the combating fraudulent practices such as to free movement of goods. mislead the consumer in the olive oil sector. That aim can allegedly not be achieved by means of appropriate labelling. The Italian Government claims that the measure renders superfluous laboratory analysis on the relia- bility of which, at the present stage of technical development, it casts doubt in its The condition that the national measure pleadings. Finally the measure is said to must be proportionate to the objective serve the interests of the Community since pursued is also of some significance here. the consumption of olive oil benefits from This requirement obliges Member States in aid financed by the Community. appropriate circumstances to dispense with a measure which is 'necessary' in the aforementioned sense or to accept a less effective measure if the restrictive effect of the measure is disproportionate to the objective pursued (point 10 of the abovementioned Opinion). As regards margarine and solid edible fats of animal and vegetable origin, other than butter and lard, the Italian Government's position can be given in few words: to prevent such goods being marketed under the name 'butter'. 5. According to the Italian Government, the contested measure is valid since it serves to protect consumers and the fairness of commercial transactions. The idea underlying the defence arguments can best be seen with regard to edible vegetable oils other than olive oil. At the end of the 1920s the Italian legislature prohibited the mixing 6. I agree with the Commission that the of olive oils with other edible vegetable oils obligation to add sesame oil to other edible in the hope of thus putting a stop to the vegetable oils does not offer really effective fraudulent practice of selling as pure olive protection against the fraudulent mixture of oil such mixtures which, with the methods olive oils and other oils. As the Commission of analysis then available, were difficult to rightly pointed out, it is not difficult to buy identify as such. In furtherance of that vegetable oils that have not been mixed with prohibition the obligation was laid down to sesame oil. The obligation to add sesame oil relates only to vegetable oils intended for 6 — Opinion delivered on 20 March 1990 in Case C-169/89 direct consumption, that is some 50% of Criminal proceedings against Gournnetterie Van den Burg [1990] ECR I-2143. production and the Commission further

The latter contention is questionable in my opinion. The only result that could be achieved by the Italian obligation to add From that it is plain that the contested sesame oil is that spot checks are no longer measure is not capable of achieving the necessary on oil to which sesame oil has objective pursued (preventing consumers been added because the colour of such oils from being misled) effectively, that is in a itself makes it plain that they are not pure manner that is relevant and has sufficient olive oils. But ex hypothesi therefore the causal connection with that object. For dealer in question has acted honestly and those reasons the measure is therefore in complied with the obligation to add sesame itself not 'necessary' (see point 4 above). oil and it may be assumed that even if there had been no such obligation he would not have offered the goods in question as pure olive oil but would have described them correctly. In that case, however, both the obligation to add sesame oil and analysis of 7. Furthermore I consider that the Italian Government has also failed to make out its case that the obligation to add sesame oil is 7 — See Article I of Commission Regulation (EEC) No 1058/77 of 18 May 1977 of the characteristics of olive oil necessary in the sense of being essential and of certain products containing olive oil and amending the Common Customs Tariff nomenclature as regards because the object pursued cannot be olive oil (OJ 1977 L 128, p. 6).

I - 4292

COMMISSION v ITALY

(2) order the Italian Republic to pay the costs.

8 — Set judgment in Case 261/81 Rau [1982] ECR 3961, in which lhe Court ruled ihat labelling provisions served io rule out the possibility of confusion between butter and margarine just as effectively as mandatory rules regarding the packaging of such products..

I - 4293