C-196/89

'Are Articles 30 and 36 of the Treaty of Rome to be read and interpreted as meaning that the Italian legislation on cheese other than that protecting "typical local" products The proceedings in Case C-210/89 concern or products of specific origin is not an action under Article 169 of the Treaty compatible with those articles and is for a declaration against the Italian therefore unlawful, in so far as it lays down Republic inasmuch as it has made the for ordinary cheeses minimum fat contents importation of cheese from other Member by reference to dry weight, at a high level, States conditional upon compliance with the moreover, where it is established that those provisions of Law No 396 of 2 February rules constitute an obstacle to the free 1939, and in particular Article 1 of that law, movement of such foodstuffs within the which prohibit the production and sale of Community which is not justified on cheese whose minimum fat content is lower grounds of the protection of public health than the percentage prescribed by the or by the mandatory requirements of relevant national rules. According to the protecting consumers and ensuring fair Commission, in so doing the Italian trading?' Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty and Article 22(1) of Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products. · 2. According to the Commission, Mr Crippa and Mr Nespoli — the accused in the main proceedings in Case C-196/89 — and the French Government, which has intervened in those proceedings In Case C-196/89 the Pretura di Milano for a preliminary ruling, the established (Magistrates' Court, Milan), in proceedings case-law of the Court provides the answer to the question raised. I shall briefly * Original language: Dutch. consider that case-law which, in my view, I — OJ, English Special Edition 1968 (I), p. 176. does indeed provide the answer.

The established case-law of the Court The judgment in Kelderman was concerned with an absolute prohibition on marketing, meaning that products not manufactured in accordance with the national rules on prep­ 3. The premiss on which the established aration were barred from being sold in the case-law of the Court is based is that Member State concerned. According to Member States may adopt rules on the Italy's interpretation of its own rules, given manufacture and marketing of (cheese) inter alia in reply to a written question from products within their territory in the the Court, the Italian legislation imposes absence of any rules of Community law only a relative prohibition on marketing. 2 thereon. 'Such rules cannot, however, This means that products not manufactured discriminate against imported products or in accordance with the Italian rules on the hinder the importation of products from preparation of cheese, for instance because 3 other Member States'. their fat content is not sufficient, cannot be sold under generic names such as, in this 2 — Judgment in Case 237/82 Jongeneel Kaas v Netherlands [1984] ECR 483. paragraph 13 3 — Ibid 4 — Judgment in Case 130/80 [1981] ECR 527, paragraph 7

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OPINION OF MR VAN GERVEN — CASE C-196/89

case, 'cheese' ('formaggio') or 'cheese of consumers and (closely connected product' ('prodotto caseario'). 5 therewith) fair trading.

4. National provisions of that kind which In the case-law of the Court it is made clear are applicable without distinction to that a measure imposing a total prohibition domestic products and to goods imported on sales of products manufactured in other from other Member States may be regarded Member States in accordance with the as compatible with the Treaty only if, in compliance with the principle of propor­ 7 — Judgment in Case 120/78 REWE-Zentrah Bundesmonopol- verwaltung fir Branntwein [1979] ECR 649, paragraph 8. tionality, they are rendered necessary by The last two requirements referred to in the text are at mandatory requirements such as the times merged into a single requirement: see the Opinion of Mr Advocate General Mayras in Case 27/80 Fietje [1980] protection of public health or the protection ECR 3839, who on p. 3861 uses the phrase 'the protection of the consumer against unfair commercial practices'. 8 — As far as the Italian authorities are concerned, the national 5 — The fact that this case is concerned with the most generic court refers, by way of example, to the health campaign terra that exists for cheese products, namely 'cheese', conducted in 1986 by the Istituto nazionale della distinguishes it from situations in which the name used nutrizione, one of whose fundamental themes was necessarily presupposes the existence of a typical ingredient reducing fat consumption. or method of production and the product offered for sale is substantially different. In that connection, at the hearing 9 — See the programme 'Europe against Cancer' submitted by the Associazione italiana lattiero-casearia referred to the the Commission to the Council on 17 December 1986 answer given by the Commission to a question from the ( C9M ( 86 ) 717 final, OJ 1987 C 50, p. 1), in the section European Parliament concerning cheese manufactured entitled 'Improvement in nutrition', see the subsection from cow's milk which may not be marketed in Greece entitled 'Nutrition and cancer' (pp. 15 and 16) and in the under the name 'Feta' (answer to Written Question No section entitled 'Elaboration of guidelines relating to 2302/87 by Mr Pol Marck (90/C 9/03), OJ 1990 C 9, nutrition and cancer prevention', see 'Action 16' (on pp. 2 and 3). It is clear from the Court's judgment in Case p. 18), and the 'European Code against Cancer' (p. 32). In 286/86 Minislère public v Deserbais [1988] ECR 4907 that those passages, an excessively fatty diet is invariably that situation — which I need not consider — does not referred to as a risk factor. Subsequently, the Council and arise here. In that judgment, the Court treated a very the representatives of the governments of the Member similar restriction on the use of a name far less generic than States meeting within the Council adopted an action plan the term 'cheese', namely 'Edam', as being contrary to for 1988 to 1989 by Decision of 21 June 1988 Article 30 et seq. of the EEC Treaty. ( 88 / 351 / EEC , OJ 1988 L 160, p. 52). The action planned for 1990 to 1994 was adopted by Decision of 17 May 1990 6 — Case 178/84 Commission v Germany[\987] ECR 1227. (90/238/Euratom, ECSC, EEC, OJ 1990 L 137, p. 31).

production rules in force there, still less a given consumer habits so as to consolidate measure which prohibits the use of generic an advantage acquired by national industries names such as, in this case, 'cheese' concerned to comply with them".' ('formaggio') or 'cheese product' ('prodotto caseario') and which therefore requires less attractive descriptions or fancy names to be used, cannot be regarded as the least restrictive solution for the purposes of consumer protection (or fair trading). I have 6. As a less restrictive alternative to a already referred to the judgment of 12 prohibition on sales or on the use of generic March 1987 in the German beer case for an names, the Court has referred in its example of a relative prohibition on judgments to the possibility of informing the marketing. That judgment also refutes the consumer by means of proper labelling as to argument relied upon by the Italian the composition and the characteristics of Government in a letter from its Permanent the product concerned. To depart from that Representation, to the effect that a generic established case-law on the ground, as set name such as 'cheese' should be reserved for out in a letter of 18 April 1988 from the products which the consumer, under the Italian Permanent Representation to the influence of national production rules, Commission, that reliance on the labelling regards as such. In paragraph 32 of that would amount to 'harmonization of quality judgment the Court stated that: at the lowest level' (thereby referring to the possibility available at the time of choosing cheeses with a low fat content) underes­ timates the ability of consumers to weigh the price and quality of products against one another. In that connection I leave open the question whether, taking Case C-196/89 as an example, cheese of the Emmenthal type with a fat content of 30 % is necessarily of inferior quality to cheese of the same type with a fat content of, for instance, 45 %, also having regard to the health considerations referred to above. 'First, consumers' conceptions which vary from one Member State to the other are also likely to evolve in the course of time within a Member State. The establishment of the common market is, it should be added, one of the factors that may play a 'Confusion of consumers' and 'reverse major contributory role in that development. discrimination'? Whereas rules protecting consumers against misleading practices enable such a devel­ opment to be taken into account, legislation of the kind contained in Article 10 of the Biersteuergesetz prevents it from taking place. As the Court has already held in another context (judgment of 27 February 7. The only argument put forward by the 1980 in Case 170/78 Commission v United Italian Government in its written obser­ Kingdom [1980] ECR 417), the legislation vations is that consumers would be seriously of a Member State must not "crystallize confused if, as a result of the free movement

of goods, they were confronted with an second subparagraph of Article 40(3) of the Emmenthal-type cheese with a fat content Treaty. of, for instance, less than 45 %, whereas cheese of the same type produced and sold in Italy had a minimum fat content of 45 %. In my view, that assertion as well is incom­ patible with the established case-law of the Court. The possibility that the production of That argument cannot be upheld. It is a single product, for instance cheese, may scarcely credible to maintain that, for the be subject to different production rules in protection of consumers, it is necessary to different Member States is the direct result impose as the least restrictive measure and of the absence of harmonizing or other one which is strictly necessary, a prohibition relevant provisions of Community law and on imports or on the use of a name as of the possibility thereby left to the Member regards cheeses of a specific type which are States of regulating the activities carried on lawfully produced in another Member State within their territory themselves. of the Community. Labelling, that is to say the provision of more or better information, is an effective and less restrictive alternative That undoubtedly leads to differences which in modern society which is made up of well- may, in the light of the case-law of the informed citizens. Court authorizing in principle (that is to say without prejudice to mandatory requirements) the entry into the territory of one Member State of products lawfully 8. According to the Associazione italiana manufactured in other Member States, place lattiero-casearia, the Treaty provisions a country's own producers in a less advant­ concerning the free movement of goods in ageous position. However, that does not run conjunction with existing national rules counter either to the spirit or to the letter of which impose strict standards as regards the the EEC Treaty which favours instead the production or description of cheese, for repeal or dilution, by the competent example, have the effect of placing national national authorities, under pressure from producers at a disadvantage in relation to domestic producers, of more stringent their rivals in other Member States. The national provisions which are not strictly intervener goes so far as to suggest that this necessary (and frequently have a protec­ difference of treatment is contrary to the tionist slant).

'Article 30 et seq. of the EEC Treaty must be interpreted as precluding national rules which make the use of the names "cheese" or "cheese product" subject to compliance with a minimum fat content from being applied also to products imported from another Member State, which are lawfully manufactured and marketed there as "cheese" and on which consumers are provided with proper information.'

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