C-269/89

BONFAIT

O P I N I O N OF MR ADVOCATE GENERAL D A R M O N delivered on 25 September 1990 *

Mr President, 3. The precise reasons for the prosecution Members of the Court, are still somewhat unclear since, as was stated at the hearing, the packaging of the products in question did not bear the word 'vleeswaren'. However, it is not for the Court to give an opinion on the application by the national court of its national legis- lation and it must therefore assume that the 1. By judgment of 29 June 1989 given in questions for a preliminary ruling concern a criminal proceedings brought by the prosecution for the use of a specific name Officier van Justitie (Public Prosecutor) for where the products in question do not the District of Almelo against the company comply with rules on composition on which Bonfait BV ('Bonfait'), the Magistrate the lawful use of the name depends. dealing with commercial cases on the Arrondissementsrechtbank Almelo has referred three questions for a preliminary ruling.

* Original language: French.

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OPINION OF MR DARMON — CASE C-269/89

prohibition laid down in Article 30 of the marketed in other Member States under EEC Treaty, expressly referred to by the that name, that the legitimate concern to national court. I do not think that Directive 77/99/EEC of the Council of 21 December 1976, 1 to which, moreover, the judgment of referral does not refer, is relevant for the 'seek to enable consumers who attribute purposes of resolving the problem. That specific qualities to beers manufactured directive aims at harmonizing the provisions from particular raw materials to make their intended to guarantee the quality of meat choice in the light of that consideration' products from the health point of view, whereas the Netherlands Government, as its observations show, does not rely on protection of public health in defence of the rules in question but on consumer could be satisfied protection and fair trading. The directive contains provisions on the composition of the products governed by it only to the extent that it concerns the protection of 'by means which do not prevent the human health in the strict sense. It is not importation of products which have been therefore necessary to refer to it when lawfully manufactured and marketed in examining a description rule connected with other Member States and, in particular "by the composition of meat products if the the compulsory affixing of suitable labels protection of health is not a relevant factor. giving the nature of the product sold" '. 2

I-4174

BONFAIT

tuents, would enable the consumer to make That judgment thus fits squarely with the his choice with full knowledge of the facts, Court's established case-law on the matter, without its being necessary to resort to a whose main outlines have been indicated measure which, by preventing the sale in a above. It is not at all necessary for the Member State of products bearing a protection of the consumer to impose, or description authorized by law in the not allow, the use of a designation when Member State of origin, undeniably restricts information on the qualities or the compo- in practice the scope for distribution in the sition of the product can be provided by first State. It also seems to me that, having appropriate marking; the prohibition laid regard to the prohibition in Article 30, down in Article 30 accordingly takes full consumer protection does not justify the effect. restriction on importation resulting from the application of the Netherlands rules on the designation of meat products marketed under that name in another Member State. 9. The Netherlands Government has also raised, although in a fairly brief fashion, the concern about fair trading. Its position does not appear to be any more convincing on this point either. The Court's case-law on the subject is clearly illustrated by the judgment in Miro,5 rendered in connection 8. The judgment of 16 December 1980 in with rules which, in the Netherlands, Case 27/80 Fietje, referred to by the prohibited the use of the appellation 'gin' Netherlands Government at the hearing, for beverages having an alcohol content less does not run counter to that appraisal in than 35% and thus prevented 'gins' having any way. The Court stated: an alcohol content of 30% imported from Belgium from being marketed there under their original name. After stating that

tional practices observed in the various marketed in the Federal Republic of Member States'. 7 Germany under the designation 'Fleischwaren'. Provided that proper infor- The Court therefore considered that it mation can be provided to the purchaser, could not which is the case, as we have seen, it would not appear, having regard to Article 30, that fair trading can justify a prohibition on the 'be regarded as an essential requirement of marketing of such products under the fair trading for national rules fixing the description 'vleeswaren'. minimum alcohol content of a traditional beverage to be complied with by products of the same kind imported from another 11. Finally, it seems that a justification for Member State if they are lawfully and tradi- the national rules in question based on the tionally manufactured and marketed under protection of public health need not be the same appellation in the Member State of considered. As I have already noted, the origin and the purchaser is provided with Netherlands Government has not raised this proper information'. 8 possibility. After all, it would have been difficult for it to contend that the rule on designation rested on a concern to protect 10. That reasoning applies to the present public health since products not in case. It is undeniable that, notwithstanding a conformity with the rule, such as those higher degree of water content in imported from Germany in the present case, proportion to organic non-fatty substances, may be lawfully marketed in the the products imported by Bonfait have been Netherlands under a description other than lawfully and traditionally manufactured and 'vleeswaren'.