C-358/95

MORELLATO ν USL N O 11, P O R D E N O N E

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 12 December 1996 *

1. By order of 18 October 1995, the Pretore suitable for human consumption'. Further- di Pordenone requested a preliminary ruling more, the sales description for the Italian from the Court under Article 177 of the E C market and the labelling of the containers Treaty on four questions relating to the com­ complied with Directive 79/112/EEC 1 and patibility with Articles 30 and 36 of the were a correct translation of the French ver- Treaty of certain Italian provisions applicable sion. to the production and marketing of bread.

2. Those questions were raised in proceed­ ings brought by Tommaso Morellato, the 4. Nevertheless, on 26 July 1993 the Health person vested with legal representation of Inspectorate of the USL found that the the company Soveda Sri ('Soveda'), whose imports by Soveda of special wholemeal registered office is in Sarmeola di Rubano, bread infringed several provisions of Law against Unità Sanitaria Locale N o 11 di N o 580 of 4 July 1967 laying down rules for Pordenone (hereinafter 'the USL'). the processing and marketing of cereals, flour, bread and pasta ('Law N o 580'). 2 In particular, the USL made the following find- ings:

— contravention of Articles 7(4) and 16 of Law N o 580, because the ash content of the bread imported from France was less than the minimum laid down for the wholemeal flour used for making whole- meal bread. The ash content of the bread ' 1 . Are Articles 30 and 36 of the Treaty in question was equivalent to 1.05% of establishing the EEC to be interpreted as the dry matter on the first analysis and precluding the Italian legislation on the pro- 1.13% on the second, whereas the Italian cessing and marketing of cereals, flour, bread provisions required wholemeal flour and and pasta (Law N o 580 of 4 July 1967), in so wholemeal bread made from it to have a far as such legislation prohibits the sale of minimum ash content of 1.40% and a deep-frozen special wholemeal bread having: maximum of 1.60%;

— contravention of Article 18 of Law N o — a moisture content in excess of the per- 580, by reason of the use of bran in the centage referred to in Article 16, imported bread, an ingredient which is not authorized in Italy.

— an ash content lower than that prescribed by Article 16 in conjunction with Article 7(3),

5. O n 13 and 18 January 1994 the USL issued three orders for the payment of cer- tain sums by way of administrative penalties against Mr Tommaso Morellato, the person vested with legal representation of the com- pany Soveda. Mr Morellato challenged them by three separate applications lodged on — an admixture of bran, which is not a per- 16 February 1994. In order to give judgment mitted ingredient;

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effect equivalent to a quantitative restriction, having an effect equivalent to quantitative which is prohibited by Article 30 of the restrictions. According to the well-known Treaty. Personally, I entirely agree with that formulation in the Dassonville judgment, view for the reasons which I am about to which has been applied in many subsequent give. decisions, all trading rules enacted by Mem­ ber States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions. 4 According to that definition, a measure having equivalent effect exists where there are two elements, namely 9. In principle the Member States retain a measure attributable to a Member State, their power to regulate the conditions for the and the restrictive effect of that measure on production and marketing of bread and intra-Community trade. other bakery products since there are no Community measures for harmonization in this sector. However, the Member States can­ not use that power in order to improve the competitive position of their domestic pro­ ducers and create obstacles to access to their national markets for bread made in other Member States. The Court has consistently 11. In the present case there is no problem so held in many decisions to the effect that, with regard to the first element since it is in the absence of common or harmonized clear that Law N o 580 is a measure attribut­ rules on the making and marketing of bread able to the Italian State. and other bakery products, it is for the Member States to regulate all matters relating to the composition, making and marketing of those foodstuffs, provided that they do not thereby discriminate against imported prod­ ucts or hinder the import of products from other Member States. 3 12. To determine whether the Italian provi­ sions fulfil the second condition, it must be shown that they have a restrictive effect on trade in the Community in wholemeal bread.

16. O n the other hand, in Keck and Mith­ ouard the Court adhered to the rule first laid 14. The Keck and Mithouard judgment relies down in the Cassis de Dijon judgment 8 on the distinction between provisions relat­ relating to measures concerning the charac­ ing to the characteristics of products and teristics of products. The Court observed provisions concerning selling arrangements that 'in the absence of harmonization of leg­ in order to determine which measures apply­ islation, obstacles to free movement of goods ing without distinction have a restrictive which are the consequence of applying, to effect such that they may be regarded as goods coming from other Member States measures having equivalent effect, in accord­ where they are lawfully manufactured and ance with the definition in Dassonville. marketed, rules that lay down requirements to be met by such goods (such as those relat­ ing to designation, form, size, weight, com­ position, presentation, labelling, packaging) constitute measures of equivalent effect ... even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking 15. Departing from its previous case-law, the precedence over the free movement of Court held that 'contrary to what has previ­ goods'. 9 ously been decided, the application to prod­ ucts from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder 6 — Keck and Mithouard, cited above, paragraph 16. directly or indirectly, actually or potentially, 7 — See, among others, the judgments in Case C-292/92 Hüner- mund and Others ν Landesapothekerkammer Baden- trade between Member States within the Württemberg [1993] ECR I-6787; Joined Cases C-401/92 meaning of Dassonville [...], so long as those and C-402/92 Tankstation 't Heukske ν JBE Boermans [1994] ECR I-2199; Joined Cases C-69/93 and C-258/93 provisions apply to all relevant traders oper­ Punto Casa ν Sindaco del Comune di Capena and Comune di Capena [1994] ECR 1-2355; Case C-412/93 Leclerc-Siplec ating within the national territory and so ν Société TF1 Publicité and Société M6 Publicité [1995] ECR I-179; Case C-391/92 Commission ν Greece [1995] ECR long as they affect in the same manner, in law I-1621; Case C-63/94 Belgapom [1995] ECR I-2467; Case and in fact, the marketing of domestic prod­ C-387/93 Banchero [1995] ECR I-4663; Joined Cases C-418/93 to C-421/93, C-460/93 to C-462/93, C-464/93, ucts and of those from other Member C-9/94 to C-11/94, C-14/94, C-15/94, C-23/94, C-24/94 and C-332/94 Semeraro Casa Uno and Others ν Sindaco del Comune di Erbusco and Others [1996] ECR I-2975. 8 — Case 120/78 Rewe-Zentral ν Bundesmonopolverwaltung für Branntwein [1979] ECR 649. 5 — Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097. 9 — Keck and Mithouard, cited above, paragraph 15.

17. The provisions of the Italian legislation at issue in this case lay down requirements for making wholemeal bread and relate to its composition, such as the moisture level, ash content and the use of bran. Consequently there is no doubt that the provisions relate to product characteristics. Although they apply without distinction to bread made in Italy and bread imported from other Member States, they create a barrier to imports of the product into Italy by preventing the market­ 19. Consequently the answer to the first ing there of bread made in another Member question must be that the application of leg­ State which does not comply with the Italian islation of a Member State which prohibits requirements. This restrictive effect on trade the marketing of deep-frozen special whole­ in the Community means that the provisions meal bread with a moisture content in excess in question amount to a measure having an of the statutory limit, an ash content below effect equivalent to a quantitative restriction the statutory limit and an admixture of bran, since they fulfil the second requirement of constitutes a measure having an effect the definition in Dassonville, as clarified by equivalent to a quantitative restriction, con­ Keck and Mithouard. trary to Article 30 of the Treaty.

10 — See, among others, the judgments in Case C-315/92 Ver­ 11 — The same reasoning was adopted by the Court in Kelder­ band Sozialer Wettbewerb ν Clinique Laboratoires and man, cited above, paragraph 7, in relation to certain Dutch Others [1994] ECR I-317; Case C-317/92 Commission ν requirements concerning the production of bread, and was Germany [1994] ECR 1-2039; Van der Veldt, cited above, repeated in Van der Veldt, cited above, paragraph 11, in and Case C-470/93 Verein gegen Unwesen in Handel und relation to certain other Belgian provisions on the market­ Gewerbe Köln ν Mars [1995] ECR I-1923. ing of bread.

13 — See the judgments in Case 227/82 Officier van Justitie ν 23. Secondly, Member States seeking to rely Van Bennekom [1983] ECR 3883; Case 304/84 Ministére Public ν Müller [1986] ECR 1511; Case C-42/90 Bellon on Article 36 must demonstrate that the [1990] ECR I-4863, and Joined Cases C-13/91 and C-113/91 Debus [1992] ECR I-3617. 14 — Sec, among others, the judgments in Case 174/82 Officier van Justitie ν Sandoz [1983] ECR 2445; Case 247/84 Motte [1985] ECR 3887; Case C-369/88 Delattre [1991] ECR 12 — Sec Case C-205/89 Commission ν Greece [1991] ECR I-1487; and Case C-373/92 Commission ν Belgium [1993] I-1361, paragraph 9. ECR I-3107.

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it has not been shown that the Italian State, reasoned opinion was sent to the Italian which has not submitted observations in this authorities requiring them to remedy that case, at any time pleaded the protection of failure and, after the abovementioned circu­ this interest in order to justify application of lar was issued, the Commission decided not the contested provisions of Law N o 580. to proceed to the litigation stage but to allow Italy the necessary time to make the requisite amendments to its legislation.

28. Finally, I should like to point out that, That circular, which takes due account of the even if the Italian legislation were necessary Court's case-law relating to Articles 30 and for protecting public health, it would not 36, was adopted by the Italian State in order pass the proportionality test. Instead of pro­ to remove de facto the obstacles to the free hibiting and penalizing the marketing of movement of goods resulting from Law N o wholemeal bread with a composition differ­ 580, which had led the Commission to ini­ ent from that laid down in Law N o 580, the tiate against Italy an action for failure to ful­ Italian legislature could have prescribed suit­ fil its obligations. As the Commission points able labelling to give consumers the desired out in its observations, on 18 March 1991 a information regarding the composition of the product. The protection of public health would thus have been ensured without such 15 — Circolare N o 131150/R del Ministero dell'Industria, del Commercio e dell'Artigianato, 2 novembre 1992, 'Bread- making. Bread and similar products not conforming with Law N o 580/67 may be imported from Member States of the EEC provided that they are labelled in accordance with 16 — See Case 178/84 Commission ν Germany [1987] ECR 1227, Legislative Decree N o 109 of 27 January 1992'. paragraph 44, and Debus, cited above, paragraph 17.

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far-reaching restrictions on the free move­ 32. Firstly, it must be observed that the ment of goods. Court has recognized the direct effect of 18 Article 30 since its judgment in Iannelli, in which it stated that the prohibition of mea­ sures having equivalent effect is mandatory and explicit and its implementation does not Fourth question require any subsequent intervention of the Member States or Community institutions. Therefore it has direct effect and creates indi­ vidual rights which national courts must protect. 29. By this question the national court asks whether the marketing of the wholemeal bread imported from France must be autho­ rized in Italy.

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incompatible with those requirements which N o 11, Pordenone, was also under an obliga­ are the very essence of Community law. tion to refuse to apply Law N o 580 to the Finally, the Court concluded that a national special wholemeal bread imported from court which is called upon, within the limits France because it is a national measure of its jurisdiction, to apply provisions of incompatible Article 30, as construed by the Community law is under a duty to give full Court. Furthermore, the action of the USL is effect to those provisions, if necessary refus­ all the more difficult to understand if it is ing of its own motion to apply any conflict­ remembered that the Ministerial Circular ing provisions of national legislation, even if adopted by the Italian State in 1992 expressly adopted subsequently, and it is not necessary provides that Law N o 580 is not to apply to for the court to request or await the prior bread imported into Italy from other Mem­ setting aside of such provision by legislative ber States where it is lawfully produced and or other constitutional means. 22 marketed in conformity with national stan­ dards differing from those of Italy.

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36. Moreover the obligation of the national Italian Constitutional Court in case-law courts to disapply domestic provisions beginning with the Granitai judgment and which are incompatible with Community upheld in a line of judgments starting on 11 26 law has been clearly acknowledged by the July 1989.

Conclusion

37. In the light of the foregoing, I propose that the Court give the following answers to the questions referred to it by the Pretura di Pordenone:

(1) The application of national legislation of a Member State which prohibits the marketing of deep-frozen special wholemeal bread with a moisture content in excess of the statutory limit, an ash content below the statutory limit and an admixture of bran, constitutes a measure having an effect equivalent to a quan­ titative restriction, contrary to Article 30 of the Treaty.