C-184/96

2. The parties to these proceedings agree that since the 16th century the image of foie gras has been inseparably linked to French gastro­ 3. Ministerial Decree No 93-999 of 9 August nomic tradition. Furthermore, France today 1993 ('the Decree'), which entered into force still holds an extremely important position on on 1 January 1994, specifies in detail the com­ the market in this product, being responsible position and sets standards relating to the fol­ for, on average, about 80% of world produc­ lowing preparations with foie gras as a base tion of raw foie gras and 95 % of its pro­ (see Article 2): whole foie gras, foie gras, cessing. In addition, about 90% of French production of raw foie gras and of prepara­ 1 — According to data supplied by the French Government for 1995, the only Member States to reach a significant level of consumption of foie gras — apart from France (with about 12 500 tonnes) — were Spain, Belgium and Germany (with * Original language: Italian. about 250, 150 and 100 tonnes' consumption respectively).

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blocks of foie gras (these three preparations ment to state 'in gelatine' in addition to the have a base of either goose or duck foie gras), trade description. liver parfait, liver medallions or pâté, galan­ tine of liver or liver mousse (the last four preparations can have a basis of goose foie gras or duck foie gras or goose and duck foie gras).

II — Arguments of the parties 2 — As provided in the decree, whole foie gras, foie gras and blocks of foie gras are composed solely of foie gras and sea- soning; however the minimum foie gras content of liver par- fait is 75%, and that of liver medallions or pâté, galantine of liver and liver mousse is 50%. It should be noted that the calculation of the percentage of foie gras does not take into account certain ingredients (for example the cooking fat (graisse de pochage) — defined as 'the fat released by foie gras when it is processed' — and meat trimmings in the case of liver parfait, galantine of liver and liver mousse). 3 — Homogenate is defined as 'all that part of the foie gras which 6. In the Commission's opinion, the Decree has not remained in one piece after the pieces and fragments of less than 20 grammes weight have been packed together'. is contrary to the Treaty provisions con­ 4 — For example, the maximum number of pieces of the lobe of cerning the free movement of goods, since it the liver (not less than 20 grammes in mass), in the case of prepacked whole foie gras of net mass not greater than 250 does not provide for the mutual recognition grammes (see Article 3), and the minimum total mass of pieces of preparations with foie gras as a base legally (not less than 10 grammes in mass), where their presence is shown on the labelling of a block of foie gras (see Article 5). produced and marketed in other Member

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States — that is to say, in accordance with riding public-interest requirements and in so national legislation or proper production pro­ far as it is in fact proportionate to the pursuit cesses — with the same names as those gov­ of that objective. erned by the Decree.

8. According to the Commission, the imposi­ tion of restrictions on the marketing in France of food products lawfully manufactured and 10. The Commission agrees that the preven­ marketed in other Member States can be tion of commercial offences relating to food lawful only if it is intended to satisfy over­ standards constitutes a legitimate objective

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but it challenges the solution adopted by the 11. In addition, there are, in the Commis­ Decree in order to enable consumers to choose, sion's view, no grounds for considering that with full knowledge of the facts, products to mutual recognition of preparations lawfully which they attribute specific qualities, because produced and marketed within the Commu­ they are manufactured from particular raw nity risks driving one or more French pro­ materials or because they have a given con­ ducers — to whom the stricter technical and tent of a characteristic ingredient. The Com­ commercial requirements laid down by the mission maintains that less restrictive mea­ Decree would continue to apply — to estab­ sures could be relied on for that purpose. lish themselves in another Member State (or Those means include, first of all, according to to export all or part of their own production the case-law of the Court, 5suitable labels there, in order to reimport it into France) for concerning the nature of the product sold or the sole purpose of benefiting from less restric­ the percentage of raw materials used: label­ tive rules. The existence of such a risk is put ling equivalent, with regard to the informa­ forward by the French Government as evi­ tion it contains and to how easily it may be dence that the Decree is proportionate in understood by consumers in the importing nature. State, to the trade description covered by the rules.

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equivalent legislation in the other Member ambiguous terms — that the Decree 'may, on States and the probable compliance by the certain points, constitute a measure having other Community producers with the French equivalent effect'. measure.

It maintains, however, that the purpose of the By seeking to have such a clause inserted in contested measure is not to impose the use of legislation intended to last for some time, the arbitrarily determined names, but rather to Commission has focused its attention on the prevent certain customary names — which potential future effects of such legislation. The have now in practice become a sort of 'rec­ clause would ensure that where preparations ognition mark' or 'guarantee of quality' — with foie gras as a base which do not satisfy from being used to market products which the conditions as to composition, manufac­ do not satisfy the objective criteria of com­ ture and presentation laid down by the French position, production and presentation, to legislation are lawfully manufactured and which those names traditionally correspond offered for sale in another Member State under in the eyes of the purchasers. one of the trade descriptions governed by the Decree, they could lawfully be marketed under the same names in France as well.

The French Government therefore considers that the Decree is justified by overriding requirements of consumer protection and fair The Commission refers, in addition, to the trading which would seem to be particularly settled case-law of the Court, according to deserving of protection in relation to rather which national legislation for the protection expensive products. Furthermore, in its view, of consumers must not in any way be used to the Decree is proportionate to those require­ crystallise given consumer habits so as to ments. consolidate an advantage acquired by national 7 industries concerned to comply with them.

9 — See the judgment of 22 September 1988 in Case 286/86 Min- istère Publique v Deserbais [1988] ECR 4907. In that judg- ment, the Court considered whether there are limits to the power of a Member State to raise obstacles, by means of mea- sures restricting the trade name of a certain product (in that case, by making the use of the trade name Edam conditional on a minimum fat content of 40%), to imports of products of the same type — even where adequate information about 15. In addition, the French Government those products is ensured for consumers — where the product presented outside the Member State of origin under the observes more generally that the trade descrip­ reserve trade name 'is so different, as regards its composi- tional production, from the products generally known by that tions in issue were defined pursuant to Article name in the Community that it cannot be regarded as falling 5(1) of the Directive, according to which 'the within the same category': ibid., paragraph 13 (it was not, however, necessary to settle that question in the circumstances name under which a foodstuff is sold shall be of the case in the main proceedings which concerned imports into France of cheese containing 34% fat). See also the the name laid down by whatever laws, regu­ (slightly) earlier judgment of 14 July 1988 in Case 298/87 Smanor ([1988] ECR 4489, paragraphs 21 to 25), in which the Court left it to the national Court to decide whether the dif- ferent characteristics (in particular, in relation to the number of live lactic bacteria) of deep frozen yoghurts lawfully pro- duced and marketed in other Member States in relation to the 8 — Council Directive 79/112/EEC of 18 December 1978 on the quality requirements laid down by French rules relating to approximation of the laws of the Member States relating to fresh yoghurts were so substantial as to justify for the former, the labelling, presentation and advertising of foodstuffs for on being imported into France, a name other than the reserved sale to the ultimate consumer (OJ 1979 L 33, p. 1), as subse- name of 'yoghurt'. quently amended.

19. Second, with specific reference to pos­ sible imports of preparations with foie gras as a base which do not comply with the require­ ments of the French recipe, the imposition by the national authorities of a trade description 17. In emphasising that preparations with foie including an additional statement concerning gras as a base are traditional products which the use of those ingredients — as suggested cannot be placed on the same footing as by the Commission — would be in conflict modern food products, the French Govern­ with the case-law of the Court; more specifi­ ment states that the trade descriptions in dis­ cally, it would be so in conflict whenever pute, inherited from very old customs ingredients not covered by the Decree already common to the majority of the French people, appear in the usual list of ingredients for that 10 constitute the best means of supplying con­ product. sumers with correct information.

The Commission therefore proposed that pro­ ducers in other Member States should, on a 18. On the other hand, the use of labelling purely voluntary basis, resort to fixing labels merely stating the proportion of foie gras mentioning the limited content of foie gras contained in an individual preparation would and indicating the minimum quantity of that be insufficient for that purpose. ingredient expressed as a percentage, as pro­ vided for by Article 7(1) of the Directive. In

10 — See Case C-51/94 Commission v Germany [1995] ECR I-3599, in which the Court held that it is contrary to Article 30 of the Treaty for a Member State to require — as condi- tion for marketing certain foodstuffs in its territory which contain an ingredient which is not in accordance with the prescriptions of a national recipe — the trade description to First of all, the French Government submits carry an additional statement indicating that that ingredient has been used, even if it is already included in the list of that that alternative solution, proposed by the ingredients prescribed by Article 6 of the Directive.

The French Government claims that foreign producers too remain entirely at liberty to offer for sale on the French market new preparations containing foie gras, so long as they use names other than those governed by In any event, however, the second condition the Decree, and always without prejudice to laid down by the Court's case-law is not sat­ the prohibition on referring to foie gras in the isfied, since that condition requires the infor­ description if the percentage of raw material mation on such a label to be as comprehen­ used is less than 20 %. In other words, the sible to French consumers as the trade effects of the Decree on the free movement of description determined by the national legis­ goods, as a fundamental freedom, are those lation. According to the French Government, minimal effects allowed by the overriding the average consumer does not know exactly requirement of consumer protection. what is the minimum content of foie gras tra­ ditionally contained in each type of prepara­ tion, still less the combination of factors, con­ nected to the production method, which creates the special tastes characteristic of each preparation. Therefore, even a long and com­ plex description of the composition and pro­ 22. Finally, with regard to the absence of any duction method on the label of the product mutual recognition clause in the Decree — which, as I have pointed out, constitutes the specific subject-matter of these infringement 11 — See above, footnote 5, and the relevant part of the judgment. proceedings — the French Government

23. Consequently, as the representative of the French Government observed at the hearing, the position adopted by the applicant in these proceedings appears contradictory when com­ pared with the approach it previously fol­ lowed in the case of the trade description 14 24. Given, therefore, to the absence, already 'caviar'. In that case, the Commission con­ noted, of equivalent rules in the other Member sidered that the term 'caviar' could 'be States, the introduction into the Decree of a regarded as generally recognised within the mutual recognition clause, as requested by Community to indicate a product with a basis the Commission, would not only not give of sturgeon eggs', despite the fact that two rise to any benefit in terms of the free move­ ment of goods in question within the Com­ munity, but would even give rise to a dam­ 12 — According to data supplied by the French Government, the aging legal uncertainty for French consumers other major foie gras producing States are Hungary, Bul- garia, Poland and Israel. Within the Community, a signifi- and producers alike. The content of the cant production of foie gras is to be found only in Spain (165 tonnes a year) and Belgium (around 60 tonnes a year), both of which States are net importers. 13 — The French Government states that it is not by chance that even Spain, the only State to have submitted a detailed 15 — In this connection, the French Government regards as unac- opinion, which had originally challenged the validity of the ceptable the criterion proposed by the Commission distin- draft French law, subsequently the Decree, eventually agreed guishing between the present case and the caviar case ('[caviar] that 'it was not clear that a mutual recognition clause was is a product sold almost exclusively in the raw state, whereas necessary'. foie gros always needs a further preparation stage before it 14 — In that case, the Commission concluded that the importing is sold to the final consumer'). The French Government Member States are entitled to prohibit on their territory the points out that not only does the salting of sturgeon eggs use of that trade description for products, such as lump fish — which alters their chemical, taste and nutritional proper- eggs, which do not display the essential characteristic, gener- ties — constitute a genuine processing of the product, but ally known within the Community, of being composed furthermore it is hard to see how the Commission can intro- exclusively of sturgeon eggs: see the Commission's interpre- duce different legal treatment for foie gros based on the tative communication concerning the trade descriptions of products physico-chemical state at the moment of sale rather foodstuffs (OJ 1991 C 270, p. 2, in particular p. 4). than on its essential characteristics.

16 — See, ex multis, the judgments in Case 97/81 Commission v Netherlands [19821 ECR 1819, paragraph 6, Case 141/87 Commission v Italy [1989] ECR 943, paragraph 15, Case C-375/90 Commission v Greece [1993] ECR I-2055, para- graph 33 and Case C-61/94 Commission v Germany [1996] ECR I-3989, paragraph 61. 25. Analysis of the infringement of Article 30 On the other hand, if the Commission produces sufficient of the Treaty of which the Commission com­ evidence to establish the alleged infringement of Commu- nity law, the facts which it has alleged must be considered plains must in my opinion start from certain to nave been proved, unless the Member State concerned is able to contest substantively and in detail the information premisses which can be deduced from the produced and the consequences thereof (see Case 272/86 Court's settled case-law concerning actions Commission v Greece [1988] ECR 4875, paragraph 21). 17 — See, ex mukis. Case C-200/88 Commission v Greece [1990] for failure to fulfil Treaty obligations. In the ECR I-4299, paragraph 13 and Case C-60/96 Commission v context of proceedings taken under Article France [ 1997 ]ECR I-3827, paragraph 15. 18 — See Case C-61/94 Commission v Germany, cited above at 169 of the Treaty, it is incumbent upon the footnote 16, paragraph 42; rejecting the argument of the Commission to prove that an obligation has German Government that the existence of an infringement must be assessed in the light of legislation which entered not been fulfilled; the Commission cannot into force several months after the end of the period pre- scribed in the Commission's reasoned opinion, the Court rely on any presumptions and it is obliged to stated that 'in such proceedings [pursuant to Article 169 of submit to the Court the evidence necessary to the Treaty] the existence of an infringement must be assessed in the light of the Community legislation in force at the enable the Court to give a decision on the close of the period prescribed'.

According to the Commission, in the absence of a clause for the mutual recognition of products from other Member States, prepara­ Therefore, in accordance with the line of tions with foie gras as a base which might one case-law beginning with the Court's Cassis de 20 day be produced within the Community Dijon judgment, in order for the Court to according to composition and preparation hold that the burden of proving the alleged rules different from those laid down by the infringement of Article 30 of the Treaty has Decree could be sold in France only under been discharged, the Commission would have trade names different from those reserved by to demonstrate that the requirements laid law, which are more attractive from the com­ down by the Decree cannot be regarded as mercial point of view. If the percentage of necessary to satisfy overriding public-interest raw material used in a given preparation were requirements — such as those concerning fan- 21 22 less than 20%, that product could be sold on trading and consumer protection, cited the French market only under names which here by the French Government — which did not refer to foie gras. The measure in issue must therefore be characterised as a measure having equivalent effect to a quanti­ 19 20 — Case 120/78 Rewe v Bundesmonopolverwaltung für Bran- tative restriction on imports. ntwein [1979] ECR 649, paragraph 8. In a subsequent judg- ment (Case 788/79 Gilli and Andres [1980] ECR 2071, para- graph 6) the Court held that the permissibility of obstacles to intra-Community trade caused by disparity between national rules relating to the sale of those products depends upon there being no discrimination by the national legisla- 19 — According to the Court's settled case-law, the concept of a tion to the disadvantage of imported products. See also judg- measure having effect equivalent to quantitative restrictions ments in Case 113/80 Commission v Ireland [1981] ECR includes 'all trading rules enacted by Member States which 1625, paragraph 10 and Case 59/82 Schutzverband gegen are capable of hindering, directly or indirectly, actually or Unwesen in der Wirtschaft v Weinvertriebs [1983] ECR 1217, potentially, intra-Community trade' (see judgment in Case paragraph 11. 8/74 Procureur du Roi v Dassonvãle [1974] ECR 837, para- graph 5). For the purposes of the prohibition laid down in 21 — See Case 25/88 Wurmser and Others [1989] ECR 1105 and Arnele 30 of the Treaty, it is not a necessary condition that Case C-93/92 CMC Motorradcenter v Baskiciogullari [1993] those measures should have an appreciable effect on intra- ECR I-5009. Community trade (see judgment in Case 16/83 Franti [1984] 22 — See Case 6/81 Industrie Diensten Group v Beele [1982] ECR ECR 1299, paragraph 20). 707 and Case 220/81 Robertson [1982] ECR 2349.

26 — Although the literal wording in Cassis de Dijon and the Court's subsequent case-law refers to products lawfully pro- duced and marketed in a Member State other than that of importation, the principle of equivalence must, correctly understood, be taken as applying to the obligation to accept goods lawfullyproduced or marketed in another Commu- 28. Conversely, in the absence of a public- nity country. That was expressly recognised by the Court (see, for example, Schutzverband, cited at footnote 20 above, interest objective capable of prevailing over paragraph 12, and Case C-131/93 Commission v Germany the requirements of the free movement of [1994] ECR I-3303, paragraph 10). By contrast, the fol- lowing fall outside the scope of application of that principle: goods, the principle — also laid down by the (i) products from non-member countries (see R. Barents: 25 "The Image of the Consumer in the Case-law of the Euro- Court in Cassis de Dijon — according to pean Court', EUR. Food L. Rev., 1990, p. 6, in particular which any Member State is required to autho p. 11, note 23), (ii) products which do not comply with the technical rules of the Member State of origin, which are not rise the entry into its territory of goods law marketed there and which comply with the rules of the importing Member State (see A. Mattera Ricigliano: 'La libre fully produced or marketed in other Member circulation des produits alimentaires à l'intérieur de la Com- munauté et la mise en oeuvre du principe de la reconnais- sance mutuelle', EUT. Food L· Rev., 1990, p. 72, in particular p. 77), and (iii) products produced in a Member State other than that of direct export, which comply with the technical requirements in force in the former but not with those 23 — See, ex mulm, judgments in Case 261/81 Rau v De Smedt applicable in the latter (see P. Oliver: Free Movement of [1982] ECR 3961, paragraph 12, and Case 382/87 Buet and Goods in the European Community, London, 1996, 3rd ed.,

The graphs 6 to 9, Case 121/85 Conegate [1986] ECR 1007, para- principle in question is called the principle 'of the country graphs 15 to 16, and Case C-317/91 Deutsche Renault v of origin' by Barents, cited above at footnote 26, p. 12. As Audi [1993] ECR I-6227, paragraphs 18 to 28. regards the basis of that principle, see footnote 30 below and 25 — See Cassis de Dijon, cited at footnote 20, points 14 and 15. the relevant part of the text.

30 — See Bernel, cited above, at footnote 19, p. 110, for a refer- ence to the principle of 'mutual trust', see Wurmser, cited above at footnote 21, paragraph 18. According to the Com- mission, 'acceptance [of the principle that any product law- According to the Court, in the absence of fully produced and marketed in one Member State must be admitted to the market of any other Member State] implies Community harmonisation of legislation, that Member States, when drawing up ... rules [concerning national measures which are necessary in order the composition, designation, presentation and packaging of to ensure that products are accurately products, or requiring compliance with technical provisions], liable to affect the free movement of goods, may not take an exclusively national view point ana take account only of described are not incompatible with the Treaty requirements confined to domestic products. The proper functioning of the common market demands that each Member State also give consideration to the legitimate requirements of the other Member States' (see the commu- nication from the Commission, cited above, at footnote 27, 32 — See, ex mukis, Case 188/84 Commission v France [1986] p. 2). ECR 419, paragraph 16, and Case 215/87 Schumacher v 31 — See A. Mattera Ri cigliano, II mercato unico europeo. Norme Hauptzollamt Frankfurt am Main-Ost [1989] ECR 617, e funzionamento, Turin, 1990, p. 155. paragraphs 19 to 22.

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rules on the free movement of goods pro­ 31. In other words, it must be held that the vided that they avoid any confusion on the goods the import of which is in issue guar­ 33 part of consumers and ensure fair trading. antee a level of protection equivalent to that guaranteed by the trade description regulated by the State of importation where the infor­ mation on the original label contains — in the 35 Court's opinion — information concerning at least the same elements and is as compre­ hensible to the consumers in the Member

?', 10,, paragraph 31 footnote 10 31,, and Case 216 216//84 Commission v Eur. . L. Rev Eur Rev.,., 1991 1991,, p. 391 391,, in particular particular,, pp pp. . 406 to 413413. . By 1988]] ECR 793 France [1988 793,, paragraph 11 11. . contrast,, for an appreciative assessment contrast assessment,, sec W. and G. Wils Wils,, See,, ex multis 34 — See multis,, Cassis de Dijon Dijon,, cited above at footnote 20 20,, Tree Movement of Goods and Quality Regulation of Food paragraph 13 13,, on the prohibition of marketing alcoholic bev stuffs',, Eur stuffs' Eur.

. J. Int'l L., Vol Vol. . 28 28,, 1988 1988,, p. 753 753. . Andres,, cited above at footnote 20 Andres 20,, paragraph 7, and Case Furthermore,, Barents invites the reader not to identify the Furthermore 193 193/ /80 Commission v Italy [1981 1981]] ECR 3019 3019,, paragraph 27 27,, basis of the case-law under discussion with the Court's pre concerning the prohibition on marketing in Italy products sumed deference to the legislative notion of the 'informed containing acetic acid not originating in tne acetic fermenta consumer' (see op op. . cit ., at footnote 26 cit., ). But see Case C-51

. . Even though consumers may sometimes be misled misled,, that the product or its external packaging does not have cubic minimal'. . See also S. Weatherhill risk remains minimal' Weatherhill,, The evolu shape;; Case 51 shape /83 Commission v Italy [1984 51/ 1984]] ECR 2793 2793,, tion of European consumer law and policy policy:: From well paragraph 15 15,, on the restriction of imports of confectionery informed consumer to confident consumer consumer? ?', in Schriften products which contained more than 1 % of animal gelatine gelatine;; reibe des Vereinigten Instituts für Europäisches Wirtschafts- Case 178178//84 Commission v Germany Germany,, cited above at foot und Verbraucherrecht ( edited by H.-W -W..

ever ever,, that out of recent secondary Community legislation for scribed by the German tax law on beer beer;; Case 216 /84 Com 216/ the protection of consumers' economic interests ( such as France,, cited above at footnote 33 mission v France 33,, paragraphs 9 advertising,, contracts negotiated that relating to misleading advertising and 1111,, and Case 76 76//86 Commission v Germany [1989 1989]] ECR away from commercial premises premises,, package travel and package 1021,, paragraphs 15 to 18 1021 18,, concerning prohibitions of imports tours,, consumer credit and unfair contractual terms there

.

The principle of 'mutual trust' described above at point 28 means — with regard to con sumer protection in the specific field of food products — that 'if the laws of the Member 32. Finally, the Court has stated that the State of exportation also protect consumers in principle of equivalence remains applicable the territory of the Member State of importa even in the absence of legislation governing tion (for example, by means of rules con the production and/or marketing of the cerning composition), there is no need to product concerned in the Member State of apply similar rules in the Member State of

40 free movement between Member States. In that case, it will not be possible — when assessing whether the State measure declared The principle I have just set out admits of to be restrictive as regards the imperative only one exception: that created by the Court's requirement in point is proportionate — to compare in the abstract the relevant laws of the Member States of export and of import (or rather, the material requirements which 36 — The idea of 'equivalent level of protection' assumes that par- allel national rules pursue the same objective, but not neces- sarily that the means or techniques chosen by the various Member States in order to pursue the material requirements respectively targeted should be identical (see Bernel, op. cit. at footnote 29, pp. 39 and 109). See also Case C-293/93 38 — See above, footnote 9 and the relevant part of the text. Houtwipper [1994] ECR 1-4249, according to which Article 39 — Accordingly, it would seem difficult to deduce from the 30 of the Treaty does not preclude the application of national Court's case-law on this point (see footnote 9 above and the rules on guaranteed standards of precious metals which pro- relevant part of the text) certain and objective criteria in hibits the sale of articles not bearing a hallmark, indicating order to establish whether a food product, the import of their fineness (that is to say, the quantity of pure precious which is in question, is so different, as regards its composi- metal used) in accordance with the requirements of those tion or production, from the products generally known by rules, are fixed by an independent body where: (i) those that name in the Community that it cannot be regarded as articles do not bear a hallmark, in accordance with the leg- falling within the same category (see G. Duncan, N . islation of the Member State of. exportation, containing MacGowan, 'Does Community law allow Member States to information which is equivalent to that provided by the hall- restrict the use of certain trade descriptions to products marks required by the rules of the Member State of importa- which contain a certain proportion of their characteristic tion and which is intelligible to consumers in that Member ingredients?', Irish J. Eur. L., 1994, p. 65, in particular State or (ii) where those articles have been hallmarked in the p. 68).

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production or marketing of the product in hindered, directly or indirectly, actually or question must satisfy respectively). By con­ potentially, intra-Community trade. Should trast, the point to be determined in concreto that condition not be satisfied, the Decree is whether there is equivalence between the would fall outside the scope of Article 30 of levels of protection for the consumer con­ the Treaty; the question whether or not it was cerning, on the one hand, the national product, justified would therefore not even arise. and on the other hand, the imported prod­ 41 uct.

41 — It has been observed that it is in some cases far from easy to carry out a comparative assessment of the degrees of protec- tion guaranteed by two sets of national rules respectively, relating to a series of special factors in the individual case Finally, in no other Member State is there any and also the socio-economic context of the Member States concerned (see Bernel, op. cit, at footnote 29, p. 143; Oliver, legislation of the same type as that adopted in op. cit., footnote 26, p. 116). To my mind, this difficulty is all the greater where — as in the case in the present proceed- France in the Decree governing the produc­ ings — the terms of comparison are the same products tion and marketing of the products con­ manufactured in accordance with fair and traditional practice in the exporting Member State. In that case, moreover, the cerned. Moreover, the French quality rules go problem may arise of a reliability of checks already carried out in the Member State of origin and of the compatibility back — as we see — to a time when the with Community law of any repetition in a Member State of destination (see Bernel, op. cit, at footnote 29, pp. 37 to Community was not yet in existence, when 42). national governments had at their disposal, in

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their 'legislative armories', measures to pro­ States which produce preparations with foie tect domestic food producers from much gras as a base are equivalent — the Decree stronger effects such as subsidies, direct restric­ does not, to my mind, produce any effects, 42 tions on imports or customs duties. It either actual orpotential, restrictive of imports should be observed that none of those claims of the products concerned. made by the French Government has been challenged in substance by the Commission, which has, on the contrary, acknowledged not only that the Decree has not the slightest restrictive effect at present, but also that it will not have any such effect in the near future (see above, point 12).

Accordingly — having regard, as we must, to the fact that the fair and traditional practices followed in France and in the other Member

42 — See Heydebrand und der Lasa, op. cit., at footnote 35, p. 392. 37. Proof that the Decree is liable to hinder, 43 — See above, footnote 6 and the relevant part of that docu- ment. if only potentially, intra-Community imports

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would certainly have required evidence also It must, however, be borne in mind that, at of flows of imports from other Member States the present time, outside France there do not of preparations with foie gras as a base which exist — still less did there exist in December comply either with national rules on quality 1994 on the expiry of the period fixed by the or with gastronomic traditions other than Commission in its reasoned opinion — any those of the Decree. That follows unarguably national legislative measures concerning the from the Court's judgments finding a State to composition, production and trade descrip­ have failed to fulfil its obligations through tions of the products concerned. Not until the day that another Member State adopts infringing the Treaty provisions on the free 44 such legislation, and not before, will it be movement of goods. possible to speak of potential flows of trade from other Member States, capable of being unlawfully hindered or restricted, within the meaning and for the purposes of Article 30 of the Treaty.

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practice is 'fair and traditional': suffice it to opinion. The Court has repeatedly held that, say here that it will not be until there is an in order for measures adopted by Member unvarying and fair production of preparations States to be contrary to Article 30 of the with foie gras as a base — other than that of Treaty, it is sufficient to prove 'that they may French origin and in competition with the merely hinder "imports which could other- 46 latter — that we shall be able to say that there wise takepUce"': in the present case it must, exists in the Community any real possibility to my mind, be concluded that the imports of a commercial flow of imports on to the which might have taken place, were it not for French market, in relation to which the Decree the Decree, would not differ in quantity, by will be seen to constitute a measure equiva­ so much as a tonne, from those recorded while lent to a quantitative restriction. that measure is in force.

That condition — I would repeat — was not, however, satisfied in 1994, at the close of the period fixed in the Commission's reasoned

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OPINION OF MR LA PERGOLA — CASE C-184/96

other Member States been faced with the By contrast, however, it must be recognised problem of adapting the trade description that there exists a line — perhaps not yet and/or the labelling with which the product clearly defined, but not, as a matter of prin­ is marketed in the Member State of produc­ ciple, open to question — that marks a dis­ tion. tinction between the bringing of an action under Article 169 of the Treaty to contest a State measure capable at present of producing potential restrictive effects (which is permit­ ted), and the bringing of such an action to contest a State measure which can produce such effects only in the future (which is not Consequently, failure to insert a mutual rec­ permitted), subject, possibly, to the condition ognition clause in the Decree cannot be said that the legal situation and the underlying to be contrary to Community law. economic context have altered, as compared with those existing at the end of the period fixed in the reasoned opinion.

39. I do not intend, in this Opinion, to repeat the proposal that a de minimis rule, which the 40. On the basis of the above, I consider that Court has already rejected, should be intro­ the French Republic has not failed to fulfil its duced in the field of actions for failure by a obligations under Article 30 of the Treaty, as 47 State to fulfil its Treaty obligations. alleged in these proceedings.

IV — Conclusion

In the light of the observations set out above , I propose that the Court :