C-448/98

2. It is clear from the order for reference and the comments made by the French Government that the first paragraph of Article 3 of Decree No 84-1147 of 7 Sep- tember 1984 provides that 'the labels and National proceedings and question referred labelling methods used must not be such as for a preliminary ruling to give rise to confusion in the mind of the purchaser or the consumer, particularly as

3. Following an inspection carried out on * Original language: Italian. 5 March 1996 at the premises of the

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company Schoeffer S.A. in Avignon, the proceedings before it and submitted the Directorate for Competition, Consumer following question to the Court for a Affairs and Prevention of Fraud of the preliminary ruling: 'On a proper construc- Department of Vaucluse found 260 whole tion of Articles 3(a) and 30 et seq. of the Emmenthal cheeses without any hard, dry Treaty establishing the European Commu- rind. Those cheeses came from the 'Laiterie nity, as amended, must the French rules d'Argis' whose technical manager is Mr enacted by Decree N o 88-1206 of Jean-Pierre Guimont, the appellant in the 30 December 1988, which prohibit the main proceedings. manufacture and marketing in France of a cheese without rind under the designation "Emmenthal", be regarded as constituting a quantitative restriction or a measure having equivalent effect on intra-Commun- ity trade?'

On 6 January 1998 Mr Guimont was ordered, under the simplified criminal pro- cedure, to pay 260 fines of FRF 20 each for holding for sale, selling or offering a food- stuff with deceptive labelling. The foodstuff in question was Emmenthal cheeses with- Admissibility out any rind.

to interpret Article 30 in relation to French ment between those two categories of legislation which prohibited the inclusion goods, hindering, at least potentially, of the designation 'mountain' or 'Monts intra-Community trade.' 4 des Lacaune' on the label of cooked meat products without prior authorisation from the competent administrative authorities; such authorisation concerning the use of indications reserved for mountainous areas. The persons charged in the case were French citizens who had been prohibited from producing and marketing their own cooked meat products in France. In that That case, unlike that presented to us by judgment the Court, referring to the con- the Tribunal de Police, Belley, was thus cept of a measure having equivalent effect characterised by the fact that the domestic to a restriction on imports, as stated in the legislation on the designation 'mountain' Dassonville case, 2 and allowing that the linked the production of cooked meat application of a national measure which products to a specific place of origin of did not in any way concern the importation the ingredients in the product and made the of goods did not fall within the scope of use of that designation conditional upon an Article 30 of the Treaty, 3 nevertheless express authorisation procedure. The stated that 'Article 30 cannot be considered Court appears to have inferred from those inapplicable simply because all the facts of circumstances that even the simple applica- the specific case before the national court tion of the disputed legislation to national are confined to a single Member State.' It products could, to some degree, have had an effect on the importation of cooked went on to hold that,with regard to the meat products with the same designation. situation in which the national dispute arose, 'the application of the national measure [might] also have effects on the free movement of goods between Member States, in particular when the measure in question facilitates the marketing of goods of domestic origin to the detriment of imported goods.' According to the Court, the application of internal rules 'even if 6. It cannot, however, be disregarded that restricted to domestic producers, in itself such an approach has earlier origins,5 and, creates and maintains a difference of treat- more particularly, in Case 298/87 Smanor

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reply. The Court accepted that argument. judgment, at least with reference to the On the basis of the finding that French interpretation of Article 30 of the Treaty. legislation could produce restrictive effects There is no doubt that examination of the on the import of products from other characteristics of the case which is the Member States and stating that 'it is for subject of the main action, and the assess- the national courts, within the system ment as to its purely internal nature, is in established by Article 177 of the Treaty, principle a matter for the national court; it to weigh the relevance of the questions is precisely on the basis of the applicability which they refer to the Court in the light of of Community law to the national dispute the facts of the cases before them', 6 it ruled that the latter is required to assess the that Article 30 precluded national rules relevance of a possible question referred for reserving the use of the designation yoghurt a preliminary ruling. However, as Advocate to fresh yoghurt only and not frozen General Cosunas has rightly pointed out in the Belgapom case, 8 the Court may refrain from replying to a question referred for a preliminary ruling where the facts set out by the national court clearly establish that the situation which gave rise to the national dispute is purely internal.

national court . . . to determine, in the light of the particular precludes a Member State from applying to products circumstances of the case, both the need for a preliminary imported from another Member State. . . national rules ruling in order to enable it to deliver judgment and the which reserve the right to use the name yoghurt solely to relevance of the questions which it submits to the Court' fresh yoghurt to the exclusion of deep-frozen yoghurt' and that therefore 'where the questions submitted by the (emphasis added). national court concern the interpretation of Community 8 — Opinion delivered on 23 March 1995 in Case C-63/94 law, the Court of Justice is, in principle, bound to give a Belgapom v ITM and Vocarex [1995] ECR I-2467, in ruling' (see in particular, paragraphs 11 to 14). particular paragraph 15.

That conclusion is, as the Danish Govern- ment points out, confirmed by the fact that other questions referred for a preliminary ruling, concerning the free movement of persons rather than of goods, did not have same outcome as the action in Pistre. In It is of no importance in that regard that, in many judgments in which a similar prob- this case, as in Smanor and Pistre, the lem arose, the Court has not hesitated to obligation placed on the national producer decline to reply to questions, having regard to comply with specific production stand- to the irrelevance and therefore the non- ards taking the form of a prohibition on applicability of Community provisions to using a designation for goods that do not factual situations before the national exhibit particular characteristics and in courts, given the purely internal nature of respect of which a given method of man- the national dispute. 9 Finally, it may also ufacture has therefore not been complied be asked whether a judgment in a pre- with, may have some effect (potential and liminary ruling such as in Smanor and fairly remote in my opinion, especially in Pistre could affect the settlement of the case relation to the present case and Smanor) on pending before the referring court. Com- imports. Manufacturing rules imposed at munity law cannot counter the effects of national level are not generally aimed at national legislation in relation to situations protecting local production, but rather at which are purely internal, even where, as in ensuring that the quality of the product Pistre, (local) producers are required to use remains consistent; an aim which, in my a particular designation only for ingredi- opinion, is in keeping with the general aims guiding Community law in the matter of the manufacture and marketing of agricul- 9 — See case-law stated by the Danish Government, namely tural products. Joined Cases C-54/88, C-91/88 and C-14/89 Nino et al [1990] ECR I-3537; Joined Cases C-330/90 and C-331/90 Brea and Palacios [1992] ECR I-323 and Joined Cases C-64/96 and C-65/96 Uecker and Jacquet [1997] ECR 1-3171. For the contrary view. Joined Cases 98/85, 162/85 10 — This is the phrase used in the Oostlmck's Ungeners- and 258/85 Berlini et al [1986] ECR 1885. inaatschappij case.

11. According to the applicant in the main proceedings, supported by the German, Austrian and Netherlands Governments, it Article 30 of the Treaty is a generic name within the meaning of Article 3(1) of Regulation No 2081/92. That article, in addition to prohibiting the registration of generic names, lists the factors used to determine whether a name 9. If the Court adopts a solution other than has become generic; these are '[the] existing that suggested, it will be necessary to situation in the Member State in which the determine the compatibility of the French name originates and in areas of consump- legislation with the principal provisions of tion, [the] existing situation in other Mem- Community law on the free movement of ber States, [the] relevant national or Com- goods, which prohibit obstacles to the munity laws.' No evidence has been put importation of products from other Mem- forward against that argument; on the ber States. contrary, in the observations of all the intervening parties the generic nature of this name is assumed, in the sense that it is not linked to production in a particular

11 — OJ 1992 L 208, p.1. 10. a) The Community system does not 12 — Commission Regulation (EC) No 1107/96 of 12 June 1996, on the registration of geographical indications and provide any specific protection for the designations of origin under the procedure laid down in Article 17 of Council Regulation (EEC) No 2081/92 designation 'Emmenthal'; it is not a pro- (OJ 1996 L 148, p. 1). According to that regulation, the tected designation of origin within the French designations 'Emmenthal Est-Central' and 'Emmenthal de Savoie' are protected as geographical meaning of Council Regulation (EEC) indications.

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the free movement of goods, for national common rules governing the names of the legislation to be able to restrict a generic various types of cheeses in the Community, term to one national variety alone, to the and concluded that States were entitled to detriment of other varieties produced, in lay down rules making the use of names for particular, in other Member States.' 13 cheeses subject to compliance with par- ticular rules of manufacture. However, it also stated that it would be 'incompatible with Article 30 of the Treaty and the objectives of a common market to apply such rules to imported cheeses of the same type where those cheeses have been law- fully produced and marketed in another Member State under the same generic name, but with a different minimum fat content.' 15

13. Concerning the second aspect, regard- ing limitation on the use of names, I refer to the Deserbais judgment, 14 which was referred to several times by the parties involved in this case, in which the Court had been asked to give a judgment on the interpretation of Articles 30 et seq. in relation to a French regulation which restricted use of the name 'Edam' to cheeses with a minimum fat content of 40%. The Court of Justice found, first, that the name constituted neither an appellation of origin nor an indication of origin, both expres- sions describing products coming from a specific geographical area. It then noted that at the time, in 1988, there were no

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GUIMONT

comply with the domestic manufacturing subsequent marketing. In addition, the rules. Products lawfully labelled in the French Government recalls that Article 18 Member State of origin must be able to of Decree No 88-1206, in dispute in the move freely throughout the Community main proceedings, states that its provisions territory. are not to prevent 'the application of the rules on manufacture, designation and labelling regarding cheeses which have a designation of origin.' The Government argues that, rather, the French regulations give rise to reverse discrimination; they put- French producers in a less favourable position than foreign producers and can- not, therefore, for that reason alone, be regarded as a measure having equivalent 14. The French regulation at issue in this effect to a restriction on intra-Community case is similar to that examined in Deser¬ trade in agricultural products. bais. There is no doubt that the French legislation which prohibits the use of the designation 'Emmenthal' for cheese with- out rind is, like that relating to the desig- nation 'Edam', an actual or potential obstacle to the marketing in France of a cheese which has been lawfully manufac- tured and packaged in another Member State. It therefore constitutes a measure having equivalent effect to a restriction on imports within the meaning of Article 30 of the EC Treaty. 16. In my opinion, these observations by the French Government are irrelevant to the interpretation of Community provi- sions which the Court is asked to make. It is not for the Community judicature to determine the scope of domestic legislation, even if, as in this case, the application of the internal rules to imported goods is dis- puted.

prohibiting 'the manufacture and market- for which the name 'Emmenthal' is ing in France' (emphasis added) of a cheese reserved. More precisely, Article 4 of without rind under the designation Annex B requires that whole 'Emmenthal' 'Emmenthal'. 16 In my view, the Court cheeses be surrounded by 'a hard, dry rind, cannot depart from that interpretation of of a colour between golden yellow and light the French rules unless, in the light of the brown.' 17 actual or potential effects of the measure, it identifies factors which in fact contradict the meaning attributed to that regulation by the national court. Such factors certainly cannot be inferred from the fact that 'Emmenthal' cheese without rind is con- stantly imported into France, since, if one refers to the letter of that French provision, there is nothing to exclude the possibility that the administrative authorities might have applied the domestic legislation in the past, or might apply it in the future, in such a way as to prohibit, or in some way Concerning that argument, it is sufficient to impede, the free marketing of that product note that the Stresa Convention, being an under the name 'Emmenthal'. international agreement concluded before the EC Treaty came into force between a number of Member States and one non- Member State, has no binding effect in relations between the Member States and does not therefore detract from the obliga- tions upon the latter under primary and secondary Community law. Although Ar- ticle 234 of the EC Treaty (now Article 307 EC) provides that the provisions of the Treaty are not to affect rights and obliga- tions under previous agreements, it requires Member States to eliminate all incompat- ibilities of the prior convention provisions 17. c) The French Government also argues with Community law, so that, on the basis that the disputed national legislation was of that Article, the relations between Mem- adopted in accordance with the provisions of a treaty. The Stresa Convention, con- cluded on 1 June 1951 between the French 17 — In its pleading the French Government also referred to the Codex Alimentarius, fixed jointly by the FAO and the Republic, the Kingdom of the Netherlands, WHO, which establishes that a cheese can be sold with the the Republic of Austria, the Kingdom of designation 'Emmenthal' provided that the cheeses have a minimum weight of 50 kg or are in rectangular form, with Denmark, The Italian Republic and the or without rind, with a minimum weight of 30 kg. Apart from the fact that the Codex does not exclude the Swiss Confederation on the use of appella- possibility that cheese without rind may be designated tions of origin and names of cheeses, lays 'Emmenthal', it is in agreement with what was statedin the Deserbais judgment, in reply to the arguments of the down the specific characteristics of cheeses Netherlands Government which called upon the same international source; and that is that the provisions of the Codex 'set the purpose of providing indications which allow the characteristics of these products to be identified. However, the simple fact that goods do not entirely comply 16 — See in particular the question for a preliminary ruling on with the provision does not mean that its marketing may page 7 of the order for reference. be prohibited.'

I recall in that respect that Article 5(1) of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising In my opinion, it cannot be deduced from of foodstuffs for sale to the ultimate these factors that the presence of the rind consumer, 20 as amended by Directive around the Emmenthal cheese justifies the 97/4/EC, 21 establishes that, in the absence imposition of a different designation; in of specific provisions at Community level, both cases the cheese is manufactured with the designation of the product is that ingredients and following criteria which are recognised in the State of origin at the time substantially the same and the final product of sale to the consumer and that the only circumstances in which it cannot be used in the State of marketing are those where the 18 — On this point also I refer to the Dcscrbais judgment, which product 'is so different as regards its states in paragraphs 17 and 18 that 'the purpose of Article 234(1) of the Treaty is to lay down, in accordance composition or production, from the prod- with the principles of international law, that the applica- tion of the Treaty does not affect the duty of the Member State concerned to respect the rights of non-Member countries under a prior agreement and to perform its obligations thereunder... Consequently, provided that, as 19 — See paragraph 13, and in the same vein, the Smanor in the present case, the rights of non-Member countries are judgment, paragraph 25, and Commission v France, not involved, a Member State cannot rely on the provisions already mentioned. of a pre-existing convention of that kind in order to justify 20 — OJ 1979 L 33, p. 1 restrictions on the marketing of products coming from another Member State where the marketing thereof is 21 — Directive of the European Parliament and the Council of lawful by virtue of the free movement of goods provided 27 January 1997, amending Directive 79/112/EEC on the for by the Treaty.' See also Case 10/61 Commission v Italy approximation of the laws of the Member States relating (19621 ECR 1 and Case 812/79 Burgoa [1980] ECR 2787. to the labelling, presentation and advertising of foodstuffs (OJ 1997 1. 43, p. 21).

uct known by that name' that additional export of French Emmenthal, given that the information on the label would not be prohibition on manufacture effectively 'sufficient to ensure, in the Member State of entails a prohibition on exporting cheese marketing, correct information for consu- without a rind produced in France. Refer- mers' [b) and c)]. ring to the Groenveld judgment of 1979, 22 it has concluded that in this case the factors establishing an infringement of Article 34 are not present, as the national provisions did not have as their object or effect a specific restriction on the export of If, however, as the French Government Emmenthal. argues, the difference in manufacturing criteria involves a difference in the quality of the product, it would in my view be justified to adopt measures which, while not prohibiting the use of the name, warn the consumer of the difference in the product — particularly because, at the moment of sale to the final consumer, it could be difficult, (in the case of sale in pre- packaged portions) to distinguish between Emmenthal cheese with or without a rind. In this case, given that mere indication of the place of manufacture, which already appears on the label, it is not sufficient to distinguish Emmenthal with a rind from that without a rind, since both types of cheese may be produced in one State, it would in my view be justified and propor- I agree with that argument. I recall that, tionate to have a national measure making from the Groenveld judgment onwards, the it obligatory to inform the final consumer Court's interpretation of Article 34 has of the presence of a rind with an appro- always been to exclude from the scope of priate indication on the label, particularly that provision national measures applicable when the product is sold in pre-packaged without distinction to domestic and portions. exported products, which could indirectly produce some effect on the sale of products intended for export and therefore to con- sider as measures having equivalent effect to export restrictions only those which restrict 'patterns of exports' thereby giving rise to a 'difference in treatment between the domestic trade of a Member State and Article 34 of the EC Treaty its export trade in such a way as to provide a particular advantage for national produc-

In my view, that line of authority from the Court should be confirmed. To include amongst the measures which hinder intra- Community trade all those which are in some way unfavourable to the manufacture and therefore the sale of national products which could potentially be intended for On the basis of those considerations, I therefore consider that the French legisla- tion in question does not constitute a 23 — Paragraph 7. measure having equivalent effect to a 24 — I should point out, however, that in Case C-272/95 restriction on exports within the meaning Deutsches Milch-Kantor [1997] ECR I-1905, the Court appears, on a first reading, to extend to Article 34 the of Article 34 of the EC Treaty. concept of a measure having equivalent effect to a restriction on imports as stated in the Dussoiwille judg- ment, as in paragraph 24 it states that the prohibitions stated in Articles 30 and 34 of the Treaty 'extend to cover all trading rules of the Member Stares which are likely to 25 — Concerning the legitimacy of the so-called reverse discrim- impede, directly or indirectly, actually or potentially, intra- ination, 1 refer to, amongst others, Case 355/85 Driancourt [1986] ECR 3231, a n d Case 98/86 Mathot [1987] ECR Community trade'. 809.

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Conclusions

20. In view of the above considerations, I suggest that the Court answer the question referred for a preliminary ruling by the Tribunal de Police, Belley, as follows:

(la) Article 30 of the EC Treaty (now Article 28 EC) et seq. do not apply to purely domestic situations in a Member State, such as that of an undertaking established in a Member State which, on the basis of domestic legislation concerning the use of a designation, is prohibited from producing and marketing its own products within the national territory.