C-3/99

2. The Royal Decree of 16 February 1982 relating to the ranges of nominal quantities and nominal volumes of contents allowed for certain prepacked products 1 (herein- after 'the Royal Decree') provides that 4. Cidre Stassen responded by indicating certain products, including cider products that either the Directive had been incor- in 33 cl prepackages, may not be placed on rectly transposed into Belgian law, or the the market, unless — among other things — they are intended exclusively for trade purposes (see Articles 1 and 3 of 2 — Council Directive 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the Royal Decree). That Decree constitutes the making-up by volume of certain prepackaged liquids (OJ 1975 L 42, p. 1). 3 —Council Directive 79/1005/EEC of 23 November 1979 amending Directive 75/106/EEC on the approximation of the laws of the Member States relating to the making-up by * Original language: English. volume of certain prepackaged liquids (OJ 1979 L 308, 1 — Moniteur Belge of 12 March 1982. p. 25).

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6. Several days after commencement of the first action, Cidrerie Ruwet, in turn, brought an action against Cidre Stassen before the Tribunal de Commerce (Com- 5. In the first action, the Belgian State mercial Court), Brussels (hereinafter 'the submitted that, with the repeal of Arti- national court'), claiming that that court cle 4(2) of Directive 75/106/EEC by Direc- should declare that the marketing in Bel- tive 79/1005/EEC, the Directive changed gium by Cidre Stassen of 33 cl bottles of from a total harmonisation directive to an cider intended for sale to the public, in optional harmonisation directive. The Bel- particular the 'Pêche', 'Classique', 'Passion gian State invoked the European Commis- Lime' and 'Woodpecker' brands, which it sion's position that optional harmonisation manufactured in Belgium, was contrary to allowed Member States to authorise the use the Royal Decree and thereby constituted of other sizes and volumes. Yet those which an act contrary to fair trading practice did not do so could block the import of within the meaning of Article 93 of the Loi goods which did not conform to the sur les Pratiques du Commerce et sur standards in the Directive. 4This position l'Information et la Protection des Consom- was justified by the goal of allowing small mateurs (Law on Commercial Practices and and medium-sized undertakings to operate Consumer Information and Protection) of on the domestic market while moving 14 July 1991. It sought an order requiring towards total harmonisation. In the Belgian Cidre Stassen to cease all marketing of State's view of the Commission's position, a those bottles in Belgium under penalty of a Member State which specified the Directi- daily fine.

8. Meanwhile the factual situation has ' 1 . Does Article 30 of the EC Treaty changed considerably. The 33 cl container preclude Directive 75/106/EEC of has become more and more popular and 19 December 1974 on the approxima- the consumer is accustomed to that format. tion of the laws of the Member States This format is used for all the drinks which relating to the making-up by volume of compete with cider, in particular beer and certain prepackaged liquids, as amen- soft drinks. The marketing of cider in the ded by Directive 79/1005/EEC of volume provided for by the Belgian law, 23 November 1979, which provides 37.5 cl bottles, has almost disappeared. By for a transitional period, from allowing contrast, cider in 33 cl containers is very Member States, even today, some well received abroad and most Member twenty years later and even though States authorise and allow the marketing of during that period of time habits have cider in 33 cl containers. changed and the 33 cl container has become popular and widely used all over the world, to authorise or not, as they wish, the marketing of containers other than those listed in Annex III, taking account of the fact that this may, and in this case does, give rise to differences between the various national laws, with the result that by this means the Member States which 9. The fact that certain Member States limit the range of containers, like authorise the marketing of cider in 33 cl Belgium which limits the range of containers while others, like Belgium, do containers for cider, have at their not amounts in the view of the national disposal a measure whose purpose or court to a restriction on the free movement effect is to restrict the free movement of of goods. Furthermore, indication of the goods? unit price is used more and more by Belgian retailers, particularly in supermarkets, so that the consumer is in a position to compare prices without its being necessary to close the Belgian market to a container which is widely used in the other Member 2. Having regard to the principle of the States. free movement of goods, does Directive I - 8754

14. Directive 75/106/EEC, as appears from both its title and its first recital, was I I I— Substance adopted by virtue of Article 100 of the EC Treaty (now Article 94 EC) to approx- imate the laws of the Member States regarding the sale of liquids in prepackages by reason of their effect in hindering trade between Member States. It relates to the A — Not a purely internal matter 6 — Joined Cases C-321/94 to C-324/94 Pistre & Others [1997] ECR I-2343, paragraph 44 (hereinafter 'Pistre'). 7 — Amended by Commission Directive 78/891/EEC of 28 Sep- tember 1978 adapting to technical progress the Annexes to Council Directives 75/106/EEC and 76/211/EEC on pre- 12. Cidrerie Ruwet maintains that the packaging (OJ 1978 L 311, p. 21), Council Directive 79/1005/EEC of 23 November 1979, Council Directive matter is purely internal. However, the 85/10/EEC of 18 December 1984 (OJ 1985 L 4, p. 20), Royal Decree is generally applicable, and Council Directive 88/316/EEC of 7 June 1988 (OJ 1988 L 143, p. 26), and Council Directive 89/676/EEC of Article 30 of the EC Treaty cannot be 21 December 1989 (OJ 1989 L 398, p. 18).

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sale of liquid products 'in individual quan- 17. Article 4(2) of Directive 75/106/EEC in tities of between 5 ml and 10 litres inclu- its original form reads as follows: sive'. 8

15. The central provision of Directive 75/106/EEC is the specification of detailed 'For such prepackages only the nominal conditions for the employment of an EEC volumes of the contents indicated in mark in the form of a small 'e' affixed to Annex III shall be permitted.' each prepackage. This case, however, focuses solely on the regulation of volume sizes for prepackaged cider in Community circulation.

19. In consequence, Article 4 was amen- ded. Article 4(1) now reads: 21. Cider and perry are included in Annex III to the Directive. 9Item 1(c) of that Annex includes the size, 0.375 litres but not 0.33 litres, as 'definitively allowed' under the heading 'Nominal volume of contents in litres' for those products. ' 1 . All prepackages referred to in Article 3 must in accordance with Annex I bear an indication of the volume of liquid called the "nominal volume of the contents", which they are required to contain.' 22. Following the repeal of Article 4(2), the legal significance of this item in Annex - III is to be found in Article 5(1), 10 which reads:

Article 4(2) of Directive 75/106/EEC has been eliminated and replaced with a provi- sion that is immaterial to the present case. '5(1). Member States may not refuse, prohibit or restrict the placing on the

9 — Annex III to Directive 75/106/EEC as amended by Article 8 20. These measures are all designed to of Directive 79/1005/EEC. facilitate the use of the 'EEC mark' as a 10 — As amended by Article 5 of Directive 79/1005/EEC.

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market of prepackages which satisfy the 25. However, in my view, it is clear that, on requirements of this Directive on grounds the removal of Article 4(2) by Directive related to the determination of their 79/1005/EEC, 11 Directive 75/106/EEC volumes, the methods by which they have became a partial harmonisation Directive. been checked or the nominal volumes It does not directly affect the control where these are set out in Annex III, exercised by virtue of Article 30 of the EC column I.' Treaty in respect of products sold in volumes not covered by the Directive.

2 3 . From the moment that Directive 26. Secondary Community legislation is 79/1005/EEC repealed Article 4(2) of adopted pursuant to the Treaty; it must Directive 75/106/EEC, the attempt at com- respect the basic rules of the Treaty and, plete harmonisation was, at least tempora- consequently, as is pointed out by Stassen, rily, abandoned. On that basis, it is com- must be interpreted in harmony with the mon case that the Directive consists of Treaty and, in the particular context, 'in the optional harmonisation. It does not prohi- light of the provisions of the Treaty on free bit a Member State from allowing the movement of goods'. 12 Even if Community marketing of products in volumes other secondary law may, as the occasion than those specified. demands, itself lead to an incidental restric- tion of trade, this should result from a considered balancing of objectives. 13 I do not consider that the Directive can be interpreted as immunising the restriction of trade in this case by implication from the 24. For the specified volumes, Article 5 of Directive 75/106/EEC, as amended, pre- 11 — In this regard it is to be noted that Case 244/78 Union vents a Member State from prohibiting the Laitière Normande v French Dairy Farmers [1979] marketing of prepackaged products which ECR 2663, paragraphs 11 and 12, was decided before the adoption of Directive 79/1005/EEC. Furthermore, that otherwise comply with the Directive. How- case primarily concerned the application of a derogation for the United Kingdom then contained in Article 7 of the ever, Belgium, supported by Cidrerie Directive. Finally, the facts of that case concerned a Member State prohibition, pursuant to an express deroga- Ruwet, reasons a contrario that the Direc- tion, of the marketing of a product at a volume specificato tive immunises a refusal by a Member State be allowed in the Directive, not, as here, a Member State prohibition not pursuant to an express derogation apply- to allow the marketing of products not ing to a product of a volume not specified in the Directive. complying with the Directive from the 12 — Case C-315/92 Verband Sozialer Wettbewerb v Clinique Laboratories and Estée Lauder [1994] ECR I-317, para- application of Article 30, including even graph 12. the need to respect the principle of propor- 13 — See my Opinion of 16 September 1999 in Case C-220/98 Estée Lauder Cosmetics v Lancaster Group [2000] tionality. ECR I-I-117 (hereinafter 'Estée Lauder').

27. Furthermore, as Cidrerie Ruwet points out, the Court held, in Cassis de Dijon, that Article 30 of the Treaty applied '[i]n the 29. In the light of these conclusions, there absence of common rules relating to the is no issue of the validity of Directive production and marketing of alcohol'. 14 75/106/EEC, as amended, which the Coun- That state of affairs exists in the present cil has intervened to defend against the case in so far as bottle size is concerned. As subsidiary argument of Stassen. the Court has held in its constant case-law, 'in the absence of harmonisation of legisla- tion, obstacles to the free movement of goods that are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods, such as those relating, for example, to their presentation, D — Proportionality labelling and packaging, are prohibited by Article 30, even if those rules apply with- out distinction to national products and to imported products'. 15

30. Belgium argues, as an alternative to its primary submission, and with the support of Cidrerie Ruwet, that the Royal Decree contains a justifiable restriction on trade adopted in the interest of the protection of 28. This is not a case, as Belgium submits, consumers. Such an interest certainly of a lex specialis derogating from a lex 'rank[s] among the imperative require- generalis, but of a situation not covered by ments which the Court has consistently held may justify restrictions on the free

'All trading rules enacted by Member States which are capable of hindering, directly or 35. As the United Kingdom and the Com- indirectly, actually or potentially, intra- mission point out, the question is not Community trade are to be considered as whether the restriction is necessary in the measures having an effect equivalent to abstract, but whether the particular restric- quantitative restrictions.' 18 tion is justified in fact, having regard to all relevant circumstances. 22 In this latter respect, I would stress, as I did in my Opinion in Bluhtne, 23 that the determina- tion of actual justification is, as a matter of Community law, within the competence of the national court in application of inter- 32. It has been found by the national court pretative criteria furnished by the Court. that the Belgian rule actually hinders intra- Community trade in cider. Consequently it is, prima facie, prohibited by Article 30.

36. The Court may assist by indicating considerations to be borne in mind and by

33. The question then is whether the Bel- gian restriction on the free movement of 19 — Case 120/78 Cassis de Dijon, loc. cit., paragraph 8. 20 — Case C-77/97 Österreichische Unilever v Smithkline Beec- ham Markenartikel [1999] ECR I-431, paragraph 27. 21 — Case C-120/95 Decker v Caisse de Maladie des Employés 17 — Case C-220/98 Estée Lauder, loc. cit., paragraph 25. Privés [1998] ECR I-1831, paragraph 27. 18 —Case 8/74 Procureur du Roi v Dassonville [1974] 22 — Case 94/82 De Kikvorsch [1983] ECR 947, paragraph 12. ECR 837, paragraph 5; Pistre, op. cit., footnote 6 above, 23 — Case C-67/97 Ditlev Bluhme [1998] ECR I-8033 (herein- paragraph 43. after 'Bluhme'), paragraphs 34 and 35 of the Opinion.

40. Second, other measures may alleviate or remove any risk of confusion. Germany submits that the Court had to decide a 39. First, the proximity of volumes of similar issue in Kelderman. 28 In that case competing products may be considered to the Netherlands submitted that the Nether- lands bread order (Broodbesluit) intro- duced a clear delimitation between the 24 — Case C-220/98 Estée Lauder, loc. cit., footnote 13 above, various shapes and weights of bread to paragraphs 27 and 28. 25 — Ibid., paragraph 27. prevent consumers being misled on the 26 — Case C-51/93 Meyhui v Schon Zwiesel Glaswerke [1994] ECR I-3879, paragraph 11. 27 — Bluhme, loc. cit., footnote 23 above, paragraph 35 of the judgment. 28 — Case 130/80 Kelderman [1981] ECR 527.

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quantity of bread. 29 The Court held that without identity of volume. The United 'the provision of suitable information for Kingdom, however, points out that the consumers may easily be ensured by appro- existence of the price per unit obligation priate means, such as requiring labelling is not in itself necessarily sufficient protec- showing, for example, the weight and tion for the consumer, since other questions specific composition of an imported pro- such as the nature and size of packaging duct'. 3 0 used remain.

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IV — Conclusion

I recommend that the questions referred by the Tribunal de Commerce, Brussels be answered as follows:

(1) Council Directive 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids, as amended by Council Directive 79/1005/EEC of 23 November 1979 amending Directive 75/106/EEC on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids, does not require Member States to refuse the marketing on their territory of cider in volumes other than those set out in Annex III thereof;

(2) Such a refusal is a measure prohibited by Article 30 of the EC Treaty (now, after amendment, Article 28 EC) and is incompatible with Community law unless it is necessary to satisfy a mandatory requirement of the public interest, in this case the defence of the consumer, where it is established that the average consumer, reasonably well-informed and reasonably observant and circumspect, is misled into confusing prepackaged liquid products by reason of the close proximity of their sizes.