C-416/00

OPINION OF MR RUIZ-JARABO — CASE C-416/00

OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 6 June 2002 1

1. The Tribunale Civile di Padova (Civil 3. On 26 April 1994, the Settore igiene District Court, Padua) Italy has referred pubblica de la Unit à sanitaria locale no 21 several questions to the Court of Justice for (local health department) inspected Mr a preliminary ruling under Article 234 EC. Morellato's premises and found that there It asks whether Article 28 EC precludes the were different types of unpackaged bread, application by the Mayor of Padua of a rule arranged by type, on shelves on which were requiring a trader or distributor to package, cards stating the names under which the before offering for sale, bread baked from bread was sold, that it was bread baked frozen or non-frozen part-baked bread. If from part-baked, deep-frozen bread, a list so, the Italian court asks whether it should of ingredients, and the manufacturer and apply the derogation provided for by distributor. The bread was placed in paper Article 30 EC for the purpose of protecting bags at the moment of sale to the pur- the health and life of humans. chaser.

I — Facts in the main proceedings I I — The Italian legislation

2. As stated in the order for reference, 4. Under Article 14(4) of Law No 580 Tommaso Morellato is the owner of a of 4 July 1967 laying down rules for the bakery with attached outlet for baking processing and marketing of cereals, flour, deep-frozen bread and preparing frozen bread and pasta, 2 as amended by pastries. The bread sold in the shop had Article 44(4) of Law N o 146 of been manufactured, part-baked and frozen 22 February 1994 3 (hereinafter 'Law in France by the company BCS, which marketed it lawfully in that country. 2 — GURI No 189, 29 July 1967. 3 — Provisions for fulfilling the obligations deriving from Italy's membership of the European Communities - Community 1 — Original language: Spanish. law 1993. Ecology (implementation of directive).

5. The Commission informed the Court of Justice that that provision was clarified in a 7. The Italian court has considered it circular dated 30 May 1995, adopted by necessary to refer the following questions the Ministry of Industry and distributed to to the Court of Justice: all the local government departments. Apparently, the clarification was made as the result of discussions between the Com- mission and the Italian authorities in the period 1992 to 1995, concerning the obstacles in Italy to the marketing of '1. Must Article 14(4) of Law No 580 of part-baked deep-frozen bread. The 4 July 1967 (as amended by infringement proceedings initiated against Article 44(4) of Law No 146 of Italy on that ground were abandoned in 22 February 1994), as interpreted by March 1995 because approval of the cir- the Mayor of Padua in the contested cular was imminent. order, in so far as it prohibits the sale of bread baked from frozen or non- frozen part-baked bread (lawfully manufactured in and imported from France), if it has not previously been packaged by the reseller, be regarded as incompatible with Articles 30 and 36 of the EC Treaty (now, following amendment, Articles 28 EC and 30 As stated in the circular, the bread must be EC)? packaged in bags made of material which allows the product to breathe and which lists the ingredients, the name of the manu- facturer, its registered office, the origin of the part-baked, deep-frozen bread and the expiry date, which may be placed on the 2. Must Article 14(4) of Law No 580... bag at the time of sale. and the subsequent construction placed

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As none of the parties concerned has In all three cases it was held that the submitted a request stating the reasons application of the contested Italian provi- why it wished to present oral argument, sions was incompatible with Articles 28 EC the Court of Justice has decided, in accord- and 30 EC. ance with the provisions of Article 104(4) of the Rules of Procedure, to decide the case without holding a hearing.

11. The obstacles to intra-Community trade in bread have also been the subject of several questions referred to the Court of Justice for a preliminary ruling. As well as the Morellato case cited above, we may VI — Preliminary considerations refer to Kelderman,6 regarding the content of dry matter; Edah,7 regarding the mini- mum retail price for bread; Van der Velt, 8 and Bellamy and Others,9 both regarding salt content. 10. Already, in the past, the application of Italian Law N o 580 has caused questions to be referred to the Court of Justice for a preliminary ruling in connection with the interpretation of the principle of the free movement of goods. 12. The five questions referred for a pre- liminary ruling in this action are not new. They are almost identical to those raised by the Pretura di Pordenone in the previous Morellato case, although the specific infringement alleged is different in each By way of an example, I may cite the cases case. of 3 Glocken and Kritzinger and Zoni,4 which dealt with the prohibition on the marketing, in Italy, of imported pasta made, in whole or in part, from common wheat, and Morellato,5 in which a trader of the same name as the bread reseller in 13. This dispute could therefore be decided the present case and, in all probability, the in abbreviated proceedings, in accordance same person, had been fined for marketing with Article 104(3) of the Rules of Pro- wholemeal, deep-frozen bread, lawfully cedure, which applies when the questions manufactured and sold in France, because referred for a preliminary ruling are ident- it did not comply with the Italian standards ical to questions on which the Court has concerning maximum moisture content, already ruled, when the answer to the minimum ash content and use of bran.

15. The Commission considers, rightly in On this occasion, however, the Court did my view, that the above requirement is an not take that opportunity but, relying on additional burden for economic traders, Article 21 of the EC Statute, granted which is liable to discourage the import- measures of organisation of procedure, ation of that type of bread into Italy. which entailed putting written questions Furthermore, in view of the fact that fresh to the Italian Government and inviting the bread does not need to be prepackaged, Commission to add to some of the infor- there is unjustified discrimination in favour mation it had supplied. of fresh bread, a product which is, by definition, national, and baked and sold on the same day, whether it is manufactured by traditional or industrial methods. The Commission maintains that the obstacle to the movement of goods represented by the Italian legislation cannot be justified by the need to protect the health and life or VII — Consideration of the question humans. referred for a preliminary ruling.

17. In the judgment, the Court confirmed such rules to the sale of products from that, 'in the absence of harmonisation of another Member States is not by nature legislation, obstacles to free movement of such as to prevent their access to the goods which are the consequence of apply- market or to impede access any more than ing, to goods coming from other Member it impedes the access of domestic products. States where they are lawfully manufac- Such rules therefore fall outside the scope tured and marketed, rules that lay down of Article 28 EC. requirements to be met by such goods, constitute measures of equivalent effect prohibited by Article 28 EC. That is so even if those rules apply without distinction to all products unless their application can be justified by a public-interest objective taking precedence over the free movement of goods.' 11 18. Since that judgment, in order to decide whether Article 28 EC takes precedence over legislation which applies indiscrimi- nately to national and imported products, it is necessary to distinguish the provisions laying down requirements which have to be fulfilled by the goods, such as those relating It then stated, contrary to what it had to designation, form, size, weight, com- previously held, that the application to position, presentation, labelling and pack- products from other Member States of aging, from those designed to govern selling national provisions restricting or pro- arrangements. hibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, 12 so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of Since its judgment in Keck and Mithouard, domestic products and of those from other in which it considered the prohibition in Member States. France on resale at a loss, the Court of Justice has regarded as selling arrange- ments, for example, a rule of professional conduct adopted by a professional associ- ation, prohibiting pharmacists from adver- tising, outside the pharmacy, the quasi- pharmaceutical products they are auth- The Court added that, provided those orised to sell; 13 rules on business opening conditions are fulfilled, the application of hours; 1 4the requirement that retail shops

19. In the light of those examples, I con- sider that the Italian legislation requiring a Given that fresh bread does not keep, it being intended for immediate consumption, and part-baked bread is, in practice, the 15—Joined Cases C-69/93 and C-258/93 Punto Casa y PPV only type which may be the subject of [1994] ECR I-2355. intra-Community trade, it is clear that the 16 — Case C-391/92 Commission v Greece [1995] ECR I-1621. 17 — Case C-387/93 Lanchero [1995] ECR I-4663. obligation to package bread before sale, 18 — Case C-412/93 Leclerc-siplec [1995] ECR I-179. which is applicable only to a person 19 — Case C-63/94 Belgapom [1995] ECR I-2467. marketing part-baked bread, penalises the 20 — Joined cases C-34/95, C-35/95 and C-36/95 De Agostini sale of that bread to the benefit of the fresh and TV-Shop [1997] ECR I-3843. 21 — Case C-405/98 Gourmet [2001] ECR I-1795. variety, as it applies essentially to imported 22 — Case C-254/98 TK-Heimdienst [2000] ECR I-151. products. As a result of this restriction of

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intra-Community trade, that obligation issue is necessary in order to protect con- constitutes a measure having an effect sumer health and that the measures equivalent to a quantitative restriction. adopted comply with the principle of pro- portionality. 2 4

2 3 — J o i n e d Cases C-1/90 and C-176/90 Aragonesa de Pub- hedad Extermr and Publwia [1991] KCR I-4151, paragraph 24; and TK-Heimdienst, paragraph 27. 24 — Van der Veldt, paragraph 21).

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for the protection of public health provided resolved the conflict between national law for in Article 30 EC. and Community law. The best example is still the Simmenthal judgment, 2 7 in which the Court stated that, in accordance with the principle of the precedence of Commu- nity law, the relationship between provi- sions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member B — The fourth question States on the other is such that those provisions and measures by their entry into force render automatically inapplicable any conflicting provision of national law.

25. The Tribunale Civile di Padova then asks whether, as a national court, it is required to disapply internal rules such as Law No 580 which may be contrary to Community law.

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provisions of Community law is under a and upheld in a line of judgments starting duty to give full effect to those provisions, on 11 July 1989.31 if necessary refusing of its own motion to apply any conflicting provisions of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other con- stitutional means. 29

C — The fifth question

28. Therefore, in accordance with that case-law, national courts are under an 30. Finally, the Tribunale Civile di Padova obligation to refuse to apply national asks whether the bread baked in Italy from provisions contrary to Article 28 EC. The frozen or non-frozen part-baked bread national court must resolve the dispute lawfully manufactured in France, must be before it in accordance with the Commu- able to circulate freely, without restrictions nity rule which prohibits measures having like that imposed by Article 14(4) of Law equivalent effect, disregarding the conflict- No 580, which requires that the product be ing national provision, even if it was packaged before being put on sale. adopted subsequently, and it is not necess- ary for any request to be made for such national provision to be repealed.

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VIII — Conclusion

32. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the questions submitted by the Tribunale Civile di Padova:

(1) Article 14(4) of Law No 580 of 4 July 1967, laying down rules for the processing and marketing of cereals, flour, bread and pasta, as amended by Article 44(4) of Law No 146 of 22 February 1994, which requires a trader or distributor to package, before offering for sale, bread baked from frozen or non-frozen part-baked bread, as applied by the Mayor of Padua, constitutes a measure having an effect equivalent to a quantitative measure, prohibited under Article 28 EC, which is not justified by the derogation for the protection of public health provided for in Article 30 EC.

(2) The national courts of the Member States are required to disapply national rules which are contrary to Community law and, specifically, to Article 28 EC.