Avis juridique important

Judgment of the Court of 11 October 1990. - Criminal proceedings against Enzo Nespoli and Giuseppe Crippa. - Reference for a preliminary ruling: Pretore di Milano - Italy. - Free movement of goods - National rules on cheese. - Case C-196/89. European Court reports 1990 Page I-03647

Summary Parties Grounds Decision on costs Operative part

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Free movement of goods - Quantitative restrictions - Measures having equivalent effect - National rules on cheeses requiring compliance with a minimum fat content - Application to cheeses imported from another Member State - Not permissible

( EEC Treaty, Arts 30 and 36 )

Articles 30 and 36 of the EEC Treaty are to be interpreted as precluding a Member State, subject to any particular rules applicable to cheeses which enjoy special protection, for example by virtue of a registered designation of origin or a geographical description, from applying national rules requiring compliance with a minimum fat content to all cheeses imported from another Member State if those cheeses have been lawfully manufactured and marketed in that Member State and consumers are provided with proper information .

In Case C-196/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Pretore di Milano ( Magistrates' Court, Milan ) for a preliminary ruling in the criminal proceedings pending before that court against

Enzo Nespoli and Giuseppe Crippa

on the interpretation of Articles 30 and 36 of the EEC Treaty,

THE COURT,

composed of : O . Due, President, G . F . Mancini, T . F . O' Higgins, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias ( Presidents of Chambers ), F . A . Schockweiler and F . Grévisse, Judges,

Advocate General : W . Van Gerven

Registrar : H . A . Ruehl, Principal Administrator,

after considering the observations submitted on behalf of

Enzo Nespoli and Giuseppe Crippa, by Nicole Coutrelis, of the Paris Bar,

the Italian Government, by Professor Luigi Ferrari Bravo, Head of the Legal Department at the Ministry of Foreign Affairs, acting as Agent, assisted by Pier Giorgio Ferri, avvocato dello Stato,

the Associazione italiana lattiero-casearia ( Italian Association of Dairy Producers ), by Fausto Capelli, of the Milan Bar,

the French Government, by Edwige Belliard, Deputy Director for Legal Affairs, and Claude Chavance, Principal Administrator, acting as Agents,

the Commission of the European Communities, by Sergio Fabro, a member of its Legal Department, acting as Agent,

having regard to the Report for the Hearing,

after hearing oral argument presented by the parties' representatives at the hearing on 13 June 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on 5 July 1990,

gives the following

Judgment

1 By order of 9 June 1989, which was received at the Court on 19 June 1989, the Pretore di Milano ( Magistrates' Court, Milan ) referred a question to the Court pursuant to Article 177 of the EEC Treaty for a preliminary ruling on the interpretation of Articles 30 and 36 of the EEC Treaty .

2 That question arose in criminal proceedings against Enzo Nespoli and Giuseppe Crippa for infringing the Italian legislation on cheeses .

3 It is apparent from the order for reference that the legislation in question prohibits the production, importation and marketing of cheeses whose fat content is lower than the minimum prescribed by that legislation . That minimum varies according to the different varieties of cheese and in the case of Swiss-type cheeses such as Emmenthal is 45 %.

4 Mr Nespoli is charged with importing and marketing in Italy a French-made cheese known as "Predor Light" and Mr Crippa is charged with offering it for sale in a Milan supermarket . According to the findings set out in the order for reference, Predor Light is an Emmenthal-type cheese with a fat content in relation to dry weight of 30 %. It is sold in its original wrapping bearing the French words "fromage demi-gras" ( semi-fat cheese ) to which a label has been affixed with the description in Italian "prodotto caseario" ( cheese product ).

5 The national court was uncertain as to the compatibility with Articles 30 and 36 of the Treaty of the Italian legislation which, when applied to ordinary cheeses, seems to constitute a measure having equivalent effect to a quantitative restriction prohibited by Article 30 and does not seem capable of being justified either by mandatory requirements relating to consumer protection or fair trading or by the need to ensure the protection of public health .

6 In those circumstances the national court decided to stay the proceedings until the Court had given a preliminary ruling on the following question :

"Are Articles 30 and 36 of the Treaty of Rome to be read and interpreted as meaning that the Italian legislation on cheese other than that protecting 'typical local' products or products of specific origin is not compatible with those articles and is therefore unlawful, in so far as it lays down for ordinary cheeses minimum fat contents by reference to dry weight, at a high level, moreover, where it is established that those rules constitute an obstacle to the free movement of such foodstuffs within the Community which is not justified on grounds of the protection of public health or by the mandatory requirements of protecting consumers and ensuring fair trading?"

7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

9 It should also be observed that the national court was at pains to point out that its question concerned only "ordinary cheeses" and not "' typical local' products or products of specific origin ".

10 The question submitted for a preliminary ruling must therefore be understood as asking whether Articles 30 and 36 of the Treaty are to be interpreted as precluding a Member State from applying to all cheeses imported from another Member State national rules requiring compliance with a minimum fat content, subject to any particular rules applicable to cheeses which enjoy special protection, for example by virtue of a registered designation of origin or a geographical description .

11 As Community law stands, there are no common or harmonized rules on the manufacture and marketing of cheese . It is therefore for each Member State to regulate, within its own territory, the conditions governing the manufacture and marketing of that product .

12 However, the Member States may exercise that power only within the limits imposed on them, in particular by the provisions of the Treaty relating to the free movement of goods .

13 In that regard, it must be borne in mind that on account of their disparity, national rules on the marketing of products may constitute an obstacle to intra-Community trade when they apply to products imported from another Member State in which they are lawfully manufactured and marketed .

16 In the light of the foregoing, it must be observed that national rules as described by the national court constitute an obstacle to trade, inasmuch as they prohibit the importation of cheeses with a fat content lower than that prescribed from Member States in which they are lawfully manufactured and marketed .

17 Such rules cannot, for the purposes of the application of Article 30, be regarded as justified by mandatory requirements relating to consumer protection or fair trading .

18 The Italian Government maintains, in that regard, that the legitimate expectations of consumers would not be satisfied if they were offered as cheeses products which, in view of the differences between the relevant national rules, exhibit very different characteristics .

19 That argument must be rejected . In order to avoid the problem complained of by the Italian Government, it is sufficient for the national authorities to prescribe adequate labelling in order to provide proper information on the actual fat content of cheeses to enable consumers to make their choice in full knowledge of the facts .

20 Finally, a national measure of the kind at issue cannot qualify for the derogation under Article 36 on grounds of the protection of public health, referred to by the national court .

21 Public health cannot be considered to be endangered by the consumption of cheeses with a low fat content .

22 The answer to the question submitted for a preliminary ruling must therefore be that Articles 30 and 36 of the EEC Treaty are to be interpreted as precluding a Member State, subject to any particular rules applicable to cheeses which enjoy special protection, for example by virtue of a registered designation of origin or a geographical description, from applying national rules requiring compliance with a minimum fat content to all cheeses imported from another Member State if those cheeses have been lawfully manufactured and marketed in that Member State and consumers are provided with proper information .

Costs

24 The costs incurred by the Government of the French Republic, the Government of the Italian Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable . Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court .

On those grounds,

THE COURT,

in answer to the question submitted to it by the Pretore di Milano, by order of 9 June 1989, hereby rules :

Articles 30 and 36 of the EEC Treaty are to be interpreted as precluding a Member State, subject to any particular rules applicable to cheeses which enjoy special protection, for example by virtue of a registered designation of origin or a geographical description, from applying national rules requiring compliance with a minimum fat content to all cheeses imported from another Member State if those cheeses have been lawfully manufactured and marketed in that Member State and consumers are provided with proper information .