Report for the Hearing in Case C-269/89
I — Facts and procedure
1. The Vlees- en Vleeswarenbesluit (Netherlands Order on Meat and Prepared Meat Products) of 27 April 1987 adopted pursuant to Articles 14 and 16 of the Warenwet (Netherlands Law on Product Quality Control) lays down rules on the composition and description of meat and prepared meat products. Among them Article 1(1 )(o) lays down a percentage called the ‘Federgetal’, which expresses the ratio of water content to the content of organic non-fatty substances. According to Article 6(l)(d), a ‘vleeswaar’ (prepared meat product) must satisfy the condition that the ratio of the water content to the content of organic non-fatty substances (the Federgetal) must not exceed a value of 4. Pursuant to Article 4(2), point 3, the same Federgetal applies to ‘vleesprodukten’(meat-based products).
2. The company Bonfait BV sold and delivered within the Commune of Almelo in August and September 1988 products described as ‘vleeswaren’ (prepared meat products). The products were ‘Mosaikpastete’ and ‘Kaiserjagdwurst’ which it had bought from the firm Kempers, based in the Federal Republic of Germany, where the products are lawfully produced and sold. The ratio of water content to the content of organic non-fatty substances was 4.7 for the Mosaikpastete and 4.5 for the Kaiserjagdwurst. Bonfait BV was therefore prosecuted before the Magistrate dealing with commercial cases on the Almelo Arrondissementsrechtbank for having used to describe the products in question a name which is regulated by law in the Netherlands, without complying with the conditions applying to that name.
3. The Magistrate dealing with commercial cases on the Arrondissementsrechtbank Almelo took the view that the proceedings raised a problem of interpretation of Community law and decided by interlocutory judgment of 29 June 1989 to stay the proceedings and to refer the following questions to the Court of Justice pursuant to Article 177 of the EEC Treaty:
‘(1) Are the provisions of the Netherlands Vlees- en Vleeswarenbesluit applicable to meat products imported into the Netherlands from other Member States?
2) Are the said provisions measures within the meaning of Article 30 of the EEC Treaty?
3) Do the said provisions serve to protect public health in the Netherlands?’
4. The judgment making the reference was registered at the Court Registry on 5 September 1989. In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were lodged on 5 December 1989, by the Commission of the European Communities, represented by its Legal Adviser, René Barents, acting as Agent, on 6 December 1989, by the Netherlands Government, represented by B. R. Bot, Secretary-General at the Ministry of Foreign Affairs, on 7 December 1989 by the company Bonfait BV, the defendant in the main proceedings, represented by R. J. M. Cremers, advocate. On 21 February 1990, the Court decided, pursuant to Article 95(1) and (2) of the Rules of Procedure, to assign the case to the First Chamber. Upon hearing the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
II — Summary of written observations submitted to the Court
As regards the first question, Bonfait BV argues that the national rules applicable to the present situation are not those of the Vlees- en Vleeswarenbesluit, but those of the Order of 4 March 1985 concerning the importation of meat-based products originating from Member States of the EEC, implementing, inter alia, Council Directive 77/99/EEC of 21 December 1976 on health problems affecting intra-Community trade in meat products (Official Journal 1977 L 26, p. 85). Since the directives which apply to the matter do not contain rules concerning the Federgetal, its inclusion in the Vlees- en Vleeswarenbesluit infringes Community law and therefore cannot be applied.
As regards the second and third questions, Bonfait BV claims that the products in question comply with the rules in force in the Federal Republic of Germany and can therefore be sold there as ‘Fleischwaren’ (meat products). Although the Federgetal as such is unknown in the Federal Republic of Germany ‘Mosaikpastete’ and ‘Kaiserjagdwurst’ broadly satisfy the German standard governing the ‘Wasser: Eiweiss’ (water/protein) ratio in the regions where conditions are applied in this respect.
Bonfait BV refers to the case-law of the Court concerning measures having an effect equivalent to quantitative import restrictions prohibited by Article 30 of the EEC Treaty. In this connection, the impossibility of using the names ‘vleeswaar’ (prepared meat product) and ‘vleesprodukten’ (meat-based products) for products which do not comply with the requirements of the Vlees- en Vleeswarenbesluit has the effect of restricting the competitive capability of the product and therefore constitutes a measure of equivalent effect, as the Court has held in particular in its judgment in Case 178/84 Commission v Germany [1987] ECR 1227, the ‘Beer’ case.
Since, according to the defendant in the main proceedings, the Community has already adopted rules in this area through the directive cited, Article 36 of the EEC Treaty cannot apply. Even supposing that Article 36 did apply, there is nothing to suggest that the water content represents a real danger to public health, and, in any event, protection of the consumer could be ensured by less stringent means, such as appropriate labelling.
6. The Netherlands Government considers that the first question concerns the interpretation of national rules and that the Court therefore has no jurisdiction to reply to it. It points out that Council Directive 77/99, cited above, does not lay down rules on the composition and use of additives in meat-based products. Consequently, the Member States can regulate those matters themselves. As regards the second and third questions, the Netherlands Government maintains that the products concerned are not sold exclusively under the name lawfully used in another Member State, but that after having been imported, they bear the name regulated by law in the Member State of importation. Consumer protection and fair trading therefore require the use of another designation, in the case in question ‘produkt met x% vlees’ (product containing x% meat). The consumer therefore knows that it is not a traditional meat product and how far the product differs from such a product. According to the Commission, which suggests rewording the questions asked into a single question, national rules such as those concerned in the present case constitute a classic barrier to the free movement of goods: the product imported cannot bear the name under which it is marketed in the Member State of exportation on the grounds that in the importing Member State this name may be used only for products having certain characteristics. The result is that the product imported may only bear a designation which is less well known to the consumer or less appreciated by him such as ‘produkt met x% vlees’. Consumer protection can be guaranteed by appropriate labelling informing the consumer of the different composition of the product in question.
G. C. Rodríguez Iglesias
Judge-Rapporteur
1 Language of the case: Dutch.