Anton Adriaan Fietje. (Case 27/80)

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Anton Adriaan Fietje.
(Case 27/80)

Before the Court of Justice of the European
Communities

ECJ

(Presiding, Pescatore P.C.; Koopmans P.C.; Lord
Mackenzie Stuart, O'Keeffe,
Bosco, Touffait and Due JJ.) M. Henri Mayras Advocate
General.

16 December 1980

Reference by the Economische Politierechter (Magistrate In Economic Matters)
of
the Arrondissementsrechtbank (District Court), Assen, under Article 177 EEC.

Community law and national law. Drink.

In the absence of common EEC rules relating to the production and marketing of
alcohol, it is, in principle, for the member-States to regulate all matters relating to
the marketing of alcoholic beverages on their own territory, including the
description and labelling of those beverages, subject to any Community measure
adopted with a view to approximating national laws in these fields. [7]

Imports. Consumer protection. Labelling.

If national rules on the labelling of goods include the obligation to use, for a given
product, a description which is sufficiently precise to inform the purchaser of the
nature of the product and to enable it to be distinguished from products with
which it might be confused, it may well be necessary, in order to give consumers
effective protection, to extend this obligation to imported products also, even
such as to necessitate the alteration of the original labels of some of the
products. But that is not necessary if the details given on the original label of the
imported product contain information on the nature of the product and that
information is at least the same as the description prescribed by the rules of the
importing State and is just as capable of being understood by consumers there. It
is for the national court to determine whether that is so. [11]-[12]

Imports. Quantitative restrictions. Exemptions.
A measure caught by the prohibition against quantitative restrictions in Article 30
EEC does not escape the prohibition merely because the competent national
authority is empowered to grant exemptions, even if that power is freely applied
to imported products. On the other hand, in the case of a measure justified on
grounds recognised by the EEC Treaty, the Treaty does not forbid in principle
provision being made for the possibility of granting *723 derogations from it by
individual decisions left to the discretion of the administration. But exceptions
must not lead to the favouring of domestic products because this would
constitute arbitrary discrimination against or a disguised restriction on products
imported from other member-States. [14]

Imports. Quantitative restrictions. Labelling.

The extension by a member-State to beverages imported from other member-
States of a provision which prohibits the sale of certain alcoholic drinks under a
description other than that laid down by national law, thereby making it necessary
to alter the label under which the imported beverage is lawfully marketed in the
exporting member-State, has an effect equivalent to a quantitative restriction
under Article 30 EEC, in so far as the details given on the original label supply
the consumer with information on the nature of the product which is equivalent to
that in the description required by the national labelling law. It is for the national
court to make the findings of fact necessary to establish whether or not there is
such equivalence. [15]
The Court interpreted Article 30 EEC in the context of the prosecution of a Dutch
retailer for selling a German apple drink without having attached to it the word
'liqueur' (or certain variants) although it qualified for that term under the Dutch
legislation, which thereupon required the term to be used, to the effect that such
a labelling requirement could only be imposed on imports if the original labelling
was not, in its own way, as informative as the labelling required by the Dutch law,
it being for the national judge to decide whether it was or not.

Representation

Mass Geesteranus for the Government of the Netherlands.
Ch. Gielen, of the Amsterdam Bar, for the defendant.
P. Kuyper, of the Legal Department of the E.C. Commission, for the Commission
as amicus curiae.

The following cases were referred to by the Advocate General:
1. Rewe-Zentrale AG v. Bundesmonopolverwaltung für Branntwein (120/78), 20
February 1979: [1979] 3 C.M.L.R. 494, [1979] E.C.R. 649.
2. Gilli (788/79), 20 June 1980: [1980] E.C.R. 2071, [1981] 1 C.M.L.R. 146.
3. Firma Johs. Eggers Sohn & Co. v. Freie Hansestadt Bremen (13/78), 12
October 1978: [1979] 1 C.M.L.R. 562, [1978] E.C.R. 1935.
4. SA des Grandes Distilleries Peureux v. Directeur des Services Fiscaux de la
Haute-Saone (119/78), 13 March 1979: [1980] 3 C.M.L.R. 337, [1979] E.C.R.
897.
5. Openbaar Ministerie v. Van Tiggele (82/77), 24 January 1978: [1978] 2
C.M.L.R. 528, [1978] E.C.R. 25.

*724 The following additional cases were cited in argument:
6. Criel (Donckerwolcke) v. Procureur de la Republique Lille (41/76), 15
December 1976; [1977] 2 C.M.L.R. 535, [1976] E.C.R. 1921.
7. Procureur du Roi v. Dassonville (8/74), 11 July 1974: [1974] 2 C.M.L.R. 436,
[1974] E.C.R. 837.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
DISPLAYABLE

Facts

Mr. Fietje, a dealer in beverages, was summoned to appear before the
Economische Politierechter of the Arrondissementsrechtbank Assen charged
with having supplied a product, imported from the Federal Republic of Germany,
described as 'Berentzen Appel--Aus Apfel mit Weinzenkorn 25 vol. %' (Berentzen
Appel--Made from apples and spirit distilled from wheat 25% by volume), which
did not bear the description 'likeur' prescribed by section 1 of the Likeurbesluit of
11 September 1953. [FN1]

FN1 [1953] Staatsblad 466.

Section 1 at present reads as follows:
Where it satisfies the provisions of section 3, any product which has as its
characteristic ingredients ethyl alcohol, sugar, aromatic substances and/or fruit
juice may and must be described by one of the following words: 'likeur',
'tussenlikeur', 'verloflikeur' (it being permissible, where appropriate, to spell the
word 'likeur' as ' liqueur'), or 'likorette', and the last description must be
immediately followed by a statement of the percentage by volume of the alcoholic
strength at 15° C. These descriptions may be used in conjunction with
expressions specifying the taste or the aroma.
Section 2 of the Likeurbesluit sets forth a number of exceptions to the obligation
to use the descriptions referred to in section 1. The exception mentioned in
section 2 (a) applies to products
described with the help of a description generally used under normal commercial
practice to describe a liqueur where those liqueurs have an alcoholic strength of
at least 24% by volume at 15° C and the Director of the Department for the
Approval of Products, who may seek the opinion of special experts within the
meaning of section 8 of this decree, considers that they are sufficiently similar, as
far as concerns their aroma, taste and consistency, to products described in that
way under normal commercial practice.
Section 2 (b) and (c) mentions other exceptions to the rule contained in section 1.
Briefly, they comprise a list of beverages having an alcoholic strength of at least
20% by volume at 15° C which are described by designations involving the name
of a fruit followed by *725 the word 'brandewijn' (potable spirits) or 'jenever'
(geneva) (as well as certain typical Dutch names such as 'fladderak' and
'voorburg'), and a list of beverages having an alcoholic strength of 13% to 15%
by volume which are also described by approximately the same designations as
the beverages on the first list but to which is added the prefix 'verlof-' (licence).
Lastly, a final exception relates to 'inmaakbrandewijn' (spirits for preserving).
Section 3 (1) of the Likeurbesluit provides that:
Any product described in accordance with section 1 (1) or as '
inmaakbrandewijn', or products which are plainly such products, shall satisfy the
following conditions:
(a) the alcoholic strength shall be:
At least 22% by volume at 15° C in the case of a product described as 'likeur';
At least 15% by volume at 15° C in the case of a product described as
'tussenlikeur';
At least 13% and less than 15% by volume at 15° C in the case of a product
described as 'verloflikeur';
A percentage which is not less than that of the alcoholic strength marked on the
container in the case of a product described as ' likorette';
At least 28% and less than 30% at 15° C in the case of a product described at
'inmaakbrandewijn';
(b) the sugar content shall be at least 10 grams per 100 millilitres; the sugar
content shall be represented by the total amount of saccharose and invert sugar
reduced to saccharose present in that quantity of the product.
As far as this case is concerned it should also be mentioned that section 6 (1) of
the Likeurbesluit provides that:
Any product referred to in this decree which is contained in a receptacle intended
or suitable for delivery with its contents to the consumer shall have marked on
the receptacle the description prescribed for the product by this decree or the
particulars referred to in section 5. Those particulars are subject to the
application of section 9 ter (1) (3) and (5) of the Algemeen Besluit (Warenwet)
[General Decree (Law on Goods)].
The Likeurbesluit was promulgated on the basis of sections 14 and 15 of the
'Nederlandse Warenwet' (Dutch Law on Goods) of 28 December 1935, [FN2]
which read as follows:

Section 14

(1) In order to protect public health and to further fair trading, general
administrative regulations may prescribe descriptions which, in trade in goods
and other articles intended for trade or for putting into circulation,

FN2 [1935] Staatsblad 793.
(a) may be used only if the goods or articles are of a kind or composition
provided for in the regulation
(...)
*726 (b) may not be used if the goods or articles are of kind or composition
provided for in the regulation
(...)
(c) shall be used if the goods or articles are of a kind or composition provided for
in the regulation (...)
(...)
(4) The Minister for Social Affairs and Public Health and the ministers concerned
in the matter may by common accord grant exemptions from the rules laid down
in paragraph (1); such exemptions may be granted subject to conditions. Any
decision adopted under the preceding sentence shall be published in the
Staatscourant (Official Gazette).
(...)

Section 15

(1) For the purpose of safeguarding public health, the importation of goods of a
specific or general description and, for the purpose of furthering fair trading, the
importation of goods of a specific or general description or other articles intended
for trade may, by means of general administrative regulations:
(a) be prohibited;
(b) be prohibited in so far as importation takes place otherwise than in
accordance with the conditions prescribed in the regulations;
(c) be prohibited in so far as importation takes place otherwise than through such
first offices as may be jointly designated by the Minister for Social Affairs and
Public Health and the ministers concerned in the matter in consultation with the
Minister of Finance.
(...)
There is at present no secondary Community legislation relating to the alcoholic
beverages in question since the regulation on which such legislation might be
based, namely the Commission's proposal relating to a common organisation of
the market in alcohol, has not yet been accepted by the Council. This proposal
and the amendment thereto were published in [1972] J.O. C43/1, [1976] O.J.
C309/2 and [1979] O.J. C193/5.
Similarly, the period given to member-States to implement 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 of foodstuffs
for sale to the ultimate consumer [FN3] has not yet expired. Article 6 (3) of that
directive provides that:
In the case of beverages containing more than 1.2% by volume of alcohol, the
Council, acting on a proposal from the Commission, shall, before the expiry of a
period of four years following notification of this directive, determine the rules for
labelling ingredients and, possibly, indicating the alcoholic strength.
FN3 [1979] O.J. L33/1.

By a judgment of 19 December 1979 the Economische Politierechter referred the
following question to the Court: *727
Does the concept 'measures having an effect equivalent to quantitative
restrictions on imports' in Article 30 of the EEC Treaty cover the provisions of
section 1 of the Dutch Likeurbesluit (Liqueurs Decree) governing the obligation to
use the word 'likeur' for beverages defined therein, as a result of which products
from other member-States which have the characteristics defined in section 1 of
the Likeurbesluit, but in respect of which there is no obligation to use the
description ' likeur' in those member-States, must be labelled differently for
importation into the Netherlands?
Opinion of the Advocate General (M. Henri Mayras)

This request for a preliminary ruling from the Economische Politierechter
(Magistrate in Economic Matters) of the Arrondissementsrechtbank (District
Court) Assen in the Netherlands illustrates yet again the difficult problem of the
compatibility of national rules with 'the requirements of the free movement of
goods, which constitutes one of the fundamental rules of the Community'
(judgment of 20 February 1979 in Case 120/78 Rewe v.
Bundesmonopolverwaltung für Branntwein [FN4] and judgment of 20 June 1980
in Case 788/79 Herbert Gilli and Paul Andres. [FN5]

FN4 [1979] E.C.R. 649, [1979] 3 C.M.L.R. 494 (at para. [14]).

FN5 [1980] E.C.R. 2071, [1981] 1 C.M.L.R. 146.

The main proceedings, which are criminal in their nature, arise from a
prosecution brought by the public prosecutor against a dealer in beverages, Mr.
Fietje, who is charged with having supplied in the Netherlands a product
imported from the Federal Republic of Germany and described as 'Berentzen
Appel. Aus Apfel mit Weizenkorn 25 vol%' (Berentzen Appel made from apples
and spirit distilled from wheat 25% by volume) which did not bear the description '
likeur'. This omission contravenes the requirements contained in the Decree of
11 September 1953, adopted in application of sections 14 and 15 of the 1935
Goods Act (the Warenwet), relating to liqueurs, advocaat and potable spirits for
preservation (the Likeurbesluit). By virtue of the Economic Offences Act of 22
June 1950 (Wet op de Economische Delicten) penal sanctions attach to
contraventions of the decree.
The Economische Politierechter considered that it was necessary, before
delivering final judgment, to request the Court to give a preliminary ruling,
pursuant to the second paragraph of Article 177 of the Treaty, on the following
question:
[The Advocate General repeated the question, and continued:]
I
It is clear that in the terms in which it is framed this question does not permit the
Court to give a useful answer to the national court. That is so in the first place for
reasons based on the nature of the present proceedings. As the Court has held
on many occasions, in *728 proceedings brought pursuant to Article 177 it is not
for this Court to give judgment on the compatibility of national rules with
Community law. On the other hand, the Court may extract from the wording of
the question those elements which come within the interpretation of Community
law and which appear to it to be likely to assist the national court in deciding the
dispute before it (see for example the judgment of 12 October 1978 in Case
13/78, Joh. Eggers Sohn & Co. v. Freie Hansestadt Bremen. [FN6]

FN6 [1978] E.C.R. 1935, [1979] 1 C.M.L.R. 562 (at para. [19].

It is also so because, as the Commission and the Dutch Government have
pointed out, section 1 of the Likeurbesluit cannot be considered independently of
its other provisions. That section, and in particular paragraph (1), is in fact a
basic provision which lays down a principle. As will be seen, it is given greater
detail by sections 3 and 6 of the decree and is subject to the exceptions provided
for in sections 2 and 5 thereof. For these reasons I venture to understand the
question from the court making the reference as being intended to ascertain
whether national rules making it mandatory to affix the word 'liqueur' to the
receptacles of certain spirituous beverages, so that products of the same coming
from member-States which do not lay down by a similar obligation must be
differently labelled for the purpose of importation into the member-State in
question, constitute a measure having an effect equivalent to a quantitative
restriction on imports which is prohibited by Article 30 of the Treaty.
II

As has been mentioned, the Likeurbesluit was adopted on the basis of sections
14 and 15 of the Nederlandse Warenwet of 28 December 1935. Section 14 (1)
(a) and (c) of that Act empowers the executive to adopt, in the interest of public
health or fair trading, general administrative regulations (Algemene Maatregelen
van Bestuur) prescribing the mandatory use of certain descriptions 'in trade in
goods and other articles' intended for trade where those 'goods or articles are of
a kind or composition provided for in the regulation'.
Section 15 (1) (b) confers similar powers for the purpose of prohibiting
importation in so far as it takes place 'otherwise than in accordance with the
conditions prescribed by the regulations'. Nevertheless, pursuant to sections 14
(4) and 15 (4), the exemptions from the rules provided for in paragraph (1) of
those provisions may be granted.
(a) The system set up by the Likeurbesluit is based on the mandatory
employment of certain descriptions for various categories of alcoholic beverages.
Thus section 1 (1) of the Likeurbesluit makes mandatory the use of the
descriptions 'likeur', 'tussenlikeur', 'verloflikeur' or 'likorette' for 'any product which
has as its characteristic *729 ingredients ethyl alcohol, sugar, aromatic
substances and/or fruit juice', provided that 'it satisfies the provisions of section
3.'
The latter section sets out the conditions which beverages must satisfy in order
to be given the said descriptions. Thus it distinguishes between the products
referred to in section 1 (1), according to their alcoholic strength, which must be 'at
least 22% by volume at 15° centigrade 'for a product described as 'likeur', and in
the same way it lays down their minimum sugar content (section 3 (1) (b)). In
addition, it specifies in section 3 (2) the health requirements which the drinks
must meet, relating for example to their transparency or the use of preservatives
or colorants.
By virtue of section 6 (1), the compulsory use of the descriptions extends to a
receptacle for the goods referred to in the decree which is 'intended or suitable
for delivery with its contents to the consumer.' (b) However, the obligation laid
down by section 1 of the decree is subject to a number of exceptions, which are
defined in sections 2 and 5.
In the first place, the exception covered by section 2 (a) relates to beverages
'described with the help of a description generally used under normal commercial
practice' having an alcoholic strength of at least 24% which have received
approval from the official responsible, namely the Director of the Department for
the Approval of Products (directeur van de keuringsdienst van waren). The Dutch
Government has told the Court that, for example, products bearing the names
'parfait amour', 'maraschino' and 'blackberry' enjoy a dispensation under section
2 (a). Section 2 (b) refers to certain drinks of a lower alcoholic strength described
by descriptions involving the name of a fruit followed by the word 'brandewijn'
(potable spirits) or 'jenever' (geneva), with or without the prefix 'verlof' (licence),
as well as certain typical Dutch drinks (of the 'fladderak' or 'voorburg' type).
Finally, the Dutch Government has drawn the Court's attention to the fact ' that a
product such as "Berentzen Appel" may also come within the category of
exceptions falling within the terms of section 5 of the Likeurbesluit.' Having
regard to its complexity, I think it is preferable to quote the first paragraph of that
section, which is the only paragraph which may apply in this case, in full:
Any product of the same kind and composition as one of the products mentioned
in this decree or which might be intended to be a substitute therefor shall not
bear a description which does not indicate, or indicates only insufficiently, the
nature as well as both the quantitative and qualitative composition thereof unless
the Minister for Health and the Environment has given his consent, subject to
conditions drawn up by him. Products referred to in the preceding sentence in
respect of which no consent within the meaning thereof has been issued or which
do not bear a name for which such consent has been given shall be described by
means of a description *730 which adequately indicates both their nature and
their quantitative and qualitative composition.
(c) There is not at the present time any Community secondary legislation
applicable to alcoholic beverages. As the Court has already stressed in its
judgment in the aforementioned case of Rewe (at paragraph 8 of the decision, a
proposal for a regulation relating to a common organisation of the market in
alcohol submitted to the Council by the Commission on 7 December 1976 [FN7]
and subsequently amended [FN8] has not yet been accepted by the Council.

FN7 [1976] O.J. C309/2.

FN8 [1979] O.J. C193/5.

Much mention has also been made during the present proceedings 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 of
foodstuffs for sale to the ultimate consumer. [FN9] However, I do not think that
there is very much to be gained from a study of that text. On the one hand, the
period which member-States are allowed under Article 22 (1) to implement it has
not expired. On the other hand, and most importantly, the directive, after stating
in the preamble thereto that 'rules of a specific nature which apply vertically only
to particular foodstuffs should be laid down in provisions dealing with those
products,' makes, in its Article 6 (3), an exception for precisely the case of
'beverages containing more than 1.2% by volume of alcohol.' That provision lays
down that, in regard to such beverages, 'the Council, acting on a proposal from
the Commission, shall, before the expiry of a period of four years following
notification of this directive, determine the rules for labelling ingredients and,
possibly, indicating the alcoholic content.' For that reason I consider that in
cases, such as this, concerning a description which it is compulsory to affix to
bottles of an alcoholic beverage, it is dangerous to argue on the basis of analogy
with the rules contained in that directive.

FN9 [1979] O.J. L33/1.
III

(a) A priori, it appears indisputable that a regulation such as the Dutch decree is
incompatible with the prohibition laid down by Article 30 of the Treaty. Well-
settled case law of this Court in fact defines the concept of ' measures having an
effect equivalent to quantitative restrictions on imports' as 'all trading rules of
member-States which are capable of hindering, directly or indirectly, actually or
potentially, intra-Community trade' (see for example the judgment of 13 March
1979 in Case 119/78 SA des Grandes Distilleries Pereux v. Directeur des
Services Fiscaux de la Haute-Saône et du Territoire de Belfort. [FN10] The Dutch
Government itself admits that 'there can be little doubt that laying down, as a
condition for marketing in a *731 member-State, a specific rule on the labelling of
national and imported alcoholic beverages directly hinders the importation of
alcoholic beverages bearing a different label.'

FN10 [1979] E.C.R. 975, [1980] 3 C.M.L.R. 337 (at para. [22]).

The nature and intensity of these hindrances have been described in detail by
the accused in the main proceedings. He has told the Court that, having regard
to the large amount of his purchases of Berentzen Appel, the official importer
could 'enter into an agreement with the manufacturer with a view to keeping the
additional cost caused by the altering of the labelling at as low a level as
possible,' but that nevertheless involves keeping a special stock of bottles
labelled for the Netherlands. The accused in the main proceedings has also
drawn our attention to the much greater difficulties which parallel importers would
encounter. If the Dutch rules were held to be compatible with Community law,
such importers would be forced to carry out operations consisting in opening the
boxes, affixing a special label to the bottles and then closing the boxes again
after having replaced the bottles in them.
(b) The prohibition in principle of measures having an effect equivalent to
quantitative restrictions does not, however, completely deprive member-States of
the power to maintain and adopt certain regulations or practices which are a
direct or indirect barrier to the free movement of goods within the Community. In
general terms, the power to do so where appropriate has been expressly
conferred upon them by Article 36 of the Treaty. In the case of alcohol and
spirituous beverages the exceptions mentioned by Article 36 have been set out
in part in the Court's judgment in the aforementioned case of Rewe (paragraph
[8]), which was confirmed by the Court's judgment in Case 788/79 Gilli and
Andres. [FN11] But as appears from the following extracts from the Gilli
judgment, such a power is only available to the member-States by way of
exception and within narrow limits: 'It is only where national rules, which apply
without discrimination to both domestic and imported products, may be justified
as being necessary in order to satisfy imperative requirements relating in
particular to the protection of public health, the fairness of commercial
transactions and the defence of the consumer that they may constitute an
exception to the requirement under Article 30.'

FN11 [1980] E.C.R. 2071, [1981] 1 C.M.L.R. 146.

This wording thus makes it apparent that two conditions must be satisfied for an
exception to be lawful. The rules must first of all satisfy the imperative
requirements of 'a purpose which is in the general interest and such as to take
precedence over the requirements of the free movement of goods' (Rewe, para.
[14] and Gilli and Andres, para. [9], both cited above) and, in particular, one of
those which the Court expressly mentions. But that is not enough. The restriction
of intra-Community trade to which the rules lead must also be strictly 'necessary
in order to' attain the more important *732 objective in view. In other words, it is
thus necessary that the means be proportionate to the end.
(c) I will therefore consider whether rules such as those in the Likeurbesluit can
be regarded as justified in the light of the conditions which I have just mentioned.
For this purpose the fundamental nature of the free movement of goods within
the Community which the case law of the Court stresses and the very general
scope of the Court's definition of the concept of 'a measure having an effect
equivalent to quantitative restrictions on imports' require, in my view, a strict
interpretation of the above-mentioned conditions.
First of all, it is common ground that the effectiveness of fiscal supervision is not