Ministere Public v. Gerard Deserbais
(Case 286/86)
Before the Court of Justice of the European
Communities
ECJ
(Presiding, Lord Mackenzie Stuart C.J.; Bosco, Due,
Moitinho de Almeida and
Rodriguez Iglesias PP.C.; Koopmans, Everling,
Bahlmann, Galmot, Kakouris,
Joliet, O'Higgins and Schockweiler JJ.) Sir Gordon
Slynn, Advocate General.
22 September 1988 [FN1]
Reference from France by the Cour d'Appel (Court of Appeal), Colmar, under
Article 177 EEC.
Trade names. Designation of origin.
For the purposes of Article 30 EEC a designation of origin or a geographical
description must designate a product from a specified geographical area. [9]
FN1 The judgment in this case has been translated by us. The Opinion of the
Advocate General was in English in the original. The ruling of the Court was
taken from the English text as published in the Official Journal.--Ed.
Trade names. Designation of origin. Cheese.
The term 'Edam' applied to cheese is a generic or trade name for a type of
cheese and not a designation of origin. [9]
Food. Standards. Trade names. Cheese.
There are at present no common Community rules governing the names of
different types of cheese. Therefore a member-State is entitled to require that
national cheese producers in order to use a particular name for their cheese
should observe a traditional minimum fat content. [11]
Food. Standards. Trade names. Cheese. Imports.
Cheese bearing a generic name (in casu, Edam) and manufactured in and
according to the quality standards of one member-State may not be refused entry
or marketing in another member-State merely because it has a different fat
content, so long as the consumer is adequately informed of its variance from the
national norm. [12]
Treaties. Effect. Community law and international law.
The purpose of Article 234(1) EEC is to ensure, in accordance with the principles
of international law, that application of the EEC *517 Treaty does not affect the
duty of member-States to observe the rights of non-member countries under a
prior treaty and to fulfil their corresponding obligations. [17]
Attorney-General v. Burgoa (812/79) [1980] E.C.R. 2787, [1981] 2 C.M.L.R. 193,
reaffirmed.
Treaties. Effect. Imports.
If the rights of non-member States are not in issue, a member-State cannot rely
on the provisions of a prior treaty, even a multilateral convention, in order to
justify restrictions on the marketing of products from another member- State if the
marketing is protected by the EEC rules on free movement of goods [18]
The Court interpreted Article 30 EEC in the context of the sale in France of
German Edam cheese having a fat content of 34.3 per cent., French law
requiring Edam cheese to have a minimum fat content of 40 per cent. as required
by the Stresa Convention 1951 to which France, Denmark, Italy and the
Netherlands are the only EEC States to be party, to the effect that 'Edam' is a
generic term and not a designation of origin, that lawfully made German Edam
cheese cannot be refused circulation in France because of fat content so long as
it is clearly labelled as such (which the referring court found was the case), that
the FAO/WHO Codex Alimentarius was advisory only, that the Stresa Convention
could only override Article 30 EEC if the rights of non-EEC Contracting Parties
were involved, which was not the case here, and that therefore the French
prohibition on the German Edam infringed Article 30 and the prosecution based
on it was unlawful.
Representation
Maitres Merckel, Ambach et associes, of the Strasbourg Bar, in the written
proceedings, and Maitre P. Peguet, in the oral proceedings, for the
defendant/appellant.
Peter Kalbe, Legal Adviser to the E.C. Commission, in the written proceedings,
and C. Durand, of the Legal Department of the E.C. Commission, in the oral
proceedings, for the Commission as amicus curiae.
E. F. Jacobs, Secretary General at the Ministry for Foreign Affairs, in the written
proceedings, and M. Fiestra, in the oral proceedings, for the Dutch Government
as amicus curiae.
The following cases were referred to in the judgment:
1. Re Sparkling German Wines and Brandies: E.C. Commission v. Germany
(12/74), 20 February 1975: [1975] E.C.R. 181, [1975] 1 C.M.L.R. 340. Gaz:12/74
2. Attorney-General v. Burgoa (812/79), 16 December 1980: [1980] E.C.R. 2787,
[1981] 2 C.M.L.R. 193. Gaz:812/79 *518
The following further cases were referred to by the Advocate Geneal:
3. Conegate Ltd. v. H.M. Customs and Excise (121/85), 11 March 1986: [1986]
E.C.R. 1007, [1986] 1 C.M.L.R. 739. Gaz:121/85
4. Miro BV (182/84), 26 November 1985: [1985] E.C.R. 3731, [1986] 3 C.M.L.R.
545. Gaz:182/84
5. Re Purity Requirements for German Beer: E.C. Commission v. Germany
(178/84), 12 March 1987: [1988] 1 C.M.L.R. 780. Gaz:178/84
6. Procureur du Roi v. Dassonville (8/74), 11 July 1974: [1974] E.C.R. 837,
[1974] 2 C.M.L.R. 436. Gaz:8/74
7. Rewe-Zentral AG v. Bundesmonopolverwaltung fur Branntwein (120/78), 20
February 1979: [1979] E.C.R. 649, [1979] 3 C.M.L.R. 494. Gaz:120/78
8. E.C. Commission v. Italy (193/80), 9 December 1981: [1981] E.C.R. 3019.
Gaz:193/80
9. Prantl (16/83), 13 March 1984: [1984] E.C.R. 1299, [1985] 2 C.M.L.R. 238.
Gaz:16/83
10. Re the Use of Champagne-Type Bottles: E.C. Commission v. Germany
(179/85), 4 December 1986: [1988] 1 C.M.L.R. 135. Gaz:179/85
The following additional cases were referred to in argument:
11. Fabriek voor Hoogwaardige Voedingsprodukten Kelderman BV (130/80), 19
February 1981: [1981] E.C.R. 527. Gaz:130/80
12. Re Italian Customs Duties on Radio Valves: EEC Commission v. Italian
Government (10/61), 27 February 1962: [1962] E.C.R. 1, [1962] C.M.L.R. 187.
Gaz:10/61
13. Jongeneel Kaas BV v. the State (Netherlands) and Stichting Centraal Orgaan
Zuivelcontrole (237/82), 7 February 1984: [1984] E.C.R. 483, [1985] 2 C.M.L.R.
53. Gaz:237/82
14. Re Inspection Fees on Imported Plants: E.C. Commission v. Netherlands
(89/76), 12 July 1977: [1977] E.C.R. 1355, [1978] 3 C.M.L.R. 630. Gaz:89/76
15. Fietje: (27/80), 16 December 1980: [1980] E.C.R. 3839, [1981] 3 C.M.L.R.
722. Gaz:27/80
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT
DISPLAYABLE
Opinion of the Advocate General (Sir Gordon Slynn)
Pursuant to the International Convention on the Use of Designations of Origin
and Names for Cheeses, 'the Stresa Convention', of 1 June 1951, to which inter
alia France and the Netherlands are parties but to which the Federal Republic of
Germany is not, French legislation prohibits the marketing of cheese under the
appellation 'Edam' unless it has a minimum dry-matter content of 52 per cent.
and a fat content of 40 per cent. Gerard Deserbais, the manager of the French
company Fromex Sarl imported into France cheese originating in the Federal
Republic of Germany which had a dry-matter content of 50.4 per cent. and a fat
content of 34.3 per cent. That cheese was prepacked and labelled (in French):
German Edam cheese
Fat content 30%
Imported by Fromex, Strasbourg
In respect of that importation, he was prosecuted and convicted of passing off
('usurpation d'une denomination') liable to mislead the buyer as to the nature and
inherent qualities of the goods concerned. He appealed to the Court of Appeal,
Colmar, on the basis that Community law allowed him to import the cheese into
France under the appellation 'Edam' because it was lawfully manufactured and
marketed under that name in the Federal Republic of Germany.
To resolve the issue, the Court of Appeal, Colmar, referred the following question
to the Court of Justice for a preliminary ruling by an order of 30 October 1986:
Must Article 30 et seq. of the EEC Treaty be interpreted as meaning that
national legislation which, for the purpose of protecting a trade name,
(i) restricts that trade name to national products or those of another State, to the
exclusion of the products of other member-States;
(ii) makes the right to use the trade name of a cheese imported from a memberState conditional on the observance of a minimum fat content, even though the
imported cheese is lawfully and traditionally produced and marketed in its country
of origin in accordance with different technical and quality requirements
constitutes a quantitative restriction on imports or a measure having equivalent
effect thereto?
Mr. Deserbais relies on Article 30 as interpreted in the Court's case law on the
free movement of goods, asserts that consumers were adequately protected by
the information on the label, and submits that the question should be answered
along the lines that Article 30 EEC prohibits a member-State from applying to
cheese of the same type imported from another member-State national *520
rules which allow a trade name to be used for that cheese only if a condition
stipulating a minimum fat content is complied with, where the imported cheese is
lawfully and traditionally produced according to different technical and quality
requirements and marketed under the same name in its State of origin and where
appropriate information of purchasers is ensured.
The Dutch Government contends that, although the appellation 'Edam' is now
applicable to cheese manufactured outside the Edam region of the Netherlands it
must be confined to cheese complying with a certain technical description and in
particular having a fat content of at least 40 per cent. It argues that both the
Stresa Convention and the Codex Alimentarius represent an international effort
to guarantee the maintenance of these characteristics for cheese bearing that
name. It contends that respect for the traditional production techniques fixed and
accepted at the international level for Edam cheese requires the member-States
of the EEC to be able to prohibit imports from other member-States of cheese not
complying with such techniques, even if the consumer is informed of the
difference of composition of the product. It therefore proposes that the question
should be answered along the lines that Community law does not prohibit
national provisions which allow a name to be used for cheese only if certain
characteristics are complied with such as those stipulated inter alia in the Stresa
Convention and the Codex Alimentarius.
The Commission adopts an interpretation of the law on free movement of goods
similar to Mr. Deserbais's and, in relation to the effect of international
agreements, it refers to Article 234 of the Treaty, Case 812/79 Burgoa [FN2] and
Case 121/85 Conegate, [FN3] in support of its contention that agreements
concluded prior to the entry into force of the EEC Treaty cannot be relied on in
dealings between member-States in order to justify restrictions on intraCommunity trade. Therefore, it contends, no reliance can be placed on the
Stresa Convention to exclude the application of the provisions of Article 30. It
submits accordingly that the question should be answered along the lines that
national rules which, for the purpose of protecting a trade name, prohibit the
marketing of cheese having a different fat content from that stipulated are to be
regarded as measures having an effect equivalent to a quantitative restriction
contrary to Article 30 of the Treaty where such cheese has been imported from
another member-State where it has been lawfully and traditionally marketed
under the same name but in accordance with different quality requirements, and
where the labelling and packaging clearly indicate its true composition and origin.
FN2 [1980] E.C.R. 2787 *521 At 2802, [1981] 2 C.M.L.R. 193 At 211.
FN3 [1986] E.C.R. 1007 At 1024-1025, [1986] 1 C.M.L.R. 739 At 755.
It is well established in the case law of the Court that a marketing restriction
which operates by way of a restriction on the use of a name, rather than directly
on the product, can nonetheless be a restriction for the purposes of Article 30
EEC: see e.g. Case 182/84 Miro [FN4] and Case 178/84 E.C. Commission v.
Germany ('the Beer Case'). [FN5]
FN4 [1985] E.C.R. 3731, [1986] 3 C.M.L.R. 545.
FN5 [1988] 1 C.M.L.R. 780.
National legislation such as the French legislation in issue in the present case
does restrict or may restrict the sale of goods imported from other memberStates, which brings it within the definition of a measure having an effect
equivalent to a quantitative restriction on imports laid down by the Court in its
case law, particularly Case 8/74 Dassonville. [FN6] Accordingly, it is prohibited
by Article 30 EEC unless it falls within one of the exceptions in Article 36 or, if
applicable, one of the 'mandatory requirements' recognised by the Court in Case
120/78 Rewe v. Bundesmonopolverwaltung fur Branntwein [FN7] (the Cassis de
Dijon Case) and subsequent cases.
FN6 [1974] E.C.R. 837, [1974] 2 C.M.L.R. 436.
FN7 [1979] E.C.R. 649, [1979] 3 C.M.L.R. 494.
As the Dutch Government admits, 'Edam' long ago ceased to be reserved for
cheese made in the Edam region of the Netherlands, and so it cannot be
regarded as a designation of origin. Indeed in the Stresa Convention 'Edam' is
not classified among the 'designations of origin' but only among the 'names' of
cheeses for which a lesser degree of protection is provided. It is now a name for
a type of cheese but no longer with any geographical limitation on its place of
production.
Decisions of the Court have laid down that member-States are not allowed to
restrict a generic term to one national variety alone to the detriment of other
varieties lawfully produced in other member-States: Case 12/74 E.C.
Commission v. Germany [FN8] ('Sekt' and 'Weinbrand'), Case 193/80 E.C.
Commission v. Italy [FN9] ('vinegar'), Miro ('gin' or 'genever') and the Beer Case.
It is difficult to say when a name which was originally specific to an area
becomes a generic name, but it seems on all the evidence that 'Edam' has now
become a generic name and falls within the rule just stated. In any event as I see
it 'Edam' does not fall within the provisions of Article 36 EEC relating to the
protection of industrial and commercial property.
FN8 [1975] E.C.R. 181, [1975] 1 C.M.L.R. 340.
FN9 [1981] E.C.R. 3019.
In the present state of Community law there are no Community rules governing
the names or designations of origin of different types of cheese within the
Community. As the Court held at paragraph 8 of Cassis de Dijon, in the absence
of such common rules, 'it is for the member-States to regulate all matters relating
to the production and marketing of [the product] on their own *522 territory.
Obstacles to movement within the Community resulting from disparities between
the national laws relating to the marketing of the products in question must be
accepted in so far as those provisions may be recognised as being necessary in
order to satisfy mandatory requirements relating in particular to ... the fairness of
commercial transactions and the defence of the consumer'.
The Stresa Convention, with its specifications inter alia for Edam cheese, has
been signed by Denmark, France, Italy and the Netherlands but not by the other
member-States. In the Federal Republic of Germany in particular it appears that
the legislation allowing 'Edam' cheese to be manufactured with a fat content as
low as 30 per cent. dates back to 1934: 54 years ago. Moreover, it appears that
in recent years Edam with a 30 per cent. fat content has represented one third of
German production of Edam cheese. In such circumstances I do not consider
that any mandatory requirement as to the fairness of commercial transactions
can justify one member-State in banning the sale of Edam with a 30 per cent. fat
content from another member-State.
As regards the defence of the consumer, it is well-established in the Court's case
law (e.g. the Beer Case) that such a total ban is disproportionate to the purpose
of protecting the consumer from deception if the same purpose can be achieved
by less restrictive means such as labelling. That rule seems to me to apply in the
present case, and it appears from the order for reference that the cheese in
question was adequately labelled. Furthermore, the need to protect consumers
from deception must be set against the rule that national legislation 'must not
crystallise given consumer habits so as to consolidate an advantage acquired by
national industries concerned to comply with them': Beer Case judgment,
paragraph 32.
Mere labelling would not be sufficient if the product proposed was something
radically different from the product usually recognised as 'Edam' in the importing
member-State, e.g. blue cheese or cream cheese. That, however, is not this
case. The argument that the Cassis de Dijon rule on free movement might open
the floodgates to imported products bearing wholly inappropriate designations
can easily be exaggerated: first, in order to qualify, the imports must have been
'lawfully produced and marketed' in the exporting member-State. That conditon
should in most cases operate to ensure that the goods in question do not bear a
wholly inappropriate designation. That seems to me to be the present case.
Secondly, in the exceptional case where the exporting member-State's law does
allow the production and marketing of a product under a name which might
seriously mislead consumers in an importing member-State, the mandatory
requirement of consumer protection would come into play so as to allow
measures more restrictive than a mere labelling requirement *523 to be applied,
subject always to a condition of proportionality ('necessary in order to satisfy
mandatory requirements': paragraph 8 of Cassis de Dijon). I do not consider,
therefore, that applying the Cassis de Dijon principle of free movement in the
areas of cheese names presents a real risk of robbing those names of their
meaning.
Reference has been made in the present case to the criterion of respecting the
'fair and traditional practices' of the various member-States, which was applied in
Case 16/83 Prantl [FN10] and in Miro. While I have no doubt that such a criterion
could be fulfilled in the instant case in view of the long history of production and
marketing of 'Edam' with a fat content below 40 per cent. in Germany, I consider
it inappropriate to apply that criterion here. In my view, in a case such as the
present, its application unnecessarily narrows the conditions for free movement
of goods laid down in Article 30 and developed in Cassis de Dijon. As I said in
my Opinion in Case 179/85 E.C. Commission v. Germany ('the Petillant de Raisin
Case'), [FN11] 'whereas the "fair and traditional usage" test may be appropriate
in a case like Prantl where the question of indirect designation of origin arose, it
does not seem to me that it has to be established in every case. If it did the
development and marketing of new products would be stifled. The appropriate
test in a case like the present is in my view that stated in Cassis de Dijon-whether the product was "lawfully produced and marketed" in one member-State.
If it is, it may be marketed in another member-State subject to mandatory
requirements of the kind indicated in Cassis de Dijon and subject to the
provisions of Article 36 of the Treaty'. Although the judgment in that case (4
December 1986) made reference again to the 'fair and traditional practice' test, in
the subsequent Beer Case judgment (of 12 March 1987), the Court did not use
the 'fair and traditional practice' test but struck down the German restriction on
foreign beers simply on the condition that they had been lawfully manufactured
and marketed in their member-State of origin. In my view a similar approach
should be followed in the present case.
FN10 [1984] E.C.R. 1299, [1985] 2 C.M.L.R. 238.
FN11 [1988] 1 C.M.L.R. 135.
For the reasons given above I do not consider that any of the relevant mandatory
requirements under Cassis de Dijon or the relevant provisions of Article 36 apply
to a national measure such as that at issue in the present case. Accordingly, in
my view, a prohibition such as that contained in the French legislation in question
may not be applied to a product such as the German Edam in issue because it
has been lawfully produced and marketed in its member-State of origin.
It remains to be considered whether the existence of the Stresa Convention
alters that result. I think not.
*524 The Dutch Government has argued that the Stresa Convention, along with
the Codex Alimentarius, represents an internationally agreed quality standard
which deserves to be protected under Community law. Since a number of
member-States, particularly the Federal Republic of Germany, have not accepted
the standard thus proposed, I find it difficult to say that they are rules of
Community law which override or qualify the rule in Article 30.
As the Court held in Case 121/85 Conegate v. Customs and Excise, [FN12]
Article 234 EEC must be interpreted as meaning that an agreement concluded
prior to the entry into force of the EEC Treaty (which the Stresa Convention was)
may not be relied upon in order to justify restrictions on trade between memberStates.
FN12 [1986] E.C.R. 1007, [1986] 1 C.M.L.R. 739 At Para. [26] and at Point 2 of
the Operative Part.
Different factors would fall for consideration if the name in question was an
appellation or designation of origin.
Accordingly, I would answer the question referred along the lines that:
National legislation which, for the purpose of protecting a trade name,
(i) restricts that trade name to national products or those of another State, to the
exclusion of the products of other member-States;
(ii) makes the right to use the trade name of a cheese imported from a memberState conditional on the observance of a minimum fat content, even though the
imported cheese is lawfully produced and marketed in its country of origin in
accordance with different technical and quality requirements
constitutes a measure having an effect equivalent to a quantitative restriction on
imports contrary to Article 30 of the EEC Treaty.
The costs of Mr. Deserbais in these proceedings fall to be decided by the
national court. The costs of the Commission and the Dutch Government are not
recoverable.
JUDGMENT
[1] By judgment of 30 October 1986, received by the Court on 20 November
following, the Cour d'Appel, Colmar, referred to the Court for a preliminary ruling
under Article 177 EEC a question on the interpretation of Article 30 et seq. EEC
having regard to national legislation for protecting the trade name of a type of
cheese.
*525 [2] The question has arisen in the context of criminal proceedings against
Mr. G. Deserbais, director of a dairy products enterprise, for having brought into
and marketed in France under the name 'Edam' a cheese from the Federal
Republic of Germany having a fat content of 34.3 per cent. whereas, on the basis
of national legislation, the name 'Edam' is reserved for a type of cheese with a
minimum fat content of 40 per cent. The legislation was drawn up in conformity
with the International Convention on the Use of Designations of Origin and
Names for Cheeses which was signed, inter alia, by France at Stresa on 1 June
1951 [FN13] (hereinafter called 'the Stresa Convention').
FN13 [1952] J.O.R.F. 5821.
[3] It appears from the file that, under the national legislation governing the
subject, Mr. Deserbais was convicted of passing off and was fined.
[4] The accused in the main action appealed to the Cour d'Appel, Colmar, on the
substantive ground that as German Edam is legally and traditionally produced
and marketed in the Federal Republic, the French authorities could not prevent
importation into the French market because adequate information was provided
for consumers, nor could the French authorities rely on the Stresa Convention to
avoid the application of Community rules.
[5] The Cour d'Appel finds that it is common ground that the product in question
is properly and traditionally produced and marketed in the Federal Republic of
Germany under the name 'Edam' and that consumers are given adequate
information by the label on the product which shows the necessary particulars for
this purpose.
[6] Considering that the decision in the case depends on the interpretation of
Article 30 et seq. EEC 'having regard to the International Convention on the use
of cheese names', the Cour d'Appel, Colmar stayed judgment and referred the
following question to the Court for a preliminary ruling:
Should Article 30 et seq. of the EEC Treaty be interpreted to mean that national
legislation designed to protect a trade name which
1. restricts that trade name to national products or those of another State, to the
exclusion of the products of other member-States; or
2. makes the right to use the trade name of a cheese imported from a memberState conditional on observance of a minimum fat content, even though the
imported cheese is properly and traditionally produced and marketed in its
country of origin in accordance with different requirements as to method and
quality,
constitutes a quantitative restriction on imports or a measure having equivalent
effect thereto?
[7] Reference is made to the Report for the Hearing for a fuller account of the
facts of the main action, the procedure and the submissions to the Court, which
are mentioned or discussed *526 hereinafter only so far as is necessary for the
reasoning of the Court.
[8] The question before the Court requests it to clarify, with reference to a
situation like the present one, its case law on the prohibition of measures having
an equivalent effect within the meaning of Article 30 of the Treaty. According to
that case law, in the absence of common rules for the marketing of the products
in question, obstacles to free movement within the Community resulting from
disparities between the national laws must be accepted in so far as those
provisions, which apply without distinction to national products and imported
products, may be recognised as being necessary in order to satisfy mandatory
requirements relating, inter alia, to the defence of the consumer and the fairness
of commercial transactions.
[9] To reply to the question referred by the national court, it should be observed
straightaway that, as appears from the order making the reference, the name
'Edam' is not a designation of origin or a geographial description. According to
the Court's case law (see Case 12/74, E.C. Commission v. Germany [FN14]),
these terms designate a product from a specified geographical area. The name is
merely a trade name for a type of cheese. Furthermore, in the Stresa Convention
the term 'Edam' is not included among the designations of origin but among the
'names' of cheeses.
FN14 [1975] E.C.R. 181, [1975] 1 C.M.L.R. 340.
[10] In this connection the national court starts with the finding that the cheese in
question, with a fat content of 34 per cent., was properly and traditionally
produced and marketed in the Federal Republic of Germany under the name
'Edam' in conformity with the legislation and regulations applying to it, and that
appropriate information is given to consumers by the label.
[11] Secondly it should be noted that, as Community law stands at present, there
are no common rules governing the names of different types of cheese in the
Community. In those circumstances, a member-State cannot in principle be
denied the right to lay down rules making the use by national producers of a
name for cheese subject to observing a traditional minimum fat content.
[12] However, it would be incompatible with Article 30 of the Treaty and the
objectives of a common market to extend the application of such rules to
imported cheeses of the same type if they were lawfully produced and marketed
in another member-State under the same generic name but with a different
minimum fat content. The importing member-State cannot create an obstacle to
the importation and marketing of such cheese if the consumer is given proper
information.
[13] The problem could arise of whether the same rule must be applied where a
product offered under a certain name differs to *527 such an extent, from the
viewpoint of composition or production, from goods generally known by the same
name in the Community that it cannot be considered as within the same
category. However, a particular situation of this kind does not arise in the
circumstances found by the national court in the present case.
[14] On this point the Dutch Government contends that protection for consumers
and fairness of commercial transactions require compliance with what has been
agreed at the international level regarding the use of the name of a specific
product. Consequently each member-State could make the right to use the name
'Edam' conditional on complying with the requirements of the abovementioned
Stresa Convention and the Codex Alimentarius, which has been drawn up jointly
by the Food and Agriculture Organisation and the World Health Organisation,
both of these documents specifying a minimum fat content of 40 per cent. for this
type of cheese.
[15] With regard to the Codex Alimentarius, it should be observed that the
standards it lays down for the composition of certain foodstuffs have the actual
purpose of providing information which makes it possible to define the
characteristics of the product. However, the mere fact that a product does not
conform entirely to the specified standard does not mean that marketing may be
prohibited.
[16] Regarding the Stresa Convention, it should be borne in mind that it was
concluded prior to the entry into force of the EEC Treaty and that, of the present
member-States, only Denmark, France, Italy and the Netherlands are parties to
this Convention.
[17] Secondly, it should be noted that, as the Court has already held, the purpose
of Article 234(1) of the Treaty is to make it clear, in accordance with the
principles of international law, that application of the Treaty does not affect the
duty of the member-State concerned to observe the rights of non-member
countries under a prior treaty and to fulfil its corresponding obligations (see Case
812/79 Burgoa [FN15]).
FN15 [1980] E.C.R. 2787, [1981] 2 C.M.L.R. 193.
[18] Therefore if, as in the present case, the rights of non-member countries are
not in issue, a member-State cannot rely on the provisions of a prior treaty in
order to justify restrictions on the marketing of products from another memberState when such marketing is lawful by virtue of the free movement of goods
provided for by the Treaty.
[19] Therefore the reply to the question submitted should be that Article 30 et
seq. of the Treaty must be interpreted as meaning that they preclude a memberState from applying national legislation making the right to use the trade name of
a cheese subject to the observance of a minimum fat content to products of the
same type *528 imported from another member-State when those products have
been lawfully manufactured and marketed under that name in that member-State
and consumers are provided with proper information.
Costs
[20] The costs incurred by the Dutch Government 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 as to costs is a matter for that court.
Order
On those grounds, THE COURT, in reply to the question submitted to it by the
Cour d'Appel, Colmar, by order of 30 October 1986,
HEREBY RULES:
Articles 30 et seq. of the EEC Treaty must be interpreted as meaning that they
preclude a member-State from applying national legislation making the right to
use the trade name of a cheese subject to the observance of a minimum fat
content to products of the same type imported from another member-State when
those products have been lawfully manufactured and marketed under that name
in that member-State and consumers are provided with proper information.
(c) Sweet & Maxwell Limited
[1989] 1 C.M.L.R. 516
END OF DOCUMENT