Criminal proceedings against De Kikvorsch Groothandel-Import-Export BV (94/82)

A —The observations of De Kikvorsch

On the basis of the judgments of the Court of 20 February 1979 in Case 120/78, REWE-Zentrale v Bundesmonopolverwaltung für Branntwein, [1979] ECR 649, of 26 June 1980 in Case 788/79, Gilli and Andres, [1980] ECR 2071, and of 19 February 1981 in Case 130/80, Kelderman, [1981] ECR 527, De Kikvorsch contends that the prohibitions laid down in Articles 6 (4) and 7 (3) of the Netherlands Bierverordening are capable of “presenting an obstacle, directly or indirectly, actually or potentially, to intra-Community trade”.Those articles in fact compel the producer of Berliner Kindl Weiße to choose between ceasing to export its product to the Netherlands or altering its brewing method and labels to meet the Netherlands requirements. The alteration of brewing methods would lead to a change in the character of the beer so that it could no longer be called “Berliner Kindl Weiße”.According to De Kikvorsch, the provision on acidity is not justified by the imperative requirements of public health.De Kikvorsch points out in this regard that Mr Teeuwen, a lawyer attached to the Produktschap voor Bier [The Beer Production Board] stated as a technical expert before the national court that the acidity was vital for the beer to keep well and that the minimum pH was fixed at 3.9 on the basis of considerations relating to consumer protection and public health. However, that expert provided no support for that statement, since he did not explain why a minimum pH of 3.9 was technically necessary in order to ensure that the beer would keep well.Moreover, Mr Kok, another expert who is in the International Affairs Department of the Ministry of Public Health, Hygiene and the Environment, contradicted Mr Teeuwen's statement by declaring that considerations relating to the protection of public health did not play any role in the determination of the acidity. Mr Kok further stated that the decision of the Committee of Ministers of the Benelux Economic Union, by virtue of which the Bierverordening was adopted, fixed the degree of acidity of beer on the basis of the beer traditionally consumed in the Benelux countries.De Kikvorsch concludes that at the time when the Bierverordening was drawn up, it simply was not envisaged that a beer might have a degree of acidity lower than 3.9.De Kikvorsch also submits that Berliner Kindl Weiße is a well-known beer brewed according to traditional methods which has been on sale for years in the Federal Republic of Germany and in other countries, that it is produced in accordance with the rules laid down during the long history of German brewing, and that in addition as far as it knows there have never been any complaints in relation to the period for which that beer may be kept or in relation to public health.So far as the prohibition of a statement of the extract strength of original wort of the beer is concerned, De Kikvorsch states that linguistically the words “stamwortgehalte” [strength of original wort] and “alcohol” in Dutch, like the words “Stammwürze” and “Alkohol” in German, are clearly distinct and do not resemble each other in any way either in writing or in relation to the way in which they are pronounced.To assume that there would be a confusion between the extract strength of the original wort and the alcoholic content is to underestimate the public, even though the public at large does not know enough about brewing methods to understand the precise significance of the expression “extract strength of the original wort”. De Kikvorsch does not see how the prohibition of any statement of the strength of the original wort on the label may be based on grounds of consumer protection which are so compelling as to justify the resulting interference with the free movement of goods.De Kikvorsch therefore suggests that the question submitted for a preliminary ruling should be answered as follows:“The application of one or both of the prohibitory provisions contained in Articles 6 (4) and 7 (3) of the Bierverordening of 1976 to beer which is imported from another Member State in which it is lawfully manufactured and marketed must be regarded as a measure having an effect equivalent to a quantitative restriction on imports, which is prohibited by Article 30 of the EEC Treaty, in so far as the marketing of beer is thereby impeded or precluded.”