Criminal proceedings against Enzo Nespoli and Giuseppe Crippa (C-196/89)

Contents

Judgment of the Court11 October 1990^noteIn 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 againstEnzo Nespoli and Giuseppe GrippaTHE 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 GervenRegistrar: H. A. Rühi, Principal Administrator,after considering the observations submitted on behalf ofEnzo 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

1By 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.

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

3It 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%.

4Mr 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).

5The 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.

6In 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?’

7Reference 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.

8It should be noted, in the first place, that although the Court may not, in proceedings under Article 177 of the Treaty, give a ruling on the compatibility of national rules with the Treaty, it is competent to provide the national court with all the elements of interpretation under Community law to enable it to assess such compatibility for the purpose of deciding the case before it.

9It 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'.

10The 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.

11As 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.

12However, 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.

13In 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.

14Such rules are therefore permissible under the Treaty only if either, within the framework of Article 30, they are applicable to domestic and imported products alike and are intended to satisfy mandatory requirements relating, in particular, to consumer protection or fair trading, or they are justified on one of the grounds of general interest listed in Article 36 of the Treaty, such as the protection of public health.

15Furthermore, in order to be permissible, such rules must be necessary for the attainment of the objective pursued and that objective must not be capable of being achieved by measures which are less restrictive of intra-Community trade.

16In 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.

17Such 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.

18The 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.

19That 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.

20Finally, 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.

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

22The 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.

23With regard to the request by the Associazione italiana lattiero-casearia, the intervener in the main proceedings, which submitted observations to the Court asking for a ruling on the interpretation of the second subparagraph of Article 40(3) of the Treaty, it is sufficient to state that, as the national court did not submit any question concerning that provision, there is no need to interpret it.

Costs

24The 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.

Operative part

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.

Delivered in open court in Luxembourg on 11 October 1990.