CJEC, 2nd chamber, February 19, 1981, No 130-80

THE COURT (second chamber)

1 By judgment dated 28 march 1980, which was received at the court on 29 may 1980, the economische politierechter (magistrate in economic matters), amsterdam, referred to the court for a preliminary ruling under article 177 of the eec treaty a question as to the interpretation of article 30 of the treaty. That reference was made with a view to defining the concept of a measure having an effect equivalent to a quantitative restriction in regard to article 10 of the netherlands broodbesluit (bread order) inasmuch as that article provides that the quantity of dry matter in a loaf of bread must fall within specified sets of limits.

2 The question has been submitted in the course of criminal proceedings against an importer who is charged with having sold on the netherlands market ' ' brioches ' ' from the french republic which contained 300 grams of dry matter per 400 grams of fresh product. The netherlands administrative authorities treated the brioches as bread and found that the dry-matter content did not come within any of the sets of limits laid down by the broodbesluit.

3 In its present form, the broodbesluit was enacted in the netherlands on 21 december 1925 pursuant to articles 14 and 15 of the warenwet (law on goods) of 19 september 1919. Those articles provide amongst other things that, in order to protect public health and to further fair trading, general administrative regulations may lay down certain requirements as to the composition and description of goods.

4 When the importer was summoned before the economische politierechter amsterdam pursuant to those provisions he contended that those rules were incompatible with article 30 of the eec treaty whereby quantitative restrictions on imports and all measures having equivalent effect are prohibited in intra-community trade. The national court considered it necessary to submit the following question to the court before giving judgment:

' ' Must the concept of ' measures having an effect equivalent to quantitative restrictions on imports ' in article 30 of the eec treaty be interpreted as extending to the requirement laid down in article 10 of the broodbesluit (bread order) (warenwet (law on goods)) that the quantity of dry matter in a loaf must fall within certain limits, with the result that traditional products from other member states, the dry-matter content of which exceeds the limits laid down, may not be marketed in the netherlands?

' '

5 It should be observed first of all that in the absence of common or harmonized rules on the making and marketing of bread it is for member states to regulate all matters relating to the composition, making and marketing of that foodstuff on their own territory.

6 As the court stated in its judgments of 20 february 1979 in case 120-78 rewe (1979) ecr 649 and of 26 june 1980 in case 788-79 gilli (1980) ecr 2071, obstacles to intra-community trade 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 recognized as being necessary in order to satisfy imperative requirements relating in particular to the protection of public health, fair trading and consumer protection.

7 The extension to imported products of a requirement that they contain a specific amount of dry matter may prevent bread originating in other member states from being marketed in the state concerned. It may make it necessary to vary the method of manufacture according to the place where the bread is to be sold and thus impede the movement of bread lawfully produced in the member state of origin if identical manufacturing standards are not prescribed in that state.

8 In view of the existence of an obstacle which may impede trade between member states it is necessary to consider whether that obstacle may be justified in the public interest, which in this case is concerned with the safe guarding of public health and with the protection of consumers. The observations of the netherlands government state that, in accordance with the warenwet, it is those grounds which form the basis of the broodbesluit.

9 So far as the safeguarding of public health is concerned, the government of the kingdom of the netherlands, which has intervened in the proceedings, has explained that through the adoption of the measures in question it sought to ensure that the population should receive sufficient nutritive matter.

10 It should be noted in this regard that the sets of limits laid down in the broodbesluit in regard to dry-matter content are related to the making of bread in specified sizes and thus bring into play a criterion which has no connexion with the protection of health. What is more, during the oral argument the netherlands government acknowledged that that was not at stake. Therefore that argument cannot be accepted.

11 So far as the protection of consumers is concerned, it is claimed that the broodbesluit introduced a clear delimitation between the various shapes and weights of bread and thus helps to prevent consumers from being misled as to the actual quantity of bread which is being offered to them.

12 However, it must be observed in this connexion that the provision of suitable information for consumers may easily be ensured by appropriate means, such as requiring labelling showing, for example, the weight and specific composition of an imported product. That has also been stated in regard to the facts of the dispute submitted to the national court.

13 Finally, in its observations the netherlands government points to the fact that the netherlands rules give the competent minister wide powers to grant exemptions from the requirement of satisfying the conditions imposed by the broodbesluit.

14 On that matter it is necessary to bear in mind well-established case-law (judgment of 24 january 1978 in case 82-77 van tiggele (1978) ecr 25; judgment of 16 december 1980 in case 27-80 fietje (1980) ecr 3839 to the effect that a measure caught by the prohibition provided for by article 30 of the treaty does not escape that prohibition simply because the competent authority is empowered to grant exemptions, even if that power is freely applied to imported products. Freedom of movement is a right whose enjoyment may not be dependent upon a discretionary power or on a concession granted by the national administration.

15 It is apparent from the foregoing that the obstacle preventing the marketing in the netherlands of bread lawfully produced and marketed in another member state is not justified on any ground of public interest and that therefore the application of the relevant national legislation to imported bread constitutes a measure having an effect equivalent to a quantitative restriction which is prohibited by article 30 of the treaty.

16 The answer to the question raised should therefore be that the concept of measures having an effect equivalent to quantitative restrictions on imports appearing in article 30 of the treaty must be understood as meaning that rules laid down by law in a member state which require the quantity of dry matter in bread to fall within specified sets of limits are covered by that article where they apply to the importation of bread lawfully produced and marketed in another member state.

17 The costs incurred by the commission of the european communities, the government of the federal republic of germany and the government of the kingdom of the netherlands, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nautre of a step in the proceedings before the national court, the decision on costs is a matter for that court.

On those grounds,

The court (second chamber),

In answer to the question submitted to it by the economische politierechter, amsterdam, by judgment of 28 march 1980, hereby rules:

The concept of ' ' measure having an effect equivalent to quantitative restrictions on imports ' ' appearing in article 30 of the treaty must be understood as meaning that rules laid down by law in a member state which require the quantity of dry matter in bread to fall within specified sets of limits are covered by that article where they apply to the importation of bread lawfully produced and marketed in another member state.