CJEC, November 10, 1982, No 261-81

The court

1 By order dated 16 september 1981 which was received at the court on 25 september 1981 the landgericht (regional court) hamburg 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 eec treaty in order to enable it to decide whether a requirement laid down by belgian legislation as to the shape of packaging of margarine sold by retail (royal decree of 2 october 1980, moniteur belge of 14 october 1980, p. 11845) is compatible with community law.

2 That question was raised in an action between a german seller and a belgian buyer concerning a contract to supply margarine. By that contract, which was made on 23 july 1980, the seller warranted that the margarine which it supplied and which was packaged in plastic tubs having the shape of a truncated cone could be marketed in belgium by virtue of the provisions of community law. At the time when the contract was signed the legislation applicable in belgium provided that margarine could not be imported or held in stock for the purpose of sale except in the form of cube-shaped blocks. The goods in question did not satisfy that requirement.

3 That legislation was replaced by the royal decree of 2 october 1980 which prohibits the retail of margarine where each block or its external packaging is not cube-shaped.

4 After being informed by the competent authorities that the marketing of margarine packed in tubs having the shape of a truncated cone was still prohibited the defendant company in the main action refused to accept deliveries under the contract. The plaintiff did not accept its refusal and sued the defendant before the landgericht hamburg.

5 The defendant contended before that court that the belgian royal decree under which margarine may be marketed only in cube-shaped packaging was not contrary to article 30 of the eec treaty for the reason that belgium could properly adopt that decree because it was necessary to distinguish correctly between butter and margarine sold by retail. The defendant therefore considered that it was not under the duty to fulfil the obligations which it had under the contract with the plaintiff to accept and pay for the margarine which it ordered.

6 The landgericht hamburg does not exclude the possibility that the belgian rules, which apply only to the retail trade, may conceal a measure having an effect equivalent to a quantitative restriction on imports. It considers that such rules may make it more difficult to market margarine lawfully packed in another member state in containers having the shape of a truncated cone.

7 So by its order of 16 september 1981 the landgericht hamburg stayed the proceedings and submitted the following question to the court:

' ' Is there a prohibited measure having an effect equivalent to a quantitative restriction on imports within the meaning of article 30 of the treaty establishing the european economic community if it is prohibited, as in article 8 of the belgian royal decree of 2 october 1980 on the manufacture and marketing of margarine and edible fats, to market margarine or edible fats if each block or its external packaging is not cube-shaped and because of that prohibition margarine packaged in a different shape in another member state in accordance with the provisions of that state has to be specially packaged in cube-form in order for it to be imported into the kingdom of belgium?

' '

The jurisdiction of the court

8 The belgian government points out that the importation of margarine into belgium by the defendant in the main action is already the subject of criminal proceedings in belgium and that the court should therefore inquire whether the dispute which gave rise to the request for a preliminary ruling is a genuine dispute. In this regard the belgian government recalls the judgment of the court of 16 december 1981 in case 244-80 foglia (1981) ecr 3045.

9 In this instance there is nothing in the file on the case which provides grounds for doubting that the dispute is genuine. Therefore there is no reason for concluding that the court has no jurisdiction.

The substance of the case

10 The question submitted by the landgericht seeks to ascertain whether the application in one member state to margarine imported from another member state of legislation which does not allow that product to be retailed unless packaged in a particular form, in this case in cube-shaped blocks or packs, constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of article 30.

11 The defendant in the main action and the belgian government maintain that the belgian royal decree may not be classified as a measure equivalent to a quantitative restriction. The previous judgments of the court concerned only a prohibition against the importation and marketing of products arising from national legislation on product quality, which was not the case in this instance because it was sufficient to adapt the presentation of the product in order to market it. Furthermore the form of packaging does not constitute a real obstacle to trade. In any case, even if sale by retail were prohibited, there are alternative possibilities such as the wholesale trade.

12 In this regard it must be recalled, as the court has repeatedly held since its judgment of 20 february 1979 in case 120-78 rewe (1979) ecr 649, that in the absence of common rules relating to the marketing of the products concerned, obstacles to free movement within the community resulting from disparities between the national laws must be accepted in so far as such rules, applicable to domestic and to imported products without distinction, may be recognized as being necessary in order to satisfy mandatory requirements relating inter alia to consumer protection. It is also necessary for such rules to be proportionate to the aim in view. If a member state has a choice between various measures to attain the same objective it should choose the means which least restricts the free movement of goods.

13 Although the requirement that a particular form of packaging must also be used for imported products is not an absolute barrier to the importation into the member state concerned of products originating in other member states, nevertheless it is of such a nature as to render the marketing of those products more difficult or more expensive either by barring them from certain channels of distribution or owing to the additional costs brought about by the necessity to package the products in question in special packs which comply with the requirements in force on the market of their destination.

14 In this case the protective effect of the belgian rules is moreover demonstrated by the fact, affirmed by the commission and not disputed by the belgian government, that despite prices appreciably higher than those in some other member states there is practically no margarine of foreign origin to be found on the belgian market.

15 Therefore it may not be claimed that the requirement of special packaging for the product is not an obstacle to marketing.

16 Furthermore, the belgian government contends that the requirement of the cubic form is necessary for the protection of the consumer in order to prevent confusion between butter and margarine. It states that the cubic form used for the sale of margarine is ' ' rooted ' ' in the habits of belgian consumers and is therefore an effective safeguard in that respect.

17 It cannot be reasonably denied that in principle legislation designed to prevent butter and margarine from being confused in the mind of the consumer is justified. However, the application by one member state to margarine lawfully manufactured and marketed in another member state of legislation which prescribes for that product a specific kind of packaging such as the cubic form to the exclusion of any other form of packaging considerably exceeds the requirements of the object in view. Consumers may in fact be protected just as effectively by other measures, for example by rules on labelling, which hinder the free movement of goods less.

18 At the hearing the representative of the belgian government also argued that belgium is bound by article 11 (2) 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 (official journal 1979, l 33). He contended that that provision of community law governs the way in which a pack of margarine or butter may be marked and prevents the belgian government from prescribing sufficiently large markings to warn the public of a change affecting its habits.

19 The article in question provides that the particulars which must appear on the packaging must ' ' be easy to understand and marked in a conspicuous place in such a way as to be easily visible, clearly legible and indelible ' '. That provision authorizes and requires the member states to adopt the measures necessary to inform the consumer while leaving them considerable scope for the exercise of discretion. It by no means prevents the belgian government from adopting appropriate rules as to labelling applicable in a uniform manner to margarine produced in belgium and in other member states.

20 The reply to the question submitted to the court should therefore be that the application in one member state to margarine imported from another member state and lawfully produced and marketed in that state of legislation prohibiting the marketing of margarine or edible fats where each block or its external packaging does not have a particular shape, for example the shape of a cube, in circumstances in which the consumer may be protected and informed by means which hinder the free movement of goods to a lesser degree constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of article 30 of the eec treaty.

Costs

21 The costs incurred by the belgian government and the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court

In answer to the question submitted to it by the landgericht hamburg by order of 16 september 1981, hereby rules:

The application in one member state to margarine imported from another member state and lawfully produced and marketed in that state of legislation prohibiting the marketing of margarine or edible fats where each block or its external packaging does not have a particular shape, for example the shape of a cube, in circumstances in which the consumer may be protected and informed by means which hinder the free movement of goods to a lesser degree constitutes a measure having an effect equivalent to a quantitative restriction within the meaning of article 30 of the treaty.