CJEC, 2nd chamber, June 26, 1980, No 788-79

1 By order of 26 October 1979, which was received at the Court on 31 October 1979, the pretore, Bolzano, submitted to the Court of justice under article 177 of the EEC treaty a question directed to establishing whether the prohibition, contained in article 51 of decree No 162 of the president of the Italian republic of 12 February 1965 (gazzetta ufficiale No 73 of 23 march 1965), hereinafter referred to as ''decree No 162'', as amended by article 20 of law No 739 of 9 October 1970, on marketing products containing acetic acid not derived from the acetic fermentation of wine constitutes a quantitative restriction on imports or a measure having equivalent effect, referred to in article 30 of the EEC treaty.

2 That question has been raised in the context of criminal proceedings for fraud brought against two traders residing in Bolzano, one of them charged with marketing and holding for the purpose of sale apple vinegar made in Germany containing acetic acid not derived from the acetic fermentation of wine, and the other charged with holding the same product for the purpose of sale, being offences created and made punishable by articles 51 and 94 of decree No 162 which prohibits the use, directly or indirectly, for human consumption of, inter alia, products containing acetic acid not derived from the fermentation of wine, even where those products are imported from abroad.

3 The accused in the main proceedings submitted that the prohibition on importing apple vinegar from the federal republic of Germany and marketing it in Italy constituted a measure having an effect equivalent to a quantitative restriction contrary to article 30 of the EEC treaty and the national judge requested the Court to give a preliminary ruling on the following question:

''Must the expression 'quantitative restrictions on imports and all measures having equivalent effect' contained in article 30 of the treaty establishing the EEC be understood as meaning that the prohibition referred to in article 51 of decree No 162 of the president of the republic of 12 February 1965 on putting on the market products containing acetic acid not derived from the acetic fermentation of wine must be considered as being a quantitative restriction on imports or a measure having equivalent effect?''

4 The national Court is thereby asking for assistance in the matter of interpretation in order to enable it to assess whether a prohibition such as that laid down by article 51 of decree No 162 does or does not come within the category of the quantitative restrictions on imports or measures having equivalent effect referred to in article 30 of the EEC treaty.

5 In the absence of common rules relating to the production and marketing of the product in question it is for member states to regulate all matters relating to its production, distribution and consumption on their own territory subject, however, to the condition that those rules do not present an obstacle, directly or indirectly, actually or potentially, to intra-community trade.

6 It is only where national rules, which apply without discrimination to both domestic and imported products, may be justified as being necessary in order to satisfy imperative requirements relating in particular to the protection of public health, the fairness of commercial transactions and the defence of the consumer that they may constitute an exception to the requirements arising under article 30.

7 However, it appears from the documents in the file on the case that it is not in dispute that, first, apple vinegar contains no injurious substances and is not harmful to health and, secondly, the receptacles containing that vinegar are provided with a sufficiently clear label indicating that it is in fact apple vinegar, thus avoiding any possibility of the consumer's confusing it with wine vinegar.

8 Thus there is no factor justifying any restriction on the importation of the product in question from the point of view either of the protection of public health or of the fairness of commercial transactions or of the defence of the consumer.

9 From that it follows that the provisions relating to the prohibition on the marketing of products containing acetic acid other than that derived from wine as set out in article 51 of decree No 162 do not serve a purpose which is in the general interest and such as to take precedence over the requirements of the free movement of goods, which constitutes one of the fundamental rules of the community.

10 In practice, the principal effect of provisions of this nature is to protect domestic production by prohibiting the putting on to the market of products from other member states which do not anwer the descriptions laid down by the national rules.

11 It appears therefore that a unilateral requirement, imposed by the rules of a member state, prohibiting the putting on to the market of vinegars not produced from the acetic fermentation of wine constitutes an obstacle to trade which is incompatible with the provisions of article 30 of the treaty.

12 Consequently, the answer to the question submitted by the pretore, bolzano, should be that the concept of ''measures having equivalent effect' 'to ''quantitative restrictions on imports'', occurring in article 30 of the EEC treaty, is to be understood as meaning that a prohibition imposed by a member state on importing or marketing vinegar containing acetic acid not derived from the acetic fermentation of wine, and in particular apple vinegar, comes within that provision where the product involved is vinegar lawfully produced and marketed in another member state.

13 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As the 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 (second chamber),

In answer to the question referred to it by the pretore, bolzano, by order of 26 october 1979, hereby rules: