1. 

In this reference for a preliminary ruling the Court is asked once again to determine the content and scope of the prohibition laid down in Article 30 of the EEC Treaty. In this case it is a matter of deciding whether a number of national provisions on the marketing of beer which are applicable to both domestic and imported products may, directly or indirectly, give rise to restrictions on imports.

The facts are as follows, the private company De Kikvorsch Groothandel-Import-Export BV (hereinafter referred to as “De Kikvorsch”), which has its registered office at Deest in the municipality of Druten (in the Netherlands), was summoned to appear before the Economische Politierechter [Magistrate dealing with commercial offences] in the Arrondissementsrechtbank [District Court], Arnhem, to reply to various charges. It was charged inter alia with importing from the Federal Republic of Germany and marketing (or at least causing to be marketed) in the Netherlands beer described as “Berliner Kindl Weiße”, which did not comply with two requirements laid down by the Netherlands legislation. The degree of acidity (pH) of the beer was 3.2 and was therefore lower than the minimum (3.9) provided for in Article 6 (4) of the Bierverordening [Beer Order] of 1976 (Verordeningenblad Bedrijfsorganisatie of 31 August 1976, No 36); in addition, it was packed in receptacles on which the labels stated the extract strength of the original wort, contrary to the prohibition laid down in Article 7 (3) of the Bierverordening.

By a judgment dated 28 December 1981, the Netherlands magistrate suspended the criminal proceedings and requested the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty on the question whether the application of the abovementioned provisions to beer which is imported from another Member State, where it is lawfully produced and marketed, is to 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”.

2. 

For a proper understanding of the case it is necessary to make a few observations on the Netherlands legislation. It must be borne in mind that the questions submitted by the national judge, although couched in general terms by reference to Article 30, are in fact intended to establish whether certain national rules on the marketing of beer are compatible with the Treaty. But — and this is the point — those rules are not to be considered per se, that is to say by reference to their actual content; on the contrary, they serve simply as the abstract parameter by which the actual scope of the Community rules may be measured. That is in fact a device; and, I might add, the device is not uncommon. The national courts frequently have recourse to a reference for a preliminary ruling in cases which would be more satisfactorily dealt with by means of direct action against a Member State for failing to fulfil the obligations imposed by the Treaty or by secondary legislation; by thus involving this Court in the process of surrogation they may usurp powers and initiatives which are in principle the province of the Commission.

The substitution of the courts for the Commission, although it has the advantage of providing an opportunity for intervention by the Court and therefore of promoting respect for the law, has at least two disadvantages. On the one hand, it gives rise to decisions which are based on the special jurisdiction provided for in Article 177 and are therefore not as forceful as judgments in direct actions under Articles 169, 170 and 171. On the other hand, it prevents the Court, which in preliminary rulings is bound by the question referred to it, from examining the national provisions of which the lawfulness is in doubt, in the context of the rules of which they form part.

I shall now return to this case and examine the Netherlands rules in question. The Bierverordening cited above was adopted by the Produktschap voor Bier [Beer Production Board] (whose authority in this sphere derives from the Wet op de Bedrijfsorganisatie [Law on industrial organization] and the Instellingswen; Produktschap voor Bier [Law establishing the Produktschap voor Bier]) in order to implement the decision of the Committee of Ministers of the Benelux Economic Union of 31 August 1973. That decision, designed to harmonize national laws on beer, contains inter alia a prohibition on marketing beer with a degree of acidity (pH) lower than 3.9, but does not prohibit indications of the strength of the original wort.

As I have said, two provisions of the Bierverordening 1976 are of importance in this case: Article 6 (4) and Article 7 (3). Article 6 (4) provides that: “The acidity (pH) of the beverages referred to in this regulation, other than the beverage referred to in Article 1 (j)” — that is to say, sour beer — “must be higher than 3.9.” Article 7 contains two prohibitions: under Article 7 (3), it is prohibited to state the extract strength of the original wort of the beer on the prepackaging or on the label, and under Article 7 (2) it is prohibited to market in the Netherlands beer of which the strength of the original wort does not fall within one of the categories referred to in Article 7 (1). Under Article 9 (1) (b), the packaging must nonetheless give details of the strength of the original wort. However, instead of being expressed in figures, the strength is to be indicated by reference to the category to which it belongs and therefore in the form of symbols. Thus “Category S” applies to beer where the strength of original wort is at least 15.5; “Category I” applies to beer where the strength of the original wort is 11 to 13.5; “Category II” applies to beer where the strength of the original wort is 7 to 9.5, and “Category III” applies to beer where the strength of the original wort is 1 to 4.

Finally, while it is forbidden under Netherlands legislation to state the specific strength of the original wort on the packaging, a statement of the alcoholic content is required on the packaging of alcoholic beverages (including beer, obviously) which are supplied to individuals in the course of trade for consumption otherwise than on the premises. That is laid down in Article 14 (1) (b) of the Drank- en Horecawet [Law on beverages and cafés, hotels and restaurants] of 7 December 1964 (Staatsblad, 386) most recently amended by the Law of 14 December 1977 (Staatsblad, p. 675).

3. 

There is no doubt that rules such as those described above are capable of interfering, at least indirectly, with intra-Community trade. Indeed, the provision that beer may not be marketed if it has a degree of acidity lower than 3.9 constitutes a condition unknown in any other Member State and prevents entry into the national market of more acidic imported beer. It is clear that the prohibition of a statement in figures of the strength of the original won is capable of impeding imports of beer of which the strength is traditionally stated on the packaging. The producer outside the Netherlands who wishes to avoid that prohibition will in fact be obliged to pack beer to be marketed within the Netherlands in a different way, in accordance with the Netherlands legislation.

Member States are clearly free to regulate the production, distribution and consumption of beer within their respective territories. They retain that power until there are Community rules on the subject. I would point out that on 26 June 1970 the Commission submitted to the Council a proposal for a directive on the harmonization of the rules on beer (Gazzetta Ufficiale 1970, C 105, p. 17 ( 2 )), but that proposal (which in any event contained no rules on the minimum level of acidity or the statement of the strength of the original wort on the packaging) has since been withdrawn.

Nevertheless, the freedom of the Member States is limited by Article 30 of the EEC Treaty, as has been confirmed by the Court of Justice on several occasions. Thus in its judgment of 26 June 1980 in Case 788/79, Gilli and Andres ([1980] ECR 2071), the Court stated that: “In the absence of common rules relating to the production and marketing of the product in question, it is for the 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” (paragraph 5 of the Decision). Similar considerations are set out in paragraph 5 of the judgment of 19 February 1981 in Case 130/80, Kelderman ([1981] ECR 527).

In order to escape the prohibition laid down in Article 30, national rules such as those in the Netherlands would have to fulfil the conditions contained in Article 36, in particular that concerning protection of health, or meet one of the mandatory requirements — fairness of commercial transactions or protection of the consumer — which according to the case-law of the Court can override that prohibition. In that regard, I refer to the judgments of 20 February 1979 in Case120/78, REWE-Zentral ([1979] ECR 649), of 26 June 1980 in Case 788/79, Gilli, cited above, and of 19 February 1981 in Case 130/80, Kelderman, also cited above. It must then be considered whether in a case such as this either of the two exceptions can be applied.

4. 

I shall begin by examining the prohibition of the marketing of beer with a degree of acidity less than 3.9, and I must point out that the lower the degree of acidity — known as the pH — the more sour the beer.

Economische Politierechter, who is somewhat reticent in giving information, does not state how the rules in question might be justified. In paragraph 5 of the judgment making the reference he merely states that the answer to the questions submitted to the Court of Justice “necessitates the interpretation of Article 30 and possibly of Article 36 of the EEC Treaty”. He makes no further comment. On the other hand, the parties — the Netherlands Government, De Kikvorsch, the Commission and the French Government — have discussed the exceptions cited at great length in the written procedure and even more so during the oral procedure. On the basis of the information provided by them and the evidence given by technical experts in the main action, I am inclined to the view that Article 6 (4) of the Bierverordening 1976 is not inspired by the need to protect the health of humans and therefore cannot be justified under Article 36.

As appears from the transcript of the sitting of 19 October 1981, a technical expert from the Produktschap voor Bier stated that: “In order to discover whether the lower degree of acidity has any effect on the conservation of the beer ...” — and therefore indirectly on the health of the consumer — “it would be necessary to carry out a more detailed analysis”. At the same sitting another expert stated that in the Netherlands legislation the degree of acidity was established by reference to the beer traditionally produced and marketed in the Netherlands and that “the protection of public health did not play any role in the determination of the degree of acidity”.

For its part, the Netherlands Government stated in its written observations that the definition of the pH levels adopted by the Committee of Ministers of the Benelux Economic Union, as set out in the Bierverordening 1976, was based on the traditional idea of how beer should taste. On the other hand it made no reference to any link between the definition of the degree of acidity and conservation of the product. During the oral procedure, the Netherlands Government further clarified its position on that point, stating that the rule on the degree of acidity had not the slightest connection with the protection of health.

Finally, the Commission has consistently maintained, both in its written observations and during the oral procedure, that the rule in question was adopted by the Netherlands authorities in order to protect the types of beer which are traditionally produced and marketed in the Benelux countries. In support of that it referred inter alia to the view expressed in a letter from the Director of the Institut CIVO-Analyse TNO dated 18 November 1981, submitted to the Economische Politierechter, to the effect that: “The determination of a pH of 3.9 in Article 6 of the Bierverordening is intended in particular to ensure the continued production of a specific type of beer by using a yeast which is as pure as possible. In this way it is possible to prevent the formation of too much acidity, which would not correspond to the desired type of beer. At the same time a measure of protection is furnished against any adulteration which might result in pH values lower than 3.9.”

Apart from that information obtained from the inquiry, the fact that it is impossible to rely on protection of health as justification is demonstrated in a way by the Netherlands legislation itself, which permits the marketing of beer with acidity levels lower than 3.9 provided that they comply with a number of conditions and are given an special description. Thus Article 1 (j) of the Bierverordening 1976 states that sour beer means “The beverage which is obtained: either 1. by spontaneous fermentation with an extract strength of the original wort of at least 11% Plato, a total acidity of at least 30 milli-equivalents NaOH per litre, and a content of volatile acids of at least 2 milli-equivalents NaOH per litre, and which must be prepared from a wort of which at least 30 per cent of the total weight of the processed raw materials containing starch and sugar consists of wheat; or 2. by surface fermentation and with the same acidity and extract strength of the original wort as the beer under (j) 1.” According to Article 9 (4), the said beverage “must be described by one of the following descriptions; ‘Gueuze’‘Gueuze-Lambic’, ‘Lambic’” or, “where cherries, cherry juice or cherry extract is added in the preparation, ‘Kriek-Lambic’.”

Two observations should be made on those provisions. The first is self-evident: the provision on the minimum degree of acidity of beer was adopted solely to ensure that beer produced and marketed in the Netherlands (and in the other Benelux countries) should conform to the beer which is traditionally produced and consumed there. In that connection it should be stressed that beer can be produced in two ways: by alcoholic fermentation with the use of yeast (which produces beer with a pH of at least 3.9) and mixed acidic fermentation (which produces beer with acidity levels lower than 3.9). It need hardly be stated that in the the Netherlands the former process is preferred. The second observation relates to the “protection of health”. It appears that the level of acidity may, at least theoretically, affect the conservation of the product, but it is equally clear that the parameter of 3.9 is not in itself justified on the basis of that consideration. Other appreciably lower levels are equally capable of ensuring the conservation of the product and therefore the health of consumers.

It is also necessary to consider — and this is the second of the two factors in the light of which Article 6 (4) of the Bierverordening 1976 might in principle be considered lawful — whether the prohibition of the marketing of beers other than sour beers having a pH lower than 3.9 may be justified on the ground of the protection of the consumer. The Notherlands Government raised that argument. In its opinion, as I said, the Bierverordening 1976, which lays down generally the characteristics of beer (including the minimum degree of acidity.) and in particular the requirements (and special descriptions) of sour beers, is intended simply to define the more common types of beer in the Benelux countries. Apart from sour beers, the type of beer normally produced in the Netherlands by fermentation using yeast has a degree of acidity of at least 3.9. By prohibiting, albeit with the limited exceptions set out above, the marketing of more sour beers, the Netherlands autorities intend ultimately to protect the habits of the Netherlands consumers. Those habits have existed for a very long time and deserve the greatest respect; however, they certainly cannot be regarded as falling within the category of mandatory requirements the protection of which according to the case-law of the Court justifies certain restrictions on intra-Community trade. Moreover, not even the representative of the Netherlands Government has gone so far as fully to support such an extreme view. It therefore seems to me that the prohibition in question clearly constitutes a measure having an effect equivalent to a quantitative restriction on imports.

The French Government has adopted a different approach. It points out that the Netherlands rules permit the production and marketing of sour beers but requires that they should be described in a different way: from that it may in its view be inferred that the heart of the problem submitted by the Economische Politierechter concerns the definition of the product known as “beer”. That is a shrewd observation. The problem of determining what is meant by “beer” exists and will continue to exist until the national rules in that sector have been harmonized. Nevertheless, the question put by the magistrate making the reference does not refer to that problem, nor in my opinion does it necessarily require that problem to be dealt with. The Netherlands Government expressed that opinion and I am entirely in agreement with it.

5. 

I now come to the second part of the question submitted, that is to say whether the prohibition of the statement on the prepackaging of beer or label thereon of the strength of the EEC Treaty. The Netherlands Government does not dispute that such a rule may indirectly impede imports, but maintains that it is justified on the ground of protection of the consumer. It is necessary to prevent the consumer from confusing the strength of the original wort with the alcoholic strength and thus making a mistake as to one of the essential characteristics of the product. A confusion of that kind is in fact possible because, as I have said, the Netherlands legislation, unlike that of the other Member States (I have in mind the German legislation, for example), provides that the alcoholic strength is to be stated on the packaging of the beer.

That argument is in itself valid. A State must be entitled to adopt specific rules applicable to both domestic and imported products, designed to prevent the consumer from being misled. Moreover, on 18 December 1978 the Council adopted Directive 79/112/EEC 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, p. 1), precisely in order to lay down rules on an important aspect of economic life for the protection of the interests of the consumer.

However, there are limits to the measures which may be adopted by the Member States even in a sector such as this which has not been harmonized. They may be regarded as lawful only if they go no further than is necessary to attain the objective — in this case the protection of the consumer — which they are intended to achieve. The Court of Justice has most recently considered that question in its judgment of 9 December 1981 in Case 193/80, Commission v Italy ([1981] ECR 3019). That case concerned the question whether an Italian rule which prohibited the marketing and importation of vinegars of agricultural origin other than those derived from the acetic fermentation of wine and restricted the designation “vinegar” to wine-vinegar was compatible with Article 30 of the Treaty. The Court ruled that it was not, but considered that the Italian Government was entitled to protect Italian consumers who “had become accustomed to the term ‘aceto’ being used in commerce for wine-vinegar alone”, by means other than a prohibition on marketing, and “in particular by the compulsory affixing of suitable labels giving the nature of the product sold and containing a description or additional information specifying the type of vinegar offered for sale” (paragraph 27 of the Decision).

Let us now apply that principle to the facts of this case. It is apparent that the consumer can be protected against the risk of confusion between the strength of the original wort and the alcoholic content without prohibiting the marketing of products whose labels state the strength of the original wort. It is in my opinion sufficient for such a statement to be clearly set out. In other words, it must be clearly identifiable by an individual and easily distinguished from the reference to the alcoholic strength.

6. 

For all those considerations, I propose that the Court should answer the questions submitted to it by the Economische Politierechter in the Arrondissementsrechtbank, Arnhem, by judgment of 28 December 1981 in the criminal proceedings against De Kikvorsch as follows: “A prohibition on marketing or causing to be marketed beer with a degree of acidity (pH) lower than 3.9 and on showing the strength of the original wort of the beer on the prepackaging or label falls within the concept of ‘measures having an effect equivalent to quantitative restrictions on imports’ contained in Article 30 of the EEC Treaty. That applies even where the laws of a Member State permit the marketing of beer with a lower degree of acidity (the so-called ‘sour beers’) subject to the condition that they display certain intrinsic characteristics and comply with certain requirements as to packaging.”