1 BY ORDER OF 20 JANUARY 1982 , RECEIVED AT THE COURT ON 11 FEBRUARY 1982 , THE LANDGERICHT MUNCHEN REFERRED TWO QUESTIONS TO THE COURT ON THE INTERPRETATION OF ARTICLE 30 ET SEQ . OF THE EEC TREATY FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TO ENABLE IT TO DETERMINE THE COMPATIBILITY WITH COMMUNITY LAW OF A PROVISION OF GERMAN LAW ON THE MARKETING IN THE FEDERAL REPUBLIC OF GERMANY OF WINE-BASED BEVERAGES PRODUCED ABROAD ( ARTICLE 32 ( 1 ) OF THE WEINGESETZ ( LAW ON WINE ) OF 14 JULY 1971 , BUNDESGESETZBLATT 1971 , NO 63 , P . 893 ).
2 THE QUESTION WAS RAISED IN PROCEEDINGS BETWEEN THE SCHUTZVERBAND GEGEN UNWESEN IN DER WIRTSCHAFT ( HEREINAFTER REFERRED TO AS ' ' THE SCHUTZVERBAND ' ' ), THE PLAINTIFF IN THE MAIN ACTION , AND THE WEINVERTRIEBS-GMBH IN RELATION TO A BAN ON THE MARKETING IN THE FEDERAL REPUBLIC OF GERMANY OF ITALIAN VERMOUTH THE ALCOHOLIC CONTENT OF WHICH IS LESS THAN 16 % BY VOLUME .
3 ACCORDING TO ITALIAN LAW ( ARTICLE 7 OF DECREE-LAW NO 3 OF 11 JANUARY 1956 , PUBLISHED IN THE GAZZETTA UFFICIALE DELLA REPUBBLICA ITALIANA NO 14 OF 18 JANUARY 1956 AND CONVERTED INTO LAW NO 108 OF 16 MARCH 1956 ), THE ALCOHOLIC CONTENT OF VERMOUTH MARKETED IN ITALY MUST BE AT LEAST 16 % BY VOLUME . NEVERTHELESS BY WAY OF EXCEPTION VERMOUTH WITH AN ALCOHOLIC CONTENT OF LESS THAN 16 % MAY BE PRODUCED IN ITALY PROVIDED THAT IT IS INTENDED FOR EXPORT AND THE LAW OF THE COUNTRY OF DESTINATION IS OBSERVED .
4 THE GERMAN LAW ON WINE IMPOSES NO MINIMUM LIMIT ON THE ALCOHOLIC CONTENT OF VERMOUTH . HOWEVER , PARAGRAPH 32 ( 1 ) THEREOF PROVIDES :
' ' WINE-BASED BEVERAGES PRODUCED ABROAD ( FOREIGN WINE-BASED BEVERAGES ) MAY BE IMPORTED ONLY IF THE WHOLE PRODUCTION HAS TAKEN PLACE IN ONE AND THE SAME STATE ACCORDING TO THE PROVISIONS APPLICABLE THERE AND THE PRODUCT MAY BE MARKETED THERE FOR THE PURPOSE OF BEING CONSUMED IN AN UNALTERED STATE ; . . . ' ' .
5 SINCE THAT PROVISION RESULTS IN A BAN ON THE IMPORTATION INTO THE FEDERAL REPUBLIC OF GERMANY OF ITALIAN VERMOUTH THE ALCOHOLIC CONTENT OF WHICH IS LESS THAN 16 % , THE NATIONAL COURT CONSIDERED IT NECESSARY TO KNOW WHETHER SUCH A BAN CONSTITUTED A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION WITHIN THE MEANING OF ARTICLE 30 OF THE EEC TREATY . IT THEREFORE STAYED THE PROCEEDINGS AND REFERRED THE FOLLOWING QUESTIONS TO THE COURT :
' ' 1 . IS THE INTERPRETATION OF A STATUTORY PROVISION IN MEMBER STATE A , WHEREBY VERMOUTH PRODUCED IN MEMBER STATE B IS NOT MARKETABLE IN MEMBER STATE A BECAUSE IT HAS SLIGHTLY LESS THAN THE MINIMUM ALCOHOLIC CONTENT PRESCRIBED BY LAW IN MEMBER STATE B , COMPATIBLE WITH ARTICLE 30 ET SEQ . OF THE EEC TREATY EVEN THOUGH NO MINIMUM CONTENT FOR DOMESTIC VERMOUTH IS PRESCRIBED IN MEMBER STATE A AND ACCORDINGLY HAD THE VERMOUTH BEEN PRODUCED IN MEMBER STATE A IT WOULD HAVE BEEN FREELY MARKETABLE THERE?
IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE :
2.IS IT STILL COMPABTIBLE WITH ARTICLE 30 ET SEQ . OF THE EEC TREATY IF THE NATIONAL PROVISIONS IN MEMBER STATE B PROVIDE THAT THE VERMOUTH NEED NOT COMPLY WITH THE NATIONAL PROVISIONS OF MEMBER STATE B ON MINIMUM ALCOHOLIC CONTENT IF THE VERMOUTH IS PRODUCED FOR EXPORT TO MEMBER STATE A?
' '
6 IN THE FIRST QUESTION THE NATIONAL COURT ASKS FOR THE CRITERIA OF INTERPRETATION TO ENABLE IT TO DETERMINE WHETHER OR NOT A BAN ON IMPORTING VERMOUTH , THE ALCOHOLIC CONTENT OF WHICH IS LESS THAN THE MINIMUM PRESCRIBED IN THE EXPORTING MEMBER STATE FOR ITS DOMESTIC MARKET , WHEN NO SUCH MINIMUM IS PRESCRIBED FOR MARKETING VERMOUTH PRODUCED IN THE IMPORTING MEMBER STATE , FALLS WITHIN THE CLASS OF QUANTITATIVE RESTRICTIONS ON IMPORT OR MEASURES HAVING AN EQUIVALENT EFFECT REFERRED TO IN ARTICLE 30 OF THE EEC TREATY .
7 IT IS APPARENT FROM THE ARGUMENT BEFORE THE COURT , WHICH HAS NOT BEEN CHALLENGED IN THAT RESPECT BY THE PLAINTIFF IN THE MAIN ACTION , THAT A PROVISION OF THE IMPORTING MEMBER STATE FIXING A MINIMUM DEGREE OF ALCOHOL ONLY FOR IMPORTED VERMOUTH PREVENTS THE MARKETING OF A PRODUCT LAWFULLY MADE IN THE EXPORTING MEMBER STATE , WHEREAS IT IMPOSES NO CONDITION IN RELATION TO THE MINIMUM CONTENT OF ALCOHOL FOR THE MARKETING OF SIMILAR DOMESTIC PRODUCTS .
8 SINCE SUCH A PROVISION AFFECTS ONLY IMPORTED PRODUCTS , IT IS OF A DISCRIMINATORY NATURE .
9 THE FACT THAT THE LAW IN ISSUE REFERS TO THE RULES GOVERNING PRODUCTION IN THE EXPORTING MEMBER STATE DOES NOT AFFECT THE AFORESAID CONCLUSION SINCE THE DISCRIMINATORY NATURE MUST BE DETERMINED SOLELY ON THE BASIS OF THE LAW OF THE STATE WHERE THE MARKETING TAKES PLACE , THAT IS TO SAY , THE IMPORTING MEMBER STATE .
10 THE SCHUTZVERBAND NEVERTHELESS MAINTAINED THAT THE RULE WAS JUSTIFIED ON THE GROUND THAT GERMAN CONSUMERS , IN PARTICULAR THE VERY LARGE NUMBER WHICH VISITS ITALY EACH YEAR , EXPECT ITALIAN VERMOUTH MARKETED IN THE FEDERAL REPUBLIC OF GERMANY TO BE IDENTICAL TO THE VERMOUTH MARKETED IN ITALY AND THAT THEY WOULD THEREFORE BE MISLED BY ITALIAN VERMOUTH THE ALCOHOLIC CONTENT OF WHICH BY VOLUME IS LESS THAN THAT OF THE SAME VERMOUTH DRUNK BY THEM IN ITALY .
11 ALTHOUGH IT IS TRUE THAT SINCE ITS JUDGMENT OF 20 FEBRUARY 1979 IN CASE 120/78 ( REWE ( 1979 ) ECR 649 ) THE COURT HAS REPEATEDLY STATED THAT PROTECTION OF CONSUMERS , IN PARTICULAR , MAY JUSTIFY OBSTACLES TO THE FREE MOVEMENT OF GOODS RESULTING FROM DISPARITIES IN NATIONAL RULES , THE DISCRIMINATORY NATURE OF THE RULE IN ISSUE EXCLUDES APPLICATION OF THAT CRITERION , WHICH CONCERNES ONLY LEGISLATION GOVERNING THE MARKETING OF NATIONAL AND IMPORTED PRODUCTS UNIFORMLY . THEREFORE IN THE PRESENT CASE IT IS NOT POSSIBLE TO PLEAD CONSUMER PROTECTION TO EXCLUDE ARTICLE 30 SINCE THE SAME PROTECTION IS NOT GIVEN IN RELATION TO THE NATIONAL PRODUCTS .
12 THE FIRST QUESTION MUST THEREFORE BE ANSWERED TO THE EFFECT THAT A BAN ON THE IMPORT OF VERMOUTH THE ALCOHOLIC CONTENT OF WHICH IS LESS THAN THE MINIMUM PRECRIBED IN THE EXPORTING MEMBER STATE FOR MARKETING ON ITS DOMESTIC MARKET , WHEN NO SUCH MINIMUM IS PRESCRIBED FOR THE MARKETING OF VERMOUTH PRODUCED IN THE IMPORTING MEMBER STATE , IS TO BE REGARDED AS A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION PROHIBITED BY ARTICLE 30 OF THE TREATY .
13 IN THOSE CIRCUMSTANCES THE SECOND QUESTION DOES NOT CALL FOR A REPLY .
COSTS
14 THE COSTS INCURRED BY THE GOVERNMENTS OF THE FRENCH AND ITALIAN REPUBLICS AND BY 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 QUESTIONS REFERRED TO IT BY THE LANDGERICHT MUNCHEN BY ORDER OF 20 JANUARY 1982 , HEREBY RULES :
A BAN ON THE IMPORT OF VERMOUTH THE ALCOHOLIC CONTENT OF WHICH IS LESS THAN THE MINIMUM PRESCRIBED IN THE EXPORTING MEMBER STATE FOR MARKETING ON ITS DOMESTIC MARKET , WHEN NO SUCH MINIMUM IS PRESCRIBED FOR THE MARKETING OF VERMOUTH PRODUCED IN THE IMPORTING MEMBER STATE , IS TO BE REGARDED AS A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION PROHIBITED BY ARTICLE 30 OF THE TREATY .
