Ministere Public v. Gerard Deserbais (Case 286/86) Before the Court of Justice of the European Communities ECJ

Transcription

1 Ministere Public v. Gerard Deserbais (Case 286/86) Before the Court of Justice of the European Communities ECJ (Presiding, Lord Mackenzie Stuart C.J.; Bosco, Due, Moitinho de Almeida and Rodriguez Iglesias PP.C.; Koopmans, Everling, Bahlmann, Galmot, Kakouris, Joliet, O'Higgins and Schockweiler JJ.) Sir Gordon Slynn, Advocate General. 22 September 1988 [FN1] Reference from France by the Cour d'appel (Court of Appeal), Colmar, under Article 177 EEC. Trade names. Designation of origin. For the purposes of Article 30 EEC a designation of origin or a geographical description must designate a product from a specified geographical area. [9] FN1 The judgment in this case has been translated by us. The Opinion of the Advocate General was in English in the original. The ruling of the Court was taken from the English text as published in the Official Journal.--Ed. Trade names. Designation of origin. Cheese. The term 'Edam' applied to cheese is a generic or trade name for a type of cheese and not a designation of origin. [9] Food. Standards. Trade names. Cheese. There are at present no common Community rules governing the names of different types of cheese. Therefore a member-state is entitled to require that national cheese producers in order to use a particular name for their cheese should observe a traditional minimum fat content. [11]

2 Food. Standards. Trade names. Cheese. Imports. Cheese bearing a generic name (in casu, Edam) and manufactured in and according to the quality standards of one member-state may not be refused entry or marketing in another member-state merely because it has a different fat content, so long as the consumer is adequately informed of its variance from the national norm. [12] Treaties. Effect. Community law and international law. The purpose of Article 234(1) EEC is to ensure, in accordance with the principles of international law, that application of the EEC *517 Treaty does not affect the duty of member-states to observe the rights of non-member countries under a prior treaty and to fulfil their corresponding obligations. [17] Attorney-General v. Burgoa (812/79) [1980] E.C.R. 2787, [1981] 2 C.M.L.R. 193, reaffirmed. Treaties. Effect. Imports. If the rights of non-member States are not in issue, a member-state cannot rely on the provisions of a prior treaty, even a multilateral convention, in order to justify restrictions on the marketing of products from another member- State if the marketing is protected by the EEC rules on free movement of goods [18] The Court interpreted Article 30 EEC in the context of the sale in France of German Edam cheese having a fat content of 34.3 per cent., French law requiring Edam cheese to have a minimum fat content of 40 per cent. as required by the Stresa Convention 1951 to which France, Denmark, Italy and the Netherlands are the only EEC States to be party, to the effect that 'Edam' is a generic term and not a designation of origin, that lawfully made German Edam cheese cannot be refused circulation in France because of fat content so long as it is clearly labelled as such (which the referring court found was the case), that the FAO/WHO Codex Alimentarius was advisory only, that the Stresa Convention could only override Article 30 EEC if the rights of non-eec Contracting Parties were involved, which was not the case here, and that therefore the French prohibition on the German Edam infringed Article 30 and the prosecution based on it was unlawful. Representation Maitres Merckel, Ambach et associes, of the Strasbourg Bar, in the written proceedings, and Maitre P. Peguet, in the oral proceedings, for the defendant/appellant. Peter Kalbe, Legal Adviser to the E.C. Commission, in the written proceedings, and C. Durand, of the Legal Department of the E.C. Commission, in the oral proceedings, for the Commission as amicus curiae. E. F. Jacobs, Secretary General at the Ministry for Foreign Affairs, in the written

3 proceedings, and M. Fiestra, in the oral proceedings, for the Dutch Government as amicus curiae. The following cases were referred to in the judgment: 1. Re Sparkling German Wines and Brandies: E.C. Commission v. Germany (12/74), 20 February 1975: [1975] E.C.R. 181, [1975] 1 C.M.L.R Gaz:12/74 2. Attorney-General v. Burgoa (812/79), 16 December 1980: [1980] E.C.R. 2787, [1981] 2 C.M.L.R Gaz:812/79 *518 The following further cases were referred to by the Advocate Geneal: 3. Conegate Ltd. v. H.M. Customs and Excise (121/85), 11 March 1986: [1986] E.C.R. 1007, [1986] 1 C.M.L.R Gaz:121/85 4. Miro BV (182/84), 26 November 1985: [1985] E.C.R. 3731, [1986] 3 C.M.L.R Gaz:182/84 5. Re Purity Requirements for German Beer: E.C. Commission v. Germany (178/84), 12 March 1987: [1988] 1 C.M.L.R Gaz:178/84 6. Procureur du Roi v. Dassonville (8/74), 11 July 1974: [1974] E.C.R. 837, [1974] 2 C.M.L.R Gaz:8/74 7. Rewe-Zentral AG v. Bundesmonopolverwaltung fur Branntwein (120/78), 20 February 1979: [1979] E.C.R. 649, [1979] 3 C.M.L.R Gaz:120/78 8. E.C. Commission v. Italy (193/80), 9 December 1981: [1981] E.C.R Gaz:193/80 9. Prantl (16/83), 13 March 1984: [1984] E.C.R. 1299, [1985] 2 C.M.L.R Gaz:16/ Re the Use of Champagne-Type Bottles: E.C. Commission v. Germany (179/85), 4 December 1986: [1988] 1 C.M.L.R Gaz:179/85 The following additional cases were referred to in argument: 11. Fabriek voor Hoogwaardige Voedingsprodukten Kelderman BV (130/80), 19 February 1981: [1981] E.C.R Gaz:130/ Re Italian Customs Duties on Radio Valves: EEC Commission v. Italian Government (10/61), 27 February 1962: [1962] E.C.R. 1, [1962] C.M.L.R Gaz:10/ Jongeneel Kaas BV v. the State (Netherlands) and Stichting Centraal Orgaan Zuivelcontrole (237/82), 7 February 1984: [1984] E.C.R. 483, [1985] 2 C.M.L.R. 53. Gaz:237/ Re Inspection Fees on Imported Plants: E.C. Commission v. Netherlands (89/76), 12 July 1977: [1977] E.C.R. 1355, [1978] 3 C.M.L.R Gaz:89/ Fietje: (27/80), 16 December 1980: [1980] E.C.R. 3839, [1981] 3 C.M.L.R Gaz:27/80 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Opinion of the Advocate General (Sir Gordon Slynn)

4 Pursuant to the International Convention on the Use of Designations of Origin and Names for Cheeses, 'the Stresa Convention', of 1 June 1951, to which inter alia France and the Netherlands are parties but to which the Federal Republic of Germany is not, French legislation prohibits the marketing of cheese under the appellation 'Edam' unless it has a minimum dry-matter content of 52 per cent. and a fat content of 40 per cent. Gerard Deserbais, the manager of the French company Fromex Sarl imported into France cheese originating in the Federal Republic of Germany which had a dry-matter content of 50.4 per cent. and a fat content of 34.3 per cent. That cheese was prepacked and labelled (in French): German Edam cheese Fat content 30% Imported by Fromex, Strasbourg In respect of that importation, he was prosecuted and convicted of passing off ('usurpation d'une denomination') liable to mislead the buyer as to the nature and inherent qualities of the goods concerned. He appealed to the Court of Appeal, Colmar, on the basis that Community law allowed him to import the cheese into France under the appellation 'Edam' because it was lawfully manufactured and marketed under that name in the Federal Republic of Germany. To resolve the issue, the Court of Appeal, Colmar, referred the following question to the Court of Justice for a preliminary ruling by an order of 30 October 1986: Must Article 30 et seq. of the EEC Treaty be interpreted as meaning that national legislation which, for the purpose of protecting a trade name, (i) restricts that trade name to national products or those of another State, to the exclusion of the products of other member-states; (ii) makes the right to use the trade name of a cheese imported from a member- State conditional on the observance of a minimum fat content, even though the imported cheese is lawfully and traditionally produced and marketed in its country of origin in accordance with different technical and quality requirements constitutes a quantitative restriction on imports or a measure having equivalent effect thereto? Mr. Deserbais relies on Article 30 as interpreted in the Court's case law on the free movement of goods, asserts that consumers were adequately protected by the information on the label, and submits that the question should be answered along the lines that Article 30 EEC prohibits a member-state from applying to cheese of the same type imported from another member-state national *520 rules which allow a trade name to be used for that cheese only if a condition stipulating a minimum fat content is complied with, where the imported cheese is lawfully and traditionally produced according to different technical and quality requirements and marketed under the same name in its State of origin and where appropriate information of purchasers is ensured. The Dutch Government contends that, although the appellation 'Edam' is now applicable to cheese manufactured outside the Edam region of the Netherlands it must be confined to cheese complying with a certain technical description and in particular having a fat content of at least 40 per cent. It argues that both the

5 Stresa Convention and the Codex Alimentarius represent an international effort to guarantee the maintenance of these characteristics for cheese bearing that name. It contends that respect for the traditional production techniques fixed and accepted at the international level for Edam cheese requires the member-states of the EEC to be able to prohibit imports from other member-states of cheese not complying with such techniques, even if the consumer is informed of the difference of composition of the product. It therefore proposes that the question should be answered along the lines that Community law does not prohibit national provisions which allow a name to be used for cheese only if certain characteristics are complied with such as those stipulated inter alia in the Stresa Convention and the Codex Alimentarius. The Commission adopts an interpretation of the law on free movement of goods similar to Mr. Deserbais's and, in relation to the effect of international agreements, it refers to Article 234 of the Treaty, Case 812/79 Burgoa [FN2] and Case 121/85 Conegate, [FN3] in support of its contention that agreements concluded prior to the entry into force of the EEC Treaty cannot be relied on in dealings between member-states in order to justify restrictions on intra- Community trade. Therefore, it contends, no reliance can be placed on the Stresa Convention to exclude the application of the provisions of Article 30. It submits accordingly that the question should be answered along the lines that national rules which, for the purpose of protecting a trade name, prohibit the marketing of cheese having a different fat content from that stipulated are to be regarded as measures having an effect equivalent to a quantitative restriction contrary to Article 30 of the Treaty where such cheese has been imported from another member-state where it has been lawfully and traditionally marketed under the same name but in accordance with different quality requirements, and where the labelling and packaging clearly indicate its true composition and origin. FN2 [1980] E.C.R *521 At 2802, [1981] 2 C.M.L.R. 193 At 211. FN3 [1986] E.C.R At , [1986] 1 C.M.L.R. 739 At 755. It is well established in the case law of the Court that a marketing restriction which operates by way of a restriction on the use of a name, rather than directly on the product, can nonetheless be a restriction for the purposes of Article 30 EEC: see e.g. Case 182/84 Miro [FN4] and Case 178/84 E.C. Commission v. Germany ('the Beer Case'). [FN5] FN4 [1985] E.C.R. 3731, [1986] 3 C.M.L.R FN5 [1988] 1 C.M.L.R National legislation such as the French legislation in issue in the present case does restrict or may restrict the sale of goods imported from other member- States, which brings it within the definition of a measure having an effect equivalent to a quantitative restriction on imports laid down by the Court in its

6 case law, particularly Case 8/74 Dassonville. [FN6] Accordingly, it is prohibited by Article 30 EEC unless it falls within one of the exceptions in Article 36 or, if applicable, one of the 'mandatory requirements' recognised by the Court in Case 120/78 Rewe v. Bundesmonopolverwaltung fur Branntwein [FN7] (the Cassis de Dijon Case) and subsequent cases. FN6 [1974] E.C.R. 837, [1974] 2 C.M.L.R FN7 [1979] E.C.R. 649, [1979] 3 C.M.L.R As the Dutch Government admits, 'Edam' long ago ceased to be reserved for cheese made in the Edam region of the Netherlands, and so it cannot be regarded as a designation of origin. Indeed in the Stresa Convention 'Edam' is not classified among the 'designations of origin' but only among the 'names' of cheeses for which a lesser degree of protection is provided. It is now a name for a type of cheese but no longer with any geographical limitation on its place of production. Decisions of the Court have laid down that member-states are not allowed to restrict a generic term to one national variety alone to the detriment of other varieties lawfully produced in other member-states: Case 12/74 E.C. Commission v. Germany [FN8] ('Sekt' and 'Weinbrand'), Case 193/80 E.C. Commission v. Italy [FN9] ('vinegar'), Miro ('gin' or 'genever') and the Beer Case. It is difficult to say when a name which was originally specific to an area becomes a generic name, but it seems on all the evidence that 'Edam' has now become a generic name and falls within the rule just stated. In any event as I see it 'Edam' does not fall within the provisions of Article 36 EEC relating to the protection of industrial and commercial property. FN8 [1975] E.C.R. 181, [1975] 1 C.M.L.R FN9 [1981] E.C.R In the present state of Community law there are no Community rules governing the names or designations of origin of different types of cheese within the Community. As the Court held at paragraph 8 of Cassis de Dijon, in the absence of such common rules, 'it is for the member-states to regulate all matters relating to the production and marketing of [the product] on their own *522 territory. Obstacles to movement within the Community 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 recognised as being necessary in order to satisfy mandatory requirements relating in particular to... the fairness of commercial transactions and the defence of the consumer'. The Stresa Convention, with its specifications inter alia for Edam cheese, has been signed by Denmark, France, Italy and the Netherlands but not by the other member-states. In the Federal Republic of Germany in particular it appears that the legislation allowing 'Edam' cheese to be manufactured with a fat content as

7 low as 30 per cent. dates back to 1934: 54 years ago. Moreover, it appears that in recent years Edam with a 30 per cent. fat content has represented one third of German production of Edam cheese. In such circumstances I do not consider that any mandatory requirement as to the fairness of commercial transactions can justify one member-state in banning the sale of Edam with a 30 per cent. fat content from another member-state. As regards the defence of the consumer, it is well-established in the Court's case law (e.g. the Beer Case) that such a total ban is disproportionate to the purpose of protecting the consumer from deception if the same purpose can be achieved by less restrictive means such as labelling. That rule seems to me to apply in the present case, and it appears from the order for reference that the cheese in question was adequately labelled. Furthermore, the need to protect consumers from deception must be set against the rule that national legislation 'must not crystallise given consumer habits so as to consolidate an advantage acquired by national industries concerned to comply with them': Beer Case judgment, paragraph 32. Mere labelling would not be sufficient if the product proposed was something radically different from the product usually recognised as 'Edam' in the importing member-state, e.g. blue cheese or cream cheese. That, however, is not this case. The argument that the Cassis de Dijon rule on free movement might open the floodgates to imported products bearing wholly inappropriate designations can easily be exaggerated: first, in order to qualify, the imports must have been 'lawfully produced and marketed' in the exporting member-state. That conditon should in most cases operate to ensure that the goods in question do not bear a wholly inappropriate designation. That seems to me to be the present case. Secondly, in the exceptional case where the exporting member-state's law does allow the production and marketing of a product under a name which might seriously mislead consumers in an importing member-state, the mandatory requirement of consumer protection would come into play so as to allow measures more restrictive than a mere labelling requirement *523 to be applied, subject always to a condition of proportionality ('necessary in order to satisfy mandatory requirements': paragraph 8 of Cassis de Dijon). I do not consider, therefore, that applying the Cassis de Dijon principle of free movement in the areas of cheese names presents a real risk of robbing those names of their meaning. Reference has been made in the present case to the criterion of respecting the 'fair and traditional practices' of the various member-states, which was applied in Case 16/83 Prantl [FN10] and in Miro. While I have no doubt that such a criterion could be fulfilled in the instant case in view of the long history of production and marketing of 'Edam' with a fat content below 40 per cent. in Germany, I consider it inappropriate to apply that criterion here. In my view, in a case such as the present, its application unnecessarily narrows the conditions for free movement of goods laid down in Article 30 and developed in Cassis de Dijon. As I said in my Opinion in Case 179/85 E.C. Commission v. Germany ('the Petillant de Raisin Case'), [FN11] 'whereas the "fair and traditional usage" test may be appropriate in a case like Prantl where the question of indirect designation of origin arose, it

8 does not seem to me that it has to be established in every case. If it did the development and marketing of new products would be stifled. The appropriate test in a case like the present is in my view that stated in Cassis de Dijon-- whether the product was "lawfully produced and marketed" in one member-state. If it is, it may be marketed in another member-state subject to mandatory requirements of the kind indicated in Cassis de Dijon and subject to the provisions of Article 36 of the Treaty'. Although the judgment in that case (4 December 1986) made reference again to the 'fair and traditional practice' test, in the subsequent Beer Case judgment (of 12 March 1987), the Court did not use the 'fair and traditional practice' test but struck down the German restriction on foreign beers simply on the condition that they had been lawfully manufactured and marketed in their member-state of origin. In my view a similar approach should be followed in the present case. FN10 [1984] E.C.R. 1299, [1985] 2 C.M.L.R FN11 [1988] 1 C.M.L.R For the reasons given above I do not consider that any of the relevant mandatory requirements under Cassis de Dijon or the relevant provisions of Article 36 apply to a national measure such as that at issue in the present case. Accordingly, in my view, a prohibition such as that contained in the French legislation in question may not be applied to a product such as the German Edam in issue because it has been lawfully produced and marketed in its member-state of origin. It remains to be considered whether the existence of the Stresa Convention alters that result. I think not. *524 The Dutch Government has argued that the Stresa Convention, along with the Codex Alimentarius, represents an internationally agreed quality standard which deserves to be protected under Community law. Since a number of member-states, particularly the Federal Republic of Germany, have not accepted the standard thus proposed, I find it difficult to say that they are rules of Community law which override or qualify the rule in Article 30. As the Court held in Case 121/85 Conegate v. Customs and Excise, [FN12] Article 234 EEC must be interpreted as meaning that an agreement concluded prior to the entry into force of the EEC Treaty (which the Stresa Convention was) may not be relied upon in order to justify restrictions on trade between member- States. FN12 [1986] E.C.R. 1007, [1986] 1 C.M.L.R. 739 At Para. [26] and at Point 2 of the Operative Part. Different factors would fall for consideration if the name in question was an appellation or designation of origin. Accordingly, I would answer the question referred along the lines that: National legislation which, for the purpose of protecting a trade name, (i) restricts that trade name to national products or those of another State, to the

9 exclusion of the products of other member-states; (ii) makes the right to use the trade name of a cheese imported from a member- State conditional on the observance of a minimum fat content, even though the imported cheese is lawfully produced and marketed in its country of origin in accordance with different technical and quality requirements constitutes a measure having an effect equivalent to a quantitative restriction on imports contrary to Article 30 of the EEC Treaty. The costs of Mr. Deserbais in these proceedings fall to be decided by the national court. The costs of the Commission and the Dutch Government are not recoverable. JUDGMENT [1] By judgment of 30 October 1986, received by the Court on 20 November following, the Cour d'appel, Colmar, referred to the Court for a preliminary ruling under Article 177 EEC a question on the interpretation of Article 30 et seq. EEC having regard to national legislation for protecting the trade name of a type of cheese. *525 [2] The question has arisen in the context of criminal proceedings against Mr. G. Deserbais, director of a dairy products enterprise, for having brought into and marketed in France under the name 'Edam' a cheese from the Federal Republic of Germany having a fat content of 34.3 per cent. whereas, on the basis of national legislation, the name 'Edam' is reserved for a type of cheese with a minimum fat content of 40 per cent. The legislation was drawn up in conformity with the International Convention on the Use of Designations of Origin and Names for Cheeses which was signed, inter alia, by France at Stresa on 1 June 1951 [FN13] (hereinafter called 'the Stresa Convention'). FN13 [1952] J.O.R.F [3] It appears from the file that, under the national legislation governing the subject, Mr. Deserbais was convicted of passing off and was fined. [4] The accused in the main action appealed to the Cour d'appel, Colmar, on the substantive ground that as German Edam is legally and traditionally produced and marketed in the Federal Republic, the French authorities could not prevent importation into the French market because adequate information was provided for consumers, nor could the French authorities rely on the Stresa Convention to avoid the application of Community rules. [5] The Cour d'appel finds that it is common ground that the product in question is properly and traditionally produced and marketed in the Federal Republic of Germany under the name 'Edam' and that consumers are given adequate information by the label on the product which shows the necessary particulars for this purpose. [6] Considering that the decision in the case depends on the interpretation of Article 30 et seq. EEC 'having regard to the International Convention on the use of cheese names', the Cour d'appel, Colmar stayed judgment and referred the

10 following question to the Court for a preliminary ruling: Should Article 30 et seq. of the EEC Treaty be interpreted to mean that national legislation designed to protect a trade name which 1. restricts that trade name to national products or those of another State, to the exclusion of the products of other member-states; or 2. makes the right to use the trade name of a cheese imported from a member- State conditional on observance of a minimum fat content, even though the imported cheese is properly and traditionally produced and marketed in its country of origin in accordance with different requirements as to method and quality, constitutes a quantitative restriction on imports or a measure having equivalent effect thereto? [7] Reference is made to the Report for the Hearing for a fuller account of the facts of the main action, the procedure and the submissions to the Court, which are mentioned or discussed *526 hereinafter only so far as is necessary for the reasoning of the Court. [8] The question before the Court requests it to clarify, with reference to a situation like the present one, its case law on the prohibition of measures having an equivalent effect within the meaning of Article 30 of the Treaty. According to that case law, in the absence of common rules for the marketing of the products in question, obstacles to free movement within the Community resulting from disparities between the national laws must be accepted in so far as those provisions, which apply without distinction to national products and imported products, may be recognised as being necessary in order to satisfy mandatory requirements relating, inter alia, to the defence of the consumer and the fairness of commercial transactions. [9] To reply to the question referred by the national court, it should be observed straightaway that, as appears from the order making the reference, the name 'Edam' is not a designation of origin or a geographial description. According to the Court's case law (see Case 12/74, E.C. Commission v. Germany [FN14]), these terms designate a product from a specified geographical area. The name is merely a trade name for a type of cheese. Furthermore, in the Stresa Convention the term 'Edam' is not included among the designations of origin but among the 'names' of cheeses. FN14 [1975] E.C.R. 181, [1975] 1 C.M.L.R [10] In this connection the national court starts with the finding that the cheese in question, with a fat content of 34 per cent., was properly and traditionally produced and marketed in the Federal Republic of Germany under the name 'Edam' in conformity with the legislation and regulations applying to it, and that appropriate information is given to consumers by the label. [11] Secondly it should be noted that, as Community law stands at present, there are no common rules governing the names of different types of cheese in the Community. In those circumstances, a member-state cannot in principle be denied the right to lay down rules making the use by national producers of a

11 name for cheese subject to observing a traditional minimum fat content. [12] However, it would be incompatible with Article 30 of the Treaty and the objectives of a common market to extend the application of such rules to imported cheeses of the same type if they were lawfully produced and marketed in another member-state under the same generic name but with a different minimum fat content. The importing member-state cannot create an obstacle to the importation and marketing of such cheese if the consumer is given proper information. [13] The problem could arise of whether the same rule must be applied where a product offered under a certain name differs to *527 such an extent, from the viewpoint of composition or production, from goods generally known by the same name in the Community that it cannot be considered as within the same category. However, a particular situation of this kind does not arise in the circumstances found by the national court in the present case. [14] On this point the Dutch Government contends that protection for consumers and fairness of commercial transactions require compliance with what has been agreed at the international level regarding the use of the name of a specific product. Consequently each member-state could make the right to use the name 'Edam' conditional on complying with the requirements of the abovementioned Stresa Convention and the Codex Alimentarius, which has been drawn up jointly by the Food and Agriculture Organisation and the World Health Organisation, both of these documents specifying a minimum fat content of 40 per cent. for this type of cheese. [15] With regard to the Codex Alimentarius, it should be observed that the standards it lays down for the composition of certain foodstuffs have the actual purpose of providing information which makes it possible to define the characteristics of the product. However, the mere fact that a product does not conform entirely to the specified standard does not mean that marketing may be prohibited. [16] Regarding the Stresa Convention, it should be borne in mind that it was concluded prior to the entry into force of the EEC Treaty and that, of the present member-states, only Denmark, France, Italy and the Netherlands are parties to this Convention. [17] Secondly, it should be noted that, as the Court has already held, the purpose of Article 234(1) of the Treaty is to make it clear, in accordance with the principles of international law, that application of the Treaty does not affect the duty of the member-state concerned to observe the rights of non-member countries under a prior treaty and to fulfil its corresponding obligations (see Case 812/79 Burgoa [FN15]). FN15 [1980] E.C.R. 2787, [1981] 2 C.M.L.R [18] Therefore if, as in the present case, the rights of non-member countries are not in issue, a member-state cannot rely on the provisions of a prior treaty in order to justify restrictions on the marketing of products from another member- State when such marketing is lawful by virtue of the free movement of goods

12 provided for by the Treaty. [19] Therefore the reply to the question submitted should be that Article 30 et seq. of the Treaty must be interpreted as meaning that they preclude a member- State from applying national legislation making the right to use the trade name of a cheese subject to the observance of a minimum fat content to products of the same type *528 imported from another member-state when those products have been lawfully manufactured and marketed under that name in that member-state and consumers are provided with proper information. Costs [20] The costs incurred by the Dutch Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision as to costs is a matter for that court. Order On those grounds, THE COURT, in reply to the question submitted to it by the Cour d'appel, Colmar, by order of 30 October 1986, HEREBY RULES: Articles 30 et seq. of the EEC Treaty must be interpreted as meaning that they preclude a member-state from applying national legislation making the right to use the trade name of a cheese subject to the observance of a minimum fat content to products of the same type imported from another member-state when those products have been lawfully manufactured and marketed under that name in that member-state and consumers are provided with proper information. (c) Sweet & Maxwell Limited [1989] 1 C.M.L.R. 516 END OF DOCUMENT