Alfa Vita Vassilopoulos AE, Formerly Trofo Super-Markets AE (C-158/04)
Alfa Vita Vassilopoulos AE, Formerly Trofo Super-Markets AE (C-158/04)
Alfa Vita Vassilopoulos AE, Formerly Trofo Super-Markets AE (C-158/04)
REFERENCES for a preliminary ruling under Article 234 EC, from the Diikitiko
Protodikio Ioanninon (Greece), made by decisions of 10 and 26 November 2003,
received at the Court on 29 March 2004, in the proceedings
Elliniko Dimosio,
and
Carrefour-Marinopoulos AE (C-159/04)
Elliniko Dimosio,
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ALFA VITA VASSILOPOULOS AND CARREFOUR-MARINOPOULOS
having regard to the written procedure and further to the hearing on 9 February
2006,
after hearing the Opinion of the Advocate General at the sitting on 30 March 2006,
Judgment
1 The references for a preliminary ruling concern the interpretation of Article 28 EC,
more specifically the compatibility of Greek legislative provisions governing the
marketing of bakery products produced using the 'bake-off' method with that
provision of the EC Treaty. The 'bake-off' method consists of quick thawing
followed by re-heating or baking, at the sales outlets, of fully or partially pre-baked
and frozen products. This is the meaning in which the term 'bake-off' is used in the
present judgment.
2 The references were made in the context of actions for annulment brought, first, by
Alfa Vita Vassilopoulos AE (formerly Trofo Super-Markets AE) and, second, by
Carrefour-Marinopoulos AE against decisions of the Nomarkhiaki Aftodiikisi
Ioanninon (Prefectural Authority of Ioannina) ('the Prefectural Authority') ordering
them to cease operation of the sales outlets for 'bake-off' products in their respective
supermarkets.
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ALFA VITA VASSILOPOULOS AND CARREFOUR-MARINOPOULOS
Legal framework
Community legislation
National legislation
6 Law No 726/1977 (FEK A' 316) amends and supplements the legislation in force
concerning bakeries and bread shops. Under Article 16 thereof, in order for a bakery
or bread shop to be established, a licence must first be obtained from the competent
prefect.
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JUDGMENT OF 14. 9. 2006 - JOINED CASES C-158/04 AND C-159/04
8 Decree No 369/1992 (FEK, A' 186), adopted on the basis of Article 65 of Law No
2065/1992, lays down the procedure and the supporting documents for the issue of
licences and the conditions governing the sale of bakery products. Article 1 thereof
provides that the issue of a licence for the operation of a bakery is subject, inter alia,
to the condition that there be areas for kneading equipment, an oven and the
cooling of products, a solid-fuel store, the feeding of solid fuel, a flour store, the
selling of bread, a cloakroom, the washing of utensils and toilets.
The main proceedings and the questions referred for a preliminary ruling
10 Following that bulletin, the prefectoral authorities carried out inspections in the
food shops Alfa Vita Vassilopoulos AE (formerly Trofo Super-Markets AE) and
Carrefour-Marinopoulos AE, the applicants in the main proceedings. It having been
found that bread was being sold and that ovens for the baking of frozen bread were
being used without a licence, those authorities, by two decisions taken on
27 November 2001, ordered the cessation of the operation of those bread ovens.
1 1 The applicants in the main proceedings brought an action before the national court
for annulment of those decisions, claiming, inter alia, that the national legislation, as
applied by the prefectural authorities, amounted to a quantitative restriction which
was prohibited by Article 28 EC and could not be justified on grounds of public
health or consumer protection.
'(1) Does the requirement for the prior licence [referred to above in the grounds of
the decision for reference] in order to market "bake-off products constitute a
measure equivalent to a quantitative restriction within the meaning of Article
28 EC?
(3) On the basis that the abovementioned restriction concerns both domestic and
Community "bake-off' products without distinction, is there a link with
Community law and is that restriction capable of affecting, whether directly or
indirectly, actually or potentially, the free trading of those products between
Member States?'
14 It should be borne in mind, as a preliminary point, that the free movement of goods
between Member States is a fundamental principle of the Treaty which is expressed,
inter alia, in the prohibition in Article 28 EC of quantitative restrictions between
Member States and all measures having equivalent effect.
16 The Court has, however, clarified that measures having equivalent effect to
quantitative restrictions and therefore prohibited by Article 28 EC do not include
national provisions restricting or prohibiting certain selling arrangements, so long as
those provisions apply to all relevant traders operating within the national territory
and so long as they affect in the same manner, in law and in fact, the marketing of
domestic products and of those from other Member States (see Joined Cases
C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 16).
17 In their written observations, the Prefectural Authority and the Greek Government,
referring to the Keck and Mithouard case-law, claim that the national legislation
merely regulates the manner in which 'bake-off' products may be sold, and,
consequently, do not come within the scope of application of Article 28 EC.
20 The Court has consistently held that a national rule which hinders the free
movement of goods is not necessarily contrary to Community law if it may be
justified by one of the public-interest grounds set out in Article 30 EC or by one of
the overriding requirements laid down by the Court's case-law where the national
rules are applicable without distinction (see, to this effect, Case 120/78 Rewe-Zentral
(Cassis de Dijon) [1979] ECR 649, paragraph 8, and Schwarz, paragraph 30).
22 However, in order for such rules to comply with the principle of proportionality, it
must be ascertained not only whether the means which they employ are suitable for
the purpose of attaining the desired objectives b u t also whether those means do not
go beyond what is necessary for that purpose (Case C-463/01 Commission v
Germany [2004] ECR I-11705, paragraph 78, and Case C-309/02 Radlberger
Getränkegesellschaft and S. Spitz [2004] ECR I-11763, paragraph 79).
24 Regarding the goal of consumer protection, the national court states that, in the
main proceedings, the Prefectural Authority referred to an opinion from a food
technology expert stating that 'bake-off' products tend to make consumers believe
that they are purchasing fresh bread or another similar fresh product, whereas in
reality the product is altered and without vitamins.
25 The Court finds, however, that whilst it may be legitimate to adopt measures aimed
at avoiding a situation in which consumers confuse traditional bakery products with
'bake-off' products, the national legislation at issue here, as it has been put into
practice, does not enable customers at bread sales outlets to distinguish traditional
products from 'bake-off' products. As noted by the Advocate General in point 62 of
his Opinion, this objective could be achieved by means which are less restrictive on
the marketing of 'bake-off' products, such as appropriate information and labelling.
27 Whilst it may be true that the national legislation at issue in the main proceedings
contains provisions aimed at ensuring that bakery products are prepared and
marketed in proper hygienic conditions, the fact remains that it also lays down a
number of requirements relating to the manufacturing method of traditional bakery
products which are inappropriate and go beyond what is necessary to protect public
health when they apply to products such as 'bake-off' products, which are pre-baked
and are merely thawed and reheated or receive the final stage of baking at the outlets
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JUDGMENT OF 14. 9. 2006 - JOINED CASES C-158/04 AND C-159/04
where they are sold. As acknowledged by the Greek authorities in their observations,
this is the case inter alia in regard to those requirements relating to the presence of a
flour store or an area for kneading equipment.
28 In the light of the foregoing, the answer to the questions referred must be that
Article 28 EC is to be interpreted as precluding national legislation which makes the
sale of 'bake-off' products subject to the same requirements as those applicable to
the full manufacturing and marketing procedure for traditional bread and bakery
products.
Costs
29 Since these proceedings are, for the parties to the main proceedings, a step in the
action pending before the national court, the decision on costs is a matter for that
court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
[Signatures]
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