Luxembourg, 04/10/2007 (Agence Europe) - In a decision on Thursday 4 October, the Court of Justice ruled that Directive 75/106/EEC does not allow Germany to ban the sale of miniature 0.071 litre bottles of Baileys. In line with the conclusions reached by the advocate general in June 2007, the Court concludes that such a ban would infringe upon the free movement of goods, since these bottles are authorised on the Irish and British markets. The decision follows in the wake of the Commission's September announcement that it would not make full metric conversion compulsory in all EU member states.
The directive fixes nominal quantities of pre-packed products, such as alcohol, in particular to avoid misleading consumers. Thus, Annex III of the text authorises the sale of 0.03 litres, 0.04 litres, 0.05 litres and 0.10 litres for strong alcohols. It does not provide for any other intermediary volumes. During adoption of the regulation, however, Ireland and the United Kingdom negotiated keeping the traditional “half gill” unit, a “gill” corresponding to 0.142 litres, and the “half gill” being about 0.071 litres, the volume of the mini-bottles that are in dispute. This exemption therefore allows the company, Diageo Deutschland GmbH, to produce Baileys bottles of this volume at its plant in Ireland - bottles which are then imported into Germany according to the principle of the free movement of goods.
The Schutzverband der Spirituosen-Industrie, a German association that monitors spirits industry legal compliance, referred the matter to the Landgericht (the Court of the Land) in Wiesbaden (Germany) to protest against imports of small bottles by Diageo. According to Schutzverband, the 0.071 litre bottles meet the standards of the Irish and British markets but not those of the other member states, including Germany. According to the association, this creates confusion among consumers, which is counter to the objective of the directive. Diageo replies that Germany cannot ban the importation of such bottles, which are authorised in two EU countries, without being in breach of the principle of the free movement of goods. Furthermore, the affair poses a problem of equal treatment. Christofer Eggers, a lawyer who speaks on behalf of the Schutzverband, explains that, if the German manufacturer wants to market the 0.071 litre bottles in Germany he is under the curious obligation to export his product to the United Kingdom or Ireland for bottling, before reimporting it. This, according to Dr Eggers, is not competition on “a level playing field”.
The Court has ruled along the lines of market opening and equal treatment by waiving all restrictions against 0.071 litre bottles. Consumer interests are, according to the Court, safeguarded. As long as the volume and the equivalent price in litres are clearly marked on the label, the average, sober consumer should not be misled. Although the Schutzeverband has lost its case, Dr Eggers nonetheless welcomes this “clarification that the market needed”. (cd)