CJEC, 6th chamber, November 16, 2000, No C-217/99

THE COURT (Sixth Chamber),

1. By an application lodged at the Court Registry on 8 June 1999, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by laying down in Article 6(1)(1) of the Royal Decree of 3 March 1992, concerning the placing on the market of nutrients and foodstuffs to which nutrients have been added (Moniteur Belge of 15 April 1992, p. 8467), an obligation to indicate on the labelling of the products to which the decree applies the notification number provided for by Article 4 thereof, the Kingdom of Belgium has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC) et seq.

National legislation

2. Article 1 of the Royal Decree defines nutrients as substances which the human body requires but which it cannot produce itself, sufficient quantities of which have to be obtained from foodstuffs.

3. Article 4(1) of the Royal Decree makes the placing on the market of those substances and foodstuffs containing them subject to prior notification with the Inspection Service for Foodstuffs of the Ministry of Public Health and the Environment ('the Inspection Service).

4. The second and third paragraphs of that article provide detailed rules concerning notification:

'A notification file must be submitted in duplicate and must include as a minimum the following information:

1. the nature of the product;

2. a qualitative and quantitative list of the product's ingredients;

3. a nutritional analysis;

4. the labelling;

5. the information necessary to enable a proper examination of the nutritional value to be carried out;

6. an undertaking to carry out frequent random analyses and to keep the results available [for the Inspection Service].

Within one month of receipt of this file [the Inspection Service] shall send the applicant an acknowledgement. The acknowledgement shall contain a notification number.

5. The final paragraph of Article 4 authorises the Inspection Service to make observations and recommendations concerning, amongst other things, the alteration of the labelling by requiring, in particular, warnings to be given. The Inspection Service may also request information to be provided on the bioavailability of the nutrient(s).

6. As to labelling, Article 6(1) of the Royal Decree provides:

'Without prejudice to any general or specific provisions concerning labelling and advertising of foodstuffs, the labelling of the foodstuffs referred to in Articles 2 and 3 shall include the following data:

1. the notification number laid down in Article 4;

2. the date of minimum durability up to which the nutritional content is guaranteed.

7. Paragraphs 2 and 3 of the same article provide, inter alia, that labels fixed on the packaging of those products are to state the recommended intake as well as the nutritional content.

8. Lastly, Article 11 of the Royal Decree provides that infringements of the provisions of the decree are to be investigated, prosecuted and punished in accordance with the Law of 24 January 1977 on the protection of the health of consumers as regards foodstuffs and other products.

Facts and the pre-litigation procedure

9. After receiving a number of complaints, the Commission, taking the view that the obligations laid down by the Royal Decree were capable of obstructing trade in the products to which it applies, contacted the Belgian authorities with a view to settling the difficulties resulting from those obligations.

10. The issues raised by the Commission were resolved through meetings and exchanges of correspondence, with the exception of the issue concerning the obligation to indicate the notification number on the labelling of the products concerned, which is imposed by Article 6(1)(1) of the Royal Decree.

11. The Commission, considering that that obligation constituted a measure having equivalent effect to a quantitative restriction contrary to Article 30 of the Treaty, sent the Kingdom of Belgium a letter of formal notice on 28 June 1996.

12. The Belgian authorities' letter in response, dated 31 October 1996, was considered unsatisfactory by the Commission, which sent the Kingdom of Belgium a reasoned opinion on 4 February 1998 in which it maintained its point of view.

13. Since the Belgian authorities' response of 29 July 1998 to the reasoned opinion also failed to satisfy the Commission, it brought the present proceedings.

Substance

14. In its application, the Commission submits that the measure at issue is contrary to Article 30 of the Treaty because, although it applies without distinction to domestic products and products originating in other Member States, it is capable of restricting trade since it makes it necessary to alter the packaging or labelling of the products concerned for the purpose of marketing them in Belgium. According to the Commission, the barrier to trade results in the present case from the fact that the measure at issue entails extra packaging costs in respect of those products.

15. In response, the Belgian Government contends that the obligation to indicate the notification number on the labelling of the products to which the Royal Decree applies does not constitute a barrier to the free movement of goods, since the extra costs which may arise as a result of the requirement are borne by Belgian consumers.

16. In that regard, it must be borne in mind that, according to the case-law of the Court of Justice, Article 30 aims to prohibit all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see Case 8-74 Dassonville [1974] ECR 837, paragraph 5). The Court has made it clear that, in the absence of harmonisation of laws, Article 30 of the Treaty prohibits, in principle, obstacles to intra-Community trade which are the consequence of applying, to goods coming from other Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods, such as those relating to presentation, labelling and packaging, even if those rules apply without distinction to domestic products and imported products (see Joined Cases C-267-91 and C-268-91 Keck and Mithouard [1993] ECR I-6097, paragraph 15).

17. Although applicable without distinction to all products, an obligation such as that imposed in the present case by Article 6(1)(1) of the Royal Decree is of a nature such as to hinder intra-Community trade. It may force the importer to alter the packaging of his products on the basis of the place where they are marketed and therefore to incur additional packaging and labelling costs (see, to that effect, Case C-51-93 Meyhui v Schott Zwiesel Glaswerke [1994] ECR I-3879, paragraph 13; and Case C-33-97 Colim v Bigg's Continent Noord [1999] ECR I-3175, paragraph 36).

18. Even supposing that, as the Belgian Government contends, those extra costs are ultimately borne by Belgian consumers, the mere prospect of having to lay out those costs constitutes a barrier for traders since it is capable of acting as a disincentive to those of them who are contemplating marketing the products concerned in Belgium.

19. The Belgian Government also contends that the measure at issue does not restrict the free movement of goods because (i) similar obligations exist in other Member States and (ii) indicating the notification number is useful when the substances in question, and the products containing them, are marketed outside Belgium since the presence of that number on the labels is evidence, in the absence of harmonisation, that a health inspection has been carried out and enables the Community authorities, the authorities of the other Member States and consumers to ask for information relating to those products.

20. That argument cannot be accepted. First, the fact that other Member States fail to fulfil their obligations under the Treaty does not justify the failure of a Member State, against which infringement proceedings have been brought, to comply with a requirement imposed on it by Community law (see, to that effect, Case C-265-95 Commission v France [1997] ECR I-6959, paragraph 63). Second, the fact that the notification number might prove useful at the time when the products at issue are marketed in other Member States does not prevent the measure at issue from acting as a barrier to placing the products at issue on the Belgian market. The infringement, in respect of which the Commission is seeking a declaration in the present case, does not concern the marketing of those products in other Member States but their introduction into the domestic market.

21. Accordingly, the disputed obligation must be regarded as a barrier to trade between Member States and is, therefore, prohibited by Article 30 of the Treaty.

22. The Belgian Government also contends that, even if such a measure were to constitute a barrier to trade, that barrier is justified by the main aim of the measure, namely the protection of public health, which benefits from the derogation provided for in Article 36 of the EC Treaty (now, after amendment, Article 30 EC). According to that Government, the fact that the notification number is included on the labelling assures the consumer that the product concerned has been inspected by the competent authorities.

23. However, according to the Commission, the disputed obligation cannot be justified on the grounds that it protects public health since its sole function is to make it easier to verify that the documents required for administrative purposes have been submitted to the competent authorities and thus that prior notification of the product has taken place. The Commission submits that the purpose of that notification is to provide information to the authorities so that they are in a position to make observations or recommendations concerning the labelling. Furthermore, protection of public health is assured by other safeguards laid down in the Royal Decree such as, for example, the obligation to give certain information relating to, in particular, the nutritional content, the date of minimum durability or recommended intake, or the system of penalties. Therefore, the obligation to mark the notification number on the labelling is not justified and, even if it were, it would in any event be neither necessary nor proportionate to the Belgian Government's aim.

24. The Belgian Government contends, to the contrary, that, taking account of the fact that the aim is to protect public health, the disputed obligation constitutes a necessary and proportionate measure.

25. As regards the justification of the measure at issue on grounds of the protection of public health, first, the value of including the notification number on the labelling of the products concerned as a means of giving consumers information must be ascertained, by considering, in particular, whether that number provides consumers with any information enabling them to adapt their consumption of those products in such a way as to take precautionary measures for the protection of their health.

26. In that regard, it appears from the explanations given by the Belgian Government at the hearing that the notification number is merely composed of certain numbers which correspond to the product and the undertaking. That number does no more than inform consumers that the product has been notified to the Inspection Service but it does not provide them with information either on the nutritional content of the product or on the inspections or checks carried out or, lastly, on the question whether or not the Inspection Service has made observations or recommendations and, if it has, whether account has been taken of them. Such information, even if it provides consumers with an assurance that a file has been notified to the competent authorities, is not capable of enabling them to decide whether or not they should consume the product and, if they do consume it, in what quantities. It is not sufficiently useful to them for its inclusion to be fully justified on grounds of the protection of public health.

27. Moreover, a national measure imposing an obligation such as the disputed obligation must, in any event, be proportionate to the aim pursued (see, inter alia, Colim, paragraph 40).

28. To comply with the principle of proportionality in a case such as that in point in the main proceedings, national legislation which restricts, or is capable of restricting, imports of products is compatible with the Treaty only in so far as it is necessary for the effective protection of the health and life of humans. It may not therefore benefit from the derogation provided for in Article 36 of the Treaty if the health and life of humans may be protected just as effectively by measures which are less restrictive of intra-Community trade (see Case C-473-98 Kemikalieinspektionen v Toolex Alpha [2000] ECR I-0000, paragraph 40).

29. In that regard, as has been found in paragraph 26 of this judgment, the presence of a notification number on the labelling only assures the consumer that the product has been notified to the Inspection Service and that number does not provide any additional information enabling the consumer's health to be more effectively protected. By contrast, the labelling includes other data such as the name of the product, the identity of the manufacturer or distributor, the nutritional content, the date of minimum durability or the recommended intake, which is equally useful information in that respect. It follows that the disputed obligation imposed by the Royal Decree is not necessary for the protection of public health.

30. In those circumstances, it must be held that, by laying down in Article 6(1)(1) of the Royal Decree an obligation to indicate on the labelling of the products to which the decree applies the notification number provided for by Article 4 thereof, the Kingdom of Belgium has failed to fulfil its obligations under Article 30 et seq. of the Treaty.

Costs

31. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of Belgium has been unsuccessful, the latter must be ordered to pay the costs.

On those grounds,

THE COURT (Sixth Chamber),

hereby:

1. Declares that, by laying down in Article 6(1)(1) of the Royal Decree of 3 March 1992, concerning the placing on the market of nutrients and foodstuffs to which nutrients have been added, an obligation to indicate on the labelling of the products to which the decree applies the notification number provided for by Article 4 thereof, the Kingdom of Belgium has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC) et seq.;

2. Orders the Kingdom of Belgium to pay the costs.