CJEC, 1st chamber, February 9, 1999, No C-383/97

THE COURT (First Chamber),

1 By order of 30 October 1997, received at the Court on 10 November 1997, the Amtsgericht Nordhorn (Nordhorn Local Court) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 30 et seq. of the EC Treaty.

2 That question was raised in criminal proceedings brought against Mr van der Laan for infringement of Paragraph 17(1)(2)(b) and (1)(5) of the Lebensmittel- und Bedarfsgegenständegesetz (German Law on Foodstuffs and Items of Daily Use, 'the LMBG') by marketing in Germany certain meat-based products.

The German legislation

3 It is contrary to Paragraph 17(1)(2)(b) of the LMBG to 'place on the market in the course of business, without sufficiently precise labelling, foodstuffs the composition of which does not correspond to accepted standards, thus diminishing their value to a not inconsiderable degree, in particular their nutritional value and the level of customer satisfaction they offer'.

4 In addition, it is contrary to Paragraph 17(1)(5) of the LMBG to 'place on the market in the course of business foodstuffs with a misleading name, specification or presentation ...'.

5 It is apparent from Paragraph 33 of the LMBG that the German Food Code is a collection of guidelines describing the manufacture, composition or other characteristics of foodstuffs which are of importance for marketing approval purposes.

6 Paragraph 47(a)(1) of the LMBG provides:

'By way of derogation from the first sentence of Paragraph 47(1), products to which the present Law applies, which are lawfully manufactured and marketed in another Member State of the Community, or another State party to the European Economic Area Agreement, or which come from a non-member country and are lawfully marketed in a Member State of the Community, or in another State party to the European Economic Area Agreement, may 2000 be imported and placed on the domestic market, even if they do not comply with the legislation concerning foodstuffs currently in force in the Federal Republic of Germany. The first sentence does not apply to products which

(1) contravene the prohibitions laid down in Paragraphs 8, 24 or 30 or

(2) do not comply with other legal provisions adopted for the purposes of protecting public health, in so far as the Federal Minister has not published a decision of general application in the Bundesanzeiger (Official Gazette) approving marketing of those products in Germany'.

7 If foodstuffs do not comply with the LMBG, that fact must be indicated in an appropriate manner, in accordance with Paragraph 47(a)(4), to the extent required for consumer protection.

The dispute in the main proceedings

8 Bentheimer Fleischwarenvertriebs GmbH distributes in Germany meat-based products called 'Lupack', 'Bristol' and 'Benti', manufactured in the Netherlands by Van der Laan, a company governed by Netherlands law and established in Almelo, and lawfully marketed in that State. Those products carry the following information:

'Lupack:

Dutch formed shoulder ham, composed of shoulder ham pieces, without fat or rind; product containing 75% pork meat.

Ingredients: pork meat, water, sugar substances, salt, stabiliser E 450(a), anti-oxidant E 301, preservative E 250.

Bristol:

Meat product: Dutch shoulder ham without fat or rind.

Ingredients: pork meat, salt, sugar substances, stabiliser E 450(a), anti-oxidant E 301, preservative E 250.

Benti:

Dutch formed shoulder ham, composed of shoulder ham pieces, without fat or rind. Product containing 70% pork meat.

Ingredients: pork meat, water, salt, sugar substances, stabiliser E 450(a), anti-oxidant E 301, preservative E 250.'

9 By decision of 13 September 1994, the Landkreis Grafschaft Bentheim (Grafschaft Bentheim District Local Authority, 'the Landkreis') imposed on Mr Van der Laan, as the manager of the Van der Laan company, a fine of DEM 7 500 for inter alia infringement of Paragraph 17(1)(2)(b) and (1)(5) of the LMBG. The Osnabrück Prosecutor's Office then requested that criminal proceedings be brought.

10 In those proceedings, the Landkreis and the Osnabrück Public Prosecutor's Office claim, first, that the product called 'Bristol' is not a natural product but a cured-meat product which ought, in accordance with Numbers 2.19 to 2.3411 et seq. of the Guidelines for meat and meat products in the German Food Code, to have borne a label stating that it was 'formed shoulder ham composed of ham pieces'.

11 In the second place, they point out that, according to the information they carry, Lupack and Benti contain only 75 and 70% pork meat respectively. The usual practice is for cured meat to contain 100% pork meat. The products in dispute therefore differ so markedly from commercial practice that labelling for the purposes of Paragraph 17(1)(2)(b) is, in their view, no longer possible.

12 Third, they claim that an added-water content of between 3.7 and 18% in Bristol and 8.7 and 10.6% in Lupack is not permissible in cured-meat products.

13 Fourth, the Landkreis and the Osnabrück Public Prosecutor's Office point to the fact that the samples examined have a muscle-meat protein content of between 87.9 and 88.1% in Bristol and of 87.9% in Benti, which is thus much lower than the 90% minimum required by the Food Code.

14 Finally, they claim that, although the German food code requires a minimum of 19% protein in the fat-free part, the samples examined contained between 15 to 18.2% in the case of the product called Bristol and 16.6 to 17.2% in the case of the product Lupack. The deviation from the required minimum is therefore not inconsiderable.

15 Uncertain whether, in the circumstances of this case, the interpretation and application of Paragraph 17 of the LMBG and the Guidelines laid down in the German Food Code were not contrary to Article 30 et seq. of the Treaty, the national court decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

'Does the application of Paragraph 17(1)(2)(b) and (1)(5) of the Lebensmittel- und Bedarfsgegenständegesetz in conjunction with Numbers 2.19 to 2.3411 et seq. of the Guidelines for meat and meat products of the German Food Code by the Landkreis Grafschaft Bentheim and the Staatsanwaltschaft Osnabrück in the present case contravene Article 30 et seq. of the EC Treaty, that is to say, the prohibition of discrimination laid down there?'

The question

16 By that question the national court is in substance asking whether it is contrary to Article 30 of the Treaty for national rules to prohibit the marketing of products such as those in issue in the main proceedings for reasons relating to consumer protection.

17 In the first place, in accordance with Article 30 of the Treaty, quantitative restrictions on imports and all measures having equivalent effect are prohibited between Member States.

18 According to settled case-law, all measures capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions (Case 8-74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5).

19 It should also be borne in mind that, in accordance with the case-law beginning with Cassis de Dijon (Case 120-78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649), in the absence of harmonisation of legislation, obstacles to free movement of goods 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 designation, form, size, weight, composition, presentation, labelling, packaging) constitute measures of equivalent effect prohibited by Article 30, even if those rules apply without distinction to all products, unless their application can be justified by a public-interest objective taking precedence over the free movement of goods (Joined Cases C-267-91 and C-268-91 Keck and Mithouard [1993] ECR I-6097, paragraph 15, and Case C-368-95 Vereinigte Familiapress Zeitungsverlags- und vertriebs v Heinrich Bauer Verlag [1997] ECR I-3689, paragraph 8).

20 It is common ground that Community law contains no harmonised rules relating to the manufacture or marketing of ham-based products such as those in issue in the main proceedings. Furthermore, it is clear from the documents before the Court that those products are lawfully manufactured and marketed in the Netherlands.

21 It would therefore be permissible to prohibit their being marketed in Germany only if that were justified by a public-interest objective.

22 It is common ground that the prohibition applied in this case is not based on public health considerations.

23 The Landkreis and the Osnabrück Public Prosecutor's Office, however, cited consumer protection, which is the objective of Paragraph 17 of the LMBG.

24 As regards consumer protection, it must be stated that it can be guaranteed by means which do not hinder the importation of products which have been lawfully manufactured and marketed in other Member States, in particular by suitable labelling giving the nature of the product sold (Case C-269-89 Bonfait [1990] ECR I-4169, paragraph 15).

25 As regards the labelling of foodstuffs, reference must be made to Council Directive 79-112-EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 1979 L 33, p. 1). At th 2000 e material time, that directive was applicable in the version as most recently amended by Commission Directive 91-72-EEC of 16 January 1991 (OJ 1991 L 42, p. 27, 'the directive').

26 Article 2 of the directive provides:

'1. The labelling and methods used must not:

(a) be such as could mislead the purchaser to a material degree, particularly:

(i) as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production,

...'.

27 Article 3 provides:

'1. In accordance with Articles 4 to 14 and subject to the exceptions contained therein, indication of the following particulars alone shall be compulsory on the labelling of foodstuffs:

(1) the name under which the product is sold;

(2) the list of ingredients;

...'.

28 Article 5(1) provides:

'The name under which a foodstuff is sold shall be the name laid down by whatever laws, regulations or administrative provisions apply to the foodstuff in question or, in the absence of any such name, the name customary in the Member State where the product is sold to the ultimate consumer and to mass caterers, or a description of the foodstuff and, if necessary, of its use, that is sufficiently precise to inform the purchaser of its true nature and to enable it to be distinguished from products with which it could be confused.'

29 Article 6(5) provides:

'(a) The list of ingredients shall include all the ingredients of the foodstuff, in descending order of weight, as recorded at the time of their use in the manufacture of the foodstuff. It shall appear preceded by a suitable heading which includes the word "ingredients".

However:

- added water and volatile products shall be listed in order of their weight in the finished product; the amount of water added as an ingredient in a foodstuff shall be calculated by deducting from the total amount of the finished product the total amount of the other ingredients used. This amount need not be taken into consideration if it does not exceed 5% by weight of the finished product...'

30 Lastly, Article 15 provides:

'1. Member States may not forbid trade in foodstuffs which comply with the rules laid down in this directive by the application of non-harmonised national provisions governing the labelling and presentation of certain foodstuffs or of foodstuffs in general.

2. Paragraph 1 shall not apply to non-harmonised national provisions justified on grounds of:

- protection of public health,

- prevention of fraud, unless such provisions are liable to impede the application of the definitions and rules laid down by this directive,

- protection of industrial and commercial property rights, indications of provenance, registered designations of origin and prevention of unfair competition.'

Description of the products

31 With regard to the various charges brought against Mr Van der Laan, the Court finds, first, that the description appearing on the product Bristol, namely 'Meat product: Dutch shoulder ham without fat or rind', may not be sufficiently precise to inform the purchaser of its true nature, as required by Article 5(1) of the directive.

32 As the Advocate General noted in points 39 to 42 of his Opinion, such a description may create the impression that it is a natural product consisting of a single piece of shoulder ham, whereas it is in fact formed ham made of various pieces of shoulder.

33 If the national court were to find that those two products are different in type and that the description of the product Bristol does not enable it to be distinguished from a product consisting of a single piece of shoulder ham, that description would not comply with Article 5(1) of the directive and could mislead the purchaser to a material degree, within the meaning of Article 2 thereof.

Ingredients

34 As regards the ingredients of the three products in question, that is to say their pork meat and water contents, the labels on the products Lupack and Benti both give purchasers exact details of the meat content and also inform them that the water content is between 5 and 25% of the weight of the finished product in the case of Lupack and between 5 and 30% in the case of Benti.

35 Such labelling satisfies the requirements of Articles 3(1) and 6(5)(a) of the directive.

36 On the other hand, the fact that water is not mentioned in the list of the ingredients of the product Bristol is contrary to those provisions if the quantity of water represents more than 5% by weight of the finished product.

37 It must be added that a Member State cannot claim that a list of ingredients which complies with Article 3 of the directive none the less constitutes fraud within the meaning of Article 15(2) of the directive, justifying the application of non-harmonised national rules.

38 As the Advocate General observed in points 62 to 66 of his Opinion, application of such provisions is, in those circumstances, liable to impede the application of the definitions and rules provided for by the directive. Moreover, it constitutes an unjustified obstacle to the free movement of goods.

Protein content

39 So far as concerns the muscle-meat protein content of Bristol and Benti and the protein content in the fat-free parts of Bristol and Lupack, the Commission correctly points out that the features of the products which are involved here concern not their ingredients but rather their quality. The directive does not require them to be mentioned in the labelling.

40 It is, however, necessary to consider whether the labelling of the products in question could in this respect mislead the purchaser to a material degree within the meaning of Article 2 of the directive.

41 As the Advocate General observed at point 75 of his Opinion, even if there were an expectation on the part of German consumers as to the protein content in the fat-free part or the muscle-meat protein content, such an expectation could not in any case be so specific that, given the variations between the proportions of 15% and 87.9% actually found and the proportions of 19% and 90% allegedly required by the German Food Code, consumers could be misled.

42 It follows that the prohibition on selling products in which the protein content of the fat-free part or the muscle-meat protein content varies in such a way from the proportion required by national rules is not justified on grounds of consumer protection.

43 Accordingly, the answer to be given to the question raised must be that it is contrary to Article 30 of the Treaty for national rules to prohibit, for reasons of consumer protection, the marketing of foodstuffs lawfully manufactured and marketed in another Member State, where consumers are protected by means of labelling in accordance with the provisions of Directive 79-112, in particular those concerning the description of products and the list of ingredients. It is contrary to Articles 2 and 5(1) of Directive 79-112 to use a trade description which does not make it possible for purchasers in the State where the product is sold to ascertain the true nature of the foodstuff. Where the quantity of added water represents more than 5% by weight of the finished product, failure to include 'water' in the list of ingredients constitutes infringement of Article 3(1), read in conjunction with Article 6(5)(a), of Directive 79-112.

Costs

44 The costs incurred by the Greek Government and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the question referred to it by the Amtsgericht Nordhorn by order of 30 October 1997, hereby rules:

It is contrary to Article 30 of the EC Treaty for national rules to prohibit, for reasons of consumer protection, the marketing of foodstuffs lawfully manufactured and marketed in another Member State, where consumers are protected by means of labelling in accordance with the provisions of Council Directive 79-112-EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, in particular those concerning the description of products and the list of ingredients.

It is contrary to Articles 2 and 5(1) of Directive 79-112 to use a trade description which does not make it possible for purchasers in the State where the product is sold to ascertain the true nature of the foodstuff.

Where the quantity of added water represents more than 5% by weight of the finished product, failure to include 'water' in the list of ingredients constitutes infringement of Article 3(1), read in conjunction with Article 6(5)(a), of Directive 79-112.