CJEC, 2nd chamber, July 15, 2004, No C-239/02

THE COURT (Second Chamber),

1 By a decision of 28 June 2002, received at the Court on 1 July 2002, the Rechtbank van Koophandel (Commercial Court) te Hasselt referred to the Court for a preliminary ruling under Article 234 EC questions on the interpretation of Article 28 EC, on the interpretation and validity of Article 2 of Directive 1999-4-EC of the European Parliament and of the Council of 22 February 1999 relating to coffee extracts and chicory extracts (OJ 1999 L 66, p. 26), and on the interpretation of Article 18 of Directive 2000-13-EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000 L 109, p. 29).

2 Those questions were raised in the course of a dispute concerning the marketing in Belgium of a product called 'DynaSvelte Café' under conditions which, according to Douwe Egberts NV ('Douwe Egberts'), run counter to national provisions on the advertising and labelling of foodstuffs.

Legal framework

Community legislation

3 Article 2 of Directive 1999-4 states:

'Directive 79-112-EEC shall apply to the products defined in the Annex subject to the following conditions:

(a) the product names listed in the Annex shall apply only to the products referred to therein and must be used in trade to designate them. Those names shall be supplemented by the words:

- "paste" or "in paste form"

or

- "liquid" or "in liquid form"

...'

4 Under Article 3 thereof:

'For the products defined in the Annex, Member States shall not adopt national provisions not provided for by this Directive.'

5 Point 1 of the annex to Directive 1999-4 entitled 'Coffee extract', 'soluble coffee extract', 'soluble coffee' or 'instant coffee' states inter alia that those terms mean:

'The concentrated product obtained by extraction from roasted coffee beans using only water as the medium of extraction and excluding any process of hydrolysis involving the addition of an acid or a base.

...

Coffee extract must contain only the soluble and aromatic constituents of coffee. ...'

6 The fourth, fifth, sixth and eighth recitals in the preamble to Directive 2000-13 are worded as follows:

'(4) The purpose of this Directive should be to enact Community rules of a general nature applicable horizontally to all foodstuffs put on the market.

(5) Rules of a specific nature which apply vertically only to particular foodstuffs should be laid down in provisions dealing with those products.

(6) The prime consideration for any rules on the labelling of foodstuffs should be the need to inform and protect the consumer.

(8) Detailed labelling, in particular giving the exact nature and characteristics of the product which enables the consumer to make his choice in full knowledge of the facts, is the most appropriate since it creates fewest obstacles to free trade.'

7 Article 2(1) of Directive 2000-13 provides:

'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;

(ii) by attributing to the foodstuff effects or properties which it does not possess;

(iii) by suggesting that the foodstuff possesses special characteristics when in fact all similar foodstuffs possess such characteristics;

(b) subject to Community provisions applicable to natural mineral waters and foodstuffs for particular nutritional uses, attribute to any foodstuff the property of preventing, treating or curing a human disease, or refer to such properties.'

8 Under Article 2(3)(b) of that directive the prohibitions or restrictions referred to in paragraphs 1 and 2 are to apply also to advertising.

9 Under Article 3(1) of that directive:

'In accordance with Articles 4 to 17 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;

...'

10 Under Article 5 of the directive:

'1. The name under which a foodstuff is sold shall be the name provided for in the Community provisions applicable to it.

...

2. No trade mark, brand name or fancy name may be substituted for the name under which the product is sold.

...'

11 Under Article 18 of Directive 2000-13:

'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.'

National legislation

12 Article 1 of the Royal Decree of 5 March 1987 relating to coffee and coffee substitutes (Moniteur belge, 12 June 1987, p. 9035) provides inter alia:

'For the purposes of this decree:

coffee is defined as ... the appropriately cleaned and roasted bean of the coffee-shrub (varieities of the genus Coffea).'

13 Article 3(1) of that royal decree is worded as follows:

'Only names which comply with the definition in Article 1 shall be used to designate the foodstuffs referred to in that article when they are marketed.'

14 Article 2 of the Royal Decree of 17 April 1980 concerning the advertising of foodstuffs (Moniteur belge of 6 May 1980, p. 5476) provides:

'In the advertising of foodstuffs the use of the following shall be prohibited:

...

3. references to slimming;

...

7. References to medical recommendations, attestations, declarations and opinions or to statements of approval, other than a statement that a foodstuff is not to be consumed against medical advice ...'

Dispute in the main proceedings and questions referred

15 Douwe Egberts produces and markets coffee on the Belgian market under the brand name 'Douwe Egberts'. It is contesting in law the marketing of a product under the name 'DynaSvelte Café', manufactured by Westrom Pharma NV and distributed until 31 December 2001 by Mr Souranis, trading as 'Etablissements FICS' and since 1 January 2002 by FICS- World BVBA.

16 In interlocutory proceedings before the Rechtbank voor Koophandel, Douwe Egberts maintains that statements on the jar, packaging and in the instructions for use, namely 'the absolute breakthrough in weight control', 'slimming, better weight control, slowing down of excess fat deposits' and 'the formula patented in the United States by Dr Ann de Wees Allen, in association with the Glycemia Research Institute', infringe various national legislative provisions governing the advertising and labelling of foodstuffs.

17 Considering that the outcome of the dispute depended on the interpretation of Community law and an assessment of the validity of Directive 1999-4, the Rechtbank van Koophandel te Hasselt decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

'1. Must Article 2 of Directive 1999-4-EC ... be interpreted as meaning that exclusively the product names listed in the Annex to that directive may be used for the products referred to in that Annex and that other names may not be used alongside those product names (e.g. an invented or trade name) or must Article 2 be interpreted as meaning that the product names listed in the Annex may be used only for the products referred to in that annex but that, alongside those product names, other names may also be used for those products (e.g. an invented or trade name)?

2. If the Court ... considers that Article 2 of Directive 1999-4-EC ... must be interpreted as meaning that exclusively the product names listed in the Annex to that directive may be used for the products referred to in that Annex and that other names may not be used alongside those product names (e.g. an invented or trade name), does it not then follow that this directive conflicts with Article 28 of the EC Treaty, which prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States of the European Community, because the directive, so interpreted, excludes, as regards products falling within its definition of extracts of coffee:

- the use of names other than "coffee extract", or "instant coffee", such as the name "coffee";

- in so doing, reserves use of the name "coffee" for one single form of "coffee", namely the coffee bean;

- and thereby artificially protects the coffee market from competing products consisting of forms of coffee other than coffee beans, such as inter alia coffee extracts and instant coffee?

3. Must Article 18(1) and Article 18(2) of Directive 2000-13-EC be interpreted as meaning that non-harmonised national provisions on the labelling and presentation of foodstuffs and on advertising for them which prohibit certain statements such as "references to slimming" and "references to medical recommendations, attestations, declarations or statements of approval" in the labelling and/or presentation of foodstuffs and/or advertising for them, even though such statements are not prohibited by the Directive, constitute infringements of the Directive in view of the fact that the eighth recital of the Directive states that the most appropriate labelling is the one which creates fewest obstacles to free trade and that therefore these national provisions cannot be applied?

4. Must Article 18(2) of Directive 2000-13-EC be interpreted as meaning that "protection of public health" must be understood to include non-harmonised national provisions on the labelling and presentation of foodstuffs and on advertising for them which prohibit certain statements such as "references to slimming" and "references to medical recommendations, attestations, declarations or statements of approval"?

5. Must Article 28 of the EC Treaty be interpreted as meaning that national provisions on the labelling and presentation of foodstuffs and on advertising for them which are not harmonised at European level and which deviate from Directive 2000-13-EC inasmuch as they prohibit certain statements in the labelling and/or presentation of foodstuffs and/or advertising for them, such as "references to slimming" and "references to medical recommendations, attestations, declarations or statements of approval", must be regarded as measures having equivalent effect and/or quantitative restrictions on imports between Member States of the European Community, inasmuch as those national provisions:

- impose an additional burden upon the import of foodstuffs in the bringing of those products into line with the national legislation and in so doing hinder trade between Member States

and

- do not apply to all participants concerned in the market who pursue their activities in the national territory inasmuch as there are products of a wholly similar nature (e.g. cosmetic products) to which those provisions do not apply and to which no other equivalent provision applies, and that consequently those provisions may not be applied by the national court?'

Preliminary observations

18 The Belgian Government, the Parliament and the Council raise doubts concerning the nature of the product 'DynaSvelte Café', which could mean that Directive 1999-4 is precluded from applying in the present case. For its part the Commission stresses that if that product is not a commonly consumed foodstuff but rather a foodstuff intended for a special nutritional purpose it does not come within the scope of Directive 2000-13.

19 It should be remembered that it is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-379-98 PreussenElektra [2001] ECR I-2099, paragraph 38, and Case C-438-01 Design Concept [2003] ECR I-5617, paragraph 14).

20 In the present case it is appropriate to reply to the questions referred on the basis of the premiss of the order for reference, namely that the product 'DynaSvelte Café' is a commonly consumed foodstuff and comes within the scope of Directive 1999-4.

First question

21 By its first question the referring court is essentially asking whether, when products mentioned in the annex to Directive 1999-4 are marketed, exclusively the product names listed therein may be used or whether, alongside those product names, other names, such as an invented or trade name, may be used.

22 It should be pointed out at the outset that Directive 2000-13 enacts Community rules of a general nature applicable horizontally to all foodstuffs, whereas provisions of a specific nature which apply vertically only to coffee and chicory extracts were adopted by Directive 1999-4.

23 In that context Directive 1999-4 is a sectorial directive for the purposes of the fifth recital in the preamble to Directive 2000-13 and must be interpreted in the light thereof.

24 Under Article 2(a) of Directive 1999-4 'the product names listed in the Annex shall apply only to the products referred to therein and must be used in trade to designate them'.

25 It follows, first, that the product names, in particular, 'coffee extract', 'soluble coffee extract', 'soluble coffee' and 'instant coffee' may be used only for the marketing of the products to which Directive 1999-4 applies and, second, that such use is mandatory.

26 Moreover, as the Parliament and the Commission have stated, Article 3 of Directive 2000-13 lists the particulars which are compulsory on the labelling of foodstuffs, including the product name, without however precluding the indication of other particulars.

27 Furthermore, Article 5(2) of Directive 2000-13 provides that no trade mark, brand name or fancy name may be substituted for the name under which the product is sold but does not prohibit the use at the same time of such particulars.

28 Thus Article 2 of Directive 1999-4 does not preclude the inclusion of a fancy name or a trade name alongside the compulsory indication of the name under which the product is sold. A prohibition of that kind would restrict information to consumers on the characteristics of the products at issue in the main proceedings and would be contrary to one of the objectives set out in the sixth recital in the preamble to Directive 2000-13.

29 Accordingly, the reply to the first question must be that Article 2 of Directive 1999-4 must be interpreted as meaning that, when products mentioned in the annex to that directive are marketed, other names, such as invented or trade names, are not precluded from being used alongside the product names.

Second question

30 The question concerning the validity of Article 2 of Directive 1999-4 was raised by the referring court only in the event that in its reply to the first question the Court had interpreted it as precluding, in regard to the products mentioned in the annex to that directive, the use of other names alongside the product name.

31 In light of the reply to the first question there is no need to reply to the second question.

Third, fourth and fifth questions

32 By those questions, which may appropriately be examined together, the referring court is essentially asking whether Article 28 EC as well as Article 18(1) and (2) of Directive 2000-13 preclude national legislation which prohibits references to 'slimming' and to 'medical recommendations, attestations, declarations or statements of approval' in the labelling, presentation and advertising of foodstuffs.

33 It is apparent from the order for reference that the Royal Decree of 17 April 1980 prohibits the use of the statements in question not only in the advertising of foodstuffs but also on their labelling.

34 However, as the Court held in Case C-241-89 SARPP [1990] ECR I-4695, paragraph 15, the provisions of the directive relating to labelling differ in one essential way from those relating to advertising . Because the directive is general and applicable horizontally, it allows the Member States to maintain or adopt rules in addition to those laid down by the directive. With regard to labelling, the limits of the power retained by the Member States are set by the directive itself in so far as it lists exhaustively, in Article 18(2), the grounds on which the application of non-harmonised national provisions prohibiting trade in foodstuffs may be justified. However, that provision is not applicable to advertising. Consequently, the question whether in this field Community law precludes the application of national rules in addition to those laid down by the directive must be considered in the light, in particular, of the provisions of the Treaty on the free movement of goods and especially Articles 28 EC and 30 EC.

35 It is therefore necessary to examine separately those aspects of the national legislation relating to labelling and those relating to the advertising of foodstuffs.

Labelling of foodstuffs

36 Article 2(1)(a) and (b) of Directive 2000-13 prohibit all statements relating to human diseases, regardless of whether or not they are liable to mislead the consumer, as well as statements which, although not containing any reference to diseases but referring rather to health, for example, prove to be misleading (Case C-221-00 Commission v Austria [2003] ECR I-1007, paragraph 35, and Joined Cases C-421-00, C-426-00 and C-16-01 Sterbenzand Haug [2003] ECR I-1065, paragraph 28).

37 Moreover, under Article 18(1) of Directive 2000-13 the Member States may not forbid trade in foodstuffs which comply with the rules laid down in the Directive.

38 In light of the foregoing, foodstuffs the labelling of which contains references to health which are not misleading must be regarded as complying with the rules laid down in Directive 2000-13 since the Member States are not entitled to prohibit the marketing thereof on grounds relating to the possible irregularity of that labelling (Commission v Austria, paragraph 37, and Sterbenzand Haug, paragraph 30).

39 As stated at paragraph 34 hereof, Directive 2000-13 none the less enables the Member States to apply non-harmonised national provisions prohibiting trade in directive-compliant foodstuffs where they are justified under Article 18(2) without its being necessary to appraise them in the light of Articles 28 EC and 30 EC. Amongst the grounds mentioned therein are the protection of public health and consumers.

40 Inasmuch as the provisions at issue in the Royal Decree of 17 April 1980 absolutely preclude references to 'slimming' and to 'medical recommendations, attestations, declarations or statements of approval', regardless of whether they may be apt to mislead the consumer and provided that they do not refer to human diseases, they must be regarded as non-harmonised national provisions whose compatibility with Community law depends on the grounds on which they are based and on observance of the principle of proportionality.

41 However, while Article 2(1) of Directive 2000-13 prohibits, first, all statements relating to the preventing, treating and curing of a human disease, even if they are not liable to mislead the purchaser, and, second, misleading statements relating to health, it cannot but be noted that the protection of public health, on the assumption that risks relating thereto are nevertheless conceivable in a particular situation, cannot justify a system as restrictive of the free movement of goods as that which results from the national legislation at issue (see, in that connection, Commission v Austria, paragraph 48, and Sterbenz and Haug, paragraph 37).

42 In fact, there are less restrictive measures for the prevention of such residual risks to health, such as, for example, an obligation on the manufacturer or distributor of the product in question, in the event of any uncertainty, to furnish evidence of the accuracy of the facts mentioned on the labelling (Case C-77-97 Unilever [1999] ECR I-431, paragraph 35, and Sterbenz and Haug, paragraph 38).

43 An absolute prohibition on particulars appearing on the labelling of certain foodstuffs relating to slimming or medical recommendations without an examination on a case-by-case basis of whether they are in fact apt to mislead the buyer would mean that foodstuffs bearing those indications would not be able to be freely marketed in Belgium even where those statements are not fraudulent.

44 Such a measure would exceed what is necessary in order to attain the objective of protecting consumers against fraud and cannot be justified under Article 18(2) of Directive 2000-13.

45 Moreover, in cases where the statements in question have a scientific foundation they provide consumers with relevant information which may specifically prompt them to acquire and consume the product or deter them from doing so.

46 Finally, as regards the possible difficulty of establishing in certain cases the fraudulent nature of a certain statement, it should be recalled that it is for the national courts in all doubtful situations to form a view, taking into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (see, in particular, Case C-465-98 Darbo [2000] ECR I-2297, paragraph 20, and Sterbenz and Haug, paragraph 43).

47 The reply to the third, fourth and fifth questions must therefore be that in regard to the labelling of foodstuffs Article 18(1) and (2) of Directive 2000-13 must be interpreted as precluding national legislation, such as that at issue, which prohibits references to 'slimming' and to 'medical recommendations, attestations, declarations or statements of approval' in the labelling and presentation of foodstuffs.

Advertising of foodstuffs

48 As regards the aspects of the national legislation relating to advertising of foodstuffs, it should be noted, first, that that legislation is identical to that relating to labelling and, second, that the provisions of Article 2(1) of Directive 2000-13 applicable to labelling are, under Article 2(3)(b) thereof, also applicable to advertising.

49 Under those conditions, in light of the findings in paragraphs 36 and 40 hereof, the absolute prohibition on references to 'slimming' and 'medical recommendations, attestations, declarations or statements of approval' in the advertising of foodstuffs constitutes a provision not harmonised by Directive 2000-13.

50 The free movement of goods between the Member States is a fundamental principle of the EC Treaty which finds expression in the prohibition laid down in Article 28 EC of quantitative restrictions between Member States on imports and all measures having equivalent effect.

51 As the Court has held, in order for national provisions restricting or prohibiting certain selling arrangements not to be caught by Article 28 EC, they must not be such as to prevent access to the market by products from another Member State or to impede access any more than it impedes access by domestic products (Joined Cases C-267-91 and C-268-91 Keck and Mithouard [1993] ECR I-6097, paragraph 17).

52 However, foodstuffs lawfully manufactured and marketed in the other Member States in which particulars concerning health which are not misleading may be mentioned under the provisions of Directive 2000-13 would be faced with restrictions on access to the Belgian market. In fact the possibility cannot be ruled out that to compel a producer to discontinue an advertising scheme which he considers to be particularly effective may constitute an obstacle to imports (SARPP, paragraph 29).

53 Moreover, an absolute prohibition of advertising the characteristics of a product is liable to impede access to the market by products from other Member States more than it impedes access by domestic products, with which consumers are more familiar (Case C-405-98 Gourmet International Products [2001] ECR I-1795, paragraph 21).

54 The prohibition laid down by the national legislation therefore constitutes a fetter on intra-Community trade coming within the scope of Article 28 EC.

55 Such a fetter may be justified only by one of the public-interest grounds set out in Article 30 EC which include the protection of health and life of humans or by one of the overriding requirements ensuring inter alia consumer protection. It must also be appropriate for securing attainment of the objective which it pursues and must not go beyond what is necessary for attaining it (Joined Cases C-34-95 to C-36-95 De Agostini and TV-Shop [1997] ECR I-3843, paragraph 45).

56 The grounds relied on to justify the aspects of the national legislation at issue relating to advertising are identical in scope to those relied on to justify the aspects of that legislation concerning labelling, namely the protection of the health of humans and prevention of fraud. For the reasons stated at paragraphs 41 to 46 hereof those arguments cannot be upheld.

57 None the less and unlike national legislation which in regard to labelling runs counter to Directive 2000-13 and cannot apply either to imported foodstuffs or to domestic foodstuffs, where national legislation on advertising is contrary to Articles 28 EC and 30 EC, application of that legislation is precluded only in regard to imported products and not domestic products (SARPP, paragraph 16).

58 Given that it is apparent from the order for reference that the dispute in the main proceedings does not concern imported foodstuffs, it is for the national court to ascertain to what extent national law requires a national producer to be allowed to enjoy the same rights as those which a producer of another Member State would derive from Community law in the same situation (Case C-448-98 Guimont [2000] ECR I-10663, paragraph 23).

59 In light of the foregoing, the reply to the third, fourth and fifth questions referred must be that, in regard to the advertising of foodstuffs, Articles 28 EC and 30 EC must be interpreted as precluding national legislation which prohibits references in the advertising of foodstuffs imported from other Member States to 'slimming' and to 'medical recommendations, attestations, declarations or statements of approval'.

Costs

60 The costs incurred by the Belgian Government, the Parliament, the Council and the Commission, which submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber),

In answer to the questions submitted to it by the Rechtbank van Koophandel te Hasselt by decision of 28 June 2002, hereby rules:

1. Article 2 of Directive 1999-4-EC of the European Parliament and of the Council of 22 February 1999 relating to coffee extracts and chicory extracts must be interpreted as meaning that, when products mentioned in the annex to that directive are marketed, other names, such as invented or trade names, are not precluded from being used alongside the product names.

2. Article 18(1) and (2) of Directive 2000-13-EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs must be interpreted as precluding national legislation, such as that at issue, which prohibits references to 'slimming' and to 'medical recommendations, attestations, declarations or statements of approval' in the labelling and presentation of foodstuffs.

3. Articles 28 EC and 30 EC must be interpreted as precluding national legislation which prohibits references in the advertising of foodstuffs imported from other Member States to 'slimming' and to 'medical recommendations, attestations, declarations or statements of approval'.