CJEC, 5th chamber, March 13, 2003, No C-229/01

THE COURT (Fifth Chamber),

1. By decision of 1 June 2001, received at the Court on 11 June 2001, the Unabhängiger Verwaltungssenat im Land Niederösterreich (Independent Administrative Board of the Land of Niederösterreich), referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation 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 for sale to the ultimate consumer (OJ 1979 L 33, p. 1) and 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. That question was raised in penal administrative proceedings brought against Ms Müller, who was found guilty, at first instance, of marketing a foodstuff after the date of expiry of the period of minimum durability of that foodstuff without indicating in a clear and generally intelligible manner that the period had expired, in breach of the applicable national rules.

Legal background

Community law

Directive 79-112

3. After numerous amendments, Directive 79-112 was consolidated in Directive 2000-13 and repealed by Article 26(1) thereof. Directive 2000-13 came into force on 26 May 2000. Articles 3(1) and 15 of Directive 79-112, to which the national court refers, correspond to Articles 3(1) and 18 of Directive 2000-13 respectively.

Directive 2000-13

4. The second and third recitals in the preamble to Directive 2000-13 state:

'(2) Differences between the laws, regulations and administrative provisions of the Member States on the labelling of foodstuffs may impede the free circulation of these products and can lead to unequal conditions of competition.

(3) Therefore, approximation of these laws would contribute to the smooth functioning of the internal market'.

5. The 10th recital in the directive states:

'... the horizontal nature of this directive does not allow, at the initial stage, the inclusion in the compulsory indications of all the indications which must be added to the list applying in principle to the whole range of foodstuffs. During a later stage, Community provisions should be adopted, aimed at supplementing the existing rules.'

6. Article 1(3)(a) provides:

'"labelling" shall mean any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on any packaging, document, notice, label, ring or collar accompanying or referring to such foodstuff'.

7. Article 3(1) states:

'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;

(2) the list of ingredients;

(3) the quantity of certain ingredients or categories of ingredients as provided for in Article 7;

(4) in the case of prepackaged foodstuffs, the net quantity;

(5) the date of minimum durability or, in the case of foodstuffs which, from the microbiological point of view, are highly perishable, the "use by" date;

(6) any special storage conditions or conditions of use;

(7) the name or business name and address of the manufacturer or packager, or of a seller established within the Community.

...

(8) particulars of the place of origin or provenance where failure to give such particulars might mislead the consumer to a material degree as to the true origin or provenance of the foodstuff;

(9) instructions for use when it would be impossible to make appropriate use of the foodstuff in the absence of such instructions;

(10) with respect to beverages containing more than 1.2% by volume of alcohol, the actual alcoholic strength by volume.'

8. Article 18 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.'

Austrian law

9. Under Paragraph 10(2) of the Lebensmittelkennzeichnungsverordnung 1993 (1993 Regulation on the labelling of foodstuffs, BGBl. 1993-72) as last amended by a regulation published in 1999 (BGBl. II 1999-462, 'the LMKV'), the following obligation must be observed in respect of packaged foodstuffs:

'If the period of minimum durability has expired, that fact must be indicated clearly and in a generally intelligible manner.'

10. Pursuant to point 2 of Paragraph 74(4) of the Lebensmittelgesetz 1975 (1975 Law on foodstuffs, BGBl. 1975-86, amended in 1999, BGBl. I 1999-157, 'the LMG'), failure to fulfil that obligation constitutes a misdemeanour punishable by an administrative fine.

11. The national court explains that the Verwaltungsgerichtshof (Administrative Court) considers that a mere indication of the minimum period of durability of a food stuff does not suffice to meet the requirements of Paragraph 10(2) of the LMKV, and that it is necessary to add an indication that the period of minimum durability of that foodstuff has expired where that is so.

The main proceedings and the question referred

12. Ms Müller, in her capacity as the representative of Spar Österreichische Warenhandels AG, was found guilty of offering for sale and thus putting into circulation Zwettler Kuenringer Festbock beer, a packaged foodstuff, on 22 August 2000 without indicating that its period of minimum durability had expired on 14 August 2000.

13. Ms Müller was ordered to pay a fine of ATS 2 000 by an administrative decision imposing a penalty, taken on 26 February 2001 by the Bezirkshauptmannschaft Zwettl (first-instance administrative authority of Zwettl) in application of the LMG.

14. Ms Müller brought an appeal against that decision before the national court which has referred this question, in which she claimed that Directives 79-112 and 2000-13 preclude an obligation such as that laid down in Paragraph 10(2) of the LMKV. In those circumstances, the Unabhängiger Verwaltungssenat im Land Niederösterreich considered it necessary to stay proceedings and to refer the following question to the Court for a preliminary ruling:

'Do 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 for sale to the ultimate consumer, in the version prior to the entry into force 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 ... , in particular Article 15 thereof, and Directive 2000-13-EC ... , in particular Article 18 thereof, preclude a national rule which provides that, where foodstuffs are offered for sale after the period of their minimum durability has expired, that fact must be indicated clearly and in a generally intelligible manner in addition to the expiry date itself?'

The question referred

15. By its question, which may be examined solely in the light of Directive 2000-13, the national court is asking essentially whether that directive, and in particular Article 18 thereof, must be interpreted as precluding a national rule which provides that where the period of minimum durability of a foodstuff has expired, that fact must be indicated separately, clearly and in a generally intelligible manner.

16. Ms Müller submits that the national requirement to indicate separately the fact that the period of minimum durability has expired constitutes a restriction on the free movement of goods inasmuch as it requires an additional operation which increases distribution costs. That restriction is not covered by the exceptions provided for in Directive 2000-13. In particular, since the minimum durability of a foodstuff must itself be indicated clearly in a generally intelligible way, the additional obligation regarding the fact that the period of durability has expired is not essential to protect consumers against fraud.

17. By contrast, the Austrian Government and the Commission submit that the additional information required under the national rules is not contrary to Directive 2000-13.

18. According to the Austrian Government, a rule such as the one at issue in the main proceedings is a non-harmonised national provision within the meaning of Directive 2000-13, which is justified on the grounds of prevention of fraud and protection of public health set out in Article 18(2) of that directive.

19. The Commission recalls that the task of harmonising the rules on labelling undertaken in Directive 2000-13 has not yet been completed, and maintains that rules such as the one at issue in the main proceedings are not, at present, covered by that directive. Such a rule must therefore be examined in the light of Article 28 EC. It submits that the rule in question is compatible with that provision because it applies without discrimination, and because even if it constitutes a restriction on the free movement of goods that restriction is justified on the public interest grounds of prevention of fraud and unfair competition.

20. Under Article 18(2) of Directive 2000-13 the same public interest grounds may also be relied on if it is found that, in contrast to the interpretation advocated by the Commission, a rule such as the one at issue in the main proceedings comes within the scope of the directive.

Findings of the Court

21. The Court must first examine whether a national rule such as the one laid down in Paragraph 10(2) of the LMKV comes within the scope of Directive 2000-13. For that purpose, it is necessary to ascertain whether the rule is a rule on labelling within the meaning of Article 1(3)(a) of that directive and whether the situation envisaged by it is governed by the provisions of that directive.

22. Article 1(3)(a) of Directive 2000-13 provides that, for the purposes of the directive, 'labelling' covers words and particulars relating to a foodstuff and placed on any packaging, document, notice, label, ring or collar accompanying or referring to such foodstuff.

23. The national provision at issue in the main proceedings lays down the obligation, where the period of minimum durability of a foodstuff has expired, to clearly indicate that fact in a generally intelligible manner. The national court has stated that this requires a separate reference to that fact, but that no particular form is prescribed.

24. The information required under Paragraph 10(2) of the LMKV relates to a foodstuff and must appear on a medium, the nature of which is not specified, but which could, in particular, be a notice or label accompanying or referring to that foodstuff. It follows that a provision such as Paragraph 10(2) is a rule on labelling within the meaning of Article 1(3)(a) of Directive 2000-13.

25. It is also necessary to ascertain whether the provisions of Directive 2000-13 govern the situation envisaged by such a rule on labelling.

26. As is clear from the second and third recitals in its preamble, Directive 2000-13 is intended to harmonise the Member States' laws on the labelling of foodstuffs so that they cease to impede, by reason of their diversity, the free circulation of those products.

27. In the 10th recital in Directive 2000-13, the Community legislature acknowledges that it has not yet succeeded in harmonising all the rules on labelling by providing an exhaustive list of all the permissible compulsory indications, and that it intends to supplement the existing rules at a later stage.

28. It is nevertheless clear from Directive 2000-13, read in the light of those recitals, that it governs all rules on labelling, as defined in Article 1(3)(a) thereof, by, first, providing for the harmonisation of certain national provisions and, second, establishing rules governing non-harmonised national provisions. As regards the non-harmonised provisions, Article 18 of the directive provides that the Member States may not prohibit trade in foodstuffs which comply with the rules laid down in the directive by application of non-harmonised national provisions unless they are justified on one of the grounds referred to in paragraph 2 of that article.

29. The rule on labelling that requires separate mention of the expiry of the period of minimum durability of foodstuffs is not included in the compulsory indications referred to in Article 3 of Directive 2000-13, which merely requires that the date of minimum durability be indicated in accordance with the detailed rules set out in Article 9 of the directive. Moreover, no other provision of that directive specifically addresses the situation envisaged by Paragraph 10 of the LMKV.

30. A rule on labelling such as the one at issue in the main proceedings is therefore a non-harmonised national provision which comes within the scope of Directive 2000-13.

31. Secondly, the Court must ascertain whether such a rule is justified on one of the grounds set out in Article 18(2) of Directive 2000-13.

32. According to the Austrian Government, a national provision such as the one at issue in the main proceedings is justified on the grounds of prevention of fraud on consumers and protection of public health.

33. As regards the prevention of fraud, the aim of such a provision is to inform the consumer of the characteristics of a foodstuff and, in particular, of the fact that because the period of minimum durability has expired, the product has lost its initial freshness. That information is capable of preventing fraud on the consumer, who, as the Austrian Government and the Commission point out, can, as a result, be sure that the product offered for sale retains all its original characteristics if the date of minimum durability has not passed.

34. It is necessary, however, to consider whether a national provision such as the one at issue in the main proceedings complies with the principle of proportionality set out in the second indent of Article 18(2) of Directive 2000-13, which provides that national provisions justified on the grounds of prevention of fraud must not be 'liable to impede the application of the definitions and rules' laid down in the directive.

35. As Advocate General Tizzano correctly observes in point 48 of his Opinion, the obligation to indicate clearly and in a generally intelligible manner the fact that the period of minimum durability has expired, limits trade in goods a great deal less than an outright marketing prohibition. Moreover, the national provision does not necessarily require an additional label to be affixed to every item offered for sale after the period of minimum durability has expired, but may be fulfilled by other means. It is clear that such a measure does not go beyond what is necessary to prevent fraud.

36. It follows that an obligation, such as the one laid down in the national provision at issue in the main proceedings, to indicate clearly and in a generally intelligible manner the fact that the period of minimum durability has expired is justified by the aim of prevention of fraud, which is one of the justifications set out in Article 18(2) of Directive 2000-13.

37. In the light of the foregoing, it is not necessary to examine the second justification relied on by the Austrian Government, concerning the need to protect public health.

38. In those circumstances, the answer to the question referred must be that Directive 2000-13 does not preclude a national rule which provides that, where the period of minimum durability of a foodstuff has expired, that fact must be indicated separately, clearly and in a generally intelligible manner. Such a rule is a non-harmonised national provision justified on the ground of prevention of fraud as provided for in Article 18(2) of the directive.

Costs

39. The costs incurred by the Austrian 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 (Fifth Chamber),

in answer to the question referred to it by the Unabhängiger Verwaltungssenat im Land Niederösterreich by decision of 1 June 2001, hereby rules:

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 does not preclude a national rule which provides that, where the period of minimum durability of a foodstuff expired, that fact must be indicated separately, clearly and in a generally intelligible manner. Such a rule is a non-harmonised national provision justified on the ground of prevention of fraud as provided for in Article 18(2) of the directive.