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Cite as: [2003] EUECJ C-12/, [2003] EUECJ C-12/00, [2003] ECR I-459, [2005] 2 CMLR 33

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JUDGMENT OF THE COURT (Sixth Chamber)

16 January 2003 (1)

(Failure by a Member State to fulfil obligations - Free movement of goods - Directive 73/241/EEC - Cocoa and chocolate products containing fats other than cocoa butter - Products lawfully manufactured and marketed in the Member State of production under the sales name 'chocolate' - Prohibition on marketing under that name in the Member State of marketing)

In Case C-12/00,

Commission of the European Communities, represented by G. Valero Jordana, acting as Agent, with an address for service in Luxembourg,

applicant,

Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that, by prohibiting cocoa and chocolate products to which vegetable fats other than cocoa butter have been added, and which are lawfully manufactured in Member States which authorise the addition of those fats, from being marketed in Spain under the name used for their marketing in the Member State of production, the Kingdom of Spain has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC),

THE COURT (Sixth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen, V. Skouris (Rapporteur), N. Colneric and J.N. Cunha Rodrigues, Judges,

Advocate General: S. Alber,

Registrar: D. Louterman-Hubeau, Head of Division,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 25 October 2001,

after hearing the Opinion of the Advocate General at the sitting on 6 December 2001,

gives the following

Judgment

By application lodged at the Court Registry on 14 January 2000, the Commission of the European Communities brought an action under Article 226 EC for a declaration that, by prohibiting cocoa and chocolate products to which vegetable fats other than cocoa butter have been added, and which are lawfully manufactured in Member States which authorise the addition of those fats, from being marketed in Spain under the name used for their marketing in the Member State of production, the Kingdom of Spain has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC).

Legal framework

Community law

Council Directive 73/241/EEC of 24 July 1973 on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption (OJ 1973 L 228, p. 23) states, in the fourth recital in the preamble, that 'it is necessary to approximate the provisions relating to these products and to lay down definitions and common rules in respect of the composition, manufacturing specifications, packaging and labelling of these products in order to ensure their free movement'.

The fifth recital in the preamble to the directive specifies that 'it is not possible in this directive to harmonise all those provisions applying to foodstuffs which may impede trade in cocoa and chocolate products, although obstacles that persist because of this are bound to decrease as national provisions relating to foodstuffs are increasingly harmonised'.

According to the seventh recital in the preamble to Directive 73/241, 'the use of vegetable fats other than cocoa butter in chocolate products is permitted in certain Member States, and extensive use is made of this facility; ... however, a decision relating to the possibilities and forms of any extension of the use of these fats in the Community as a whole cannot be taken at the present time, as the economic and technical data currently available are not sufficient to enable a final position to be adopted; ... the situation will consequently have to be re-examined in the light of future developments'.

Article 1 of Directive 73/241 states:

'For the purposes of this directive, cocoa and chocolate products shall mean the products intended for human consumption defined in Annex I.'

Article 10(1) of Directive 73/241 provides:

'Member States shall adopt all the measures necessary to ensure that trade in the products referred to in Article 1, which comply with the definitions and rules laid down in this directive and in Annex I thereof, cannot be impeded by the application of national non-harmonised provisions governing the composition, manufacturing specifications, packaging or labelling of these products in particular or of foodstuffs in general.'

Article 14(2)(a) of Directive 73/241 is worded as follows:

'This directive shall not affect the provisions of national laws:

(a) at present authorising or prohibiting the addition of vegetable fats other than cocoa butter to the chocolate products defined in Annex I. At the end of a period of three years from the notification of this directive the Council shalldecide, on a proposal from the Commission, on the possibilities and the forms of extending the use of these fats to the whole of the Community.'

Annex I to Directive 73/241 defines chocolate in point 1.16 as 'the product obtained from cocoa nib, cocoa mass, cocoa powder or fat-reduced cocoa powder and sucrose with or without added cocoa butter, having, without prejudice to the definition of chocolate vermicelli, gianduja nut chocolate and couverture chocolate, a minimum total dry cocoa solids content of 35% - at least 14% of dry non-fat cocoa solids and 18% of cocoa butter - these percentages to be calculated after the weight of the additions provided for in paragraphs 5 to 8 has been deducted'.

The first paragraph of point 7(a) of Annex I to Directive 73/241 is worded as follows:

'Without prejudice to Article 14(2)(a), edible substances, with the exception of flour and starches and of fats and fat preparations not derived exclusively from milk, may be added to chocolate, plain chocolate, couverture chocolate, milk chocolate, milk chocolate with high milk content, couverture milk chocolate and to white chocolate.'

Directive 73/241 is repealed with effect from 3 August 2003 by the first paragraph of Article 7 of Directive 2000/36/EC of the European Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for human consumption (OJ 2000 L 197, p. 19).

Directive 2000/36 states, in the fifth to seventh recitals in its preamble:

'(5) The addition to chocolate products of vegetable fats other than cocoa butter, up to a maximum of 5%, is permitted in certain Member States.

(6) The addition of certain vegetable fats other than cocoa butter to chocolate products, up to a maximum of 5%, should be permitted in all Member States; those vegetable fats should be cocoa butter equivalents and therefore be defined according to technical and scientific criteria.

(7) In order to guarantee the single nature of the internal market, all chocolate products covered by this directive must be able to move within the Community under the sales names set out in the provisions of Annex I to this directive.'

Article 2(1) and (2) of Directive 2000/36 provides:

'1. The vegetable fats other than cocoa butter as defined in Annex II and listed therein may be added to those chocolate products defined in Annex I(A)(3), (4), (5), (6), (8) and (9). That addition may not exceed 5% of the finished product, after deduction of the total weight of any other edible matter used in accordance with Annex I(B), without reducing the minimum content of cocoa butter or total dry cocoa solids.

2. Chocolate products which, pursuant to paragraph 1, contain vegetable fats other than cocoa butter may be marketed in all of the Member States, provided that their labelling, as provided for in Article 3, is supplemented by a conspicuous and clearly legible statement: contains vegetable fats in addition to cocoa butter. This statement shall be in the same field of vision as the list of ingredients, clearly separated from that list, in lettering at least as large and in bold with the sales name nearby; notwithstanding this requirement, the sales name may also appear elsewhere.'

Finally, according to Article 8(1) and (2) of Directive 2000/36:

'1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive before 3 August 2003. They shall immediately inform the Commission thereof.

2. These measures shall be applied so as to:

- authorise the marketing of the products defined in Annex I if they conform to the definitions and rules laid down in this directive, with effect from 3 August 2003,

- prohibit the marketing of products which fail to conform to this directive, with effect from 3 August 2003.

However, the marketing of products failing to comply with this directive but labelled before 3 August 2003 in accordance with Council Directive 73/241/EEC shall be permitted until stocks are exhausted.'

According to the second paragraph of Article 14 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), 'the Member States shall ... ensure that the sale of foodstuffs within their own territories is prohibited if the particulars provided [for] in Article 3 and Article 4(2) do not appear in a language easily understood by purchasers, unless other measures have been taken to ensure that the purchaser is informed'.

The second paragraph of Article 14 of Directive 79/112 was deleted by Directive 97/4/EC of the European Parliament and of the Council of 27 January 1997 amending Directive 79/112 (OJ 1997 L 43, p. 21).

Article 5(1)(b) and (c) of Directive 79/12, as amended by Directive 97/4, provides:

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

...

(b) The use in the Member State of marketing of the sales name under which the product is legally manufactured and marketed in the Member State of production shall also be allowed.

However, where the application of the other provisions of this directive, in particular those set out in Article 3, would not enable consumers in the Member State of marketing to know the true nature of the foodstuff and to distinguish it from foodstuffs with which they could confuse it, the sales name shall be accompanied by other descriptive information which shall appear in proximity to the sales name.

(c) In exceptional cases, the sales name of the Member State of production shall not be used in the Member State of marketing when the foodstuff which it designates is so different, as regards its composition or manufacture, from the foodstuff known under that name that the provisions of point (b) are not sufficient to ensure, in the Member State of marketing, correct information for consumers.'

Directive 79/112 was repealed by 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). Article 16(1) and (2) of the latter directive is worded as follows:

'1. Member States shall ensure that the sale is prohibited within their own territories of foodstuffs for which the particulars provided for in Article 3 and Article 4(2) do not appear in a language easily understood by the consumer, unless the consumer is in fact informed by means of other measures determined in accordance with the procedure laid down in Article 20(2) as regards one or more labelling particulars.

2. Within its own territory, the Member State in which the product is marketed may, in accordance with the rules of the Treaty, stipulate that those labelling particulars shall be given in one or more languages which it shall determine from among the official languages of the Community.'

National legislation

Real Decreto No 822/1990 of 22 June 1990 (BOE No 154 of 28 June 1990, p. 3399, hereinafter 'Royal Decree 822/1990') enacted the Reglamentación Técnico-Sanitaria para la elaboración, circulación y comercio de cacao y chocolate (Pure food regulation on the manufacture, distribution and marketing of cocoa and chocolate).

Article 2(16) of that regulation, entitled 'Definitions and sales names', defines chocolate as 'the product obtained from cocoa nib, cocoa mass, cocoa powder or fat-reduced cocoa powder and sucrose with or without added cocoa butter, having, withoutprejudice to the definition of chocolate vermicelli, gianduja nut chocolate and couverture chocolate, a minimum total dry cocoa solids content of 35% - at least 14% of dry non-fat cocoa solids and 18% of cocoa butter ...'.

In addition, Article 4(1) of that regulation, entitled 'Prohibited methods', provides:

'In products from cocoa beans, cocoa nib, cocoa mass, cocoa cakes and cocoa powder, it is prohibited:

- to use fats other than cocoa butter;

...'.

Real Decreto No 823/1990 of 22 June 1990 (BOE No 154 of 28 June 1990, p. 3407, hereinafter 'Royal Decree 823/1990') enacted the Reglamentación Técnico-Sanitaria para la elaboración, circulación y comercio de productos derivados de cacao, derivados de chocolate y sucedáneos de chocolate (Pure food regulation on the manufacture, distribution and marketing of products derived from cocoa, products derived from chocolate and chocolate substitutes).

Article 2(7) of that regulation, entitled 'Definitions and names', includes the following definition:

'Chocolate substitutes: preparations which, specially formed or molded and likely by their presentation, appearance or consumption to be confused with chocolate, fulfil the specific requirements for those preparations laid down by the pure food regulation on the manufacture, distribution and marketing of cocoa and chocolate (enacted by Royal Decree 822/1990), ... apart from the total or partial substitution for cocoa butter of other edible vegetable fats or their hydrogenated or non-hydrogenated parts, and a clear differentiation in labelling.'

Pre-litigation procedure

On 9 October 1989, the Spanish Government notified to the Commission, pursuant to Council Directive 83/189/EEC of 28 March 1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983 L 109, p. 8), the drafts of Royal Decrees 822/1990 and 823/1990, which were subsequently adopted.

The meetings held and the correspondence exchanged in response to that notification made it clear that the Spanish authorities interpret Royal Decree 822/1990 to mean that products to which vegetable fats other than cocoa butter have been added, and which are lawfully manufactured in Member States which authorise the addition of such fats,may not be marketed in Spain under the name 'chocolate', as in the Member States of production, but solely under the name 'chocolate substitute'.

Since it considered that this constituted a restriction on the free movement of cocoa and chocolate products lawfully manufactured in other Member States, the Commission, after formally giving the Kingdom of Spain notice to submit its observations, sent that Member State a reasoned opinion on 29 July 1998 requesting it to comply with its obligations under Article 30 of the Treaty within two months of the notification of that opinion.

The Spanish Government replied, by letter of 9 November 1998, that Royal Decree 822/1990 was in compliance with Directive 73/241 and that the problem raised in the reasoned opinion would be resolved by the amendment of that directive, which was being prepared at the time.

In those circumstances, the Commission decided to bring the present action.

Substance

Arguments of the parties

First of all, the Commission makes clear that its action relates to the provisions of Royal Decree 822/1990 in so far as they are interpreted by the Spanish authorities as prohibiting the marketing in Spain under the name 'chocolate' of cocoa and chocolate products which are lawfully manufactured and marketed in other Member States, when they contain vegetable fats other than cocoa butter.

The Commission states that chocolate containing vegetable fats other than cocoa butter up to a maximum of 5% of the total weight of the product is manufactured under the name 'chocolate' in six Member States (Denmark, Ireland, Portugal, Sweden, Finland and the United Kingdom), that it is accepted under that name in all the Member States, with the exception of Spain and Italy, and that it is included under that name in Directive 73/241.

The Commission also points out that, with respect to cocoa-based ingredients, such a product meets the specifications for the composition of 'chocolate' set by Directive 73/241, since the addition of fats other than cocoa butter does not imply any reduction in the minimum content required by that directive.

In those circumstances, the interpretation put forward by the Spanish Government would mean dividing the Member States into two groups - that is, an area of free movement of chocolate, comprising the Member States which accept marketing under the name 'chocolate' of chocolate containing vegetable fats other than cocoa butter, and an area where rules on the 'purity' of chocolate would apply, comprising the Member States which not only do not authorise the manufacture within their territory ofchocolate which contains vegetable fats other than cocoa butter, but which also prohibit its marketing under the name 'chocolate'.

The Commission explains that the problem results from the interpretation of Directive 73/241 advocated by the Spanish Government rather than from the directive itself. It maintains that since Directive 73/241 does not definitively regulate the use throughout the Community of vegetable fats other than cocoa butter in the manufacture of cocoa and chocolate products, the directive cannot be interpreted as tolerating national rules preventing the marketing of cocoa and chocolate products containing such vegetable fats which are lawfully manufactured and marketed in the Member State of production in compliance with the directive. Accordingly, national legislation of that type must be assessed in the light of Article 30 of the Treaty.

In that regard, the Commission takes the view that the obligation under the Spanish legislation to market the products in question under the name 'chocolate substitute' significantly obstructs their access to the Spanish market, thereby constituting a measure having equivalent effect to a quantitative restriction, in breach of Article 30 of the Treaty.

First, the obligation to alter the sales name involves additional packaging and labelling operations, thus leading to increased marketing costs in Spain. Secondly, the term 'substitute' is pejorative, since it always refers to a product which seeks to replace another without possessing all the properties which give the product for which it is substituted its value.

Basing its argument both on the case-law of the Court and on Article 5(1)(c) of Directive 79/112 as amended by Directive 97/4, the Commission claims that prohibiting the use of the sales name allowed in the Member State of production can be justified only when the product at issue is so different, as regards its composition or manufacture, from the goods generally known under that name in the Community that it can no longer be considered as belonging to the same category.

However, the Commission considers that it is not possible to claim that the addition of vegetable fats other than cocoa butter to a chocolate product which contains the minimum contents required under Directive 73/241 substantially changes the nature of the product, to the point where the use of the name 'chocolate' would create confusion as regards its basic characteristics.

In addition, the Commission maintains that the Spanish legislation cannot be justified by an overriding requirement relating to consumer protection, since in the present case measures exist which are less restrictive of the free movement of cocoa and chocolate products and which ensure the protection of consumer interests, such as the inclusion in the label of a neutral and objective indication which informs consumers of the presence in the product of vegetable fats other than cocoa butter.

The Spanish Government states that, while it agrees with the Commission that Directive 73/241 has not settled the question of the use, within the Community, of vegetable fats other than cocoa butter in the manufacture of cocoa and chocolate products, it concludes from the definition of chocolate set out in point 1.16 of Annex I to that directive that it provides for full harmonisation as regards the composition of products which can be marketed under the name 'chocolate' and that products containing vegetable fats other than cocoa butter cannot be considered to comply with the definitions and rules provided for in that directive, in accordance with Article 10(1) thereof.

Since it therefore considers that products containing vegetable fats other than cocoa butter are manufactured in accordance with the national rules of the Member State of production but not in compliance with Directive 73/241, it disputes the assertion that the interpretation which it advocates undermines the unity of the internal market. In particular, it maintains that, since the use of vegetable fats other than cocoa butter is a matter for the Member States to decide, it is not really possible to speak of an internal market in cocoa and chocolate products which contain those other vegetable fats. In those circumstances, it considers that it is permissible for the Member States to enact, where appropriate, a prohibition on marketing such products within their territory under the sales name 'chocolate' when they do not comply with the relevant national legislation.

That interpretation is, moreover, supported by the fact that it was necessary to amend the Community legislation in order to make it generally admissible within the Community to use vegetable fats other than cocoa butter in chocolate and thus to arrive at what the Commission seeks to impose on the Kingdom of Spain by means of the present action for failure to fulfil obligations.

Since it alleged, in addition, that the Court has consistently held that the interpretation of national law, whether adopted before or after a directive, must be carried out in the light thereof and that every national court, when it interprets and applies national law, must presume that the Member State had the intention of fulfilling entirely the obligations arising from that directive, the Spanish Government contends that it should be presumed that it had the intention of complying with Directive 73/241 and that the interpretation of its national legislation is in compliance with that directive. In those circumstances, it takes the view that if the directive is found to contain provisions contrary to the free movement of goods, the responsibility must be attributed to the Council, as author of the directive.

The Spanish Government denies that its national legislation constitutes a measure with equivalent effect to a quantitative restriction and maintains that it is merely a selling arrangement within the meaning of the judgment in Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097. It contends, in particular, that the conditions set out in that judgment are satisfied in the present case, since the Spanish legislation which governs the name 'chocolate substitute', under which cocoa and chocolate products containing vegetable fats other than cocoa butter can be marketed,applies to national and foreign operators alike and affects in the same manner the marketing of domestic products and of imported products.

The Spanish Government considers that, in any event, access to the Spanish market for the products in question is not made more difficult by its national legislation.

First, it contends that the term 'chocolate substitute' is neutral and merely reflects an objective reality, which is that cocoa and chocolate products which contain vegetable fats other than cocoa butter and those which do not are not the same. It adds that the term is a traditional one in Spain and that, in the absence of harmonised legislation in the field, the principle of equality requires the Commission to respect the traditional names in each Member State.

Secondly, it maintains that the requirement to change the sales name of cocoa and chocolate products containing vegetable fats other than cocoa butter does not increase the cost of marketing those products in Spain, since that cost is already assumed by importers in order to draw up labels in a language easily understood by the consumer.

In that regard, it should be noted that Article 16 of Directive 2000/13 gives the Member State in which the product is marketed the possibility, already introduced into Directive 79/112 by Directive 97/4, to stipulate within its own territory, in accordance with the rules of the Treaty, that obligatory labelling particulars be given in one or more languages, which it is to determine from among the official languages of the Community. Accordingly, when Directive 97/4 was transposed into Spanish law, it was required that foodstuffs marketed in Spain bear a label on which obligatory particulars would appear in Spanish.

It therefore contends that if, at the time of the repackaging which is in any event required, the term 'chocolate' is replaced by the expression 'chocolate substitute', it will not involve any additional marketing costs for the products in question.

The Spanish Government points out that its national legislation is justified on the basis of consumer protection, since its objective is to ensure the quality of the product known to Spanish consumers and which satisfies the definition set out in point 1.16 of Annex I to Directive 73/241, which does not refer to vegetable fats other than cocoa butter. In the first place, a reference on the label to the presence of vegetable fats other than cocoa butter does not convey anything to Spanish consumers, while the traditional sales name 'chocolate substitute' adequately informs them and, secondly, the addition of vegetable fats other than cocoa butter alters, inter alia, the quality, taste, consistency and durability of the product.

Moreover, the Government does not consider it permissible to extend to the whole of the Community, under the Community legislation in force at present, an exception which is used in national law in only six Member States, when Directive 73/241 leavesthe Member States free to authorise or prohibit the addition of vegetable fats other than cocoa butter.

Finally, the Spanish Government states that, even if it immediately amended its national legislation in order to permit the marketing within its territory under the name 'chocolate' of cocoa and chocolate products containing vegetable fats other than cocoa butter, Article 8 of Directive 2000/36 would prevent that new legislation from coming into force before 3 August 2003.

Findings of the Court

Extent of the harmonisation achieved by Directive 73/241

First of all, the Commission's complaint that the Spanish legislation is incompatible with Community law, inasmuch as it places restrictions on the free movement of cocoa and chocolate products containing vegetable fats other than cocoa butter, raises the question of the extent of the harmonisation achieved by Directive 73/241.

The Commission considers that there has been no harmonisation regarding the use of such vegetable fats in cocoa and chocolate products, so that any measures which restrict the free movement of products which contain such fats must be assessed in the light of Article 30 of the Treaty.

By contrast, the Spanish Government maintains that Directive 73/241 brought about full harmonisation of precisely that matter, since it lays down the principle that the use of vegetable fats other than cocoa butter is prohibited in the manufacture of cocoa and chocolate products, merely granting Member States the opportunity to derogate from that principle and to maintain in force legislation which authorises, within their national territory, the manufacture and marketing under the name 'chocolate' of products containing such fats.

It therefore concludes that it is only cocoa and chocolate products which do not contain vegetable fats other than cocoa butter which are covered by Directive 73/241 and can therefore qualify for the system of free movement established by Article 10(1) thereof.

In that regard, it should be noted that the Court has consistently held that, in interpreting a provision of Community law, it is necessary to consider not only its wording but also the context in which it occurs and the aims of the rules of which it forms part (see, inter alia, Case C-156/98 Germany v Commission [2000] ECR I-6857, paragraph 50, and Case C-191/99 Kvaerner [2001] ECR I-4447, paragraph 30).

First, as regards the objectives of the provisions in question and the context in which they occur, it is clear that Directive 73/241 was not intended to regulate definitively the use of vegetable fats other than cocoa butter in the cocoa and chocolate products to which it refers.

In that regard, it should be recalled that the directive was adopted by the Council unanimously on the basis of Article 100 of the EEC Treaty (after amendment, Article 100 of the EC Treaty, now in turn Article 94 EC) relating to the approximation of the laws, regulations or administrative provisions of the Member States which directly affect the establishment or functioning of the common market.

In particular, the purpose of the Community legislature in adopting Directive 73/241 was to lay down, as is clear from the fourth recital in its preamble, definitions and common rules in respect of the composition, manufacturing specifications, packaging and labelling of cocoa and chocolate products in order to ensure the free movement of those products within the Community.

None the less, in the seventh recital in the preamble to Directive 73/241, the Community legislature clearly indicated that, in the light of the disparities between Member States' legislation and the insufficient economic and technical data available, it could not, at the time the directive was adopted, take a final position on the use of vegetable fats other than cocoa butter in cocoa and chocolate products.

It must also be pointed out that, as is made clear by the case-file, the reference in the same recital to certain Member States where the use of those other vegetable fats was at that time not merely permitted but, moreover, extensive, referred to three Member States which had acceded to the Community shortly before the adoption of Directive 73/241, namely the Kingdom of Denmark, Ireland and the United Kingdom, and which traditionally permitted the addition to cocoa and chocolate products manufactured within their territory of such vegetable fats up to a maximum of 5% of total weight.

In those circumstances, the Council merely established, for the use of vegetable fats other than cocoa butter, provisional rules which were to be re-examined, in accordance with the second sentence of Article 14(2)(a) of Directive 73/241, at the end of a period of three years from its notification.

It is in the light of those facts that both the wording and the scheme of the provisions of Directive 73/241 relating to the use of vegetable fats other than cocoa butter in the cocoa and chocolate products to which it refers should be analysed.

First, the prohibition on the addition to the various cocoa and chocolate products defined in Annex I to Directive 73/241 of fats and fat preparations not derived exclusively from milk, laid down in point 7(a) of Annex I thereto, is 'without prejudice to Article 14(2)(a)'.

Article 14(2)(a) for its part expressly provides that Directive 73/241 is not to affect the provisions of national law which authorise or prohibit the addition of vegetable fats other than cocoa butter.

That provision therefore makes clear that, as regards the use of those other vegetable fats, Directive 73/241 does not seek to establish a fully harmonised system under which common rules completely replace existing national rules in the field, since it explicitly authorises the Member States to lay down national rules which are different from the common rules which it provides for.

In addition, in the light of its wording, that provision cannot be interpreted as merely providing for a derogation to the principle set out in point 7(a) of Annex I to Directive 73/241 that the addition to the products referred to of vegetable fats other than cocoa butter is prohibited.

First, Article 14(2)(a) of Directive 73/241 refers not only to national laws which authorise the addition of vegetable fats other than cocoa butter but also to those which prohibit that addition.

Secondly, that provision states that the Council must subsequently decide on the possibilities and the forms of extending the use of those fats to the whole of the Community, which demonstrates that the Community legislature was contemplating only the possibility of allowing or rejecting such an extension, and not of prohibiting that use throughout the Community.

Both the wording and the scheme of Directive 73/241 indicate therefore that it lays down a common rule, that is, the prohibition laid down in point 7(a) of Annex I, and establishes in Article 10(1) free movement for products which comply with that rule, while permitting Member States in Article 14(2)(a) to adopt national rules authorising the addition of vegetable fats other than cocoa butter to cocoa and chocolate products manufactured within their territory.

Applicability of Article 30 of the Treaty

The preceding analysis makes clear that, in contrast to the argument put forward by the Spanish Government, cocoa and chocolate products containing fats not referred to in point 7(a) of Annex I to the directive but whose manufacture and marketing under the name 'chocolate' are authorised in certain Member States, in compliance with that directive, cannot be deprived of the benefit of free movement of goods guaranteed by Article 30 of the Treaty solely on the ground that other Member States require within their territory that cocoa and chocolate products be manufactured according to the common rule regarding composition provided for in point 7(a) of Annex I to the directive (see, by analogy, Case C-3/99 Ruwet [2000] ECR I-8749, paragraph 44).

The Court has consistently held that Article 30 of the Treaty aims to prohibit all rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (Case 8/74 Dassonville [1974] ECR 837, paragraph 5).

In accordance with the judgment in Case 120/78 Rewe-Zentral [1979] ECR 649, 'Cassis de Dijon', Article 30 of the Treaty prohibits obstacles to the free movement of goods, in the absence of harmonisation of national laws, 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 those goods (such as those relating to their name, form, size, weight, composition, presentation, labelling and packaging), even if those rules apply to national and imported products alike (see, inter alia, Keck and Mithouard, cited above, paragraph 15; Case C-470/93 Mars [1995] ECR I-1923, paragraph 12; and Ruwet, cited above, paragraph 46).

Accordingly, that prohibition also applies to obstacles to the marketing of products whose manufacture is not subject to comprehensive harmonisation but which are manufactured in conformity with national rules which are explicitly permitted by the harmonising directive. In such a case, a contrary interpretation would be tantamount to authorising the Member States to partition their national markets in regard to products not covered by the Community's harmonisation rules, contrary to the objective of free movement pursued by the Treaty (see, by analogy, Ruwet, cited above, paragraph 47).

The objection of the Spanish Government that its national legislation constitutes a selling arrangement and accordingly falls outside the application of Article 30 of the Treaty, in accordance with Keck and Mithouard, cited above, must also be rejected.

In that regard, it must be noted that in paragraph 16 of Keck and Mithouard the Court pointed out that the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment, so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.

However, the need to alter the packaging or the labelling of imported products prevents such requirements from being selling arrangements within the meaning of the judgment in Keck and Mithouard (Case C-33/97 Colim [1999] ECR I-3175, paragraph 37).

In those circumstances, it must be concluded that the requirements relating to the labelling and packaging of cocoa and chocolate products containing vegetable fats other than cocoa butter under the Spanish legislation do not come under the exception referred to in Keck and Mithouard.

It is therefore necessary to consider whether and to what extent Article 30 of the Treaty precludes the Spanish legislation, which prohibits the marketing within the national territory of cocoa and chocolate products containing vegetable fats other thancocoa butter under the sales name 'chocolate', under which they are lawfully manufactured and marketed in the Member State of production.

In that regard, it must be noted that, as the Court has consistently held, while a prohibition such as that under the Spanish legislation, which entails the obligation to use a sales name other than that used in the Member State of production, does not absolutely preclude the importation into the Member State concerned of products originating in other Member States, it is nevertheless likely to make their marketing more difficult and thus impede trade between Member States (see, to that effect, inter alia, Case 182/84 Miro [1985] ECR 3731, paragraph 22; Case 298/87 Smanor [1988] ECR 4489, paragraph 12; Case 286/86 Deserbais [1988] ECR 4907, paragraph 12; and Case C-448/98 Guimont [2000] ECR I-10663, paragraph 26).

In the present case, the prohibition on the use of the sales name 'chocolate' under which cocoa and chocolate products containing vegetable fats other than cocoa butter are lawfully manufactured in the Member State of production may compel the traders concerned to adjust the presentation of their products according to the place where they are to be marketed and consequently to incur additional packaging costs. It is therefore liable to obstruct intra-Community trade (see, to that effect, Mars, paragraph 13, and Ruwet, paragraph 48, both cited above).

Moreover, even if, as the Spanish Government maintains, the obligation to change the sales name does not necessarily entail additional packaging costs, it is plain that the name 'chocolate substitute' required in this instance may adversely affect the customer's perception of the products in question, inasmuch as it denotes substitute, and therefore inferior, products.

The Court has consistently held that the requirement for producers to use designations which are unknown to or less highly regarded by consumers is likely to make the marketing of the products in question more difficult and thus impede trade between Member States (see, to that effect, Miro, paragraph 22; Smanor, paragraphs 12 and 13; and Guimont, paragraph 26).

As to whether such legislation may nevertheless comply with Community law, it is settled case-law that obstacles to intra-Community trade resulting from disparities between provisions of national law must be accepted in so far as such provisions are applicable to domestic and imported products alike and may be justified as being necessary in order to satisfy overriding requirements relating inter alia to consumer protection. However, in order to be permissible, such provisions must be proportionate to the objective pursued and that objective must not be capable of being achieved by measures which are less restrictive of intra-Community trade (see, inter alia, Mars, paragraph 15; Case C-313/94 Graffione [1996] ECR I-6039, paragraph 17; Ruwet, paragraph 50; and Guimont, paragraph 27).

In that context, the Court has already held that it is legitimate for a Member State to ensure that consumers are properly informed about the products which are offered tothem, thus giving them the possibility of making their choice on the basis of that information (see, inter alia, Case 216/84 Commission v France [1988] ECR 793, paragraph 11, and Smanor, paragraph 18).

In particular, the Court has consistently held that Member States may, for the purpose of protecting consumers, require those concerned to alter the description of a foodstuff where a product offered for sale under a particular name is so different, in terms of its composition or production, from the products generally understood as falling within that description within the Community that it cannot be regarded as falling within the same category (see, inter alia, Deserbais, paragraph 13, Case C-366/98 Geffroy [2000] ECR I-6579, paragraph 22, and Guimont, paragraph 30).

However, where the difference is of minor importance, appropriate labelling should be sufficient to provide the purchaser or consumer with the necessary information (see, inter alia, Case C-269/89 Bonfait [1990] ECR I-4169, paragraph 15; Case C-383/97 van der Laan [1999] ECR I-731, paragraph 24; Geffroy, paragraph 23; and Guimont, paragraph 31).

It is therefore important to ascertain whether the addition to cocoa and chocolate products of vegetable fats other than cocoa butter substantially alters their composition, so that they no longer present the characteristics expected by consumers buying products bearing the name 'chocolate' and that a label providing appropriate information as to their composition cannot be considered sufficient to avoid confusion in the minds of consumers.

The characteristic element of cocoa and chocolate products within the meaning of Directive 73/241 is the presence of a certain minimum cocoa and cocoa butter content.

In particular, it should be recalled that, in accordance with point 1.16 of Annex I to Directive 73/241, products meeting the definition of chocolate within the meaning of the directive must contain a minimum total dry cocoa solids content of 35%, with at least 14% of dry non-fat cocoa solids and 18% of cocoa butter.

The percentages set by Directive 73/241 are minimum contents which must be complied with by all chocolate products manufactured and marketed under the name 'chocolate' in the Community, independently of whether the legislation of the Member State of production authorises the addition of vegetable fats other than cocoa butter.

In addition, it must be pointed out that, since Directive 73/241 explicitly permits Member States to authorise the use, in the manufacture of cocoa and chocolate products, of vegetable fats other than cocoa butter, it cannot be claimed that the products to which those fats have been added, in compliance with that directive, are altered to the point where they no longer fall into the same category as those which do not contain such fats.

Therefore, the addition of vegetable fats other than cocoa butter to cocoa and chocolate products which satisfy the minimum contents required by Directive 73/241 cannot substantially alter the nature of those products to the point where they are transformed into different products.

It follows that the inclusion in the label of a neutral and objective statement informing consumers of the presence in the product of vegetable fats other than cocoa butter would be sufficient to ensure that consumers are given correct information.

In those circumstances, the obligation to change the sales name of those products which is imposed by the Spanish legislation does not appear to be necessary to satisfy the overriding requirement of consumer protection.

It follows that that legislation, to the extent that it requires the name of products which are lawfully manufactured and marketed in other Member States under the sales name 'chocolate' to be altered for the sole reason that they contain vegetable fats other than cocoa butter, is incompatible with Article 30 of the Treaty.

Finally, the argument put forward by the Spanish Government that in any event it is barred by Article 8 of Directive 2000/36 from introducing before 3 August 2003 new legislation allowing the marketing within its own territory of cocoa and chocolate products containing vegetable fats other than cocoa butter, must be rejected as immaterial.

The Court has consistently held that a rule of secondary legislation, such as Article 8 of Directive 2000/36, cannot be interpreted as authorising the Member States to impose or to maintain conditions contrary to the Treaty rules on the free movement of goods (Case C-47/90 Delhaize et Le Lion [1992] ECR I-3669, paragraph 26; Case C-315/92 Verband Sozialer Wettbewerb [1994] ECR I-317, 'Clinique', paragraph 12; and Joined Cases C-427/93, C-429/93 and C-436/93 Bristol-Myers Squibb and Others [1996] ECR I-3457, paragraph 27).

In the light of all the foregoing considerations, it must be held that, by prohibiting cocoa and chocolate products which comply with the requirements as to minimum content laid down in point 1.16 of Annex I to Directive 73/241 to which vegetable fats other than cocoa butter have been added, and which are lawfully manufactured in Member States which authorise the addition of those fats, from being marketed in Spain under the name used for their marketing in the Member State of production, the Kingdom of Spain has failed to fulfil its obligations under Article 30 of the Treaty.

Costs

On those grounds,

THE COURT (Sixth Chamber)

hereby:

1. Declares that, by prohibiting cocoa and chocolate products which comply with the requirements as to minimum content laid down in point 1.16 of Annex I to Council Directive 73/241/EEC of 24 July 1973 on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption to which vegetable fats other than cocoa butter have been added, and which are lawfully manufactured in Member States which authorise the addition of those fats, from being marketed in Spain under the name used for their marketing in the Member State of production, the Kingdom of Spain has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC);

2. Orders the Kingdom of Spain to bear the costs.

PuissochetSchintgen Skouris

ColnericCunha Rodrigues

Delivered in open court in Luxembourg on 16 January 2003.

R. Grass J.-P. Puissochet

Registrar President of the Sixth Chamber

1: Language of the case: Spanish.