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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Douwe Egberts (Approximation of laws) [2004] EUECJ C-239/02 (15 July 2004)
URL: http://www.bailii.org/eu/cases/EUECJ/2004/C23902.html
Cite as: [2004] EUECJ C-239/02, [2004] EUECJ C-239/2

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JUDGMENT OF THE COURT (Second Chamber)
15 July 2004 (1)

(Approximation of laws -� Interpretation of Article 28 EC and of Directives 1999/4/EC and 2000/13/EC -� Validity of Directive 1999/4/EC -� Labelling and advertising of foodstuffs -� Prohibitions of references to health)

In Case C-239/02,

REFERENCE to the Court under Article 234 EC by the Rechtbank van Koophandel te Hasselt (Belgium) for a preliminary ruling in the proceedings before that court between

Douwe Egberts NV

and

Westrom Pharma NV,

Christophe Souranis, carrying on business under the commerical name of -�Etablissements FICS-�,

and between

Douwe Egberts NV

and

FICS-World BVBA,

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)

THE COURT (Second Chamber),

composed of: C.W.A. Timmermans, President of the Second Chamber, J-.P. Puissochet, J.N. Cunha Rodrigues (Rapporteur), R. Schintgen and N. Colneric, Judges,

Advocate General: L.A. Geelhoed,
Registrar: M.-F. Contet, Principal Administrator,

After considering the written observations submitted on behalf of:

-� Douwe Egberts NV, by G. Glas and A. Wilsens, advocates,

-� FICS-World BVBA, by Y. Van Wallendael, advocaat,

-� the Belgian Government, by A. Snoecx, acting as Agent,

-� the European Parliament, by A. Baas and M. Moore, acting as Agents,

-� the Council of the European Union, by E. Karlsson, acting as Agent,

-� the Commission of the European Communities, by M. França and M.H. Speyart, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of Douwe Egberts NV, represented by T. Heremans, advocaat, FICS-World BVBA, represented by Y. Van Wallendael and M. Roosen, advocaat, the Belgian Government, represented by J. Devadder and D. Haven, acting as Agents, the Parliament, represented by A. Baas and M. Moore, the Council, represented by E. Karlsson and B. Driessen, acting as Agent, and the Commission, represented by M.-J. Jonczy and A. Nijenhuis, acting as Agents, at the hearing on 6 November 2003,

after hearing the Opinion of the Advocate General at the sitting on 11 December 2003,

gives the following

Judgment

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).

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

Article 2 of Directive 1999/4 states:

Under Article 3 thereof:

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

Article 2(1) of Directive 2000/13 provides:

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.

Under Article 3(1) of that directive:

-�-�

Under Article 5 of the directive:

Under Article 18 of Directive 2000/13:

National legislation

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:

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

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

Dispute in the main proceedings and questions referred

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.

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.

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:

Preliminary observations

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.

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).

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

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.

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.

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.

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-�.

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.

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.

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.

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.

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

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.

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

Third, fourth and fifth questions

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.

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.

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.

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

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).

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.

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).

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.

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.

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).

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).

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.

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.

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.

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).

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

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.

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.

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.

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).

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).

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).

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

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).

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.

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).

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).

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

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),

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-�.

Timmermans	Puissochet	Cunha Rodrigues
Schintgen		Colneric

R. Grass

C.W.A. Timmermans

Registrar

President of the Second Chamber

1 -� Language of the case: Dutch.

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