C-241/89
ECLI:EU:C:1990:338
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SARPP
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 2 October 1990*
Mr President, preliminary ruling it has no jurisdiction to Members of the Court, decide whether provisions of national law are compatible with Community law. However, if a reference for a preliminary ruling is imprecisely formulated, it may identify the question of Community law in 1. In this reference for a preliminary ruling terms which enable it to give a ruling. the Tribunal de grande instance (Regional Court), Paris, asks the Court whether Article 10(1) of Law No 88-14 of 5 January 1988 and the Order of 11 March 1988 are compatible with Article 30 of the EEC Moreover, as the Commission has rightly Treaty inasmuch as they prohibit any pointed out, in order to give satisfactory statement alluding to the physical, chemical guidance to the national court, it is or nutritional properties of sugar or to the necessary in particular to refer to the rules word 'sugar' in the labelling or advertising laid down in Council Directive of artificial sweeteners. 79 / 112 / EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs, ' in compliance with the case-law of the Court I refer to the Report for the Hearing for an of Justice according to which, in order to account of the relevant legal provisions and provide a satisfactory answer to a national the facts of the dispute in the main court which has referred a question to it, proceedings. the Court of Justice may deem it necessary to consider provisions of Community law to which the national court has not referred in 2 the text of its question.
2. Before dealing with the substance of the question referred to the Court, I consider it necessary to make several brief comments. 3. Directive 79 / 112 / EEC , which enacts Community rules of a general nature applicable horizontally to foodstuffs, was conceived with the intention of improving Firstly, it is clear that the question referred the functioning of the common market and by the national court must be reformulated. the free movement of goods while at the same time ensuring that consumers received correct information and adequate 3 protection.
The Court of Justice has consistently held 1 — OJ 1979 L 33, p. 1. that in the context of a reference for a 2 — Judgment in Case 35/85 Procureur de la République v Tissier[1986]ECR 1207, paragraph 9. 3 — See the second, third, fourth and seventh recitals in the * Original language: Iulian. preamble.
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The scope of the directive, as defined in In my view, therefore, the French law in Anicie 1(1), appears to coincide with the question, taken as a whole, falls within the scope of the French provisions at issue, scope of the directive. which also apply to products intended for 4 the ultimate consumer.
5. The rules laid down in the Community The title itself of Law No 88-14 makes it directive provide in particular, in Article 2, clear that the law concerns legal actions that the labelling and the methods used brought by recognized associations of (paragraph 1(a)) and the presentation and consumers and information supplied to advertising of foodstuffs (paragraph 3) must consumers themselves. not be such as could mislead the purchaser to a material degree, particularly as to the characteristics of the foodstuff or by attri buting to it effects or properties which it does not possess, or, finally, by suggesting Moreover, the directive appears to cover that it possesses special characteristics when both cases in which artificial sweeteners are in fact all similar foodstuffs possess such intended for sale as such and cases in which characteristics. they are an ingredient of another food product intended for sale to the ultimate consumer (Articles 1(1) and 3(1)).
Article 3 lists the only particulars which are compulsory on the labelling of foodstuffs, 4. There may in fact be some doubt as to subject to a number of conditions and dero whether the directive and the French law gations provided for in the articles which correspond exactly in extending the follow. prohibition to advertising since that is a matter which the Community directive touches upon only in passing.
Finally, Article 15 provides that the Member States may not prohibit trade in foodstuffs However, it must be accepted that the which comply with the directive by the French law does not set out to regulate the application of non-harmonized national forms and methods of promoting sales but provisions governing the labelling and pres merely extends to advertising the entation of foodstuffs unless such provisions prohibition imposed with regard to the are justified on grounds of, in particular and labelling of the products in question, and for our purposes here, protection of public that the directive deals with some aspects of health or prevention of unfair competition. advertising, in particular the requirement that information supplied to the consumer should not be misleading (Article 2).
4 — It should be noted that Directive 79/112/EEC was amended by Directive 89 / 395 / EEC of 14 June 1989 (OJ 6. That having been said, with regard to the 1989 L 186, p. 17), which extended the scope of the legislation at issue, let me say straight away directive to foodstuffs intended for supply to restaurants, hospitals, canteens and other similar mass caterers. that a prohibition of the use of the word
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'sugar' which is as general as that imposed all credibility and force from the argument by the French legislature, and which even that consumers must be protected (and, in prohibits the use of the expression 'sucré fact, all the other arguments relied on) avec' [sweetened with] and brand names because if there is in fact a possibility of which contain the radical 'sue' (for example confusion, it is not clear why some products Maxi-suc, Pouss-suc, Sucredulcor), goes, in should be allowed to retain their previous my opinion, far beyond what is required by names. Directive 79/112 and in particular Article 2 thereof.
7. If therefore, in the light of what has already been said, it is found to be the case Far from ensuring that the information that the French law goes beyond what is supplied to consumers is accurate, a allowed by Article 2 of the directive for the prohibition which is so comprehensive and protection of consumers, the only possible indiscriminate is likely to achieve the justification could be the derogation opposite effect, forming an obstacle to the provided for in Article15(2). satisfactory and full provision of infor- mation.
With regard in particular to the prevention of unfair competition, the argument put There is thus no way, for example, of indi- forward in the observations submitted by cating that a product does not contain the Chambre syndicale des raffineurs and sugar, which is precisely what the purchaser conditionneurs de sucre is, in substance, wishes to know. that since campaigns have been repeatedly mounted against sugar, merely using that word in the labelling of a product which is in some way a competitor constitutes unfair Similarly, if the use of the words 'sucré competition. avec' or 'pouvoir sucrant' is prohibited, understanding the function of the artificial sweetener is certainly made more difficult, since in French there are no corresponding Clearly, that is not the strongest and most expressions which are easily understood by convincing of arguments. It is frankly the great majority of people. That is difficult to accept the argument that the confirmed by the fact that the French law information 'without sugar' is in itself a itself, with reference to artificial sweeteners derogatory remark about sugar since a (Article 10(a)), refers to 'pouvoir sucrant'. consumer would associate a product referred to in that context with harmful effects on his own health.
Moreover, the derogation provided for in the French law, which allows sweeteners marketed in the medical and pharmaceutical If that line of reasoning were followed, we sectors before 1 December 1987 to retain would also have to regard a reference to a their former brand names and trade marks, decaffeinated or alcohol-free beverage not is potentially discriminatory because, given as information supplied to the purchaser but the situation on the market, it would seem as a derogatory remark about caffeine and to favour French products, and it removes alcohol.
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Let me add that that argument appears to be In fact, the provisions of the French law at motivated by a rather low opinion of the issue in this case are not those intended to ability of consumers to understand and to ensure the protection of public health but form judgments. rather other specific provisions concerning, for example, the obligation to indicate the presence of phenylalanine or to warn pregnant women not to use large amounts of the product.
Nor is it reasonable to argue, as the French Government does, that the law in question is justified by the need to 'prevent abusive practices' (p. 11 of the observations of the 9. Before concluding, I would like to French Government), since a prohibition of emphasize that the same conclusion would that kind is, in any event, manifestly dispro- be reached even if the Court were to portionate to that objective. consider the aspects of the law at issue which relate to advertising in the light of Article 30 of the Treaty.
If abusive practices exist, they can be suppressed by means of the general legal In that regard, it should first be pointed out 5 provisions which seek to protect consumers that, as the Court has consistently held, the or prevent unfair competition. prohibition of measures having an effect equivalent to quantitative restrictions laid down in Article 30 of the Treaty applies to all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra- It is clear that Community law does not Community trade. preclude the prevention of unfair compe- tition which consists in disparaging a rival product by stating or implying that it is harmful to health. However, in my opinion, that is not the point at issue in the present In particular, a law which restricts or case. prohibits certain forms of advertising and certain means of sales promotion may, although it does not directly affect imports, be such as to restrict their volume because it affects marketing opportunities for the imported products. The possibility cannot be 8. With regard next to any grounds ruled out that to compel a producer either concerning the requirement to protect to adopt advertising or sales promotion public health (raised to some extent by the schemes which differ from one Member national court itself), in my opinion they are State to another or to discontinue a scheme not seriously tenable since, as I have already which he considers to be particularly said, mention of or reference to the word effective may constitute an obstacle to 'sugar' in the labelling of a product does not imports even if the legislation in question in itself mislead the consumer; on the contrary, it may enable the consumer to 5 — Sec primarily the judgment ¡n Case 8/74 Procureur du Roi make a more informed choice. v Dasionvillel\974] ECR 837, paragraph 5.
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applies, as in this case, to domestic products to movement within the Community and imported products without distinction. resulting from disparities between the national laws must be accepted if they apply to national and imported products alike and are necessary for reasons of public interest such as those laid down in Article 36 of the It should then be pointed out that, as the Treaty, for example the protection of public Court has emphasized on a number of health or mandatory requirements relating, occasions, citing the judgment in Reive, 7in inter alia, to consumer protection and fair the absence of common rules relating to the trading. As I have just shown, such reasons marketing of the products at issue, obstacles do not arise in the present case.
10. In the light of the foregoing considerations, I propose that the Court of Justice should give the following reply to the national court:
'The provisions of Directive 79 / 112 / EEC , in particular Articles 2 and 15 thereof, are to be interpreted as precluding the application of national legislation which prohibits use of the word 'sugar' or any reference to the physical, chemical or nutritional properties of sugar in the labelling of artificial sweeteners and in their advertising if the artificial sweeteners also possess those properties.'
6 — Judgment in Case 286/81 Oostboek'i Uitgevtrmaatichappij [1982] ECR 4575, paragraph 15. 7 — Judgment in Case 120/78 Rewe v Bundtmonopolvtr- walaung fir Branntwein [1979] ECR 649, paragraph 8.
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