C-17/93

O P I N I O N O F MR D A R M O N — CASE C-17/93

OPINION OF ADVOCATE GENERAL DARMON delivered on 10 March 1994 *

Mr President, 3. Allow me to remark that the wording of Members of the Court, the order for reference is regrettably laconic. However, I see no need to apply the Court's decision in Telemarsicabruzzo, 2 since in the present case the documents before the Court contain the information necessary to enable it to answer the questions.

1. Is legislation of a Member State prohibit- ing the marketing of bread and other bakery products whose salt content by reference to the dry matter is higher than 2 % compatible with Article 30 of the EEC Treaty and, if not, since its effect is to prevent the importa- tion of products coming from another Mem- ber State in which they are lawfully mar- keted, can it be justified under Article 36? 4. I would submit that, just as in the case which gave rise to the Court's ruling in Vaneetveld and Le Foyer, 3

5. The facts may be briefly summarized. A 8. Before the national court, Mr van der company by the name of Hema distributes Veldt claimed that the Belgian legislation was in Belgium bread and other bakery products incompatible with Community law regard­ bought in the Netherlands. In his capacity as ing the free movement of goods. manager of one of that company's shops, Mr van der Veldt was summoned before the national court making the reference and charged with having sold bread whose salt content did not comply with Belgian law and with having failed to fulfil his obligation to set out on the labels of bakery products the specific name or the EEC number of the pre­ 9. In the first question, the national court servative used within the meaning of the asks whether a law prohibiting the marketing directive. of bread whose salt content by reference to the dry matter is higher than 2% constitutes a measure having equivalent effect to a quan­ titative restriction within the meaning of Article 30.

6. Checks carried put on 8 September and 9 November 1988 by food inspectors on samples of the products sold revealed that the bread contained between 2.11% and 10. As the Court has consistently held, such 2.17% salt whereas Belgian law fixes a max­ legislation is caught by that article if it is imum salt content of 2%. In addition, the packaging stated that the product at issue contained a 'preservative', whereas Belgian law also required either the specific name or the E E C number to be given (that is, in the present case, according to the submissions of the defendant in the main action, 'propionic acid' or Έ 280'). '... capable of hindering, directly or indi­ rectly, actually or potentially, intra- Community trade ...',

'... discriminate against imported products or hinder the importation of products from other Member States.' 10

'... in the absence of harmonization of legis- lation, measures of equivalent effect prohib- ited by Article 30 include obstacles to the free movement of goods where they are the consequence of applying rules that lay down requirements to be met by such goods (such as requirements as to designation, form, size, 14. In Kelderman the Court stated that weight, composition, presentation, labelling, packaging) to goods from other Member 8 — Paragraph 15, my emphasis. 9 — See in this regard the judgment in 'Cassis de Dijon': Case 120/78 Rewe-Zentral [1979] ECR 649, at paragraph 8. 6 — Joined Cases C-267/91 and C-268/91 [1993] ECR 1-6097. 10 — Case 237/83 Jongeneel Kaas [1984] ECR 483, at paragraph 7 — Paragraph 16. 13.

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VAN DER VELDT

'The extension to imported products of a 17. It should be recalled that the Court has requirement that they contain a specific consistently held that recourse to Article 36 amount of dry matter may prevent bread of the Treaty is only ruled out if the rules originating in other Member States from relating to the products concerned have been being marketed in the State concerned. It harmonized, as the Court stated, moreover, may make it necessary to vary the method of in Tedeschi v Denkaviť. 12

manufacture according to the place where the bread is to be sold and thus impede the movement of bread lawfully produced in the Member State of origin if identical manufac­ turing standards are not prescribed in that State', " '... Where, in application of Article 100 of the Treaty, Community directives provide for the harmonization of the measures neces­ sary to ensure the protection of animal and human health and establish Community pro­ cedures to check that they are observed, recourse to Article 36 is no longer justified and went on to conclude that such a measure and the appropriate checks must be carried was likely to hinder trade. out and the measures of protection adopted within the framework outlined by the har­ monizing directive.' 1 3

19. The question is thus whether a measure of this kind, having equivalent effect to a '... lays down an exception — falling to be quantitative restriction, may be justified with construed strictly — to the rule that goods regard to the criteria of necessity and pro- should be able to move freely within the portionality on the basis of one of the dero- Community, which constitutes one of the gations specified in Article 36 or, since the fundamental principles of the common mar- legislation concerned applies to both domes- ket.' 18 tic and imported products alike, in terms of one of the imperative requirements recog- nized by the Court in connection with Article 30.

22. In view of that narrow approach, the Court later defined more closely the terms and the scope of the derogations listed in Article 36. 20. In Debus15 the Court considered whether the national rules at issue, which applied to domestic and imported products alike, might

23. First of all, in De Peijper,I9 the Court pointed out that national rules or practices which restrict imports '... be justified on grounds of the protection of human health, as provided for in Arti- cle 36 of the Treaty.' 16

'... are only compatible with the Treaty to the extent to which they are necessary for 21. It should be noted that the power of the the effective protection of health and Ufe of Member States to rely on the grounds listed humans' 20 in that article is not unfettered since, accord-

17 — Case C-205/89 [1991] ECR 1-1361. 18 — Paragraph 9. 14 — Paragraph 5. 19 — Case 104/75 [1976] ECR 613. See also the judgment in 15 — Joined Cases C-13 and 113/91 [1992] ECR 1-3617. Case 54/85 Mirepoix [1986] ECR 1067, at paragraph 13, and 16 — Paragraph 12. See also, in this regard, the judgment in Case the judgment in Case C-42/90 Bellon [1990] ECR 1-4863, at C-196/89 Nespoli and Crippa [1990] ECR 1-3647, para- paragraph 11. graph 14. 20 — Paragraph 16.

23 — Footnote 15, above. See also the most recent relevant judg- 21 — Paragraph 17. ment, in Case C-315/92 Clinique and Estéé Lander [1994] 22 — Paragraph 40 of judgment in Case 227/82 Van Bennekom E C R 1-317. [1983] ECR 3883. 24 — Paragraph 30 and the operatíve part of the judgment.

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OPINION OF MR D ARMON — CASE C-17/93

dispute are reproduced in the defence lodged onstrated that increasing salt intake by such by the defendant in the main action, thus an amount poses a risk for public health. enabling the Court to provide the national court with a useful reply.

29. Let me speak plainly. It does not seem to 32. It is true that in Melkunie 2b the Court me that the reasons cited by the Ministry of acknowledged that a potential risk for con- Health, in its letter of 6 August 1990 to the sumers justified the adoption of restrictive Ghent Public Prosecutor, and repeated word legislation on trade, since it held that for word in the submissions lodged by the defendant in the main action, amount to an adequate justification of that kind of prohi- bition.

'... in particular the work of the Communi- 37. Let me call back to mind the circum- ty's Scientific Committee for Food, the stances which led the national court to make Codex Alimentarius Committee of the FAO the reference for a preliminary ruling. When and the World Health Organization.' 29 samples of bakery products were removed by the Ghent food inspectors, it was noted that the labelling was inadequate because the word 'preservative' was the only information set out on the packaging of the products in question, with no mention of the specific name or of the EEC number as is required by the legislation at issue. Netherlands law, 34. If the public health risk has not been in fact, only requires the general category to adequately established, it seems to me that be designated, that is to say, in the present the sort of legislation described by the case, 'preservative'. national court must be classified as a measure having equivalent effect to a quantitative restriction, of a kind that cannot be justified under Article 36.

38. Article 6(5)(b) of the directive provides that

35. Consequently, in my opinion the first two questions call for the following reply: Articles 30 and 36 of the EEC Treaty must be interpreted as precluding national legisla- tion prohibiting the marketing of bread and other bakery products of which the salt con- tent by reference to the dry matter is higher '... — ingredients belonging to one of the than 2 % , if they have been imported from categories listed in Annex II must be another Member State in which they are law- designated by the name of that fully manufactured and marketed. category, followed by their specific name or EEC number.'

44. It should be borne in mind that the obli- 41. In fact, it is only with effect gation to state certain information on a from 20 June 1992 that the Member States product, in so far as it may compel the man- have had to make it compulsory for labelling ufacturer or importer to adjust the mode of to meet the requirements prescribed by presentation, tends to make marketing of Article 6(5)(b), since Directive 79/112 that product in other Member States more was amended by Council Directive difficult and thereby to affect intra- 89/395/EEC M which deleted Article 23 and Community trade.

30 — See in particular the eighth recital. 32 — For the sake of completeness, it should be noted that Com- 31 — Council Directive of 14 June 1989 amending Direc- mission Directive 93/102/EC of 16 November 1993, tive 79/112/EEC on the approximation of the laws of the amending Directive 79/112ÆEC, extended the list of prod- Member States relating to labelling, presentation and adver- ucts covered by Annex I I and prohibits trade in products tising of foodstuffs for sale to the ultimate consumer which do not comply with effect from 30 June 1996 (OJ 1989 L 186, p. 17). (OJ 1993 L 291, p. 14).

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VAN DER VELDT

33 — Case 27/80 [1980] ECR 3839; see also in this regard para- graph 10 of the judgment in De Kikvorsch, cited in foot- note 11, above. 36 — See Article 6(3)(b) of the Proposal for a Council Directive 34 — Paragraph 10. on the approximation of the laws of Member States relating 35 — Case C-39/90 Denkavit [1991] ECR 1-3069, at para- to the labelling, presentation and advertising of foodstuffs graph 19. for sale to the ultimate consumer (OJ 1976 C 91, p. 3).

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O P I N I O N O F MR D A R M O N — CASE C-17/93

aient effect applies ... not only to national cle 5 thereof, applicable to the facts of the measures but also to measures adopted by case, permitted the designation of informa- the Community institutions ...' 37 tion in that way — by what is termed a 'semi-open' declaration — but did not make it compulsory.

39 — Council Directive of 5 November 1963 on the approxima- 37 — Paragraph 15 of the judgment in Case 15/83 Denkavit Ned- tion of the laws of the Member States concerning the pre- erhnd [1984] ECR 2171, in which Article 34 of the E E C servatives authorized for use in foodstuffs intended for Treaty had been relied upon. human consumption (OJ, English Special Edition 1963-4, 38 — See citations above, in footnote 35. p. 99).

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VAN DER VELDT

market only if their packagings or containers cles 3 and 6 thereof, makes it compulsory to bear ... b) the number and name of the pre- indicate a list of ingredients on the labelling servative ...' (including propionic acid). of foodstuffs.

57. The requirement that the specific name The list of ingredients must show all the or the EEC number appear on the packaging ingredients contained in the foodstuff, of food products as well as the general cate- including additives, thus enabling the con- gory does not seem to be disproportionate to sumer to make an informed choice.' 40 the objective pursued by legislation for the protection of consumers, particularly in view of the multiplicity of preserving agents which those products may contain. Consum- ers must be able to know all the preserva- tives used and exactly which ones, which 60. As the Court observed in its judgment in means that to give only the general category Denkavit of 20 June 1991, to which I have 'preservative' is demonstrably inadequate. already referred,

58. Questions have also been put to the '... it is accepted that labelling is one of the Commission by a Member of the European means that least restricts the free movement Parliament regarding the necessity of pro- of those products within the Community.' 4I tecting consumers, who 'are increasingly demanding naturally wholesome products'.

matter on a 'high level of protection'; so, if ing to Community law, it must be provided labelling is to reach that standard, it must be — generic and/or specific — a matter which complete. had been left to the discretion of the Mem- ber States, at least until 20 June 1992. Since that date, which is when the 1978 directive entered into force, it has no longer been nec- 63. Finally, the directive was not intended to essary for the trader to endeavour to meet all exacerbate the difficulties stemming from the the requirements prescribed by the import- disparities between the laws of the various ing States with regard to labelling. All he will Member States. Quite the contrary: the have had to do, to export freely, is to desig- introduction of harmonized rules has prima- nate on the packaging of his products those rily affected not the principle of providing ingredients covered by Community legisla- information, but the detail in which, accord- tion.

64. I therefore propose that the Court should rule as follows:

(1) Articles 30 and 36 of the EEC Treaty must be interpreted as precluding national legislation prohibiting the marketing of bread and other bakery prod- ucts of which the salt content by reference to the dry matter is higher than 2 % , if they have been imported from another Member State in which they are lawfully manufactured and marketed.

(2) The obligation imposed by the legislation of a Member State to designate on the packaging of foodstuffs the general category to which the ingredients con- tained belong, followed in each case by the specific name or E E C number, is justified by the requirements of consumer protection for the purposes of Arti- cle 30 of the EEC Treaty.