C-51/94

Federal Republic of Germany, represented by Ernst Röder, Ministerialrat at the Federal Ministry of Economic Affairs, and Bernd Kloke, Regierungsrat at the same Ministry, acting as Agents,

defendant,

A P P L I C A T I O N for a declaration that, by requiring that in order to be marketed in Germany foodstuffs containing an ingredient which is not in conformity with the traditional German recipe must carry a trade description with an additional statement indicating that the substance in question has been used, even if that substance is already included in the list of ingredients, the Federal Republic of

* Language of the case: German.

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JUDGMENT OF 26. 10. 1995 — CASE C-51/94

gives the following

Judgment

1 By application lodged at the Court Registry on 4 February 1994, the Commission of the European Communities brought an action under Article 169 of the E C Treaty for a declaration that, by requiring that in order to be marketed in Ger- many foodstuffs containing an ingredient which is not in conformity with the tra- ditional German recipe must carry a trade description with an additional statement indicating that the substance in question has been used, even if that substance is

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COMMISSION v GERMANY

already included in the list of ingredients, the Federal Republic of Germany has failed to fulfil its obligations under Article 30 et seq. of the EC Treaty and Articles 5, 6 and 16 of Council Directive 79/112/EEC of 18 December 1978 on the approx- imation 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; hereinafter 'the Directive').

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(c) foodstuffs whose appearance could lead the purchaser to believe that they are of a superior quality than in fact they are;

5. to sell foodstuffs with a name, specification or a presentation which may mis- lead the purchaser ... In particular, the consumer may be misled

(b) if the names, specifications, presentation, representations or other claims employed to indicate the origin of foodstuffs, their quantity, weight, date of manufacture or packaging, their durability or other elements of importance for establishing their quality, do so in a manner likely to mislead ...'

3 Paragraph 47(1) of that Law provides that:

The facts

5 The foodstuffs at issue in the present case are, on the one hand, 'hollandaise' sauce and 'béarnaise' sauce and, on the other hand, certain biscuits and pastry products containing an additive called E 160 F.

6 At the time when the Commission initiated the pre-litigation procedure, the Ger- man authorities, on the basis of Paragraph 17(1)(5) of the LMBG, prohibited the marketing of hollandaise sauce or béarnaise sauce prepared from vegetable fats on

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JUDGMENT OF 26. 10. 1995 — CASE C-51/94

the ground that consumers were led to believe that those products had been made with butter and eggs in accordance with the recipe traditionally followed in Ger- many.

1 1 Article 5(1) of the Directive provides that the name under which a foodstuff is sold must be the name 'laid down by whatever laws, regulations or administrative pro- visions apply to the foodstuff in question or, in the absence of any such name, the name customary in the Member State where the product is sold to the ultimate consumer, or a description of the foodstuff and, if necessary, of its use, that is suf- ficiently precise to inform the purchaser of its true nature and to enable it to be distinguished from products with which it could be confused'.

12 Article 6 of the Directive lays down the conditions in accordance with which ingredients must be listed on the labelling of products. Under the first subpara- graph of Article 6(6), in the absence of Community provisions, 'national provi- sions may lay down that the name under which a specific foodstuff is sold is to be accompanied by mention of a particular ingredient or ingredients'. Pursuant to the second subparagraph of Article 6(6), the procedure laid down in Article 16 applies to any such national provisions.

13 Article 16 provides that:

'Where reference is made to this article, the following procedure shall apply:

(1) When a Member State maintains the provisions of its national laws, it shall inform the Commission and the other Member States thereof within a period of two years after notification of this Directive;

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is The Federal Republic of Germany, on the other hand, denies having infringed any of those provisions. It submits that the notification procedure laid down therein only applies to provisions of national law which require, in respect of 'a specific

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foodstuff', that the presence of a particular ingredient or of a number of particular ingredients be indicated alongside the trade description. That is not true of Para- graphs 17 and 47a(4) of the LMBG which, following in this respect Article 2 of the Directive, establish a general rule for the protection of consumers, the scope of which is not confined to specific foodstuffs. Furthermore, the measures adopted by the authorities in individual cases for the implementation of those provisions do not constitute 'provisions' within the meaning of the Directive.

ie In that connection it should be noted that only the reasoned opinion of 6 August 1992, concerning E 160 F, mentions infringement of Articles 6 and 16 of the Direc- tive. Furthermore, in paragraph 12 of that opinion, the Commission refers to 'that German provision', which must be interpreted as a reference to Paragraph 17 of the LMBG, which is the only provision of German law previously indicated in the opinion.

i7 It is clear from Article 6(6) that the provisions of Community and national law to which it refers must concern specific foodstuffs and 'a particular ingredient o r ingredients'. It is not, therefore, directed at general provisions such as Para- graphs 17 and 47 of the LMBG, even though, in practice, their application by the competent authorities may result in requiring that additional statements appear on the labelling beside the trade description, indicating the use of a particular ingre- dient or ingredients.

20 As regards Article 30, the Commission submits that the German legislation deprives the imported product of a trade description to which it is entitled in the Member State of manufacture and compels it to bear another, less well known and not so highly regarded by the consumer, which may make the product more dif- ficult to market in Germany and thus hinder, at least indirectly, trade between Member States.

2i According to the Commission, a restriction of that nature is not necessary in order to attain an objective which is justified under Community law, particularly that of consumer protection, relied on by the defendant.

22 The German Government, on the other hand, while admitting that the require- ments in dispute constitute hindrances to the free movement of goods, views those hindrances as justified by the need to protect consumers and to ensure fair trading.

23 As regards the first objective, the German Government contends that consumers often buy foodstuffs without undertaking a scrupulous examination of the prod- uct, their choice of which is determined by 'reference criteria' such as the trade description and the additional information accompanying it.

24 Consequently, if, in the case of the hollandaise and béarnaise sauces at issue, there were no requirement to display the statement in dispute, the consumer could be led to buy those products in the belief that they had been manufactured in accord- ance with the traditional German recipe, that is to say, with eggs and butter, when in fact vegetable fats have been used.

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JUDGMENT OF 26. 10. 1995 — CASE C-51/94

that lay down requirements to be met by such goods (such as requirements as to designation, form, size, weight, composition, presentation, labelling and packag- ing) to goods from other Member States where they are lawfully manufactured and marketed, even if those rules apply without distinction to all products, unless their application can be justified by a public interest objective taking precedence over the free movement of goods (see Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] E C R 1-6097, paragraph 15).

30 The requirements at issue in the present case, which are applicable to domestic and imported products without distinction, concern the labelling and packaging of the products in question. They therefore constitute measures having equivalent effect, prohibited by Article 30 of the EC Treaty, unless they can be justified in accord- ance with the case-law referred to above.

3i It should be noted in that connection that, in the absence of Community harmo- nization — as in the present case — national measures which are necessary in order to ensure that products are accurately described are compatible with Article 30 et seq. of the Treaty, provided that they avoid any confusion on the part of con- sumers and ensure fair trading (see, in particular, Case 216/84 Commission v France [1988] E C R 793, paragraph 11).

32 Consequently, it should first be determined whether, as the German Government submits, the requirements at issue are necessary in order to ensure that consumers are correctly informed.

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37 It follows that the requirements at issue are not necessary in order to ensure con- sumer protection and fair trading and that they are therefore incompatible with Article 30 of the Treaty.

38 So far as concerns Article 5(1), the Commission takes the view that, having regard to the Directive taken as a whole, that provision does not permit Member States to require that the trade description should also include particulars not called for by the objective of providing the consumer with accurate information, thus preclud- ing the marketing of domestic or imported products which, like the products at issue, do not differ in any essential respect from the products generally known in the Community under the same trade description.

39 The Federal Government, on the other hand, considers that the provision in ques- tion permits the national legislature of a Member State to take account of the man- ner in which a particular trade description is perceived by most people in that State so as to ensure that consumers are provided with accurate information concerning the true nature and composition of the products in question.

40 In that connection, it is sufficient to note that the requirement laid down in Article 5(1) of the Directive to the effect that any additional particulars accom- panying the trade description must be necessary for the information of consumers also follows from Article 30 of the Treaty and that, consequently, this point cannot constitute a separate ground of challenge.

T H E C O U R T (Fifth Chamber)

hereby:

1. Declares that, by requiring that béarnaise sauce and hollandaise sauce made with vegetable fats and certain pastry products containing the additive 'E 160 F' should, in order to be marketed in Germany, carry a trade description with an additional statement indicating that the substance in question has been used, even if that substance is already included in the list of ingredients referred to in Article 6 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, the Federal Republic of Germany has failed to fulfil its obliga- tions under Article 30 of the EC Treaty;

2. Dismisses the remainder of the application;

3. Orders the Federal Republic of Germany to pay the costs.

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