C-17/96
ECLI:EU:C:1997:244
- Súd
- Súdny dvor Európskej únie
- IČS
- 61996CC0017
- Zdroj
- eur-lex.europa.eu ↗
OPINION OF MR ELMER — CASE C-17/96
OPINION OF ADVOCATE GENERAL ELMER delivered on 15 May 1997 *
Introduction recognized by the responsible authority of that Member State as natural mineral waters satisfying the provisions of Annex I, Sec tion I.
1. In this case the German Bundesverwal tungsgericht (Federal Administrative Court) has referred to the Court several questions concerning the interpretation of Council Directive 80/777/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to the exploitation and mar 1 keting of natural mineral waters (hereinaf ter 'the Directive'). ANNEX I
The Community law applicable I. DEFINITION
1. "Natural mineral water" means microbio- 2. The provisions of the Directive which are logically wholesome water, within the mean relevant in the present case are as follows: ing of Article 5, originating in an under ground water table or deposit and emerging from a spring tapped at one or more natural or bore exits.
'Article 1
Natural mineral water can be clearly distin guished from ordinary drinking water:
1. This Directive concerns waters extracted from the ground of a Member State and (a) by its nature, which is characterized by its mineral content, trace elements or * Original language: Danish. other constituents and, where appropri 1 — OJ 1980 L 229, p. 1. ate, by certain effects;
I - 4618
BADISCHE ERFRISCHUNGS-GETRÄNKE v LAND BADEN-WÜRTTEMBERG
(b) by its original state, 4. if necessary, pharmacological, physi ological and clinical;
both characteristics having been preserved intact because of the underground origin of such water, which has been protected from (b) according to the criteria listed in Sec all risk of pollution. tion II;
2. These characteristics, which may give (c) according to scientific methods approved natural mineral water properties favourable by the responsible authority. 2 to health, must have been assessed:
(a) from the following points of view: The analyses referred to in (a)(4) may be optional where the water presents the com positional characteristics on the strength of 1. geological and hydrological, which it was considered a natural mineral water in the Member State of origin prior to the entry into force of this Directive. This is 2. physical, chemical and physico-chemical, the case in particular when the water in question contains, per kg, both at source and after bottling, a minimum of 1 000 mg of 3. microbiological, total solids in solution or a minimum of 250 mg of free carbon dioxide.
2 — In the other languages which were official languages of the Communities when the Directive was adopted, this sentence is worded as follows: 'Disse karakteristika, der kan give det naturlige mineralvand dets sundhedsbefordrende egenskaber, skal være bedømt: ..." 'Diese Merkmale, die natürlichem Mineralwasser gesund- heitsdienliche Eigenschaften verleihen können, müssen über- prüft worden sein; ...' 'Ces charactéristiques, qui sont de nature à apporter à l'eau minérale naturelle ses propriétés favorables à la santé, doivent avoir été appréciées: ...' 'Queste caratterisuene, che sono tali da conferire all'acqua minerale naturale le sue proprietà salutari, devono essere state valutate: ...' II. REQUIREMENTS AND CRITERIA 'Deze kenmerken, die aan natuurlijk mineraalwater gezond- heidbevorderende eigenschappen kunnen verlenen, moeten FOR APPLYING THE DEFINITION zijn beoordeeld: ..." In the languages which became official languages after the Directive was adopted, the sentence is worded as follows: 'Estas características, que son las que confieren al agua min- eral natural sus propiedades salutíferas, deberán haber sido apreciadas: ...' χαρακτριστικά,, ικανά υα προσδίδουν στο 'Αυτά τα χαρακτριστικά φυσικό μεταλλικό νερό τις ευνοϊκές για την υγεία ιδιότητες του,, πρέπει να έχουν εκτιμηθεί του εκτιμηθεί:: ... ...'' 'Estas características, que são de natureza a conferir à água mineral natural as suas propriedades favoráveis à saúde, devem ter sido avaliadas: ..." 'Nämä ominaisuudet, jotka saattavat antaa luontaiselle kiven- näisvedelle terveydelle suotuisia ominaisuuksia, on ollut tut- kittava: ...' 1.4. Requirements for clinical and pharma 'Dessa karakteristika som kan ge naturligt mineralvatten häl- sofrämjande egenskaper måste ha blivit bedömda: ...'. cological analyses
I-4619
OPINION OF MR ELMER — CASE C-17/96
1.4.1. The analyses, which must be carried legislation implementing the Directive unless out in accordance with scientifically recog it contains specified levels of essential nized methods, should be suited to the par substances. ticular characteristics of the natural mineral water and its effects on the human organism, such as diuresis, gastric and intestinal func tions, compensation for mineral deficiencies.
5. By judgment of 8 November 1991 the Verwaltungsgericht (Administrative Court) Karlsruhe dismissed the Company's action ...'. for recognition of the water as natural min eral water.
Proceedings before the national court and questions submitted for preliminary ruling
6. That judgment was upheld by the Verwal tungsgerichtshof Baden-Württemberg on 30 November 1993 on the ground that the Company had not demonstrated that the 3. In the late 1980s, Badische Erfrischungs- water had physiological and nutritional Getränke GmbH&Co . KG (hereinafter 'the effects resulting from its constituents, as Company') discovered a new spring. An required by German legislation. According analysis of the water from the spring showed to the appeal court, the absence of certain that it had a content of 617 mg of solids in constituents or low levels thereof were not solution and 34 mg of free carbon dioxide sufficient for a particular water to be recog per litre. An evaluation of its physiological nised. and nutritional effects showed that it con tained very little sodium and chlorine.
7. The Company lodged an appeal on a 4. The Company then submitted an applica point of law before the Bundesverwaltungs tion for recognition of the water as 'natural gericht, which, in an order of 31 August mineral water' in accordance with the Direc 1995, construed the German implementing tive, but the application was rejected by legislation to mean that there must be a Land Baden-Württemberg on 28 November causal connection between the positive con 1989 and 2 April 1990 on the ground that tent of certain constituents of the water and water cannot have the 'physiological and its physiological and nutritional effects, and nutritional effects' required by the German that this causal connection must be estab-
I - 4620
BADISCHE ERFRISCHUNGS-GETRÄNKE v LAND BADEN-WÜRTTEMBERG
lished scientifically for the purpose of First question recognizing water with a low mineral and/or carbon dioxide content. However, the Bundesverwaltungsgericht is uncertain whether these requirements arising from the German legislation comply with the Direc tive and it has referred the following ques tions to the Court for a preliminary ruling: 8. By its first question, the national court wishes to ascertain whether water can be rec ognized as natural mineral water only if it has properties favourable to health and, if so, whether those properties must be proved.
'1 . Is Article 1(1) of [the Directive], in con junction with Annex I thereto, to be interpreted as meaning that water — apart from "old water" covered by the second subparagraph of paragraph 2 of Section I. Definition of Annex I — is to 9. The Company, supported by the United be recognized as being natural mineral Kingdom and Ireland, contends that natural water only if it has properties favour mineral water may have properties favour able to health and, if so, are those provi able to health because of its characteristics, sions to be interpreted as meaning that that is to say, its nature and original purity. those properties must be proved? However, the recognition of water as natural mineral water is not subject to a condition that it actually possesses properties favour able to health. In that case, the Community legislature would have used the word 'must' instead of the word 'may' in Annex I, Sec 2. May the properties favourable to health tion I, paragraph 2, of the Directive. The which may be necessary also ensue from properties favourable to health mentioned in the absence or low content of the con Annex I, Section I, paragraph 2, do not form stituents referred to in paragraph 1(a) of part of the definition given in paragraph 1. Section I of Annex I (for example, in the case of water with a low sodium content)?
10. Land Baden-Württemberg, supported by the French and Italian Governments, argues 3. How are the expressions "properties that water can be recognized as natural min favourable to health" in paragraph 2 of eral water only if it has properties favourable Section I of Annex I and "certain to health. Natural mineral water is not effects" in paragraph 1(a) of Section I defined solely by reference to its origin, con (see also paragraph 1.4.1 of Section II of tent and state, but also by reference to the Annex I) to be differentiated from one physiological and nutritional effects resulting other?' from its content of minerals, trace elements
I - 4621
OPINION OF MR ELMER — CASE C-17/96
and other constituents determining the 13. Annex I, Section I, paragraph 1, first nature of the water. It is clear from Annex I, subparagraph, explains, according to its Section I, paragraph 2, that the water's prop express wording, what is meant by natural erties favourable to health must be proved. mineral water, which it goes on to define by Paragraph 2 supplements and clarifies para reference to its underground origin. Para graph 1 by requiring an assessment of the graph 1, second subparagraph, adds that characteristics listed in paragraph 1 with a natural mineral water can be distinguished view to providing specific proof of the prop from ordinary drinking water by two char erties favourable to health. acteristics: first, by its nature, characterized by its mineral content, trace elements or other constituents and, where appropriate, by certain effects and, second, by its original state.
11. The Commission contends that para 14. The main clause of Annex I, Section I, graphs 1 and 2 of Annex I, Section I, must be paragraph 2, provides that 'These character read together as they both form part of the istics' must have been assessed from certain definition of natural mineral water. The Ger points of view according to the criteria listed man, English, Dutch and Danish versions of in Section II and according to approved sci paragraph 2 are similar and are ambiguous as entific methods. Immediately after the words to whether natural mineral water must 'These characteristics', the main clause con always have properties favourable to health. tains a subordinate clause beginning with the The French, Italian and Spanish versions, on subject of the clause, 'which.' This relative the other hand, leave no doubt that it must pronoun refers to 'These characteristics' in always have such properties. the main clause. If changed into an indepen dent sentence, the subordinate clause will read as follows: 'These characteristics may give natural mineral water properties favour able to health.'
12. I should like to point out that Article 15. This sentence has slight variations in the 1(1) of the Directive provides that the Direc different language versions. For example, the tive concerns waters extracted from the Danish, German, English, Dutch, Greek, ground of a Member State and recognized by Finnish and Swedish versions all use the verb the responsible authority of that Member 'may' in the present tense, thereby indicating State as natural mineral waters satisfying the that it is possible that natural mineral water provisions of Annex I, Section I. has properties favourable to health.
I - 4622
BADISCHE ERFRISCHUNGS-GETRÄNKE v LAND BADEN-WÜRTTEMBERG
16. The French, Italian, Spanish and Portu 18. This interpretation is further supported guese versions use the phrases 'qui sont de by the fact that the Directive does not define nature à ...', 'che sono tali da conferire ...', the properties favourable to health. The 'que son las que confieren ...' and 'que são de national court is therefore right, in the sec natureza a conferir ...'. However, these ond and third questions, to ask for guidance phrases do not appear to be regulatory in on this point, should the Court conclude their content, but seem rather to be a mere that the recognition of water as natural min descriptive statement referring to the fact eral water is subject to the possession of that the said characteristics are such as to properties favourable to health. The national give the water properties favourable to court is also right to ask, in the second part health. of the first question, for clarification as to how such properties must be proved if that is the case. The Directive does not provide an answer to this. It would have been neces sary to include such rules in the Directive if the Council had intended to make the recog nition of natural mineral water subject to the possession of properties favourable to health. This becomes particularly clear in view of the otherwise very detailed provisions of the Directive.
17. If the Community legislature authority had wished to make recognition of water as natural mineral water subject to the posses sion of properties favourable to health, it would have been an easy matter to remove all doubt by using the verb 'must' in the present tense in the different language ver sions. Furthermore, it would have been logi cal to include this requirement in paragraph 1, which sets out the definition of natural mineral water, and not in a subordinate clause in paragraph 2, which contains rules for the assessment of the criteria specified in paragraph 1. In the Commission's original 3 proposal for the directive, a requirement of properties favourable to health was also included in paragraph 1. Consequently, the 19. I accordingly propose that the Court's final position in paragraph 2 appears to indi reply to the first question should be that the cate precisely that the Council did not intend combined provisions of Article 1(1) of and the recognition of natural mineral water to Annex I, Section I, paragraphs 1 and 2 to the be subject to the possession of properties Directive must be interpreted as meaning favourable to health. that they preclude a Member State from requiring water to possess properties favour able to health in order to be recognized as 3 — OJ 1970 C 69 of 11 June 1970, p. 14 1970, . 14. natural mineral water.
I - 4623
OPINION OF MR ELMER — CASE C-17/96
Second and third questions reply to the first question that water may be recognized as natural mineral water regard less of whether it has 'properties favourable to health.' Therefore it is of no practical importance to distinguish these properties 20. The second question clearly falls to be (see the foregoing observations on the first answered solely if the reply to the first ques question). tion is that water can be recognized as natu ral mineral water only if it has properties favourable to health. The third question relates to the exact meaning of 'properties favourable to health' in Annex I, Section I, Consequently it is unnecessary to reply to paragraph 2. It follows from my proposed the second and third questions.
Conclusion
21 . I therefore propose that the Court reply to the questions referred by the Bundesverwaltungsgericht as follows:
The combined provisions of Article 1(1) of and Annex I, Section I, paragraphs 1 and 2 to Council Directive 80 / 777 / EEC of 15 July 1980 on the approximation of the laws of the Member States relating to the exploitation and marketing of natural mineral waters must be interpreted as meaning that they preclude a Member State from requiring water to possess properties favourable to health in order to be recognized as natural mineral water .
I - 4624