C-383/97

VAN DER LAAN

OPINION OF ADVOCATE GENERAL MISCHO delivered on 22 October 1998 *

1. Mr van der Laan, the defendant in the main Ingredients: pork meat, water, salt, sugar proceedings, runs a company marketing meat substances, stabiliser E 450(a), antioxidant E products, Th. S. v. d. Laan International, based 301, preservative E 250. in Almelo in the Netherlands. It distributes three meat products in Germany via the com­ pany Bentheimer Fleischwarenvertriebs GmbH , based in Bad Bentheim. The question of their compliance with German legislation Bristol: is the subject of the main proceedings.

Meat product: Dutch shoulder ham 1 without fat or rind.

2. Those products are produced in Holland and are lawfully on the market there. They are labelled as follows: Ingredients: pork meat, salt, sugar substances, stabiliser E 450(a), antioxidant E 301, preser­ vative E 250.

'Lupack: Benti:

2. (b) to place on the market in the course of business, without sufficiently pre­ cise labelling, foodstuffs the composi­ tion of which does not correspond to accepted standards, thus diminishing their value to a not inconsiderable 4. The Landkreis and the Public Prosecutor's degree, in particular their nutritional Office consider that the designation of the value and the level of customer satis­ products at issue is misleading and that they faction they offer ... differ so markedly from commercial practice that labelling within the meaning of Para­ graph 17(1)(2b) of the Lebensmittel- und Bedarfsgegenständegesetz (German Law on Foodstuffs and Items of Daily Use, herein­ after the 'LMBG') is no longer possible. The 5. to place on the market in the course of defendant in the main proceedings has there­ business foodstuffs with a misleading fore infringed the applicable domestic provi­ name, specification or presentation or to sions, in particular the prohibition of fraudu­ promote foodstuffs generally or in an lent misrepresentation laid down in Paragraph individual case with a misleading descrip­ 17(1)(2b)(5) of the LMBG in conjunction tion or other statements. In particular, with the German Food Code guidelines for fraudulent misrepresentation is com­ meat and meat products. mitted:

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(a) when effects are attributed to food­ foodstuffs which are of importance to the stuffs which they are not scientifically marketable nature of those foodstuffs. known to have or which have not been adequately scientifically proven,

Economic Area Agreement, or which aproduct poses to health, the Federal Min­ come from a non-member country and istry must take into consideration inter­ are lawfully marketed in a Member State national research findings and, in the case of the Community, or in another State of foodstuffs, nutritional habits in the party to the European Economic Area Federal Republic of Germany. Decisions Agreement, may be imported and placed of general application, pursuant to the on the domestic market, even if they do first sentence are to operate for the ben­ not comply with the legislation con­ efit of all importers of the products con­ cerning foodstuffs currently in force in cerned from other Member States or other the Federal Republic of Germany. The States party to the Agreement on the first sentence does not apply to products European Economic Area. which

(3) An exact description of the product and (1) contravene the prohibitions laid down the available documents that are required in Paragraphs 8, 24 or 30 or for the decision shall be attached to the application. The application shall be dealt with within a reasonable time. If a final decision on the application has not been made within ninety days, the applicant shall be informed of the reasons for the (2) do not comply with other legal pro­ delay. visions adopted for the purposes of protecting public health, in so far as the Federal Minister has not pub­ lished a decision of general applica­ tion in the Bundesanzeiger (Official Gazette) approving marketing of those (4) If some foodstuffs are not covered by the products in Germany. provisions of this Law or of the imple­ menting regulations, this must be stated in an appropriate manner if it is necessary to protect the consumer.'

11. First, they argue that the product called 'Bristol' is not a natural product but a formed cured meat product ('Formfleischkochpökel- 7. As a preliminary point the Commission ware') which under the German Food Code states that the Court does not have jurisdic­ guidelines for meat and meat products should, tion to decide on the application of domestic like the Lupack and Benti products, have been law when by 'application' is meant connecting labelled 'formed shoulder ham composed of an actual set of circumstances to one or more ham pieces'. However, as seen above, that abstract domestic legal rules. product is instead labelled 'Meat product: Dutch shoulder ham without fat and rind'.

8. In that sense of the term, the 'application' of domestic law is indeed the sole responsi­ 12. The Landkreis and the Public Prosecu­ bility of the bodies competent under the law tor's Office call into question the composi­ of the Member State in question. tion of the products.

9. The fact remains that, with that question, 13. They point out that Lupack and Benti the national court is essentially asking the respectively contain only 75% and 70% pork Court whether Community law should be meat. The usual practice is for cured meat

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products to contain 100% pork meat. The 17. Lastly, the added-water content ascer­ order for reference does not mention the per­ tained of between 3.7% and 18% in Bristol centage of pork meat contained in the Bristol and 8.7% and 10.6% in Lupack was far above product. However, since it states that Bristol the added water content prescribed for cured has an added water content ranging between meat products. 3.7% and 18 %, that product cannot contain 100% pork meat either.

the 90 % minimum required by the German the absence of common rules relating to the Food Code. marketing of the products concerned, obsta­ cles to free movement within the Community resulting from disparities between the national laws must be accepted in so far as such rules, applicable without distinction to domestic and imported products, can be justified as being necessary in accordance with one of the grounds of public interest set out in Article 16. In addition, the samples examined had a 36 of the Treaty, such as the protection of the protein content in the fat-free part ranging health of persons, or imperative requirements from 15% to 18.2% in Bristol and from 16.6% to 17.2% in the case of Lupack, which was 'a not inconsiderable deviation from' the 19% minimum required by the German Food 2 — See, for instance, Case 178/84 Commission v Germany the Beer case [1987] ECR 1227, paragraph 28, and Case 298/87 Code. Smanor [1988] ECR 4489, paragraph 15.

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relating inter alia to consumer protection. national court even states that a general deci­ Nevertheless such regulations must be pro­ sion was taken on 28 October 1992 allowing portionate to the aim in view. If a Member the products at issue to be put on the market State has a choice between various measures despite the presence of an additive not per­ to attain the same objective it should choose mitted in Germany. the means which least restrict free trade.

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of the parties to the main proceedings is or is when those products had been lawfully manu­ not justified in national law. The Court is factured and marketed in that Member State only required to provide the national court and consumers were provided with proper with the information to enable it to deter­ information. mine the correct interpretation of Commu­ nity law in the context of the case before it.

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clients. If that list clearly shows the composi­ that the requirements of Community law must tion of the product, the risk of consumers be ascertained. being misled is sufficiently minimal as not to justify an obstacle imposed on the marketing of those products.

34. Article 2 of the Labelling Directive states that:

32. It is therefore necessary to ascertain whether the labelling of products in question '1 . The labelling and methods used must not: provides consumers with enough information so that Article 30 of the Treaty would pre­ clude the national authorities from impeding their marketing.

(a) be such as could mislead the purchaser to a material degree, particularly:

..."

However:

Under Article 5(1):

'The name under which a foodstuff is sold — added water and volatile products shall be the name laid down by whatever laws, shall be listed in order of their regulations or administrative provisions apply weight in the finished product; the to the foodstuff in question or, in the absence amount of water added as an ingre­ of any such name, the name customary in the dient in a foodstuff shall be calcu­ Member State where the product is sold to lated by deducting from the total the ultimate consumer, or a description of the amount of the finished product foodstuff and, if necessary, of its use, that is the total amount of the other ingre­ sufficiently precise to inform the purchaser of dients used. This amount need not its true nature and to enable it to be distin­ be taken into consideration if it guished from products with which it could be does not exceed 5 % by weight of confused.' the finished product.'

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shoulder ham without fat or rind'. That might mislead the consumer within the meaning of indeed give the impression that it is a natural Article 2 of the Labelling Directive. product composed of a single piece of shoulder ham. However, formed shoulder ham is com­ posed of shoulder ham pieces pressed together to imitate natural ham. Those two products are therefore undeniably different in nature.

Ingredients

40. Neither can the allusion to Bristol's prov­ enance in the term 'Dutch' be deemed to enable the consumer to deduce that it is a formed shoulder ham. 44. First of all, the products Lupack and Benti are criticised for not containing 100% pork meat, Lupack containing only 75% and Benti 70%, whereas in Germany similar prod­ ucts would always contain 100% pork meat.

41. On the other hand, the label states that it is a 'meat product' (in French: 'produit à base de viande', literally a meat-based product). A particularly well-informed consumer could possible infer from that that Bristol is not purely and simply composed of a single piece of shoulder ham, but that it also contains other ingredients and has been prepared. 45. It is stated that Lupack contains between 8.7% and 10.6% added water and therefore differs from the expectation of German con­ sumers of zero added water content.

47. It is not disputed, however, that the label­ 50. The presence of an ingredient, added ling of the products at issue lists without any water, not provided for by German legisla­ ambiguity the ingredients used in their com­ tion, is in fact sufficiently clear from the list position, in particular, it gives the pork meat of ingredients so that it does not have to be percentage and mentions the fact that water is included in the name under which the product an ingredient. On the subject of water con­ is sold. tent, it can be seen from reading Article 3(1) in conjunction with Article 6(5)(a) of the Labelling Directive that added water, as an ingredient, must appear as such on the label where it exceeds 5% by weight of the fin­ ished product. 51. The presentation of the two products at issue, as described above, therefore complies with the Labelling Directive on those two points. It is therefore not open to the German authorities to find that there is a risk that consumers could be misled. This is true even if those authorities were to consider that con­ 48. The Labelling Directive also states that sumers' expectations would lead them to the ingredients, which must be listed, are to attribute to that product a composition that appear in descending order of weight. The it did not have. The real or assumed content fact that the labelling on Lupack and Benti of those expectations is irrelevant in the con­ mentions water second on the list of ingredi­ text of the Labelling Directive. ents therefore tells the consumer that the per­ centage of water in the product's composition is between 5 % and 25 % in the case of Lupack and between 5 % and 30% in the case of Benti and that water is the products' second main ingredient after pork meat. 52. Labelling that indicates the name under which a product is sold and the ingredients used in its composition, in accordance with the methods laid down for that purpose by the Labelling Directive, could not be consid­ ered nevertheless to be potentially misleading with regard to the composition of the product. 49. The presentation of the ingredients of the abovementioned two products cannot there­ fore be criticised with regard to the Labelling Directive. Even if it were established that the average German consumer had a specific expectation that there would be no water in 53. To leave such a possibility open would the products at issue, which the referring run counter to the primacy of Community court states was not the case, the consumer law and would compromise the achievement was able to ascertain that the product differed of the objectives of the Labelling Directive, from that expectation and so could not be namely to 'contribute to the smooth func­ misled within the meaning of the Labelling tioning of the common market' by reducing Directive. ingredients caused by the differences between

59. In other words, could the German author­ ities, despite the fact that the labelling of the 56. Admittedly, the Landkreis Grafschaft products Benti and Lupack was not such as Bentheim also raises in its observations the could be misleading within the meaning of competitive disadvantage suffered by national Article 2 of the Labelling Directive, neverthe-

9 — See the first three recitals in the preamble. 12 — See, for instance, the Beer case, cited above in footnote 2. 10 — See the tenth and fourteenth recitals in particular. 13 — See, for instance, the Bonfait case, cited above, paragraphs 11 — See the tenth recital and Article 15, cited above. 16 and 17.

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less take the view that the prevention of fraud 63. The non-exhaustive nature of the Label­ under Article 15(2) did in this instance justify ling Directive, and hence the fact that a imposing additional requirements on those Member State may apply or adopt additional products on the grounds that they differed national measures, under the substantive and excessively from accepted standards in Ger­ procedural conditions laid down in Articles many? The national measures in question 15 and 16 thereof, has no effect at all on this would therefore be justified by the fact that, conclusion. even if the labelling at issue were not objec­ tively misleading, it could mislead the average German consumer because of his or her spe­ cific and precise expectations.

64. That freedom allowed to Member States cannot be exercised in such a way as to render the provisions of the Labelling Directive mean­ ingless.

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67. Accordingly, if the German authorities Directive whatever consumers' expectations were to consider that consumers required might be in that respect. precise information on the water content of such products where it was particularly high, they would be entitled to require an indica­ tion to that effect, subject to complying with certain conditions laid down by the Labelling Directive. Article 7 thereof states in this regard 70. It is therefore for the referring court to that, in the absence of Community provi­ ascertain whether, in this particular instance, sions, national provisions may stipulate, for the quantity of added water does, in the certain ingredients, compulsory indication of majority of cases, exceed 5 % by weight of a quantity as a percentage or in absolute the finished product. That court has in fact terms. These provisions are to be adopted in already stated in the order for reference that accordance with the procedure laid down in the water content of the product varies Article 16 of the Directive, which involves between 3.7% and 18%. informing the Commission and other Member States within a certain time-limit and obtaining the agreement of the Commission.

Protein content

68. In the absence of provisions adopted in accordance with that procedure, the inevi­ 71. The other charges brought by the Land­ table conclusion is that, with regard to the kreis and the Public Prosecutor's Office in ingredients used in the composition of the the main proceedings concern the protein products Lupack and Benti and the name content of the products Lupack, Bristol and under which those products are sold, Com­ Benti, whether that be the protein content in munity law does not allow the German author­ the fat-free part in the case of the first two or ities to make the above claims. the muscle-meat protein content in the case of the last two. As the Commission has rightly stated, these are not an ingredient of the product but one of its qualities. Therefore, the protein content does not have to appear on the list of ingredients provided for in Articles 3 and 5 of the Labelling Directive.

77. I therefore conclude from this that the absence of labelling concerning the protein content in the fat-free part or the muscle- meat protein content is not a breach of the Labelling Directive. As that Directive does not contain any precise provisions regarding indications of those contents, the necessary 74. The national court pointed out that approach, following the above line of rea­ German consumers had no specific expecta­ soning, is to establish with regard to the tion with regard to the composition of the requirements of Article 30 of the Treaty products at issue. It would therefore be whether the German provisions on those con­ extremely surprising if, by contrast, they did tents may be considered to be non- have a specific expectation with regard to the harmonised, additional national provisions, protein content in the fat-free part or the falling within the scope of Article 15 of the muscle-meat protein content. Labelling Directive and not concerning mat­ ters already addressed by that Directive.

75. Furthermore, even accepting that there 78. I consider that consumer protection were expectations on the part of the consumer cannot justify, in this particular instance, a as to the protein content of formed ham, it requirement for additional labelling to draw would be extraordinary if those expectations consumers' attention to the difference between were so specific that consumers would con­ their possible expectations as to the protein sider themselves misled if they bought a content of formed ham and the characteristics product in which the relevant contents were of the products at issue.

83. However, it is clear from the question 81. It should be noted that the Commission referred to the Court that it is limited to the points out, for the sake of completeness, that charges brought by the national authorities it appears from the documents before the and does not therefore include failure to Court that the labelling of the products at comply with the foregoing. That failure may issue does not include a visible and legible indeed be included amongst the other infringe­ reference to the national standard or legisla­ ments of the German rules on labelling, which tion authorising the name under which the the national court expressly states are not the products are sold. subject of the order for reference.

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Conclusion

84. On the basis of the foregoing, I would propose that the Court give the following answer to the national court:

(1) Article 30 of the EC Treaty precludes the legislation of a Member State from impeding the marketing of foodstuffs lawfully manufactured and sold in another Member State on grounds relating to consumer protection and information where those foodstuffs are labelled in accordance with the provisions 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, particularly those relating to the name under which the product is sold and the list of ingredients.