C-101/98

* Original language: Italian. 1 — OJ 1987 L 182, p. 36. The regulation was most recently amended by Commission Regulation (EC) No 623/98 of 19 March 1998 (OJ 1998 L 85, p. 3). 2 — OJ 1989 L 186, p. 27. The directive was most recently amended by Directive 96/84/EC of the European Parliament Article 3(1) of the Regulation then provides and the Council of 19 December 1996 (OJ 1997 L 48, p. 20). that the designations referred to in Article 2

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OPINION OF MR SAGGIO — CASE C-101/98

4. The proceedings before the national court concern a dispute between the Schutzverband gegen Unwesen in der Wirtschaft e.V. (Registered Association for Protection against Unfair Business Prac- tices) (hereafter: 'the Schutzverband'), an 5. The Schutzverband brought an action association set up to safeguard competi- against UDL before the Landgericht tion, and the Union Deutsche Lebensmit- (Regional Court) Hamburg, claiming that telwerke GmbH (hereafter: 'UDL'), a com- the designations and words that UDL was pany which mainly produces cheese and proposing to affix to the two products in products derived from cheese, including issue had to be considered unlawful on the foodstuffs for particular nutritional uses ground that while cheese falls into the and dietary foodstuffs. Under the brand category of milk and milk products, the two abovementioned products could not be included in that category because, in their 3 — Article 3(1) of the regulation 'shall not apply to the case, all of the milk fat had been replaced designation of products the exact nature of which is clear from traditional usage and/or when the designations are by vegetable fat. It therefore sought an clearly used to describe a characteristic quality of the order restraining UDL from using the product.' 4 — Pursuant to Article 1(2), that category includes those designation 'cheese' for the products in 'foodstuffs which, owing to their special composition or manufacturing process, are clearly distinguishable from question and from including the above- foodstuffs for normal consumption, which are suitable for mentioned words on their packaging. The their claimed nutritional purposes and which are marketed in such a way as to indicate such suitability.' Landgericht dismissed the action. That

7. As regards the first question, UDL '(a) Is Article 3(1) of Council Regulation maintains that the relevant provisions of (EEC) No 1898/87 of 2 July 1987 on the Regulation and the Directive (Arti- the protection of designations used in cle 3(1) of the Regulation and Articles 3(2) marketing of milk and milk products, and 7(1) and (2) of the Directive) have to be read in conjunction with Article 3(2) interpreted as meaning that, as a rule, the of Council Directive 89/398/EEC of dietary alternative to a normal foodstuff 3 May 1989 on the approximation of must possess all the specific characteristics the laws of the Member States relating of the normal product, particularly as to foodstuffs intended for particular regards its manufacture, composition and nutritional uses, to be interpreted as nature, and its designation and labelling. meaning that a milk product, in which According to UDL, the dietary product milk fat has been replaced on dietary must comply with the requirements applic- grounds by vegetable fat, cannot be able to the foodstuff for normal consump- described as cheese? tion only in so far as this does not jeopardise its use as a product for particular nutritional use. On that basis, UDL con- cludes that such foodstuffs ought to be described using the same designation as is (b) If the first question is to be answered in used for the corresponding product for the affirmative, is it significant that the normal consumption. In this case, there- designation "dietary cheese (dietary fore, it would be legitimate to use the term

The principal source of that analysis is Article 3(2) of the Directive, according to which products 'characterised as "dietetic" 9. UDL then considers whether, as regards or "dietary"' must 'comply with any man- the use of the word 'cheese' to designate the datory provisions applicable to foodstuffs dietetic products in issue, Article 3(1) of for normal consumption, save as regards the Regulation is compatible with the changes made to them to ensure their principle of proportionality. It makes the conformity' with dietetic or dietary uses. general point that the provision is designed to protect consumers and to guarantee that milk and milk products are marketed in conditions of optimum competition. The first objective is automatically achieved because it has to be assumed that, since they have to contend with high levels of cholesterol and similar problems, the con- According to UDL, that same conclusion is sumers of the dietetic products are well- reached if account is taken of the need to acquainted with the product's characteris- protect quality foodstuffs from imitations. tics and, specifically, the fact that the In that sense, the dietetic alternatives natural fat has been replaced with vegeta- themselves constitute products with their ble fat, and are at any rate able to gather own specific characteristics and, therefore, this from the words that appear on the ought also to be protected against imita- packaging. As regards protecting the con- tion. ditions of competition, UDL points out that dietetic products cost a great deal more than the corresponding normal products and do not appear on the market as imitations of the latter; they cannot, there- fore, be considered to be in competition with them. 8. As regards the second question, submit- ted in the alternative should the answer to the first question be that the dietetic products in issue cannot be described using the same designation used for the corre- sponding normal products, and more spe- cifically the designation 'cheese', UDL 10. The Schutzverband, however, main- points out that there are two possible ways tains that, according to the abovemen- of describing these products: they could be tioned provisions of the Regulation and

As regards the second question, submitted 14. The Greek Government puts forward in the alternative, the German Government an argument similar to that of the French goes on to state that it must be answered in Government.

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15. Finally, the Commission, too, considers tetic products'). It should be pointed out that a milk product in which the natural that while, on the one hand, Article 3(2) of milk fat has been replaced with another the Directive requires that dietetic products substance that is not derived from milk must comply with any mandatory provi- cannot be described using the designation sions applicable to the corresponding food- 'cheese'; the Commission further states that stuff for normal consumption, it also this is borne out by the provisions of the provides for an exception to that require- Directive, given that they concern the ment by allowing for the possibility that the nutritional characteristics of the dietetic composition of such products may be products but do not affect the rules on changed where necessary to ensure their product designation. conformity with the particular nutritional use for which they are intended.

It is therefore necessary to establish The first question whether the prohibition on using the des- ignation 'cheese' may be brought under that exception.

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UDL

of Article 3(2) of the Directive which refers the constituents of a milk product to secure to 'changes made to them (the products)', conformity with the intended nutritional thus alluding to the substance of the use and to market the product thus mod- products themselves and not their designa- ified. It has, however, to be pointed out that tion. Pointing to the same conclusion is the when the product is marketed it will not be fact that the Directive regulates the com- able to be labelled with the protected position of the foodstuffs for particular designation if it does not contain the nutritional uses and indicates the supple- constituents of milk products which have, mentary information that has to be given to according to the Regulation, to be present consumers, in addition to that provided for before the protected designation can be in Directive 79/112/EEC,5 but in no way used. relates to their designation which therefore remains entirely governed by the Regula- tion. It follows that, in principle, dietetic products may be marketed under the gen- eric designation of the corresponding pro- duct for normal consumption, accompa- nied by an indication of their particular nutritional characteristics (see Article 7(2) 21. In conclusion, the result of applying the of the Directive). That parallel designation derogation provided for in the Directive cannot, however, be used, if the composi- cannot be to preclude application of the tion of the dietetic products is incompatible Regulation. Since it is specific in its content, with the provisions on use of the above- which is designed to protect the designa- mentioned designations. 6 tions of milk and milk products, the Regulation constitutes a lex specialis and, as such, takes precedence over the Direc- tive, which encompasses all products for particular nutritional use without distinc- tion and is therefore general in scope.

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Directive contains no provision designed to terms of quantity or for characterisation of preclude application of the Regulation. the product.'

25. The actual wording of the abovemen- tioned provisions is very clear. They have to be interpreted as meaning that products, including 'cheese', may be described using 23. Having made those general points, it is the designation 'milk products' only if they now necessary to establish whether the are products derived exclusively from milk prohibition on using the designation and provided that no milk constituent has 'cheese' arising from Article 3(1) of the been replaced, even partially, during the Regulation, has also to apply to those manufacturing process. It follows that, products derived from milk in which the where in a product, such as cheese, derived natural fat has been replaced with vegeta- from milk, the natural milk fat is replaced ble fat for dietetic reasons. with vegetable fat, that product can no longer be considered to be derived exclu- sively from milk. In accordance with Arti- cle 2 of the Regulation, the product thus manufactured cannot therefore be included in the category of 'milk products' and, consequently, cannot be described and marketed using the designation 'cheese'.

consumer may be led to believe that this is a 28. That interpretation of the scope of the product exclusively derived from milk, but prohibition at issue is consistent with the that consumer will in fact be purchasing a approach taken in the case-law of the product which, although derived from milk Court of Justice on the compatibility with and manufactured using cheese-making Community legislation, and in particular processes, is quite different from cheese with Article 30 of the Treaty on the free because one of its constituents — the milk movement of goods, of national legislation fat — has been entirely replaced with a on milk products. For example, in its different constituent — vegetable fat — judgment of 14 July 1988 in Case 298/87, that milk products do not contain. the Court recognised that where the gusta- tory characteristics of a product lawfully manufactured in one Member State and sold in another Member State are substan- tially different from the product manufac- tured in and marketed in the latter Member State under a name that has become customary, the authorities of that State may require that the product be marketed under a name other than that used for the customary national product. That case concerned the import of frozen yoghurt and, consequently, the nature and signifi- cance of the differences between frozen and fresh yoghurt. The Court recognised the compatibility with Community law of the prohibition under national law banning the use of the name 'yoghurt' to sell frozen 27. However, this interpretation of the products 'if the yoghurt, having undergone prohibition on using the designation deep-freezing, no longer had the character- 'cheese' for products that do not fall into istics which the consumer expects when the category of 'milk products' does not buying a product bearing the name further imply that it is impossible to use that designation for cheeses intended for a "yoghurt"'. 8 Taking the same approach, particular nutritional use. On the basis of in its judgment of 22 September 1988, the the relevant legislation, as interpreted Court confirmed, albeit in an obiter dic- above, it is still possible to use the designa- tum, that it would be incompatible with tion 'dietetic cheese' to describe a cheese in Article 30 of the Treaty and, more gener- which the natural milk fat content has been ally, with the objectives of a common substantially reduced but has not been replaced with other non-milk substances such as, for instance, fats of vegetable origin. The essential and defining constitu- ent of a milk product, and thus of cheese, is that any non-milk substances added to the naturally-occurring substances during the manufacturing process should not have replaced, even in part, any of the product's 8 — Case 298/87 Smanor [1988] ECR 4489, paragraphs 21 and natural constituents. 24 in particular.

29. My interpretation of Article 3(1) of the Regulation is consistent with Directive 30. For all of the above reasons, I propose 97/4/EC of the European Parliament and that the answer to the first question should be that Article 3(1) of the Regulation, read in conjunction with Article 3(2) thereof, 9 — Case 286/86 Ministère public ν Deserbais [1988] ECR, must be interpreted as meaning that a milk paragraph 13. That case concerned French legislation which penalised under the criminal law the use of the designation product in which the natural milk fat has 'Edam' cheese for cheeses containing less than 40% fat. 10 — Paragraph 11 of the judgment in case 286/86, cited in been replaced with vegetable fat cannot be footnote 9 above. described using the designation 'cheese'.

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UDL

The second question bearing in mind that one of the provisions of the Regulation, Article 3(2), specifically provides that 'in respect of a product other than those described in Article 2, no label, commercial document, publicity material or any form of advertising... or any form of 31. As I have proposed that the first presentation may be used which claims, question be answered in the affirmative, it implies or suggests that the product is a is necessary to reply also to the second dairy product.' question, submitted by the national court in the alternative.

32. By its second question, the national court is asking whether it is significant that the designation 'dietary cheese containing vegetable oil for a fat-modified diet' is completed by additional descriptive mate- rial on the packaging, such as 'this dietary cheese is rich in polyunsaturated fats' or 'this dietary cheese is ideal for a choles- terol-conscious lifestyle.'

consumer that can be obviated only by 36. In response, UDL states that if Arti- means of the prohibition in question, but cle 3(1) of the Regulation is interpreted as not, also, by providing information on the meaning that the use of the word 'cheese' to packaging. describe products derived from milk in which one natural constituent has been replaced with a non-milk constituent is prohibited, and that prohibition applies even in the event that explanatory notes have been affixed to the packaging, it would have an excessive scope unnecessary for consumer protection and would there- fore be incompatible with the principle of proportionality. UDL in fact takes the view that that protection could be provided just as effectively using the abovementioned explanatory notes. According to UDL, that consideration corroborates the view that the prohibition in issue ought in fact to be interpreted flexibly, by recognising that it is also possible to use the word 'cheese' for 35. The Court of Justice takes a similar milk products in which the natural milk fat approach in its case-law on the compat- has been replaced with vegetable fat, ibility with Community law, and with always provided that information to the Article 30 of the Treaty in particular, of consumer is properly guaranteed. national legislation on the designation of foodstuffs. I would point out that the Court has ruled that national legislation designed to guarantee that products are correctly designated, and thus to guarantee consu- mer information and fair trading, is not incompatible with Article 30 if it is justified on grounds of public interest in consumer protection. 11 I would further mention that, as I have already pointed out in my analysis of the first question, according to the Court, supplementing the name of the product with descriptive information may not be sufficient to guarantee that the consumer is properly informed, for instance, in the event that the characteris- tics of the product marketed differ substan- tially from those of the product with which the customary name is associated. 12

38. It should be pointed out that the tion should be construed as absolute in Regulation lays down rules governing the scope. I believe that question should be designation of milk products for the pur­ answered in the affirmative. By using its pose of protecting the natural composition margin of discretion, which is particularly of such products in the interest of Com­ broad where its acts affect economic activ­ munity producers and consumers and ity, the Community legislature clearly con­ recognises the need to 'avoid any confusion sidered that only a strict ban on the use of in the mind of the consumer between milk the designation 'cheese' for products products and other food products, includ­ derived from milk from which the natural ing those consisting in part of milk compo­ milk fat has been removed could with nents'. 1 3 It is well known that, in accor­ certainty prevent any confusion that might dance with settled case-law of the Court of arise in the mind of the consumer as a result Justice, a provision may restrict the free­ of the use of the word 'cheese', even if dom of activity of an economic operator accompanied by written explanations. It only to the extent that this is necessary to must be considered that it is the word attain the objective the legislature is seeking 'cheese' that attracts the consumer's atten­ to achieve through that restriction. That tion and informs his choice, whereas it can same case-law also emphasises that when, be assumed that, while the written expla­ as in this case, the Community legislature nations may have an influence on the intervenes in the area of economic activity, consumer's choice, that influence will, in it must have a broad margin of discretion in any event, be marginal. It follows that the relation to the decisions it takes. 14 prohibition in issue cannot be considered disproportionate to the aim pursued. That conclusion confirms the interpretation of Article 3(1) I proposed above.

(2) The prohibition contained in Article 3(1) of Council Regulation (EEC) No 1898/87 of 2 July 1987 on the protection of designations used in the marketing of milk and milk products continues to apply even if the designation 'dietary cheese (dietary soft cheese) containing vegetable oil for a fat-modified diet' is accompanied by additional descriptions on the products' packaging such as 'This dietary cheese is rich in polyunsaturated fats' or 'This dietary cheese is ideal for a cholesterol-conscious lifestyle'.

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