C-465/98

DARBO

OPINION OF ADVOCATE GENERAL LÉGER delivered on 20 January 2000 *

1. This reference for a preliminary ruling is I — Relevant provisions concerned with Directive 79/112/EEC on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs Directive 79/1 12 2 for sale to the ultimate consumer 1 (herein- after 'Directive 79/112'). 2. Directive 79/112 lays down the general rules on the labelling and presentation of foodstuffs for sale to the ultimate consu- mer.

3. Article 2(1) of the directive reads:

'[T]he labelling and methods used must not:

'[T]he list of ingredients shall include all the ingredients of the foodstuff, in descending order of weight, as recorded at the time of their use in the manufacture of the food- stuff. It shall appear preceded by a suitable heading which includes the word "ingredi- ents'".

4. Article 3(1) of Directive 79/112 pro- vides:

6. Article 15 of Directive 79/112 states:

'[I]n accordance with Articles 4 to 14 and subject to the exceptions contained therein, indication of the following particulars alone shall be compulsory on the labelling of foodstuffs: ' 1 . Member States may not forbid trade in foodstuffs which comply with the rules laid down in this directive by the application of non-harmonised national provisions gov- erning the labelling and presentation of (1) the name under which the product is certain foodstuffs or of foodstuffs in gen- sold, eral.

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'products within the meaning of this Law, which are properly manufactured and mar- 7. Paragraph 17 of the Lebensmittel- und Bedarfsgegenständegesetz (Law on food- 3 — Paragraph 14 of the· LMBG prohibits the· marketille of plant stuffs and consumer products) ('the health products, fertilizers anil unauthorised pesticides. Paragraph 15 of the LMBG prohibits the marketing of LMBG') contains provisions intended to anniini feedingstuffs containing substances producing any pharmacological effect (paragraph 11 of the observations of protect consumers against risks of fraud. the defendant in the main proceedings).

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keted in another Member State of the Germany under the trade mark 'd'arbo Community... may be released and mar- naturrein' and the more specific description keted in this country even if they do not 'Garten Erdbeer' ('Garden strawberry'). meet the legal provisions on foodstuffs of the Federal Republic of Germany. The first sentence shall not apply to products which 12. The labelling on the packaging of the jam bears the following wording:

1. do not comply with the prohibitions contained in Articles 8, 24 or 30 or

2. do not comply with other legal provi- sions adopted for the protection of health, to the extent which the market- 'In 1879 the Darbo family com- ability of the products in the Federal menced jam production. Today Republic of Germany has not been Darbo jams are still made according recognised... by the publication of a to a Tyrolean recipe which has been decision of general application of the handed down. They are heated and Federal Minister in the Bundesanzei- stirred carefully. Thus valuable vita- ger'. mins and the natural aroma of the fruit are preserved.

13. The strawberry jam made by Darbo 16. In Germany the Verein gegen U nivesen contains pectin gelling agent. According to in Handel und Gewerbe Köln eV (Associa- the order for reference 4this gelling agent is tion opposing anti-competitive practices in made up of 'diluted acids obtained princi- trade and industry, hereinafter 'the Verein') pally from the inside of citrus fruit peel, brought an action against Darbo seeking an fruit pomace or shredded sugar beet'. order that the word 'naturrein' should no longer be used. The Verein considers that the word is contrary to Paragraph 17(1)(4) and (5) of the LMBG for three reasons.

14. The jam also contains traces of the following residues: less than 0.01 mg/kg lead, 0.008 mg/kg cadmium, 0.016 mg/kg procymidone (pesticide) and 0.005 mg/kg vinclozolin (pesticide). First, the pectin gelling agent is an additive which consumers do not expect to find in the jam in question because of the descrip- tion 'naturrein'. Second, the latter term is liable to mislead consumers in that the ail- or the land from which the fruit used in the 15. In Austria it is permissible to use the jam originates are contaminated by pollu- term 'naturrein' on the packaging of d'arbo tion. Last, in view of the residues of lead, jam under the Österreichisches Lebensmit- cadmium and pesticide in the jam, it cannot telbuch (Austrian Food Code). That legis- be described as 'naturally pure'. lation provides as follows: 5

'Where they are produced without glucose syrup and, instead of food acids and salts 17. Before the national court, Darbo con- thereof, only fresh or naturally conserved tended that the use of the term 'naturrein' lemon juice (lemon-juice concentrate) is was not misleading. used, special quality jams and "light" jams may bear the description "naturrein" pro- minently displayed. Whatever the size of their packaging, such products shall not be preserved chemically'.

also contended that it should be able to IV — Preliminary observations market its jam in Germany pursuant to Paragraph 47(a)(1) of the LMBG and Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC), since that foodstuff is legally produced 19. In its written observations, 6 Darbo and marketed in Austria under the brand- claims that the question submitted by the name 'd'arbo naturrein'. Oberlandesgericht Köln is imprecise. It maintains that this case should be consid- ered in the light of Article 30 of the Treaty. Consequently, Darbo proposes to the Court that the question be reformulated in order to establish whether the prohibition on marketing the jam in question in Germany under the trade mark 'd'arbo naturrein' — a prohibition under Paragraph 17(1) (4) and (5) of the LMBG — constitutes a measure III — The question referred to the Court having equivalent effect, which is capable of being justified by overriding require- ments relating to consumer protection.

18. Entertaining doubts as to the scope of Article 2(1)(a)(i) of Directive 79/112, the Oberlandesgericht Köln stayed proceedings pending a preliminary ruling from the 20. I should like to make three observa- Court of Justice on the following question: tions on this point.

21. First, I find it difficult to reconcile Darbo's proposal with the findings of the 'Is it contrary to Article 2(1)(a)(i) of Direc- national court. tive 79/112/EEC ("the directive on label- ling") for jam manufactured in a Member State (Austria) and sold there and in another Member State (the Federal Repub- lic of Germany) under the description "naturrein" ("naturally pure") to contain the gelling agent pectin and less than In its order for reference 7 the Oberlandes- 0.01 mg/kg lead (atomic absorption spec- gericht Köln held that the use of the term trometry analysis — AAS), 0.008 mg/kg cadmium (AAS), and pesticides (0.016 mg/kg procymidone and 0.005 mg/kg vin- 6 — Paragraph 9. clozolin)?' 7 — Page 6 of the English translation.

The Court has consistently considered in the context of Articles 30 and 36 of the Treaty whether the objective of protecting consumers, being pursued by the national regulations in issue, could not be attained by a measure less restrictive on freedom of trade than a ban on the marketing of the foodstuff concerned. 10 In this connection the Court has ruled that: '[I]t is contrary to 22. Second, I would point out that the Article 30 of the EC Treaty for national Court has held on several occasions that it rules to prohibit, for reasons of consumer is solely for the national court to determine protection, the marketing of foodstuffs in the light of the particular circumstances lawfully manufactured and marketed in of each case both the need for a preliminary another Member State, where consumers ruling in order to enable it to deliver are protected by means of labelling in judgment and the relevance of the question accordance with the provisions of Council which it submits to the Court. 8 Article 177 Directive 79/112/EEC...'. 11 of the EC Treaty (now Article 234 EC) does not therefore allow the Court of 9 — See in particular judgnients in Case 13/68 Salgorl [1968] LCR 6 6 1 , 672 and in Case C-7/97 Bronner [1998] I - 7 7 9 1 , paragraph 17. 8 — See in particular judgments in Case C-127/92 Enderln 10 — S e e for example judgments in Case 261/81 Ran |1982] [1993] ECR I-5535, paragraph 10; in Joined Cases ECR 3961, especially paragraph 17, and in Case 176/84 C-332/92, C-333/92 and C-335/92 Enrico Italia and Others Commission v Greece [1987] ECR 1193, especially [1994] ECR I-711, paragraph 17; in Case C-146/93 paragraph 29. McLachlan [1994] LCR 1-3229, paragraph 20; and in Case 11 —Judgment in Case C-383/97 Van der Laan [1999] ECR C-264/96 / C / 11998] ECR I-4695, paragraph 15. I-731, paragraph 1 of the operative part (emphasis added).

28. Pectin is a 'gelling agent' within the meaning of Directive 95/2/EC on food 25. The national court asks in substance whether the use of the term 'naturally pure' to describe strawberry jam which contains 12 — See for example judgments in Case C-362/88 GB-inno-BM pectin gelling agent and traces of residues [1990] ECR I-667; in Case C-238/89 Fall [1990] ECR I-4827; in Case C-126/91 Yves Rocher [1993] ECR I-2361; of lead, cadmium and pesticides in the in Case C-315/92 Verband Sozialer Wettbewerb (`Clin- ique·) [1994] ECR I-317; in Case C-456/93 Langguth amounts indicated in the question for [1995] ECR 1-1737; and in Case C-470/93 Mars [1995] reference is liable to mislead consumers as ECR I-1923. 13 — Judgment in Case C-210/96 Gut Springenbeide and Tusky to the characteristics of the foodstuff within [1998] ECR I-4657, paragraph 31. See also the Mars the meaning of Article 2(1)(a)(i) of Direc- judgment, cited above, paragraph 24 and the judgment in Case C-303/97 Sektkellerei Kessler [1999] ECR I-513, tive 79/112. paragraph 36.

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additives other than colours and sweet- Directive 79/693 also authorises the use of eners. 14 It is a substance which gives a pectin in the manufacture of special quality foodstuff texture through formation of a jams. 20 gel. 15

30. Pectin may be liquid or solid. Accord- 29. The use of pectin in special quality jams ing to the provisions of Directives 95/2 and is mainly governed by two instruments of 79/693, solid pectin is an additive Community law: the abovementioned (E 440), 21 but liquid pectin is an ingredient Directive 95/2 and Directive 79/693/EEC of a foodstuff. 22 on the approximation of the laws of the Member States relating to fruit jams, jellies and marmalades and chestnut purée. 16

14 — Directive of the European Parliament and of the Council of 20 February 1995 (OJ 1995 L 6 1 , p.1), as amended by Directive 96/85/EC of the European Parliament and of the 32. Article 6(4)(a) of that directive reads: Council of 19 December 1996 (OJ 1997 L 86, p. 4), and by Directive 98/72/EC of the European Parliament and of '"Ingredient" shall mean any substance, the Council of 15 October 1998 (OJ 1998 1. 295, p. 18) (hereinafter 'Directive 95/2'). including additives, used in the manufac- 15 — Article l(3)(n) of Directive 95/2. ture or preparation of a foodstuff and still 16 — Council Directive of 24 July 1979 (OJ 1979 L 205, p. 5) present in the finished product, even if in as amended by Council Directive 80/1276/EEC of 22 December 1980 amending, by virtue of the accession altered form'. 23 of Greece, Directives 76/893/FEC, 79/693/EEC and 80/777/EEC with regard to the majority quorum of votes within the Standing Committee of Foodstuffs procedure (OJ 1980 L 375, p. 77) and by Council Directive 88/593/ EEC of 18 November 1988 (OJ 1988 L 318, p 44 here- 20 — Article 5, in conjunction with Annex 1 A, point 1; Annex inafter 'Directive 79/693'). III A, point 1, last indent, and Annex III B of Directive 79/693. 17 — Directive 79/693 defines 'special quality jam' as 'a mixture, 21 — Annex III 1) of Directive 79/693 and Annexes I and II to brought to a suitable gelled consistency, of sugars ami Directive 95/2. [fruit] pulp...' (Annex 1(A), point 1). 22 — Annex III A, point 1, last indent to Directive 79/693 and 18 — Annexes I and II to Directive 95/2. Article l(5)(b) of Directive 95/2. 19 — Article 2(8) of Directive 95/2. 23 — Emphasis added.

36. It should also be pointed out that in addition to the compulsory details provided for under Directive 79/112, Directive 79/693 laid down specific rules on the labelling of jam. 24 According to those 38. In those circumstances, I think that the rules, the packaging of special quality jams description 'naturally pure' is not liable to must include: mislead consumers as to the composition of the product in question.

'the words "prepared with... g of fruit per 100 g", the figure shown representing the 39. In the judgment in Case C-51/94 Com- mission v Germany the Court recognised

24 — Directive 79/112 states that: 'Community provisions applicable to specified foodstuffs... may provide that other 25 — Article 7(3)(a) of Directive 79/693. particulars in addition to those listed in article 3 must appear on the labelling' (first indent of Article 4(2)). 26 — Article 7(3)(b) of Directive 79/693.

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that 'consumers whose purchasing deci- The presence of residues of lead, cadmium sions depend on the composition of the and pesticide products in question will first read the list of ingredients, the display of which is required by... Directive [79/112]'. 27

2 7 — Case C-51/94 Commission v Germany [1995] ECR I-3599, paragraph 34, emphasis added. 29 — See in this connection the Van der Laan judgment, 28 — Van der Laan judgment, cited above, paragraph 37. paragraphs 39 and 40.

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It states that it is made according to a 48. However, the question referred by the Tyrolean recipe which has been handed national court is whether an 'average down within the Darbo family since 1879. consumer who is reasonably well-informed According to that recipe, the jam is 'heated and reasonably observant and circumspect' and stirred carefully', so as to preserve would expect to find traces of residues of valuable vitamins and the natural aroma of lead, cadmium and pesticide in a 'naturally the fruit. The packaging also states that the pure' jam. jam is made from 'garden strawberries'.

47. In the trade, organic products are generally indicated to consumers by the 50. The Finnish Government, 33 however, term 'organic'. 30 They may also bear challenged the relevance of such a criterion. indications which in some way refer to It states that all foodstuffs which meet organic production methods. 31 As we have purity standards laid down by Community seen, the labelling on d'arbo jam contains law must necessarily be described as 'pure'. no indication of that nature. Hence, if it appears that the jam in question meets those standards, the description 'naturally pure' should be regarded as being 30 — See in this connection Council Regulation (EEC) No 2092/91 of 24 June 1991 on organic production of agricultural products and indications referring thereto on agricultural products and foodstuffs (OJ 1991L 198, p. 1). 31 — See in this connection the third recital in the preamble to 32 — Pages 9 to 11 of the French translation. Regulation No 2092/91 and Article 1(1) thereof. 33 — See in particular paragraph 13 of its written observations.

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contrary to the provisions of Arti- pesticide that it could clearly not be cle 2(1)(a)(iii) of Directive 79/112. In that described as 'natural'. Moreover, in such a case, the description would suggest 'that case the fact that the labelling of the jam the foodstuff possesses special characteris- fails to inform the consumer of the presence tics when in fact all similar foodstuffs of the above mentioned residues would possess such characteristics'. mislead the consumer in the sense contem- plated in Directive 79/112.

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German legislation made it possible to On that point the Court held that '... Mars obtain a ban on the marketing of a product ha[d] not actually profited from the pro- bearing the symbol ® where the trade mark motional campaign in order to increase its of the product was not registered in that sale prices and that there [wa]s no evidence State but was registered in another Member that retailers ha[d] themselves increased State. It had been argued that the prohibi- their prices'. 35 It added, however, that: '... tion was justified because the use of the in any case, the mere possibility that symbol ®, which indicates that a trade importers and retailers might increase the mark is registered, misleads consumers if price of the goods and that consequently the trade mark is not registered in the consumers may be deceived is not sufficient country in which the goods are marketed. to justify a general prohibition which may hinder intra-Community trade'. 36

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In that particular case the Court held that 60. The requirement of a 'sufficiently sufficient information was available to serious risk' of consumers being misled is consumers in the list of products' ingredi- therefore a consistent factor in the case-law ents. It added that: 'Even though consu- of the Court. mers may sometimes be misled, that risk remains minimal and cannot therefore justify the hindrance to the free movement of goods created by the requirements at issue'. 37 61. In the light of that requirement, I think that the Court may adopt a dual criterion in this particular case in order to assess whether the term 'naturally pure' is likely to mislead consumers. According to that 58. It is clear from those judgments that, in dual criterion: order to determine whether a name, trade mark or advertising statement is or is not liable to mislead consumers, the Court applies a kind of de minimis reasoning. 38 It only decides that consumers are being misled where it considers that the risk of (a) the term 'naturally pure' is such as to this happening is sufficiently serious or mislead consumers where the use of obvious. that term is manifestly incompatible with the presence of traces of residues of lead, cadmium and pesticide in the jam in question;

59. Moreover, in the judgment in Case C-313/94 Graffione the Court held: (b) if not, the term 'naturally pure' would still be such as to mislead consumers where the use of that term is manifestly incompatible with the abovementioned residues in view of the amounts mea- sured in the jam in question. '... the risk of misleading consumers cannot override the requirements of the free move- ment of goods and so justify barriers to trade, unless that risk is sufficiently serious...'. 39 62. This dual criterion links the two 37 — Commission v Germany, cited above, paragraph 34 hypotheses of misleading consumers which (emphasis added). I identified above. 40 38 — See also in this connection the Clinique judgment, cited above, paragraphs 20 to 23 and the Van der Laan judgment, cited above, paragraphs 41 and 42. 39 — [1996] ECR I-6039, paragraph 24 (emphasis added). 40 — See point 51 of this Opinion.

65. Moreover, several instruments of Com- 44 — Council Directive of 3 December 1982 on a limit value for munity law confirm the presence of these lead in the air (OJ 1982 L 378, p. 15). 45 — Second recital in the preamble to Directive 82/884 two substances in our natural environment. (emphasis added). 46 — Article 1(1) of Directive 82/884 (emphasis added). 47 — Directive relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter 41 — Council Regulation of 8 February 1993 (OJ 1993 L 37, and lead in ambient air (OJ 1999 L 163, p. 41). p. 1). 48 — Article 1, first indent, of Directive 1999/30 (emphasis 42 — Article 1(1), second subparagraph, of Regulation added). No 315/93. 49 — Council Directive of 15 July 1980 relating to the quality of 43 — Lead and cadmium are also to be found in the ground water intended for human consumption (OJ 1980 L 229, naturally in the form of 'salts'. p. 11).

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in food production, generally contains a cadmium in discharges from [certain] certain amount of lead. 5 0 industrial plants...' 5 3 and 'quality objec­ tives for cadmium in the aquatic environ- menť. 5 4

As regards cadmium, I have found several Community instruments which confirm the presence of that substance in water. Moreover, the provisions of Directive 80/778 confirm that water intended for human consumption, whether supplied for consumption or used in a food production undertaking, are also liable to contain amounts of cadmium. 55 The preamble to Directive 83/513/EEC 51 states:

66. It is apparent from all those directives that a considerable number of industries '[W]hereas, since pollution due to the discharge, or have discharged, lead and discharge of cadmium into water is caused cadmium into the environment. However by a large number of industries, it is regrettable this may be, the presence of necessary to lay down specific limit values those two substances in our natural envir­ according to the type of industry concerned onment is thus a reality. 56 and to lay down quality objectives for the aquatic environment into which cadmium is discharged by such industries'. 52

70. It is apparent from these passages that 'Whereas crop production plays a very the use of pesticides is one of the most usual important role in the Community: ways of combating the presence of harmful organisms on vegetables and agricultural products. 59 Moreover, pesticides are not used only for industrial purposes or for large-scale crops. Private individuals who have indoor plants or grow fruit and Whereas the yield from that production is vegetables in their gardens are also wont continually affected by harmful organisms to use these substances in order to protect and weeds; their crops.

57 — Council Directive on the fixing of maximum levels for 58 — First to fourth recitals in the preamble to Directive 90/642 pesticide residues in and on certain products of plant (emphasis added). origin, including fruit and vegetables (OJ 1990 L 350, 59 — The Court has moreover stated on several occasions that p. 71), as last amended by Commission Directive 1999/71/ 'pesticides are substances... necessary to agriculture...' EC of 14 July 1999 amending the annexes to Council (judgments in Case 94/83 Heijn [1984] ECR 3263, Directives 86/362/EEC, 86/363/EEC and 90/642/EEC paragraph 15 and Case 54/85 Mirepoix [1986] ECR (OJ 1999 L 194, p. 36, hereinafter 'Directive 90/642'). 1067, paragraph 14).

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71. Thus, the fact that garden strawberries nevertheless be liable to mislead consumers are grown 'naturally' does not mean that if the foodstuff contained a high level of the fruit is free of pesticides. It is true that residues of toxic or polluting substances. 62 in the case of 'organic'products Regulation No 2092/91 laid down provisions which 'entail significant restrictions on the use of fertilizers and pesticides which may... result in the presence of residues in agricultural produce'. 6 0However, as I stated above, d'arbo jam is not an organic product within 74. In this connection it is appropriate to the meaning of that regulation and does not compare the levels indicated by the bear any indication that it was produced national court with the maximum levels organically. 61 laid down by Community law.

73. It is necessary however to consider the levels of residues of lead, cadmium and 62 — The description 'naturally pure' might indeed be liable to mislead consumers if, due to a high level of residues of pesticides measured in the jam in question. toxic or polluting substances, the foodstuff presented a significant risk to consumers' health. The description 'naturally pure' might 63 — It should be mentioned that the Court refers frequently to the work of the Codex Alimentarius Commission of the FAO and the World Health Organisation: see, for example, the lodgments in Case 178/84 Commission v Germany (known as the 'Beer purity laws' [1987] ECR 1227, 60 — N i n t h p a r a g r a p h in the p r e a m b l e to Regulation paragraph 44; in Case C-42/90 Bellon [1990] ECR I-4863, N o 2092/91. paragraph 14; and in Joined Cases C-13/91 and C-113/91 61 — Sec points 45 to 47 of this Opinion. Debus [1992] ECU I-3617, paragraph 17.

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adoption of international limits for lead 77. It is clear from this that the residues and cadmium in certain foodstuffs. In the measured in the jam in question are well case of fruit, it proposed the establishment below all the national and international of a limit of 0.3 mg/kg for residues of lead levels referred to above. Indeed, the pro- and a limit of 0.01 mg/kg for residues of duct in question has a lead level which is 30 cadmium. 64 times lower than the level recommended, for example, by the Codex Alimentarius Commission of the FAO and the World Food Organisation. Moreover its cadmium level is 25 times lower than the maximum authorised by the German legislation, to take another example.

79. In its question the court making the reference states that d'arbo jam contains the following traces: 0.016 mg/kg procy­ midone and 0.005 mg/kg vinclozolin.

Moreover, it should be pointed out that, in 80. This shows that the quantities of pes­ view of the particularly low level of the ticides measured in the jam in question are abovementioned residues as compared with particularly low as compared with the the values authorised by the competent levels allowed by Community legislation. 68 authorities (national, Community or inter­ Indeed, the procymidone content is more national), the fact that consumers are not than 300 times lower than the maximum informed of the presence of such residues value authorised by Directive 90/642. by the labelling of the product cannot be Moreover, the vinclozolin content is 1 000 regarded as misleading within the meaning times lower than the Community maxi­ of the provisions of Directive 79/112. mum amount.

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