C-217/99

COMMISSION V BELGIUM

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 29 June 2000 *

1. The present infringement action con- a notification file must be submitted and cerns the compatibility with Articles 28 the file must contain at a minimum the EC and 30 EC of a labelling requirement, following information: the nature of the imposed by Belgian law, under which product; a qualitative and quantitative list nutrients and foodstuffs to which nutrients of the product's ingredients; a nutritional have been added must carry a national analysis; the proposed label; information to notification number. enable a proper examination of the nutri- tional value to be carried out; an under- taking to carry out frequent analyses and to inform the Service of the results. Within a month of the receipt of a notification the Service sends an acknowledgment to the notifying party. This acknowledgment con- tains a notification number. I — Legal and factual context

2. The Belgian Royal Decree of 3 March 1992 concerning the placing on the market of nutrients and foodstuffs to which nutri- 4. Article 4 also permits the Service to ents have been added (hereinafter 'the 1992 make observations and recommendations Decree') 1 establishes a system of prior concerning, amongst other things, the notification of such products to the Inspec- changing of the label and in particular the tion Service for Foodstuffs of the Ministry inclusion of an obligatory mention of of Public Health and the Environment warnings. (hereinafter 'the Service').

3. Article 4 of the 1992 Decree details the requirements for notification: two copies of 5. The first paragraph of Article 6 of the 1992 Decree requires that the product's label contain the notification number pro- * Original language: English. vided for in Article 4 and the date up to 1 — Moniteur Belge of 15 April 1992, p. 8467. which the nutritional content is guaranteed.

10. Belgium replied to the reasoned opi- nion in a letter of 29 July 1998, in which it referred to the Royal Decree of 20 May 1998 amending the Decree of 3 March 7. Therefore, on 28 June 1996, the Com- 1992, 2which, in its opinion, effectively mission sent Belgium a letter of formal eliminated the supposed infringement. notice stating its view that, while the notification procedure itself could be justi- fied by the need to protect public health, the notification-number obligation con- tained in Article 6 constituted a measure of equivalent effect to a quantitative restric- tion on the free movement of goods con- trary to Article 28 EC. The Commission 11. The Commission did not agree and, by expressed the view that the obligation was application lodged on 8 June 1999, not justified in the public interest and did brought an application requesting the not, in any event, respect the principle of Court, pursuant to Article 226 EC, to proportionality. declare that, by laying down in the first paragraph, first indent, of Article 6 of the 1992 Decree, concerning the placing on the market of nutrients and foodstuffs to which nutrients have been added, an obligation to indicate on the labelling of the products involved a notification number provided for by Article 4 thereof, the Kingdom of 8. Belgium replied to that letter on 31 October 1996. It observed that the 1992 Decree did not discriminate between 2 — Moniteur Belge of 17 July 1998, p. 23576.

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3 — Case 120/78 Rewe v Bundesmonopolverwaltung für Branntweinm [1979] HCR 649 (hereinafter 'Cassis de D on'); Joined Cases C-267/91 and C-268/91 Keck and Mithoiurd [1993] ECR I-6097, paragraph 15; Case C-368/M FAMILIA- 13. The Commission recalls that in accor- press v Bauer Verlag 11997] ECR I-3689, paragraph 8 and Case C-383/97 Arnoldus van der LAAN [1999] ECR I-731, dance with settled case-law, in the absence paragraph 19.

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15. Belgium also invokes the specific nat- tion to place the notification number on the ure of the products covered by the 1992 label is in no way concerned with assuring Decree and the conditions in which their additional health or consumer protection. marketing in the Community is permitted. It does not see what additional information It considers, citing the example of obliga- about the product's characteristics or com- tory labelling in different languages, that, position or what additional guarantee is in practice, a separate label will be required provided by the notification-number obli- in most Member States of the Community. gation. The practical consequence of the differing national nutritional requirements is that a universally acceptable label is impossible and, therefore, that it can hardly be said that the specific obligation in question amounts to a barrier to trade.

18. The Commission submits that the real purpose of the obligation is to facilitate controls of the products covered by the Decree and to verify that notification has 16. Finally, while doubting that the obliga- indeed occurred. Such concerns with the tion to carry the notification number will lightening of administrative burdens are always increase costs, Belgium believes that not recognised by the Court as constituting any extra costs would be willingly borne by public-interest objectives capable of taking Belgian consumers to whom they may be precedence over the free movement of passed on. goods. 4

22. The Commission maintains that the notification-number obligation is dispro- portionate to its alleged aim. First, it points 21. Belgium further submits that as protec- out other features of the system established - tion of public health and of consumers is by the 1992 Decree which already serve to the principal aim of the 1992 Decree, any protect public health and consumers. Sec- administrative concerns are secondary. It ondly, it argues that less restrictive mea- refers to the specific character of the sures would achieve the same supposed products covered by the Decree, some of aim. It observes that the notification num- which are designed for groups considered ber may be found by consulting the list of as vulnerable (e.g. pregnant women, the notifications itself or by referring to the young, the aged), while others are designed documents accompanying the product such for consumption by the general public. as invoices. Thirdly, the Commission con- Prior notification is, in its view, essential tests the right which has been invoked for to prevent the marketing of products that an authority to determine the most appro- are harmful to such vulnerable groups. priate means of control which is contained Belgium also argues that the public-health in Council Directive 89/397/EEC of objective of the obligation is shown by 14 June 1989 on the official control of Article 11 of the 1992 Decree, which foodstuffs. 6It submits that this Directive aims to establish a general market surveil-

5 — Judgment of 15 February 1994, Goffart Healthcrafts & Others v Belgian State CK No 46108. 6 — OJ 1989 L 186, p. li.

7 — OJ, English Special Edition, Series I 1965-1966, p. 20. 8 — Indeed, the Court has found compatible with Article 28 et seq. EC a national rule prohibiting, without prior author- isation, the marketing of foodstuffs lawfully produced in another Member State to which vitamins have been added, provided that the marketing is authorised where the 25. It denies that the aim of the provision addition of vitamins meets a real need, especially a technical or nutritional one; Case 174/82 Sandoz [1983] ECR 2445. could be achieved in a less restrictive For a similar ruling in the case of additives, see Case 304/84 manner. Ministere Public v Muller [1986] ECR 1511.

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(a) On the existence of a measure of graph 16 of the Court's judgment in Keck equivalent effect to a quantitative restric- and Mithouard. 10 The stipulation at issue tion obliges persons wishing to market the affected products in Belgium to create a special label for use on the Belgian market. This involves the incurring of additional packaging costs and may act as a disin- centive to marketing the products in Bel- 27. Throughout both the oral and written gium. 11 stages of pleadings Belgium has maintained that the notification-number obligation does not constitute a measure of equivalent effect to a quantitative restriction and is thus not contrary to Article 28 EC. How- ever, I fully accept the Commission's argu- ment that this is incorrect.

30. Belgium's argument that, in the absence of harmonising legislation, the notification number may be of some use in other Member States is without foundation. As the Commission argued, the utility or 28. It is clear that the products affected by otherwise in other Member States of the the 1992 Decree may be legally marketed in notification number is, in the context of other Member States without mention of Article 28 EC, without any relevance as any notification number. Therefore, Article 28 EC concerns the importation of according to well-established case-law, a goods into the national market. measure like the one in question which lays down a requirement to be met by the product itself constitutes prima facie a violation of Article 28 EC, even if it applies indistinctly to both domestic and imported goods. 9

33. I now turn to consider whether or not the notification-number obligation is justi- 32. Finally, Belgium has argued that any fied by any public interest capable of additional packaging costs will be readily overriding the fundamental Community borne by Belgian consumers. A number of freedom contained in Article 28 EC. points can be made about this. In the first place, the prospect of incurring additional costs in advance (even assuming that these costs can be entirely passed on) may, as I said above, act as a disincentive to those wishing to market goods in Belgium. Sec- ondly, even if the costs are passed on to 34. Belgium submits that the notification consumers, the imported product is system as a whole pursues the protection of deprived of a competitive advantage it human health, a public interest recognised would otherwise have had on the Belgian in Article 30 EC. As the Commission market. This advantage is removed in the admitted at the hearing, the system ensures same manner as when a minimum retail that the Belgian authorities are informed price is imposed on products. 13 Thirdly, about new products containing nutrients, even presuming that the extra cost is enables the authorities to obtain supple- minimal and that the obligation is relatively mentary information about the products and enables them to make remarks and recommendations concerning the labelling thereof. Over-consumption of nutrients is 12 — Joined Cases 52/65 and 55/65 Germany v Commission [1966] ECR 159, pp. 170 to 172 and Case C-265/95 Commission v France [1997] ECR I-6959, paragraph 63. 13 — Case 82/77 Openbar Ministerie of the Netherlands v van Tiggele [1978] ECR 25, paragraphs 14 and 18 and Case 14 — Joined Cases 177/82 and 178/82 Van de Haar and Kaveka C-287/89 Commission v Belgium [1991] ECR I-2233, de Meent [1984] ECR 1797, paragraph 14; Case C-67/97 paragraph 17. When a minimum price of a specific Anklagemyndigheden v Ditlev Eluhme [1998] amount is fixed at a higher level than the cost price of ECR I-8033, paragraph 20 et seq. and paragraphs 18 the imported goods, then even if the minimum price is and 19 of my Opinion in that case as well as my Opinion indistinctly applicable, it can still restrict imports by of 15 June 2000 in Case C-376/98 Germany v Parliament preventing their lower cost price from being reflected in and Council and Case C-74/99 Imperial Tobacco, para- a lower retail selling price. graph 103.

37. It is important to remember exactly how the notification number appears on a product. It appears, as was explained at the hearing, along with the letters 'NUT NR' 35. The principle of proportionality is a (nutrient number), the number of the fundamental principle of Community law nutrient itself and then the number of the whose observance the Court must assure. 17 firm. It has three cumulative limbs: first, the measure must be necessary and appropriate to achieving its purpose, secondly, this 18 — See in respect of Community action, inter alia. Case C-331/88 Fedesa and Others [1990] ECR I-4023, para- purpose must not be attainable in a less restrictive or less intrusive manner, and graph 13; Case C-180/96 United Kingdom v Commission 1998] ECU I-2265, paragraph 96; and as regards Mein- ber State action, see the Opinion of Advocate General Van Gcrven in Case CM 59/90 Society for the Protection of Unborn Children Ireland (hereinafter 'Grodan') [1991] ECU I-4685, paragraph 35 and the Opinion of Advocate 15 — Sandoz, cited at footnote 8 above, paragraph 17, regard- General Jacobs m Case C-384/93 Alpine investments ing vitamins. [19951 ECR I-1141, paragraph 80. This view is also supported by academic authorities; see for example 16 — For example, Sandoz, cited at footnote 8 above; Tnüiinas, Takis, 'The General Principles of PC Law', Case 188/84 Commission v France [1986] ECR 419 and Oxford University Press, 1999, at p. 91 and De Burea, Case C-271/92 LPO [1993] ECR I 2899. Granine, 'The Principle of Proportionality and us Appli- 17 — Case 182/84 Miro 11985] ECU 3731, paragraph 14. cation in EC Law' (1993) 13 YEL 105, 113.

38. Belgium relies on the existence of a very gium. Its additional contribution to the close link between the notification proce- objective pursued by the requirement of dure itself and the notification-number notification itself is highly doubtful. obligation. Seeing the number on the label is a guarantee for consumers that notifica- tion has occurred and it also makes it possible for them to request information about the product. It considers that, if this possibility of verifying whether or not 40. Further, any claimed utility of the notification has taken place did not exist, notification number is predicated on con- the notification procedure itself would lose sumers knowing exactly what the number its significance. means. The appearance of the number only carries significance if consumers are aware of the existence of the notification system. This is by no means certain, as even Belgium has admitted that consumers are more often 'unqualified' in such areas. In addition, those who do have this high level of consumer awareness already know of the existence of the notification system and they therefore know that a product should not be on sale in the absence of prior notification. 39. However, I do not see how the notifi- cation-number obligation contributes, in any substantial manner, to the protection of health or of consumers. At present on seeing the notification number on the label consumers merely know, at most, that the 41. Therefore the argument that consumers product has been notified to the Service. will lose confidence in the notification This number does not convey any addi- system in the absence of the appearance tional information about the amount of the of the notification number on the product particular nutrient contained in the pro- simply cannot be accepted. Most consu- duct, about any tests that may have been mers will not appreciate what the number carried out on the product or about whe- signifies and, for those who do, the number ther or not the Service made any remarks or does not inform them of anything new. In recommendations concerning the product. other words, the obligation is not only Consumers may know that over-consump- burdensome but is also ineffective and tion of a particular nutrient is harmful but inappropriate for attaining its self-pro- the added presence of the notification claimed purpose. It thus fails to satisfy the number will not help them decide whether first condition of proportionality. or not they should consume the labelled product or, if so, in what quantities. The presence of the notification number only shows compliance with a particular stan- dard but does not provide any additional advice to consumers at large, let alone to 42. Belgium nevertheless cites examples of the vulnerable groups mentioned by Bel- obligatory markings imposed in Commu-

43. Belgium also maintains that the notifi- cation number facilitates tracing of pro- ducts about which consumers request infor- mation. It is claimed that consumers will 45. It follows that the third limb is also not not have access to the other documents satisfied, as the advantages for the protec- tion of public health or of consumers, if any, which flow from the notification- 19 — Council Directive 92/46/EEC of 16 June 1992 laying clown the health rules for the production and placing on the number obligation are clearly far out- market of raw milk, heat-treated milk and milk-hased products, OJ 1992 L 268, p. 1. weighed by the disadvantages for the free 20 —Council Directive 88/378/EEC of 3 May 1988 on the movement of goods which it entails. approximation of the laws of the Member States concern- ing the safety of toys, OJ 1988 L 187, p. 1. 21 — Council Directive 75/324/EEC of 20 May 1975 on the approximation of the laws of the Member States relating 22 — See my Opinion of 6 April 2000 in Case C-55/99 to aerosol dispensers, OJ 1975 L 147, p. 40. Commission v France, paragraph 47.

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V — Conclusion

46. In the light of the foregoing analysis, I recommend that the Court:

(1) Declare that the Kingdom of Belgium is in breach of its obligations under Article 28 EC as a result of its requiring, in the first paragraph, first indent, of Article 6 of the Belgian Royal Decree of 3 March 1992 concerning the placing on the market of nutrients and foodstuffs to which nutrients have been added, that products affected by the Decree bear the national notification number attributed to them under Article 4 of the same Decree;