C-14/00

OPINION OF MR ALBER — CASE C-14/00

Article 14(2)(a) Annex I

'1. For the purposes of this Directive, the following definitions shall apply:

'2. This Directive shall not affect the provisions of national laws:

1.16 Chocolate

The product obtained from cocoa nib, (a) at present authorising or prohibiting cocoa mass, cocoa powder or fat-re- the addition of vegetable fats other duced cocoa powder and sucrose with than cocoa-butter to the chocolate or without added cocoa-butter, having, products defined in Annex I. At the without prejudice to the definition of end of a period of three years 3 from the chocolate vermicelli, gianduja nut notification of this Directive the Coun- chocolate and couverture chocolate, a cil shall decide, on a proposal from the minimum total dry cocoa solids con- Commission, on the possibilities and tent of 35% — at least 14% of dry the forms of extending the use of these non-fat cocoa solids and 18% of fats to the whole of the Community; cocoa-butter — these percentages to be calculated after the weight of the additions provided for in paragraphs 5 to 8 has been deducted;

(2) Italian law 4. By letter of 12 February 1997 the Com- mission informed the Italian authorities that it considered the prohibition of the marketing of chocolate products containing vegetable fats other than cocoa-butter 2. Directive 73/241 was transposed into under the name 'chocolate' to be incom- Italian law by Law No 351 of 30 April patible with Article 28 EC. By letter of 1976 (hereinafter 'Law No 351/76'). Under 8 July 1997 the Italian Government dis- Article 6 of that Law all products which puted the contention that Article 28 EC resemble chocolate but whose composition had been infringed, arguing that Directive does not comply with the definitions given 73/241 represented complete harmon- in the annex to the Law are designated isation of the rules on the marketing of chocolate imitations. The only vegetable fat chocolate. Only products complying with contained in the products listed in the this Directive were protected by the prin- annex to the Law is cocoa-butter. ciple of the free movement of goods.

3. The ministerial circular of 28 March 5. On 22 December 1997 the Commission 1994 excluded chocolate products lawfully then forwarded to the Italian Government a manufactured in a Member State of the letter of reminder in which it reiterated its Community and containing other vegetable legal opinion. In subsequent contacts

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8. The Commission points out that the marketing of chocolate products containing vegetable fats other than cocoa-butter under the name 'chocolate' is permitted in 6. The Commission considers the provi- all the Member States except Italy and sions of Article 6 of Law No 351/76 to be a Spain and that the manufacture of those measure having equivalent effect to a products under the name 'chocolate' is quantitative restriction. Referring to the permitted in six Member States. provisions of Article 14(2)(a), the seventh recital and point 7(a) of Annex I, it takes the view that Directive 73/241 does not govern the question of the use of vegetable fats other than cocoa-butter in chocolate products. Although it is thus in principle left to the Member States to permit or 9. The restriction of the free movement of prohibit the use of such vegetable fats, the goods is not removed, in the Commission's legislation they adopt must be compatible view, by the option of marketing the with the other principles of Community products concerned under the name 'choc-

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olate substitute'. The Commission sees this effectively by providing them with objec- too as an unjustified restriction of the free tive and impartial information on the movement of goods. packaging. This was a far less drastic means than prohibiting marketing under the name under which the product had been lawfully manufactured in a Member State and providing the option of market- ing it under another name which moreover, had, negative connotations.

10. The Commission also contends that the obligation to rename products leads to higher packaging and labelling costs and possibly to less favourable marketing con- ditions. Products bearing their normal, traditional names were usually held in higher esteem by the consumer. The use 13. The Commission claims that the Court of a negative term, such as 'chocolate should: substitute', might reduce the product's value in the eyes of the consumer.

(1) dismiss the application;

(2) order the Commission to bear the costs 17. The Italian Government denies that the of the proceedings. disputed legislation results in a restriction of the free movement of goods. Products containing vegetable fats other than cocoa- butter might be marketed in Italy under the name 'chocolate substitute' ('surrogato di cioccolato').

15. The Italian Republic considers the dis- puted legislation to be compatible with Article 28 EC. Article 14(2)(a) of Directive 73/241 explicitly authorised the Member States to retain their national legislation, regardless of whether they permitted or prohibited the use of vegetable fats other than cocoa-butter. The Commission's inter- pretation circumvented this provision. If 18. The obligation to rename the product products which did not comply with the was justified from the angle of consumer legislation of the importing State might protection. The addition of other vegetable nevertheless be marketed under the name fats altered the product so fundamentally under which they were manufactured in the that marketing it under the traditional country of origin, the result would in effect name 'chocolate' was no longer justified. be to permit the addition of substances There was otherwise a danger of Italian prohibited under national legislation. This consumers being misled since, when con- was inconsistent with the purpose of the fronted with the name 'chocolate', they authorisation in Article 14(2) of Directive expected only products containing no veg- 73/241. etable fats other than cocoa-butter.

19. The parties disagree on the extent to which the marketing of chocolate products containing vegetable fats other than cocoa- butter under the name 'chocolate' is gov- erned by Directive 73/241. The Commis- sion maintains that it is not, and takes the view that the marketing of chocolate prod- ucts containing vegetable fats other than cocoa-butter is governed by Article 28 EC. Italy, on the other hand, believes that the Directive sets out definitive provisions in as much as the Member States have been authorised to lay down rules on this matter, possibly even prohibiting the marketing of products which do not comply with their national legislation. 2 1 . The sentence of Article 14 quoted above must, however, be read in conjunc- tion with the following sentence of this provision, which announces a future resol- ution of this issue: 'At the end of a period of three years from the notification of this Directive the Council shall decide, on a 20. Both parties base their arguments on proposal from the Commission, on the Article 14(2)(a) of the Directive, referred to possibilities and the forms of extending under 11(1) above. This provision reads: the use of these fats to the whole of the 'This Directive shall not affect the provi- Community;...' From this it is evident that sions of national laws at present authoris- the intention was not to lay down rules in ing or prohibiting the addition of vegetable Directive 73/241 on the use of vegetable fats other than cocoa-butter to the choc- fats other than cocoa-butter but to leave olate products defined in Annex I'. The them until a later act. It is thus hardly issue on which the parties disagree cannot possible to share the view of the Italian be resolved solely by reference to the Government, which sees the Directive as a wording of this provision. It merely states definitive set of rules in as much as the

22. The view presented here is confirmed by the seventh recital of the Directive, which states that 'a decision relating to the possibilities and forms of any extension of the use of these fats in the Community as a 25. The parties are now at odds over the whole cannot be taken at the present time'. legal implications of this. While the Com- This proves that the Directive is not a mission is of the opinion that under definitive set of rules on the free movement Article 28 the Member States are under of chocolate products containing vegetable an obligation to permit products lawfully fats other than cocoa-butter. manufactured in other Member States under the name 'chocolate' to be marketed in their territory under the name 'choc- olate' used in the country of origin, Italy considers that any reference to Article 28 EC through Directive 73/241 must be ruled out since the freedom granted to the 2 3 . The rules announced in Article 14(2) of Member States by Article 14 to adopt rules Directive 73/241 did not emerge until the on the admissibility of the use of these fats adoption of Directive 2000/36/EC of the would otherwise be undermined. European Parliament and of the Council of 23 June 2000 relating to cocoa and choc- olate products intended for human con- sumption. 4 This specifies that certain veg- etable fats other than cocoa-butter as listed in Annex II to the Directive may account for up to 5 % of the finished product. However, as this provision does not have to be transposed into national law until 3 August 2003, it does not apply to the 26. According to the judgment in the Cassis current action. de Dijon case, it is for the Member States to adopt for their territory any legislation concerning the manufacture and marketing 4 — OJ 2000 L 197, p. 19. of a product in cases where there are no

27. It follows from this case-law that, although the Member States are authorised to lay down rules in areas in which there is 28. This conclusion is not affected by the no or no more than partial harmonisation, 6 Italian Government's objection that the which, as stated above, is true of the use of application of Article 28 EC leads to the name 'chocolate' for products contain- reverse discrimination. According to settled ing vegetable fats other than cocoa-butter, case-law, that article is not designed to such rules must be compatible with the ensure that goods of national origin always Treaty provisions concerning the free enjoy the same treatment as imported movement of goods. In other words, where goods; a difference of treatment as between they lead to a restriction of the free goods which is not capable of restricting movement of goods, it must be considered imports or of prejudicing the marketing of whether there are compelling reasons for imported goods does not fall within the prohibition contained in that article. 8 The possibility of the interpretation of 5 — Case 120/78 Rewe-Zenlral ('Cassis de Dijon') [ 1979) ECR 649, paragraphs 8 and 14; Case C-470/93 Mars | 1 9 9 5 | ECR I-1923, paragraph 12; Joined Cases C-267/91 and C-268/91 Keck and Mithouard | 1 9 9 3 | LCR I-6097, 7 — Sec Case C-3/99 Ruwet | 2 0 0 0 | ECU I-8749, paragraph 47. paragraph 15. 8 — Case C-448/98 Gurmont | 2 0 0 0 | ECK 1-10663, paragraph 6 — For the imposition of language requirements see Case 15; Case 98/86 Mathol |1987] ECR 809, paragraphs 7 and C-33/97 Colim 11999] ECR I-3175, paragraph 35.

30. What therefore needs to be considered 33. Law No 351/76 prohibits products in the following is the extent to which the lawfully manufactured in other Member Italian legislation satisfies the requirements States under the name 'chocolate' and of Article 28 EC et seq. containing vegetable fats other than cocoa- butter from being marketed under this name in Italy. It thus forces manufacturers established in other Member States to alter the composition of their products if they want to market them in Italy under the name 'chocolate'. The Law therefore restricts the access of products lawfully 31. Article 28 EC prohibits quantitative manufactured in other Member States to import restrictions and all measures having equivalent effect between Member States. According to settled case-law, a measure 9 — Case 8/74 Dassonville [1974] ECR 837, paragraph 5; Keck having equivalent effect to a quantitative and Mitbouard (cited in footnote 5, paragraph 11).

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35. According to the case-law, it is not compatible with Article 28 EC and the objectives of a common market for national legislation to be allowed to restrict a generic term to one national variety alone to the detriment of other varieties pro- duced, particularly in other Member States, by compelling the producers of the other varieties to use appellations which are unfamiliar to or less esteemed by the consumer. 11 37. As regards the option of marketing the products in question under the name 'choc- olate substitute', it must be said that the possibility of negative feelings being aroused in the consumer is inherent in the use of this term. 'Substitute' is not an objective, neutral term that imparts a 36. In the present case, the name 'choc- simple piece of information, as docs the olate' is not restricted to Italian products; it printed statement 'contains vegetable fats other than cocoa-butter', for example. The addition of the word 'substitute' implies 10 — For similar cases concerning the composition of products see Case 193/80 Commission v Italy [1981] ECR 3019, that the product is not chocolate but merely p a r a g r a p h 2 6 , and Case 286/86 Deserbais [1988] ECR 4907, paragraph 12. a replacement. It is thus possible that the 1 1 — C a s e 182/84 Miro [1985] ECR 3731, paragraph 22; Deserbais (cited in footnote 10, paragraph 12); Commis- sion v Italy (cited in footnote 10, paragraph 26); Case 298/87 Smamn [1988] ECR 4489, paragraph 12; Case 12 — See Commission v Italy (cited in footnote 10, paragraph 27/80 Fietje [1980] ECR 3839, paragraph 10. 20).

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that restrict the free movement of goods. 14 protect Italian consumers against making a Thus the second of the conditions referred mistake. It is ensured that the only veg- to above is similarly satisfied. etable fat contained in products which they acquire under the name 'chocolate' is cocoa-butter. This protects them against confusing these products with products containing other vegetable fats. These rules are thus likely to ensure consumer pro- 43. It remains to be examined how far the tection. disputed measure is necessary. The Com- mission is of the opinion that appropriate information for the consumer on the pack- aging of the product is a less drastic and equally suitable means of achieving the objective of protecting him against mis- takes.

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19 — Miro (cited in footnote 1 1 , paragraphs 20, 24 and 25). 16 — Commission v Italy (cited in footnote 10, paragraphs 25 to 27). 20 — Commission v Italy (cited in footnote 10, paragraph 23); Commission v Germany (cited in footnote 14, paragraph 17 — Commission v Germany (cited in footnote 14, paragraph 35); Deserbais (cited in footnote 10, paragraphs 1 0 , 1 3 and 26). 19). The judgment in Smanor concerned the treatment 18 — Commission v Germany (cited in footnote 15, paragraph which the product in question had undergone during its 32). manufacture (cited in footnote 1 1 , paragraph 19 et seq.).

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respect that is essential for its composi- ment are in principle justified, this danger tion. 21 This is the point of the objection must be regarded as slight, according to raised by the Italian Government, which present case-law, and cannot justify sees the addition of other vegetable fats as obstacles to the free movement of goods. 24 fundamentally altering the product. There is no obvious reason for deviating from the settled case-law in these proceed- ings.

49. It therefore needs to be considered whether the addition of vegetable fats other than cocoa-butter leads to a fundamental 51. Prohibiting the use of a name is, more- change in the composition of the product over, never considered justified unless the and whether appropriate labelling can product concerned is so different, as consequently no longer be regarded as a regards its composition, from the products sufficient means of informing the consumer generally known by that name in the adequately and protecting him against Community that it cannot be regarded as mistakes. falling within the same category. 25 The Italian Government takes the view that the addition of other vegetable fats changes the product so fundamentally that to market it under the name 'chocolate' would be to mislead the consumer.

53. It must also be emphasised that the 55. It should be borne in mind, on the other other vegetable fats added to chocolate hand, that, according to an undisputed products are designated 'cocoa butter submission by the Commission, the prod- equivalents' by Directive 2000/36. ucts in question are lawfully manufactured Although, as pointed out above, this Direc- under the name 'chocolate' in six Member tive is not applicable in the present case, the States. According to a further undisputed rules it contains can be used to show that submission by the Commission, the mar- the vegetable fats at issue in this case may keting of these products under the name replace cocoa-butter. As stated above, 'chocolate' is prohibited only in Spain and however, cocoa-butter is, according to Italy. All the other Member States permit Directive 73/241, an essential ingredient them to be marketed under the name of chocolate. This might indicate that the 'chocolate'. These facts indicate that the products which — in excess of the addition of vegetable fats other than cocoa- required minimum content of cocoa- butter does not result in so fundamental a butter — may replace cocoa-butter as change in the composition of the product equivalents are also to be regarded as that it can no longer be regarded as falling essential ingredients, with the result that within the category of chocolate. their addition should lead to a fundamental change in the product.

57. This conclusion is endorsed by the Combined Nomenclature (CN) of the 60. The final conclusion to be drawn is Common Customs Tariff. Chocolate is therefore that prohibiting the use of the listed under CN Code 1806 with other name 'chocolate' is not the least drastic food preparations containing cocoa. Prod- means of informing the Italian consumer of ucts containing cocoa-butter are listed the fact that the product contains vegetable under subheadings 1806 20 10, 1806 20 fats other than cocoa-butter. The require- 30 and 1806 20 50. All other subheadings, ment that the product be appropriately some of which explicitly use the term labelled has less of an adverse impact on 'chocolate', such as subheading 1806 90, the free movement of goods. The Italian do not refer to the content of cocoa-butter rules are thus disproportionate and so fail or other vegetable fats. This indicates that to justify the restriction on the free move- the name 'chocolate' should be regarded as ment of goods which has been identified. a generic term whose use does not depend The Commission's action should therefore on the addition or absence of vegetable fats be upheld. other than cocoa-butter.

58. The conclusion to be drawn, therefore, VI — Costs is that the addition of other vegetable fats to products having the minimum content of cocoa-butter required by Directive 73/241 does not result in so fundamental a change in the product that it can no longer justifiably be deemed to fall within the 61. Under Article 69(2) of the Rules of category of chocolate. In the light of the Procedure the unsuccessful party is to be case-law to which reference has been made, ordered to pay the costs if they have been an obligation to rename products which applied for. As the Italian Republic has have been lawfully manufactured in other been unsuccessful and the Commission has Member States under the name 'chocolate' made an application, Italy should be is not justified. ordered to pay the costs.

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