C-123/00

2. A judgment in default was delivered in December 1998 against Mrs Bellamy, the director of English Shop Wholesale, a limited company which imports foodstuffs 3. Mrs Bellamy contested the judgment and from the United Kingdom for retail sale in contends that the charges are contrary to Belgium, on the ground that in 1994 and 1995 she had contravened provisions of the 2 — Moniteur Belge, 7 November 1985. 3 — Moniteur Belge, 6 May 1980. 1 — Original language: Spanish. 4 — Moniteur Belge, 8 Aprii 1977.

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provisions of European Community legis- in relation to foodstuffs and other lation, in particular, Article 28 EC. products compatible with the require- ments of Article 28 of the Treaty on European Union and are they capable of being justified under Article 30 of that instrument?

I I— The questions referred for a preli- minary ruling 3. Are Articles 4(2) and 5 of the Royal Decree of 17 April 1980 concerning advertising of foodstuffs and Article 14 4. In order to enable it to give judgment in of the Law of 24 January 1977 on the the proceedings, the Tribunal de Première protection of consumers' health in Instance referred the following questions to relation to foodstuffs and other pro- the Court of Justice for a preliminary ducts compatible with the requirements ruling: of Article 28 of the Treaty on European Union and are they capable of being justified under Article 30 of that instru- ment?'

IV — Consideration of the questions sub- 9. It appears from the order for reference mitted by the national court that the first question was drawn up as a consequence of Mrs Bellamy being fined for contravention of Article 1(3) and Arti- cle 8 of the 1985 Royal Decree and Arti- cle 14 of the 1977 Law. I must point out, in the interests of clarity, that the requirement A. The first question relating to the maximum salt content in bread is to be found in Article 3(2) of the 1985 Royal Decree and not in Article 1(3) or Article 8. 7. By this question, the Belgian court is seeking to ascertain whether Article 28 EC precludes the application of a Member State's legislation which prohibits the mar- keting in its territory of bread and other bakery products whose salt content, calcu- 10. That question has already been lated on the basis of the dry matter, exceeds answered by the Court of Justice in its 2.0%, where those products have been judgment in Van der Veldt, 5delivered in lawfully manufactured and marketed in response to a question from another Bel- another Member State. If the answer to gian court hearing a case dealing with facts that question is affirmative, the national similar to those described here. court is asking whether the legislation may be justified under Article 30 EC.

11. In that judgment, the Court confirmed that, in the absence of common or harmo- 8. Article 28 EC prohibits quantitative nised rules on the making and marketing of restrictions on imports between Member States as well as all measures having equivalent effect. For its part, Article 30 5 — Case C-17/93 Van der Veldt [19941 ECR I-3537.

13. I also consider the legal arguments deployed by the Court of Justice to refute the argument that the Belgian legislation was justified on grounds of the protection of public health to be valid, since the 12. A requirement that they contain no national authorities responsible for health more than a specific amount of salt, policy had alleged that if the Netherlands calculated by reference to the dry matter, rules on salt content in bread were adopted, may prevent bread and other bakery pro- the daily intake of that type of chloride ducts originating in other Member States would amount to 3.1 g, which was too from being marketed in the State con- high. cerned. Complying with such a requirement may make it necessary, if identical manu- facturing standards are not prescribed for the manufacture of bread, to vary the method of manufacture according to the place where the bread or bakery products are to be sold and may thus impede the movement of the products. However, according to that judgment, 7 general conjecture of that nature does not prove that increasing salt intake by such an amount poses a risk to public health. Furthermore, although the mere fact that there is a risk to consumers is sufficient to make legislation of the kind at issue compatible with the requirements of Arti- Accordingly, the Court held that a Member cle 30, 8the risk must be measured, not State's legislation prohibiting the marketing according to the yardstick of general con- of bread and other bakery products whose jecture, but on the basis of relevant scien- salt content by reference to the dry matter tific investigation. 9Since no scientific data exceeds the maximum permitted level of of that kind had been produced, on which 2%, when applied to products which have the Belgian legislature could have relied, been lawfully manufactured and marketed

I understand from my reading of the national legislation referred to in the order for reference (i) that Article 1(3) of the 1985 Royal Decree defines speciality breads; (ii) that under Article 8 contraven- tions of the Decree are investigated, prose- cuted and punished in accordance with the Law on the protection of consumers' health; and (iii) that Article 14 of that law lays down that a person who manufactures or imports foodstuffs or other products referred to therein, or a person who is neither the manufacturer nor the importer but who knowingly places such foodstuffs or other products on the market, is liable 14. In the case that I am considering, no either to imprisonment for a period of new arguments have been presented to between eight days and six months or to a show that the legislation is necessary for fine of between 50 and 1 000 francs, or to the protection of public health or that it is both. proportionate to that end. Consequently, it must be held that Article 28 EC precludes the application of a Member State's legisla- tion prohibiting the marketing in its terri- tory of bread and other bakery products whose salt content, calculated by reference The national court is asking whether that to the dry matter, exceeds 2 %, where those legislation is consistent with Article 28 EC products have been lawfully manufactured and whether it can be justified by reason of and marketed in another Member State, Article 30 EC. and that the legislation cannot be regarded as justified under Article 30 EC on the ground of the protection of public health.

19. By this question, which needs to be reformulated, the national court is seeking to ascertain whether Article 28 EC pre- cludes legislative provisions of the kind 17. The Court of Justice has stressed11 found in Article 4(2) of the 1980 Royal how important it is for a national court Decree, which prohibits presenting a bran- making a reference to give the precise ded product in such a way as to suggest reasons which have prompted it to raise a that it possesses particular qualities question on the interpretation of Commu- although all similar products have such nity law and to submit questions seeking a qualities. It is also seeking to establish preliminary ruling, 12 and has held that it is whether Article 28 EC prohibits the appli- essential that it should give at the very least cation of a national rule such as that found some explanation of the reasons for the in Article 5 of the 1980 Royal Decree, choice of the Community provisions of under which all advertising of foodstuffs which it requests an interpretation and on must use in a clearly visible manner a the link between those provisions and the description laid down, where appropriate, national legislation applicable to the dis- by provisions of laws or regulations, in pute. 13 order to ensure that consumers are not misled as to the nature of the foodstuff. If the answer to the question is affirmative, an analysis of whether the national legislation in question can be justified under Article 30 EC will be called for. 18. Taking account of the fact that the national court has not given any such explanation and that Mrs Bellamy and English Shop Wholesale are alleged to have contravened the prohibition in Article 3(2) of the 1985 Royal Decree, a matter covered by the first question referred for a ruling, I consider that the Court should not answer the second question. 20. According to the case-law of the Court of Justice, obstacles to free movement of goods which are the consequence of rules 11 — Order in Case C-116/00 Laguillaumie [2000] ECR I-4979, paragraph 16. that lay down requirements to be met by 12 — Orders in Case C-101/96 Italia Testa [1996] ECR I-3081, goods (such as requirements relating to paragraph 6, Joined Cases C-128/97 and C-137/97 Testa and Modesti [1998] ECR I-2181, paragraph 15, and Case designation, form, size, weight, composi- C-9/98 Agostini [1998] ECR I-4261, paragraph 6. tion, presentation, labelling, packaging) 13 — Order in Case C-167/94 Grau Gomis and Others [1995] ECR I-1023, paragraph 9. constitute measures of equivalent effect

21. As the Commission has pointed out in The Court has also interpreted Article 28 its observations, Directive 79/112/EEC 17 EC as meaning that the application of ('Directive 79/112') constitutes the first national legislation, enacted in the absence stage in the process of harmonisation which of common or harmonised rules, to pro- is intended to remove progressively all ducts imported from other Member States, obstacles to the free movement of goods where they are lawfully manufactured and resulting from the differences between the marketed, is compatible with the Treaty laws of the Member States in relation to only in so far as it is necessary on grounds labelling. 18 Similarly, Directive 92/46/ of public interest under Article 30 or in EEC 19 harmonises the rules regulating the order to satisfy mandatory requirements heat treatment of drinking milk and Chap- relating inter alia to fair trading and ter III of Annex C thereto sets out the rules consumer protection. 15 applicable to wrapping and packaging.

26. Like the Commission, I infer from the facts explained by the national court that in the case in question Article 5 of the Royal Decree applied to the labelling on the milk's 23. Article 4(2) of the 1980 Royal Decree, packaging. The obligation imposed relates in prohibiting advertising of foodstuffs to the product's characteristics and does which suggests that they possess special not have any effect on advertising. Adver- characteristics when in fact all similar tising is distinct from the product itself and products possess such characteristics, incor- its packaging and constitutes a 'selling porates into national law the provision arrangement' of the kind referred to in found in Article 2(1)(a)(iii) of Directive paragraph 16 of the judgment in Keck and 79/112. Mithouard,20 which falls outside the scope of Article 28 EC.

24. It must therefore be held that Article 28 EC and Article 2 of Directive 79/112 do not preclude a national legislative provision 27. Under Article 3(1)(1) of Directive of the kind found in Article 4(2) of the 79/112, the name under which the product 1980 Royal Decree. is sold is one of the compulsory details to be included on the labelling of foodstuffs. Therefore, the application of Article 5 of the 1980 Royal Decree to the labelling of a food product, is neither more nor less than the implementation in national law of the provision in the Directive.

25. The obligation imposed by Article 5 of the 1980 Royal Decree to use a recognised 20 — Cited in footnote 14.

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28. It remains to be seen whether Commu- could create confusion in the mind of the nity legislation precludes a Member State purchaser. from requiring milk which is marketed under the name 'Breakfast Milk' to include in the name under which it is sold the words 'whole' and 'pasteurised'.

Under Article 2(2) of Regulation (EC) No 2597/97 21 ('Regulation No 2597/97'), the sales descriptions to be used for milk products are those given in Article 3, paragraph 1 of which requires the name under which the product is sold to indicate 30. Furthermore, in accordance with Arti- whether the milk is raw, whole, semi- cle 5 of Directive 92/46, Member States are skimmed or skimmed. obliged to ensure that drinking milk is placed on the market only if it meets inter alia the conditions of having been treated in the way provided for in Annex C, Chapter I.A, labelled in accordance with Annex C, Chapter IV, and wrapped in accordance 29. As for the requirement that the word with Annex C, Chapter III, at a treatment 'pasteurised' should appear on the packa- establishment where the milk has been ging, Article 5(3) of Directive 79/112 pro- subjected to final treatment. Paragraph 5 vides that the name under which the of Chapter III of Annex C to the directive, product is sold is to include or to be which regulates wrapping and packaging, accompanied by particulars as to the phy- requires the operator or manager of the sical condition of the foodstuff or the establishment to ensure for control pur- specific treatment which it has undergone poses that, in addition to the information (for example, powdered, freeze-dried, required by Chapter IV, the nature of the deep-frozen, concentrated, smoked), in all heat treatment which the raw milk has cases where omission of such information undergone and other information whereby the date of the heat treatment may be established and the temperature at which 21 — Council Regulation (EC) No 2597/97 of 18 December the pasteurised milk must be stored is 1997 laying down additional rules on the common visibly and legibly displayed on the packa- organisation of the market in milk and milk products for drinking milk (OJ 1997 L 351, p. 13). ging of the milk and milk-based products.

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(2) Article 28 EC and Article 2 of Council Directive 79/112/EEC of 18 Decem- ber 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 do not preclude a national legislative provision such as Article 4(2) of the Royal Decree of 17 April 1980, which prohibits advertising attributing particular qualities to products where all similar products have such qualities.

Article 28 EC and Article 5 of Directive 79/112 do not preclude a national provision such as Article 5 of the Royal Decree of 17 April 1980, which requires any advertising of foodstuffs to use in a clearly visible manner a sales description laid down, where appropriate, by provisions of laws or regulations, such as the words 'whole' and 'pasteurised' for a product having such characteristics.

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