C-229/01

MÜLLER

O P I N I O N O F ADVOCATE GENERAL TIZZANO delivered on 10 October 2002 1

1. By order of 1 June 2001, lodged at the after their period of minimum durability Court Registry on 11 June, the Unabhän- has expired, that fact must, even though giger Verwaltungssenat im Land Niederös- their expiry date is displayed, be communi- terreich (Independent Administrative cated clearly and in a generally intelligible Chamber in the Land of Niederösterreich manner. (Austria) — hereinafter 'the Verwaltungs- senat') referred a question to the Court for a preliminary ruling concerning the inter- pretation of Council Directive 79/112/EEC of 18 December 1978 on the approxi- mation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the Legislative framework ultimate consumer (hereinafter 'Directive 79/112') 2and of Directive 2000/13/EC of the European Parliament and of the Coun- cil of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (hereinafter 'Directive Community law 2000/13' or 'the directive') 3 which repealed Directive 79/112 as from 26 May 2000. 3. According to the first recital in its preamble, Directive 2000/13 consolidates the legislation on this matter and rewrites Directive 79/112 and subsequent amending legislation.

2. Essentially, the Verwaltungssenat asks the Court whether Article 15 of Directive 79/112 or Article 18 of Directive 2000/13 precludes a national rule which provides 4. The preamble also indicates that the that, where foodstuffs are offered for sale directive was adopted because 'differences between the laws, regulations and adminis- trative provisions of the Member States on 1 — Original language: Italian. the labelling of foodstuffs may impede the 2 —OJ 1979 L 33, p. 1. free circulation of these products and can 3 — OJ 2000 L 109, p. 29. lead to unequal conditions of competition'

(a) "labelling" shall mean any words, particulars, trade marks, brand name, 6. The 11th recital, for its part, states that pictorial matter or symbol relating to a 'in the absence of Community rules of a foodstuff and placed on any packaging,

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document, notice, label, ring or collar composition, quantity, durability, accompanying or referring to such origin or provenance, method of foodstuff; manufacture or production;

(b) "pre-packaged foodstuff" shall mean ...'. any single item for presentation as such to the ultimate consumer and to mass caterers, consisting of a foodstuff and the packaging into which it was put before being offered for sale, whether such packaging encloses the foodstuff 9. For its part, Article 3(1) of the directive completely or only partially, but in any provides that: case in such a way that the contents cannot be altered without opening or changing the packaging'.

'1. In accordance with Articles 4 to 17 and subject to the exceptions contained therein, indication of the following particulars 8. Article 2, in so far as it is relevant here, alone shall be compulsory on the labelling provides that: of foodstuffs:

(5) the date of minimum durability, or in the case of foodstuffs which, from the microbiological point of view, are highly perishable, the "use by" date; (9) instructions for use when it would be impossible to make appropriate use of the foodstuff in the absence of such instructions;

(6) any special storage conditions or con- ditions of use;

(10) with respect to beverages containing more than 1.2% by volume of alco- hol, the actual alcoholic strength by volume.' (7) the name or business name and address of the manufacturer or packager, or of a seller established within the Commu- nity.

10. Furthermore, Article 4 provides that:

However, the Member States shall be authorised, in respect of butter pro- duced in their territory, to require only ' 1 . Community provisions applicable to an indication of the manufacturer, specified foodstuffs and not to foodstuffs packager or seller. in general may provide for derogations, in exceptional cases, from the requirement laid down in Article 3(1), points 2 and 5, provided that this does not result in the purchaser being inadequately informed.

Without prejudice to the notification provided for in Article 24, Member States shall inform the Commission and the other Member States of any measure taken in pursuit of the second 2. Community provisions applicable to paragraph; specified foodstuffs and not to foodstuffs I - 2592

2. The date shall be preceded by the words: 13. Article 17 provides that:

— "Best before..." when the date includes an indication of the day, 'Member States shall refrain from laying down requirements more detailed than those already contained in Articles 3 to 13 concerning the manner in which the par- ticulars provided for in Article 3 and — "Best before end..." in other cases.' Article 4(2) are to be shown.'

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14. Article 18 of the directive, which reiter- 15. Finally, Article 19 provides as follows: ates the text of Article 15 of the repealed Directive 79/112, provides that:

'Where reference is made to this article, the ' 1 . Member States may not forbid trade in following procedure shall apply should a foodstuffs which comply with the rules laid Member State deem it necessary to adopt down in this Directive by the application of new legislation. non-harmonised national provisions gov- erning the labelling and presentation of certain foodstuffs or of foodstuffs in gen- eral.

19. On 26 February 2001, the Berzirks- hauptmannschaft Zwettl, the competent administrative authority in this matter, 17. More specifically, Paragraph 10 5 of ordered Ms Müller, in her capacity as the that regulation provides as follows: responsible representative of Spar öster- reichische Warenhandels AG, to pay a fine of ATS 2 000 for infringement of Para- graph 10(2) of the LMKV, by offering for sale, on 22 August 2000, beer products whose period of minimum durability had expired without that fact having been ' 1 . The period of minimum durability or clearly indicated in a generally intelligible the "use by" date may not be extended. manner.

20. Ms Müller appealed against the fine before the Verwaltungssenat which, taking 2. If the period of minimum durability has the view that the Austrian legislation in expired, that fact must be indicated question might be incompatible with Com- clearly and in a generally intelligible munity law, referred the following question manner. to the Court:

'Does: 3. If the "use by" date has passed, the product may no longer be offered for sale.' 6 Council Directive 79/112/EEC of 18 De- cember 1978 on the approximation of the 4 — Published in BGBl. No 72/1993. 5 — Later, following amendment, Paragraph 9, BGBl. II, No 462/1999. 7 — Published in BGBl. No 86/1975; the latest amendment is to 6 — Unofficial translation. be found in BGBl. I, No 157/1999.

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23. As is clear from its preamble, the purpose of the directive is to remove obstacles to trade between the Member States by laying down harmonised rules on product labelling based on the need to 21. Although the referring court feels it inform and protect consumers. In line with necessary to obtain a ruling from this Court that requirement, the directive seeks to I - 2596

MÜLLER

ensure that the movement of a foodstuff Article 18(1) which states that 'Member within the common market is not hindered States may not forbid trade in foodstuffs... by the fact that it does not bear labelling by the application of non-harmonised particulars that are required by law in the national provisions governing... labelling importing State or by the fact that it does and presentation' would be meaningless. In bear particulars that are prohibited in that fact, the imposition of additional particu- State. To that end, the directive lays down a lars, if not complied with, would inevitably series of general, horizontal rules appli- entail a prohibition on the marketing of cable to all foodstuffs. products not bearing those additional par- ticulars (or at any rate entail more onerous conditions).

24. In particular, for the purpose of this case, I would point out that Article 3 of the directive prescribes a series of particulars which are to be compulsory for all food- 26. In fact, this would also appear to me to stuffs, and hence those particulars are the be the line taken by the Court when only ones that may compulsorily be interpreting Directive 79/112, when it held required and whose absence can lead to a that 'with regard to labelling, the limits of marketing prohibition within the meaning the power retained by the Member States of Article 18(1). are set by the directive in so far as it lists exhaustively, in Article 15(2) [now Article 18(2) of Directive 2000/13], the grounds on which the application of non- harmonised national provisions prohibiting trade in foodstuffs may be justified'. 9

30. In support of its argument, the Com- mission plays on the fact that, as the 10th recital of the directive openly admits (see point 5 above), the horizontal harmon- 28. Ms Müller answers this question in the isation which it introduces for all foodstuffs affirmative and she therefore considers that is incomplete. In so far as its arguments are the national rule is incompatible with of relevance here, the Commission points Article 3 of the directive. out that it is only in specific rules relating to particular foodstuffs that suitable provi- sions have been adopted to prohibit the sale of highly perishable products after their 'use by' date; no such rule has been laid down for all other products. This merely confirms that, at a general, horizontal level, there is no Community harmonisation in this matter. Moreover, as the Commission goes on to point out, this was precisely 29. In the Commission's view, however, why, in its Proposal for a Regulation laying Paragraph 10 of the LMKV does not fall down the general principles and require- within the scope of the directive because it ments of food law, establishing the Euro- concerns matters not yet harmonised by the pean Food Authority and laying down latter; in particular, labelling requirements procedures in matters of food safety, 10 it for the period following expiry of the included the general principle that no period of durability. According to the foodstuff may be offered for sale if it is Commission, Article 3(1) of the directive dangerous. This principle has now been merely requires an indication of the 'use by' enshrined in Article 14 of Regulation (EC) date, with Articles 9 and 10 going on to No 178/2002 of the European Parliament specify what that date should be, depending and of the Council of 28 January 2002 on whether the foodstuff is non-perishable (hereinafter 'Regulation No 178/2002'), 11 (date of minimum durability, i.e. 'best which emanated from that proposal. before...' date) or highly perishable ('use by' date). The directive says nothing how- ever about labelling requirements for the 10 — Amended Proposal for a Regulation of the European period following those dates. Therefore, Parliament and of the Council laying down the general principles and requirements of food law, establishing the until such time as there is full harmon- European Food Authority, and laying down procedures in isation in this area, the Member States matters of food safety, of 7 August 2001 COM(2001) 475 def. (OJ C 304 E, p. 273). retain their power to regulate the matter, 11 —OJ 2002 L 31, p. 1.

31. Personally, I have to say that I support No 178/2002 (see above, point 30) there the Commission's conclusion because I was no general prohibition against offering consider that Paragraph 10 of the LMKV unsafe foodstuffs for sale, and that it was lies outside the scope of the directive. I do only for certain products which, from the however have some doubts about the microbiological point of view, were highly arguments adduced in order to arrive at perishable, that there were specific rules that conclusion. completely prohibiting marketing after the 'use by' date, helps to found the Commis- sion's argument. In fact, even if that con- firmed, a contrario, a lack of general, horizontal rules on labelling applicable to the period following expiry of the period of minimum durability for non-perishable foodstuffs, it cannot also be inferred, given 32. In particular, I do not think it is what I said in the previous paragraph, that possible to invoke the 10th recital of the Member States are free to adopt national directive in order to maintain that Member rules on the matter. In particular, I am States retain the power to require addi- perplexed at the reference to the prohib- tional, compulsory indications that have ition in Regulation No 178/2002, given not been harmonised. That recital merely that this prohibition (like the prohibition notes that the list given in the directive is enshrined in the specific provisions men- (initially at least) incomplete, due to its tioned earlier) does not relate to the rules horizontal nature, whilst pointing in sub- on labelling but rather to the general stance to the fact that it will be necessary at principles of food law and the safety of a later stage to add further indications food products. applying in principle to all foodstuffs. In my view, this certainly does not seem to support the contention that the Member States retain powers of their own in relation to labelling; rather, it confirms that, in view of the horizontal nature of the harmonisation brought about by the direc- tive, if any gaps appear in the meantime, they can be filled at Community level or, failing that, by specific measures taken by individual States, provided that such meas- ures are adopted within the limits and 34. It is the latter considerations which respecting the procedures laid down for lead me to view this matter in a different that purpose in the directive itself (see the light, one which might offer a more valid 11th recital and Articles 4 and 19). basis for the conclusion which the Com- mission has reached (in my view, correctly, as I said earlier). In my opinion, it is possible to arrive at the same conclusion, not by saying that the indications referred to in Paragraph 10 of the LMKV fall within the general scope of the directive but that, owing to the incomplete nature of the 33. Similarly, I do not see how the fact that latter, those indications are not, for the prior to the adoption of Regulation moment, subject to the harmonisation pur-

35. What the directive does cover are the indications needed in order to inform consumers about the inherent and original characteristics of a product — in other words its nature, properties, composition, 37. Nor do the indications laid down in quantity, durability, origin or provenance, Paragraph 10 of the LMKV have anything method of manufacture or production (see to do with the purpose of the directive. As I Article 2 and also the eighth recital). Now, pointed out earlier, the directive establishes it seems to me that the national rule at issue harmonised rules on labelling in order to does not concern the indications needed to contribute to the functioning of the internal inform consumers about those particular market and in particular to prevent any characteristics but merely serves to indicate differences between national laws impeding a possible alteration in those characteristics the free movement of goods and distorting which has occurred during the period after competition. the product has been offered for sale, indeed at the end of its normal shelf life. In that sense, therefore, those indications do not concern the 'labelling' of the prod- uct, at least not in the sense intended by the directive.

38. Provisions such as those contained in Paragraph 10 of the LMKV do not, in

principle, have an effect on the free move- unlike the Commission (which later ment of goods or competition within the excludes the possibility), to ascertain common market in any way, especially whether the rule complies with the pro- because, as the parties to the proceedings cedural requirements laid down in Article 4 have stressed with one voice, the provision of the directive and applying to the adop- at issue applies without distinction to all tion of national provisions which lay down products. In fact, such provisions only take compulsory labelling indications applicable effect once a product has gone through all only to certain foodstuffs. stages of the process, from production to being offered for sale to the ultimate consumer, and has therefore moved freely within the common market. If this is correct, an obligation on the retailer to indicate the expiry of the minimum dura- bility date obviously cannot impede move- ment of goods within the Community. In other words, for the purpose of this case, the imposition of such an obligation has 40. Moreover, it is reasonable to doubt the nothing to do with the purpose of the relevance of Article 28 EC to this case if directive. one supports the contention of the Austrian Government that the conditions set forth in Keck and Mithouard obtain here; namely if one considers that the national rule at issue regulates mere sales methods or situations and '[applies] to all relevant traders oper- ating within the national territory and [affects], in law and in fact, the marketing of domestic products and of those from other Member States'. 13 If this were true, as I am inclined to believe, the national provision at issue would also fall outside the scope of the prohibition on measures having equivalent effect to quantitative 39. I should also point out that even if the restrictions, covered by Article 28 EC. 14 Court were to decide, either on the basis of what I have just said or by following the Commission's reasoning, that the Austrian rule at issue falls outside the scope of the directive, it is still necessary to ascertain whether that rule respects the limits imposed by the relevant principles and general provisions of the Treaty. In par- ticular, the provision needs to be examined in the light of the general prohibition of 41. However, even if this were not the case, measures having equivalent effect to a I agree with the Commission and indeed quantitative restriction contained in Article 28 EC. On the other hand, having 13 —Judgment in Joined Cases C-267/91 and C-268/91 Keck shown that the matter falls outside the and Mithouard [1993] ECR I-6097, paragraph 16. scope of the directive, I do not see any need, 14 — See Keck and Mithouard, cited above, paragraph 17.

the Austrian Government that Paragraph also believe that the measure in question 10 of the LMKV satisfies the requirements can be justified on that basis since it is a laid down in Article 28 EC and the con- 'non-harmonised' (or, more correctly, a ditions which the Court's case-law has derogating) national measure justified on inferred therefrom. It is well-known that, grounds of prevention of fraud and unfair according to that case-law, Article 28 EC competition. 'prohibits obstacles to the free movement of goods resulting from rules that lay down requirements to be met by such goods (such as requirements as to designation, form, size, weight, composition, presentation, labelling or packaging), even if those rules apply without distinction to all national and imported products, unless their appli- cation can be justified by a public-interest 43. That view is disputed by Ms Müller objective taking precedence over the free who considers that the indication required movement of goods'. 15 In this case, in fact, pursuant to Paragraph 10 of the LMKV is the measures in question not only apply neither necessary nor proportionate in without distinction but they are also justi- relation to its stated purpose. This is fied by a public-interest objective, given primarily because she considers, contrary that they seek to protect consumers. Fur- to the Verwaltungssenat, that the conten- thermore, they must also be regarded as tion that consumers, when faced with a respecting the principle of proportionality product that is on normal offer, take it for because they merely impose a presenta- granted that the period of minimum dura- tional requirement and not an outright bility has not expired, is without grounds; a marketing prohibition. further warning relating merely to the expiry of that period is therefore unnecess- ary. Secondly, she contends that a warning of that kind is not proportionate in relation to its stated objective since a mere indi- cation of the date of minimum durability, as stipulated by the directive, would suffice; on the other hand, the additional labelling burden clearly exceeds what is necessary in order to protect consumers. 42. Having said this, primarily, I should add that, if the Court were to take the opposite view and rule that the Austrian measure does fall within the scope of the directive, I am inclined to support the argument, expressed both by the Austrian Government and the Commission in the alternative, that the measure is justified on the basis of Article 18(2) of the directive. I 44. I do not agree with those objections. In fact I consider that experience shows that consumers, including sensible consumers, 15 — See in particular the judgments in Case C-33/97 Colim normally start from the premiss that prod- [1999] ECR I-3175, paragraph 38, and Case C-169/99 Schwarzkopf [2001] ECR I-5901, paragraph 38. ucts offered for sale, albeit in packaging, I - 2602

48. Now it seems to me that the disputed measure is suited to pursuing its intended objective, without exceeding what is necessary for the purpose. In fact, the obligation to indicate clearly and in a 46. In my opinion, therefore, a measure generally intelligible manner the fact that such as the one at issue certainly answers the period of minimum durability has adequately the need to prevent deception expired limits trade in goods a great deal and fraud by drawing the attention of less than an outright marketing prohib- customers to the lack of a quality which ition. Not only this, but as the Verwal- he would otherwise have assumed to be tungssenat points out, and the applicant in present. the main proceedings confirms, the Aus-

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trian provision does not necessarily require 49. To conclude, I consider that the ques- an additional label to be affixed to every tion referred by the Verwaltungssenat item offered for sale after the period of should be answered to the effect that minimum durability has passed. If this is Council Directive 2000/13 of 20 March the case, the disputed measure does not 2001 does not preclude a national rule of a exceed what is strictly necessary in order to Member State which provides that, where protect consumers and must therefore be foodstuffs are offered for sale after the regarded as respecting the principle of period of their minimum durability has proportionality. expired, that fact must, even though their expiry date is displayed, be communicated clearly and in a generally intelligible manner.