C-40/02

OPINION OF MR MISCHO — CASE C-40/02

OPINION OF ADVOCATE GENERAL MISCHO delivered on 10 April 2003 1

1. The Unabhängiger Verwaltungssenat im terns of consumption and other factors Land Niederösterreich (Independent which may cause the actual value to vary.' Administrative Chamber for the Land of Lower Austria) ('the national court') has asked the Court for a preliminary ruling on the i n t e r p r e t a t i o n and validity of Articles 1(4)(k) and 6(8) of Council Direc- tive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs. 2 3. Article 6(8) of Directive 90/496 pro- vides:

I — Legal background 'The declared values shall, according to the individual case, be average values based on:

A — Community law

(a) the manufacturer's analysis of the food;

B — National law (4) A person who... infringes the provisions of a regulation adopted on the basis of Paragraph 10... is guilty of an adminis- trative offence, unless the act is subject to a 5. Article 74 of the Gesetz über den Ver- more severe penalty under Paragraphs 56 kehr mit Lebensmitteln, Verzehrprodukten, to 64 or other provisions, and is to be Zusatzstoffen, kosmetischen Mitteln und punished as under subparagraph 1.' Gebrauchsgegenständen of 23 January 1975 (Lebensmittelgesetz 1975) (Federal Law on the marketing of foodstuffs, prod- ucts intended for human consumption,

6. Paragraph 2 of the Verordnung des 3 — This last provision provides for .1 Committee procedure, Bundesministers für Gesundheit und Kon- under which the Commission is to adopt measures following referral to the Standing Committee on Foodstuffs. sumentenschutz über die Nährwertkcnn-

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Zeichnung von Lebensmitteln (Nährwert- 9. "average value" means the value which kennzeichnungs-Verordnung) (Regulation best represents the amounts of the nutrients for nutrition labelling of foodstuffs, BGBl. contained in a given foodstuff and takes 1995/896, the 'NWKV'), adopted pursuant account of seasonal variations, patterns of to Paragraph 10 of the LMG, provides as consumption and other factors which may follows: cause the actual value to change.'

8. As provided in Paragraph 8 of the '(1) Subject to subparagraph 2, nutrition NWKV: labelling shall be optional.

2. a calculation from the known or actual and thus pursuant also to the national average values of the ingredients used; legislation implementing that directive, was intended to create a broad framework. Although, according to Ms Scherndl, it would be reasonable for the consumer to want labelling indicating values at the time of purchase or consumption of the product, 3. a calculation from generally proven and such labelling is not possible where the accepted data.' product has a lengthy conservation period. The information given as to nutrition values may therefore refer to any time between sale to the end consumer and the expiry of the conservation period indicated. Given the fact that the vitamin content may diminish considerably under the influence of external factors such as air, light, I I — The dispute in the main proceedings temperature, etc., the values stated or the calculation of the average value refer to the end of the minimum conservation period. In so far as the vitamins listed in Directive 90/496 or in the NWKV do not cause hypervitaminosis and there is no objection to overdosage, the values were measured by 9. By an administrative penal order ('Stra- the manufacturer in such a way that they ferkenntnis') of the Bezirkshauptmann- would still be fulfilled at the end of the schaft Korneuburg (Austria) of 30 July minimum conservation period. 2001, Ms Scherndl was found guilty, in her capacity as the person responsible for the firm Hofer KG, of having infringed the provisions of the LMG and/or the NWKV by marketing, on 5 July 2000 at Stockerau (Austria), the pineapple juice 'Premium Ananassaft 100%', inasmuch as the vit- 11. It is also apparent from the order for amin C content, which had been deter- reference that the expert report submitted mined for that product (ascorbic acid by Ms Scherndl concerning the product in content), differed by 40% from the content question shows quite significant variations stated. Whereas an ascorbic acid content of in the findings concerning the ascorbic acid 300 mg/l was stated on the product, an content. analysis by the Federal Institute for Food Investigation and Research (the 'Institute') on 25 October 2000 showed an ascorbic acid content of 430 mg/l.

16. Neither the economic operators con- cerned nor the administration are in a position to assess the obligations which 14. According to the national court, the arise from the directive, with the result that question of the method of calculating the Directive 90/496 does not answer the average value can be resolved only by question whether or not the interpretation Community law. It adds that the rules in contended for by Ms Scherndl corresponds Directive 90/496, which have been taken to the requirements of the NWKV or the over unchanged in the NWKV, are trans- intention of the Council. In the light of the posed by corresponding penal provi- totally imprecise nature of Directive 90/496 sions — more specifically, in the form of where it governs nutrition labelling in a rule the details of which remain to be relation to vitamins, its provisions are not defined ('Blankettstrafnorm'). Therefore, applicable, and, pursuant to Article 7(3) of the criteria to be applied to the rules of the directive, Member States do not have conduct referred to above are those apply- the possibility of adopting provisions to ing to the penal provisions, although seri- compensate for that major failing. I - 12654

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17. According to the national court, which should be disapplied, if only because they refers to Commission v Italy, 4 Directive are contrary to the principle of propor- 90/496 does not comply with the principle tionality. of legal certainty and precision of legal rules and it does not satisfy the condition laid down in Article 7 of the European Convention on the Protection of Human Rights and Fundamental Freedoms either.

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(3) Is the nutrition labelling directive, in so 22. By its first question, the national court far as it contains indications of the asks essentially whether it is contrary to nutritional value relating to vitamin Article 1(4)(k) of Directive 90/496 for the content, to be disapplied on the ground reference date to be the end of the mini- that: mum conservation period; by its second question, the national court asks whether Directive 90/496 allows the reference date and the extent of the permissible differ- ences to be chosen freely. (a) it is too vague in relation to the definition [Article 1(k) of the nutri- tion labelling directive] and calcu- lation [Article 6(8) of the nutrition labelling directive] of the average value and because of the lack of 1. Observations submitted to the board reference dates or the lack of margins of divergence, or

23. In her written observations, Ms (b) it contains provisions that are dis- Scherndl to a great extent repeats the proportionate to the objective it arguments which she had already pursues?' expounded before the national court. 5 She also adds that it is the consumer's right that the value indicated on the packaging be present in the product, even on the last day of the period mentioned. It is, con- sequently, necessary, according to Ms Scherndl, to overdose the product in vit- amin C on the ground that it is eliminated IV — Analysis during storage. She argues that this over- dosage is a practice commonly followed by fruit-juice manufacturers.

A — The first and second questions referred for a preliminary ruling 24. Ms Scherndl proposes answering the first question referred to the Court to the effect that, as far as concerns the infor- 21. I suggest examining these two ques- mation regarding the vitamin content, one tions, which both concern the reference date to be taken into account in determin- ing the average value, together. 5 — See point 10 above.

25. As for the second question referred to the Court, Ms Scherndl proposes the 28. In this respect, the Commission notes answer that the definition of average value that under Article 3(1)(5) of Directive under Article 6(8) of Directive 90/496 2000/13/EC of the European Parliament allows the reference date and the extent and of the Council of 20 March 2000 on of permissible differences to be chosen the approximation of the laws of the freely. Member States relating to the labelling, presentation and advertising of foodstuffs, 7 the date of minimum durability is listed among the mandatory information to be indicated on the labelling of foodstuffs, which date is, by virtue of Article 9(1) of the directive, the date up to which the 26. With reference to Article 1(4)(k) of foodstuff retains its specific properties Directive 90/496, the Commission points when properly stored. When nutrition out that the Community legislature labelling is also used in the context of 'requires the choice of "... the value which advertising, it is necessary, in accordance best represents the amount of the nutrient with Article 3(a) of Council Directive which a given food contains...", taking into 84/450/EEC of 10 September 1984 relating account factors which may cause the actual to the approximation of the laws, regu- value to vary'. 6 lations and administrative provisions of the Member States concerning misleading advertising, 8 as amended by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997, 9 to ensure that consumers are not misled as to products' characteristics, for example their specifications. 27. According to the Commission, the question is therefore whether an average 7 — OJ 2000 L 109, p. 29 8 — OJ 1984 L 250, p. 17. 6 — Emphasis given in the original text. 9 — O J 1997 L 2 9 0 . p. 18.

33. Until now, according to the Commis- sion, the Community legislature has not used the possibility, stated in Article 6(8), second subparagraph, of Directive 90/496, of laying down 'rules for implementing the first paragraph with regard in particular to 30. The Commission thus proposes the differences between the declared values answering the first question referred to and those established in the course of the Court to the effect that, when the official checks' nor of fixing general toler- vitamin content of a product, expressed in ance margins for vitamin C. The Commis- average value, corresponds to the quantity sion thus considers that Member States are of that vitamin still present in the product free to lay down this technical point — to at the end of the minimum durability be prescribed for each nutrient — accord- period, such an indication is not incon- ing to their own knowledge and experience, sistent with the definition of average value or to continue to apply the national stan- in Article 1(4)(k) of Directive 90/496. dards in force until harmonisation takes place.

31. As regards the second question referred 34. The Commission also submits that, as to the Court, the Commission points out far as concerns the well-known instability that Articles 6(8) and 1(4)(k) of Directive of vitamin C, differences varying between - 90/496 do not provide any particulars as to 20% and - 50% are generally acceptable, the reference date. Since these provisions according to the information available to do not restrict the choice of reference date, the Commission. Amongst those Member it is clear that, as regards substances such as States which have notified their tolerance vitamin C, the average value will vary margins to the Commission, the Italian according to the reference date chosen. Republic notified a permissible difference I - 12658

of - 20% to + 100% for vitamin C in the 2. Assessment context of Directive 98/34/EC of the Euro- pean Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations. 10 38. Directive 90/496 specifies neither the reference date (or dates) to be taken into account in establishing the average value nor the acceptable differences between the average value given on the label and the 35. More specifically, the Commission average value actually established in the considers that neither differences of 40% course of a check. from the declared value nor the fact that the value is based on the end of the minimum durability period allow it to be inferred that nutrition claims as to vitamin C content in fruit juice are contrary to Community law. 39. The provisions of Directive 90/496 concerning the average value do no more than, on the one hand, define the average value in general terms as being the value which best represents the amount of a nutrient in a given foodstuff, taking into 36. The Commission suggests answering account factors which could cause the the second question referred to the Court actual value to vary (Article 1(4)(k)) and, to the effect that Directive 90/496, read in on the other hand, lay down the elements conjunction with other Community-law on which the average value must be estab- provisions, does not grant Member States lished (Article 6(8), first subparagraph). a 'free choice' as to the reference date and the permissible differences, but prescribes the choice of the value which 'best' repre- sents the nutrient contained in the food- stuff, taking into account certain factors and in the context of a given tolerance 40. However, Directive 90/496, and more margin, in accordance with Article 1(4)(k) particularly Article 6(8), second subpara- of the directive. graph, thereof, grants the Commission the power to adopt, in accordance with the procedure provided for in Article 10 of the same directive, implementing rules '... with regard in particular to the differences between the declared values and those 37. The Council has not adopted a view on established in the course of official the first and second questions referred to checks...', a power which appears also to the Court. cover, because of the term 'in particular', the laying down of the reference date (or dates) to be taken into account in deter- 10 —OJ 1998 L 204, p. 37. mining the average value.

47. This provision should be read in con- 44. However, as Article 100a of the EC junction with the first two paragraphs of Treaty enables the Community to act in the same article, 12 which clearly concern fields which are outside the competence of the manner in which labelling should be the Member States, that competence can presented. Paragraph 3 must therefore be only be restricted to the extent that rules considered as referring to the same subject- have, in fact, been adopted in accordance matter and not to other matters such as the with Article 100a of the EC Treaty. There- method of determining the average value. fore, the mere fact that, on the basis of that same provision, the Community decides that it will decide is not sufficient for it to 12 — '1. The information covered by this Directive must be be concluded that a matter no longer falls presented together in one place in tabular form, with the numbers aligned if space permits. Where space does not within the competence of the Member permit, the information shall be presented in linear form. It shall be presented in legible and indelible characters in a States. conspicuous place. 2. Member States shall ensure that the information covered by this Directive appears in a language easily understood by purchasers, unless other measures have been taken to ensure that the purchaser is informed. This provision shall 11—See Case C-359/92 Germany v Council [1994] ECR not prevent such information from being indicated in more I-3681, paragraph 37. than one language.'

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13 — Case C-62/00 Marks & Spencer [2002] ECR I-6325, paragraph 24. 14 — Joined Cases C-74/95 and C-129/95 [1996] ECR I-6609.

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26 The national court must therefore defines the average value, in general terms, ensure that that principle is observed as the value which best represents the when interpreting, in the light of the amount of the nutrient which a given food wording and the purpose of the Direc- contains, taking into account the factors tive, the national legislation adopted in which may cause the actual value of the order to implement it.' nutrient to vary.

51. It therefore appears to me that, in the present case, when interpreting, in the light 55. That definition does not preclude, as of the wording and the purpose of Directive regards substances such as vitamin C the 90/496, the legislation adopted in order to content in which, it is not disputed, can implement it, the national court must apply decrease when influenced by external fac- the abovementioned principle which pre- tors such as air, light, temperature, etc, the cludes bringing criminal proceedings in value of the substance at the end of the respect of conduct not clearly defined as minimum conservation period from being culpable by law. considered as the average value.

52. More specifically, as regards the deter- 56. That interpretation appears to me to be mination of the reference date, one sol- confirmed by Directive 2000/13, to which ution, where appropriate, might be for the the Commission refers. Although the date national court to use the end of the of minimum durability of a foodstuff is the minimum conservation period as the refer- date until which the foodstuff retains its ence date, as Ms Scherndl argues. specific properties when properly stored, 15 the validity of labelling mentioning the vitamin C content of the foodstuff in question at that date cannot be disputed.

58. In the light of all the foregoing, I (b) it contains provisions that are dispro- therefore propose answering the first and portionate to the objective it pursues'. second questions referred to the Court to the effect that, in the absence of implemen- tation of Article 6(8), second subpara- graph, of Directive 90/496, it is for Member States to specify the reference date (or dates) to be taken into account in the 1. Observations submitted to the board determination of the average value and the permissible differences in compliance with the provisions and the purpose of that directive. In this regard, Article 1(4)(k) of Directive 90/496 does not preclude the figure which gives the average value and which is based on an analysis of the foodstuff in question carried out by the manufacturer pursuant to Article 6(8), first 60. Ms Schemdl proposes answering this subparagraph, under (a), of that directive, question to the effect that, essentially, from representing the value which the Directive 90/496 should not be applied, in product has on expiry of the minimum so far as that directive includes information conservation period. as regards nutrition value, on the grounds that it is too imprecise and that its provi- sions are disproportionate to the objective to be attained.

B — The third question referred for a 61. The Council, for its part, considers that preliminary ruling Directive 90/496 is valid.

63. Furthermore, according to the Council, 65. The Council also considers that Direc- even if the Court was to consider that the tive 90/496, including the provisions at term 'average value' and Article 6(8), first issue, do not go beyond what is necessary subparagraph, of Directive 90/496 con- to attain the objective, laid d o w n in sidered in isolation are lacking in precision, Article 95 EC, of the establishment of the this would not as such entail the inappli- internal market based on a high level of cability of these provisions. The procedure protection of health and consumers. provided for in Article 6(8), second sub- paragraph, of that directive provides a global response to any need for clarifica- tion. The Council considers, in addition, that it would be difficult, if not impossible, to provide a definition of average value in 66. Directive 90/496 starts from the prem- the directive which would be sufficiently iss that there is a relationship between diet precise to cover the full range of situations and health, that knowledge of the basic which could arise. In the Council's view, it principles of nutrition and appropriate is preferable to resolve such issues in the nutrition labelling of foodstuffs would context of the Committee procedure rather contribute significantly towards enabling than in the directive itself. the consumer to choose an appropriate diet, and that the labelling should assist action in the area of nutrition education for the public (see, in particular, the second, fourth and fifth recitals in the preamble to the directive).

73. It is not inconceivable that Member States, when adopting national measures transposing a directive, may be required to define more closely certain concepts appearing in the directive. 17 Likewise, as Directive 90/496 confirms, concepts may 69. The Commission asserts that, in view also be clarified by the adoption of imple- of its observations in response to the first menting measures by the Community auth- two questions, there is nothing to suggest orities. that Directive 90/496 is not applicable.

74. Therefore, rather than being a reason for a directive to be found invalid, the 2. Assessment requirement of accuracy constitutes either, if it is the task of the Member States to provide particulars, a normal characteristic of the directive and even an expression of the principle of subsidiarity or, if the power to provide detailed particulars is delegated by the Council to the Commission in the framework of the Committee procedure, an 70. I agree entirely with the observations application of Article 202 EC, final indent. submitted by the Council.

75. I therefore propose answering the third question referred by the national court to 71. It should be borne in mind that under the effect that consideration of this ques- Article 249 EC, third paragraph, '[a] direc- tion has disclosed nothing to affect the tive shall be binding, as to the result to be validity of Directive 90/496. achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form 16 — Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 12. and methods'. 17 — See X, paragraphs 29 and 30.

— the third question:

Consideration of this question has disclosed nothing to affect the validity of Directive 90/496.

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