PRESS RELEASE No 64/01
6 December 2001
Opinion of Advocate General Siegbert Alber in Cases C-12/00 and C-14/00
Commission of the European Communities v Spain (C-12/00) and Commission of the
European Communities v Italy (C-14/00)
PRODUCTS LABELLED "CHOCOLATE" DO NOT NECESSARILY HAVE
COCOA BUTTER AS THE SOLE VEGETABLE FAT INGREDIENT
Advocate General Alber proposes that the Court of Justice of the EC should hold that Spain
and Italy have infringed the EC Treaty by prohibiting chocolate products from being
marketed under the name 'chocolate' where, in addition to cocoa butter, they also contain
other vegetable fats.
The European Commission considers the Italian and Spanish provisions to constitute an
impediment to the free movement of goods contrary to Community law and is seeking
declarations of Italy's and Spain's failure to fulfil obligations under the EC Treaty.
Advocate General Siegbert Alber delivers his Opinion today.
The view of the Advocate General is not binding on the Court. It is the role of the
Advocates General to propose to the Court, in complete independence, a legal solution to
the case assigned to them. |
The Advocate General states that whilst under the Court's case-law the Member States are
authorised to legislate in areas where only partial harmonisation has taken place, such national
legislation must however be compatible with the EC Treaty provisions on free movement of
goods.
The Italian and Spanish legislation compels manufacturers established in other Member States
to alter the composition of their products lawfully manufactured in other Member States under
the name 'chocolate' if they wish to market them in Italy and Spain under the name 'chocolate'.
In the Advocate General's view these two sets of national legislation thus restrict access by
lawfully manufactured goods to the Spanish and Italian markets and consequently impede their
free circulation in the Community.
That is not altered by the fact that such products can be marketed under the name 'chocolate
substitute' since it is possible that the consumer does not regard such products as being of full
value and regards them as being not as good as products labelled 'chocolate'.
The Advocate General does not accept that the impediment to the free movement of goods
is justified by the considerations relating to consumer protection put forward by Italy and
Spain. The prohibition on marketing those products under the name 'chocolate' and the
possibility of marketing them as 'chocolate substitute' were indeed apt to save Spanish and
Italian consumers from error. However, the prohibition was not the least stringent means by
which consumers could be protected by being informed of the fact that the product also contained
vegetable fats in addition to cocoa butter. In cases based on similar facts concerning a product's
composition the Court has considered labelling to be sufficient for safeguarding the interests of
the consumer.
In that connection the Court has always had regard to the circumspect consumer who may be
expected to be informed and capable of evaluating information. Thus it was to be assumed that
consumers who were guided in their purchasing decisions by the composition of the products
would first read the list of ingredients.
However, the Advocate General points out that, as to what can be achieved by appropriate
labelling, the Court has drawn the line where the product has been altered in a certain respect
which is essential to its composition. That could justify a prohibition on use of the designation.
In the Advocate General's view cocoa butter is to be regarded as an essential ingredient of
chocolate under the Community directive of 1973. The products prohibited from being marketed
in Italy and Spain under the name 'chocolate' observed the minimum contents for cocoa butter
laid down in the directive. The Advocate General is therefore of the opinion that the addition of
other vegetable fats in amounts of up to 5% does not give rise to a substantial alteration in the
composition of the product.
Thus the Advocate General concludes that appropriate and sufficiently clear labelling of the
product would interfere less with free movement of goods. To that extent both the Spanish and
the Italian legislation were disproportionate and thus not capable of justifying the restriction
on free movement of goods established.
Attention is again drawn to the fact that these cases fell to be decided under the 1973 directive
which does not determine to what extent products which, in addition to cocoa butter, also contain
other vegetable fats might be marketed under the name 'chocolate'; on the other hand, there is
a provision in the 2000 directive (applicable only as from 2003) permitting the addition of
other vegetable fats at a rate not exceeding 5%.
Unofficial document for media use only; not binding on the Court of Justice.
Available in all the official languages.
For the full text of the opinion, please consult our Internet page
For further information please contact Fionnuala Connolly:
Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731 |