Chocolate manufactured in Denmark, Ireland, Portugal, Sweden, Finland and the United
Kingdom complies with the minimum content for cocoa butter laid down in a 1973 directive 1
but contains vegetable fats other than cocoa butter up to a maximum of 5% of total weight. For
that reason, Spain and Italy, in contrast to all the other Member States, prohibit the marketing of
those products under the name 'chocolate', requiring them to be marketed as 'chocolate
substitutes'.
The Commission maintains that the 1973 directive allows the manufacture and marketing of
chocolate products containing vegetable fats other than cocoa butter. It takes the view that the
obligation to market those products in Spain and Italy as 'chocolate substitutes' therefore gives
rise to a restriction on the principle of the free movement of goods enshrined in the EC Treaty.
Spain and Italy, for their part, submit that the 1973 directive definitively regulates which products
can be sold under the name 'chocolate' and that products containing such vegetable fats are not
among those. They maintain that their legislation is based on the need for consumer protection.
The Court finds, first, that the purpose of the 1973 directive is to lay down common rules in
order to ensure the free movement of chocolate products within the Community. However, as
regards the use of vegetable fats other than cocoa butter in those products, the legislature merely
established provisional rules.
In particular, the directive expressly allows Member States to maintain national rules authorising or prohibiting the addition of vegetable fats other than cocoa butter to products manufactured within their territory. The Court points out, however, that Member States may not impose conditions contrary to the principle of the free movement of goods.
The Court holds that the requirement to alter the sales name of the products in question to
'chocolate substitutes' may compel traders to incur additional packaging costs and, in any event,
may adversely affect how customers perceive those products. That would lead to restrictions on
the free movement of goods.
Nevertheless, the Court notes that such restrictions may be necessary in order to satisfy
overriding requirements relating inter alia to consumer protection, in so far as they are applicable
to domestic and imported products alike and are proportionate to the objective pursued.
The Court has already drawn a distinction between two situations:
- the product has undergone substantial modification in terms of its composition, which
makes it different from the products understood as falling within that description;
- the product has undergone modifications of minor importance, so that appropriate
labelling would be sufficient to provide the consumer with the necessary information.
The Court finds that, according to the 1973 directive, the characteristic element of all products
bearing the name 'chocolate' is the presence of a certain minimum cocoa and cocoa butter
content. The addition of vegetable fats does not substantially alter the nature of those
products. Accordingly, appropriate labelling which notes the presence of vegetable fats other
than cocoa butter would be sufficient to ensure that consumers are informed, and thus
protected.
In those circumstances, the Court holds that the Spanish and Italian rules are
disproportionate and infringe the principle of the free movement of goods.
NB: Directive 2000/36, which will come not into force until June 2003, contains provisions
which authorise the addition of vegetable fats other than cocoa butter up to a maximum of 5%.
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1 - Directive 73/241 on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption.