Court of Justice of the European Communities (including Court of First Instance Decisions)

Legal background

Community legislation

'Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.'

'The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.'

'The labelling and methods used must not:

(a) be such as could mislead the purchaser to a material degree, particularly:

(i) as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production;

(ii) by attributing to the foodstuff effects or properties which it does not possess;

(iii) by suggesting that the foodstuff possesses special characteristics when in fact all similar foodstuffs possess such characteristics;

(b) subject to Community provisions applicable to natural mineral waters and foodstuffs for particular nutritional uses, attribute to any foodstuff the property of preventing, treating or curing a human disease, or refer to such properties.'

'1. Member States may not forbid trade in foodstuffs which comply with the rules laid down in this Directive by the application of non-harmonised national provisions governing the labelling and presentation of certain foodstuffs or of foodstuffs in general.

2. Paragraph 1 shall not apply to non-harmonised national provisions justified on grounds of:

- protection of public health,

- prevention of fraud, unless such provisions are liable to impede the application of the definitions and rules laid down by this Directive,

- protection of industrial and commercial property rights, indications of provenance, registered designations of origin and prevention of unfair competition.'

National legislation

'Foodstuffs, consumer products and additives are:

...

(f) incorrectly described when they are placed on the market accompanied by information which is likely to be misleading as regards matters which are important in the light of trade practices and, in particular, in the light of consumer expectations, such as nature, origin, use, shelf life, date of manufacture, properties, percentage of effective ingredients, quantity, size, number or weight, or in such a form or presentation or bearing prohibited statements relating to health.'

'1. In marketing foodstuffs, products intended for human consumption or additives, it is prohibited:

(a) to refer to the prevention, relief or cure of illnesses or symptoms of illness, or to physiological or pharmacological effects, in particular effects which prolong youthfulness, slow down the symptoms of ageing, lead to weight loss or preserve health or to create the impression of any such effect;

(b) to refer to case histories, recommendations by doctors or expert medical opinions;

(c) to use health-related, pictorial or stylised representations of organs of the human body, depictions of members of the health-care professions or of sanatoria or other pictures or illustrations referring to health-care activities.

...

3. The Federal Minister for Health and the Environment shall authorise, by decree and upon request, health-related information for certain foodstuffs or consumer products where that is consistent with the protection of consumers against fraud. The decree shall be revoked where the conditions of the authorisation are no longer met.'

'A person who places on the market foodstuffs, products intended for human consumption or additives ... which are incorrectly described, or consumer goods which are incorrectly described, is guilty of an administrative offence and is to be fined by the district administrative authority ...'.

The main proceedings and the questions referred for preliminary rulings

Case C-421/00

'Are Article 28 ... of the EC Treaty as amended by the Treaty of Amsterdam and Articles 2(1)(b) and 15(1) and (2) of Council Directive 79/112/EEC of 18 December 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 ... in the applicable version to be interpreted as precluding national legislation prohibiting any health-related information from appearing on the labelling and presentation of foodstuffs, products intended for human consumption and additives for general consumption, save if expressly authorised (Paragraph 9(1)(a) to (c) and (3) of the [LMG] in the applicable version)?'

Case C-426/00

'1. Does Paragraph 9 of the LMG constitute an appropriate transposition of Article 2(1)(b) of Council Directive 79/112/EEC of 18 December 1978?

2. Does Article 2(1)(b) of Directive 79/112/EEC make exhaustive provision concerning unlawful labelling, or does that provision provide for a minimum level of regulation which may be supplemented by national provisions?

3. Is Article 2(1)(b) of Directive 79/112/EEC to be construed to mean that a restriction on labelling (such as that in Paragraph 9(1) of the LMG in regard to health-related information) is only permissible where a prohibition appears to be an unavoidable necessity in order to prevent consumers from being misled?

4. Can Paragraph 9(1) of the LMG be interpreted so as to comply with the directive and the restriction on labelling mentioned therein be deemed to be in conformity with Article 2(1)(b) of Directive 79/112/EEC? This would be possible inasmuch as an intention to mislead is not required by Article 2(1)[(b)] as a whole but is a second criterion of the unlawfulness of a label.'

Case C-16/01

'1. Does Article 2(1)(b) of Council Directive 79/112/EEC of 18 December 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 (now consolidated in European Parliament and Council Directive 2000/13/EC of 20 March 2000 ...), under which - subject to Community provisions applicable to natural mineral waters and to foodstuffs for particular nutritional uses - the labelling and methods used may not attribute to any foodstuff the property of preventing, treating or curing a human disease, or suggest that itpossesses such properties, preclude national legislation which makes it an offence when marketing foodstuffs:

(a) to refer to physiological or pharmacological effects, in particular those which preserve youthfulness, inhibit signs of ageing, promote slimming or maintain health, or to create the impression of any such effect;

(b) to refer to case-histories, recommendations made by doctors or medical experts' reports;

(c) to use health-related pictorial or stylised representations of organs of the human body, pictures of members of the health-care professions or of sanatoria or other pictures or illustrations referring to health-care activities?

2. Do Directive 79/112/EEC or Articles 28 EC and 30 EC preclude a national provision which, on the placing into circulation of foodstuffs, permits health-related information such as that described in Question (1) to be affixed thereto only after prior authorisation by the competent federal minister, whereby a condition of authorisation is that the health-related information is consistent with protecting the consumer from being misled?'

Preliminary observations

The questions referred for preliminary rulings

Costs