«(Failure of a Member State to fulfil obligations – Approximation of laws – Articles 28 EC and 30 EC – Directive 79/112/EEC – Labelling and presentation of foodstuffs)»

Approximation of laws – Labelling and presentation of foodstuffs – Directive 79/112 – National legislation imposing a general prohibition of health-related information on the labelling of foodstuffs – National legislation subjecting such information to a prior authorisation procedure – Not permitted (Council Directive 79/112, Arts 2(1)(a) and (b) and 15(1) and (2), as amended by Directive 97/4) It follows from Articles 2(1)(a) and (b) and 15(1) of Directive 79/112 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, as amended by Directive 97/4, that foodstuffs whose labelling contains non-misleading health-related information must be regarded as complying with the rules of that directive, since Member States may not prohibit their marketing on grounds of a possible irregularity of that labelling. The power retained by the Member States to lay down rules in addition to those of Directive 79/112 is limited by Article 15(2) of the directive, which lists exhaustively the grounds on which the application of non-harmonised national provisions prohibiting trade in foodstuffs which comply with the directive may be justified, those grounds including the protection of health and consumers.Those provisions consequently preclude national legislation of a Member State which lays down a general prohibition, subject to prior authorisation intended to prevent misleading statements relating to health, of all health-related information on the labelling and presentation of foodstuffs. Such national legislation laying down a procedure of prior authorisation for all health-related information on the labelling of foodstuffs, including those which are manufactured lawfully in other Member States and are in free circulation there, has the consequence in practice that foodstuffs bearing health-related information may not be marketed freely, even if the information is not liable to mislead the consumer, and thus cannot be regarded as proportionate to the aim pursued.see paras 37-38, 48, 51-52, 54-55, operative part

JUDGMENT OF THE COURT (Sixth Chamber) 23 January 2003 (1)

((Failure by a Member State to fulfil its obligations – Approximation of laws – Articles 28 EC and 30 EC – Directive 79/112/EEC – Labelling and presentation of foodstuffs))

In Case C-221/00,

applicant,

v

defendant, supported by

intervener,

APPLICATION for a declaration that, by interpreting and applying Paragraph 9(1) and (3) of the Bundesgesetz über den Verkehr mit Lebensmitteln, Verzehrprodukten, Zusatzstoffen, kosmetischen Mitteln und Gebrauchsgegenständen (Lebensmittelgesetz 1975) (Federal Law on trade in foodstuffs, products intended for human consumption, additives, cosmetic products and consumer goods) of 23 January 1975 as meaning that health-related information on foodstuffs for general consumption is prohibited in a general and absolute manner, and by subjecting the affixing of such information to a prior authorisation procedure, the Republic of Austria has failed to fulfil its obligations under 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 (OJ 1979 L 33, p. 1), as amended by Directive 97/4/EC of the European Parliament and of the Council of 27 January 1997 (OJ 1997 L 43, p. 21), and under Article 28 EC,

THE COURT (Sixth Chamber),,

composed of: C. Gulmann, acting for the President of the Sixth Chamber, V. Skouris, F. Macken, N. Colneric and J.N. Cunha Rodrigues (Rapporteur), Judges,

Advocate General: L.A. Geelhoed,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 2 May 2002, at which the Commission was represented by J.C. Schieferer and the Republic of Austria by C. Pesendorfer, acting as Agent,

after hearing the Opinion of the Advocate General at the sitting on 4 July 2002,

gives the following

Community legislation

National legislation

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT (Sixth Chamber)

hereby:

Gulmann

Skouris

Macken

Colneric

Cunha Rodrigues

Delivered in open court in Luxembourg on 23 January 2003.

R. Grass

J.-P. Puissochet

Registrar

President of the Sixth Chamber