JUDGMENT OF THE COURT (Sixth Chamber)
16 December 1999 (1)
(Protection of designations used in marketing of milk and milk products Regulation (EEC) No 1898/87 Directive 89/398/EEC Use of the designation'cheese to describe a dietary product in which the natural fat has beenreplaced by vegetable fat)
In Case C-101/98,
REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234EC) by the Bundesgerichtshof, Germany, for a preliminary ruling in theproceedings pending before that court between
Union Deutsche Lebensmittelwerke GmbH
and
Schutzverband gegen Unwesen in der Wirtschaft eV
on the interpretation of Article 3(1) of Council Regulation (EEC) No 1898/87 of2 July 1987 on the protection of designations used in marketing of milk and milkproducts (OJ 1987 L 182, p. 36) and of Article 3(2) of Council Directive89/398/EEC of 3 May 1989 on the approximation of the laws of the Member Statesrelating to foodstuffs intended for particular nutritional uses (OJ 1989 L 186, p. 27),
THE COURT (Sixth Chamber),
composed of: R. Schintgen (Rapporteur), President of the Second Chamber, actingas President of the Sixth Chamber, P.J.G. Kapteyn and G. Hirsch, Judges,
Advocate General: A. Saggio,
Registrar: H.A. Rühl, Principal Administrator,
after considering the written observations submitted on behalf of:
Union Deutsche Lebensmittelwerke GmbH, by K.A. Schroeter,Rechtsanwalt, Hamburg,
Schutzverband gegen Unwesen in der Wirtschaft eV, by H.-G. Borck,Rechtsanwalt, Hamburg,
the German Government, by E. Röder and C.-D. Quassowski, respectivelyMinisterialrat and Regierungsdirektor at the Federal Ministry of theEconomy, acting as Agents,
the Greek Government, by I. Chalkias and I. Galani-Maragkoudaki,respectively Assistant Legal Adviser and Special Deputy Legal Adviser atthe State Legal Council, acting as Agents,
the French Government, by K. Rispal-Bellanger, Head of Subdirectorate atthe Foreign Affairs Directorate of the Ministry of Foreign Affairs, and C.Vasak, Assistant Secretary for Foreign Affairs in that directorate, acting asAgents,
the Austrian Government, by Christine Stix-Hackl, Gesandte at the FederalMinistry of Foreign Affairs, acting as Agent, and
the Commission of the European Communities, by C. Schmidt, of its LegalService, and K. Schreyer, a national civil servant on secondment to thatservice, acting as Agents.
having regard to the Report for the Hearing,
after hearing the oral observations of Union Deutsche Lebensmittelwerke GmbH,represented by K.A. Schroeter; of Schutzverband gegen Unwesen in der WirtschafteV, represented by H.-G. Borck; of the German Government, represented byW.-D. Plessing, Ministerialrat at the Federal Ministry of Finance, acting as Agent;of the Greek Government, represented by I. Chalkias; and of the Commission,represented by C. Schmidt, at the hearing on 24 March 1999,
after hearing the Opinion of the Advocate General at the sitting on 10 June 1999,
gives the following
Judgment
- 1.
- By order of 5 March 1998, received at the Court on 9 April 1998, theBundesgerichtshof (Federal Court of Justice) referred to the Court for apreliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) twoquestions concerning the interpretation of Article 3(1) of Council Regulation(EEC) No 1898/87 of 2 July 1987 on the protection of designations used inmarketing of milk and milk products (OJ 1987 L 182, p. 36, hereinafter 'theRegulation) and of Article 3(2) of Council Directive 89/398/EEC of 3 May 1989on the approximation of the laws of the Member States relating to foodstuffsintended for particular nutritional uses (OJ 1989 L 186, p. 27, hereinafter 'theDirective).
- 2.
- Those questions have been raised in proceedings between Union DeutscheLebensmittelwerke GmbH (hereinafter 'UDL), a food-processing undertaking,and Schutzverband gegen Unwesen in der Wirtschaft eV, a registered associationfor protection against unfair business practices (hereinafter 'the Schutzverband),concerning the designation under which UDL plans to sell two of its products.
The Community rules
- 3.
- Article 2(2) and (3) of the Regulation provides:
'2. For the purposes of this Regulation, milk products shall mean productsderived exclusively from milk, on the understanding that substances necessary fortheir manufacture may be added provided that those substances are not used forthe purpose of replacing, in whole or in part, any milk constituent.
The following shall be reserved exclusively for milk products:
the designations listed in the Annex hereto,
designations or names within the meaning of Article 5 of Council Directive79/112/EEC of 18 December 1978 on the approximation of the laws of theMember States relating to the labelling, presentation and advertising offoodstuffs for sale to the ultimate consumer, as last amended by Directive85/7/EEC, actually used for milk products.
3. The term milk and the designations used for milk products may also beused in association with a word or words to designate composite products of whichno part takes or is intended to take the place of any milk constituent and of which
milk or a milk product is an essential part either in terms of quantity or forcharacterisation of the product.
- 4.
- Article 3 of the Regulation provides:
'1. The designations referred to in Article 2 may not be used for any productother than those referred to in that Article.
However, this provision shall not apply to the designation of products the exactnature of which is clear from traditional usage and/or when the designations areclearly used to describe a characteristic quality of the product.
2. In respect of a product other than those described in Article 2, no label,commercial document, publicity material or any form of advertising (as defined inArticle 2 (1) of Directive 84/450/EEC) or any form of presentation, may be usedwhich claims, implies or suggests that the product is a dairy product.
However, in respect of a product which contains milk or milk products, thedesignation milk or the designations referred to in the second subparagraph ofArticle 2 (2) may be used only to describe the basic raw materials and to list theingredients in accordance with Directive 79/112/EEC.
- 5.
- The annex to the Regulation contains, amongst the designations referred to in thefirst indent of the second subparagraph of Article 2(2), the designation 'cheese.
- 6.
- Article 1 of the Directive provides :
'1. This Directive concerns foodstuffs for particular nutritional uses.
2. (a) Foodstuffs for particular nutritional uses are foodstuffs which, owingto their special composition or manufacturing process, are clearlydistinguishable from foodstuffs for normal consumption, which aresuitable for their claimed nutritional purposes and which are marketedin such a way as to indicate such suitability.
(b) A particular nutritional use must fulfil the particular nutritionalrequirements:
(i) of certain categories of persons whose digestive processes ormetabolism are disturbed; or
(ii) of certain categories of persons who are in a specialphysiological condition and who are therefore able to obtainspecial benefit from controlled consumption of certainsubstances in foodstuffs; or
(iii) of infants or young children in good health.
- 7.
- Article 3 of the Directive provides:
'1. The nature or composition of the products referred to in Article 1 must besuch that the products are appropriate for the particular nutritional use intended.
2. The products referred to in Article 1 must also comply with any mandatoryprovisions applicable to foodstuffs for normal consumption, save as regards changesmade to them to ensure their conformity with the definitions given in Article 1.
- 8.
- Article 7(1) and (2) of the Directive provides:
'1. Council Directive 79/112/EEC of 18 December 1978 on the approximationof the laws of the Member States relating to the labelling, presentation andadvertising of foodstuffs, as last amended by Directive 89/395/EEC, shall apply tothe products referred to in Article 1, under the conditions set out below.
2. The designation under which a product is sold shall be accompanied by anindication of its particular nutritional characteristics; however, in the case of theproducts referred to in Article 1 (2) (b) (iii), this reference shall be replaced by areference to the purpose for which they are intended.
- 9.
- Article 2(1)(a) of Council Directive 79/112/EEC of 18 December 1978 on theapproximation of the laws of the Member States relating to the labelling,presentation and advertising of foodstuffs for sale to the ultimate consumer (OJ1979 L 33, p. 1) provides:
'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 itsnature, identity, properties, composition, quantity, durability, origin orprovenance, method of manufacture or production;
(ii) by attributing to the foodstuff effects or properties which it does notpossess;
(iii) by suggesting that the foodstuff possesses special characteristics whenin fact all similar foodstuffs possess such characteristics.
- 10.
- Article 5(1) of Directive 79/112, as amended by Council Directive 89/395/EEC of14 June 1989 (OJ 1989 L 186, p. 17), provides:
'The name under which a foodstuff is sold shall be the name laid down bywhatever laws, regulations or administrative provisions apply to the foodstuff inquestion or, in the absence of any such name, the name customary in the MemberState where the product is sold to the ultimate consumer, or a description of thefoodstuff and, if necessary, of its use, that is sufficiently precise to inform thepurchaser of its true nature and to enable it to be distinguished from products withwhich it could be confused.
The main proceedings and the questions referred for a preliminary ruling
- 11.
- UDL is an undertaking belonging to the food-manufacturing industry which makesin particular cheese and products derived from cheese, including products intendedfor a particular nutritional or dietary use. It markets under the brand name 'Becelfoods in which the original animal fats containing saturated fatty acids have beenreplaced by vegetable fats rich in polyunsaturated fatty acids, which have theproperty of lowering cholesterol levels.
- 12.
- Since the beginning of the 1990s, UDL has been marketing under the designation'dietary spread two products bearing the brand name Becel which in the futureit intends to sell under the designations 'Holländisches Appetitstück Diät-Käse mitPflanzenöl für die fettmodifizierte Ernährung (Dutch appertiser Dietary cheesecontaining vegetable oil for a fat-modified diet) and 'Diät Weichkäse mit Pflanzenölfür die fettmodifizierte Ernährung (Dietary soft cheese containing vegetable oil fora fat-modified diet). The description on the packaging is to state, for the firstproduct, 'Dieser Diät-Kase ist reich an mehrfach ungesättigten Fettsäuren (Thisdietary cheese is rich in poly unsaturated fats) and, for the second, 'Dieser Diät-Kase ist ideal für eine cholesterinbewußte Lebensweise (This dietary cheese is idealfor a cholesterol-conscious lifestyle).
- 13.
- The Schutzverband took the view that the new designations and descriptions whichUDL plans to put on the two 'Becel products are unlawful on the ground thatcheese is a milk product whereas, in the composition of the 'Becel products, themilk fat is entirely replaced by vegetable fat. It therefore brought proceedingsagainst UDL in the Landgericht (Regional Court) Hamburg for an orderrestraining that undertaking from using the designation 'cheese for those productsand from putting those descriptions on their packaging. Its application wasdismissed by the Landgericht but upheld by the appeal court. UDL appealed ona point of law to the Bundesgerichtshof, which, considering that the case raisedquestions of interpretation of Community law, decided to stay proceedings and torefer the following two questions to the Court for a preliminary ruling:
(1) Is Article 3(1) of Council Regulation (EEC) No 1898/87 of 2 July 1987 onthe protection of designations used in marketing of milk and milk products,read in conjunction with Article 3(2) of Council Directive 89/398/EEC of 3May 1989 on the approximation of the laws of the Member States relatingto foodstuffs intended for particular nutritional uses, to be interpreted as
meaning that a milk product, in which the milk fat has been replaced ondietary grounds by vegetable fat, cannot be described as cheese?
(2) If the first question is to be answered in the affirmative, does it matter thatthe designation 'Dietary cheese (Dietary soft cheese) containing vegetableoil for a fat-modified diet is complemented by additional descriptivematerial on the packaging, such as 'This dietary cheese is rich inpolyunsaturated fats ... or 'This dietary cheese is ideal for a cholesterol-conscious lifestyle?
The first question
- 14.
- Before this question is answered, it is necessary to determine whether Article 3(1)of the Regulation applies to foodstuffs intended for particular nutritional uses.
- 15.
- In this regard, it must be concluded that the respective aims of the Regulation andof the Directive are different and that the Directive does not exclude theapplication of the Regulation to foodstuffs intended for particular nutritional uses. Whereas the Regulation is designed to protect designations used for milk and milkproducts, having regard to their natural composition, in the interests of producersand consumers, the purpose of the Directive is to lay down precise rules for thelabelling and presentation of the products which it covers in order to ensure thattheir nature and composition are appropriate for the particular nutritional purposefor which they are intended.
- 16.
- Contrary to UDL's contention, it does not follow from Article 3(2) of the Directive,read in combination with the Regulation, that Community law not only does notpreclude the dietetic variant of a foodstuff from being designated by the same salesdesignation as the normal corresponding product but even requires its use for thedesignation of that variant.
- 17.
- As the German Government submits, it is clear from the wording of Article 3(2)of the Directive that this provision covers only 'changes made to products andtherefore concerns only their composition and not their designation.
- 18.
- That interpretation is borne out by the wording of the fourth recital in thepreamble to the Directive from which it is clear that derogations from the generalor specific provisions applicable to foodstuffs are necessary only where thoseprovisions do not allow the composition or preparation of a foodstuff to bechanged in order to meet the particular nutritional aim of the products covered bythe Directive.
- 19.
- It follows from the foregoing considerations that the designation of foodstuffsintended for particular nutritional uses is governed by the Regulation and thatconsequently they may be designated by the generic designation of the foodstuffs
for normal consumption corresponding to them only when their composition, whilstbeing changed to meet the particular nutritional aim, is not contrary to theprovisions relating to the protection of that designation.
- 20.
- As regards the question whether the designation 'cheese may be used for aproduct in which the milk fat has been replaced by vegetable fat, it must berecalled first of all that, according to Article 2(2) of the Regulation and its Annex,the designation 'cheese may be used only for 'milk products, which are'products derived exclusively from milk, on the understanding that substancesnecessary for their manufacture may be added, provided that those substances arenot used for the purpose of replacing, in whole or in part, any milk constituent.
- 21.
- Paragraph (3) of that article provides that 'the designations used for milk productsmay be also be used in association with a word or words to designate compositeproducts of which no part takes or is intended to take the place of any milkconstituent and of which milk or a milk product is an essential part either in termsof quantity or for characterisation of the product.
- 22.
- It is clear from the wording of those provisions that a milk product, in which oneor other constituent of milk has been replaced, if only partially, may not bedesignated by one of the designations referred to in the first indent of the secondsubparagraph of Article 2(2) of the Regulation.
- 23.
- Consequently, products derived from milk, such as those in question in the mainproceedings, in which a milk constituent, in this case the animal fat, has beenentirely replaced by another substance, namely vegetable fat, do not fall within thecategory of 'milk products as defined in Article 2(2) of the Regulation and, inaccordance with Article 3(1) of the Regulation, may not be designated by thedesignation 'cheese.
- 24.
- In view of those considerations, the answer to be given to the first question mustbe that Article 3(1) of the Regulation, read in conjunction with Article 3(2) of theDirective, is to be interpreted as meaning that a milk product in which the milk fathas been replaced by vegetable fat for dietetic reasons may not be designated as'cheese.
The second question
- 25.
- In reply to this question, it must be recalled that, according to Article 3(2) of theRegulation, which is applicable to products other than those referred to in Article2 thereof, such as the products in question in the main proceedings, 'no label,commercial document, publicity material or any form of advertising ... or any formof presentation may be used which claims, implies or suggests that the product isa dairy product.
- 26.
- However, as the Greek Government has rightly pointed out, the use of thedesignation 'dietary cheese for products such as those in question in the mainproceedings may give the consumer the impression that those products are coveredby the designation 'milk products within the meaning of the Regulation when thatis not the case, and the descriptions which UDL plans to place on their packagingare not likely to counteract that impression or to remove the ensuing risk ofconfusion.
- 27.
- Those descriptions not only do not clearly indicate that the milk fat has beenentirely replaced by vegetable fat but they even increase the risk of confusion in theconsumer's mind in that, in breach of Article 3(2) of the Regulation, they suggest,by the unlawful use of the term 'cheese, that those products are milk products.
- 28.
- Consequently, it must be held that the use of descriptions such as those set out inparagraph 12 above does not affect the prohibition of use of the designation'dietary cheese for products in which one or other of the constituents of milk hasbeen replaced by another substance.
- 29.
- That conclusion is not shaken by UDL's argument that the prohibition of use of theterm 'cheese for products derived from milk in which a natural constituent hasbeen replaced by a foreign substance, even where descriptions appear on thepackaging, is contrary to the principle of proportionality.
- 30.
- According to the settled case-law of the Court, the principle of proportionality,which is one of the general principles of Community law, requires that measuresadopted by Community institutions should not exceed the limits of what isappropriate and necessary in order to attain the objectives legitimately pursued bythe legislation in question; when there is a choice between several appropriatemeasures, recourse must be had to the least onerous, and the disadvantages causedmust not be disproportionate to the aims pursued (Case C-331/88 Fedesa andOthers [1990] ECR I-4023, paragraph 13, and Case C-180/96 United Kingdom vCommission [1998] ECR I-2265, paragraph 96).
- 31.
- It is also settled case-law that, as regards judicial review of the observance of theabovementioned conditions, the Community legislature has, in matters concerningthe common agricultural policy, a discretionary power which corresponds to thepolitical responsibilities placed upon it by Article 40 of the EC Treaty (now, afteramendment, Article 34 EC), Articles 41 and 42 of the EC Treaty (now Articles 35EC and 36 EC) and Article 43 of the EC Treaty (now, after amendment, Article37 EC). Consequently, the legality of a measure adopted in this area can beaffected only if the measure is manifestly inappropriate having regard to theobjective which the competent institution is seeking to pursue (Fedesa and Others,cited above, paragraph 14, and United Kingdom v Commission, paragraph 97).
- 32.
- As is clear from the third and sixth recitals in the preamble to the Regulation, theobjective pursued by the legislature is to protect the natural composition of milkand milk products in the interests of Community producers and consumers and toavoid any confusion in consumers' minds between milk products and the other foodproducts, including those consisting partly of milk components.
- 33.
- Secondly, it is not established that the use of the term 'cheese together withexplanatory descriptions, such as those in question in the main proceedings, todesignate products of which the milk fat has been entirely replaced by vegetablefat would be certain to prevent confusion in consumers' minds as to thecomposition of the product which they are about to purchase. However, it is clearthat such use would impair the protection of the natural composition of milk andmilk products.
- 34.
- Consequently, the prohibition of the use of the term 'cheese to designate productsderived from milk in which a natural constituent of milk has been replaced by aforeign substance, even when explanatory descriptions appear on the packaging,does not constitute a measure manifestly inappropriate to achieving the objectivepursued and consequently such a prohibition is not contrary to the principle ofproportionality.
- 35.
- In view of the foregoing, the answer to be given to the second question must bethat, in the case of products derived from milk in which a natural constituent ofmilk has been replaced by a foreign substance, a designation such as 'Dietarycheese (Dietary soft cheese) containing vegetable oil for a fat-modified diet maynot be used even when that designation is accompanied by additional descriptionson the products' packaging, such as 'This dietary cheese is rich in polyunsaturatedfats or 'This dietary cheese is ideal for a cholesterol-conscious lifestyle.
Costs
- 36.
- The costs incurred by the German, Greek, French and Austrian Governments andby the Commission, which have submitted observations to the Court, are notrecoverable. Since these proceedings are, for the parties to the main proceedings,a step in the proceedings pending before the national court, the decision on costsis a matter for that court.
On those grounds,
THE COURT (Sixth Chamber),
in answer to the questions referred to it by the Bundesgerichtshof by order of 5March 1998, hereby rules:
1. Article 3(1) of Council Regulation (EEC) No 1898/87 of 2 July 1987 on theprotection of designations used in marketing of milk and milk products,read in conjunction with Article 3(2) of Council Directive 89/398/EEC of 3May 1989 on the approximation of the laws of the Member States relatingto foodstuffs intended for particular nutritional uses, is to be interpretedas meaning that a milk product in which the milk fat has been replaced byvegetable fat for dietetic reasons may not be designated as 'cheese.
2. In the case of products derived from milk in which a natural constituentof milk has been replaced by a foreign substance, a designation such as'Dietary cheese (Dietary soft cheese) containing vegetable oil for a fat-modified diet may not be used even when that designation is accompaniedby additional descriptions on the products' packaging, such as 'This dietarycheese is rich in polyunsaturated fats or 'This dietary cheese is ideal fora cholesterol-conscious lifestyle.
Delivered in open court in Luxembourg on 16 December 1999.
R. Grass
J.C. Moitinho de Almeida
Registrar
President of the Sixth Chamber