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.
Italy and Spain prohibit the marketing under the name 'chocolate' of products which, in addition to cocoa butter, also contain other vegetable fats. Such products must be described as 'chocolate substitute'. That prohibition affects chocolate manufactured in Denmark, Ireland, Portugal, Sweden, Finland and the United Kingdom which, whilst adhering to the minimum content of cocoa butter, in addition, also contains other vegetable fats up to a maximum percentage of 5%. With the exception of Spain and Italy all 13 other Member States permit such products to be marketed as 'chocolate'.
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 points out that a Community directive of 1973 indeed makes provision for use of the name 'chocolate' yet does not determine the extent to which products which, in addition to cocoa butter, also contain other vegetable fats may be marketed under the name 'chocolate'. Provision was made in that connection only in an EC directive of 2000 which the Member States have to transpose into national law by August 2003 and which is not therefore applicable to the present dispute.
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%.