Food Law News - EU - 1999

9 August 1999: ADMINISTRATION - Barriers to trade: infringement proceedings

(IP/99/623), 9 August 1999

Barriers to trade: infringement proceedings

The European Commission has decided to bring an action before the Court of Justice against Spain and Italy, whose national legislation forbid the marketing of chocolate containing fats other than cocoa butter, and against France because of barriers to the marketing of enriched foodstuffs. The Commission has also decided to send two reasoned opinions (second stage in infringement proceedings under Article 226 of the Treaty) to Austria because of restrictions regarding vitaminised products, and to Greece because of the technical and labelling rules on packaging for ceramic tiles. In the absence of a satisfactory response within two months of receipt of the reasoned opinion, the Commission may decide to refer the matter to the Court of Justice.

Italy and Spain - chocolate

Italian and Spanish legislation forbids the production and marketing of chocolate containing fats other than cocoa butter.

In Italy, Law No 351 of 1976 lays down that the trade name of cocoa-based products and chocolate containing vegetable fats other than cocoa butter must be preceded by the term "chocolate substitute". A circular of 1996 lays down that this provision applies whenever such fats account for more than 5% of the weight of the product.

In Spain, Royal Decree No 822 of 1990 forbids the addition to cocoa-based products of fats other than cocoa butter.

After reasoned opinions were sent to the Spanish and Italian governments in July 1998 (see IP/98/602), the competent authorities reaffirmed that they would maintain the current legislation on the matter. The Commission has therefore decided to refer the matter to the Court of Justice.

The two administrations defend their position by pointing out that Directive 73/241/EC does not provide for the use, in chocolate and other cocoa-based products, of fats other than cocoa butter, and that the national legislation thus complies with Community law.

However, while the Directive contains no specific reference to vegetable fats, it allows Member States to maintain in their legislation the prohibition or authorisation, for national production, of vegetable fats not specifically permitted by Community legislation.

The two provisions at issue thus forbid the marketing of chocolate lawfully manufactured in another Member State.

In the Commission's view, chocolate lawfully produced in another Member State where the use of the fats involved is authorised, must enjoy free access to all national markets. This obligation derives from Article 28 (ex Article 30) of the Treaty and, indirectly, from the Directive. In the specific case of Italy, the Commission holds that the obligation to market chocolate containing vegetable fats other than cocoa butter under the designation "chocolate substitute" is a disproportionate measure for ensuring consumer protection. It considers that it should be possible to avoid consumers being misled by informing them of the composition of such chocolates by other more appropriate and less restrictive means, such as neutral and objective labelling.

France - enriched foodstuffs

Subsequent to a large number of complaints from economic operators in the Community, the Commission has decided to refer to the Court of Justice the matter of difficulties in marketing in France enriched foodstuffs lawfully produced and/or marketed in another Member State. This concerns, in particular, confectionery with added vitamins, food supplements and dietetic products. The French rules lays down restrictive lists of substances which may be added to those foodstuffs. The addition of substances not provided for in these lists, or in proportions and under conditions other than those provided for by the rules, is subject to a prior authorisation procedure. In many cases, the French authorities have opposed the marketing in France of products lawfully manufactured and/or marketed in other Member States without adducing, in accordance with the judgments of the Court of Justice, sufficient evidence of the risk which the marketing of these products would pose for public health.

The Commission considers that the measures taken by the French authorities amount to unjustified barriers under the heading of Article 28 of the EC Treaty. It also considers that the prior authorisation procedure laid down in the French legislation does not respect the principles set out by the Court of Justice in this field, in particular as regards the deadline for examining applications and the way in which administrative decisions are notified to the applicants. In the Commission's view, the French legislation should also be amended to ensure that the principle of mutual recognition applies fully in this sector.

Austria vitaminised products

The Commission has decided to send the Austrian Government a reasoned opinion concerning the marketing in Austria of vitaminised food supplements originating in other Member States. Depending on the proportion of vitamins contained in such products, some of them are classified by the Austrian authorities as medicines. As a result, these products have to follow a lengthy and costly authorisation procedure. Products lawfully marketed in other Member States are thereby prevented access to the Austrian market.

The Commission considers that systematically applying one and the same quantitative criterion (i.e. the recommended daily intake) to classify a vitamin supplement as a medicine takes account of neither the differences between the various types of vitamin nor the different levels of risk they may pose if consumed in excess. It would be less restrictive to set a limit value for each vitamin which took account, in particular, of the differences in the risk to health, beyond which a preparation would be considered a medicine.

To go to current EU Food Law News page,
click here.
To go to main Food Law Index page, click here.