CELEX: 62000CJ0012
Failure by a Member State to fulfil obligations
Free movement of goods
Directive 73/241/EEC
Cocoa and chocolate products containing fats other than cocoa butter
Products lawfully manufactured and marketed in the Member State of production under the sales name 'chocolate'
Prohibition on marketing under that name in the Member State of marketing

By application lodged at the Court Registry on 14 January 2000, the Commission of the European Communities brought an action
under Article 226 EC for a declaration that, by prohibiting cocoa and chocolate products to which vegetable fats other than
cocoa butter have been added, and which are lawfully manufactured in Member States which authorise the addition of those fats,
from being marketed in Spain under the name used for their marketing in the Member State of production, the Kingdom of Spain
has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC).
Legal framework
Community law
Council Directive 73/241/EEC of 24 July 1973 on the approximation of the laws of the Member States relating to cocoa and chocolate
products intended for human consumption (OJ 1973 L 228, p. 23) states, in the fourth recital in the preamble, that
it is necessary to approximate the provisions relating to these products and to lay down definitions and common rules in respect
of the composition, manufacturing specifications, packaging and labelling of these products in order to ensure their free
movement.
The fifth recital in the preamble to the directive specifies that
it is not possible in this directive to harmonise all those provisions applying to foodstuffs which may impede trade in cocoa
and chocolate products, although obstacles that persist because of this are bound to decrease as national provisions relating
to foodstuffs are increasingly harmonised.
According to the seventh recital in the preamble to Directive 73/241,
the use of vegetable fats other than cocoa butter in chocolate products is permitted in certain Member States, and extensive
use is made of this facility; ... however, a decision relating to the possibilities and forms of any extension of the use
of these fats in the Community as a whole cannot be taken at the present time, as the economic and technical data currently
available are not sufficient to enable a final position to be adopted; ... the situation will consequently have to be re-examined
in the light of future developments.
Article 1 of Directive 73/241 states: For the purposes of this directive, cocoa and chocolate products shall mean the products intended for human consumption defined
in Annex I.
Article 10(1) of Directive 73/241 provides: Member States shall adopt all the measures necessary to ensure that trade in the products referred to in Article 1, which
comply with the definitions and rules laid down in this directive and in Annex I thereof, cannot be impeded by the application
of national non-harmonised provisions governing the composition, manufacturing specifications, packaging or labelling of these
products in particular or of foodstuffs in general.
Article 14(2)(a) of Directive 73/241 is worded as follows: This directive shall not affect the provisions of national laws:
(a)
at present authorising or prohibiting the addition of vegetable fats other than cocoa butter to the chocolate products defined
in Annex I.  At the end of a period of three years from the notification of this directive the Council shall decide, on a
proposal from the Commission, on the possibilities and the forms of extending the use of these fats to the whole of the Community.
Annex I to Directive 73/241 defines chocolate in point 1.16 as
the product obtained from cocoa nib, cocoa mass, cocoa powder or fat-reduced cocoa powder and sucrose with or without added
cocoa butter, having, without prejudice to the definition of chocolate vermicelli, gianduja nut chocolate and couverture chocolate,
a minimum total dry cocoa solids content of 35% ─ at least 14% of dry non-fat cocoa solids and 18% of cocoa butter ─ these
percentages to be calculated after the weight of the additions provided for in paragraphs 5 to 8 has been deducted.
The first paragraph of point 7(a) of Annex I to Directive 73/241 is worded as follows: Without prejudice to Article 14(2)(a), edible substances, with the exception of flour and starches and of fats and fat preparations
not derived exclusively from milk, may be added to chocolate, plain chocolate, couverture chocolate, milk chocolate, milk
chocolate with high milk content, couverture milk chocolate and to white chocolate.
Directive 73/241 is repealed with effect from 3 August 2003 by the first paragraph of Article 7 of Directive 2000/36/EC of
the European Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for human consumption
(OJ 2000 L 197, p. 19).
Directive 2000/36 states, in the fifth to seventh recitals in its preamble:
(5)
The addition to chocolate products of vegetable fats other than cocoa butter, up to a maximum of 5%, is permitted in certain
Member States.
(6)
The addition of certain vegetable fats other than cocoa butter to chocolate products, up to a maximum of 5%, should be permitted
in all Member States; those vegetable fats should be cocoa butter equivalents and therefore be defined according to technical
and scientific criteria.
(7)
In order to guarantee the single nature of the internal market, all chocolate products covered by this directive must be able
to move within the Community under the sales names set out in the provisions of Annex I to this directive.
Article 2(1) and (2) of Directive 2000/36 provides:
1.
The vegetable fats other than cocoa butter as defined in Annex II and listed therein may be added to those chocolate products
defined in Annex I(A)(3), (4), (5), (6), (8) and (9).  That addition may not exceed 5% of the finished product, after deduction
of the total weight of any other edible matter used in accordance with Annex I(B), without reducing the minimum content of
cocoa butter or total dry cocoa solids.
2.
Chocolate products which, pursuant to paragraph 1, contain vegetable fats other than cocoa butter may be marketed in all of
the Member States, provided that their labelling, as provided for in Article 3, is supplemented by a conspicuous and clearly
legible statement:
contains vegetable fats in addition to cocoa butter. This statement shall be in the same field of vision as the list of ingredients, clearly separated from that list, in lettering
at least as large and in bold with the sales name nearby; notwithstanding this requirement, the sales name may also appear
elsewhere.
Finally, according to Article 8(1) and (2) of Directive 2000/36:
1.
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive
before 3 August 2003.  They shall immediately inform the Commission thereof.
2.
These measures shall be applied so as to:
─
authorise the marketing of the products defined in Annex I if they conform to the definitions and rules laid down in this
directive, with effect from 3 August 2003,
─
prohibit the marketing of products which fail to conform to this directive, with effect from 3 August 2003.
However, the marketing of products failing to comply with this directive but labelled before 3 August 2003 in accordance with
Council Directive 73/241/EEC shall be permitted until stocks are exhausted.
According to the second paragraph of Article 14 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 (OJ 1979 L 33, p. 1),
the Member States shall ... ensure that the sale of foodstuffs within their own territories is prohibited if the particulars
provided [for] in Article 3 and Article 4(2) do not appear in a language easily understood by purchasers, unless other measures
have been taken to ensure that the purchaser is informed.
The second paragraph of Article 14 of Directive 79/112 was deleted by Directive 97/4/EC of the European Parliament and of
the Council of 27 January 1997 amending Directive 79/112 (OJ 1997 L 43, p. 21).
Article 5(1)(b) and (c) of Directive 79/12, as amended by Directive 97/4, provides: The name under which a foodstuff is sold shall be the name provided for in the European Community provisions applicable to
it....
(b)
The use in the Member State of marketing of the sales name under which the product is legally manufactured and marketed in
the Member State of production shall also be allowed. However, where the application of the other provisions of this directive, in particular those set out in Article 3, would
not enable consumers in the Member State of marketing to know the true nature of the foodstuff and to distinguish it from
foodstuffs with which they could confuse it, the sales name shall be accompanied by other descriptive information which shall
appear in proximity to the sales name.
(c)
In exceptional cases, the sales name of the Member State of production shall not be used in the Member State of marketing
when the foodstuff which it designates is so different, as regards its composition or manufacture, from the foodstuff known
under that name that the provisions of point (b) are not sufficient to ensure, in the Member State of marketing, correct information
for consumers.
Directive 79/112 was repealed by Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the
approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000
L 109, p. 29).  Article 16(1) and (2) of the latter directive is worded as follows:
1.
Member States shall ensure that the sale is prohibited within their own territories of foodstuffs for which the particulars
provided for in Article 3 and Article 4(2) do not appear in a language easily understood by the consumer, unless the consumer
is in fact informed by means of other measures determined in accordance with the procedure laid down in Article 20(2) as regards
one or more labelling particulars.
2.
Within its own territory, the Member State in which the product is marketed may, in accordance with the rules of the Treaty,
stipulate that those labelling particulars shall be given in one or more languages which it shall determine from among the
official languages of the Community.
National legislation
Real Decreto No 822/1990 of 22 June 1990 (BOE No 154 of 28 June 1990, p. 3399, hereinafter
Royal Decree 822/1990) enacted the Reglamentación Técnico-Sanitaria para la elaboración, circulación y comercio de cacao y chocolate (Pure food
regulation on the manufacture, distribution and marketing of cocoa and chocolate).
Article 2(16) of that regulation, entitled
Definitions and sales names, defines chocolate as
the product obtained from cocoa nib, cocoa mass, cocoa powder or fat-reduced cocoa powder and sucrose with or without added
cocoa butter, having, without prejudice to the definition of chocolate vermicelli, gianduja nut chocolate and couverture chocolate,
a minimum total dry cocoa solids content of 35% ─ at least 14% of dry non-fat cocoa solids and 18% of cocoa butter ....
In addition, Article 4(1) of that regulation, entitled
Prohibited methods, provides: In products from cocoa beans, cocoa nib, cocoa mass, cocoa cakes and cocoa powder, it is prohibited:
─
to use fats other than cocoa butter;
....
Real Decreto No 823/1990 of 22 June 1990 (BOE No 154 of 28 June 1990, p. 3407, hereinafter
Royal Decree 823/1990) enacted the Reglamentación Técnico-Sanitaria para la elaboración, circulación y comercio de productos derivados de cacao,
derivados de chocolate y sucedáneos de chocolate (Pure food regulation on the manufacture, distribution and marketing of products
derived from cocoa, products derived from chocolate and chocolate substitutes).
Article 2(7) of that regulation, entitled
Definitions and names, includes the following definition: Chocolate substitutes: preparations which, specially formed or molded and likely by their presentation, appearance or consumption
to be confused with chocolate, fulfil the specific requirements for those preparations laid down by the pure food regulation
on the manufacture, distribution and marketing of cocoa and chocolate (enacted by Royal Decree 822/1990), ... apart from the
total or partial substitution for cocoa butter of other edible vegetable fats or their hydrogenated or non-hydrogenated parts,
and a clear differentiation in labelling.
Pre-litigation procedure
On 9 October 1989, the Spanish Government notified to the Commission, pursuant to Council Directive 83/189/EEC of 28 March
1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983
L 109, p. 8), the drafts of Royal Decrees 822/1990 and 823/1990, which were subsequently adopted.
The meetings held and the correspondence exchanged in response to that notification made it clear that the Spanish authorities
interpret Royal Decree 822/1990 to mean that products to which vegetable fats other than cocoa butter have been added, and
which are lawfully manufactured in Member States which authorise the addition of such fats, may not be marketed in Spain under
the name
chocolate, as in the Member States of production, but solely under the name
chocolate substitute.
Since it considered that this constituted a restriction on the free movement of cocoa and chocolate products lawfully manufactured
in other Member States, the Commission, after formally giving the Kingdom of Spain notice to submit its observations, sent
that Member State a reasoned opinion on 29 July 1998 requesting it to comply with its obligations under Article 30 of the
Treaty within two months of the notification of that opinion.
The Spanish Government replied, by letter of 9 November 1998, that Royal Decree 822/1990 was in compliance with Directive
73/241 and that the problem raised in the reasoned opinion would be resolved by the amendment of that directive, which was
being prepared at the time.
In those circumstances, the Commission decided to bring the present action.
Substance
Arguments of the parties
First of all, the Commission makes clear that its action relates to the provisions of Royal Decree 822/1990 in so far as they
are interpreted by the Spanish authorities as prohibiting the marketing in Spain under the name
chocolate of cocoa and chocolate products which are lawfully manufactured and marketed in other Member States, when they contain vegetable
fats other than cocoa butter.
The Commission states that chocolate containing vegetable fats other than cocoa butter up to a maximum of 5% of the total
weight of the product is manufactured under the name
chocolate in six Member States (Denmark, Ireland, Portugal, Sweden, Finland and the United Kingdom), that it is accepted under that
name in all the Member States, with the exception of Spain and Italy, and that it is included under that name in Directive
73/241.
The Commission also points out that, with respect to cocoa-based ingredients, such a product meets the specifications for
the composition of
chocolate set by Directive 73/241, since the addition of fats other than cocoa butter does not imply any reduction in the minimum content
required by that directive.
In those circumstances, the interpretation put forward by the Spanish Government would mean dividing the Member States into
two groups ─ that is, an area of free movement of chocolate, comprising the Member States which accept marketing under the
name
chocolate of chocolate containing vegetable fats other than cocoa butter, and an area where rules on the
purity of chocolate would apply, comprising the Member States which not only do not authorise the manufacture within their territory
of chocolate which contains vegetable fats other than cocoa butter, but which also prohibit its marketing under the name
chocolate.
The Commission explains that the problem results from the interpretation of Directive 73/241 advocated by the Spanish Government
rather than from the directive itself.  It maintains that since Directive 73/241 does not definitively regulate the use throughout
the Community of vegetable fats other than cocoa butter in the manufacture of cocoa and chocolate products, the directive
cannot be interpreted as tolerating national rules preventing the marketing of cocoa and chocolate products containing such
vegetable fats which are lawfully manufactured and marketed in the Member State of production in compliance with the directive.
Accordingly, national legislation of that type must be assessed in the light of Article 30 of the Treaty.
In that regard, the Commission takes the view that the obligation under the Spanish legislation to market the products in
question under the name
chocolate substitute significantly obstructs their access to the Spanish market, thereby constituting a measure having equivalent effect to a
quantitative restriction, in breach of Article 30 of the Treaty.
First, the obligation to alter the sales name involves additional packaging and labelling operations, thus leading to increased
marketing costs in Spain.  Secondly, the term
substitute is pejorative, since it always refers to a product which seeks to replace another without possessing all the properties which
give the product for which it is substituted its value.
Basing its argument both on the case-law of the Court and on Article 5(1)(c) of Directive 79/112 as amended by Directive 97/4,
the Commission claims that prohibiting the use of the sales name allowed in the Member State of production can be justified
only when the product at issue is so different, as regards its composition or manufacture, from the goods generally known
under that name in the Community that it can no longer be considered as belonging to the same category.
However, the Commission considers that it is not possible to claim that the addition of vegetable fats other than cocoa butter
to a chocolate product which contains the minimum contents required under Directive 73/241 substantially changes the nature
of the product, to the point where the use of the name
chocolate would create confusion as regards its basic characteristics.
In addition, the Commission maintains that the Spanish legislation cannot be justified by an overriding requirement relating
to consumer protection, since in the present case measures exist which are less restrictive of the free movement of cocoa
and chocolate products and which ensure the protection of consumer interests, such as the inclusion in the label of a neutral
and objective indication which informs consumers of the presence in the product of vegetable fats other than cocoa butter.
The Spanish Government states that, while it agrees with the Commission that Directive 73/241 has not settled the question
of the use, within the Community, of vegetable fats other than cocoa butter in the manufacture of cocoa and chocolate products,
it concludes from the definition of chocolate set out in point 1.16 of Annex I to that directive that it provides for full
harmonisation as regards the composition of products which can be marketed under the name
chocolate and that products containing vegetable fats other than cocoa butter cannot be considered to comply with the definitions and
rules provided for in that directive, in accordance with Article 10(1) thereof.
Since it therefore considers that products containing vegetable fats other than cocoa butter are manufactured in accordance
with the national rules of the Member State of production but not in compliance with Directive 73/241, it disputes the assertion
that the interpretation which it advocates undermines the unity of the internal market.  In particular, it maintains that,
since the use of vegetable fats other than cocoa butter is a matter for the Member States to decide, it is not really possible
to speak of an internal market in cocoa and chocolate products which contain those other vegetable fats.  In those circumstances,
it considers that it is permissible for the Member States to enact, where appropriate, a prohibition on marketing such products
within their territory under the sales name
chocolate when they do not comply with the relevant national legislation.
That interpretation is, moreover, supported by the fact that it was necessary to amend the Community legislation in order
to make it generally admissible within the Community to use vegetable fats other than cocoa butter in chocolate and thus to
arrive at what the Commission seeks to impose on the Kingdom of Spain by means of the present action for failure to fulfil
obligations.
Since it alleged, in addition, that the Court has consistently held that the interpretation of national law, whether adopted
before or after a directive, must be carried out in the light thereof and that every national court, when it interprets and
applies national law, must presume that the Member State had the intention of fulfilling entirely the obligations arising
from that directive, the Spanish Government contends that it should be presumed that it had the intention of complying with
Directive 73/241 and that the interpretation of its national legislation is in compliance with that directive.  In those circumstances,
it takes the view that if the directive is found to contain provisions contrary to the free movement of goods, the responsibility
must be attributed to the Council, as author of the directive.
The Spanish Government denies that its national legislation constitutes a measure with equivalent effect to a quantitative
restriction and maintains that it is merely a selling arrangement within the meaning of the judgment in Joined Cases C-267/91
and C-268/91
Keck and Mithouard
[1993] ECR I-6097.  It contends, in particular, that the conditions set out in that judgment are satisfied in the present
case, since the Spanish legislation which governs the name
chocolate substitute, under which cocoa and chocolate products containing vegetable fats other than cocoa butter can be marketed, applies to national
and foreign operators alike and affects in the same manner the marketing of domestic products and of imported products.
The Spanish Government considers that, in any event, access to the Spanish market for the products in question is not made
more difficult by its national legislation.
First, it contends that the term
chocolate substitute is neutral and merely reflects an objective reality, which is that cocoa and chocolate products which contain vegetable fats
other than cocoa butter and those which do not are not the same. It adds that the term is a traditional one in Spain and that,
in the absence of harmonised legislation in the field, the principle of equality requires the Commission to respect the traditional
names in each Member State.
Secondly, it maintains that the requirement to change the sales name of cocoa and chocolate products containing vegetable
fats other than cocoa butter does not increase the cost of marketing those products in Spain, since that cost is already assumed
by importers in order to draw up labels in a language easily understood by the consumer.
In that regard, it should be noted that Article 16 of Directive 2000/13 gives the Member State in which the product is marketed
the possibility, already introduced into Directive 79/112 by Directive 97/4, to stipulate within its own territory, in accordance
with the rules of the Treaty, that obligatory labelling particulars be given in one or more languages, which it is to determine
from among the official languages of the Community.  Accordingly, when Directive 97/4 was transposed into Spanish law, it
was required that foodstuffs marketed in Spain bear a label on which obligatory particulars would appear in Spanish.
It therefore contends that if, at the time of the repackaging which is in any event required, the term
chocolate is replaced by the expression
chocolate substitute, it will not involve any additional marketing costs for the products in question.
The Spanish Government points out that its national legislation is justified on the basis of consumer protection, since its
objective is to ensure the quality of the product known to Spanish consumers and which satisfies the definition set out in
point 1.16 of Annex I to Directive 73/241, which does not refer to vegetable fats other than cocoa butter.  In the first place,
a reference on the label to the presence of vegetable fats other than cocoa butter does not convey anything to Spanish consumers,
while the traditional sales name
chocolate substitute adequately informs them and, secondly, the addition of vegetable fats other than cocoa butter alters,
inter alia
, the quality, taste, consistency and durability of the product.
Moreover, the Government does not consider it permissible to extend to the whole of the Community, under the Community legislation
in force at present, an exception which is used in national law in only six Member States, when Directive 73/241 leaves the
Member States free to authorise or prohibit the addition of vegetable fats other than cocoa butter.
Finally, the Spanish Government states that, even if it immediately amended its national legislation in order to permit the
marketing within its territory under the name
chocolate of cocoa and chocolate products containing vegetable fats other than cocoa butter, Article 8 of Directive 2000/36 would prevent
that new legislation from coming into force before 3 August 2003.
Findings of the Court
Extent of the harmonisation achieved by Directive 73/241
First of all, the Commission's complaint that the Spanish legislation is incompatible with Community law, inasmuch as it places
restrictions on the free movement of cocoa and chocolate products containing vegetable fats other than cocoa butter, raises
the question of the extent of the harmonisation achieved by Directive 73/241.
The Commission considers that there has been no harmonisation regarding the use of such vegetable fats in cocoa and chocolate
products, so that any measures which restrict the free movement of products which contain such fats must be assessed in the
light of Article 30 of the Treaty.
By contrast, the Spanish Government maintains that Directive 73/241 brought about full harmonisation of precisely that matter,
since it lays down the principle that the use of vegetable fats other than cocoa butter is prohibited in the manufacture of
cocoa and chocolate products, merely granting Member States the opportunity to derogate from that principle and to maintain
in force legislation which authorises, within their national territory, the manufacture and marketing under the name
chocolate of products containing such fats.
It therefore concludes that it is only cocoa and chocolate products which do not contain vegetable fats other than cocoa butter
which are covered by Directive 73/241 and can therefore qualify for the system of free movement established by Article 10(1)
thereof.
In that regard, it should be noted that the Court has consistently held that, in interpreting a provision of Community law,
it is necessary to consider not only its wording but also the context in which it occurs and the aims of the rules of which
it forms part (see,
inter alia
, Case C-156/98
Germany
v
Commission
[2000] ECR I-6857, paragraph 50, and Case C-191/99
Kvaerner
[2001] ECR I-4447, paragraph 30).
First, as regards the objectives of the provisions in question and the context in which they occur, it is clear that Directive
73/241 was not intended to regulate definitively the use of vegetable fats other than cocoa butter in the cocoa and chocolate
products to which it refers.
In that regard, it should be recalled that the directive was adopted by the Council unanimously on the basis of Article 100
of the EEC Treaty (after amendment, Article 100 of the EC Treaty, now in turn Article 94 EC) relating to the approximation
of the laws, regulations or administrative provisions of the Member States which directly affect the establishment or functioning
of the common market.
In particular, the purpose of the Community legislature in adopting Directive 73/241 was to lay down, as is clear from the
fourth recital in its preamble, definitions and common rules in respect of the composition, manufacturing specifications,
packaging and labelling of cocoa and chocolate products in order to ensure the free movement of those products within the
Community.
None the less, in the seventh recital in the preamble to Directive 73/241, the Community legislature clearly indicated that,
in the light of the disparities between Member States' legislation and the insufficient economic and technical data available,
it could not, at the time the directive was adopted, take a final position on the use of vegetable fats other than cocoa butter
in cocoa and chocolate products.
It must also be pointed out that, as is made clear by the case-file, the reference in the same recital to certain Member States
where the use of those other vegetable fats was at that time not merely permitted but, moreover, extensive, referred to three
Member States which had acceded to the Community shortly before the adoption of Directive 73/241, namely the Kingdom of Denmark,
Ireland and the United Kingdom, and which traditionally permitted the addition to cocoa and chocolate products manufactured
within their territory of such vegetable fats up to a maximum of 5% of total weight.
In those circumstances, the Council merely established, for the use of vegetable fats other than cocoa butter, provisional
rules which were to be re-examined, in accordance with the second sentence of Article 14(2)(a) of Directive 73/241, at the
end of a period of three years from its notification.
It is in the light of those facts that both the wording and the scheme of the provisions of Directive 73/241 relating to the
use of vegetable fats other than cocoa butter in the cocoa and chocolate products to which it refers should be analysed.
First, the prohibition on the addition to the various cocoa and chocolate products defined in Annex I to Directive 73/241
of fats and fat preparations not derived exclusively from milk, laid down in point 7(a) of Annex I thereto, is
without prejudice to Article 14(2)(a).
Article 14(2)(a) for its part expressly provides that Directive 73/241 is not to affect the provisions of national law which
authorise or prohibit the addition of vegetable fats other than cocoa butter.
That provision therefore makes clear that, as regards the use of those other vegetable fats, Directive 73/241 does not seek
to establish a fully harmonised system under which common rules completely replace existing national rules in the field, since
it explicitly authorises the Member States to lay down national rules which are different from the common rules which it provides
for.
In addition, in the light of its wording, that provision cannot be interpreted as merely providing for a derogation to the
principle set out in point 7(a) of Annex I to Directive 73/241 that the addition to the products referred to of vegetable
fats other than cocoa butter is prohibited.
First, Article 14(2)(a) of Directive 73/241 refers not only to national laws which authorise the addition of vegetable fats
other than cocoa butter but also to those which prohibit that addition.
Secondly, that provision states that the Council must subsequently decide on the possibilities and the forms of extending
the use of those fats to the whole of the Community, which demonstrates that the Community legislature was contemplating only
the possibility of allowing or rejecting such an extension, and not of prohibiting that use throughout the Community.
Both the wording and the scheme of Directive 73/241 indicate therefore that it lays down a common rule, that is, the prohibition
laid down in point 7(a) of Annex I, and establishes in Article 10(1) free movement for products which comply with that rule,
while permitting Member States in Article 14(2)(a) to adopt national rules authorising the addition of vegetable fats other
than cocoa butter to cocoa and chocolate products manufactured within their territory.
Applicability of Article 30 of the Treaty
The preceding analysis makes clear that, in contrast to the argument put forward by the Spanish Government, cocoa and chocolate
products containing fats not referred to in point 7(a) of Annex I to the directive but whose manufacture and marketing under
the name
chocolate are authorised in certain Member States, in compliance with that directive, cannot be deprived of the benefit of free movement
of goods guaranteed by Article 30 of the Treaty solely on the ground that other Member States require within their territory
that cocoa and chocolate products be manufactured according to the common rule regarding composition provided for in point
7(a) of Annex I to the directive (see, by analogy, Case C-3/99
Ruwet
[2000] ECR I-8749, paragraph 44).
The Court has consistently held that Article 30 of the Treaty aims to prohibit all rules enacted by Member States which are
capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (Case 8/74
Dassonville
[1974] ECR 837, paragraph 5).
In accordance with the judgment in Case 120/78
Rewe-Zentral
[1979] ECR 649,
Cassis de Dijon
, Article 30 of the Treaty prohibits obstacles to the free movement of goods, in the absence of harmonisation of national
laws, which are the consequence of applying to goods coming from other Member States, where they are lawfully manufactured
and marketed, rules that lay down requirements to be met by those goods (such as those relating to their name, form, size,
weight, composition, presentation, labelling and packaging), even if those rules apply to national and imported products alike
(see,
inter alia
,
Keck and Mithouard
, cited above, paragraph 15; Case C-470/93
Mars
[1995] ECR I-1923, paragraph 12; and
Ruwet
, cited above, paragraph 46).
Accordingly, that prohibition also applies to obstacles to the marketing of products whose manufacture is not subject to comprehensive
harmonisation but which are manufactured in conformity with national rules which are explicitly permitted by the harmonising
directive.  In such a case, a contrary interpretation would be tantamount to authorising the Member States to partition their
national markets in regard to products not covered by the Community's harmonisation rules, contrary to the objective of free
movement pursued by the Treaty (see, by analogy,
Ruwet
, cited above, paragraph 47).
The objection of the Spanish Government that its national legislation constitutes a selling arrangement and accordingly falls
outside the application of Article 30 of the Treaty, in accordance with
Keck and Mithouard
, cited above, must also be rejected.
In that regard, it must be noted that in paragraph 16 of
Keck and Mithouard
the Court pointed out that the application to products from other Member States of national provisions restricting or prohibiting
certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member
States within the meaning of the
Dassonville
judgment, so long as those provisions apply to all relevant traders operating within the national territory and so long as
they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
However, the need to alter the packaging or the labelling of imported products prevents such requirements from being selling
arrangements within the meaning of the judgment in
Keck and Mithouard
(Case C-33/97
Colim
[1999] ECR I-3175, paragraph 37).
In those circumstances, it must be concluded that the requirements relating to the labelling and packaging of cocoa and chocolate
products containing vegetable fats other than cocoa butter under the Spanish legislation do not come under the exception referred
to in
Keck and Mithouard
.
It is therefore necessary to consider whether and to what extent Article 30 of the Treaty precludes the Spanish legislation,
which prohibits the marketing within the national territory of cocoa and chocolate products containing vegetable fats other
than cocoa butter under the sales name
chocolate, under which they are lawfully manufactured and marketed in the Member State of production.
In that regard, it must be noted that, as the Court has consistently held, while a prohibition such as that under the Spanish
legislation, which entails the obligation to use a sales name other than that used in the Member State of production, does
not absolutely preclude the importation into the Member State concerned of products originating in other Member States, it
is nevertheless likely to make their marketing more difficult and thus impede trade between Member States (see, to that effect,
inter alia
, Case 182/84
Miro
[1985] ECR 3731, paragraph 22; Case 298/87
Smanor
[1988] ECR 4489, paragraph 12; Case 286/86
Deserbais
[1988] ECR 4907, paragraph 12; and Case C-448/98
Guimont
[2000] ECR I-10663, paragraph 26).
In the present case, the prohibition on the use of the sales name
chocolate under which cocoa and chocolate products containing vegetable fats other than cocoa butter are lawfully manufactured in the
Member State of production may compel the traders concerned to adjust the presentation of their products according to the
place where they are to be marketed and consequently to incur additional packaging costs.  It is therefore liable to obstruct
intra-Community trade (see, to that effect,
Mars
, paragraph 13, and
Ruwet
, paragraph 48, both cited above).
Moreover, even if, as the Spanish Government maintains, the obligation to change the sales name does not necessarily entail
additional packaging costs, it is plain that the name
chocolate substitute required in this instance may adversely affect the customer's perception of the products in question, inasmuch as it denotes
substitute, and therefore inferior, products.
The Court has consistently held that the requirement for producers to use designations which are unknown to or less highly
regarded by consumers is likely to make the marketing of the products in question more difficult and thus impede trade between
Member States (see, to that effect,
Miro
, paragraph 22;
Smanor
, paragraphs 12 and 13; and
Guimont
, paragraph 26).
As to whether such legislation may nevertheless comply with Community law, it is settled case-law that obstacles to intra-Community
trade resulting from disparities between provisions of national law must be accepted in so far as such provisions are applicable
to domestic and imported products alike and may be justified as being necessary in order to satisfy overriding requirements
relating
inter alia
to consumer protection.  However, in order to be permissible, such provisions must be proportionate to the objective pursued
and that objective must not be capable of being achieved by measures which are less restrictive of intra-Community trade (see,
inter alia
,
Mars
, paragraph 15; Case C-313/94
Graffione
[1996] ECR I-6039, paragraph 17;
Ruwet
, paragraph 50; and
Guimont
, paragraph 27).
In that context, the Court has already held that it is legitimate for a Member State to ensure that consumers are properly
informed about the products which are offered to them, thus giving them the possibility of making their choice on the basis
of that information (see,
inter alia
, Case 216/84
Commission
v
France
[1988] ECR 793, paragraph 11, and
Smanor
, paragraph 18).
In particular, the Court has consistently held that Member States may, for the purpose of protecting consumers, require those
concerned to alter the description of a foodstuff where a product offered for sale under a particular name is so different,
in terms of its composition or production, from the products generally understood as falling within that description within
the Community that it cannot be regarded as falling within the same category (see,
inter alia
,
Deserbais
, paragraph 13, Case C-366/98
Geffroy
[2000] ECR I-6579, paragraph 22, and
Guimont
, paragraph 30).
However, where the difference is of minor importance, appropriate labelling should be sufficient to provide the purchaser
or consumer with the necessary information (see,
inter alia
, Case C-269/89
Bonfait
[1990] ECR I-4169, paragraph 15; Case C-383/97
van der Laan
[1999] ECR I-731, paragraph 24;
Geffroy
, paragraph 23; and
Guimont
, paragraph 31).
It is therefore important to ascertain whether the addition to cocoa and chocolate products of vegetable fats other than cocoa
butter substantially alters their composition, so that they no longer present the characteristics expected by consumers buying
products bearing the name
chocolate and that a label providing appropriate information as to their composition cannot be considered sufficient to avoid confusion
in the minds of consumers.
The characteristic element of cocoa and chocolate products within the meaning of Directive 73/241 is the presence of a certain
minimum cocoa and cocoa butter content.
In particular, it should be recalled that, in accordance with point 1.16 of Annex I to Directive 73/241, products meeting
the definition of chocolate within the meaning of the directive must contain a minimum total dry cocoa solids content of 35%,
with at least 14% of dry non-fat cocoa solids and 18% of cocoa butter.
The percentages set by Directive 73/241 are minimum contents which must be complied with by all chocolate products manufactured
and marketed under the name
chocolate in the Community, independently of whether the legislation of the Member State of production authorises the addition of vegetable
fats other than cocoa butter.
In addition, it must be pointed out that, since Directive 73/241 explicitly permits Member States to authorise the use, in
the manufacture of cocoa and chocolate products, of vegetable fats other than cocoa butter, it cannot be claimed that the
products to which those fats have been added, in compliance with that directive, are altered to the point where they no longer
fall into the same category as those which do not contain such fats.
Therefore, the addition of vegetable fats other than cocoa butter to cocoa and chocolate products which satisfy the minimum
contents required by Directive 73/241 cannot substantially alter the nature of those products to the point where they are
transformed into different products.
It follows that the inclusion in the label of a neutral and objective statement informing consumers of the presence in the
product of vegetable fats other than cocoa butter would be sufficient to ensure that consumers are given correct information.
In those circumstances, the obligation to change the sales name of those products which is imposed by the Spanish legislation
does not appear to be necessary to satisfy the overriding requirement of consumer protection.
It follows that that legislation, to the extent that it requires the name of products which are lawfully manufactured and
marketed in other Member States under the sales name
chocolate to be altered for the sole reason that they contain vegetable fats other than cocoa butter, is incompatible with Article
30 of the Treaty.  Finally, the argument put forward by the Spanish Government that in any event it is barred by Article 8 of Directive 2000/36
from introducing before 3 August 2003 new legislation allowing the marketing within its own territory of cocoa and chocolate
products containing vegetable fats other than cocoa butter, must be rejected as immaterial.
The Court has consistently held that a rule of secondary legislation, such as Article 8 of Directive 2000/36, cannot be interpreted
as authorising the Member States to impose or to maintain conditions contrary to the Treaty rules on the free movement of
goods (Case C-47/90
Delhaize et Le Lion
[1992] ECR I-3669, paragraph 26; Case C-315/92
Verband Sozialer Wettbewerb
[1994] ECR I-317,
Clinique
, paragraph 12; and Joined Cases C-427/93, C-429/93 and C-436/93
Bristol-Myers Squibb and Others
[1996] ECR I-3457, paragraph 27).
In the light of all the foregoing considerations, it must be held that, by prohibiting cocoa and chocolate products which
comply with the requirements as to minimum content laid down in point 1.16 of Annex I to Directive 73/241 to which vegetable
fats other than cocoa butter have been added, and which are lawfully manufactured in Member States which authorise the addition
of those fats, from being marketed in Spain under the name used for their marketing in the Member State of production, the
Kingdom of Spain has failed to fulfil its obligations under Article 30 of the Treaty.
Costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party's pleadings.  Since the Commission has asked for costs and the Kingdom of Spain has been
unsuccessful, the latter must be ordered to pay the costs.
On those grounds,
THE COURT (Sixth Chamber)
hereby:
1.
Declares that, by prohibiting cocoa and chocolate products which comply with the requirements as to minimum content laid down
in point 1.16 of Annex I to Council Directive 73/241/EEC of 24 July 1973 on the approximation of the laws of the Member States
relating to cocoa and chocolate products intended for human consumption to which vegetable fats other than cocoa butter have
been added, and which are lawfully manufactured in Member States which authorise the addition of those fats, from being marketed
in Spain under the name used for their marketing in the Member State of production, the Kingdom of Spain has failed to fulfil
its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC);
2.
Orders the Kingdom of Spain to bear the costs.
Puissochet
Schintgen
Skouris
Colneric
Cunha Rodrigues
Delivered in open court in Luxembourg on 16 January 2003.
R. Grass
J.-P. Puissochet
Registrar
President of the Sixth Chamber
–
Language of the case: Spanish.