Opinion of the Advocate General — ECLI:EU:C:2012:189
Date: 2012-03-29
Language of the case: German
Subject matter: Consumer protection;Approximation of laws;Public health;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Third Chamber), 6 September 1. Approximation of laws — Nutrition and health claims made on foods — Regulation No 1924/2006 — Conditions for the use of such claims — Prohibition of health claims in relation to beverages containing more than 1.2% by volume of alcohol — Health claim — Definition — Description ‘easily digestible’ accompanied by a reference to the reduced content of substances perceived as being harmful — Included (European Parliament and Council Regulation No 1924/2006, Art. 4(3) first subpara., as amended by Regulation No 116/2010) 2. Fundamental rights — Freedom to choose an occupation — Freedom to conduct a business — Restriction in the context of the protection of public health — Regulation No 1924/2006 relating to nutrition and health claims made on foods — Producer or distributor of wine prohibited from using the description ‘easily digestible’ accompanied by a reference to the reduced acidity levels — Lawfulness (Art. 6(1) TEU; Charter of Fundamental Rights of the European Union, Arts 15(1), 16 and 35; European Parliament and Council Regulation No 1924/2006, as amended by Regulation No 116/2010) 1. The first subparagraph of Article 4(3) of Regulation No 1924/2006 on nutrition and health claims made on foods, as last amended by Regulation No 116/2010, must be interpreted as meaning that the words ‘health claim’ cover a description such as ‘easily digestible’ that is accompanied by a reference to the reduced content of substances frequently perceived by consumers as being harmful. It is apparent from the wording of Article 2(2)(5) of Regulation No 1924/2006 that the starting-point for the definition of a ‘health claim’ within the meaning of that regulation is the relationship that must exist between a food or one of its constituents and health. That definition provides no information as to whether that relationship must be direct or indirect, or as to its intensity or duration. In those circumstances, the term ‘relationship’ must be understood in a broad sense. Thus, the concept of a ‘health claim’ must cover not only a relationship implying an improvement in health as a result of the consumption of a food, but also any relationship which implies the absence or reduction of effects that are adverse or harmful to health and which would otherwise accompany or follow such consumption, and, therefore, the mere preservation of a good state of health despite that potentially harmful consumption. Moreover, the concept of a ‘health claim’ is deemed to refer not only to the effects of the consumption — in a specific instance — of a precise quantity of a food which is likely, normally, to have only temporary or fleeting effects, but also to those of the repeated, regular, even frequent consumption of such a food, the effects of which are, by contrast, not necessarily only temporary and fleeting. Consequently, it is necessary to take into account temporary and fleeting effects as well as the cumulative effects of the repeated and long-term consumption of a certain food on the physical condition. (see paras 34-36, 38, 41, operative part 1) 2. The fact that a producer or distributor of wine is prohibited under Regulation No 1924/2006 on nutrition and health claims made on foods, as amended by Regulation No 116/2010, without exception, from using the description ‘easily digestible’ accompanied by a reference to the reduced acidity levels, even if that claim is inherently correct, is compatible with the first subparagraph of Article 6(1) TEU. Measures restricting the advertising of alcoholic beverages in order to combat alcohol abuse reflect public health concerns and the protection of public health constitutes an objective of general interest justifying, where appropriate, a restriction of a fundamental freedom. It is essential that all claims in relation to such beverages are entirely unambiguous, so that consumers are in a position to regulate their consumption while taking into account all the inherent dangers associated with such consumption, and in so doing to protect their health effectively. However, even if the claim at issue can be regarded as being substantively inherently correct in that it indicates reduced acidity levels, the fact remains that it is incomplete. The claim highlights a certain quality that facilitates digestion, but is silent as to the fact that, regardless of a sound digestion, the dangers inherent in the consumption of alcoholic beverages are not in any way removed, or even limited. Furthermore, by highlighting only the easy digestion of the wine concerned, the claim at issue is likely to encourage its consumption and, ultimately, to increase the risks for consumers’ health inherent in the immoderate consumption of any alcoholic beverage. Consequently, the prohibition of such claims is warranted in the light of the requirement that stems from Article 35 of the Charter of Fundamental Rights of the European Union. Thus, the prohibition of the claim at issue does not in any way affect the actual substance of the freedom to choose an occupation or of the freedom to conduct a business, provided for in Articles 15(1) and 16 respectively of the Charter of Fundamental Rights of the European Union. The legislation at issue is designed to protect health, which is an objective of general interest pursued by the European Union. As regards compliance with the principle of proportionality, while it is true that the prohibition of the claims at issue imposes certain restrictions on the professional activity of the economic operators concerned in one specific respect, compliance with those freedoms is nevertheless assured in the essential respects. (see paras 49-53, 55, 56, 58, 60, operative part 2)