Opinion of the Advocate General — ECLI:EU:C:2015:460
Date: 2015-07-09
Language of the case: French
Subject matter: Consumer protection;Approximation of laws;Public health;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (Fourth Chamber), 17 December 2015 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Identification of the relevant points of EU law — Reformulation of the questions (Art. 267 TFEU) 2. Approximation of laws — Nutrition and health claims concerning foodstuffs — Regulation No 1924/2006 — Claim relating to the sodium/salt content of natural mineral waters — Label suggesting mineral waters low in sodium or in salt but having, in fact, a content equal to or more than 20 mg/l — Not permissible (European Parliament and Council Regulation No 1924/2006, as amended by Regulation No 107/2008, Art. 8(1) and Annex; European Parliament and Council Directive 2009/54, Art. 9(2) and Annex III) 3. Approximation of laws — Nutrition and health claims concerning foodstuffs — Regulation No 1924/2006 — Prohibition on labelling which may mislead the purchaser as to the sodium/salt content of natural mineral waters — No disproportionate restriction on the rights to freedom of expression and information and freedom to conduct a business — Consideration of the precautionary principle (Charter of Fundamental Rights of the European Union, Arts 11(1) and 16; European Parliament and Council Regulation No 1924/2006, as amended by Regulation No 107/2008, Art. 8(1) and Annex; European Parliament and Council Directive 2009/54, Art. 9(2) and Annex III) 4. Approximation of laws — Nutrition and health claims concerning foodstuffs — Regulation No 1924/2006 — Conditions for use of those claims — Discretion of the EU legislature — Judicial review — Limits (European Parliament and Council Regulation No 1924/2006, as amended by Regulation No 107/2008, Art. 8(1)) 1. See the text of the decision. (see paras 33, 34) 2. Article 8(1) of Regulation No 1924/2006 on nutrition and health claims made on foods, as amended by Regulation No 107/2008, read in conjunction with the annex thereto, must be interpreted as prohibiting the use of the claim ‘very low in sodium/salt’ and any claim likely to have the same meaning for the consumer as regards natural mineral waters and other waters. Furthermore, Article 9(2) of Directive 2009/54 on the exploitation and marketing of natural mineral waters, read in conjunction with Annex III thereto, must be interpreted as precluding packaging, labels or advertising for natural mineral waters from displaying claims or indications suggesting to the consumer that the waters concerned are low in sodium or salt or are suitable for a low-sodium diet where the total sodium content, in all the chemical forms present, is equal to or more than 20 mg/l. (see para. 56, operative part 1) 3. The prohibition on the displaying on the packaging, labels and in the advertising for natural mineral waters of any claim or indication referring to the fact that such waters have a low sodium content, as provided for by Article 8(1) of Regulation No 1924/2006 on nutrition and health claims made on foods, as amended by Regulation No 107/2008, read together with the annex thereto and Article 9(2) of Directive 2009/54 on the exploitation and marketing of natural mineral waters, read together with Annex III thereto, is an interference with the freedom of expression and information of the person carrying on that business and with his freedom to conduct that business. However, first, that interference is provided for by law and, second, the actual content of the freedom of expression and information of the person carrying on the business is not affected by those provisions, since they merely make the information which may be communicated to the consumer regarding the sodium or salt content of natural mineral waters subject to certain conditions. Far from prohibiting the production and marketing of natural mineral waters, the legislation at issue in the main proceedings merely controls, in a very clearly defined area, the associated labelling and advertising. In so doing, it does not affect in any way the actual content of the freedom to conduct a business. Furthermore, the need to ensure that the consumer has the most accurate and transparent information possible concerning the characteristics of goods is closely related to the protection of human health and is a question of general interest which may justify limitations on the freedom of expression and information of a person carrying on a business or his freedom to conduct a business. As regards compliance with the principle of proportionality, since it does not appear that a risk for human health from a high level of consumption of sodium present in various chemical compounds, in particular sodium bicarbonate, may be excluded, the EU legislature was legitimately entitled to consider that limitations and restrictions such as those laid down by Article 8(1) of Regulation No 1924/2006 on nutrition and health claims made on foods, as amended by Regulation No 107/2008, read together with the annex thereto and Article 9(2) of Directive 2009/54 on the exploitation and marketing of natural mineral waters, read together with Annex III thereto, as being appropriate and necessary to ensure the protection of human health in the European Union. The EU legislature must take account of the precautionary principle, according to which, where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures. Accordingly, the interference with freedom of expression and information of a person carrying on a business and his freedom to conduct a business is, in the present case, proportionate to the objectives pursued. (see paras 67, 69-71, 74, 81-85) 4. See the text of the decision. (see paras 76)