Opinion of the Advocate General — ECLI:EU:C:2003:233
Date: 2003-04-10
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

SUMMARY — CASE C-40/02 
Summary of the Judgment 
1. Approximation of laws — Nutrition labelling of foodstuffs — Directive 90/496 
Reference date for determining the value of a nutrient — End of minimum conser­
vation period — Whether permissible — Determination of permissible differences 
between the declared value and the value established in the course of an official 
check — Competence of the Member States 
(Council Directive 90/496, Arts 1(4) (k) and 6(8)) 
2. Approximation of laws — Nutrition labelling of foodstuffs — Directive 90/496 
Breach of the principles of legal certainty and proportionality — None 
(Council Directive 90/496, Arts 1(4) (k) and 6(8)) 
1. Articles 1(4)(k) and 6(8) of Directive 
90/496 on nutrition labelling for food­
stuffs must be interpreted as meaning 
that, first, the value of a nutrient such 
as vitamin C which is indicated on a 
foodstuff following an analysis of the 
foodstuff carried out by the manufac­
turer may correspond to the value of 
that nutrient in the foodstuff in ques­
tion at the end of its minimum conser­
vation period and, second, that the 
determination of the permissible dif­
ferences between the value stated and 
the value established in the course of an 
official check is, in the present state of 
Community law, within the compet­
ence of the Member States. 
(see para. 41, operative part 1) 
2. The validity of Directive 90/496 on 
nutrition labelling for foodstuffs is not 
called into question by the fact that 
Articles 1(4)(k) and 6(8) of that direc­
tive do not contain precise indications 
either on the reference date to be taken 
into consideration for determining the 
average value of a nutrient contained in 
a foodstuff or on the extent of the 
differences tolerated between the 
declared value and the value estab­
lished in the course of an official check. 
First, far from disregarding the prin­
ciple of legal certainty, the Community 
legislature, in accordance with the 
third paragraph of Article 249 EC, 
fixed the result to be achieved, namely 
enabling consumers to choose an 
appropriate diet inter alia by stating 
average values which best represent the 
value of the nutrients in question and 
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SCHERNDL 
take various factors into account, while 
leaving to the national authorities the 
choice of form and measures to achieve 
that result. Second, by thus giving the 
national authorities a discretion as to 
the definition both of the reference date 
for calculating the average value and of 
the differences tolerated between the 
declared value and that actually estab­
lished in the course of an official check, 
Articles 1(4)(k) and 6(8) of the direc­
tive do not contain inappropriate or 
disproportionate restrictions on the 
activity of manufacturers of foodstuffs. 
(see paras 47-49, operative part 2) 
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