62014CC0157
OPINION OF ADVOCATE GENERAL
JÄÄSKINEN
delivered on 9 July 2015 (
1
)
Case C‑157/14
Neptune Distribution
v
Minister for Economic Affairs and Finance
(Request for a preliminary ruling from the Conseil d’État (France))
‛Reference for a preliminary ruling on a question of interpretation and an assessment as to validity — Consumer protection — Regulation (EC) No 1924/2006 — Nutrition and health claims made on foods — Natural mineral waters — Basis for calculating ‘the equivalent value for salt’ of the sodium present in a foodstuff — Consideration solely of sodium chloride (table salt) content or of the total quantity of sodium — Directives 2000/13/EC and 2009/54/EC — Labelling of foodstuffs and advertising relating to them — Marketing of natural mineral waters — Prohibition on the indication of a low salt content — Article 6 TEU — Articles 11 and 16 of the Charter of Fundamental Rights of the European Union — Freedom of expression and information — Freedom to conduct a business’
I – Introduction
1.
The present case follows an appeal brought in France by Neptune Distribution seeking the setting aside, on the one hand, of the administrative decision formally notifying it to remove various indications on the labelling and advertising of the natural mineral waters which it markets — indications leading consumers to believe that those waters have a low salt or sodium content — and, on the other hand, of the ministerial decision dismissing the administrative appeal which that company had brought against the first decision. An appeal having been brought before it in the context of that dispute, the Conseil d’État (France) is making a request to the Court for a preliminary ruling on two separate bases.
2.
In the first place, the referring court is seeking an interpretation of the Annex to Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, (
2
) a request which has no precedent. (
3
)
3.
That annex contains, inter alia, provisions permitting nutrition claims that a food is either ‘low in sodium/salt’ or ‘very low in sodium/salt’ only where the product contains no more than a given quantity of sodium or ‘the equivalent value for salt’ of that quantity. The Court is asked to rule whether that latter concept must be understood as meaning that it is necessary, when calculating that equivalent, to take into account only the sodium chloride, usually referred to as table salt, content or the total sodium (
4
) content which is present in a foodstuff, without in the latter case making any distinction based on the form in which that mineral element is present.
4.
However, the preliminary issue which arises in that regard is that of determining whether those provisions of Regulation No 1924/2006 are truly intended to apply where the ‘foodstuffs’ concerned are, as in the main proceedings, natural mineral waters. It seems to me that this should not be the case with regard to the first of those nutrition claims, since there is a specific EU law measure which takes precedence in the marketing of those waters.
5.
In the second place, the Conseil d’État invites the Court to rule on the validity of the provisions of Article 2(1) of 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 (
5
) and the provisions of Article 9(1) and (2) of Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters, (
6
) as well as Annex III thereto, read in conjunction with the Annex to Regulation No 1924/2006 referred to above. I would state from the outset that I have serious doubts as to the suitability of the request as formulated.
6.
That issue is raised by the referring court because Neptune Distribution claims that, in that those provisions of secondary legislation of the European Union prohibit it from highlighting a characteristic of the composition of its products which is nevertheless accurate, they disregard both the freedom of expression and information and the freedom to conduct a business, which are guaranteed by Articles 11(1) and 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’), read in conjunction with the first subparagraph of Article 6(1) TEU and Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’). However, reliance on those fundamental freedoms, in a field as technical and specific as that governed by the provisions concerned, seems to me to be unfounded.
II – Legal framework
7.
It should be noted at the outset that Regulation (EU) No 1169/2011 (
7
) which, in particular, amends Regulation No 1924/2006 and repeals Directive 2000/13 is applicable, save as otherwise provided, from 13 December 2014, but does not govern the dispute in the main proceedings, ratione temporis, in accordance with Articles 54 and 55 thereof.
A – Regulation No 1924/2006
8.
Article 1(1) and (5) of Regulation No 1924/2006, entitled ‘Subject matter and scope’, states, first, that that measure ‘harmonises the provisions laid down by law, regulation or administrative action in Member States which relate to nutrition and health claims in order to ensure the effective functioning of the internal market whilst providing a high level of consumer protection’ and, secondly, that it ‘shall apply without prejudice to [certain] Community provisions’, including those of Directive 80/777, which has been replaced by Directive 2009/54. (
8
)
9.
Article 2(2)(4) and (5) of that regulation states that:
‘(4)
“nutrition claim” means any claim which states, suggests or implies that a food has particular beneficial nutritional properties due to:
…
(b)
[in particular] the nutrients or other substances it:
(i)
contains,
(ii)
contains in reduced or increased proportions; or
(iii)
does not contain;
(5)
“health claim” means any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health.’
10.
Article 8(1) of that regulation states that ‘[n]utrition claims shall only be permitted if they are listed in the Annex and are in conformity with the conditions set out in this Regulation’.
11.
The Annex to Regulation No 1924/2006, entitled ‘Nutrition claims and conditions applying to them’, defines the thresholds below which the following claims are permitted:
B – Directive 2000/13
12.
Under Article 2(1) and (3) of Directive 2000/13, relating to the labelling, presentation and advertising of foodstuffs:
‘1.   The labelling and methods used must not:
(a)
be such as could mislead the purchaser to a material degree, particularly:
(i)
as to the characteristics of the foodstuff and, in particular, as to its … properties, composition …;
(ii)
by attributing to the foodstuff effects or properties which it does not possess;
(iii)
by suggesting that the foodstuff possesses special characteristics when in fact all similar foodstuffs possess such characteristics;
(b)
subject to Community provisions applicable to natural mineral waters and foodstuffs for particular nutritional uses, attribute to any foodstuff the property of preventing, treating or curing a human disease, or refer to such properties.
...
3.   The prohibitions or restrictions referred to in paragraphs 1 and 2 shall also apply to:
(a)
the presentation of foodstuffs ...
(b)
advertising [ (
9
)].’
C – Directive 2009/54
13.
Recital 8 in the preamble to Directive 2009/54 on the marketing of natural mineral waters states that ‘[i]n respect of labelling, natural mineral waters are subject to the general rules laid down by Directive 2000/13 … Accordingly, this Directive may be limited to laying down the additions and derogations which should be made to those general rules’.
14.
Article 9(1) and (2) of that directive provides:
‘1.   It shall be prohibited, both on packaging or labels and in advertising in any form whatsoever, to use indications … which:
(a)
in the case of a natural mineral water, suggest a characteristic which the water does not possess …;
...
2.   All indications attributing to a natural mineral water properties relating to the prevention, treatment or cure of a human illness shall be prohibited.
However, the indications listed in Annex III shall be authorised if they meet the relevant criteria laid down in that Annex or, in the absence thereof, criteria laid down in national provisions and provided that they have been drawn up on the basis of physico-chemical analyses and, where necessary, pharmacological, physiological and clinical examinations carried out according to recognised scientific methods, in accordance with Annex I, Section I, point 2.
Member States may authorise … the inclusion of other indications, provided that the latter do not conflict with the principles provided for in the first subparagraph and are compatible with those provided for in the second subparagraph.’
15.
In Annex III to Directive 2009/54, entitled ‘Indications and criteria laid down in Article 9(2)’, the indication ‘suitable for a low-sodium diet’ is associated with the following criterion: ‘sodium content less than 20 mg/l’.
III – The dispute in the main proceedings, the questions referred and the procedure before the Court
16.
By document of 5 February 2009, the Regional Directorate for Competition Policy, Consumer Affairs and Fraud Control of the Auvergne (France) gave Neptune Distribution, which sells and distributes the sparkling natural mineral waters ‘Saint-Yorre’ and ‘Vichy Célestins’, formal notice to remove from the labelling and advertising of those waters the following indications:
—
‘The sodium in St-Yorre is essentially sodium bicarbonate. St-Yorre contains only 0.53 g of salt (or sodium chloride) per litre, or less than a litre of milk!!!’ and
—
‘Salt and sodium must not be confused — the sodium in Vichy Célestins is essentially from sodium bicarbonate. Above all, it must not be confused with table salt (sodium chloride). Vichy Célestins contains only 0.39 g of salt per litre or 2 to 3 times less than is contained in a litre of milk!’, as well as,
—
in general, any indication suggesting that the waters in question are low or very low in salt or in sodium.
17.
By decision of 25 August 2009, the French Minister for the Economy, Industry and Employment rejected the administrative appeal brought by Neptune Distribution against that formal notice.
18.
By judgment of 27 May 2010, the Administrative Court of Clermont-Ferrand dismissed Neptune Distribution’s appeal seeking the setting aside both of the formal notice of 5 February 2009 and of the subsequent ministerial decision on the ground that they were ultra vires. The Administrative Court of Appeal of Lyon upheld that judgment, by decision of 9 June 2011. Neptune Distribution brought an appeal against that decision before the Conseil d’État.
19.
In the light of the pleas concerning provisions of EU law which were raised in that appeal, by decision of 26 March 2014, received at the Registry of the Court on 4 April 2014, the Conseil d’État decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)
Is the basis for calculating the ‘equivalent value for salt’ of the quantity of sodium present in a foodstuff, for the purposes of the [A]nnex to Regulation No 1924/2006, constituted only by the quantity of sodium which, when associated with chloride ions, forms sodium chloride, or table salt, or does it include the total quantity of sodium in all its forms contained in the foodstuff?
(2)
In the latter case, do Article 2(1) of Directive 2000/13 and Article 9(1) and (2) of Directive 2009/54, together with Annex III to the latter directive, read in the light of the equivalence established between sodium and salt in the [A]nnex to Regulation No 1924/2006, infringe the first subparagraph of Article 6(1) [TEU], read with Article 11(1) (freedom of expression and information) and Article 16 (freedom to conduct a business) of the Charter …, and Article 19 of the [ECHR], by prohibiting a distributor of mineral water from placing on his labels and advertising material any indication as to the low salt content or sodium chloride content, which could be that of his product that is high in sodium bicarbonate, inasmuch as that indication would be likely to mislead the purchaser in regard to the total sodium content of the water?’
20.
Written observations were submitted by Neptune Distribution, by the French, Greek and Italian Governments as well as by the European Parliament, the Council of the European Union and the European Commission. At the hearing held on 26 February 2015, only the Italian Government was not represented.
IV – Analysis
A – The interpretation of the Annex to Regulation No 1924/2006 (first question)
21.
This request for a preliminary ruling concerns, first of all, the interpretation of a concept, that is ‘the equivalent value for salt’ of the quantity of sodium present in a foodstuff, which is set out in the Annex to Regulation No 1924/2006, in respect of the nutrition claims ‘low in sodium/salt’ and ‘very low in sodium/salt’ referred to above. (
10
) For the first time, the Court is asked, in connection with the interpretation which must be given to that concept, whether, under that measure, only the quantity of sodium which — by association with chloride ions — is in the form of sodium chloride (known as ‘table salt’) or the total quantity of sodium — whatever its form — found in the foodstuff concerned is to be used as the basis for calculating ‘the equivalent value for salt’.
22.
In support of the first option, which is favoured by Neptune Distribution, the referring court notes that ‘[i]nasmuch as sodium is normally encountered in nature only in association with other chemical elements’, it is possible to take the view that that annex requires account to be taken only of the quantity of sodium in the form of sodium chloride. (
11
) It also notes that if, on the other hand, the second option were to be adopted by the Court, as advocated by the French administration, a water high in sodium bicarbonate could not be described as ‘low in sodium/salt’, within the meaning of the Annex to Regulation No 1924/2006, even if the sodium chloride content of that water is low or even very low. (
12
)
23.
That said, I consider that there is a problem which must be resolved beforehand, namely that of the applicability in the present case of the provisions of Regulation No 1924/2006, and in particular those contained in its annex. Like the French and Greek Governments, I take the view that Directive 2009/54 introduced a specific scheme for the indications which may appear on labels and in advertising relating to natural mineral waters, from which it follows, in my view, that the use of the nutrition or health claims laid down in Regulation No 1924/2006 is generally excluded with respect to that particular category of foodstuffs. (
13
) Neptune Distribution and the Commission argue, in contrast, that Regulation No 1924/2006 and Directive 2009/54 are complementary in nature as regards the indications which may be used in connection with natural mineral waters, but I am not entirely convinced by that argument, given the wording of the EU measures relevant here and the relationship between them.
24.
Article 1(5)(b), of Regulation No 1924/2006, which concerns nutrition and health claims (
14
) relating to foodstuffs in general, expressly excludes the application of that regulation to the prejudice of the provisions of Directive 80/777 on the marketing of natural mineral waters, which was replaced by Directive 2009/54 as from 16 July 2009. (
15
)
25.
Moreover, the annex to that regulation limits solely to waters ‘other than natural mineral waters falling within the scope of [Directive 2009/54]’ the nutrition claim that a foodstuff is ‘low in sodium/salt’, the use of which that annex authorises under certain conditions. It seems clear to me that the EU legislature here intended to differentiate natural mineral waters, in that they constitute a specific category of foodstuffs, to which Directive 2009/54 primarily, or even exclusively, applies in the area covered by its provisions. (
16
)
26.
It is true that the Annex to Regulation No 1924/2006 lays down a prohibition on using the nutrition claim that a foodstuff is ‘very low in sodium/salt’, which applies both to natural mineral waters and to other waters. Nevertheless, that is, in my opinion, a clarification concerning a type of indication which is in no way governed by Directive 2009/54. That special provision of the annex to that regulation is thus intended to apply to natural mineral waters, which, otherwise, fall within the scope of Directive 2009/54. However, it imposes a prohibition on using that claim with respect to natural mineral waters and other waters which is absolute in nature in that, as stated in the last sentence of that provision, the prohibition operates regardless of the criterion of ‘the equivalent value for salt’ of sodium. Therefore, its application in a situation such as that in the main proceedings does not depend on the interpretation of that criterion.
27.
On the other hand, with regard to the nutrition claim ‘low in sodium/salt’, referred to above, the Annex to Regulation No 1924/2006, which authorises its use, was likely to come into substantive conflict with Annex III to Directive 2009/54, which governs the use of the indication ‘suitable for a low-sodium diet’, a conflict of rules which has been decided in favour of that directive.
28.
It follows, in my opinion, that the only indications permitting references to be made to the low quantity of sodium present in natural mineral water are those laid down by Directive 2009/54, pursuant to Article 9(2) of that directive read in conjunction with Annex III thereto. However, the concept of ‘the equivalent value for salt’, whose interpretation is requested in the first question referred, appears only in Regulation No 1924/2006 and neither in Directive 2009/54 (
17
) nor in Directive 2000/13. (
18
)
29.
However, it may be appropriate for me to point out that, with regard to the interpretation of the concept of ‘the equivalent value for salt’ within the meaning of the annex to that regulation, I share the view expressed by the French, Greek and Italian Governments and by the Commission (
19
) that the total quantity of sodium present in a foodstuff is the only relevant basis for calculating ‘the equivalent value for salt’ of the sodium that that foodstuff contains.
30.
Regulation No 1924/2006 and its annex do not draw a distinction between the different sources of sodium present in a foodstuff. In particular, they do not differentiate according to the possible association of sodium with bicarbonate ions or chloride ions. On the contrary, in the nutrition claims in question, that annex establishes a direct correlation between the maximum authorised ‘sodium’ content, regardless of the form of sodium, and ‘the equivalent value for salt’ of that reference content. (
20
)
31.
Following the same logic, the EU legislature has sought to avoid any confusion between the concept of sodium and the concept of salt (or sodium chloride) as regards, more specifically, the marketing of natural mineral waters, which is governed by Directive 2009/54, (
21
) and the provision of food information to consumers, which is now covered by Regulation No 1169/2011. (
22
)
32.
Those literal arguments are supported by teleological considerations. As the French Government and the Commission recall, Regulation No 1924/2006 has the objectives of ensuring both the accuracy of health and nutrition claims and a high level of protection for consumers in that area. (
23
) However, those objectives can, in my opinion, be fully achieved only if it is the total sodium content present in a foodstuff, and not only a part — in the form of sodium chloride –, which is taken into account in respect of the nutrition claims authorised under a combined application of Article 8 of that regulation and the annex thereto.
33.
Finally, the Council notes, rightly, that ‘taking into account overall sodium intake, all sources taken together, is consistent with established scientific practice within international organisations in the food sector’. (
24
) The Parliament adds that ‘regarding the objective of reducing sodium intake, WHO documents expressly establish an equivalence between table salt (sodium chloride) and other sources of sodium, including, inter alia, sodium bicarbonate’. (
25
)
34.
Consequently, I consider that the concept of ‘the equivalent value for salt’ within the meaning of the Annex to Regulation No 1924/2006 must be interpreted as covering the total quantity of sodium contained in a foodstuff, in all its forms, and not solely the sodium which is associated with chloride ions (sodium chloride or ‘table salt’).
B – The assessment of the validity of the relevant provisions of Directive 2000/13 and Directive 2009/54 (second question)
1. The content and scope of the question referred
35.
The second question is raised in the alternative. It is submitted only in the event that, in response to the first question, the Court rules that it is necessary to take into account the total quantity of sodium contained in a foodstuff, regardless of the form of that mineral, when calculating the ‘the equivalent value for salt’ of the maximum level of sodium permitted to be able to use the nutrition claims ‘low in sodium/salt’ and ‘very low in sodium/salt’ as laid down by Regulation No 1924/2006.
36.
That question is, in essence, concerned with an assessment of the validity of several provisions of secondary legislation of the European Union. The referring court has doubts as to whether those provisions are compatible, on the one hand, with the first subparagraph of Article 6(1) TEU, which confers binding force on the Charter, and, on the other hand, with Articles 11(1) and 16 of the Charter, relating respectively to freedom of expression and information and freedom to conduct a business, (
26
) and also with Article 10 of the ECHR, similarly concerning freedom of expression. (
27
)
37.
The referring court indicates that, in the event that all forms of sodium present in a foodstuff must be taken into account when calculating ‘the equivalent value for salt’, the provisions of Article 2(1) of Directive 2000/13 and those of Article 9(1) and (2) of Directive 2009/54, combined with Annex III to that directive, ‘read in the light of the equivalence established between sodium and salt in the [A]nnex to Regulation No 1924/2006’, (
28
) could result in an excessive restriction on the aforementioned freedoms.
38.
In that regard, only Neptune Distribution claims that the provisions of secondary legislation of the European Union which are thus referred to in the second question are contrary to the fundamental freedoms protected by Articles 11, 16 and 52 of the Charter and by Article 10 of the ECHR, in so far as, according to the interpretation given by the Administrative Court of Appeal of Lyon, those provisions deprive it of the opportunity to highlight qualities of its product using information on its composition which is none the less accurate. (
29
) The French, Greek and Italian Governments and the Parliament, the Council and the Commission consider, on the contrary, that the relevant provisions of Directives 2000/13 and 2009/54 do not infringe the first subparagraph of Article 6(1) TEU, in conjunction with Articles 11(1) and 16 of the Charter, and, therefore, that the validity of those provisions is not affected.
39.
Above all, I have doubts as to the relevance of the request for an assessment of validity as formulated by the referring court. It seems to me unreasonable to consider that those provisions of Directives 2000/13 and 2009/54, which recasts Directive 80/777, might be invalid because the provisions of another measure, namely Regulation No 1924/2006 as interpreted by the Court, do not make a distinction, in this case as regards the form of the sodium to be taken into account in terms of the content of that nutrient in a foodstuff. In my view, it is exceptional for a question on the validity of a measure of EU law to be, as in this case, raised in a context in which possible incompatibility with the Charter would result from the cumulative effect of the provisions of several separate legislative measures. In addition, I would point out that the assessment of the validity of a measure which the Court undertakes on a reference for a preliminary ruling must normally be based on the factual and legal situation which existed at the time that measure was adopted. (
30
)
40.
Moreover, as the French Government and the Council point out, having regard to the subject-matter of the dispute in the main proceedings, (
31
) the scope of the second question referred is defined incorrectly. It is appropriate, in my view, to limit the assessment of validity brought before the Court to the provisions of the second subparagraph of Article 9(2) of Directive 2009/54 and Annex III thereto, the combined application of which is alone likely to be relevant in the present case. (
32
) As there is no specific requirement as regards indications relating to the sodium content of a foodstuff in Article 2(1) of Directive 2000/13, which sets out only rules ‘of a general nature applicable horizontally’, (
33
) the validity of the latter provision cannot be affected by the considerations set out by the referring court.
41.
I therefore consider that it is appropriate to reformulate the second question referred. In any event, I consider that Neptune Distribution’s claim that the measures of secondary legislation of the European Union are invalid on the basis of an alleged incompatibility with provisions of the Charter cannot be allowed in a context such as that at issue here, (
34
) in particular on the follow grounds.
2. The justification and proportionality of the restrictions in question
42.
There is no doubt that the provisions of Directive 2009/54 at issue constitute a restriction on the fundamental rights enshrined in Articles 11 and 16 of the Charter, since they restrict the possibility of companies marketing natural mineral waters to decide freely on the content of the claims which they use in their marketing messages relating to those products.
43.
However, it is settled case-law that the freedom to conduct a business guaranteed by Article 16 of the Charter is not an absolute right and that its use can therefore be validly restricted by the EU legislature. (
35
) The same applies to the freedom of expression and information protected by Article 11 of the Charter. (
36
) However, it is clear from Article 52(1) of the Charter, first, that ‘[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms’ and, secondly, that ‘[s]ubject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.
44.
In the first place, it seems to me that, in the present case, the statutory limitations resulting from application of the provisions at issue here do not affect the essential content of the freedom of expression and information and the freedom to conduct a business, recognised respectively in Articles 11 and 16 of the Charter. Although those provisions are intended to regulate and establish a framework for the use made of those freedoms, particularly as regards indications relating to sodium content in labelling and advertising for natural mineral waters, they are not such as to ‘undermin[e] the very substance’ of those freedoms, (
37
) since the persons to whom those rules are applicable retain the right to express themselves and to inform consumers, as well as the right to exercise their entrepreneurial activity within the framework defined in a measured way by EU law.
45.
In the second place, I recall that the principle of proportionality requires, according to the case-law of the Court, that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question, it being understood that, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. (
38
)
46.
With regard to the objectives of the provisions of Directive 2009/54, I note, like the Governments and institutions which made submissions to the Court, that the limitations which they introduce fulfil the ‘primary purposes … to protect the health of consumers, to prevent consumers from being misled and to ensure fair trading’. (
39
) A ‘high level’ of ‘human health protection’ and ‘consumer protection’ are legitimate objectives of general interest the achievement of which is sought by the European Union, as is reflected in several provisions of the FEU Treaty and the Charter. (
40
)
47.
With regard to the protection of consumers’ health, the link between that objective, which is enshrined in Article 35 of the Charter, and the adoption of Directive 2009/54 is clearly evident from the wording of its provisions, and in particular from recital 5 in the preamble thereto, cited above, and from Article 9(2) thereof.
48.
In that regard, the French Government and the Commission point out that the indication of a low salt (sodium chloride) content, in the labelling and/or advertising for natural mineral waters, could be perceived by purchasers as providing a nutritional benefit, while such an indication disregards the total sodium content, in spite of scientific advice recommending a reduction in sodium consumption for medical reasons. (
41
) On the other hand, Neptune Distribution criticises the provisions of secondary legislation for failing to make a distinction between sodium chloride, the excessive consumption of which is notoriously harmful to health, and the sodium bicarbonate present in some mineral waters. For its part, the referring court considers that ‘there is serious doubt as to the equivalence, in terms of risks for the health of persons suffering from hypertension and more generally for the European consumer, between the consumption of waters high in sodium bicarbonate and waters high in sodium chloride’, in particular in the light of various opinions given by the European Food Safety Authority (EASA). (
42
)
49.
I consider, on the one hand, that, given the current state of scientific knowledge, it is not possible to take a firm stance as to whether or not a high consumption of sodium in the form of sodium bicarbonate or in the form of sodium chloride is more harmful, in particular as regards high blood pressure. (
43
) Therefore, under the precautionary principle, (
44
) which the EU legislature has the obligation to take into account, (
45
) it seems to me appropriate to prohibit distributors of natural mineral waters from making use of an indication referring to a low salt (sodium chloride) content but omitting the total sodium intake which may result from the potentially high sodium bicarbonate content of those waters. Similarly, it is in my view necessary not to permit those distributors to refer, as Neptune Distribution wishes to do, to the differences between the various forms of sodium intakes in the indications relating to their products, because such a claim is likely to mislead consumers as to the possible benefits to their health of the consumption of sodium in forms other than table salt. (
46
)
50.
On the other hand, it is clear from the judgment in Deutsches Weintor (
47
) that, even though a claim might in itself be accurate, its prohibition is legitimate where that claim turns out to be piecemeal. In that case, having been requested to assess the validity of Regulation No 1924/2006, in particular with regard to Article 16 of the Charter, the Court held that provisions prohibiting without exception a producer or a distributor of wines from using a health claim of the type which was at issue in the main proceedings (
48
) were compatible with the first subparagraph of Article 6(1) TEU, since the claim was incomplete even though it could be accurate. (
49
) Accordingly, the EU legislature could correctly consider that it is necessary to avoid the use of possibly accurate but none the less ambiguous indications which deprive consumers of the ability to regulate their consumption in an informed manner, in that case in relation to alcoholic beverages and in the present case in relation the sodium content in natural mineral waters.
51.
With regard to information for consumers on the essential characteristics of products such as natural mineral waters, I note at the outset that compliance with that objective of general interest is in the present case closely related to that previously referred to, concerning the protection of human health, and that, therefore, some of the considerations set out above may also be relevant in that regard. Furthermore, it must be stated that the freedom of expression and information which is guaranteed by Article 11 of the Charter includes commercial information, in particular for advertising purposes, as is the case with Article 10 of the ECHR. (
50
)
52.
In the present case, it may be observed that although the parties which have made submissions to the Court rely on the common argument that it is necessary to protect consumers by means of precise and accurate information, they nevertheless formulate proposed answers which are diametrically opposed based on that same foundation. (
51
) In my opinion, having regard to the positions taken by the international bodies referred to above, (
52
) it is indeed necessary that distributors of natural mineral waters provide both clear and complete information on the total quantity of sodium contained in those waters, so that a reasonably circumspect consumer can with full knowledge of the facts make a choice among all the similar products offered to him, (
53
) which implies that there should be no confusion created in this connection, even if the information provided is accurate. (
54
)
53.
Finally, in relation to the adequacy of the means used by the EU legislature to achieve the two above-mentioned objectives, Neptune Distribution claims that the restrictions on the freedom of information and the freedom to conduct a business resulting from the provisions referred to in the second question are disproportionate to those objectives.
54.
However, in accordance with the case-law of the Court, ‘the Community legislature must be allowed a broad discretion in an area such as that involved in the present case, which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments’, so that ‘judicial review of the legality of those acts is necessarily limited’ and ‘the legality of a measure adopted in that area can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue’. (
55
)
55.
In particular, as to the assessment of highly complex scientific and technical facts in order to determine the nature and scope of the measures which the EU legislature adopts, in such a context, it is common ground that the European Union judicature cannot substitute its own assessment of such facts for that of the institutions on which alone the EC Treaty has placed that task. (
56
) It is also clear from the case-law that ‘the discretion enjoyed by the national authorities in determining the balance to be struck between freedom of expression and the abovementioned objectives varies for each of the goals justifying restrictions on that freedom and depends on the nature of the activities in question’ and it seems to me that the discretion allowed by the Court is broader as regards, in particular, the commercial — and accordingly for profit — use of the freedom of expression, especially in advertising messages. (
57
)
56.
In the present case, I consider that, having regard to the broad power to assess scientific and technical data which must be afforded to the EU legislature in this matter and having regard to the need for it to take into account the precautionary principle mentioned above, (
58
) it could reasonably take the view that the objectives legitimately pursued by the provisions of Directive 2009/54 at issue could not be achieved by measures less restrictive of the freedoms here relied upon, in the context of a commercial communication, by Neptune Distribution.
57.
Moreover, like the French Government, the Parliament, the Council and the Commission, I note that the restriction of those freedoms is actually moderate, since distributors of natural mineral waters remain free to provide information to consumers on the composition of those waters, and in particular their low sodium content, by using, in their labelling or advertising, the indications which are expressly authorised by the EU legislature, namely those set out in Annex III to Directive 2009/54, or any indications which are allowed by the legislatures of the Member States. (
59
)
58.
In view of all the foregoing considerations, I am of the opinion that, by adopting the provisions of the second subparagraph of Article 9(2) of Directive 2009/54 and Annex III thereto, the EU legislature did not exceed the limits which observance of the principle of proportionality imposes with regard to Articles 11, 16 and 52(1) of the Charter.
V – Conclusion
59.
In the light of the foregoing considerations, I propose that the Court answer the questions raised by the Conseil d’État (France) as follows:
(1)
The provision in the Annex to Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods relating to the conditions for allowing the nutrition claim ‘low in sodium/salt’ is not intended to apply to natural mineral waters. On the other hand, that annex expressly prohibits use of the claim ‘very low in sodium/salt’ for natural mineral waters.
(2)
The provisions of the second subparagraph of Article 9(2) of and Annex III to Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters are valid.
(
1
)   Original language: French.
(
2
)   OJ 2007 L 404, p. 9, and Corrigendum, OJ 2007 L 12, p. 3.
(
3
)   Although the Court has already interpreted several provisions of Regulation No 1924/2006, it has never been required to give a ruling in connection with that annex.
(
4
)   Sodium as contained in the list of ‘nutrients’ set out in Article 2(2) of Regulation No 1924/2006.
(
5
)   OJ 2000 L 109, p. 29.
(
6
)   OJ 2009 L 164, p. 45. That directive, applicable from 16 July 2009, recast and repealed Council Directive 80/777/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to the exploitation and marketing of natural mineral waters (OJ 1980 L 229, p. 1).
(
7
)   Regulation of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18).
(
8
)   See footnote 6 of this Opinion.
(
9
)   Article R. 112-7 of the Consumer Code transposes Article 2 of Directive 2000/13 into French law. In the version in force from 25 November 2005 to 13 December 2014, it provided, in the first paragraph thereof, that ‘[t]he labelling and methods used must not be such as could create confusion in the mind of the purchaser or consumer, particularly as to the characteristics of the foodstuff and, in particular, as to its … properties, composition’ and, in the fourth paragraph thereof, that ‘[t]he prohibitions or restrictions referred to above shall also apply to the advertising and the presentation of foodstuffs’.
(
10
)   See point 11 of this Opinion. Those two claims are permitted only where the product contains no more than a defined quantity of sodium (respectively ‘0.12 g’ and ‘0.04 g’ of sodium ‘per 100 g or per 100 m’) or the equivalent value for salt of that quantity of sodium.
(
11
)   Neptune Distribution argues that another method of calculating the equivalent value for salt would be inappropriate, because, in natural mineral waters, sodium is mainly associated with bicarbonate and only a small portion of the sodium is associated which chlorides to form salt.
(
12
)   The practical result of that latter interpretation would be that the distributor of a natural mineral water low in sodium chloride but high in sodium bicarbonate could not make use of an indication relating to the low salt (or sodium chloride) content of its product, since even if it were accurate, such an indication would be such as could create in the mind of purchasers confusion as to the total sodium content of that water.
(
13
)   The French Government points out that, in the main proceedings, both the first instance and appeal courts considered that the decision which prohibited the indications at issue was wrongly based on Regulation No 1924/2006, but that it could be justified under Directive 80/777, now Directive 2009/54. It notes that the referring court does not call into question that analysis, but nevertheless raises its first question because it considers that the provisions which are in its view applicable in the present case — namely Article 2(1) of Directive 2000/13 and Article 9(1) and (2) of Directive 2009/54 and Annex III thereto — should be read in the light of the concept of ‘the equivalent value for salt’ set out in the Annex to Regulation No 1924/2006 (see point 37 of this Opinion).
(
14
)   As defined in Article 2(2)(4) and (5) of that regulation. Concerning the differences between those two categories of claims and the relationship between the provisions relating thereto, see, in particular, the judgment in Ehrmann (C‑609/12, EU:C:2014:252, paragraph 25 et seq.).
(
15
)   The Greek Government argues that it cannot under any circumstances be argued that the concept of nutrition claim, within the meaning of Regulation No 1924/2006, is different from the concept of labelling which is governed by Directive 2009/54, since, ultimately, they are concerned with the protection of the same legal interests, namely both consumer and health protection and the protection of the free movement of goods and healthy competition.
(
16
)   A specific treatment is also reserved for natural mineral waters in Directive 2000/13 (see Article 2(1)(b)) and Regulation No 1169/2011, which replaces that directive (see the references to the priority of the provisions of EU law specific to natural mineral waters contained in Articles 7 and 29 of that regulation and Annex V thereto).
(
17
)   By combined application of those provisions of Directive 2009/54, the indication ‘suitable for a low-sodium diet’ can be used for natural mineral waters having a ‘sodium content less than 20 mg/l’, a criterion which does not refer to any equivalent value for salt. I note that that indication, the content of which is perfectly clear for the average consumer, concerns not only a relative value for sodium intake but also, by reference to the diet referred to, an absolute value for that intake.
(
18
)   This is also explained by the fact that, chemically speaking, natural mineral waters contain no salt (sodium chloride) as such. As the French Government and the Council have pointed out, natural mineral waters are likely to contain the mineral elements sodium, bicarbonate and chloride only separately and not the compounds which the latter may form, such as sodium bicarbonate or sodium chloride, since ions of each of those elements are dissolved in those liquids.
(
19
)   The Parliament and the Council have taken a position only on the answer to be given to the second question. However, some elements in their observations also provide useful clarification as regards the first question referred.
(
20
)   See footnote 10 of this Opinion.
(
21
)   I would recall that the directive makes references only to the ‘sodium’ present in those waters (see Annex III).
(
22
)   According to recital 37 in the preamble to Regulation No 1169/2011, ‘[in order] that the final consumer easily understands the information provided on the labelling’, it is ‘appropriate to use on the labelling the term “salt” instead of the corresponding term of the nutrient “sodium”’. Moreover, point 11 of Annex I thereto states, in terms of the ‘nutrition declaration’ imposed by that regulation, that the ‘the salt equivalent content [must be] calculated using the formula: salt = sodium × 2.5’ and the Commission document entitled ‘Questions and Answers on the application of the Regulation (EU) No 1169/2011’, dated 31 January 2013, adds that ‘the total sodium content of the food product’ must be taken into account in that regard (see point 3.25).
(
23
)   See, in particular, recitals 1, 2, 9 and 10 in the preamble to and Article 1(1) of that regulation, as well as point 6 of the explanatory memorandum to the proposal [COM(2003) 424 final] which led to its adoption.
(
24
)   The Council refers, inter alia, to guidelines of the Codex Alimentarius — a joint body of the Food and Agriculture Organisation of the United Nations (FAO) and the World Health Organisation (WHO) –, the first ‘on nutrition labelling’ (CAC/GL 2-1985, as revised in 2013) and the second ‘for use of nutrition and health claims’ (CAC/GL 23-1997 as revised in 2004). I note that recital 7 in the preamble to Regulation No 1924/2006 expressly refers to the latter.
(
25
)   The Parliament cites, in particular, a WHO document entitled ‘Reducing salt intake in populations: report of a WHO forum and technical meeting, 5-7 October 2006, Paris, France’ (accessible at the following Internet address: http://apps.who.int/iris/handle/10665/43653), which states that ‘[f]or the purpose of ... this report, ... the word salt was used to refer to sodium and sodium chloride intake. The term limitation of dietary salt intake implies the reduction of total sodium intake from all dietary sources’ (p. 4, emphasis in original).
(
26
)   On the content of that freedom, see ‘Explanations relating to the Charter of Fundamental Rights’ (OJ 2007 C 303, p. 17), which must — in accordance with the third paragraph of Article 6(1) TEU and Article 52(7) of the Charter — be taken into account when interpreting that freedom.
(
27
)   It is clear from Article 52(3) of the Charter that in so far as the Charter contains rights which correspond to rights guaranteed by the ECHR, the meaning and scope of those rights shall be the same as those laid down by that Convention, though that principle is not to prevent Union law providing more extensive protection. I would point out that that provision is relevant with regard to Article 11 of the Charter, whose content corresponds to that of Article 10 of the ECHR, but not with regard to Article 16, which has no equivalent in the ECHR.
(
28
)   The referring court explains that ‘equivalence’ noting that, in order to define the thresholds below which the claims ‘low [or] very low in sodium/salt’ are allowed, the Annex to Regulation No 1924/2006 refers, without distinction, to the sodium content of a foodstuff or to its ‘equivalent value for salt’.
(
29
)   Since a natural mineral water may contain not sodium chloride (salt), but only chloride ions or sodium ions which are present independently of each other (see footnote 18 of this Opinion), it seems to me that the indications at issue in the main proceedings are inaccurate.
(
30
)   See judgment in SAM Schiffahrt and Stapf (C‑248/95 and C‑249/95, EU:C:1997:377, paragraph 46).
(
31
)   That Government points out, correctly, that the doubts of the referring court concern only the validity of the prohibition on indicating the low-salt or sodium chloride content of a natural mineral water high in sodium bicarbonate, and not the validity of the general prohibition on labelling likely to mislead the consumer or attributing to a foodstuff effects or properties which it does not possess.
(
32
)   I consider that Article 9(1) and the first subparagraph of Article 9(2) are wrongly referred to by the referring court, since only the second subparagraph of Article 9(2) refers to Annex III to Directive 2009/54, which alone contains the authorised indications and the criteria for their application that are in fact the subject-matter of the second question referred.
(
33
)   See recitals 4 and 5 in the preamble to Directive 2000/13. In accordance with recital 8 in the preamble to Directive 2009/54, the latter sets out ‘the [necessary] additions [to] and derogations’ from the ‘general rules’ laid down by Directive 2000/13.
(
34
)   By way of comparison, in the judgment in Digital Rights Ireland and Others (C‑293/12 and C‑594/12, EU:C:2014:238), the implications of the interferences which led the Court to declare that the directive at issue in that case was invalid, on grounds of a lack of proportionality, were of a completely different significance.
(
35
)   See in particular the Opinion of Advocate General Mazák in Deutsches Weintor (C‑544/10, EU:C:2012:189, point 66 et seq.) and the judgment in Sky Österreich (C‑283/11, EU:C:2013:28, paragraph 45 and the case-law cited).
(
36
)   See judgments in Schmidberger (C‑112/00, EU:C:2003:333, paragraph 79) and Damgaard (C‑421/07, EU:C:2009:222, paragraph 26). The explanations relating to Article 11 of the Charter, referred to above, state that the legal limitations imposed on the right to freedom of expression which is guaranteed thereby must respect the conditions set out in Article 10(2) of the ECHR.
(
37
)   See, in particular, judgments in Karlsson and Others (C‑292/97, EU:C:2000:202, paragraph 45 et seq.); Deutsches Weintor (C‑544/10, EU:C:2012:526, paragraphs 54 and 57), and Digital Rights Ireland and Others (C‑293/12 and C‑594/12, EU:C:2014:238, paragraphs 39 and 40).
(
38
)   See, in particular, judgment in Schaible (C‑101/12, EU:C:2013:661, paragraph 29 and the case-law cited).
(
39
)   See recital 5 in the preamble to Directive 2009/54.
(
40
)   Following on from Articles 9 and 12 TFEU (laying down provisions of general application) and Article 114(3) TFEU (relating to the approximation of the laws of the Member States), Articles 168(1) and 169(1) TFEU confirm that a ‘high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities’ as well as a ‘high level of consumer protection’, provisions whose content was elevated to the status of ‘principles’, respectively in Articles 35 and 38 of the Charter (see ‘Explanations relating to the Charter’, above).
(
41
)   The French Government argues that the results of the international research gathered by various health authorities, in particular the WHO, lead to the establishment of a direct link between excessive sodium consumption and the risks of arterial hypertension and cardiovascular and renal pathologies associated with that risk.
(
42
)   According to the order for reference, it is clear from the documents in the file before the national court, and in particular from an opinion of the EFSA dated 21 April 2005, that an increase in arterial tension is the main undesirable effect identified in relation to a high sodium intake. Although sodium is mainly responsible for this, chloride ions also play a role in the increase in arterial tension associated with significant salt consumption. Several studies show that a diet high in sodium bicarbonate does not have the same undesirable effect as a diet high in sodium chloride for persons suffering from hypertension. In an opinion published in June 2011, the EFSA refused to include in the list of authorised health claims under Article 13(3) of Regulation No 1924/2006, the claim that sodium bicarbonate does not have an undesirable effect on arterial tension, on the ground that the study produced in support of that claim was not accompanied by adequate methodological guarantees, but, according to the referring court, that circumstance alone does not allow it to be asserted that sodium bicarbonate must be regarded as capable of bringing about or aggravating arterial hypertension in the same way and in the same proportions as sodium chloride.
(
43
)   The content of the article produced by Neptune Distribution (Helwig, J.‑J., ‘À l’instar du chlorure de sodium, le bicarbonate de sodium doit-il être considéré comme pouvant induire ou aggraver l’hypertension artérielle?’, Médecine et nutrition, 2008, Volume 44, No 1, pp. 29 to 37) seems to me not to be decisive in that regard, since it is established neither that that publication comes from a recognised scientific authority, nor that it is a reflection of the current medical consensus. Moreover, its author himself states that that article ‘is intended not to resolve [the] question [which is raised in its title] but rather to review, as objectively as possible, the experimental data generated in this field ... over the past two decades’ (‘n’a pas la prétention de trancher [la] question [qui est posée dans son intitulé] mais plutôt de faire, le plus objectivement possible, le point sur les données expérimentales générées dans ce domaine ... au cours des deux dernières décennies’).
(
44
)   It is clear from that principle, as interpreted by the Court, that ‘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’ and that it is sufficient that ‘the likelihood of real harm to public health persists should the risk materialise’ (judgment in Acino v Commission, C‑269/13 P, EU:C:2014:255, paragraphs 57 and 58 and the case-law cited), in particular in the light of the ‘most reliable scientific data available and the most recent results of international research’ (judgment in Afton Chemical, C‑343/09, EU:C:2010:419, paragraph 60).
(
45
)   See, in particular, judgment in Alliance for Natural Health and Others (C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 68 and the case-law cited).
(
46
)   The French Government observes, rightly, that an indication emphasising the low salt (sodium chloride) content of a natural mineral water also very high in sodium bicarbonate is likely to conceal the significant intake of sodium from such water and is thus likely to encourage excessive consumption of that water which may lead to a daily intake of sodium in excess of the standard recommended by the WHO.
(
47
)   C‑544/10, EU:C:2012:526.
(
48
)   The Court ruled that the concept of ‘health claim’ within the meaning of that regulation, which is normally prohibited for alcoholic beverages, covers a description such as ‘easily digestible’ that is accompanied by a reference to the reduction of acids, substances which are frequently perceived as being harmful by consumers (ibid., paragraph 41).
(
49
)   The Court noted that even if the claim at issue can be regarded as being substantively correct, the fact remains that it is incomplete and therefore ambiguous or even misleading, in that it emphasises the easily digestible nature of the wine concerned while being silent as to the fact that the dangers inherent in the consumption of alcoholic beverages are not in any way removed, or even limited by a sound digestion (ibid., paragraph 50 et seq.). Similarly, in the judgment in Teekanne (C‑195/14, EU:C:2015:361, paragraphs 36 to 41), the Court noted that the labelling of a foodstuff, viewed as a whole, may be such as to mislead the average consumer despite the fact that the list of ingredients contained in it is accurate.
(
50
)   See, in particular, the judgments in Germany v Parliament and Council (C‑380/03, EU:C:2006:772, paragraph 155) and Damgaard (C‑421/07, EU:C:2009:222, paragraph 27 and the case-law cited), as well as the judgment of the European Court of Human Rights in Hachette Filipacchi Presse Automobile and Dupuy
v. France, no. 13353/05, § 30 and the case-law cited, 5 March 2009.
(
51
)   Thus, Neptune Distribution argues that disseminating ‘accurate’ (see my reservations expressed in footnote 29 of this Opinion) information on the composition of a natural mineral water high in sodium bicarbonate but low in sodium chloride contributes to the protection of consumers by helping them to choose the components of their diet well, while the French Government maintains that the restrictions laid down by Directives 2000/13 and 2009/54 in relation to indications such as those at issue in the main proceedings are appropriate and necessary in order to allow consumers to make an informed choice which best matches their nutritional needs.
(
52
)   Inter alia, WHO and EFSA opinions referred to in footnotes 25 and 42 of this Opinion.
(
53
)   Even though Regulation No 1169/2011 is not applicable in the present case (see point 7 of this Opinion), I think it is useful to emphasise that the concern to provide consumers with the best information to enable them to ‘make informed choices’ in relation to food appears repeatedly in that regulation, in particular with regard to nutritional elements such as sodium (see in particular recitals 3, 4, 10, 34, 36 and 37 as well as Articles 3(1) and 4). See also the Commission’s white paper, entitled ‘A Strategy for Europe on Nutrition, Overweight and Obesity related health issues’ [COM(2007) 279 final, p. 5 et seq.].
(
54
)   See point 50 of this Opinion and, by analogy, the judgment of the European Court of Human Rights in Markt intern Verlag GmbH and Klaus Beermann
v. Germany, 20 November 1989, § 35, Series A no. 165.
(
55
)   See, in particular, judgments in Alliance for Natural Health and Others (C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 52); Germany v Parliament and Council (C‑380/03, EU:C:2006:772, paragraph 145 and the case-law cited), and Etimine (C‑15/10, EU:C:2011:504, paragraph 125 and the case-law cited), emphasis added.
(
56
)   See judgments in Nickel Institute (C‑14/10, EU:C:2011:503, paragraph 60) and Etimine (C‑15/10, EU:C:2011:504, paragraph 60 and the case-law cited).
(
57
)   See, in particular, judgments in Germany v Parliament and Council (C‑380/03, EU:C:2006:772, paragraph 155) and Damgaard (C‑421/07, EU:C:2009:222, paragraph 27), as well as my Opinion in Novo Nordisk (C‑249/09, EU:C:2010:616, point 46 et seq.). Similarly, the European Court of Human Rights exercises its power of review in a weighted manner and it allows a margin of discretion the extent of which varies depending on the types of use of the freedom of expression and their context, the margin allowed being clearly more extensive in business contexts (see, in particular, judgments in Ahmed and Others
v. the United Kingdom, § 61, Reports of Judgments and Decisions 1998-VI and Remuszko
v. Poland, no. 1562/10, § 64 and the case-law cited, 16 July 2013).
(
58
)   See point 49 of this Opinion.
(
59
)   In that regard, the Council and the Commission point out that the indications which are provided for in Annex III make it possible to inform the consumer as regards both the general level of mineralisation of a natural mineral water (see, for example, the indication ‘rich in mineral salts’) and the characteristic elements of the water (see, for example, the indications ‘contains bicarbonate’, ‘contains chloride’ and ‘contains sodium’) or the suitability of the water for a specific diet (with the indication ‘suitable for a low-sodium diet’, which is the most appropriate in my opinion, provided that the natural mineral water in question has a sodium content of less than 20 mg/l as required by that provision). They add, correctly, that the fact that none of the Member States has made use of the option — provided for in the third subparagraph of Article 9(2) of Directive 2009/54 — to authorise indications other than those listed in Annex III is concrete evidence that the contested rules are in themselves suitable for ensuring that useful information is provided to the consumer by distributors of natural mineral waters. Moreover, the Parliament rightly highlights that that option constitutes an element of flexibility confirming that the statutory scheme put in place by the EU legislature complies with the principle of proportionality.