Commission communication concerning State involvement in the promotion of agricultural and fisheries products



Official Journal C 272 , 28/10/1986 P. 0003 - 0005



Commission communication concerning State involvement in the promotion of agricultural and fisheries products(86/C 272/03) The Director-General for Agriculture wrote to the Permanent Representatives of the Member States of the Community on 18 February 1985 drawing attention to certain matters relating to the involvement of Member States in the promotion of agricultural products, in particular the fact that the Court of Justice had held in Case 222/82 (Apple & Pear Development Council) that in certain circumstances these promotional campaigns could infringe Article 30 of the EEC Treaty. Governments of Member States were requested to supply details of their involvement in these promotional campaigns, which request was subsequently complied with. Nine of the ten Member States to which the request of the Commission's services was addressed admitted that their public authorities were involved in the promotion of agricultural products on their domestic markets and they all maintained that the campaigns resulting from this involvement did not overstep the limits laid down by the Court of Justice in Case 222/82. The Commission has, since receiving the Member States answers, carried out an examination of examples of the relevant publicity material. The Commission has noted that much of this material places emphasis on the national origin of the product being promoted, in particular by the use of the name of the Member State, national flag or other national emblem. The Commission has also noted that in some Member States fisheries products are promoted in an analogous way to agricultural products. Although the Commission recognizes that the involvement of the Member States in the promotion of agricultural and fisheries products can be beneficial as far as Community policies in those sectors are concerned, it nevertheless fears that some of the campaigns presently being organized on Member States' domestic markets may overstep the limits permitted by the case-law of the Court of Justice. The Commission has therefore felt it to be appropriate to draw up the guidelines to Member States on this matter which are annexed. The Commission is of the opinion that compliance with these guidelines in respect of campaigns promoting agricultural and fisheries products should avoid breaches of Article 30 of the EEC Treaty. The Commission reserves the right to lay down further guidelines in the future if circumstances require, and to open Article 169 proceedings if promotional campaigns transgress Article 30. This communication is without prejudice to the position of the Commission with regard to other aspects of Community law affecting this subject matter, notably the provisions of the EEC Treaty governing State aid. ANNEX GUIDELINES FOR MEMBER STATES' INVOLVEMENT IN PROMOTION OF AGRICULTURAL AND FISHERIES PRODUCTS - ARTICLE 30 ASPECTS 1. Introduction It is clear from the Jurisprudence of the Court of Justice notably in cases 249/81 ('buy Irish') and 222/82 (Apple and Pear Development Council) that direct or indirect involvement of Member States in promotional campaigns for agricultural products on their national markets may in certain criteria are not respected involve a breach of Article 30 of the EEC Treaty. The Commission is aware that many such campaigns presently exist within the Community and considers it appropriate to issue the following guidelines to the Member States. In the interpretation of these guidelines the intention or implied intention of promotional material is to be judged by the 'message' put over by that material through both words and visual images. 2. Guidelines 2. 1. Promotional actions which are clearly not open to objection under Article 30. 2. 1. 1. Export promotional campaigns organized directly or indirectly by one Member State on the market of another Member State. 2. 1. 2. Promotional campaigns organized on the home market of a Member State which advertise the product in a purely generic manner making no reference whatsoever to its national origin. 2. 1. 3. Campaigns on the home market promoting specific qualities or varieties of products even though they are typical of national production. (These are campaigns which make no specific references to the national origin of the product other than which may be evident from the references made to the qualities or varieties concerned or to the normal designation of the product) . 2. 2. Promotional actions which clearly infringe Article 30 2. 2. 1. Promotional campaigns which advise consumers to buy national products solely because of their national origin. 2. 2. 2. promotional campaigns intended to discourage the purchase of products from other Member States or disparage those products in the eyes of consumers (negative promotion) . Positive statements about a Member State's product should not be phrased in such a way to imply that other Member State's products are necessarily inferior. 2. 3. Promotional campaigns on a Member State's home market which, because of the references made to the national origin of the products may, unless certain restraints are observed, be open to objection under Article 30 2. 3. 1. Promotional campaigns drawing attention to the varietis or qualities of products produced within a Member State are not in practice limited to national or regional specialities and frequently draw attention to the particular qualities of products produced within a Member State and the national origin of the products, even though those products and their qualities are similar to those of products produced elsewhere. If undue emphasis is placed on the national origin of the product in such promotional campaigns there is a danger of breach of Article 30. The Commission therefore requests Member States to ensure particularly that the following guideline is strictly respected. Identification of the producing country by word or symbol may be made providing that a reasonable balance between references, on the one hand to the qualities and varieties of the product and, on the other hand, its national origin is kept. The references to national origin should be subsidiary to the main message put over to consumers by the campaign and not constitute the principal reason why consumers are being advised to buy the product. 2. 3. 2. Qualities of the products which it is permissible to mention include taste, aroma, freshness, maturity, value for money, nutritional value, varieties available, usefulness (recipes, etc. ) . To be avoided are superlatives such as 'the best', 'the tastiest', 'the finest' and expressions such as 'the real thing' or promotional campaigns which, because of the mention of the national origin, result in the product promoted being compared with the products of other Member States. References to quality control should only be made where the product is subjected to a genuine and objective system of control of its qualities. 2. 3. 3. Certain promotional campaigns mentioning the national origin of agricultural products may, even though they respect the abovementioned criteria, nevertheless infringe Article 30 of the EEC Treaty if they reflect a considered intention of a Member State to substitute domestic products for products imported from other Member States (see case No 249/81 Commission v. Ireland (1982) ECR P. 4005 and following particularly P. 4022 ground No 23) Such an intention may for example be presumed from the massive nature of a particular promotional campaign.