COMMON POSITION (EC) No 1/2000

adopted by the Council on 28 October 1999

with a view to adopting Directive 2000/.../EC of the European Parliament and of the Council relating to cocoa and chocolate products intended for human consumption

(2000/C 10/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the Economic and Social Committee(2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),

Whereas:

(1) Certain vertical directives relating to foods should be simplified in order to take account only of the essential requirements to be met by the products they cover in order that those products may move freely within the internal market, in accordance with the conclusions of the European Council held in Edinburgh on 11 and 12 December 1992, confirmed by those of the European Council in Brussels on 10 and 11 December 1993;

(2) Council Directive 73/241/EEC of 24 July 1973 on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption(4) was warranted by the fact that differences between national laws on several kinds of cocoa and chocolate products could hinder the free movement of this product, and thereby have a direct effect on the establishment and functioning of the common market;

(3) The aforesaid Directive was consequently designed to lay down definitions and common rules in respect of the composition, manufacturing specifications, packaging and labelling of cocoa and chocolate products so as to ensure their free movement within the Community;

(4) Those definitions and rules should be amended to take account of technological progress and changes in consumer tastes, and should be brought into line with general Community legislation on foodstuffs, in particular legislation on labelling, sweeteners and other authorised additives, flavourings, extraction solvents and methods of analysis;

(5) The addition to chocolate products of vegetable fats other than cocoa butter, up to a maximum of 5 %, is permitted in certain Member States;

(6) The addition of certain vegetable fats other than cocoa butter to chocolate products, up to a maximum of 5 %, should be permitted in all Member States; those vegetable fats should be cocoa butter equivalents and therefore be defined according to technical and scientific criteria;

(7) In order to guarantee the single nature of the internal market, all chocolate products covered by this Directive must be able to move within the Community under the sales names set out in the provisions of Annex I to this Directive;

(8) Pursuant to the general food-labelling rules set out in Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs(5), in particular a listing of ingredients in accordance with Article 6 thereof is compulsory; this Directive makes Directive 79/112/EEC applicable to cocoa and chocolate products in order to provide consumers with correct information;

(9) In the case of chocolate products to which vegetable fats other than cocoa butter have been added, consumers should be guaranteed correct, neutral and objective information in addition to the list of ingredients;

(10) On the other hand, Directive 79/112/EEC does not preclude the labelling of chocolate products to indicate that vegetable fats other than cocoa butter have not been added, provided the information is correct, neutral, objective, and does not mislead the consumer;

(11) Certain sales names which are reserved by this Directive are in fact used in composite sales names which are recognised in certain Member States to describe products which could not be confused with those defined in this Directive; such descriptions should therefore be maintained; however, the use of such names should comply with the provisions of Directive 79/112/EEC and, in particular, with Article 5 thereof;

(12) The development of the internal market since the adoption of Directive 73/241/EEC enables "plain chocolate" to be treated on the same basis as "chocolate";

(13) The derogation provided for in Directive 73/241/EEC allowing the United Kingdom and Ireland to authorise the use on their territory of the name "milk chocolate" to designate "milk chocolate with high milk content" should be maintained; however, the English name "milk chocolate with high milk content" should be replaced with the name "family milk chocolate";

(14) Pursuant to the principle of proportionality, this Directive restricts itself to what is necessary in order to achieve the objectives of the Treaty, in accordance with the third paragraph of Article 5 thereof;

(15) When this Directive is adapted in the future to general Community provisions on foodstuffs, and when certain provisions are adapted to technical progress, the Commission will be assisted by the Standing Committee on Foodstuffs, set up by Council Decision 69/414/EEC(6);

(16) To avoid creating new barriers to free circulation, Member States should refrain from adopting, for the products in question, national provisions not provided for by this Directive,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

This Directive shall apply to the cocoa and chocolate products intended for human consumption, as defined in Annex I.

Article 2

1. The vegetable fats other than cocoa butter as defined in Annex II and listed therein may be added to those chocolate products defined in section A, items 3, 4, 5, 6, 8 and 9 of Annex I. That addition may not exceed 5 % of the finished product, after deduction of the total weight of any other edible matter used in accordance with section B of Annex I, without reducing the minimum content of cocoa butter or total dry cocoa solids.

2. Chocolate products which, pursuant to paragraph 1, contain vegetable fats other than cocoa butter may be marketed in all of the Member States, provided that their labelling, as provided for in Article 3, is supplemented by a conspicuous and clearly legible statement: "contains vegetable fats in addition to cocoa butter". This statement shall be in the same field of vision as the list of ingredients, clearly separated from that list, in lettering at least as large and in bold with the sales name nearby; notwithstanding this requirement, the sales name may also appear elsewhere.

3. Any amendments to Annex II shall be made in accordance with the procedure laid down in Article 95 of the Treaty.

4. At the latest by ...(7) the Commission shall, in accordance with Article 95 of the Treaty, submit, if necessary and taking into account the results of an appropriate study on this Directive's impact on the economies of those countries producing cocoa and vegetable fats other than cocoa butter, a proposal intended to amend the list in Annex II.

Article 3

Directive 79/112/EEC shall apply to the products defined in Annex I, subject to the following conditions:

1. The sales names listed in Annex I shall apply only to the products referred to therein and must be used in trade to designate them.

However, those sales names may also be used additionally and in accordance with the provisions or customs applicable in the Member State in which the product is sold to the final consumer, to designate other products which cannot be confused with those defined in Annex I.

2. Where the products defined in section A, items 3, 4, 5, 6, 7 and 10 of Annex I are sold in assortments, the sales names may be replaced by "assorted chocolates" or "assorted filled chocolates" or similar names. In that case, there may be a single list of ingredients for all the products in the assortment.

3. The labelling of the cocoa and chocolate products defined in section A, items 2(c) and (d) and items 3, 4, 5, 8 and 9 of Annex I must indicate the total dry cocoa solids content by including the words: "cocoa solids: ... % min.".

4. For the products referred to in section A, item 2(b) and in the second part of the sentence of section A, item 2(d) of Annex I, the labelling must indicate the cocoa butter content.

5. The sales names "chocolate", "milk chocolate" and "couverture chocolate" specified in Annex I may be supplemented by information or descriptions relating to quality criteria provided that the products contain:

- in the case of chocolate: not less than 43 % total dry cocoa solids, including not less than 26 % cocoa butter,

- in the case of milk chocolate: not less than 30 % total dry cocoa solids and not less than 18 % dry milk solids obtained by partly or wholly dehydrating whole milk, semi- or full-skimmed milk, cream, or from partly or wholly dehydrated cream, butter or milk fat, including not less than 4,5 % milk fat,

- in the case of couverture chocolate: not less than 16 % of dry non-fat cocoa solids.

Article 4

For the products defined in Annex I, Member States shall not adopt national provisions not provided for by this Directive.

Article 5

1. The following shall be decided in accordance with the procedure laid down in Article 6:

- bringing this Directive into line with general Community provisions applicable to foodstuffs,

- adaptation of the provisions in Annex I, section B.2 and sections C and D to technical progress.

2. At the latest by ...(8), without prejudice to Article 2(3), the European Parliament and the Council shall re-examine, on a proposal from the Commission, the second indent of paragraph 1 of this Article, with a view to possible extension of the procedure of adaptation to technical and scientific progress.

Article 6

1. The Commission shall be assisted by the regulatory committee, the Standing Committee on Foodstuffs, hereinafter referred to as the "Committee", composed of representatives of the Member States and chaired by a representative of the Commission.

2. The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 205(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the Committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

3. If the European Parliament indicates, in a resolution setting out the grounds on which it is based, that draft implementing measures, the adoption of which is contemplated and which have been submitted to the Committee pursuant to this Directive would exceed the implementing powers provided for in this Directive, the Commission shall re-examine the draft measures. Taking the resolution into account and within the timelimits of the procedure under way, the Commission may submit new draft measures to the Committee, continue with the procedure or submit a proposal to the European Parliament and the Council on the basis of the Treaty.

The Commission shall inform the European Parliament and the Committee of the action which it intends to take on the resolution of the European Parliament and of its reasons for doing so.

4. The Commission shall, without prejudice to paragraph 3, adopt the measures envisaged if they are in accordance with the opinion of the Committee.

5. If the measures envisaged are not in accordance with the opinion of the Committee, or if no opinion is delivered, the Commission shall, without delay, submit to the Council a proposal relating to the measures to be taken and shall inform the European Parliament.

6. It the European Parliament considers that a proposal submitted by the Commission pursuant to this Directive exceeds the implementing powers provided for in this Directive, it shall inform the Council of its position.

7. The Council may, where appropriate, in view of any such position, act by qualified majority on the proposal, within a period of three months from the date of referral to the Council.

If within that period the Council has indicated by qualified majority that it opposes the proposal, the Commission shall re-examine it. It may submit an amended proposal to the Council, re-submit its proposal or present a legislative proposal on the basis of the Treaty.

If on the expiry of that period the Council has neither adopted the proposed implementing act nor indicated its opposition to the proposal for implementing measures, the proposed implementing act shall be adopted by the Commission.

Article 7

Council Directive 73/241/EEC is hereby repealed with effect from ...(9).

References to the repealed Directive shall be construed as references to this Directive.

Article 8

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before ...(10). They shall immediately inform the Commission thereof.

2. These measures shall be applied so as to:

- authorise the marketing of the products defined in Annex I if they conform to the definitions and rules laid down in this Directive, with effect from ...(11),

- prohibit the marketing of products which fail to conform to this Directive, with effect from ...(12).

However, the marketing of products failing to comply with this Directive but labelled before ...(13) in accordance with Council Directive 73/241/EEC shall be permitted until stocks are exhausted.

3. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

Article 9

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 10

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 231, 9.8.1996, p. 1 and OJ C 118, 17.4.1998, p. 10.

(2) OJ C 56, 24.2.1997, p. 20.

(3) Opinion of the European Parliament of 28 October 1997 (OJ C 339, 10.11.1997, p. 123), Council common position of 28 October 1999 and decision of the European Parliament of ... (not yet published in the Official Journal).

(4) OJ L 228, 16.8.1973, p. 23. Directive as last amended by Directive 89/344/EEC (OJ L 142, 25.5.1989, p. 19).

(5) OJ L 33, 8.2.1979, p. 1. Directive as last amended by European Parliament and Council Directive 97/4/EC (OJ L 43, 14.2.1997, p. 21).

(6) OJ L 291, 19.11.1969, p. 9.

(7) 66 months after the date of entry into force of this Directive.

(8) 36 months after the entry into force of this Directive.

(9) 36 months after the entry into force of this Directive.

(10) 36 months after the entry into force of this Directive.

(11) 36 months after the entry into force of this Directive.

(12) 36 months after the entry into force of this Directive.

(13) 36 months after the entry into force of this Directive.

ANNEX I

SALES NAMES, DEFINITIONS AND CHARACTERISTICS OF THE PRODUCTS

A. SALES NAMES AND DEFINITIONS

1. Cocoa butter

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2. (a) Cocoa powder, cocoa

designate the product obtained by converting into powder cocoa beans which have been cleaned, shelled and roasted, and which contains not less than 20 % cocoa butter, calculated according to the weight of the dry matter, and not more than 9 % water,

(b) Fat-reduced cocoa, fat-reduced cocoa powder

designate cocoa powder containing less than 20 % cocoa butter, calculated according to the weight of the dry matter,

(c) Powdered chocolate, chocolate in powder

designate the product consisting of a mixture of cocoa powder and sugars, containing not less than 32 % cocoa powder,

(d) Drinking chocolate, sweetened cocoa, sweetened cocoa powder

designate the product consisting of a mixture of cocoa powder and sugars, containing not less than 25 % cocoa powder; these names shall be accompanied by the term "fat-reduced" in the case where the product is fat-reduced as defined at (b) above.

3. Chocolate

(a) designates the product obtained from cocoa products and sugars which, subject to (b), contains not less than 35 % total dry cocoa solids, including not less than 18 % cocoa butter and not less than 14 % of dry non-fat cocoa solids,

(b) however, where this name is supplemented by the words:

- "vermicelli" or "flakes": the product presented in the form of granules or flakes must contain not less than 32 % total dry cocoa solids, including not less than 12 % cocoa butter and not less than 14 % of dry non-fat cocoa solids,

- "couverture": the product must contain not less than 35 % total dry cocoa solids, including not less than 31 % cocoa butter and not less than 2,5 % of dry non-fat cocoa solids,

- "gianduja" (or one of the derivatives of the word "gianduja") nut chocolate: the product must be obtained firstly from chocolate having a minimum total dry cocoa solids content of 32 % including a minimum dry non-fat cocoa solids content of 8 %, and secondly from finely ground hazelnuts in such quantities that 100 g of the product contain not less than 20 g and not more than 40 g of hazelnuts. The following may be added:

(a) milk and/or dry milk solids obtained by evaporation, in proportion such that the finished product does not contain more than 5 % dry milk solids;

(b) almonds, hazelnuts and other nut varieties, either whole or broken, in such quantities that, together with the ground hazelnuts, they do not exceed 60 % of the total weight of the product.

4. Milk chocolate

(a) designates the product obtained from cocoa products, sugars and milk or milk products, which, subject to (b) contains:

- not less than 25 % total dry cocoa solids,

- not less than 14 % dry milk solids obtained by partly or wholly dehydrating whole milk, semi- or full-skimmed milk, cream, or from partly or wholly dehydrated cream, butter or milk fat,

- not less than 2,5 % dry non-fat cocoa solids,

- not less than 3,5 % milk fat,

- not less than 25 % total fat (cocoa butter and milk fat).

(b) However, where this name is supplemented by the words:

- "vermicelli" or "flakes", the product presented in the form of granules or flakes must contain not less than 20 % total dry cocoa solids, not less than 12 % dry milk solids obtained by partly or wholly dehydrating whole milk, semi- or full-skimmed milk, cream, or from partly or wholly dehydrated cream, butter or milk fat, and not less than 12 % total fat (cocoa butter and milk fat),

- "couverture", the product must have a minimum total fat (cocoa butter and milk fat) content 31 %,

- "gianduja" (or one of the derivatives of the word "gianduja") nut milk chocolate, the product must be obtained firstly from milk chocolate having a minimum content of 10 % of dry milk solids, obtained by partly or wholly dehydrating whole milk, semi- or full-skimmed milk, cream or from partly or wholly dehydrated cream, butter or milk fat and secondly from finely ground hazelnuts, in such quantities that 100 g of the product contain not less than 15 g and not more than 40 g of hazelnuts. Almonds, hazelnuts and other nut varieties may also be added, either whole or broken, in such quantities that, together with the ground hazelnuts, they do not exceed 60 % of the total weight of the product.

(c) Where in this name the word "milk" is replaced by:

- "cream": the product must have a minimum milk fat content of 5,5 %,

- "skimmed milk": the product must have a milk fat content not greater than 1 %.

(d) The United Kingdom and Ireland may authorise the use in their territory of the name "milk chocolate" to designate the product referred to in item 5, on condition that the term is accompanied in both cases by an indication of the amount of dry milk solids laid down for each of the two products, in the form "milk solids: ... % minimum".

5. Family milk chocolate

designates the product obtained from cocoa products, sugars and milk or milk products and which contains:

- not less than 20 % total dry cocoa solids,

- not less than 20 % dry milk solids obtained by partly or wholly dehydrating whole milk, semi- or full-skimmed milk, cream, or from partly or wholly dehydrated cream, butter or milk fat,

- not less than 2,5 % dry non-fat cocoa solids,

- not less than 5 % milk fat,

- not less than 25 % total fat (cocoa butter and milk fat).

6. White chocolate

designates the product obtained from cocoa butter, milk or milk products and sugars which contains not less than 20 % cocoa butter and not less than 14 % dry milk solids obtained by partly or wholly dehydrating whole milk, semi- or full-skimmed milk, cream, or from partly or wholly dehydrated cream, butter or milk-fat, of which not less than 3,5 % is milk fat.

7. Filled chocolate, chocolate with ... filling, chocolate with ... centre

designate the filled product, the outer part of which consists of one of the products defined in items 3, 4, 5 and 6. The designations do not apply to products, the inside of which consists of bakery products, pastry, biscuit or edible ice.

The outer chocolate portion of products bearing one of these names shall constitute not less than 25 % of the total weight of the product.

8. "Chocolate a la taza"

designates the product obtained from cocoa products, sugars, and flour or starch from wheat, rice or maize, which contains not less than 35 % total dry cocoa solids, including not less than 18 % cocoa butter and not less than 14 % dry non-fat cocoa solids, and not more than 8 % flour or starch.

9. "Chocolate familiar a la taza"

designates the product obtained from cocoa products, sugars, and flour or starch from wheat, rice or maize, which contains not less than 30 % total dry cocoa solids, including not less than 18 % cocoa butter and not less than 12 % dry non-fat cocoa solids, and not more than 18 % flour or starch.

10. A chocolate or a praline

designates the product in single-mouthful size, consisting of:

- filled chocolate, or

- a single chocolate or a combination or a mixture of chocolate within the meaning of the definitions given in items 3, 4, 5 or 6 and other edible substances, provided that chocolate constitutes not less than 25 % of the total weight of the product.

B. OPTIONAL AUTHORISED INGREDIENTS

Additions of edible substances

1. Without prejudice to Article 2 and section B.2, other edible substances may also be added to the chocolate products defined in section A, items 3, 4, 5, 6, 8 and 9.

However, the addition:

- of animal fats and their preparations not deriving solely from milk shall be prohibited,

- of flours, granular or powdered starch shall only be authorised where the addition is in accordance with the definitions laid down in section 1, items 8 and 9.

The quantity of those edible substances added may not exceed 40 % of the total weight of the finished product.

2. Only those flavourings which do not mimic the taste of chocolate or of milk fat may be added to the products defined in section A, items 2, 3, 4, 5, 6, 8 and 9.

C. CALCULATION OF PERCENTAGES

The minimum contents of the products set out in section A, items 3, 4, 5, 6, 8 and 9 shall be calculated after deduction of the weight of the ingredients provided for in section B. In the case of the products in section A, items 7 and 10, the minimum contents shall be calculated after deducting the weight of the ingredients provided for in section B, as well as the weight of the filling.

The chocolate contents of the products defined in section A, items 7 and 10 shall be calculated in relation to the total weight of the finished product, including its filling.

D. SUGARS

Sugars as referred to in this Directive are not limited only to those sugars covered by Council Directive 73/437/EEC of 11 December 1973 on the approximation of the laws of the Member States concerning certain sugars intended for human consumption(1).

(1) OJ L 356, 27.12.1973, p. 71. Directive as last amended by the 1985 Act of Accession.

ANNEX II

VEGETABLE FATS REFERRED TO IN ARTICLE 2(1)

The vegetable fats referred to in Article 2(1) are, singly or in blends, cocoa butter equivalents and shall comply with the following criteria:

(a) they are non-lauric vegetable fats, which are rich in symmetrical monounsaturated triglycerides of the type POP, POSt, and StOSt(1);

(b) they are miscible in any proportion with cocoa butter, and are compatible with its physical properties (melting point and crystallisation temperature, melting rate, need for tempering phase);

(c) they are obtained only by the processes of refining and/or fractionation, which excludes enzymatic modification of the triglyceride structure.

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Furthermore, as an exception to the above, Member States may allow the use of coconut oil for the following purpose: in chocolate used for the manufacture of ice cream and similar frozen products.

(1) P (palmitic acid), O (oleic acid), St (stearic acid).

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 30 May 1996 the Commission submitted to the Council a proposal for a Directive of the European Parliament and of the Council based on Article 95 (ex Article 100a) of the EC Treaty, relating to cocoa and chocolate products intended for human consumption(1).

2. The European Parliament delivered its opinion at first reading on 23 October 1997(2).

Following the Parliament's opinion, the Commission submitted an amended proposal to the Council on 4 March 1998(3).

3. The Economic and Social Committee delivered its opinion on 31 October 1996(4).

4. On 28 October 1999 the Council adopted its common position in accordance with Article 251 (ex Article 189b) of the Treaty.

II. OBJECTIVE

The proposal for a Directive, which was submitted to the Council with six others(5), forms part of an effort to simplify the vertical Directives applicable to foodstuffs. The proposal seeks to replace Council Directive 73/24/EEC on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption(6), which requires updating to take account of technological progress and changes in consumer tastes, and general Community legislation relating to foodstuffs.

The proposal also seeks to harmonise the possibility of using vegetable fats other than cocoa butter in the production of chocolate throughout the Community, as the use of these fats has hitherto been permitted in only seven Member States. The proposal therefore contributes to the proper functioning of the internal market in the cocoa and chocolate products sector.

III. ANALYSIS OF THE COMMON POSITION

A. GENERAL REMARKS

1. Concerning the European Parliament's amendments:

The Council has followed the Commission's amended proposal:

- by incorporating part of Amendment 36 (as regards the principle of double labelling) and Amendments 19 and 20, with some technical and editorial changes,

- and by rejecting, for the same reasons as the Commission, Amendments 1, 2, 3, 4, 5, 51, 9, 10, 12, 40, 35, 15, 17, 18 and 21 (also taking into account, as regards Amendments 12, 17 and 18, the existence of the final report by the Joint Research Centre devising analytical methods for the determination of cocoa butter and other vegetable fats in chocolate).

On the other hand, the Council has departed from the Commission's amended proposal:

- by taking account of the substance of Amendments 7, 70 and 37 and, partially, of Amendments 64 and 16,

- and by rejecting Amendment 14.

2. The Council has made several other amendments to both the substance and the wording of the Commission's amended proposal.

All the amendments have been accepted by the Commission. They require the following specific explanations:

B. SPECIFIC REMARKS concerning the amendments made to the Commission's amended proposal

1. Article 2(1) and recital 6; Annex II(7)

With regard to the possible use of vegetable fats other than cocoa butter in chocolate production, the Council judged that total harmonisation was the best means of ensuring the free movement of all chocolate products and hence the implementation of the internal market in this sector; it has therefore drawn up a provision which authorises the addition of these fats to chocolate products throughout the Community.

At the same time, the Council has decided to restrict these vegetable fats to six specific fats listed in a new Annex II; the six fats, all of tropical origin, are defined there according to technical and scientific criteria as equivalents to cocoa butter; furthermore, any enzyme treatment is prohibited. A seventh fat, coconut oil, is allowed only for the manufacture of ice creams and similar frozen products.

By these provisions the Council has taken account of the substance of Amendments 7, 70 and 37 of the European Parliament.

2. Article 2(2)

The Council has followed the Commission in accepting the principle of the double labelling of vegetable fats other than cocoa butter; it has laid down a specific statement which must appear on the wrapping, in addition to the list of ingredients. With regard to the positioning of this statement on the wrapping, it has provided that three elements, namely the statement that vegetable fats are included, the name under which the product is sold, and the list of ingredients, must feature in the same field of vision, but each clearly distinct from the other. In this way the Council has partially taken up Amendment 36.

3. Article 2(3)

The Council has introduced a new paragraph, as it judged it appropriate to make provision for the application of the codecision procedure for any future amendments to the list of vegetable fats set out in Annex II.

4. Article 2(4)

By the introduction of this new paragraph the Council has fixed a deadline (66 months after the Directive comes into force) before which the Commission, in accordance with the codecision procedure, would, if necessary, submit a proposal to amend the list of vegetable fats; any such proposal would take account of the result of a study to be carried out by the Commission on the Directive's impact on the economies of countries producing cocoa and other vegetable fats. This provision therefore partly reflects the spirit of Amendments 64 and 16. The Council, like the Commission, has not judged it possible to link the entry into force of the Directive with the presentation of this impact study, taking the view that an objective analysis based on hard data cannot be made until the Directive has been in force for some time.

5. Article 5(1) and (2) and recital 15

The Council decided not to confer powers on the Commission to adapt the Directive to technical progress, except with regard to some of the provisions of Annex I, with the legislator retaining the power to adapt all other provisions of the Directive if need be. However it has introduced a new paragraph 2 which provides for the Council and the European Parliament to re-examine the Commission's powers with a view to their possible extension.

6. Article 6 and recital 15

In accordance with the Council Decision of 28 June 1999(8) (committee procedure), the Council has replaced the consultation procedure proposed by the Commission with the regulatory procedure.

7. Articles 7 and 8

The Council judged that it would be useful to extend the deadlines for entry into force (repeal of Directive 73/241/EEC) and transposition of the Directive.

8. Annex I

The Council made several changes to this Annex, some of substance and some of form.

The more substantial amendments concern:

- the following paragraphs of section A:

- A.1: the reinsertion of a definition of cocoa butter,

- A.4(d): addition of the obligation to indicate the dry milk solid content of "milk chocolate" as the Council decided that the status quo should be maintained, i.e. this option should be retained for the United Kingdom and Ireland,

- A.5: (and recital 13, second part): the Council decided to align the sales name in English with other language versions, so that from now on the product will be called "family milk chocolate",

- in section B: the introduction of a new paragraph 2: in the interests of guaranteeing the quality of chocolate, the Council has maintained the existing provision by restricting the use of certain flavourings in chocolate production,

- in section C: the introduction of a description of the calculation of percentages for the manufacture of the products defined in A.7 and A.10 of Annex I,

- in section D: a new section defining the scope of the term "sugars".

The amendments made to paragraphs 2 and 3 of section A are of an editorial nature.

9. Annex II

The Council introduced this new Annex to define and list vegetable fats other than cocoa butter (see paragraph 1).

10. The Council decided not to incorporate the new Article 3a proposal by the Commission referring to Directive 89/107/EEC, as the application of Community law is self-evident.

IV. CONCLUSIONS

The Council believes that to a large extent the common position meets the substance of the wishes expressed by the European Parliament, especially as regards the restriction on vegetable fats other than cocoa butter and the question of double labelling. With regard to vegetable fats other than cocoa butter, it believes that it has gone even further than the European Parliament by defining these fats as equivalents to cocoa butter and drawing up a list containing six specific fats of tropical origin.

Furthermore, the Council has reconciled, in a balanced fashion, certain technological needs of industry in this sector and the legitimate expectations of consumers, particularly with regard to information on the contents of products.

Finally the Council believes that the text of the common position is such that it will ensure the proper functioning of the internal market in the cocoa and chocolate product sector.

(1) OJ C 231, 9.8.1996, p. 1.

(2) OJ C 339, 10.11.1997, p. 123.

(3) OJ C 118, 17.4.1998, p. 10.

(4) OJ C 56, 24.2.1997, p. 20.

(5) relating to:

- certain sugars,

- honey,

- fruit juices and similar products,

- preserved milk,

- coffee extracts and chicory extracts,

- fruit jams, jellies, marmalades and chestnut purée.

(6) OJ L 228, 16.8.1973, p. 23.

(7) References are to the Common Position.

(8) OJ L 184, 17.7.1999, p. 23.