COMMON POSITION (EC) No 7/95 adopted by the Council on 15 June 1995 with a view to adopting European Parliament and Council Directive 95/. . ./EC of . . . amending Directive 79/112/EEC on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (95/C 182/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,

Having regard to 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 (1), and in particular Articles 6 (2) (c) and (3) and 7 thereof,

Having regard to the proposal from the Commission (2),

Having regard to the opinion of the Economic and Social Committee (3),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (4),

Whereas, in the context of achieving the objectives of the internal market, the use of the name customary in the Member State in which a product is manufactured should also be allowed in the case of products to be sold in another Member State;

Whereas, with the twofold aim of providing the consumer with better information and ensuring fair trade, the labelling rules as regards the exact nature and characteristics of products need to be further improved;

Whereas the Court of Justice of the European Communities has delivered several judgments in which it recommends detailed labelling, in particular the compulsory affixing of suitable labels giving the nature of the product sold; whereas this course of action, which enables the consumer to make his choice in full knowledge of the facts, is the most appropriate since it creates fewest obstacles to free trade;

Whereas it is for the Community legislator to adopt measures deriving from that case-law,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 79/112/EEC is hereby amended as follows:

1. The following recital shall be inserted after the sixth recital:

'Whereas that need means that Member States may, in compliance with the rules of the Treaty, impose language requirements;`.

2. The following shall be added to Article 3 (1):

'2a. the quantity of certain ingredients or categories of ingredients as provided for in Article 7;`.

3. Article 5 (1) shall be replaced by the following:

'1. The name under which a product is sold shall be the name provided for in the laws, regulations and administrative provisions applicable in the Member State in which the product is sold to the final consumer or to mass caterers.

Failing this, the name under which a product is sold shall be the name customary in the Member State in which it is sold to the final consumer or to mass caterers, or a description of the foodstuff, and if necessary of its use, which is clear enough to let the purchaser know its exact nature and distinguish it from other products with which it might be confused.

1. (a) The use in the Member State of marketing of the sales name under which the product is legally manufactured and marketed in the Member State of production shall also be allowed.

However, the sales name used in the Member State of production shall be supplemented by descriptive indications where this is necessary to let consumers in the Member State of marketing know the exact nature of the foodstuff and to distinguish it from foodstuffs with which they are familiar and with which it could be confused.

(b) Where the provisions of subparagraph (a) are not sufficient in the Member State of marketing to ensure that the consumer is correctly informed because the foodstuff designated by the sales name used in the Member State of production differs substantially from the foodstuff known by that name, the sales name used in the Member State of production must not be used.`

4. The following shall be added to Article 6 (2) (c):

'However, it may be decided in accordance with the procedure laid down in Article 17 not to apply this exemption to specified foodstuffs.`

5. The text of Article 7 shall be replaced by the following:

'Article 7

1. The quantity of an ingredient or category of ingredients used in the manufacture or preparation of a foodstuff shall be stated in accordance with this Article.

2. The indication referred to in paragraph 1 shall be compulsory:

(a) where the ingredient or category of ingredients concerned appears in the name under which the foodstuff is sold or is usually associated with that name by the consumer; or

(b) where the ingredient or category of ingredients concerned is emphasized on the labelling either in words or by the use of pictorial representation; or

(c) where the ingredient or category of ingredients concerned is essential to characterize a foodstuff and to distinguish it from products with which it might be confused because of its name or appearance; or

(d) in the cases determined in accordance with the procedure laid down in Article 17.

3. Paragraph 2 shall not apply:

(a) to an ingredient or category of ingredients:

- the drained net weight of which is indicated in accordance with Article 8 (4), or

- the quantities of which are already required to be given on the labelling under Community provisions,

- which is used in small quantities for the purposes of flavouring,

- which appears in the name under which the product is sold, and the variation in quantity is not such as to distinguish the foodstuff from similar foods or to govern the choice of the consumer in the country of marketing;

(b) where specific Community provisions stipulate precisely the quantity of an ingredient or of a category of ingredients without providing for the indication thereof on the labelling;

(c) in the cases referred to in the fourth and fifth indents of Article 6 (5) (a);

(d) in the cases determined in accordance with the procedure laid down in Article 17.

4. The quantity indicated, expressed as a percentage, shall correspond to the quantity of the ingredient or ingredients at the time of its/their use. However, Community provisions may allow for derogations from this principle for certain foodstuffs. Such provisions shall be adopted in accordance with the procedure laid down in Article 17.

5. The indication referred to in paragraph 1 shall appear either in or immediately next to the name under which the foodstuff is sold or in the list of ingredients in connection with the ingredient or category of ingredients in question.

6. This Article shall apply without prejudice to Community rules on nutrition labelling for foodstuffs.`

6. The following Article shall be inserted:

'Article 13a

1. Member States shall ensure that the sale is prohibited within their own territories of foodstuffs for which the particulars provided for in Article 3 and Article 4 (2) do not appear in a language easily understood by the consumer, unless the consumer is in fact informed by means of other measures determined in accordance with the procedure laid down in Article 17 as regards one or more labelling particulars.

2. Within its own territory, the Member State in which the product is marketed may, in compliance with the rules of the Treaty, stipulate that those labelling particulars shall be given in one or more languages which it shall determine from among the official languages of the Community.

3. Paragraphs 1 and 2 shall not preclude the labelling particulars from being indicated in various languages.`

7. In Article 14, the second paragraph shall be deleted.

Article 2

Member States shall, where appropriate, amend their laws, regulations and administrative provisions in order to:

- allow trade in products conforming to this Directive no later than (. . .) (5*),

- prohibit trade in products not conforming to this Directive no later than (. . .) (6**). However, trade in products not conforming to this Directive and labelled before that date shall be permitted until stocks are fully depleted.

The Member States shall forthwith inform the Commission of those provisions.

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 Member States.

Article 3

This Directive shall apply as from the date of its publication in the Official Journal of the European Communities.

Article 4

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(1) OJ No L 33, 8. 2. 1979, p. 1. Directive as last amended by Commission Directive 93/102/EC (OJ No L 291, 25. 11. 1993, p. 14).

(2) OJ No C 122, 14. 5. 1992, p. 12, and

OJ No C 118, 29. 4. 1994, p. 6.

(3) OJ No C 332, 16. 12. 1992, p. 3.

(4) Opinion of the European Parliament of 27 October 1993 (OJ No C 315, 22. 11. 1993, p. 102), Council common position of . . . (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(5*) 18 months after the entry into force of the Directive.

(6**) 36 months after the entry into force of the Directive.

STATEMENT OF THE COUNCIL'S REASONS

1. The proposal, which is based on Article 100a of the Treaty, was submitted to the Council by the Commission on 9 April 1992 (1).

2. The amendments covered by the proposal were announced by the Commission in its 1989 communication on the free movement of foodstuffs within the Community (2). In line with the case-law of the Court of Justice and the operational needs of the internal market, the proposal set out to amend the basic Directive (79/112/EEC) on four points:

- adding to the existing provisions on sales names of foodstuffs,

- readdressing the issue of labelling of alcoholic beverages,

- requiring a quantitative indication of ingredients for certain foodstuffs,

- making good a technical deficiency as regards products consisting of a single ingredient.

3. The Economic and Social Committee delivered its opinion on 22 October 1992 (3). Further to the European Parliament's opinion, delivered on 27 October 1993 (4), the Commission submitted an amended proposal to the Council on 13 April 1994 (5). To take account of the Parliament's opinion, the Commission clarified a number of points in the amended proposal and added two further ones:

- extension, for technical reasons, of the definition of small packaging,

- an addition to the Directive's provisions regarding the language to be used in labelling foodstuffs.

4. The Council adopted a common position on the proposal amended on 15 June 1995.

5. Regarding sales names, the Council restructured the text of Article 5 in the interests of clarity and to take account of the case-law of the Court of Justice in this area. There was no need to reproduce the amended proposal word for word on this point since the redraft took into account the intention behind the Parliament's amendment.

6. The Council welcomed the amended proposal as regards the quantitative indication of ingredients. It accepted the principles of the proposal, but decided that the wording had to be clarified on certain points in view of the need for clear rules to satisfy the requirements of consumers, manufacturers and the supervisory authorities.

7. On the technical question of products consisting of a single ingredient, the Council adopted the proposal on condition that a procedure was added for the decisions to be taken.

8. With regard to the language to be used in labelling, the Council noted the importance attached to this point by the Parliament and adopted Article 13a as in the amended proposal but with certain drafting changes.

9. As to the time limit for implementing the Directive, the Council decided to follow the Parliament's amendment extending the period for prohibition on non-conformant products and set a period of 36 months after the Directive's entry into force.

10. On the labelling of alcoholic drinks, the Council regretted that, in the present circumstances, it had not found a solution that would win the support of the Commission and a majority of delegations. The Council noted that the Commission was keeping its proposal before the Council and, acknowledging the importance of the question, said it would endeavour to find a satisfactory solution as soon as possible.

11. The aspect of the amended proposal concerning the definition of 'small packaging` was not adopted by the Council. It considered that the amendment was unjustified and could adversely affect consumer information.

12. In general, the Council considers that its common position, which has been the subject of intense discussion since 1992 and is supported by the Commission, represents for the time being a realistic and pragmatic way of dealing with the adjustment of Directive 79/112/EEC.

(1) OJ No C 122, 14. 5. 1992, p. 12.

(2) OJ No C 271, 24. 10. 1989.

(3) OJ No C 332, 16. 12. 1992, p. 3.

(4) OJ No C 315, 22. 11. 1993, p. 102.

(5) OJ No C 118, 29. 4. 1994, p. 6.