EN Official Journal of the European Union C 80/16

Action brought on 25 January 2011 — European Commission v Czech Republic

(Case C-37/11)

2011/C 80/31

Language of the case: Czech

Parties

Applicant: European Commission (represented by: Z. Malůšková and H. Tserepa-Lacombe, acting as Agents,)

Defendant: Czech Republic

Form of order sought

— declare that, by providing in Paragraph 1(2)(q) of Decree No 77/2003 Coll. that ‘spreadable butter’ (pomazánkové máslo) shall mean a milk product from soured cream, enriched by powdered milk or buttermilk, containing, by weight, not less than 31 % milk fat and 42 % dry material, and by allowing such a product to be marketed under the commercial designation ‘spreadable butter’, the Czech Republic has failed to fulfil its obligations under Article 115 of Regulation (EC) No 1234/2007 (1) in conjunction with point I, clause 2, first and second subclauses of Annex XV to Regulation (EC) No 1234/2007 and Part A, points 1 and 4 of the Appendix to Annex XV to Regulation (EC) No 1234/2007;

— order Czech Republic to pay the costs.

Pleas in law and main arguments

Article 115 of Regulation (EC) No 1234/2007, in conjunction with point I, clause 2, first and second subclauses of Annex XV and Part A, point 1 of the Appendix to Annex XV to Regulation (EC) No 1234/2007, provides that the commercial designation ‘butter’ is reserved for products with a milk fat content of at least 80 % and a water content not exceeding 16 %. In the Czech Republic, by Paragraph 1(2)(q) of Ministry of Agriculture Decree No 77/2003 Coll. of 6 March 2003, a product is introduced to the market under the commercial designation ‘spreadable butter’. That product is a solid, tractable emulsion of the water in oil type, obtained primarily from soured cream and containing, by weight, not less than 31 % milk fat and 42 % dry material. On account of its lower than prescribed content in milk fat, the product ‘spreadable butter’ does not fulfil the conditions for use of the commercial designation ‘butter’, and the above-mentioned EU legal provisions are thereby infringed.

Point I, second subclause of Annex XV, in conjunction with Part A, point 4 of the Appendix to Annex XV to Regulation (EC) No 1234/2007 requires that, for milk products with a milk fat content of less than 39 %, the commercial designation ‘Dairy spread X %’ be used. ‘Spreadable butter’ is not marketed under that designation, and accordingly the above-mentioned EU legal provisions are infringed.

By way of exception, products may be marketed under the commercial designation ‘butter’ even if they do not fulfil the above parameters, if the requirements laid down by point I, clause 2, third subclause (a) of Annex XV to Regulation (EC) No 1234/2007 are fulfilled. Such products are exhaustively listed in the list of products in Annex I to Commission Regulation (EC) No 445/2007. (2)‘Spreadable butter’ has not been entered on that list, as it does not fulfil the conditions laid down by point I, clause 2, third subclause (a) of Annex XV to Regulation (EC) No 1234/2007. ‘Spreadable butter’ cannot therefore use those exceptions.

(1) OJ 2007 L 299, 16.11.2007, p. 1

(2) OJ 2007 L 106, 24.4.2007, p. 24