Case C-239/02

Douwe Egberts NV

v

Westrom Pharma NV and Others

(Reference for a preliminary ruling from the Rechtbank van Koophandel te Hasselt)

(Approximation of laws – Interpretation of Article 28 EC and of Directives 1999/4/EC and 2000/13/EC – Validity of Directive 1999/4/EC – Labelling and advertising of foodstuffs – Prohibitions of references to health)

Summary of the Judgment

1. Approximation of laws – Labelling and advertising of foodstuffs – Extracts of coffee and extracts of chicory – Directive 1999/4 – Product names – Simultaneous use of a brand name or fancy name – Whether permissible

(Directive 1999/4 of the European Parliament and of the Council, Art. 2)

2. Approximation of laws – Labelling, presentation and advertising of foodstuffs – Directive 2000/13 – National rules prohibiting references to ‘slimming’ and to ‘medical recommendations or attestations’ in the labelling of foodstuffs – Not permissible – Justification – None

(Directive 2000/13 of the European Parliament and of the Council, Art. 18(1) and (2))

3. Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National rules prohibiting references to ‘slimming’ and to ‘medical recommendations or attestations’ in advertising of foodstuffs – Not permissible – Justification – None

(Arts 28 EC and 30 EC)

1. Article 2 of Directive 1999/4 relating to coffee extracts and chicory extracts, which provides that the product names listed in the Annex to that directive are to apply only to the products referred to therein and must be used in trade to designate them, must be interpreted as meaning that, when those products are marketed, other names, such as invented or trade names, are not precluded from being used alongside the product names.

(see paras 24, 29, operative part 1)

2. Article 18(1) and (2) of Directive 2000/13 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs precludes national legislation which prohibits references to ‘slimming’ and to ‘medical recommendations, attestations, declarations or statements of approval’ in the labelling and presentation of foodstuffs.

Foodstuffs the labelling of which contains references to health which are not misleading must in fact be regarded as complying with the rules laid down in that directive since the Member States are not entitled to prohibit the marketing thereof on grounds relating to the possible irregularity of that labelling. Directive 2000/13 none the less enables the Member States to apply non-harmonised national provisions prohibiting trade in directive‑compliant foodstuffs, such as the legislation at issue, where they are justified by grounds of inter alia protection of public health and consumers. Such legislation would however exceed what is necessary in order to attain those objectives.

(see paras 38-39, 44, 47, operative part 2)

3. Articles 28 EC and 30 EC preclude national legislation which prohibits references in the advertising of foodstuffs imported from other Member States to ‘slimming’ and to ‘medical recommendations, attestations, declarations or statements of approval’.

It cannot in fact be ruled out that to compel a producer to discontinue an advertising scheme which he considers to be particularly effective may constitute an obstacle to imports.

Moreover, an absolute prohibition of advertising the characteristics of a product is liable to impede access to the market by products from other Member States more than it impedes access by domestic products, with which consumers are more familiar.

Such a fetter cannot be justified by grounds of protection of the health of humans and prevention of fraud since such legislation exceeds what is necessary in order to attain those objectives.

(see paras 52-53, 56, 59, operative part 3)