Judgment of the Court (First Chamber) of 17 July 1997. - Badische Erfrischungs-Getränke GmbH & Co. KG v Land Baden-Württemberg. - Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany. - Natural mineral water - Definition - Water favourable to health. - Case C-17/96.



European Court reports 1997 Page I-04617



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

Approximation of laws - Natural mineral water - Directive 80/777 - Recognition as natural mineral water - National legislation requiring properties favourable to health - Not permissible

(Council Directive 80/777, Art. 1(1) and Annex I, Section I, paras 1 and 2)

Summary

Article 1(1) of Directive 80/777 on the approximation of the laws of the Member States relating to the exploitation and marketing of natural mineral waters, in conjunction with Annex I, Section I, paragraphs 1 and 2, thereto, must be interpreted as precluding a Member State from making the recognition of water as natural mineral water dependent on its possessing properties favourable to health.

Parties

In Case C-17/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the Bundesverwaltungsgericht for a preliminary ruling in the proceedings pending before that court between

Badische Erfrischungs-Getränke GmbH & Co. KG

and

Land Baden-Württemberg

on the interpretation of Council Directive 80/777/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to the exploitation and marketing of natural mineral waters (OJ 1980 L 229, p. 1),

THE COURT

(First Chamber),

composed of: L. Sevón, President of the Chamber, P. Jann and M. Wathelet (Rapporteur), Judges,

Advocate General: M.B. Elmer,

Registrar: H. von Holstein, Assistant Registrar,

after considering the written observations submitted on behalf of:

- Badische Erfrischungs-Getränke GmbH & Co. KG, by T. Schmidt-Kötters, Rechtsanwalt, Düsseldorf,

- Land Baden-Württemberg, by H. Lauinger, Oberregierungsrat in the Regierungspräsidium Karlsruhe, acting as Agent,

- the French Government, by C. de Salins, Head of Subdirectorate in the Legal Directorate of the Ministry of Foreign Affairs, and R. Nadal, Assistant Foreign Affairs Secretary in that directorate, acting as Agents,

- the Italian Government, by Professor U. Leanza, Head of the Department of Legal Affairs in the Ministry of Foreign Affairs, acting as Agent, and O. Fiumara, Avvocato dello Stato,

- the United Kingdom Government, by S. Ridley, of the Treasury Solicitors' Department, acting as Agent, and D. Bethlehem, Barrister,

- the Commission of the European Communities, by C. Schmidt, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Badische Erfrischungs-Getränke GmbH & Co. KG, represented by T. Schmidt-Kötters, the French Government, represented by R. Nadal, the Irish Government, represented by P. O'Reilly, Barrister-at-law, the Italian Government, represented by O. Fiumara, the United Kingdom Government, represented by D. Bethlehem, and the Commission, represented by C. Schmidt, at the hearing on 29 January 1997,

after hearing the Opinion of the Advocate General at the sitting on 15 May 1997,

gives the following

Judgment

Grounds

1 By order of 31 August 1995, received at the Court on 19 January 1996, the Bundesverwaltungsgericht (Federal Administrative Court) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty three questions concerning the interpretation of Council Directive 80/777/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to the exploitation and marketing of natural mineral waters (OJ 1980 L 229, p. 1; hereinafter `the Directive').

2 Those questions were raised in proceedings between Badische Erfrischungs-Getränke GmbH & Co. KG (`Badische Erfrischungs-Getränke'), a company engaged in the exploitation of mineral water, and Land Baden-Württemberg concerning the latter's refusal to recognize water from one of the company's springs as natural mineral water.

3 In the late 1980s, Badische Erfrischungs-Getränke discovered a new spring. Analysis of water from that source and evaluation of its physiological and nutritional effects revealed that it contained very little sodium and chorine and was therefore, according to the company, particularly suitable for use with low-salt diets and to combat hypertension.

4 Badische Erfrischungs-Getränke applied to Land Baden-Württemberg for recognition of that water as `natural mineral water'.

5 By Decisions of 28 November 1989 and 2 April 1990, Land Baden-Württemberg rejected the company's application on the ground that water cannot have the `physiological and nutritional effects' required by German legislation unless it contains specified levels of essential substances.

6 Paragraph 2(2) of the Mineral- und Tafelwasser Verordnung (Mineral and Table Water Regulation) provides that:

`The expression "natural mineral water" designates water which satisfies the following requirements:

[...]

2. it is characterized by its original state and has certain physiological and nutritional effects owing to the levels of minerals, trace elements or other substances present therein'.

7 Badische Erfrischungs-Getränke brought an action before the Verwaltungsgericht (Administrative Court) Karlsruhe, which was dismissed by judgment of 8 November 1991. That judgment was upheld on 30 November 1993 by the Verwaltungsgerichtshof (Higher Administrative Court) Baden-Württemberg on the ground that the company had failed to show that the water had physiological and nutritional effects owing to the substances present therein, as the German legislation requires. According to the appeal court, the fact that a particular water is free of certain substances or contains low levels thereof is not enough to characterize it as natural mineral water.

8 The Bundesverwaltungsgericht confirmed in an appeal on a point of law that the German legislation must be interpreted as requiring a causal link between specified levels of certain substances in the water and its physiological and nutritional effects.

9 However, the Bundesverwaltungsgericht is uncertain whether those requirements are compatible with the Directive, which lays down a standard definition of natural mineral waters, uniform conditions for their recognition and rules for their exploitation and marketing.

10 Article 1(1) of the Directive provides:

`This Directive concerns waters extracted from the ground of a Member State and recognized by the responsible authority of that Member State as natural mineral waters satisfying the provisions of Annex I, Section I.'

Annex I, Section I (`Definition'), paragraphs 1 and 2, provides:

`1. "Natural mineral water" means microbiologically wholesome water, within the meaning of Article 5, originating in an underground water table or deposit and emerging from a spring tapped at one or more natural or bore exits.

Natural mineral water can be clearly distinguished from ordinary drinking water:

(a) by its nature, which is characterized by its mineral content, trace elements or other constituents and, where appropriate, by certain effects;

(b) by its original state,

both characteristics having been preserved intact because of the underground origin of such water, which has been protected from all risk of pollution.

2. These characteristics, which may give natural mineral water properties favourable to health, must have been assessed:

(a) from the following points of view:

1. geological and hydrological,

2. physical, chemical and physico-chemical,

3. microbiological,

4. if necessary, pharmacological, physiological and clinical;

(b) according to the criteria listed in Section II;

(c) according to scientific methods approved by the responsible authority.

[...]'

11 The Bundesverwaltungsgericht is uncertain whether the Directive makes recognition of water as natural mineral water dependent on its possessing properties favourable to health and, if so, whether the water in question must be shown to possess such properties. If that is the case, the Bundesverwaltungsgericht inquires whether water can possess properties favourable to health simply because it is free of a particular substance or contains low levels thereof. Lastly, having regard to the use of the expression `physiological and nutritional effects' in the German legislation, the Bundesverwaltungsgericht wishes to ascertain the scope of the expressions `effects' and `properties favourable to health' in paragraphs 1 and 2, respectively, of Annex I, Section I, to the Directive.

12 In those circumstances, the Bundesverwaltungsgericht stayed proceedings in order to refer the following questions to the Court:

`1. Is Article 1(1) of Council Directive 80/777/EEC of 15 July 1980 in conjunction with Annex I thereto (Section I. Definition) to be interpreted as meaning that water - apart from "old water" covered by the second subparagraph of paragraph 2 of Section I. Definition of Annex I - is to be recognized as being natural mineral water only if it has properties favourable to health and, if so, are those provisions to be interpreted as meaning that those properties must be proved?

2. May the properties favourable to health which may be necessary also ensue from the absence or low content of the constituents referred to in paragraph 1(a) of Section I of Annex I (for example, in the case of water with a low sodium content)?

3. How are the expressions "properties favourable to health" in paragraph 2 of Section I of Annex I and "certain effects" in paragraph 1(a) of Section I (see also paragraph 1.4.1 of Section II of Annex I) to be differentiated from one another?'

Question 1

13 Land Baden-Württemberg, supported by the French and Italian Governments, argues that water cannot be recognized as natural mineral water unless it possesses properties favourable to health. Natural mineral water is not defined solely by reference to its source, composition and state, but also by reference to the physiological and nutritional effects of the mineral content, trace elements or other constituents which determine the nature of a particular water. Paragraph 2 of Annex I, Section I, provides that the water must be shown to possess properties favourable to health: it complements and clarifies paragraph 1 by requiring the characteristics listed in paragraph 1 to be assessed in order to verify that the water in question really possesses properties favourable to health.

14 According to the Commission, paragraphs 1 and 2 of Annex I, Section I, which together set out the criteria for defining natural mineral water, must be read in conjunction with one another. The Danish, Dutch, English and German versions of paragraph 2 are similar; as regards the point at issue, they are all ambiguous. The French, Italian and Spanish versions of that paragraph, on the other hand, leave no room for doubt that natural mineral water must always possess properties favourable to health.

15 It should be noted first of all that paragraph 1 of Annex I, Section I, which defines natural mineral water, makes no mention of `properties favourable to health'. The first subparagraph of paragraph 1 defines natural mineral water as microbiologically wholesome water which originates underground. The second subparagraph merely states that two characteristics of natural mineral water distinguish it from ordinary drinking water, namely its nature - which is determined by its mineral content, trace elements or other constituents and, where appropriate, by certain effects - and its original state; moreover, the fact that the water originates underground enables both of those characteristics to be preserved intact. Reference to `properties favourable to health' is made only in paragraph 2 of Annex I, Section I.

16 In this connection, the Council departed from the Commission's proposal for a directive (Journel Officiel 1970 C 69, p, 14), which mentioned in paragraph 1 the requirement concerning properties favourable to health. This suggests that the Council did not intend to make recognition of water as natural mineral water dependent on its possessing properties favourable to health.

17 That view is supported by the fact that there is no definition of `properties favourable to health' in the Directive. As the Advocate General rightly pointed out at point 18 of his Opinion, if the Council had wished to make possession of properties favourable to health a characteristic of natural mineral waters, the Directive - which is drafted in precise and detailed terms - would have laid down rules in that respect.

18 Lastly, the clause `which may give natural mineral water properties favourable to health' merely suggests a possible effect of the water's characteristics. The purely descriptive nature of that clause stands in open contrast to the main clause in that sentence, which is framed in binding terms, stating that the characteristics of natural mineral water set out in paragraph 1 `must' have been assessed from various points of view, in accordance with specific criteria and scientific methods approved by the competent authority (see Annex I, Section I, paragraph 2, first sentence).

19 In the light of the above considerations, the answer to the first question must be that Article 1(1) of the Directive in conjunction with Annex I, Section I, paragraphs 1 and 2, thereto must be interpreted as precluding a Member State from making the recognition of water as natural mineral water dependent on its possessing properties favourable to health.

Questions 2 and 3

20 In view of the answer given to the first question, there is no need to answer the second and third questions.

Decision on costs

Costs

21 The costs incurred by the French, Irish, Italian and United Kingdom Governments and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT

(First Chamber),

in answer to the questions referred to it by the Bundesverwaltungsgericht by order of 31 August 1995, hereby rules:

Article 1(1) of Council Directive 80/777/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to the exploitation and marketing of natural mineral waters, in conjunction with Annex I, Section I, paragraphs 1 and 2, thereto, must be interpreted as precluding a Member State from making the recognition of water as natural mineral water dependent on its possessing properties favourable to health.