EN Official Journal of the European Union C 82/18

Action brought on 2 February 2009 — Commission of the European Communities v Italian Republic

(Case C-47/09)

(2009/C 82/33)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: F. Clotuche-Duvieusart and M. Nardi, Agents)

Defendant: Italian Republic

Form of order sought

The Commission claims that the Court should:

— Declare that, by making it possible to add the adjective ‘puro’ or the phrase ‘pure chocolate’ to the sales names of chocolate products which do not contain vegetable fat other than cocoa butter, the Italian Republic has failed to fulfil its obligations under Article 3 of Directive 2000/36/EC (1) in conjunction with Article 2(1)(a) of Directive 2000/13/EC (2) and Article 3(5) of Directive 2000/36;

— order the Italian Republic to pay the costs.

Pleas in law and main arguments

The labelling and, in particular, sales names of chocolate products have been totally harmonised within the Community, with the aim of ensuring that the consumer is given accurate information, by means of the directive on labelling (2000/13) and the directive on chocolate products (2000/36). Directive 2000/36 provides that products which contain a maximum of 5 % of certain vegetable fats are to be allowed to retain their sales names unchanged but the labelling of those products must contain the specific statement, in bold letters, ‘contains vegetable fats in addition to cocoa butter’.

The Italian legislation at issue, which restricts the addition of the word ‘puro’ to the sales name of products containing only cocoa butter by way of fat alters the harmonised definitions adopted at Community level and undermines them. Given that, in Italian, the word ‘puro’ means unadulterated, untouched and therefore genuine, consumers are led to believe that goods which, while complying with the directive and the conditions laid down therein relating to sales names, contain vegetable fats other than cocoa butter and are not pure, that is to say, they are adulterated, processed and not genuine. That is attributable to the simple fact that those products contain vegetable fats of a kind and in an amount which are nevertheless permitted by the legislation itself without requiring a change in the sales name.

Moreover, the word ‘puro’ is an adjective which qualifies the noun and its use in sales names is subject to compliance with a number of conditions. In particular, Article 3(5) of Directive 2000/36 provides that the use of information or descriptions relating to quality criteria is subject to compliance with conditions laying down a minimum content for dry cocoa solids which is greater than that laid down for the use of names in which those descriptions do not appear. The Italian legislation makes the use of the word ‘puro’ subject simply to the presence of cocoa butter by way of fat and there is no requirement to comply with the higher minimum content for dry cocoa solids. That constitutes an infringement of Article 3(5) of the directive and is misleading for the consumer.

(1) Directive 2000/36/EC of the European Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for human consumption (OJ 2000 L 197, p. 19).

(2) Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000 L 109, p. 29).