EN Official Journal of the European Union CE 88/706

(2004/C 88 E/0728)

WRITTEN QUESTION P-0687/04

by Marcelino Oreja Arburúa (PPE-DE) to the Commission

(3 March 2004)

Subject: Infringement of the principle of the freedom of movement of goods

Various dairy businesses in various Member States produce yoghurt which meets national legislation, either post-fermentation pasteurised, heat-treated or long-life, all of these companies export their yoghurts to Portugal and others could do so in future. The result is that the pasteurised yoghurts of the various Member States need to adapt to Portuguese legislation, which demands that the term ‘yoghurt’ be replaced by ‘dairy dessert’, which is completely foreign to the nature of the foodstuff in question. Calling the same product one thing in the exporting country, and another in the importing country gives rise, in this case, to various forms of indirect taxation which impede its movement: in the case of Spain, 5 % for the yoghurt product in Spain, and 19 % for the Portuguese ‘dairy dessert’, which thus constitutes a measure having equivalent effect. Furthermore, and taking due account of the constant and vast jurisprudence of the Court of Justice: Cassis de Dijon (CJ 120/78 of 20.02.1979), Smanor (CJ 298/87 of 14.07.1988), Deserbais (CJ 286/86 of 22.09.1988), Procureur du Roi v Dassonville (CJ 8/74 of 11.07.1974), REWE (CJ 120/76 of 20.02.1979), Rau (CJ 261/81 of 10.11.1982), or Commission v Germany (the beer case) (CJ 178/84 of 12.03.1987), I believe that the principle of mutual recognition of legislation of the country of manufacture is being straightforwardly violated, since it means that the marketing of the imported yoghurt product is more difficult and costly due to the extra expenditure on labelling and packaging, and that the consumer is also burdened by the fact that he may be confused by so generic a name as ‘dairy dessert’, and by a multilingual label in which different names to indicate the nature of the product are used in different languages.

Does the Commission therefore believe that Portugal is failing to meet one of the obligations laid down in the Treaty, violating the principle of the freedom of movement of goods and Article 5 and preliminary recitals 2, 6, 8 and 14 of Directive 2000/13/EC (1) on food labelling? If so, what is it going to do?

Answer given by Mr Fischler on behalf of the Commission

(21 April 2004)

According to the jurisprudence of the European Court, the compatibility of the Portuguese labelling requirements with article 28 of the EC Treaty will depend on the extent to which:

— the characteristics of the pasteurised yoghurts mentioned are not substantially different, particularly as regards the quantity of bacteria, from those of the fresh product; and

— appropriate labelling is sufficient to inform consumers.

The Commission is examining the need to establish legislation on yoghurt and yoghurt-like products which includes the aspects mentioned by the Honourable Member.

Following that examination, which should be completed in the near future, where it is considered appropriate and necessary to establish additional legislation, the Commission will forward a proposal to the Parliament and to the Council.

(1) OJ L 109, 6.5.2000, p. 29.