WRITTEN QUESTION P-0027/03

by Charles Pasqua (UEN) to the Commission

(13 January 2003)

Subject: Protection of the name yoghurt

As a sequel to the European Court of Justice's judgment in the case involving Smanor S.A., the Commission interpretative communication of 15 October 1991(1) on the names under which foodstuffs are sold indicated that it was a characteristic of yoghurt to contain live lactic bacteria in large quantities. Yoghurt is therefore a product whose specific characteristics are recognised by the European authorities.

The communication also specified that using the word yoghurt for a product could mislead consumers as to the real nature of that product.

The version of the Codex alimentarius currently under adoption specifies that, as a general rule, the name yoghurt should only be applied to products that contain live cultures.

Directive 2000/13/EC(2) on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs requires Member States to take the necessary measures to safeguard consumers against the risk of fraud.

In view of the definitions established by the various authorities, is it right for a Member State such as Spain to amend its legislation to extend the use of the name yoghurt to products that no longer contain live cultures in any significant quantities?

In the light of Community principles governing consumer protection, is a Member State such as Spain entitled to amend its rules on the name yoghurt, which previously could only be used for products containing live cultures, and to extend the use of this name to products whose live cultures have been destroyed?

What measures will the Commission take to halt the implementation by Spain of its new legislation on the name yoghurt?

(1) OJ C 270/2.

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

Answer given by Mr Fischler on behalf of the Commission

(11 March 2003)

The purpose of the Commission's interpretative Communication cited by the Honourable Member is to define, in the framework of free circulation of goods, the conditions where a Member State can legitimately insist that a name under which a product is sold in its territory be different from the product name used in the countries of production in order to protect the consumers against risks of confusion between different products.

The condition is that the product is so different as far as its composition or manufacture is concerned, from goods generally known under this name in the Community, that it cannot be considered as belonging to the same category of goods. In this context, the notion of characteristic of a product is important.

In fact, neither the European Court of Justice, nor the Commission (in its interpretative Communication) have given a definition of yoghurt. In the Smanor judgement, the European Court of Justice determines cases where it is necessary to modify a product name to protect consumers against the risk of confusion between different products. In this respect, the Court noted that according to the Codex Alimentarius, the characteristic feature of the product marketed as yoghurt is the presence of specific viable lactic acid bacteria in abundant quantities.

The Court pointed out that there are no common or harmonised rules relating to the manufacture or the marketing of yoghurt, with the exception of Commission Directive 93/102/EEC of 16 November 1993 amending Directive 79/112/EEC on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer(1).

In the absence of Community legislation, a Member State has the right to decide rules such as the use of the name yoghurt and to which product these rules shall apply.

In the framework of Directive 98/34/EC of the Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations(2), the Commission received the draft Spanish legislation mentioned by the Honourable Member. This text allows certain products to be marketed under the denomination of Yoghurt pasteurised after fermentation. The Commission did not express objection against this draft Regulation. In conformity with the procedure laid down in Directive 98/34/EC the Spanish authorities are legally authorised since 26 January 2003 to adopt their legislation.

Notwithstanding, the Commission received several complaints concerning the Spanish legislation, based particularly on Directive 2000/13/EC of the 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. They are currently examining these complaints and the legal situation in the Member States as regards the denomination of yoghurt.

(1) OJ L 291, 25.11.1993.

(2) OJ L 204, 21.7.1998.