WRITTEN QUESTION E-2462/96 by Caroline Jackson (PPE) to the Commission (23 September 1996)

Subject: Free circulation of chocolate products

In correspondence with Germany in 1989 and Spain in 1990 the Commission specifically confirmed that chocolate products containing vegetable fat other than cocoa butter, manufactured and marketed in a Member State permitting its use, must be marketable in the entire Community under their original name, so long as the consumer is informed about the presence of these fats. This principle has been confirmed by the Commission in its proposal to amend Directive 73/241 (COM(95)722 ((OJ C 231, 9.8.1996, p. 1. )).

In contravention of this principle, Italy has however recently prohibited the import of chocolate products containing vegetable fat originating in countries permitting its use, unless the products are sold under the name 'surrogate chocolate'.

1. Can the Commission confirm that chocolate products containing vegetable fat other than cocoa butter lawfully manufactured in a Member State are permitted to circulate freely within the EU under their original sales name, provided the products are labelled as containing vegetable fat?

2. What steps have been undertaken by the Commission to ensure that Italy respects the principles of the free movement of goods and does not erect barriers to trade within the single market?

Supplementary answer given by Mr Monti on behalf of the Commission (20 May 1997)

Council Directive 73/241/EEC of 24 July 1973 on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption ((OJ L 228, 16.8.1973. )) prohibits the addition of fats not derived exclusively from milk to chocolate products (point 7(a) of Annex 1). However, this prohibition applies 'without prejudice to Article 14(2)(a)', which stipulates that the Directive does 'not affect the provisions of national laws at present authorizing or prohibiting the addition of vegetable fats other than cocoa butter [...]'.

In practice, three Member States (Denmark, Ireland and the United Kingdom) permitted the addition of vegetable fats other than cocoa butter before the Directive entered into force. As a result, a question has arisen concerning the free movement in the rest of the Community of cocoa and chocolate products produced in those Member States under the names provided for in the Directive (such as the term 'chocolate').

The Commission takes the view that the answer to this question must be guided by the principle of free movement of goods. This view derives from the obligation to interpret directives in the light of the rules of the EC Treaty (judgment of 9 June 1992 in Case C-47/90 Delhaize v Promalvin [1992] ECR I-3669; judgment of 11 July 1996 in joined Cases C-427/93, C-429/93 and C-436/93 Bristol Myers Squibb v Paranova [1996] ECR I-3457, paragraph 27).

Pursuant to this principle, the Commission has, in the matter raised by the Honourable Member, instituted proceedings for failure to comply with their obligations against several Member States and has exchanged correspondence with certain other Member States. In most cases, these contacts have enabled any barriers to intra-Community trade in chocolate products to be removed. According to the information in the Commission's possession, there are now no major obstacles preventing chocolate produced and marketed legally in those Member States which permit the addition of a limited percentage of vegetable fats other than cocoa butter from being marketed throughout the Community.

Regarding the situation in Italy, the Commission has received a complaint from a trader concerning the problems referred to in the question. It instructed its Member with special responsibility for the internal market to send a letter requesting the Italian authorities to remedy this situation by adopting more proportionate measures which complied with the principle of free movement of goods and took account of the proposal for a new Directive on cocoa and chocolate products referred to by the Honourable Member. This letter was notified to the Italian authorities on 12 February 1997.