WRITTEN QUESTION E-3842/98

by Luciano Vecchi (PSE) to the Commission

(22 December 1998)

Subject: Infringement proceedings brought against Italy in connection with trade in cocoa- based products

In recent months, the Commission has embarked on procedures to bring an action against Italy (as well as Spain) for alleged infringement of the principle of free movement of goods inside the EU, because Italy is preventing products containing vegetable fats other than cocoa butter from being sold as "chocolate", in other words implementing correctly the provisions of the directive on cocoa-based products currently in force, which dates back to 1973.

It should be noted that legislation to amend that directive is in the pipeline.

The Commission is threatening to bring the matter before the European Court of Justice.

Would the Commission state:

- whether it really intends to bring the matter before the Court of Justice?

- why it considers that Italy and Spain should not apply the 1973 directive which is currently in force?

- why it does not believe it should wait until the legislative process has run its course?

- why it is continuing to promote the interests of a small number of multinationals at the expense of cocoa producers, "independent" chocolate manufacturers and European consumers, and in so doing actually infringing Community law?

Answer given by Mr Monti on behalf of the Commission

(4 March 1999)

The Commission has actually launched infringement proceedings against Italy and Spain because of the rules in force in these two Member States concerning the marketing of chocolate products. In both Member States, a product legally manufactured in another Member State which contains vegetable fats other than cocoa butter can only be marketed as a chocolate substitute, which in effect excludes that product from the market.

Seven Member States currently allow vegetable fats other than cocoa butter to be used in the manufacture of chocolate products, up to a maximum of 5 % of their total weight. This practice is specifically permitted under 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(1), to which the Honourable Member refers (see in particular Article 14(2a)). Since such products have been legally manufactured in the Community, the principle of freedom of movement applies to them, unless the Member State intending to refuse free movement can demonstrate that the products constitute a threat, in this case to consumer protection.

With regard to the aforementioned infringement proceedings, the Commission sent reasoned opinions to the two Member States in accordance with the procedure provided for under Article 169 of the EC Treaty. The Commission is examining the replies and will decide what further action to take once its examination is complete.

The Commission considers that the Directive does not oblige Italy or Spain to prohibit (as they have done in practice) products from the seven Member States which allow the manufacture of chocolate products containing a maximum of 5 % vegetable fat other than cocoa butter. Since the Directive does not resolve the issue of the addition of these other ingredients, the general Treaty provisions on the free movement of goods apply, pending an amendment to the Directive. Nowhere does Community law state that the Commission must await the adoption of secondary legislation before asking a Member State to stop applying a national measure which it considers to be incompatible with the Treaty provisions. Furthermore, it should be noted that the draft Directive amending Directive 73/241/EEC(2) allows Member States to authorise a fat content of 5 % in chocolate and guarantees that such products can move freely in the Community if their labelling shows clearly that the chocolate contains these fats. The measures which the Commission has asked Spain and Italy to adopt in the course of the current infringement proceedings are therefore consistent with the draft Directive.

From the above, it is clear that by launching the current proceedings, the Commission is seeking to guarantee compliance with Community law in force and to ensure that the Internal Market works properly. In no way is it seeking to give preferential treatment to the economic interests of any industrial group or sector.

(1) OJ L 228, 16.8.1973.

(2) COM(97) 682 final.