WRITTEN QUESTION E-0835/97 by Maartje van Putten (PSE) to the Commission (10 March 1997)

Subject: Internal market in chocolate

The EU Member States are known to lack harmonized specifications for the composition of chocolate.

1. Can the Commission state whether, in view of their exemptions from the directive in force (73/241/EEC) ((OJ L 228, 16.8.1973, p. 23. )), the United Kingdom, Ireland and Denmark have the right to export chocolate products in which other vegetable fats have been part-substituted for cocoa butter to other EU Member States under the name 'chocolate'?

2. Can the Commission state on what compromise between the directive in force and general internal market rules as laid down in Articles 30-36 of the Treaty its position is based?

3. Can the Commission state what case law exists in this connection or if any legal proceedings are being conducted in relation to this matter?

Joint answer to Written Questions E-0834/97 and E-0835/97 given by Mr Bangemann on behalf of the Commission (30 April 1997)

Article 14(2)(a) of Directive 73/241/EEC relating to cocoa and chocolate products does not affect national laws 'at present authorizing or prohibiting the addition of vegetable fats other than cocoa-butter to the chocolate products ...'.

The question thus arises of the free movement in the rest of the Community of cocoa and chocolate products manufactured in these Member States under the names provided for by the Directive (e.g. 'chocolate'). To date, this situation has not been brought before the Court of Justice.

In the Commission's view, the answer to this question must be based on the principle of free movement of goods enshrined in Articles 30 et seq. of the EC Treaty and the respective case law. This results from the duty to interpret a directive in the light of the rules of the Treaty (Judgment of 9 June 1992, Case C-47/90 Ets Delhaize Frères et Cie, ECR I-3669; Judgment of 11 July 1996, Joined Cases C-427/93 and C-436/93 Bristol-Myers Squibb et al. v Paranova, ground 27).

Thus, if the addition of vegetable fats other than cocoa-butter to cocoa and chocolate products is within a certain limit (approximately 5% by weight of the finished product), the product thus manufactured does not lose its quality as chocolate provided, of course, that all the parameters applicable to chocolate (in particular its cocoa bean content) are met. In particular, fats from cocoa beans must not replace cocoa-butter, they must be added to it.

Working on the basis of the consistent case law of the Court of Justice, the Commission takes the view that correct information for consumers can be guaranteed by adopting less restrictive measures than a change in the trade name of the products in question, by way of, for example, suitable indication on the label to draw the attention of consumers to the presence of fats other than cocoa-butter, it being understood that, where appropriate, any measures adopted must comply with the Community law applicable and in particular with Article 30 of the EC Treaty.

The Treaty of Accession of Austria, Finland and Sweden does not raise the question of using vegetable fats other than cocoa butter in chocolate products.

In the Commission's opinion, a satisfactory solution to the problems raised by the Honourable Member should be found in the Community legislation. A proposal has thus been submitted to Parliament and to the Council ((COM(95) 722. )) and this is currently being examined by Parliament.