CELEX: 62002CC0040
Language: en
Date: 2003-04-10 00:00:00
Title: Opinion of Mr Advocate General Mischo delivered on 10 April 2003. # Margareta Scherndl v Bezirkshauptmannschaft Korneuburg. # Reference for a preliminary ruling: Unabhängiger Verwaltungssenat im Land Niederösterreich - Austria. # Directive 90/496/EEC - Nutrition labelling of foodstuffs - Vitamin content - Declared value - Average value - Reference date - Permissible differences between the declared value and the value established in the course of an official check - Proportionality - Legal certainty. # Case C-40/02.

OPINION OF ADVOCATE GENERALMISCHO delivered on 10 April 2003  (1)
         Case C-40/02 Margareta Scherndlv Bezirkshauptmannschaft Korneuburg (Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat im Land Niederösterreich (Austria))
            ((Directive 90/496/EEC – Nutrition labelling for foodstuffs – Vitamin content – Declared value – Average value – Reference date – Permissible differences between the declared values and those established in the course of official checks – Proportionality))
            
      
         
      1.  The Unabhängiger Verwaltungssenat im Land Niederösterreich (Independent Administrative Chamber for the  
       Land  of Lower Austria) (
      the national court) has asked the Court for a preliminary ruling on the interpretation and validity of Articles 1(4)(k) and 6(8) of Council
      Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs.  
      
         			(2)
         		 I ─Legal background
       A ─Community law
      
      2.  Under Article 1(4)(k) of Directive 90/496: average value means the value which best represents the amount of the nutrient which a given food contains, and reflects allowances for
      seasonal variability, patterns of consumption and other factors which may cause the actual value to vary.
      
      3.  Article 6(8) of Directive 90/496 provides: The declared values shall, according to the individual case, be average values based on:
      (a) the manufacturer's analysis of the food;  
      
      (b) a calculation from the known or actual average values of the ingredients used;  
      
      (c) a calculation from generally established and accepted data. The rules for implementing the first paragraph with regard in particular to the differences between the declared values and
      those established in the course of official checks shall be decided upon in accordance with the procedure laid down in Article
      10.
      
         			(3)
         		
      4.  Under Article 7(3) of Directive 90/496:Member States shall refrain from laying down requirements more detailed than those already contained in this Directive concerning
      nutrition labelling.
      
      
      
      B ─
       National law
      
      5.  Article 74 of the Gesetz über den Verkehr mit Lebensmitteln, Verzehrprodukten, Zusatzstoffen, kosmetischen Mitteln und Gebrauchsgegenständen
      of 23 January 1975 (Lebensmittelgesetz 1975) (FederalLaw on the marketing of foodstuffs, products intended for human consumption,
      additives, cosmetic products and utensils, BGBl. 1975/86, and BGBl. I, 2001/98,  
      the LMG) provides: 
      (1) A person who incorrectly labels foodstuffs, products for consumption or additives, cosmetic products or consumer goods of
      the kind described in Paragraph 6(a), (b) or (e), or puts into circulation foodstuffs, products for consumption or additives
      or cosmetic products which are incorrectly labelled or such incorrectly labelled consumer goods, is guilty of an administrative
      offence, unless the act is subject to a more severe penalty under Paragraph 63, subparagraph 2 Z 1, and is to be punished
      by the district administrative authorities with a fine up to EUR 7 300....
      
      (4) A person who ... infringes the provisions of a regulation adopted on the basis of Paragraph 10 ... is guilty of an administrative
      offence, unless the act is subject to a more severe penalty under Paragraphs 56 to 64 or other provisions, and is to be punished
      as under subparagraph 1.
      
      
      6.  Paragraph 2 of the Verordnung des Bundesministers für Gesundheit und Konsumentenschutz über die Nährwertkennzeichnung von
      Lebensmitteln (Nährwertkennzeichnungs-Verordnung) (Regulation for nutrition labelling of foodstuffs, BGBl. 1995/896, the 
      
      NWKV), adopted pursuant to Paragraph 10 of the LMG, provides as follows: 
      (1) Subject to subparagraph 2, nutrition labelling shall be optional.
      
      (2) If information relating to nutrition is given when foodstuffs are put into circulation, then ─ except in collective advertising
      campaigns ─ the nutrition labelling must contain the information laid down by Paragraph 5; except, however, that when unpackaged
      foodstuffs are put into circulation, the labelling may be limited to a declaration of the information to which the nutrition
      information refers.
      
      
      7.  According to Paragraph 6 of the NWKV: Under this regulation:...
      9.  average value means the value which best represents the amounts of the nutrients contained in a given foodstuff and takes account of seasonal
      variations, patterns of consumption and other factors which may cause the actual value to change.
      
      
      8.  As provided in Paragraph 8 of the NWKV: 
      (1) The calorific value and the content in nutrients or components of nutrients are to be stated in figures.  The following are
      units to be used:...
      4.  vitamins and minerals: the units listed in the annex.
      
      
      (2) The figures to be stated in accordance with subparagraph 1 are average values which, according to the individual case, are
      based on:
      1.  the manufacturer's analysis of the food;  
      
      2.  a calculation from the known or actual average values of the ingredients used;  
      
      3.  a calculation from generally proven and accepted data.
      
      
      
      II
         
       
      
      
      ─
      The dispute in the main proceedings 
      
      
      
      
      
      9.  By an administrative penal order (
      Straferkenntnis) of the Bezirkshauptmannschaft Korneuburg (Austria) of 30 July 2001, Ms Scherndl was found guilty, in her capacity as the
      person responsible for the firm Hofer KG, of having infringed the provisions of the LMG and/or the NWKV by marketing, on 5
      July 2000 at Stockerau (Austria), the pineapple juice  
      Premium Ananassaft 100%, inasmuch as the vitamin C content, which had been determined for that product (ascorbic acid content), differed by 40% from
      the content stated.  Whereas an ascorbic acid content of 300 mg/l was stated on the product, an analysis by the Federal Institute
      for Food Investigation and Research (the  
      Institute) on 25 October 2000 showed an ascorbic acid content of 430 mg/l.
      
      10.  During the proceedings, Ms Scherndl argued that the method of calculating the average value pursuant to Directive 90/496,
      and thus pursuant also to the national legislation implementing that directive, was intended to create a broad framework.
       Although, according to Ms Scherndl, it would be reasonable for the consumer to want labelling indicating values at the time
      of purchase or consumption of the product, such labelling is not possible where the product has a lengthy conservation period.
       The information given as to nutrition values may therefore refer to any time between sale to the end consumer and the expiry
      of the conservation period indicated.  Given the fact that the vitamin content may diminish considerably under the influence
      of external factors such as air, light, temperature, etc., the values stated or the calculation of the average value refer
      to the end of the minimum conservation period.  In so far as the vitamins listed in Directive 90/496 or in the NWKV do not
      cause hypervitaminosis and there is no objection to overdosage, the values were measured by the manufacturer in such a way
      that they would still be fulfilled at the end of the minimum conservation period.
      
      11.  It is also apparent from the order for reference that the expert report submitted by Ms Scherndl concerning the product in
      question shows quite significant variations in the findings concerning the ascorbic acid content.
      
      12.  According to the Institute, if the data were taken to refer to the end of the minimum conservation period, it would no longer
      be possible to speak of  
      nutrition values but of  
      residual nutrition values.  It is not the normal habit, in purchasing and consumption, to buy or consume food on the last day of its conservation period.
       It is indicated in the literature, moreover, that hypervitaminosis in vitamin D and folic acid has a  
      masking effect capable of hiding a pernicious anaemia.  Ms Scherndl's point of view is based, in part, on  
      recommendations of German associations, which do not reflect the general accepted view of all classes of persons concerned in Austria.
      
      13.  For its part, the national court points out that the NWKV transposes Directive 90/469, several provisions of which were taken
      over verbatim.  In accordance with Article 7(3) of that directive, the NWKV, according to the national court, refrains from
      laying down more detailed provisions than those already contained in the directive.
      
      14.  According to the national court, the question of the method of calculating the average value can be resolved only by Community
      law.  It adds that the rules in Directive 90/496, which have been taken over unchanged in the NWKV, are transposed by corresponding
      penal provisions ─ more specifically, in the form of a rule the details of which remain to be defined (
      Blankettstrafnorm).  Therefore, the criteria to be applied to the rules of conduct referred to above are those applying to the penal provisions,
      although serious doubts were raised as to whether the conditions for applying these criteria were satisfied.
      
      15.  The national court considers that the arguments put forward by Ms Scherndl and by the Institute, and the explanations provided
      in legal literature, clearly show that Directive 90/496 and thus also the NWKV do require average values to be stated but,
      apart from a vague description ─ that is to say, formulated in an imprecise manner ─ of what the Council wishes to be understood
      by  
      average value, they do not provide a definition of that average value that is capable of making that rule comprehensible and applicable.
       In particular, there is no reference date or any precise indication of the variations which are accepted or tolerated.
      
      16.  Neither the economic operators concerned nor the administration are in a position to assess the obligations which arise from
      the directive, with the result that Directive 90/496 does not answer the question whether or not the interpretation contended
      for by Ms Scherndl corresponds to the requirements of the NWKV or the intention of the Council.  In the light of the totally
      imprecise nature of Directive 90/496 where it governs nutrition labelling in relation to vitamins, its provisions are not
      applicable, and, pursuant to Article 7(3) of the directive, Member States do not have the possibility of adopting provisions
      to compensate for that major failing.
      
      17.  According to the national court, which refers to  
       Commission  v  
       Italy ,  
      
         			(4)
         		 Directive 90/496 does not comply with the principle of legal certainty and precision of legal rules and it does not satisfy
      the condition laid down in Article 7 of the European Convention on the Protection of Human Rights and Fundamental Freedoms
      either.
      
      18.  Furthermore, should one follow Ms Scherndl's argument, namely that the definition of average value or its calculation by the
      person responsible leaves the latter with a wide discretion in relation to the reference date and the method of calculation,
      it is obvious that such a statement of the nutrition value ─ even if, according to Directive 90/496, it is  
      simple and easily understood ─ loses all its relevance and suggests to the consumer that the product in question has certain qualities that it does not
      have (or cannot have), contrary to the intention of the directive in question.
      
      19.  The national court states that the disputed legislation entails restrictions on producers' right to property or to the free
      exercise of their business, which are justified only in so far as they serve,  
       inter alia , to enable consumers to be better informed as to the characteristics of the product in question and they are proportionate.
       This is not the case here, so that the restrictions should be disapplied, if only because they are contrary to the principle
      of proportionality.
      
      III ─The questions referred for a preliminary ruling
      
      20.  It was in those circumstances that the national court decided to stay proceedings and to refer the following questions to
      the Court for a preliminary ruling: 
      (1) In the case of indications of vitamin content, is it possible to speak of an  
      average value within the meaning of Article 1(k) of Directive 90/496 where the figure given, based on the manufacturer's analysis of the
      food within the meaning of Article 6(8)(a) of that directive, is the value which the product has at the end of the minimum
      conservation period?  
      
      (2) Does the definition of average value under Article 6(8) of the nutrition labelling directive leave a free choice in relation
      to the reference date and the spread of permissible deviations? 
      
      (3) Is the nutrition labelling directive, in so far as it contains indications of the nutritional value relating to vitamin content,
      to be disapplied on the ground that: 
      (a) it is too vague in relation to the definition [Article 1(k) of the nutrition labelling directive] and calculation [Article
      6(8) of the nutrition labelling directive] of the average value and because of the lack of reference dates or the lack of
      margins of divergence, or 
      
      (b) it contains provisions that are disproportionate to the objective it pursues?
      
      
      
      IV
         
       
      
      
      ─
      Analysis 
      
      
      
      
      
      
      
      A ─
       The first and second questions referred for a preliminary ruling
      
      21.  I suggest examining these two questions, which both concern the reference date to be taken into account in determining the
      average value, together.
      
      22.  By its first question, the national court asks essentially whether it is contrary to Article 1(4)(k) of Directive 90/496 for
      the reference date to be the end of the minimum conservation period; by its second question, the national court asks whether
      Directive 90/496 allows the reference date and the extent of the permissible differences to be chosen freely.
      
      1. Observations submitted to the board 
      
      23.  In her written observations,  
       Ms Scherndl  to a great extent repeats the arguments which she had already expounded before the national court.  
      
         			(5)
         		  She also adds that it is the consumer's right that the value indicated on the packaging be present in the product, even
      on the last day of the period mentioned.  It is, consequently, necessary, according to Ms Scherndl, to overdose the product
      in vitamin C on the ground that it is eliminated during storage.  She argues that this overdosage is a practice commonly followed
      by fruit-juice manufacturers.
      
      24.  Ms Scherndl proposes answering the first question referred to the Court to the effect that, as far as concerns the information
      regarding the vitamin content, one may speak of an average value within the meaning of Article 1(4)(k) of Directive 90/496
      where the figure given, which is based on the manufacturer's analysis of the food in question pursuant to Article 6(8), first
      subparagraph, under (a), of that directive, is the value which the product has at the end of the minimum conservation period.
      
      25.  As for the second question referred to the Court, Ms Scherndl proposes the answer that the definition of average value under
      Article 6(8) of Directive 90/496 allows the reference date and the extent of permissible differences to be chosen freely.
      
      26.  With reference to Article 1(4)(k) of Directive 90/496, the  
       Commission  points out that the Community legislature  
       requires the choice of  
      ... the value which  
       best represents  the amount of the nutrient which a given food contains ..., taking into account factors which may cause the actual value to vary.  
      
         			(6)
         		
      27.  According to the Commission, the question is therefore whether an average value which is based on the content of a nutrient
      at the end of the minimum durability period is still  
      representative within the meaning of the definitions in Directive 90/496.
      
      28.  In this respect, the Commission notes that under Article 3(1)(5) of Directive 2000/13/EC of the European 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,  
      
         			(7)
         		 the date of minimum durability is listed among the mandatory information to be indicated on the labelling of foodstuffs,
      which date is, by virtue of Article 9(1) of the directive, the date up to which the foodstuff retains its specific properties
      when properly stored.  When nutrition labelling is also used in the context of advertising, it is necessary, in accordance
      with Article 3(a) of Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations
      and administrative provisions of the Member States concerning misleading advertising,  
      
         			(8)
         		 as amended by Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997,  
      
         			(9)
         		 to ensure that consumers are not misled as to products' characteristics, for example their specifications.
      
      29.  According to the Commission, when the manufacturer makes nutrition claims on the labelling which include,  
       inter alia , vitamin content, the fact that the average value is determined on the basis of the principle that it will not have diminished
      at the end of the minimum durability period, namely that the quantity of the nutrient (or of the vitamin) is still present
      in the foodstuff at that date in the proportion stated, does not alter the representative nature of the average value within
      the meaning of the definition in Article 1(4)(k) of Directive 90/496.
      
      30.  The Commission thus proposes answering the first question referred to the Court to the effect that, when the vitamin content
      of a product, expressed in average value, corresponds to the quantity of that vitamin still present in the product at the
      end of the minimum durability period, such an indication is not inconsistent with the definition of average value in Article
      1(4)(k) of Directive 90/496.
      
      31.  As regards the second question referred to the Court, the Commission points out that Articles 6(8) and 1(4)(k) of Directive
      90/496 do not provide any particulars as to the reference date.  Since these provisions do not restrict the choice of reference
      date, it is clear that, as regards substances such as vitamin C, the average value will vary according to the reference date
      chosen.
      
      32.  As regards the difference tolerated between the actual value and the average value declared, the Commission considers that
      it depends,  
       inter alia , on the rapidity with which the foodstuff concerned perishes under certain conditions and on the length of the period between
      the manufacture of the foodstuff and the end of the minimum durability period.
      
      33.  Until now, according to the Commission, the Community legislature has not used the possibility, stated in Article 6(8), second
      subparagraph, of Directive 90/496, of laying down  
      rules for implementing the first paragraph with regard in particular to the differences between the declared values and those
      established in the course of official checks nor of fixing general tolerance margins for vitamin C.  The Commission thus considers that Member States are free to lay
      down this technical point ─ to be prescribed for each nutrient ─ according to their own knowledge and experience, or to continue
      to apply the national standards in force until harmonisation takes place.
      
      34.  The Commission also submits that, as far as concerns the well-known instability of vitamin C, differences varying between
      - 20% and - 50% are generally acceptable, according to the information available to the Commission.  Amongst those Member
      States which have notified their tolerance margins to the Commission, the Italian Republic notified a permissible difference
      of - 20% to + 100% for vitamin C in the context of Directive 98/34/EC of the European 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.  
      
         			(10)
         		
      35.  More specifically, the Commission considers that neither differences of 40% from the declared value nor the fact that the
      value is based on the end of the minimum durability period allow it to be inferred that nutrition claims as to vitamin C content
      in fruit juice are contrary to Community law.
      
      36.  The Commission suggests answering the second question referred to the Court to the effect that Directive 90/496, read in conjunction
      with other Community-law provisions, does not grant Member States a  
      free choice as to the reference date and the permissible differences, but prescribes the choice of the value which  
      best represents the nutrient contained in the foodstuff, taking into account certain factors and in the context of a given tolerance
      margin, in accordance with Article 1(4)(k) of the directive.
      
      37.  The  
       Council   has not adopted a view on the first and second questions referred to the Court.
      
      2. Assessment
      
      38.  Directive 90/496 specifies neither the reference date (or dates) to be taken into account in establishing the average value
      nor the acceptable differences between the average value given on the label and the average value actually established in
      the course of a check.
      
      39.  The provisions of Directive 90/496 concerning the average value do no more than, on the one hand, define the average value
      in general terms as being the value which best represents the amount of a nutrient in a given foodstuff, taking into account
      factors which could cause the actual value to vary (Article 1(4)(k)) and, on the other hand, lay down the elements on which
      the average value must be established (Article 6(8), first subparagraph).
      
      40.  However, Directive 90/496, and more particularly Article 6(8), second subparagraph, thereof, grants the Commission the power
      to adopt, in accordance with the procedure provided for in Article 10 of the same directive, implementing rules  
      ... with regard in particular to the differences between the declared values and those established in the course of official
      checks ..., a power which appears also to cover, because of the term  
      in particular, the laying down of the reference date (or dates) to be taken into account in determining the average value.
      
      41.  As such implementing rules have not, however, been adopted, is it in the meantime the task of Member States, as the Commission
      argues, to provide the necessary details?
      
      42.  I take the view that it is.
      
      43.  Directive 90/496 is based on Article 100a of the EC Treaty (now, after amendment, Article 95 EC).  The measures capable of
      being adopted on the basis of this article are not restricted to the approximation of national legislation but also include,
      as is the case here for Article 6(8), second subparagraph, of Directive 90/496, the adoption of provisions providing for the
      intervention of the Community authorities.  
      
         			(11)
         		
      44.  However, as Article 100a of the EC Treaty enables the Community to act in fields which are outside the competence of the Member
      States, that competence can only be restricted to the extent that rules have, in fact, been adopted in accordance with Article
      100a of the EC Treaty.  Therefore, the mere fact that, on the basis of that same provision, the Community decides that it
      will decide is not sufficient for it to be concluded that a matter no longer falls within the competence of the Member States.
      
      45.  Therefore, in the absence of implementation of Article 6(8), second subparagraph, of Directive 90/496, it is for Member States
      to specify the reference date (or dates) and the permissible differences in compliance with the provisions and the purpose
      of Directive 90/496.
      
      46.  Like the Commission, I take the view that this argument is not inconsistent with Article 7(3) of Directive 90/946, according
      to which  
      Member States shall refrain from laying down requirements more detailed than those already contained in this Directive concerning
      nutrition labelling.
      
      47.  This provision should be read in conjunction with the first two paragraphs of the same article,  
      
         			(12)
         		 which clearly concern the manner in which labelling should be presented.  Paragraph 3 must therefore be considered as referring
      to the same subject-matter and not to other matters such as the method of determining the average value.
      
      48.  What is the position, however, if the Member State has not specified the reference date (or dates) or the permissible differences?
      Such would seem to be the case here, as the national court explains that the national rules have refrained from laying down
      requirements more detailed than those already contained in Directive 90/496.
      
      49.  In that regard, it should be remembered that  
      ... the Member States' obligation under a directive to achieve the result envisaged by the directive and their duty under
      Article 5 of the EC Treaty (now Article 10 EC) to take all appropriate measures, whether general or particular, to ensure
      fulfilment of that obligation are binding on all the authorities of the Member States,  
       including, for matters within their jurisdiction, the courts  (see,  
       inter alia , Case C-168/95  
       Arcaro  [1996] ECR I-4705, paragraph 41).  
      
         			(13)
         		
      50.  More specifically, taking account of the fact that the national court must apply national criminal-law rules, I think that
      one should refer to  
       X 
         			(14)
         		 in which the Court held as follows: 
      
      25
         
       More specifically, in a case such as that in the main proceedings, which concerns the extent of liability in criminal law
      arising under legislation adopted for the specific purpose of implementing a directive, the principle that a provision of
      the criminal law may not be applied extensively to the detriment of the defendant, which is the corollary of the principle
      of legality in relation to crime and punishment and more generally of the principle of legal certainty, precludes bringing
      criminal proceedings in respect of conduct not clearly defined as culpable by law.  That principle, which is one of the general
      legal principles underlying the constitutional traditions common to the Member States, has also been enshrined in various
      international treaties, in particular in Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms
      (see,  
       inter alia , the judgments of the European Court of Human Rights in  
       Kokkinakis  v  
       Greece , 25 May 1993, Series A, No 260-A, paragraph 52, and in  
       S.W . v  
       United Kingdom   and  
       C.R.  v  
       United Kingdom , 22 November 1995, Series A, No 335-B, paragraph 35 and No 335-C, paragraph 33). 
      
      
      26
         
       The national court must therefore ensure that that principle is observed when interpreting, in the light of the wording and
      the purpose of the Directive, the national legislation adopted in order to implement it.
      
      
      51.  It therefore appears to me that, in the present case, when interpreting, in the light of the wording and the purpose of Directive
      90/496, the legislation adopted in order to implement it, the national court must apply the abovementioned principle which
      precludes bringing criminal proceedings in respect of conduct not clearly defined as culpable by law.
      
      52.  More specifically, as regards the determination of the reference date, one solution, where appropriate, might be for the national
      court to use the end of the minimum conservation period as the reference date, as Ms Scherndl argues.
      
      53.  I take the view, and here I am dealing in fact with the first question referred to the Court, that Directive 90/496 does not
      preclude the figure which gives the average value from representing the value of the product at the end of the minimum conservation
      period.
      
      54.  In this respect, it should be observed that Article 1(4)(k) of Directive 90/496 defines the average value, in general terms,
      as the value which best represents the amount of the nutrient which a given food contains, taking into account the factors
      which may cause the actual value of the nutrient to vary.
      
      55.  That definition does not preclude, as regards substances such as vitamin C the content in which, it is not disputed, can decrease
      when influenced by external factors such as air, light, temperature, etc, the value of the substance at the end of the minimum
      conservation period from being considered as the average value.
      
      56.  That interpretation appears to me to be confirmed by Directive 2000/13, to which the Commission refers.  Although the date
      of minimum durability of a foodstuff is the date until which the foodstuff retains its specific properties when properly stored,
       
      
         			(15)
         		 the validity of labelling mentioning the vitamin C content of the foodstuff in question at that date cannot be disputed.
      
      57.  I would add that, where the value mentioned on the labelling is no longer present in the product before the end of the minimum
      conservation period, the consumer would be entitled to consider himself to have been misled.
      
      58.  In the light of all the foregoing, I therefore propose answering the first and second questions referred to the Court to the
      effect that, in the absence of implementation of Article 6(8), second subparagraph, of Directive 90/496, it is for Member
      States to specify the reference date (or dates) to be taken into account in the determination of the average value and the
      permissible differences in compliance with the provisions and the purpose of that directive.  In this regard, Article 1(4)(k)
      of Directive 90/496 does not preclude the figure which gives the average value and which is based on an analysis of the foodstuff
      in question carried out by the manufacturer pursuant to Article 6(8), first subparagraph, under (a), of that directive, from
      representing the value which the product has on expiry of the minimum conservation period.
      
      
      
      B ─
       The third question referred for a preliminary ruling
      
      59.  By its third question, the national court wonders whether Directive 90/496 is invalid, on the grounds that, according to the
      national court, 
      (a) it is too vague in relation to the definition [Article 1(k) of the nutrition labelling directive] and calculation [Article
      6(8) of the nutrition labelling directive] of the average value and because of the lack of reference dates or the lack of
      margins of divergence, or 
      
      (b) it contains provisions that are disproportionate to the objective it pursues
      . 
      
      1. Observations submitted to the board 
      
      60.   Ms Scherndl  proposes answering this question to the effect that, essentially, Directive 90/496 should not be applied, in so far as that
      directive includes information as regards nutrition value, on the grounds that it is too imprecise and that its provisions
      are disproportionate to the objective to be attained.
      
      61.  The  
       Council , for its part, considers that Directive 90/496 is valid.
      
      62.  The Council contends, as regards the statement of nutrition value based on vitamin content, that Directive 90/496 satisfies
      the requirement of legal clarity.  The Council not only defined the meaning of average value in Article 1(4)(k) of that directive,
      having regard to variations in the actual value due to seasonal variations, storage and other factors, but also expressly
      stated the factors which may be taken into account in the determination of average values with a view to determining the 
      
      declared value, in Article 6(8), first subparagraph, of that directive.
      
      63.  Furthermore, according to the Council, even if the Court was to consider that the term  
      average value and Article 6(8), first subparagraph, of Directive 90/496 considered in isolation are lacking in precision, this would not
      as such entail the inapplicability of these provisions.  The procedure provided for in Article 6(8), second subparagraph,
      of that directive provides a global response to any need for clarification.  The Council considers, in addition, that it would
      be difficult, if not impossible, to provide a definition of average value in the directive which would be sufficiently precise
      to cover the full range of situations which could arise.  In the Council's view, it is preferable to resolve such issues in
      the context of the Committee procedure rather than in the directive itself.
      
      64.  The Council adds that the rules on the basis of which it may be established whether the provision in question of Directive
      90/496 satisfies the conditions as regards specificity, accuracy and clarity are not criminal-law rules, contrary to what
      the national court claims.  The provisions of the directive are not of a criminal nature and although Member States must provide
      for effective, proportionate and dissuasive sanctions in the event of a breach of Community law, it is none the less not obligatory
      under the directive for Member States to adopt criminal sanctions for that purpose.  The validity of the directive cannot
      therefore be questioned solely because the Republic of Austria has laid down criminal penalties in order to ensure the effective
      implementation of Directive 90/496.
      
      65.  The Council also considers that Directive 90/496, including the provisions at issue, do not go beyond what is necessary to
      attain the objective, laid down in Article 95 EC, of the establishment of the internal market based on a high level of protection
      of health and consumers.
      
      66.  Directive 90/496 starts from the premiss that there is a relationship between diet and health, that knowledge of the basic
      principles of nutrition and appropriate nutrition labelling of foodstuffs would contribute significantly towards enabling
      the consumer to choose an appropriate diet, and that the labelling should assist action in the area of nutrition education
      for the public (see, in particular, the second, fourth and fifth recitals in the preamble to the directive).
      
      67.  It is proven that vitamins, including vitamin C, are an important part of our diet and that provisions on nutrition labelling
      which did not mention vitamins would be incomplete.  Although the declared value for vitamin C is likely to vary, at a given
      time, from the actual value, this does not change the fact that a statement of the vitamin content is, overall, helpful for
      the consumer.
      
      68.  According to the Council, it should also be borne in mind that one of the objectives of Directive 90/496 is the progressive
      establishment of the internal market, notably in ensuring nutrition labelling in a standardised form throughout the Community
      (see, in particular, the first and sixth recitals in the preamble to the directive).  This uniformity is achieved,  
       inter alia , in accordance with the procedure provided for in Article 6(8), second subparagraph, of the directive.
      
      69.  The  
       Commission  asserts that, in view of its observations in response to the first two questions, there is nothing to suggest that Directive
      90/496 is not applicable.
      
      2. Assessment
      
      70.  I agree entirely with the observations submitted by the Council.
      
      71.  It should be borne in mind that under Article 249 EC, third paragraph,  
      [a] directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall
      leave to the national authorities the choice of form and methods.
      
      72.  A directive is not therefore an instrument to be applied unchanged but a set of rules which  
      ... must be implemented by appropriate implementing measures carried out by the Member States ....  
      
         			(16)
         		
      73.  It is not inconceivable that Member States, when adopting national measures transposing a directive, may be required to define
      more closely certain concepts appearing in the directive.  
      
         			(17)
         		  Likewise, as Directive 90/496 confirms, concepts may also be clarified by the adoption of implementing measures by the Community
      authorities.
      
      74.  Therefore, rather than being a reason for a directive to be found invalid, the requirement of accuracy constitutes either,
      if it is the task of the Member States to provide particulars, a normal characteristic of the directive and even an expression
      of the principle of subsidiarity or, if the power to provide detailed particulars is delegated by the Council to the Commission
      in the framework of the Committee procedure, an application of Article 202 EC, final indent.
      
      75.  I therefore propose answering the third question referred by the national court to the effect that consideration of this question
      has disclosed nothing to affect the validity of Directive 90/496.
       
      V ─Conclusion
      
      76.  In the light of the foregoing considerations, I propose answering the questions referred by the national court as follows:
      
      
      ─
         the first and second questions: 
      
      In the absence of implementation of Article 6(8), second subparagraph, of Council Directive 90/496/EEC of 24 September 1990
      on nutrition labelling for foodstuffs, it is for Member States to specify the reference date (or dates) to be taken into account
      in the determination of the average value and the permissible differences in compliance with the provisions and the purpose
      of that directive.  In this regard, Article 1(4)(k) of Directive 90/496 does not preclude the figure which gives the average
      value and which is based on an analysis of the foodstuff in question carried out by the manufacturer pursuant to Article 6(8),
      first subparagraph, under (a), of that directive, from representing the value which the product has on expiry of the minimum
      conservation period;
      
      
      ─
         the third question:
      
      Consideration of this question has disclosed nothing to affect the validity of Directive 90/496.
      
       1 –
         
           Original language: German.
      
      2 –
         
         OJ 1990 L 276, p. 40.
      
      3 –
         
         This last provision provides for a Committee procedure, under which the Commission is to adopt measures following referral
            to the Standing Committee on Foodstuffs.
         
      
      4 –
         
         Case C-159/99 [2001] ECR I-4007.
      
      5 –
         
         See point 10 above.
      
      6 –
         
         Emphasis given in the original text.
      
      7 –
         
         OJ 2000 L 109, p. 29.
      
      8 –
         
         OJ 1984 L 250, p. 17.
      
      9 –
         
         OJ 1997 L 290, p. 18.
      
      10 –
         
         OJ 1998 L 204, p. 37.
      
      11 –
         
         See Case C-359/92  
             Germany  v
             Council   [1994] ECR I-3681, paragraph 37.
         
      
      12 –
         
          1. The information covered by this Directive must be presented together in one place in tabular form, with the numbers aligned
            if space permits. Where space does not permit, the information shall be presented in linear form. It shall be presented in legible and indelible characters in a conspicuous place. 2. Member States shall ensure that the information covered by this Directive appears in a language easily understood by purchasers,
            unless other measures have been taken to ensure that the purchaser is informed. This provision shall not prevent such information
            from being indicated in more than one language.
         
      
      13 –
         
         Case C-62/00  
             Marks & Spencer  [2002] ECR I-6325, paragraph 24.
         
      
      14 –
         
         Joined Cases C-74/95 and C-129/95 [1996] ECR I-6609.
      
      15 –
         
         See also Case C-229/01  
             Müller  [2003] ECR I-2587, paragraph 33.
         
      
      16 –
         
         Case 102/79  
             Commission   v  
             Belgium  [1980] ECR 1473, paragraph 12.
         
      
      17 –
         
         See  
             X , paragraphs 29 and 30.