CELEX: 62000CJ0012
Language: en
Date: 2003-01-16
Title: Judgment of the Court (Sixth Chamber) of 16 January 2003. # Commission of the European Communities v Kingdom of Spain. # Failure by a Member State to fulfil obligations - Free movement of goods - Directive 73/241/EEC - Cocoa and chocolate products containing fats other than cocoa butter - Products lawfully manufactured and marketed in the Member State of production under the sales name 'chocolate' - Prohibition on marketing under that name in the Member State of marketing. # Case C-12/00.

Case C-12/00 Commission of the European CommunitiesvKingdom of Spain
            «(Failure of a Member State to fulfil obligations – Free movement of goods – Directive 73/241/EEC – Cocoa and chocolate products containing fats other than cocoa butter – Products lawfully manufactured and marketed in the Member State of production under the sales name chocolate – Prohibition on marketing under that name in the Member State of marketing)»
            
               
                  Opinion of Advocate General Alber delivered on 6 December 2001 
                     
               I - 0000 
               
            
                   
               
               
            
               
                  Judgment of the Court (Sixth Chamber), 16 January 2003  
                     
               I - 0000 
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  
                  Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation prohibiting the marketing as chocolate of cocoa and chocolate products containing fats other than cocoa
                     butter and lawfully manufactured in the Member State of production – Not permissible – Whether justifiable – Protection of consumers – No justification
                  (Art. 30 of the EC Treaty (now, after amendment, Art. 28 EC); Council Directive 73/241)A Member State is  in breach of its obligations under Article 30 of the Treaty (now, after amendment, Article 28 EC) where
         it prohibits cocoa and chocolate products which comply with the minimum content requirements for cocoa and cocoa butter, laid
         down in point 1.16 of Annex I to Directive 73/241 on the approximation of the laws of the Member States relating to cocoa
         and chocolate products intended for human consumption to which vegetable fats other than cocoa butter have been added, and
         which are lawfully manufactured in Member States that authorise the addition of such fats, from being  marketed in its territory
         as  
         chocolate, the name under which they are marketed in the Member State of production.Such legislation cannot be justified as being necessary in order to satisfy overriding requirements relating inter alia to
         consumer protection. The addition to cocoa and chocolate products of vegetable fats other than cocoa butter does not substantially
         alter their composition or their nature, so that they retain the characteristics expected by consumers buying products bearing
         the name  
         chocolate. The inclusion in the label of a neutral and objective statement informing consumers of the presence in the product of vegetable
         fats other than cocoa butter is sufficient to ensure that consumers are given correct information. see paras 83, 87-88, 92-93, 98, operative part
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)16 January 2003  (1)
         
         
            
         
               ((Failure by a Member State to fulfil obligations – Free movement of goods – Directive 73/241/EEC – Cocoa and chocolate products containing fats other than cocoa butter – Products lawfully manufactured and marketed in the Member State of production under the sales name chocolate – Prohibition on marketing under that name in the Member State of marketing))
               
            In Case C-12/00, 
            
            
             Commission of the European Communities,  represented by G. Valero Jordana, acting as Agent, with an address for service in Luxembourg,
            
            
            applicant, 
            
            v
             Kingdom of Spain,  represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,
            
            defendant, 
            
            APPLICATION for a declaration that, by prohibiting cocoa and chocolate products to which vegetable fats other than cocoa butter
            have been added, and which are lawfully manufactured in Member States which authorise the addition of those fats, from being
            marketed in Spain under the name used for their marketing in the Member State of production, the Kingdom of Spain has failed
            to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC),
            
            
            THE COURT (Sixth Chamber),,
            
            composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen, V. Skouris (Rapporteur), N. Colneric and J.N. Cunha Rodrigues, Judges, 
            
            Advocate General: S. Alber, Registrar: D. Louterman-Hubeau, Head of Division, 
            
            
            having regard to the Report for the Hearing,after hearing oral argument from the parties at the hearing on 25 October 2001,
            
            after hearing the Opinion of the Advocate General at the sitting on 6 December 2001,
         gives the following
         
         
         Judgment
         1
            
         By application lodged at the Court Registry on 14 January 2000, the Commission of the European Communities brought an action
         under Article 226 EC for a declaration that, by prohibiting cocoa and chocolate products to which vegetable fats other than
         cocoa butter have been added, and which are lawfully manufactured in Member States which authorise the addition of those fats,
         from being marketed in Spain under the name used for their marketing in the Member State of production, the Kingdom of Spain
         has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC). 
         
            
               Legal framework
            Community law
         
         
         2
            
         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 1973 L 228, p. 23) states, in the fourth recital in the preamble, that  
         it is necessary to approximate the provisions relating to these products and to lay down definitions and common rules in respect
         of the composition, manufacturing specifications, packaging and labelling of these products in order to ensure their free
         movement. 
         
         
         3
            
         The fifth recital in the preamble to the directive specifies that  
         it is not possible in this directive to harmonise all those provisions applying to foodstuffs which may impede trade in cocoa
         and chocolate products, although obstacles that persist because of this are bound to decrease as national provisions relating
         to foodstuffs are increasingly harmonised. 
         
         
         4
            
         According to the seventh recital in the preamble to Directive 73/241,  
         the use of vegetable fats other than cocoa butter in chocolate products is permitted in certain Member States, and extensive
         use is made of this facility; ... however, a decision relating to the possibilities and forms of any extension of the use
         of these fats in the Community as a whole cannot be taken at the present time, as the economic and technical data currently
         available are not sufficient to enable a final position to be adopted; ... the situation will consequently have to be re-examined
         in the light of future developments. 
         
         
         5
            
         Article 1 of Directive 73/241 states: For the purposes of this directive, cocoa and chocolate products shall mean the products intended for human consumption defined
         in Annex I.
         
         
         6
            
         Article 10(1) of Directive 73/241 provides: Member States shall adopt all the measures necessary to ensure that trade in the products referred to in Article 1, which
         comply with the definitions and rules laid down in this directive and in Annex I thereof, cannot be impeded by the application
         of national non-harmonised provisions governing the composition, manufacturing specifications, packaging or labelling of these
         products in particular or of foodstuffs in general.
         
         
         7
            
         Article 14(2)(a) of Directive 73/241 is worded as follows: This directive shall not affect the provisions of national laws:
         
         (a)
         at present authorising or prohibiting the addition of vegetable fats other than cocoa butter to the chocolate products defined
         in Annex I.  At the end of a period of three years from the notification of this directive the Council shall decide, on a
         proposal from the Commission, on the possibilities and the forms of extending the use of these fats to the whole of the Community.
         
         
         
         8
            
         Annex I to Directive 73/241 defines chocolate in point 1.16 as  
         the product obtained from cocoa nib, cocoa mass, cocoa powder or fat-reduced cocoa powder and sucrose with or without added
         cocoa butter, having, without prejudice to the definition of chocolate vermicelli, gianduja nut chocolate and couverture chocolate,
         a minimum total dry cocoa solids content of 35% ─ at least 14% of dry non-fat cocoa solids and 18% of cocoa butter ─ these
         percentages to be calculated after the weight of the additions provided for in paragraphs 5 to 8 has been deducted. 
         
         
         9
            
         The first paragraph of point 7(a) of Annex I to Directive 73/241 is worded as follows: Without prejudice to Article 14(2)(a), edible substances, with the exception of flour and starches and of fats and fat preparations
         not derived exclusively from milk, may be added to chocolate, plain chocolate, couverture chocolate, milk chocolate, milk
         chocolate with high milk content, couverture milk chocolate and to white chocolate.
         
         
         10
            
         Directive 73/241 is repealed with effect from 3 August 2003 by the first paragraph of Article 7 of Directive 2000/36/EC of
         the European Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for human consumption
         (OJ 2000 L 197, p. 19). 
         
         
         11
            
         Directive 2000/36 states, in the fifth to seventh recitals in its preamble: 
         
         (5)
         The addition to chocolate products of vegetable fats other than cocoa butter, up to a maximum of 5%, is permitted in certain
         Member States. 
         
         
         (6)
         The addition of certain vegetable fats other than cocoa butter to chocolate products, up to a maximum of 5%, should be permitted
         in all Member States; those vegetable fats should be cocoa butter equivalents and therefore be defined according to technical
         and scientific criteria. 
         
         
         (7)
         In order to guarantee the single nature of the internal market, all chocolate products covered by this directive must be able
         to move within the Community under the sales names set out in the provisions of Annex I to this directive.
         
         
         
         12
            
         Article 2(1) and (2) of Directive 2000/36 provides: 
         
         1.
          The vegetable fats other than cocoa butter as defined in Annex II and listed therein may be added to those chocolate products
         defined in Annex I(A)(3), (4), (5), (6), (8) and (9).  That addition may not exceed 5% of the finished product, after deduction
         of the total weight of any other edible matter used in accordance with Annex I(B), without reducing the minimum content of
         cocoa butter or total dry cocoa solids.
         
         
         2.
          Chocolate products which, pursuant to paragraph 1, contain vegetable fats other than cocoa butter may be marketed in all of
         the Member States, provided that their labelling, as provided for in Article 3, is supplemented by a conspicuous and clearly
         legible statement:  
         contains vegetable fats in addition to cocoa butter. This statement shall be in the same field of vision as the list of ingredients, clearly separated from that list, in lettering
         at least as large and in bold with the sales name nearby; notwithstanding this requirement, the sales name may also appear
         elsewhere.
         
         
         
         13
            
         Finally, according to Article 8(1) and (2) of Directive 2000/36: 
         
         1.
          Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this directive
         before 3 August 2003.  They shall immediately inform the Commission thereof.
         
         
         2.
          These measures shall be applied so as to:
         
         
         
         ─
            authorise the marketing of the products defined in Annex I if they conform to the definitions and rules laid down in this
            directive, with effect from 3 August 2003, 
         
         
         
         ─
            prohibit the marketing of products which fail to conform to this directive, with effect from 3 August 2003. 
         However, the marketing of products failing to comply with this directive but labelled before 3 August 2003 in accordance with
         Council Directive 73/241/EEC shall be permitted until stocks are exhausted.
         
         
         14
            
         According to the second paragraph of Article 14 of Council Directive 79/112/EEC of 18 December 1978 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 (OJ 1979 L 33, p. 1),  
         the Member States shall ... ensure that the sale of foodstuffs within their own territories is prohibited if the particulars
         provided [for] in Article 3 and Article 4(2) do not appear in a language easily understood by purchasers, unless other measures
         have been taken to ensure that the purchaser is informed. 
         
         
         15
            
         The second paragraph of Article 14 of Directive 79/112 was deleted by Directive 97/4/EC of the European Parliament and of
         the Council of 27 January 1997 amending Directive 79/112 (OJ 1997 L 43, p. 21). 
         
         
         16
            
         Article 5(1)(b) and (c) of Directive 79/12, as amended by Directive 97/4, provides: The name under which a foodstuff is sold shall be the name provided for in the European Community provisions applicable to
         it....
         
         (b)
         The use in the Member State of marketing of the sales name under which the product is legally manufactured and marketed in
         the Member State of production shall also be allowed. However, where the application of the other provisions of this directive, in particular those set out in Article 3, would
         not enable consumers in the Member State of marketing to know the true nature of the foodstuff and to distinguish it from
         foodstuffs with which they could confuse it, the sales name shall be accompanied by other descriptive information which shall
         appear in proximity to the sales name. 
         
         
         (c)
         In exceptional cases, the sales name of the Member State of production shall not be used in the Member State of marketing
         when the foodstuff which it designates is so different, as regards its composition or manufacture, from the foodstuff known
         under that name that the provisions of point (b) are not sufficient to ensure, in the Member State of marketing, correct information
         for consumers.
         
         
         
         17
            
         Directive 79/112 was repealed by 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 (OJ 2000
         L 109, p. 29).  Article 16(1) and (2) of the latter directive is worded as follows: 
         
         1.
          Member States shall ensure that the sale is prohibited within their own territories of foodstuffs for which the particulars
         provided for in Article 3 and Article 4(2) do not appear in a language easily understood by the consumer, unless the consumer
         is in fact informed by means of other measures determined in accordance with the procedure laid down in Article 20(2) as regards
         one or more labelling particulars.
         
         
         2.
          Within its own territory, the Member State in which the product is marketed may, in accordance with the rules of the Treaty,
         stipulate that those labelling particulars shall be given in one or more languages which it shall determine from among the
         official languages of the Community.
         
         National legislation
         
         
         18
            
         Real Decreto No 822/1990 of 22 June 1990 (BOE No 154 of 28 June 1990, p. 3399, hereinafter  
         Royal Decree 822/1990) enacted the Reglamentación Técnico-Sanitaria para la elaboración, circulación y comercio de cacao y chocolate (Pure food
         regulation on the manufacture, distribution and marketing of cocoa and chocolate). 
         
         
         19
            
         Article 2(16) of that regulation, entitled  
         Definitions and sales names, defines chocolate as  
         the product obtained from cocoa nib, cocoa mass, cocoa powder or fat-reduced cocoa powder and sucrose with or without added
         cocoa butter, having, without prejudice to the definition of chocolate vermicelli, gianduja nut chocolate and couverture chocolate,
         a minimum total dry cocoa solids content of 35% ─ at least 14% of dry non-fat cocoa solids and 18% of cocoa butter ....  
         
         
         20
            
         In addition, Article 4(1) of that regulation, entitled  
         Prohibited methods, provides: In products from cocoa beans, cocoa nib, cocoa mass, cocoa cakes and cocoa powder, it is prohibited:
         
         
         ─
            to use fats other than cocoa butter; 
         ....
         
         
         21
            
         Real Decreto No 823/1990 of 22 June 1990 (BOE No 154 of 28 June 1990, p. 3407, hereinafter  
         Royal Decree 823/1990) enacted the Reglamentación Técnico-Sanitaria para la elaboración, circulación y comercio de productos derivados de cacao,
         derivados de chocolate y sucedáneos de chocolate (Pure food regulation on the manufacture, distribution and marketing of products
         derived from cocoa, products derived from chocolate and chocolate substitutes). 
         
         
         22
            
         Article 2(7) of that regulation, entitled  
         Definitions and names, includes the following definition: Chocolate substitutes: preparations which, specially formed or molded and likely by their presentation, appearance or consumption
         to be confused with chocolate, fulfil the specific requirements for those preparations laid down by the pure food regulation
         on the manufacture, distribution and marketing of cocoa and chocolate (enacted by Royal Decree 822/1990), ... apart from the
         total or partial substitution for cocoa butter of other edible vegetable fats or their hydrogenated or non-hydrogenated parts,
         and a clear differentiation in labelling.
         Pre-litigation procedure
         
         23
            
         On 9 October 1989, the Spanish Government notified to the Commission, pursuant to Council Directive 83/189/EEC of 28 March
         1983 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1983
         L 109, p. 8), the drafts of Royal Decrees 822/1990 and 823/1990, which were subsequently adopted. 
         
         
         24
            
         The meetings held and the correspondence exchanged in response to that notification made it clear that the Spanish authorities
         interpret Royal Decree 822/1990 to mean that products to which vegetable fats other than cocoa butter have been added, and
         which are lawfully manufactured in Member States which authorise the addition of such fats, may not be marketed in Spain under
         the name  
         chocolate, as in the Member States of production, but solely under the name  
         chocolate substitute. 
         
         
         25
            
         Since it considered that this constituted a restriction on the free movement of cocoa and chocolate products lawfully manufactured
         in other Member States, the Commission, after formally giving the Kingdom of Spain notice to submit its observations, sent
         that Member State a reasoned opinion on 29 July 1998 requesting it to comply with its obligations under Article 30 of the
         Treaty within two months of the notification of that opinion. 
         
         
         26
            
         The Spanish Government replied, by letter of 9 November 1998, that Royal Decree 822/1990 was in compliance with Directive
         73/241 and that the problem raised in the reasoned opinion would be resolved by the amendment of that directive, which was
         being prepared at the time. 
         
         
         27
            
         In those circumstances, the Commission decided to bring the present action. 
         SubstanceArguments of the parties
         
         
         28
            
         First of all, the Commission makes clear that its action relates to the provisions of Royal Decree 822/1990 in so far as they
         are interpreted by the Spanish authorities as prohibiting the marketing in Spain under the name  
         chocolate of cocoa and chocolate products which are lawfully manufactured and marketed in other Member States, when they contain vegetable
         fats other than cocoa butter. 
         
         
         29
            
         The Commission states that chocolate containing vegetable fats other than cocoa butter up to a maximum of 5% of the total
         weight of the product is manufactured under the name  
         chocolate in six Member States (Denmark, Ireland, Portugal, Sweden, Finland and the United Kingdom), that it is accepted under that
         name in all the Member States, with the exception of Spain and Italy, and that it is included under that name in Directive
         73/241. 
         
         
         30
            
         The Commission also points out that, with respect to cocoa-based ingredients, such a product meets the specifications for
         the composition of  
         chocolate set by Directive 73/241, since the addition of fats other than cocoa butter does not imply any reduction in the minimum content
         required by that directive. 
         
         
         31
            
         In those circumstances, the interpretation put forward by the Spanish Government would mean dividing the Member States into
         two groups ─ that is, an area of free movement of chocolate, comprising the Member States which accept marketing under the
         name  
         chocolate of chocolate containing vegetable fats other than cocoa butter, and an area where rules on the  
         purity of chocolate would apply, comprising the Member States which not only do not authorise the manufacture within their territory
         of chocolate which contains vegetable fats other than cocoa butter, but which also prohibit its marketing under the name 
         
         chocolate. 
         
         
         32
            
         The Commission explains that the problem results from the interpretation of Directive 73/241 advocated by the Spanish Government
         rather than from the directive itself.  It maintains that since Directive 73/241 does not definitively regulate the use throughout
         the Community of vegetable fats other than cocoa butter in the manufacture of cocoa and chocolate products, the directive
         cannot be interpreted as tolerating national rules preventing the marketing of cocoa and chocolate products containing such
         vegetable fats which are lawfully manufactured and marketed in the Member State of production in compliance with the directive.
         Accordingly, national legislation of that type must be assessed in the light of Article 30 of the Treaty. 
         
         
         33
            
         In that regard, the Commission takes the view that the obligation under the Spanish legislation to market the products in
         question under the name  
         chocolate substitute significantly obstructs their access to the Spanish market, thereby constituting a measure having equivalent effect to a
         quantitative restriction, in breach of Article 30 of the Treaty. 
         
         
         34
            
         First, the obligation to alter the sales name involves additional packaging and labelling operations, thus leading to increased
         marketing costs in Spain.  Secondly, the term  
         substitute is pejorative, since it always refers to a product which seeks to replace another without possessing all the properties which
         give the product for which it is substituted its value. 
         
         
         35
            
         Basing its argument both on the case-law of the Court and on Article 5(1)(c) of Directive 79/112 as amended by Directive 97/4,
         the Commission claims that prohibiting the use of the sales name allowed in the Member State of production can be justified
         only when the product at issue is so different, as regards its composition or manufacture, from the goods generally known
         under that name in the Community that it can no longer be considered as belonging to the same category. 
         
         
         36
            
         However, the Commission considers that it is not possible to claim that the addition of vegetable fats other than cocoa butter
         to a chocolate product which contains the minimum contents required under Directive 73/241 substantially changes the nature
         of the product, to the point where the use of the name  
         chocolate would create confusion as regards its basic characteristics. 
         
         
         37
            
         In addition, the Commission maintains that the Spanish legislation cannot be justified by an overriding requirement relating
         to consumer protection, since in the present case measures exist which are less restrictive of the free movement of cocoa
         and chocolate products and which ensure the protection of consumer interests, such as the inclusion in the label of a neutral
         and objective indication which informs consumers of the presence in the product of vegetable fats other than cocoa butter.
         
         
         
         38
            
         The Spanish Government states that, while it agrees with the Commission that Directive 73/241 has not settled the question
         of the use, within the Community, of vegetable fats other than cocoa butter in the manufacture of cocoa and chocolate products,
         it concludes from the definition of chocolate set out in point 1.16 of Annex I to that directive that it provides for full
         harmonisation as regards the composition of products which can be marketed under the name  
         chocolate and that products containing vegetable fats other than cocoa butter cannot be considered to comply with the definitions and
         rules provided for in that directive, in accordance with Article 10(1) thereof. 
         
         
         39
            
         Since it therefore considers that products containing vegetable fats other than cocoa butter are manufactured in accordance
         with the national rules of the Member State of production but not in compliance with Directive 73/241, it disputes the assertion
         that the interpretation which it advocates undermines the unity of the internal market.  In particular, it maintains that,
         since the use of vegetable fats other than cocoa butter is a matter for the Member States to decide, it is not really possible
         to speak of an internal market in cocoa and chocolate products which contain those other vegetable fats.  In those circumstances,
         it considers that it is permissible for the Member States to enact, where appropriate, a prohibition on marketing such products
          within their territory under the sales name  
         chocolate when they do not comply with the relevant national legislation. 
         
         
         40
            
         That interpretation is, moreover, supported by the fact that it was necessary to amend the Community legislation in order
         to make it generally admissible within the Community to use vegetable fats other than cocoa butter in chocolate and thus to
         arrive at what the Commission seeks to impose on the Kingdom of Spain by means of the present action for failure to fulfil
         obligations. 
         
         
         41
            
         Since it alleged, in addition, that the Court has consistently held that the interpretation of national law, whether adopted
         before or after a directive, must be carried out in the light thereof and that every national court, when it interprets and
         applies national law, must presume that the Member State had the intention of fulfilling entirely the obligations arising
         from that directive, the Spanish Government contends that it should be presumed that it had the intention of complying with
         Directive 73/241 and that the interpretation of its national legislation is in compliance with that directive.  In those circumstances,
         it takes the view that if the directive is found to contain provisions contrary to the free movement of goods, the responsibility
         must be attributed to the Council, as author of the directive. 
         
         
         42
            
         The Spanish Government denies that its national legislation constitutes a measure with equivalent effect to a quantitative
         restriction and maintains that it is merely a selling arrangement within the meaning of the judgment in Joined Cases C-267/91
         and C-268/91  
          Keck and Mithouard  [1993] ECR I-6097.  It contends, in particular, that the conditions set out in that judgment are satisfied in the present
         case, since the Spanish legislation which governs the name  
         chocolate substitute, under which cocoa and chocolate products containing vegetable fats other than cocoa butter can be marketed, applies to national
         and foreign operators alike and affects in the same manner the marketing of domestic products and of imported products. 
         
         
         43
            
         The Spanish Government considers that, in any event, access to the Spanish market for the products in question is not made
         more difficult by its national legislation. 
         
         
         44
            
         First, it contends that the term  
         chocolate substitute is neutral and merely reflects an objective reality, which is that cocoa and chocolate products which contain vegetable fats
         other than cocoa butter and those which do not are not the same. It adds that the term is a traditional one in Spain and that,
         in the absence of harmonised legislation in the field, the principle of equality requires the Commission to respect the traditional
         names in each Member State. 
         
         
         45
            
         Secondly, it maintains that the requirement to change the sales name of cocoa and chocolate products containing vegetable
         fats other than cocoa butter does not increase the cost of marketing those products in Spain, since that cost is already assumed
         by importers in order to draw up labels in a language easily understood by the consumer. 
         
         
         46
            
         In that regard, it should be noted that Article 16 of Directive 2000/13 gives the Member State in which the product is marketed
         the possibility, already introduced into Directive 79/112 by Directive 97/4, to stipulate within its own territory, in accordance
         with the rules of the Treaty, that obligatory labelling particulars be given in one or more languages, which it is to determine
         from among the official languages of the Community.  Accordingly, when Directive 97/4 was transposed into Spanish law, it
         was required that foodstuffs marketed in Spain bear a label on which obligatory particulars would appear in Spanish. 
         
         
         47
            
         It therefore contends that if, at the time of the repackaging which is in any event required, the term  
         chocolate is replaced by the expression  
         chocolate substitute, it will not involve any additional marketing costs for the products in question. 
         
         
         48
            
         The Spanish Government points out that its national legislation is justified on the basis of consumer protection, since its
         objective is to ensure the quality of the product known to Spanish consumers and which satisfies the definition set out in
         point 1.16 of Annex I to Directive 73/241, which does not refer to vegetable fats other than cocoa butter.  In the first place,
         a reference on the label to the presence of vegetable fats other than cocoa butter does not convey anything to Spanish consumers,
         while the traditional sales name  
         chocolate substitute adequately informs them and, secondly, the addition of vegetable fats other than cocoa butter alters,  
          inter alia , the quality, taste, consistency and durability of the product. 
         
         
         49
            
         Moreover, the Government does not consider it permissible to extend to the whole of the Community, under the Community legislation
         in force at present, an exception which is used in national law in only six Member States, when Directive 73/241 leaves the
         Member States free to authorise or prohibit the addition of vegetable fats other than cocoa butter. 
         
         
         50
            
         Finally, the Spanish Government states that, even if it immediately amended its national legislation in order to permit the
         marketing within its territory under the name  
         chocolate of cocoa and chocolate products containing vegetable fats other than cocoa butter, Article 8 of Directive 2000/36 would prevent
         that new legislation from coming into force before 3 August 2003. 
         Findings of the Court
         Extent of the harmonisation achieved by Directive 73/241
         
         
         51
            
         First of all, the Commission's complaint that the Spanish legislation is incompatible with Community law, inasmuch as it places
         restrictions on the free movement of cocoa and chocolate products containing vegetable fats other than cocoa butter, raises
         the question of the extent of the harmonisation achieved by Directive 73/241. 
         
         
         52
            
         The Commission considers that there has been no harmonisation regarding the use of such vegetable fats in cocoa and chocolate
         products, so that any measures which restrict the free movement of products which contain such fats must be assessed in the
         light of Article 30 of the Treaty. 
         
         
         53
            
         By contrast, the Spanish Government maintains that Directive 73/241 brought about full harmonisation of precisely that matter,
         since it lays down the principle that the use of vegetable fats other than cocoa butter is prohibited in the manufacture of
         cocoa and chocolate products, merely granting Member States the opportunity to derogate from that principle and to maintain
         in force legislation which authorises, within their national territory, the manufacture and marketing under the name  
         chocolate of products containing such fats. 
         
         
         54
            
         It therefore concludes that it is only cocoa and chocolate products which do not contain vegetable fats other than cocoa butter
         which are covered by Directive 73/241 and can therefore qualify for the system of free movement established by Article 10(1)
         thereof. 
         
         
         55
            
         In that regard, it should be noted that the Court has consistently held that, in interpreting a provision of Community law,
         it is necessary to consider not only its wording but also the context in which it occurs and the aims of the rules of which
         it forms part (see,  
          inter alia , Case C-156/98  
          Germany  v  
          Commission  [2000] ECR I-6857, paragraph 50, and Case C-191/99  
          Kvaerner  [2001] ECR I-4447, paragraph 30). 
         
         
         56
            
         First, as regards the objectives of the provisions in question and the context in which they occur, it is clear that Directive
         73/241 was not intended to regulate definitively the use of vegetable fats other than cocoa butter in the cocoa and chocolate
         products to which it refers. 
         
         
         57
            
         In that regard, it should be recalled that the directive was adopted by the Council unanimously on the basis of Article 100
         of the EEC Treaty (after amendment, Article 100 of the EC Treaty, now in turn Article 94 EC) relating to the approximation
         of the laws, regulations or administrative provisions of the Member States which directly affect the establishment or functioning
         of the common market. 
         
         
         58
            
         In particular, the purpose of the Community legislature in adopting Directive 73/241 was to lay down, as is clear from the
         fourth recital in its preamble, definitions and common rules in respect of the composition, manufacturing specifications,
         packaging and labelling of cocoa and chocolate products in order to ensure the free movement of those products within the
         Community. 
         
         
         59
            
         None the less, in the seventh recital in the preamble to Directive 73/241, the Community legislature clearly indicated that,
         in the light of the disparities between Member States' legislation and the insufficient economic and technical data available,
         it could not, at the time the directive was adopted, take a final position on the use of vegetable fats other than cocoa butter
         in cocoa and chocolate products. 
         
         
         60
            
         It must also be pointed out that, as is made clear by the case-file, the reference in the same recital to certain Member States
         where the use of those other vegetable fats was at that time not merely permitted but, moreover, extensive, referred to three
         Member States which had acceded to the Community shortly before the adoption of Directive 73/241, namely the Kingdom of Denmark,
         Ireland and the United Kingdom, and which traditionally permitted the addition to cocoa and chocolate products manufactured
         within their territory of such vegetable fats up to a maximum of 5% of total weight. 
         
         
         61
            
         In those circumstances, the Council merely established, for the use of vegetable fats other than cocoa butter, provisional
         rules which were to be re-examined, in accordance with the second sentence of Article 14(2)(a) of Directive 73/241, at the
         end of a period of three years from its notification. 
         
         
         62
            
         It is in the light of those facts that both the wording and the scheme of the provisions of Directive 73/241 relating to the
         use of vegetable fats other than cocoa butter in the cocoa and chocolate products to which it refers should be analysed. 
         
         
         63
            
         First, the prohibition on the addition to the various cocoa and chocolate products defined in Annex I to Directive 73/241
         of fats and fat preparations not derived exclusively from milk, laid down in point 7(a) of Annex I thereto, is  
         without prejudice to Article 14(2)(a). 
         
         
         64
            
         Article 14(2)(a) for its part expressly provides that Directive 73/241 is not to affect the provisions of national law which
         authorise or prohibit the addition of vegetable fats other than cocoa butter. 
         
         
         65
            
         That provision therefore makes clear that, as regards the use of those other vegetable fats, Directive 73/241 does not seek
         to establish a fully harmonised system under which common rules completely replace existing national rules in the field, since
         it explicitly authorises the Member States to lay down national rules which are different from the common rules which it provides
         for. 
         
         
         66
            
         In addition, in the light of its wording, that provision cannot be interpreted as merely providing for a derogation to the
         principle set out in point 7(a) of Annex I to Directive 73/241 that the addition to the products referred to of vegetable
         fats other than cocoa butter is prohibited. 
         
         
         67
            
         First, Article 14(2)(a) of Directive 73/241 refers not only to national laws which authorise the addition of vegetable fats
         other than cocoa butter but also to those which prohibit that addition. 
         
         
         68
            
         Secondly, that provision states that the Council must subsequently decide on the possibilities and the forms of extending
         the use of those fats to the whole of the Community, which demonstrates that the Community legislature was contemplating only
         the possibility of allowing or rejecting such an extension, and not of prohibiting that use throughout the Community. 
         
         
         69
            
         Both the wording and the scheme of Directive 73/241 indicate therefore that it lays down a common rule, that is, the prohibition
         laid down in point 7(a) of Annex I, and establishes in Article 10(1) free movement for products which comply with that rule,
         while permitting Member States in Article 14(2)(a) to adopt national rules authorising the addition of vegetable fats other
         than cocoa butter to cocoa and chocolate products manufactured within their territory. 
         Applicability of Article 30 of the Treaty
         
         
         70
            
         The preceding analysis makes clear that, in contrast to the argument put forward by the Spanish Government, cocoa and chocolate
         products containing fats not referred to in point 7(a) of Annex I to the directive but whose manufacture and marketing under
         the name  
         chocolate are authorised in certain Member States, in compliance with that directive, cannot be deprived of the benefit of free movement
         of goods guaranteed by Article 30 of the Treaty solely on the ground that other Member States require within their territory
         that cocoa and chocolate products be manufactured according to the common rule regarding composition provided for in point
         7(a) of Annex I to the directive (see, by analogy, Case C-3/99  
          Ruwet  [2000] ECR I-8749, paragraph 44). 
         
         
         71
            
         The Court has consistently held that Article 30 of the Treaty aims to prohibit all rules enacted by Member States which are
         capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (Case 8/74  
          Dassonville  [1974] ECR 837, paragraph 5). 
         
         
         72
            
         In accordance with the judgment in Case 120/78  
          Rewe-Zentral  [1979] ECR 649,  
          Cassis de Dijon , Article 30 of the Treaty prohibits obstacles to the free movement of goods, in the absence of harmonisation of national
         laws, which are the consequence of applying to goods coming from other Member States, where they are lawfully manufactured
         and marketed, rules that lay down requirements to be met by those goods (such as those relating to their name, form, size,
         weight, composition, presentation, labelling and packaging), even if those rules apply to national and imported products alike
         (see,  
          inter alia ,  
          Keck and Mithouard , cited above, paragraph 15; Case C-470/93  
          Mars  [1995] ECR I-1923, paragraph 12; and  
          Ruwet , cited above, paragraph 46). 
         
         
         73
            
         Accordingly, that prohibition also applies to obstacles to the marketing of products whose manufacture is not subject to comprehensive
         harmonisation but which are manufactured in conformity with national rules which are explicitly permitted by the harmonising
         directive.  In such a case, a contrary interpretation would be tantamount to authorising the Member States to partition their
         national markets in regard to products not covered by the Community's harmonisation rules, contrary to the objective of free
         movement pursued by the Treaty (see, by analogy,  
          Ruwet , cited above, paragraph 47). 
         
         
         74
            
         The objection of the Spanish Government that its national legislation constitutes a selling arrangement and accordingly falls
         outside the application of Article 30 of the Treaty, in accordance with  
          Keck and Mithouard , cited above, must also be rejected. 
         
         
         75
            
         In that regard, it must be noted that in paragraph 16 of  
          Keck and Mithouard  the Court pointed out that the application to products from other Member States of national provisions restricting or prohibiting
         certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member
         States within the meaning of the  
          Dassonville  judgment, so long as those provisions apply to all relevant traders operating within the national territory and so long as
         they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States.
         
         
         
         76
            
         However, the need to alter the packaging or the labelling of imported products prevents such requirements from being selling
         arrangements within the meaning of the judgment in  
          Keck and Mithouard  (Case C-33/97  
          Colim  [1999] ECR I-3175, paragraph 37). 
         
         
         77
            
         In those circumstances, it must be concluded that the requirements relating to the labelling and packaging of cocoa and chocolate
         products containing vegetable fats other than cocoa butter under the Spanish legislation do not come under the exception referred
         to in  
          Keck and Mithouard . 
         
         
         78
            
         It is therefore necessary to consider whether and to what extent Article 30 of the Treaty precludes the Spanish legislation,
         which prohibits the marketing within the national territory of cocoa and chocolate products containing vegetable fats other
         than cocoa butter under the sales name  
         chocolate, under which they are lawfully manufactured and marketed in the Member State of production. 
         
         
         79
            
         In that regard, it must be noted that, as the Court has consistently held, while a prohibition such as that under the Spanish
         legislation, which entails the obligation to use a sales name other than that used in the Member State of production, does
         not absolutely preclude the importation into the Member State concerned of products originating in other Member States, it
         is nevertheless likely to make their marketing more difficult and thus impede trade between Member States (see, to that effect,
          
          inter alia , Case 182/84  
          Miro  [1985] ECR 3731, paragraph 22; Case 298/87  
          Smanor  [1988] ECR 4489, paragraph 12; Case 286/86  
          Deserbais  [1988] ECR 4907, paragraph 12; and Case C-448/98  
          Guimont  [2000] ECR I-10663, paragraph 26). 
         
         
         80
            
         In the present case, the prohibition on the use of the sales name  
         chocolate under which cocoa and chocolate products containing vegetable fats other than cocoa butter are lawfully manufactured in the
         Member State of production may compel the traders concerned to adjust the presentation of their products according to the
         place where they are to be marketed and consequently to incur additional packaging costs.  It is therefore liable to obstruct
         intra-Community trade (see, to that effect,  
          Mars , paragraph 13, and  
          Ruwet , paragraph 48, both cited above). 
         
         
         81
            
         Moreover, even if, as the Spanish Government maintains, the obligation to change the sales name does not necessarily entail
         additional packaging costs, it is plain that the name  
         chocolate substitute required in this instance may adversely affect the customer's perception of the products in question, inasmuch as it denotes
         substitute, and therefore inferior, products. 
         
         
         82
            
         The Court has consistently held that the requirement for producers to use designations which are unknown to or less highly
         regarded by consumers is likely to make the marketing of the products in question more difficult and thus impede trade between
         Member States (see, to that effect,  
          Miro , paragraph 22;  
          Smanor , paragraphs 12 and 13; and  
          Guimont , paragraph 26). 
         
         
         83
            
         As to whether such legislation may nevertheless comply with Community law, it is settled case-law that obstacles to intra-Community
         trade resulting from disparities between provisions of national law must be accepted in so far as such provisions are applicable
         to domestic and imported products alike and may be justified as being necessary in order to satisfy overriding requirements
         relating  
          inter alia  to consumer protection.  However, in order to be permissible, such provisions must be proportionate to the objective pursued
         and that objective must not be capable of being achieved by measures which are less restrictive of intra-Community trade (see,
          
          inter alia ,  
          Mars , paragraph 15; Case C-313/94  
          Graffione  [1996] ECR I-6039, paragraph 17;  
          Ruwet , paragraph 50; and  
          Guimont , paragraph 27). 
         
         
         84
            
         In that context, the Court has already held that it is legitimate for a Member State to ensure that consumers are properly
         informed about the products which are offered to them, thus giving them the possibility of making their choice on the basis
         of that information (see,  
          inter alia , Case 216/84  
          Commission  v  
          France  [1988] ECR 793, paragraph 11, and  
          Smanor , paragraph 18). 
         
         
         85
            
         In particular, the Court has consistently held that Member States may, for the purpose of protecting consumers, require those
         concerned to alter the description of a foodstuff where a product offered for sale under a particular name is so different,
         in terms of its composition or production, from the products generally understood as falling within that description within
         the Community that it cannot be regarded as falling within the same category (see,  
          inter alia ,  
          Deserbais , paragraph 13, Case C-366/98  
          Geffroy  [2000] ECR I-6579, paragraph 22, and  
          Guimont , paragraph 30). 
         
         
         86
            
         However, where the difference is of minor importance, appropriate labelling should be sufficient to provide the purchaser
         or consumer with the necessary information (see,  
          inter alia , Case C-269/89  
          Bonfait  [1990] ECR I-4169, paragraph 15; Case C-383/97  
          van der Laan  [1999] ECR I-731, paragraph 24;  
          Geffroy , paragraph 23; and  
          Guimont , paragraph 31). 
         
         
         87
            
         It is therefore important to ascertain whether the addition to cocoa and chocolate products of vegetable fats other than cocoa
         butter substantially alters their composition, so that they no longer present the characteristics expected by consumers buying
         products bearing the name  
         chocolate and that a label providing appropriate information as to their composition cannot be considered sufficient to avoid confusion
         in the minds of consumers. 
         
         
         88
            
         The characteristic element of cocoa and chocolate products within the meaning of Directive 73/241 is the presence of a certain
         minimum cocoa and cocoa butter content. 
         
         
         89
            
         In particular, it should be recalled that, in accordance with point 1.16 of Annex I to Directive 73/241, products meeting
         the definition of chocolate within the meaning of the directive must contain a minimum total dry cocoa solids content of 35%,
         with at least 14% of dry non-fat cocoa solids and 18% of cocoa butter. 
         
         
         90
            
         The percentages set by Directive 73/241 are minimum contents which must be complied with by all chocolate products manufactured
         and marketed under the name  
         chocolate in the Community, independently of whether the legislation of the Member State of production authorises the addition of vegetable
         fats other than cocoa butter. 
         
         
         91
            
         In addition, it must be pointed out that, since Directive 73/241 explicitly permits Member States to authorise the use, in
         the manufacture of cocoa and chocolate products, of vegetable fats other than cocoa butter, it cannot be claimed that the
         products to which those fats have been added, in compliance with that directive, are altered to the point where they no longer
         fall into the same category as those which do not contain such fats. 
         
         
         92
            
         Therefore, the addition of vegetable fats other than cocoa butter to cocoa and chocolate products which satisfy the minimum
         contents required by Directive 73/241 cannot substantially alter the nature of those products to the point where they are
         transformed into different products. 
         
         
         93
            
         It follows that the inclusion in the label of a neutral and objective statement informing consumers of the presence in the
         product of vegetable fats other than cocoa butter would be sufficient to ensure that consumers are given correct information.
         
         
         
         94
            
         In those circumstances, the obligation to change the sales name of those products which is imposed by the Spanish legislation
         does not appear to be necessary to satisfy the overriding requirement of consumer protection. 
         
         
         95
            
         It follows that that legislation, to the extent that it requires the name of products which are lawfully manufactured and
         marketed in other Member States under the sales name  
         chocolate to be altered for the sole reason that they contain vegetable fats other than cocoa butter, is incompatible with Article
         30 of the Treaty.  Finally, the argument put forward by the Spanish Government that in any event it is barred by Article 8 of Directive 2000/36
         from introducing before 3 August 2003 new legislation allowing the marketing within its own territory of cocoa and chocolate
         products containing vegetable fats other than cocoa butter, must be rejected as immaterial. 
         
         
         97
            
         The Court has consistently held that a rule of secondary legislation, such as Article 8 of Directive 2000/36, cannot be interpreted
         as authorising the Member States to impose or to maintain conditions contrary to the Treaty rules on the free movement of
         goods (Case C-47/90  
          Delhaize et Le Lion  [1992] ECR I-3669, paragraph 26; Case C-315/92  
          Verband Sozialer Wettbewerb  [1994] ECR I-317,  
          Clinique , paragraph 12; and Joined Cases C-427/93, C-429/93 and C-436/93  
          Bristol-Myers Squibb and Others  [1996] ECR I-3457, paragraph 27). 
         
         
         98
            
         In the light of all the foregoing considerations, it must be held that, by prohibiting cocoa and chocolate products which
         comply with the requirements as to minimum content laid down in point 1.16 of Annex I to Directive 73/241 to which vegetable
         fats other than cocoa butter have been added, and which are lawfully manufactured in Member States which authorise the addition
         of those fats, from being marketed in Spain under the name used for their marketing in the Member State of production, the
         Kingdom of Spain has failed to fulfil its obligations under Article 30 of the Treaty. 
         
         Costs
         99
            
         Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
         applied for in the successful party's pleadings.  Since the Commission has asked for costs and the Kingdom of Spain has been
         unsuccessful, the latter must be ordered to pay the costs. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Sixth Chamber)
         
         
         hereby: 
         
            
            1.
             Declares that, by prohibiting cocoa and chocolate products which comply with the requirements as to minimum content laid down
            in point 1.16 of Annex I to 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 to which vegetable fats other than cocoa butter have
            been added, and which are lawfully manufactured in Member States which authorise the addition of those fats, from being marketed
            in Spain under the name used for their marketing in the Member State of production, the Kingdom of Spain has failed to fulfil
            its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC); 
            
            
            2.
              Orders the Kingdom of Spain to bear the costs.  
            
            
                  Puissochet
               
               
                  Schintgen 
               
               
                  Skouris 
               
            
                  Colneric
               
               
                  Cunha Rodrigues 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 16 January 2003. 
         
         
         
         
                  R. Grass 
               
               
                  J.-P. Puissochet  
               
            
         
         
         
                  Registrar
               
               
                  President of the Sixth Chamber
               
            
      
      
          1 –
            
             Language of the case: Spanish.