CELEX: C2000/149/21
Language: en
Date: 2000-05-27 00:00:00
Title: Case C-24/00: Action brought on 27 January 2000 by the Commission of the European Communities against the French Republic

C 149/12                 EN                      Official Journal of the European Communities                                         27.5.2000
the Rome Bar, and F.M. Moretti, of the Venice Bar, with an                  exceptional cases since measures of that kind restrict trade
address for service in Luxembourg at the Chambers of Elvinger,              between Member States. The importer of a food product must
Hoss & Prussen, 2 Place Winston Churchill, appeal against the               be able to choose between maintaining the name under which
judgment of the Court of First Instance of the European                     the product is sold in the Member State of production or
Communities (Third Chamber, Extended Composition) of                        adopting the name under which similar products are sold in
14 May 1998 in Case T-334/94 Sarrió v Commission [1998]                    the Member State of importation (1). Such freedom of choice
ECR II-1439, seeking to have that judgment set aside, the other             may only be restricted if the product presented under a
party to the proceedings being: Commission of the European                  particular name is so remote, as regards its composition or
Communities (Agent: R. Lyal, assisted by A. Dal Ferro) — the                manufacture, from the goods usually known by that name in
Court (Fifth Chamber), composed of D.A.O. Edward, President                 the Community that it could not be regarded as falling into
of the Chamber, L. Sevón, P. Jann, H. Ragnemalm and                        the same category (2).
M. Wathelet (Rapporteur), Judges, Advocate General: J. Mischo,
Registrar: R. Grass, made an order on 9 March 2000, the
operative part of which is as follows:                                      Chocolate containing up to 5 % vegetable fat other than cocoa
                                                                            butter produced in six Member States meets, as far as cocoa-
1. The requests by Sarrió SA that a hearing be held and, in the            related ingredients are concerned, the same composition
    alternative, that it be authorised to lodge a reply are rejected;       requirements as chocolate which contains no vegetable fat, the
                                                                            only difference being the presence of up to 5 % of such
                                                                            substances; it is accepted under the name ‘chocolate’ in almost
2. The costs are reserved.
                                                                            all the Member States and it is manufactured under that name
                                                                            in six of them. It is referred to in Directive 73/241/EC itself by
(1) OJ C 299 of 26.9.1998.                                                  that name. Accordingly, the Commission considers that it
                                                                            cannot be alleged that the presence of such substances
                                                                            significantly alters the nature of the product to such an extent
                                                                            that the name ‘chocolate’ is misleading as to its essential
                                                                            characteristics. As regards consumer protection, the Com-
                                                                            mission considers that the inclusion on the label of a neutral
                                                                            and objective statement which informs consumers of the
                                                                            presence of vegetable fats other than cocoa butter is the best
                                                                            way of ensuring the free circulation of those products in Spain
Action brought on 14 January 2000 by the Commission
                                                                            whilst at the same time ensuring that Spanish consumers are
of the European Communities against the Kingdom of
                                                                            protected.
                                 Spain
                            (Case C-12/00)                                  (1) Point 18 of Communication 89/C 271/03 on the free movement
                                                                                of foodstuffs within the Community — OJ 1989 C 271, p. 3.
                           (2000/C 149/20)                                  (2) The conditions under which a Member State may legitimately
                                                                                reject the use of a name liable to mislead consumers are set out in
                                                                                the Commission Communication on trade names of food products
An action against the Kingdom of Spain was brought before                       — OJ 1991 C 270, p. 2.
Court of Justice on 14 January 2000 by the Commission of
the European Communities, represented by Gregorio Valero
Jordana, of its Legal Service, acting as Agent, with an address
for service in Luxembourg at the office of C. Gómez de la
Cruz, Wagner Centre, Kirchberg.
The applicant claims that the Court of Justice should:
— Declare that, by prohibiting cocoa and chocolate products                 Action brought on 27 January 2000 by the Commission
    to which vegetable fats other than cocoa butter have been               of the European Communities against the French Republic
    added and which have been lawfully produced in those
    Member States in which the addition thereof is permitted,                                          (Case C-24/00)
    from being marketed in Spain under the name used for
    their marketing in the Member State in which they
    originate, the Kingdom of Spain has failed to fulfil its                                          (2000/C 149/21)
    obligations under Article 28 EC;
— Order the Kingdom of Spain to pay the costs.                              An action against the French Republic was brought before the
                                                                            Court of Justice of the European Communities on 27 January
                                                                            2000 by the Commission of the European Communities,
                                                                            represented by Richard Wainwright, Principal Legal Adviser,
Pleas and principal arguments                                               and Olivier Couvert-Castéra, a national civil servant seconded
                                                                            to the Legal Service, acting as Agents, with an address for
Infringement of Article 28 EC: the obligation to change the                 service in Luxembourg at the office of Carlos Gómez de la
name under which a product is sold can only be justified in                 Cruz, Wagner Centre, Kirchberg.
 ---pagebreak--- 27.5.2000               EN                  Official Journal of the European Communities                                        C 149/13
The applicant claims that the Court should:                            to the full authorisation procedure — entailing an inquiry by
                                                                       the Conseil Supérieur d’Hygiène Publique de France and in
                                                                       some cases by the Académie Nationale de Médecine — which
— Declare that the French Republic has failed to fulfil its            does not set any deadline for the handling of applications,
     obligations under Article 30 of the EC Treaty (now, after         which, in practice, is not completed within a reasonable
     amendment, Article 28 EC) in so far as:                           period. Lastly, the French legislation does not satisfy the
                                                                       requirement that any refusal to grant authorisation must entail
                                                                       certain procedural steps so as to ensure that the trader
     — French legislation fails to provide for the free move-          concerned can challenge that decision before the courts.
         ment of traditional foodstuffs and foodstuffs intended
         for special nutritional purposes, which are lawfully
         manufactured and/or marketed in other Member States
         but contain additives (such as vitamins, minerals and
         other ingredients) not provided for under the French
         legislation;
                                                                       Action brought on 29 January 2000 by the Kingdom of
     — in particular, French legislation fails to provide a            the Netherlands against the Commission of the European
         simplified procedure for having a substance entered on                                   Communities
         the national list of permitted additives, which is
         necessary if the above foodstuffs are to be marketed in
         France;                                                                                 (Case C-26/00)
                                                                                                (2000/C 149/22)
     — the French authorities have impeded the marketing of
         the above foodstuffs in France without establishing           An action against the Commission of the European Communi-
         that they would pose a danger to public health;               ties was brought before the Court of Justice of the European
                                                                       Communities on 29 January 2000 by the Kingdom of the
                                                                       Netherlands, represented by Marc Fierstra, Head of the Euro-
— Order the French Republic to pay the costs of the                    pean Law Section in the Ministry of Foreign Affairs, The
     proceedings.                                                      Hague, and Jantine van Bakel, Member of the Legal Service in
                                                                       that Ministry, acting as Agents.
                                                                       The applicant claims that the Court should:
Pleas in law and main arguments                                        1. Annul Commission Regulation (EC) No 2423/1999 (1) of
                                                                            15 November 1999 introducing safeguard measures in
                                                                            respect of sugar falling within CN code 1701 and mixtures
                                                                            of sugar and cocoa falling within CN codes 1806 10 30
Infringement of Article 28 EC: in the absence of any Com-                   and 1806 10 90 originating in the overseas countries and
munity measure harmonising the approach to additives in                     territories;
traditional foodstuffs, or in foodstuffs intended for special
nutritional purposes, which have not been the subject of a
                                                                       2. Order the Commission to pay the costs of the proceedings.
specific directive, it is for the Member States to define in their
national legislation the applicable rules, provided that these
comply with the EC Treaty, specifically with Articles 28 and
30 EC. On that point, the Commission maintains that, whereas           Pleas in law and main arguments
it is permissible for legislation pursuing a legitimate health
policy objective to set up a prior authorisation system, the           — Infringement of Article 109(1) of Council Decision
Member States have no right to require technical or chemical                91/482/EEC, as amended (‘the OCT Decision’), so far as
analyses or laboratory tests in cases where the same analyses               sugar is concerned (CN code 1701): the Commission has
and tests have already been carried out in another Member                   in this case failed to adduce the evidence necessary to
State and the results are already to hand or available upon                 establish that there are ‘serious difficulties’ and that safe-
request. The French legislation, however, makes no provision                guard measures must be taken. In particular, the quantities
for mutual recognition in this area, with a view to ensuring                of OCT sugar in question are extremely small in both
the free movement of products lawfully manufactured or                      absolute and relative terms. At no time has the Commission
marketed in another Member State and which meet standards                   been able to provide the slightest evidence whatsoever that
equivalent to those set in France for the protection of public              OCT sugar is being sold at below the intervention price.
health. Nor does the French legislation provide for a simplified            The Commission has also misused its powers inasmuch as
procedure for having a substance lawfully used in another                   the measures are clearly designed to protect European
Member State entered on the national list of permitted                      sugar producers against any potential competition from
additives. Thus, under the French rules, foodstuffs already                 imports from outside the Community that are not subject
manufactured or marketed in another Member State are subject                to quota.