CELEX: 62002CJ0040
Language: en
Date: 2003-10-23
Title: Judgment of the Court (Sixth Chamber) of 23 October 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.

Case C-40/02 Margareta ScherndlvBezirkshauptmannschaft Korneuburg(Reference for a preliminary ruling from the 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)»
            
               
                  Opinion of Advocate General Mischo delivered on 10 April 2003 
                     
               I - 0000 
               
            
                   
               
               
            
               
                  Judgment of the Court (Sixth Chamber), 23 October 2003  
                     
               I - 0000 
               
            
                   
               
               
            
            Summary of the Judgment
         
         
                  1..
                  Approximation of laws – Nutrition labelling of foodstuffs – Directive 90/496 – Reference date for determining the value of a nutrient – End of minimum conservation period – Whether permissible – Determination of permissible differences between the declared value and the value established in the course of an official
                     check – Competence of the Member States  
                  (Council Directive 90/496, Arts 1(4)(k) and 6(8)) 
         
                  2..
                  Approximation of laws – Nutrition labelling of foodstuffs – Directive 90/496 – Breach of the principles of legal certainty and proportionality – None  (Council Directive 90/496, Arts 1(4)(k) and 6(8)) 
         
         1.
          Articles 1(4)(k) and 6(8) of Directive 90/496 on nutrition labelling for foodstuffs must be interpreted as meaning that, first,
         the value of a nutrient such as vitamin C which is indicated on a foodstuff following an analysis of the foodstuff carried
         out by the manufacturer may correspond to the value of that nutrient in the foodstuff in question at the end of its minimum
         conservation period and, second, that the determination of the permissible differences between the value stated and the value
         established in the course of an official check is, in the present state of Community law, within the competence of the Member
         States. see para. 41, operative part 1
         
         2.
          The validity of Directive 90/496 on nutrition labelling for foodstuffs is not called into question by the fact that Articles
         1(4)(k) and 6(8) of that directive do not contain precise indications either on the reference date to be taken into consideration
         for determining the average value of a nutrient contained in a foodstuff or on the extent of the differences tolerated between
         the declared value and the value established in the course of an official check. First, far from disregarding the principle of legal certainty, the Community legislature, in accordance with the third paragraph
         of Article 249 EC, fixed the result to be achieved, namely enabling consumers to choose an appropriate diet inter alia by
         stating average values which best represent the value of the nutrients in question and take various factors into account,
         while leaving to the national authorities the choice of form and measures to achieve that result. Second, by thus giving the
         national authorities a discretion as to the definition both of the reference date for calculating the average value and of
         the differences tolerated between the declared value and that actually established in the course of an official check, Articles
         1(4)(k) and 6(8) of the directive do not contain inappropriate or disproportionate restrictions on the activity of manufacturers
         of foodstuffs. see paras 47-49, operative part 2
      

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Sixth Chamber)23 October 2003  (1)
         
         
            
         
               ((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))
               
            In Case C-40/02, 
            REFERENCE to the Court under Article 234 EC by the Unabhängiger Verwaltungssenat im Land Niederösterreich (Austria) for a
            preliminary ruling in the proceedings pending before that court between 
            
            
            
             Margareta Scherndl 
            
            
            and
            
             Bezirkshauptmannschaft Korneuburg, 
            
            
            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 (OJ 1990 L 276, p. 40),
            
            THE COURT (Sixth Chamber),,
            
            composed of: J.-P. Puissochet, President of the Chamber, R. Schintgen, V. Skouris, F. Macken and J.N. Cunha Rodrigues (Rapporteur), Judges, 
            
            Advocate General: J. Mischo, Registrar: R. Grass, 
            
            
            after considering the written observations submitted on behalf of:
               
               
               ─
               Ms Scherndl, by B. Gumpoldsberger, Rechtsanwalt, 
               
               
               ─
               the Council of the European Union, by E. Karlsson and J.-P. Hix, acting as Agents, 
               
               
               ─
               the Commission of the European Communities, by G. Braun and M. França, acting as Agents, 
               
               
            
            
            having regard to the Report for the Hearing,
            
            after hearing the Opinion of the Advocate General at the sitting on 10 April 2003,
         gives the following
         
         
         Judgment
         1
            
         By order of 29 January 2002, received at the Court on 14 February 2002, the Unabhängiger Verwaltungssenat im Land Niederösterreich
         (Independent Administrative Chamber for the  
          Land  of Lower Austria) referred to the Court for a preliminary ruling under Article 234 EC three questions 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 (OJ 1990 L 276, p. 40,  
         the Directive). 
         
         
         2
            
         Those questions were raised in proceedings between Ms Scherndl and the Bezirkshauptmannschaft Korneuburg (Austria) concerning
         an administrative penal order (
         Straferkenntnis) finding Ms Scherndl guilty, in her capacity as person responsible for the firm of Hofer KG, of breaching the Austrian regulations
         on nutrition labelling of foodstuffs. 
         
            
               Legal background
            Community legislation
         
         
         3
            
         Under Article 1(4) of the Directive: For the purposes of this Directive:
         
         (a)
         nutrition labelling means any information appearing on labelling and relating to: ... 
         
         (ii)
         the following nutrients: ... 
         
         
         
               ─
                  vitamins and minerals listed in the Annex and present in significant amounts as defined in that Annex. Changes to the list of vitamins, minerals and their recommended daily allowances shall be adopted in accordance with the procedure
                  laid down in Article 10; 
               
         
         
         ...
         
         (k)
         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.
         
         
         
         4
            
         Article 4(3) of the Directive provides: Nutrition labelling may also include the amounts of one or more of the following:...
         
         
         ─
            any of the minerals or vitamins listed in the Annex and present in significant amounts as defined in that Annex.
         
         
         
         5
            
         Vitamin C is one of the vitamins listed in the annex. 
         
         
         6
            
         Article 6(8) of the Directive states: 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.
         
         
         7
            
         Under Article 7 of the Directive: 
         
         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 printed 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.
         
         
         3.
          Member States shall refrain from laying down requirements more detailed than those already contained in this Directive concerning
         nutrition labelling.
         
         National legislation
         
         
         8
            
         Paragraph 74 of the Lebensmittelgesetz 1975 (Law on foodstuffs 1975, BGBl. 1975/86, in the version of BGBl. 2001/98,  
         the LMG) prescribes: 
         
         (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(2)(1), and is to be punished by the district
         administrative authorities with a fine of 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.
         
         
         
         9
            
         Paragraph 2 of the Nährwertkennzeichnungsverordnung 1995 (Regulation on nutrition labelling of foodstuffs 1995, BGBl. 1995/896,
          
         the NWKV), adopted pursuant to Paragraph 10 of the LMG, provides: 
         
         (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.
         
         
         
         10
            
         Under 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.
         
         
         
         11
            
         Under 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 units
         are 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 established and accepted data.
         
         The main proceedings and the questions referred for a preliminary ruling
         
         12
            
         By an administrative penal order of the Bezirkshauptmannschaft Korneuburg of 30 July 2001, Ms Scherndl was found guilty, in
         her capacity as person responsible for the firm of Hofer KG, of having infringed the provisions of the LMG or the NWKV by
         marketing on 5 July 2000 in Stockerau (Austria)  
         Premium Ananassaft 100% pineapple juice, the vitamin C (ascorbic acid) content of which differed by approximately 40% from the content stated. While
         an ascorbic acid content of 300 mg/l was indicated on the product in question, an analysis made on 25 October 2000 by the
         Bundesanstalt für Lebensmitteluntersuchung und -forschung (Federal Institute for Food Investigation and Research,  
         the Institute) showed an ascorbic acid content of 430 mg/l. 
         
         
         13
            
         Ms Scherndl's complaint against the decision was unsuccessful, and she appealed to the Unabhängiger Verwaltungssenat. 
         
         
         14
            
         In the main proceedings, Ms Scherndl submitted that it was understandable that consumers should want labelling stating values
         for the date of purchase or consumption, but such labelling was not possible where the foodstuff in question had a long conservation
         period. Indications of nutritional values in foodstuffs could therefore refer to any point in time between the sale to the
         final consumer and the expiry of the conservation period shown on those foodstuffs. In view of the fact that the vitamin content
         could diminish substantially over time under the influence of external factors such as air, light and temperature, the values
         stated referred to the end of the minimum conservation period. Since the vitamins did not cause hypervitaminosis and there
         were no objections to an overdose, the values had been calculated by the manufacturer in such a way that they would still
         be fulfilled at the end of the minimum conservation period. 
         
         
         15
            
         The order for reference shows that in support of her argument Ms Scherndl produced an expert report, according to which the
         ascorbic acid content of the foodstuff in question varied considerably during its conservation period. 
         
         
         16
            
         According to the Institute, if the information for a foodstuff relates to the end of the minimum conservation period, these
         are indications not of  
         nutritional value but of  
         residual value. Consumers are not generally in the habit of buying or consuming foodstuffs on the last day of their conservation period.
         Moreover, it is pointed out in the literature that hypervitaminosis in vitamin D and in folic acid has a  
         masking effect which may conceal a pernicious anaemia. The point of view put forward by Ms Scherndl is based in part on  
         recommendations of German associations which do not reflect the generally accepted view of all classes of consumers in Austria. 
         
         
         17
            
         The national court notes that the NWKV transposes the Directive into Austrian law, with many of its provisions being taken
         over identically. In accordance with Article 7(3) of the Directive, the NWKV refrains from laying down more detailed provisions
         than those in the Directive. 
         
         
         18
            
         The national court observes that according to some writers (Barfuß, Smolka and Onder,  
          Lebensmittelrecht , 2nd edition, Part II, p. 125 et seq.) the Directive did not succeed in creating a coherent and logical system. It subjected
         simple situations to complex rules and presupposed on the part of its users a capacity to carry out complex interpretations.
         The Austrian legislature had also been faced with that problem when transposing the Directive. 
         
         
         19
            
         As regards the  
         average value, those writers indicated that  
         the provisional recommendation for the uniform implementation of the NWKV made in February 1985 by the working party on  
         Questions of nutrition of the  
         Food chemistry and forensic chemistry specialist group of the Gesellschaft Deutscher Chemiker (Association of German Chemists) tolerates margins of variation of
         up to ±15%, which may also be greater in certain cases. That recommendation relates to analytical values. It is not therefore
         applicable to the calculation of average values within the meaning of the NWKV, because that may also involve calculated average
         values. It follows that the divergence of 15% ─ admissible when making an analysis ─ marks the minimum margin of variation
         to be used in assessing whether an average value in accordance with Paragraph 9 is correct.
         
         
         20
            
         The national court considers that the arguments put forward by Ms Scherndl and the Institute and the explanations in the literature
         clearly show that the Directive, and hence the NWKV, do indeed require average values to be stated, but, apart from a vague
         ─ or rather, liberal ─ description of what the Council understands by  
         average value, do not provide a definition of average value that could make the rule comprehensible and enforceable. In particular, there
         is no reference date and no indication of a margin of variation or tolerance. 
         
         
         21
            
         According to the national court, neither the economic operators concerned nor the authorities are in a position to assess
         the obligations which ensue, so that the Directive does not make it possible to answer the question whether or not the point
         of view put forward by Ms Scherndl corresponds to the requirements of the NWKV or the intention of the Council. Having regard
         to the utterly imprecise nature of the Directive, in particular where it governs nutrition labelling for vitamins, the provisions
         in question are not applicable, while pursuant to Article 7(3) of the Directive the Member States are prevented from adopting
         provisions to make good that defect. The Directive does not satisfy the requirements of legal certainty and precision of the
         applicable rules (Case C-159/99  
          Commission  v  
          Italy  [2001] ECR I-4007), nor does it satisfy the requirements of Article 7 of the European Convention on Human Rights. 
         
         
         22
            
         Moreover, if one follows Ms Scherndl's arguments, namely that the definition of the average value or its calculation leaves
         the person responsible with a wide discretion in relation to the reference date and the method of calculation, it is clear
         that such a statement of the nutritional value ─ even if, as the Directive says, it is  
         simple and easy to understand ─ becomes meaningless and, contrary to the objective pursued by the Directive, suggests to the consumer that the product
         in question has certain qualities which it does not (or cannot) have. 
         
         
         23
            
         Finally, the provisions at issue restrict the producer's right to property and to the free exercise of his business activities,
         which is justifiable only if it is liable to lead in the specific case to better information for consumers on the qualities
         of the product in question and is proportionate. That is not so in the present case, so that the provisions at issue should
         not be applied, if only because they are contrary to the principle of proportionality. 
         
         
         24
            
         In view of those considerations, the Unabhängiger Verwaltungssenat im Land Niederösterreich decided to stay the proceedings
         and refer the following questions to the Court for a preliminary ruling: 
         
         1.
          In the case of indications of vitamin content, it is possible to speak of an average value within the meaning of Article 1(k)
         of Council Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs, OJ 1990 L 276, p. 40, as corrected
         in OJ 1991 L 140 (
         the nutrition labelling directive), where the figure given, based on the manufacturer's analysis of the foodstuff within the meaning of Article 6(8)(a) of
         the nutrition labelling 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 that 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?
         
         
         The first and second questions
         
         25
            
         By its first and second questions, which should be examined together, the national court seeks essentially to know whether
         Articles 1(4)(k) and 6(8) of the Directive must be interpreted as meaning that, first, the value of a nutrient such as vitamin
         C which is indicated on a foodstuff following an analysis of the foodstuff carried out by the manufacturer may correspond
         to the value of that nutrient in the foodstuff in question at the end of the minimum conservation period and, second, that
         the determination of the permissible differences between the declared value and the value established in the course of an
         official check is within the competence of the Member States. 
         
         
         26
            
         It must be observed in this respect that, according to the second and fourth recitals in the preamble to the Directive,  
         there is growing public interest in the relationship between diet and health and in the choice of an appropriate diet to suit
         individual needs and  
         knowledge of the basic principles of nutrition and appropriate nutrition labelling of foodstuffs would contribute significantly
         towards enabling the consumer to make this choice. 
         
         
         27
            
         As follows in particular from the seventh and eighth recitals in the preamble to the Directive, foodstuffs bearing nutrition
         labelling ─ which is in principle optional ─ must conform to the rules laid down in that directive, and all other forms of
         nutrition labelling are prohibited. 
         
         
         28
            
         In accordance with the last indent of Article 1(4)(a)(ii) and the last indent of Article 4(3) of the Directive in conjunction
         with the Annex to the Directive, nutrition labelling of a foodstuff may include information on the vitamin C content. 
         
         
         29
            
         The first subparagraph of Article 6(8) of the Directive prescribes that the declared values are to be average values based,
         according to the individual case, on the manufacturer's analysis of the food, a calculation from the known or actual average
         values of the ingredients used, or a calculation from generally established and accepted data. In the case in the main proceedings,
         the declared value was based on the manufacturer's analysis of the food. 
         
         
         30
            
         Under Article 1(4)(k) of the Directive,  
         average value for the purposes of the Directive 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.
         
         
         31
            
         Moreover, the second subparagraph of Article 6(8) of the Directive states that the  
         rules for implementing the first [subparagraph] 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.
         
         
         32
            
         None of those provisions nor any other provision of the Directive specifies, first, the reference date to be taken into consideration
         to determine the  
         average value within the meaning of Article 1(4)(k) or, second, the differences which may be tolerated between the value stated on a foodstuff
         and that established in the course of an official check. 
         
         
         33
            
         Furthermore, the Commission has not fixed, in accordance with the second subparagraph of Article 6(8) of the Directive, the
          
         rules for implementing the first subparagraph of Article 6(8). 
         
         
         34
            
         In those circumstances, and in accordance with the aims pursued by the Community legislature itself (see paragraphs 45 to
         47 below), it is for the Member States, in order to ensure the full effectiveness of the provisions of the Directive and to
         attain the objective of enabling consumers to choose an appropriate diet by means of appropriate nutrition labelling, to define
         for each declared nutrient, with the necessary precision and clarity to comply with the requirement of legal certainty, both
         the reference date to be taken into consideration for calculating the average value and the permissible differences between
         the declared value and that established in an official check (see, by analogy, Joined Cases C-74/95 and C-129/95  
          X  [1996] ECR I-6609, paragraphs 29 and 30). 
         
         
         35
            
         Article 7(3) of the Directive, which prohibits Member States from introducing  
         requirements more detailed than those already contained in this Directive concerning nutrition labelling, does not contradict that conclusion. That paragraph must be read in the light of the whole
         provision of which it forms part, which contains rules on the form in which the information covered by the Directive must
         appear where nutrition labelling is used. The prohibition in Article 7(3) does not therefore refer in any way to the technical
         rules and methods for calculating the average value or the permissible margin of differences between the value stated and
         that established in the course of an official check, but merely requires the Member States to refrain from introducing more
         detailed requirements concerning the form in which information such as the vitamin C content of a foodstuff must appear on
         that foodstuff. 
         
         
         36
            
         Thus the Directive does not, in the present state of Community law, prevent a Member State from taking as the reference date
         for calculating the average value of a nutrient to appear on a foodstuff that corresponding to the end of the minimum conservation
         period. 
         
         
         37
            
         The definition of the average value of a nutrient as the  
         value which best represents the amount of the nutrient which a food contains and  
         reflects allowances for seasonal variability, patterns of consumption and other factors which may cause the actual value to
         vary is wide enough not to exclude the possibility of the reference date for calculating the average value of a nutrient corresponding,
         in a particular case, to the date of the end of the conservation period of the foodstuff in question. 
         
         
         38
            
         That date does not appear inappropriate in the case of nutrients such as vitamin C, for which it is common ground that under
         the influence of various factors the quantity contained in a foodstuff may diminish considerably in the course of its conservation
         period. 
         
         
         39
            
         As the Commission rightly observed, the choice of the reference date, depending on the foodstuff concerned, may moreover be
         influenced by other provisions of Community law. Thus 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) defines, in Article 9(1), the  
         date of minimum durability of a foodstuff as the date  
         until which the foodstuff retains its specific properties when properly stored. In so far as the vitamin C content of a foodstuff such as pineapple juice forms part of its specific properties and the
         quantity of vitamin C diminishes in the course of the foodstuff's period of conservation, it does not appear inappropriate
         for the value stated to correspond to that which is present in the foodstuff at the end of that period. 
         
         
         40
            
         With regard to the permissible differences between the average value declared and that actually established in the course
         of an official check, it follows from paragraph 34 above that, as long as Community harmonising legislation, in particular
         under the second subparagraph of Article 6(8) of the Directive, has not been adopted, it is also for the Member States to
         lay down in their internal legislation provisions making it possible to know and determine the permissible differences for
         each nutrient concerned with sufficient precision to meet the requirement of legal certainty, in the light of their own knowledge
         and experience in the matter. In this respect, the Commission has rightly observed that the extent of the permissible differences
         should take account in particular of the minimum conservation period of the nutrient in question and its properties, such
         as its perishable nature. 
         
         
         41
            
         Having regard to the above considerations, the answer to the first and second questions must be that Articles 1(4)(k) and
         6(8) of the Directive must be interpreted as meaning that, first, the value of a nutrient such as vitamin C which is indicated
         on a foodstuff following an analysis of the foodstuff carried out by the manufacturer may correspond to the value of that
         nutrient in the foodstuff in question at the end of its minimum conservation period and, second, that the determination of
         the permissible differences between the value stated and the value established in the course of an official check is, in the
         present state of Community law, within the competence of the Member States. 
         The third question
         
         42
            
         By this question the national court seeks to know whether Article 1(4)(k) and the first subparagraph of Article 6(8) of the
         Directive infringe the principles of legal certainty and proportionality, on the ground that they do not contain precise indications
         on, first, the reference date to be taken into consideration for determining the average value of a nutrient contained in
         a foodstuff and, second, the extent of the differences tolerated between the declared value and the value established in the
         course of an official check. 
         
         
         43
            
         Under the third paragraph of Article 249 EC,  
         [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. It follows from that provision that the competence left to the Member States as regards the form of the measures and the
         methods used in their adoption by the national authorities depends on the result which the Council or the Commission wishes
         to see achieved (Case 38/77  
          Enka  [1977] ECR 2203, paragraph 11). 
         
         
         44
            
         In the present case, Article 1(4)(k) of the Directive states that the average value to be declared must be established in
         such a way as best to represent the content of that nutrient, taking into account the various factors mentioned in that provision.
         Article 6(8) of the Directive sets out the bases on which the average value declared must be established, while also stating
         that the implementing rules are to be adopted in accordance with the procedure laid down in Article 10. 
         
         
         45
            
         Having regard to the low level of knowledge in the field of nutrition referred to in the ninth recital in the preamble to
         the Directive, the Community legislature considered that it was for the Member States to provide more detail with respect
         inter alia to the determination of the reference date for calculating the average value and to the differences tolerated between
         the value stated and that established in the course of a check, pending the adoption by the Commission, assisted by the Standing
         Committee for Foodstuffs, of more precise Community legislation in this matter on the basis of the second subparagraph of
         Article 6(8) of the Directive, rather than providing in the Directive a sufficiently precise definition to cover the whole
         range of situations which may occur. 
         
         
         46
            
         As the 10th recital in the preamble to the Directive says,  
         application of this Directive for a certain length of time will enable valuable experience on the subject to be gained and
         consumer reaction to the way in which nutrition information is presented to be evaluated thus enabling the Commission to review
         the rules and propose any appropriate amendments. 
         
         
         47
            
         In those circumstances, far from disregarding the principle of legal certainty, the Community legislature, in accordance with
         the third paragraph of Article 249 EC, fixed the result to be achieved, namely enabling consumers to choose an appropriate
         diet inter alia by stating average values which best represent the value of the nutrients in question and take various factors
         into account, while leaving to the national authorities the choice of form and measures to achieve that result. 
         
         
         48
            
         Nor should it be considered that, by thus giving the national authorities a discretion as to the definition both of the reference
         date for calculating the average value and of the differences tolerated between the declared value and that actually established
         in the course of an official check, Articles 1(4)(k) and 6(8) of the Directive contain, as the national court fears, inappropriate
         or disproportionate restrictions on the activity of manufacturers of foodstuffs. 
         
         
         49
            
         Consequently, the answer must be that consideration of the third question has not disclosed any factor of such a kind as to
         affect the validity of the Directive. 
         
         Costs
         50
            
         The costs incurred by the Commission, which has submitted observations to the Court, are not recoverable. Since these proceedings
         are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs
         is a matter for that court. 
         
         On those grounds, 
         
         
         
            
            THE COURT (Sixth Chamber),
         
         
         in answer to the questions referred to it by the Unabhängiger Verwaltungssenat im Land Niederösterreich by order of 29 January
         2002, hereby rules: 
         
            
            1.
             Articles 1(4)(k) and 6(8) of Council Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs must
            be interpreted as meaning that, first, the value of a nutrient such as vitamin C which is indicated on a foodstuff following
            an analysis of the foodstuff carried out by the manufacturer may correspond to the value of that nutrient in the foodstuff
            in question at the end of its minimum conservation period and, second, that the determination of the permissible differences
            between the value stated and the value established in the course of an official check is, in the present state of Community
            law, within the competence of the Member States. 
            
            
            2.
             Consideration of the third question has not disclosed any factor of such a kind as to affect the validity of Directive 90/496.
            
            
            
                  Puissochet
               
               
                  Schintgen 
               
               
                  Skouris 
               
            
                  Macken
               
               
                  Cunha Rodrigues 
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
         Delivered in open court in Luxembourg on 23 October 2003. 
         
         
         
         
                  R. Grass 
               
               
                  V. Skouris  
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
             Language of the case: German.