Commission of the European Communities v Republic of Austria.
Date: 2003-01-23
18.  On this point, the Commission submits that, according to the Court's case-law (Case C-241/89   SARPP   [1990] I-4695, paragraph 15), because Directive 79/112 is general and applicable horizontally, it allows the Member States to maintain or adopt rules in addition to its own provisions. However, the directive lists exhaustively, in Article 15(2), the grounds on which the application of national provisions may be justified.
35.  It follows that Directive 79/112 prohibits all statements relating to human diseases, regardless of whether or not they are liable to mislead the consumer, as well as statements which, although not containing any reference to diseases but referring rather to health, for example, prove to be misleading.
37.  Consequently, foodstuffs whose labelling contains non-misleading health-related information must be regarded as complying with the rules of Directive 79/112, since Member States may not prohibit their marketing on grounds of a possible irregularity of that labelling.
38.  However, as is apparent from the ninth recital in its preamble, because Directive 79/112 is general and applicable horizontally, it allows the Member States to lay down rules in addition to those of the directive. The limits of the power retained by the Member States are fixed by the directive itself inasmuch as it lists exhaustively, in Article 15(2), the grounds on which the application of non-harmonised national provisions prohibiting trade in foodstuffs which comply with the directive may be justified (see, to that effect,   SARPP  , paragraph 15). Those grounds include   inter alia   the protection of health and consumers.
42.  On this point, it must be observed that, since Article 15(2) of Directive 79/112 carried out an exhaustive harmonisation of the grounds on which the application of national rules raising obstacles to trade in foodstuffs complying with the directive may be justified, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not of Articles 28 EC and 30 EC (see,   inter alia  , Case C-37/92   Vanacker and Lesage   [1993] ECR I-4947, paragraph 9; Case C-324/99   DaimlerChrysler   [2001] ECR I-9897, paragraph 32; and Case C-99/01   Linhart and Biffl   [2002] ECR I-9375, paragraph 18).
43.  It must also be noted that Articles 2 and 15 of Directive 79/112 prohibit statements liable to mislead the purchaser. This is a specific provision intended to prevent fraud which must be interpreted as a special rule in relation to the general provisions on protection against misleading advertising laid down in Directive 84/450 (see, to that effect,   Linhart and Biffl  , paragraphs 19 and 20).
48.  While Article 2(1) of Directive 79/112 prohibits, first, all statements relating to the preventing, treating and curing of a human disease, even if they are not liable to mislead the purchaser, and, second, misleading statements relating to health, it is clear that the protection of public health, assuming that risks relating thereto are nevertheless conceivable in a particular situation, cannot justify a system as restrictive of the free movement of goods as that which results from a procedure of prior authorisation for all health-related information on the labelling of foodstuffs, including those which are manufactured lawfully in other Member States and are in free circulation.
49.  Less restrictive measures exist for the prevention of such residual risks to health, such as, for example, an obligation on the manufacturer or distributor of the product in question, in the event of any uncertainty, to furnish evidence of the accuracy of the facts mentioned on the labelling (see, to that effect, Case C-77/97   Unilever   [1999] ECR I-431, paragraph 35).
52.  The Austrian Government has not produced any evidence to establish its claim that the system of control   a posteriori   of foodstuffs already on the market, such as that referred to in paragraph 49 above, would be ineffective. It has confined itself to stating, without giving reasons, that such a system had negative results in the United States and would not be suited to the European approach to the protection of health and of consumers. The general prohibition established by Paragraph 9(1) and (3) of the LMG cannot therefore be regarded as proportionate to the aim pursued.
53.  It should be added that, in similar cases concerning information on the packaging of certain cosmetic products, in which the Austrian authorities likewise relied on the protection of the health of consumers and the prevention of fraud, the Court held that the need to obtain the authorisation laid down in Paragraph 9(3) of the LMG constituted a wholly unjustified obstacle to the free movement of the products in question (Unilever  , paragraph 34, and   Linhart and Biffl  , paragraph 45).