Union Deutsche Lebensmittelwerke GmbH v Schutzverband gegen Unwesen in der Wirtschaft eV.
Date: 1999-12-16
15 In this regard, it must be concluded that the respective aims of the Regulation and of the Directive are different and that the Directive does not exclude the application of the Regulation to foodstuffs intended for particular nutritional uses.  Whereas the Regulation is designed to protect designations used for milk and milk products, having regard to their natural composition, in the interests of producers and consumers, the purpose of the Directive is to lay down precise rules for the labelling and presentation of the products which it covers in order to ensure that their nature and composition are appropriate for the particular nutritional purpose for which they are intended.
18 That interpretation is borne out by the wording of the fourth recital in the preamble to the Directive from which it is clear that derogations from the general or specific provisions applicable to foodstuffs are necessary only where those provisions do not allow the composition or preparation of a foodstuff to be changed in order to meet the particular nutritional aim of the products covered by the Directive.
20 As regards the question whether the designation `cheese' may be used for a product in which the milk fat has been replaced by vegetable fat, it must be recalled first of all that, according to Article 2(2) of the Regulation and its Annex, the designation `cheese' may be used only for `milk products', which are `products derived exclusively from milk, on the understanding that substances necessary for their manufacture may be added, provided that those substances are not used for the purpose of replacing, in whole or in part, any milk constituent.'
21 Paragraph (3) of that article provides that `the designations used for milk products may be also be used in association with a word or words to designate composite products of which no part takes or is intended to take the place of any milk constituent and of which milk or a milk product is an essential part either in terms of quantity or for characterisation of the product.'
22 It is clear from the wording of those provisions that a milk product, in which one or other constituent of milk has been replaced, if only partially, may not be designated by one of the designations referred to in the first indent of the second subparagraph of Article 2(2) of the Regulation.
25 In reply to this question, it must be recalled that, according to Article 3(2) of the Regulation, which is applicable to products other than those referred to in Article 2 thereof, such as the products in question in the main proceedings, `no label, commercial document, publicity material or any form of advertising ... or any form of presentation may be used which claims, implies or suggests that the product is a dairy product'.
26 However, as the Greek Government has rightly pointed out, the use of the designation `dietary cheese' for products such as those in question in the main proceedings may give the consumer the impression that those products are covered by the designation `milk products' within the meaning of the Regulation when that is not the case, and the descriptions which UDL plans to place on their packaging are not likely to counteract that impression or to remove the ensuing risk of confusion.
27 Those descriptions not only do not clearly indicate that the milk fat has been entirely replaced by vegetable fat but they even increase the risk of confusion in the consumer's mind in that, in breach of Article 3(2) of the Regulation, they suggest, by the unlawful use of the term `cheese', that those products are milk products.
28 Consequently, it must be held that the use of descriptions such as those set out in paragraph 12 above does not affect the prohibition of use of the designation `dietary cheese' for products in which one or other of the constituents of milk has been replaced by another substance.
30 According to the settled case-law of the Court, the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions should not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 13, and Case C-180/96 United Kingdom v Commission [1998] ECR I-2265, paragraph 96).
31 It is also settled case-law that, as regards judicial review of the observance of the abovementioned conditions, the Community legislature has, in matters concerning the common agricultural policy, a discretionary power which corresponds to the political responsibilities placed upon it by Article 40 of the EC Treaty (now, after amendment, Article 34 EC), Articles 41 and 42 of the EC Treaty (now Articles 35 EC and 36 EC) and Article 43 of the EC Treaty (now, after amendment, Article 37 EC).  Consequently, the legality of a measure adopted in this area can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (Fedesa and Others, cited above, paragraph 14, and United Kingdom v Commission, paragraph 97).
32 As is clear from the third and sixth recitals in the preamble to the Regulation, the objective pursued by the legislature is to protect the natural composition of milk and milk products in the interests of Community producers and consumers and to avoid any confusion in consumers' minds between milk products and the other food products, including those consisting partly of milk components.
33 Secondly, it is not established that the use of the term `cheese' together with explanatory descriptions, such as those in question in the main proceedings, to designate products of which the milk fat has been entirely replaced by vegetable fat would be certain to prevent confusion in consumers' minds as to the composition of the product which they are about to purchase.  However, it is clear that such use would impair the protection of the natural composition of milk and milk products.
34 Consequently, the prohibition of the use of the term `cheese' to designate products derived from milk in which a natural constituent of milk has been replaced by a foreign substance, even when explanatory descriptions appear on the packaging, does not constitute a measure manifestly inappropriate to achieving the objective pursued and consequently such a prohibition is not contrary to the principle of proportionality.