Société Neptune Distribution v Ministre de l'Économie et des Finances.
Date: 2015-12-17
33. It should be observed as a preliminary point that, in the context of the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. To that end, the Court may have to reformulate the questions referred to it. The Court has a duty to interpret all provisions of EU law which national courts require in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts (judgment in Doc Generici , C‑452/14, EU:C:2015:644, paragraph 33 and the case-law cited).
34. Consequently, even if, formally, the referring court has limited its first question to the interpretation of the expression ‘equivalent value for salt’ in the annex to Regulation No 1924/2006, that does not prevent this Court from providing the referring court with all the elements for the interpretation of EU law that may be of assistance in adjudicating in the case pending before it, whether or not the referring court has referred to them in the wording of its question. It is, in this regard, for the Court to extract from all the information provided by the national court, in particular from the grounds of the decisions to make the reference, the points of EU law which require interpretation in view of the subject-matter of the dispute (see, to that effect, judgment in Doc Generici , C‑452/14, EU:C:2015:644, paragraph 34 and the case-law cited ).
49. As regards the objectives both of Regulation No 1924/2006 and of Directive 2009/54, it should be recalled, as Article 1 of that regulation states, that the latter aims to ensure the effective functioning of the internal market whilst providing a high level of consumer protection. In that regard, recitals 1 and 9 in the preamble to that regulation state that it is necessary, in particular, to give the consumer the necessary information to make choices in full knowledge of the facts (judgment in Ehrmann , C‑609/12, EU:C:2014:252, paragraph 40).
50. Recital 5 in the preamble to Directive 2009/54 specifies that the primary purposes of any rules on natural mineral waters should be to protect the health of consumers, to prevent consumers from being misled and to ensure fair trading. Recital 9 thereto states that the inclusion of the statement of the analytical composition of a natural mineral water should be compulsory in order to ensure that consumers are informed (see judgment in Hotel Sava Rogaška , C‑207/14, EU:C:2015:414, paragraph 40).
55. However, it must be observed that packaging, labels and advertising for natural mineral waters which, regardless of the indication of the total sodium content of those waters on the label, in accordance with the provision referred to in the preceding paragraph of the present judgment, contain an indication referring to a low sodium content of the waters may also mislead the consumer if they suggest that those waters are low in sodium or salt or are suitable for a low-sodium diet, whereas, in reality, they contain 20 mg/l or more of sodium (see, by analogy, judgment in Teekanne , C‑195/14, EU:C:2015:361, paragraphs 38 to 41).
64. That freedom is also protected in accordance with Article 10 of the ECHR, which applies, inter alia, as is clear from the case-law of the European Court of Human Rights, to the circulation by an entrepreneur of commercial information in particular in the form of an advertising slogan (see European Court of Human Rights judgments in Casado Coca v. Spain , 24 February 1994, Series A no. 285‑A, §§ 35 and 36, and Krone Verlag GmbH & Co. KG (No. 3) v. Austria , no. 39069/97, ECHR 2003-XII, §§ 19 and 20).
65. Since the freedom of expression and information laid down in Article 11 of the Charter has, as is clear from Article 52(3) thereof and the Explanations Relating to the Charter as regards Article 11, the same meaning and scope as the freedom guaranteed by the ECHR, it must be held that that freedom covers the use by a business, on packaging, labels and in advertising for natural mineral waters, of claims and indications referring to the sodium or salt content of such waters.
66. Furthermore, it must be observed that the freedom to conduct a business protected, in accordance with Article 16 of the Charter, must be considered in relation to its social function (see, to that effect, judgment in Deutsches Weintor , C‑544/10, EU:C:2012:526, paragraph 54).
67. The prohibition on the displaying on the packaging, labels and in the advertising for natural mineral waters of any claim or indication referring to the fact that such waters have a low sodium content which may mislead the consumer as to that content is an interference with the freedom of expression and information of the person carrying on that business and with his freedom to conduct that business.
71. Furthermore, far from prohibiting the production and marketing of natural mineral waters, the legislation at issue in the main proceedings merely controls, in a very clearly defined area, the associated labelling and advertising. Thus, it does not affect in any way the actual content of the freedom to conduct a business (see, to that effect, judgment in Deutsches Weintor , C‑544/10, EU:C:2012:526, paragraphs 57 and 58).
72. Thus, as set out in paragraphs 49 to 52 of the present judgment, the provisions of Regulation No 1924/2006 and Directive 2009/54, in particular those which lay down limitations on the use of the claims and indications at issue in the main proceedings, aim to ensure a high level of consumer protection, to guarantee adequate and transparent information for the consumer relating to the sodium content of drinking water, to ensure fair trading and to protect human health.
74. The need to ensure that the consumer has the most accurate and transparent information possible concerning the characteristics of goods is closely related to the protection of human health and is a question of general interest (see, to that effect, judgments of the European Court of Human Rights in Hertel v. Switzerland , 25 August 1998, Reports of Judgments and Decisions  1998-VI, § 47, and Bergens Tidende and Others v. Norway , no. 26132/95, ECHR 2000-IV, § 51) which may justify limitations on the freedom of expression and information of a person carrying on a business or his freedom to conduct a business.
75. In those circumstances, the determination of the validity of the contested provisions must be carried out in accordance with the need to reconcile the requirements of the protection of those various fundamental rights protected by the EU legal order, and striking a fair balance between them (see, to that effect, judgment in Deutsches Weintor , C‑544/10, EU:C:2012:526, paragraph 47).
76. With regard to judicial review of the conditions of the implementation of the principle of proportionality, the EU legislature must be allowed a broad discretion in an area such as that involved in the present case, which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments (see, to that effect, judgments in British American Tobacco (Investments) and Imperial Tobacco , C‑491/01, EU:C:2002:741, paragraph 123, and Alliance for Natural health and Others , C‑154/04 and C‑155/04, EU:C:2005:449, paragraph 52).
77. In that connection, it must be observed, first, that, even if a claim or indication referring to the sodium content of natural mineral waters associated with chloride ions can be regarded as being substantively correct, the fact remains that it is incomplete if it suggests that the waters are low in sodium whereas, in reality, their total sodium content exceeds the limits provided for by EU legislation (see, to that effect, judgment in Deutsches Weintor , C‑544/10, EU:C:2012:526, paragraph 51).
78. In such a situation, the information displayed on the packaging, labels and in advertising containing that claim or indication may mislead the consumer as to the sodium content of the mineral waters at issue in the main proceedings.
81. As the Advocate General noted in point 49 of his Opinion, the EU legislature must take account of the precautionary principle, according to which, where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent (see judgment in Acino  v Commission , C‑269/13 P, EU:C:2014:255, paragraph 57).
82. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures (see, to that effect, judgment in Acino  v Commission , C‑269/13 P, EU:C:2014:255, paragraph 58).