Douwe Egberts NV v Westrom Pharma NV and Christophe Souranis, carrying on business under the commerical name of "Etablissements FICS' and Douwe Egberts NV v FICS-World BVBA.
Date: 2004-07-15
19. It should be remembered that it is settled case-law that, in the context of the cooperation between the Court of Justice and the national courts provided for by Article 234 EC, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, Case C-379/98 PreussenElektra  [2001] ECR I-2099, paragraph 38, and Case C-438/01 Design Concept  [2003] ECR I-5617, paragraph 14).
34. However, as the Court held in Case C-241/89 SARPP  [1990] ECR I-4695, paragraph 15, the provisions of the directive relating to labelling differ in one essential way from those relating to advertising . Because the directive is general and applicable horizontally, it allows the Member States to maintain or adopt rules in addition to those laid down by the directive. With regard to labelling, the limits of the power retained by the Member States are set by the directive itself in so far as it lists exhaustively, in Article 18(2), the grounds on which the application of non-harmonised national provisions prohibiting trade in foodstuffs may be justified. However, that provision is not applicable to advertising. Consequently, the question whether in this field Community law precludes the application of national rules in addition to those laid down by the directive must be considered in the light, in particular, of the provisions of the Treaty on the free movement of goods and especially Articles 28 EC and 30 EC.
36. Article 2(1)(a) and (b) of Directive 2000/13 prohibit 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 (Case C-221/00 Commission  v Austria  [2003] ECR I-1007, paragraph 35, and Joined Cases C-421/00, C-426/00 and C-16/01 Sterbenz and Haug  [2003] ECR I-1065, paragraph 28).
38. In light of the foregoing, foodstuffs the labelling of which contains references to health which are not misleading must be regarded as complying with the rules laid down in Directive 2000/13 since the Member States are not entitled to prohibit the marketing thereof on grounds relating to the possible irregularity of that labelling ( Commission  v Austria , paragraph 37, and Sterbenz and Haug , paragraph 30).
41. However, while Article 2(1) of Directive 2000/13 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 cannot but be noted that the protection of public health, on the assumption 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 the national legislation at issue (see, in that connection, Commission v Austria , paragraph 48, and Sterbenz and Haug , paragraph 37).
42. In fact, there are less restrictive measures 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 (Case C-77/97 Unilever  [1999] ECR I-431, paragraph 35, and Sterbenz and Haug , paragraph 38).
46. Finally, as regards the possible difficulty of establishing in certain cases the fraudulent nature of a certain statement, it should be recalled that it is for the national courts in all doubtful situations to form a view, taking into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect (see, in particular, Case C-465/98 Darbo  [2000] ECR I-2297, paragraph 20, and Sterbenz and Haug , paragraph 43).
51. As the Court has held, in order for national provisions restricting or prohibiting certain selling arrangements not to be caught by Article 28 EC, they must not be such as to prevent access to the market by products from another Member State or to impede access any more than it impedes access by domestic products (Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, paragraph 17).
52. However, foodstuffs lawfully manufactured and marketed in the other Member States in which particulars concerning health which are not misleading may be mentioned under the provisions of Directive 2000/13 would be faced wi th restrictions on access to the Belgian market. In fact the possibility cannot be ruled out that to compel a producer to discontinue an advertising scheme which he considers to be particularly effective may constitute an obstacle to imports ( SARPP , paragraph 29).
53. Moreover, an absolute prohibition of advertising the characteristics of a product is liable to impede access to the market by products from other Member States more than it impedes access by domestic products, with which consumers are more familiar (Case C-405/98 Gourmet International Products [2001] ECR I-1795, paragraph 21).
55. Such a fetter may be justified only by one of the public-interest grounds set out in Article 30 EC which include the protection of health and life of humans or by one of the overriding requirements ensuring inter alia consumer protection. It must also be appropriate for securing attainment of the objective which it pursues and must not go beyond what is necessary for attaining it (Joined Cases C-34/95 to C‑36/95 De Agostini and TV-Shop  [1997] ECR I-3843, paragraph 45).
57. None the less and unlike national legislation which in regard to labelling runs counter to Directive 2000/13 and cannot apply either to imported foodstuffs or to domestic foodstuffs, where national legislation on advertising is contrary to Articles 28 EC and 30 EC, application of that legislation is precluded only in regard to imported products and not domestic products ( SARPP , paragraph 16).
58. Given that it is apparent from the order for reference that the dispute in the main proceedings does not concern imported foodstuffs, it is for the national court to ascertain to what extent national law requires a national producer to be allowed to enjoy the same rights as those which a producer of another Member State would derive from Community law in the same situation (Case C-448/98 Guimont  [2000] ECR I-10663, paragraph 23).