OPINION OF ADVOCATE GENERAL

MISCHO delivered on 10 April 2003 (1)

(Reference for a preliminary ruling from the Unabhängiger Verwaltungssenat im Land Niederösterreich (Austria))

((Directive 90/496/EEC – Nutrition labelling for foodstuffs – Vitamin content – Declared value – Average value – Reference date – Permissible differences between the declared values and those established in the course of official checks – Proportionality))

I ─Legal background

A ─Community law

(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.

B ─ National law

5. Article 74 of the Gesetz über den Verkehr mit Lebensmitteln, Verzehrprodukten, Zusatzstoffen, kosmetischen Mitteln und Gebrauchsgegenständen of 23 January 1975 (Lebensmittelgesetz 1975) (Federal Law on the marketing of foodstuffs, products intended for human consumption, additives, cosmetic products and utensils, BGBl. 1975/86, and BGBl. I, 2001/98, the LMG) provides:

(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, subparagraph 2 Z 1, and is to be punished by the district administrative authorities with a fine 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.

(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.

7. According to Paragraph 6 of the NWKV: Under this regulation:...

8. As provided in 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 are units to be used:...

(2) The figures to be stated in accordance with subparagraph 1 are average values which, according to the individual case, are based on:

II

─

The dispute in the main proceedings

11. It is also apparent from the order for reference that the expert report submitted by Ms Scherndl concerning the product in question shows quite significant variations in the findings concerning the ascorbic acid content.

12. According to the Institute, if the data were taken to refer to the end of the minimum conservation period, it would no longer be possible to speak of nutrition values but of residual nutrition values. It is not the normal habit, in purchasing and consumption, to buy or consume food on the last day of its conservation period. It is indicated in the literature, moreover, that hypervitaminosis in vitamin D and folic acid has a masking effect capable of hiding a pernicious anaemia. Ms Scherndl's point of view is based, in part, on recommendations of German associations, which do not reflect the general accepted view of all classes of persons concerned in Austria.

13. For its part, the national court points out that the NWKV transposes Directive 90/469, several provisions of which were taken over verbatim. In accordance with Article 7(3) of that directive, the NWKV, according to the national court, refrains from laying down more detailed provisions than those already contained in the directive.

14. According to the national court, the question of the method of calculating the average value can be resolved only by Community law. It adds that the rules in Directive 90/496, which have been taken over unchanged in the NWKV, are transposed by corresponding penal provisions ─ more specifically, in the form of a rule the details of which remain to be defined (Blankettstrafnorm). Therefore, the criteria to be applied to the rules of conduct referred to above are those applying to the penal provisions, although serious doubts were raised as to whether the conditions for applying these criteria were satisfied.

15. The national court considers that the arguments put forward by Ms Scherndl and by the Institute, and the explanations provided in legal literature, clearly show that Directive 90/496 and thus also the NWKV do require average values to be stated but, apart from a vague description ─ that is to say, formulated in an imprecise manner ─ of what the Council wishes to be understood by average value, they do not provide a definition of that average value that is capable of making that rule comprehensible and applicable. In particular, there is no reference date or any precise indication of the variations which are accepted or tolerated.

16. Neither the economic operators concerned nor the administration are in a position to assess the obligations which arise from the directive, with the result that Directive 90/496 does not answer the question whether or not the interpretation contended for by Ms Scherndl corresponds to the requirements of the NWKV or the intention of the Council. In the light of the totally imprecise nature of Directive 90/496 where it governs nutrition labelling in relation to vitamins, its provisions are not applicable, and, pursuant to Article 7(3) of the directive, Member States do not have the possibility of adopting provisions to compensate for that major failing.

17. According to the national court, which refers to Commission v Italy, (4) Directive 90/496 does not comply with the principle of legal certainty and precision of legal rules and it does not satisfy the condition laid down in Article 7 of the European Convention on the Protection of Human Rights and Fundamental Freedoms either.

18. Furthermore, should one follow Ms Scherndl's argument, namely that the definition of average value or its calculation by the person responsible leaves the latter with a wide discretion in relation to the reference date and the method of calculation, it is obvious that such a statement of the nutrition value ─ even if, according to Directive 90/496, it is simple and easily understood ─ loses all its relevance and suggests to the consumer that the product in question has certain qualities that it does not have (or cannot have), contrary to the intention of the directive in question.

19. The national court states that the disputed legislation entails restrictions on producers' right to property or to the free exercise of their business, which are justified only in so far as they serve, inter alia, to enable consumers to be better informed as to the characteristics of the product in question and they are proportionate. This is not the case here, so that the restrictions should be disapplied, if only because they are contrary to the principle of proportionality.

III ─The questions referred for a preliminary ruling

(1) In the case of indications of vitamin content, is it possible to speak of an average value within the meaning of Article 1(k) of Directive 90/496 where the figure given, based on the manufacturer's analysis of the food within the meaning of Article 6(8)(a) of that 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 the nutrition labelling 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 dispute in the main proceedings

21. I suggest examining these two questions, which both concern the reference date to be taken into account in determining the average value, together.

22. By its first question, the national court asks essentially whether it is contrary to Article 1(4)(k) of Directive 90/496 for the reference date to be the end of the minimum conservation period; by its second question, the national court asks whether Directive 90/496 allows the reference date and the extent of the permissible differences to be chosen freely.

23. In her written observations, Ms Scherndl to a great extent repeats the arguments which she had already expounded before the national court. She also adds that it is the consumer's right that the value indicated on the packaging be present in the product, even on the last day of the period mentioned. It is, consequently, necessary, according to Ms Scherndl, to overdose the product in vitamin C on the ground that it is eliminated during storage. She argues that this overdosage is a practice commonly followed by fruit-juice manufacturers.

24. Ms Scherndl proposes answering the first question referred to the Court to the effect that, as far as concerns the information regarding the vitamin content, one may speak of an average value within the meaning of Article 1(4)(k) of Directive 90/496 where the figure given, which is based on the manufacturer's analysis of the food in question pursuant to Article 6(8), first subparagraph, under (a), of that directive, is the value which the product has at the end of the minimum conservation period.

25. As for the second question referred to the Court, Ms Scherndl proposes the answer that the definition of average value under Article 6(8) of Directive 90/496 allows the reference date and the extent of permissible differences to be chosen freely.

26. With reference to Article 1(4)(k) of Directive 90/496, the Commission points out that the Community legislature requires the choice of ... the value which best represents the amount of the nutrient which a given food contains ..., taking into account factors which may cause the actual value to vary.

27. According to the Commission, the question is therefore whether an average value which is based on the content of a nutrient at the end of the minimum durability period is still representative within the meaning of the definitions in Directive 90/496.

28. In this respect, the Commission notes that under Article 3(1)(5) of 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, the date of minimum durability is listed among the mandatory information to be indicated on the labelling of foodstuffs, which date is, by virtue of Article 9(1) of the directive, the date up to which the foodstuff retains its specific properties when properly stored. When nutrition labelling is also used in the context of advertising, it is necessary, in accordance with Article 3(a) of Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising, to ensure that consumers are not misled as to products' characteristics, for example their specifications.

29. According to the Commission, when the manufacturer makes nutrition claims on the labelling which include, inter alia, vitamin content, the fact that the average value is determined on the basis of the principle that it will not have diminished at the end of the minimum durability period, namely that the quantity of the nutrient (or of the vitamin) is still present in the foodstuff at that date in the proportion stated, does not alter the representative nature of the average value within the meaning of the definition in Article 1(4)(k) of Directive 90/496.

30. The Commission thus proposes answering the first question referred to the Court to the effect that, when the vitamin content of a product, expressed in average value, corresponds to the quantity of that vitamin still present in the product at the end of the minimum durability period, such an indication is not inconsistent with the definition of average value in Article 1(4)(k) of Directive 90/496.

31. As regards the second question referred to the Court, the Commission points out that Articles 6(8) and 1(4)(k) of Directive 90/496 do not provide any particulars as to the reference date. Since these provisions do not restrict the choice of reference date, it is clear that, as regards substances such as vitamin C, the average value will vary according to the reference date chosen.

32. As regards the difference tolerated between the actual value and the average value declared, the Commission considers that it depends, inter alia, on the rapidity with which the foodstuff concerned perishes under certain conditions and on the length of the period between the manufacture of the foodstuff and the end of the minimum durability period.

33. Until now, according to the Commission, the Community legislature has not used the possibility, stated in Article 6(8), second subparagraph, of Directive 90/496, of laying down 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 nor of fixing general tolerance margins for vitamin C. The Commission thus considers that Member States are free to lay down this technical point ─ to be prescribed for each nutrient ─ according to their own knowledge and experience, or to continue to apply the national standards in force until harmonisation takes place.

34. More specifically, the Commission considers that neither differences of 40% from the declared value nor the fact that the value is based on the end of the minimum durability period allow it to be inferred that nutrition claims as to vitamin C content in fruit juice are contrary to Community law.

35. The Commission suggests answering the second question referred to the Court to the effect that Directive 90/496, read in conjunction with other Community-law provisions, does not grant Member States a free choice as to the reference date and the permissible differences, but prescribes the choice of the value which best represents the nutrient contained in the foodstuff, taking into account certain factors and in the context of a given tolerance margin, in accordance with Article 1(4)(k) of the directive.

36. The Council has not adopted a view on the first and second questions referred to the Court.

38. Directive 90/496 specifies neither the reference date (or dates) to be taken into account in establishing the average value nor the acceptable differences between the average value given on the label and the average value actually established in the course of a check.

39. The provisions of Directive 90/496 concerning the average value do no more than, on the one hand, define the average value in general terms as being the value which best represents the amount of a nutrient in a given foodstuff, taking into account factors which could cause the actual value to vary (Article 1(4)(k)) and, on the other hand, lay down the elements on which the average value must be established (Article 6(8), first subparagraph).

41. As such implementing rules have not, however, been adopted, is it in the meantime the task of Member States, as the Commission argues, to provide the necessary details?

42. I take the view that it is.

43. Directive 90/496 is based on Article 100a of the EC Treaty (now, after amendment, Article 95 EC). The measures capable of being adopted on the basis of this article are not restricted to the approximation of national legislation but also include, as is the case here for Article 6(8), second subparagraph, of Directive 90/496, the adoption of provisions providing for the intervention of the Community authorities.

44. However, as Article 100a of the EC Treaty enables the Community to act in fields which are outside the competence of the Member States, that competence can only be restricted to the extent that rules have, in fact, been adopted in accordance with Article 100a of the EC Treaty. Therefore, the mere fact that, on the basis of that same provision, the Community decides that it will decide is not sufficient for it to be concluded that a matter no longer falls within the competence of the Member States.

45. Therefore, in the absence of implementation of Article 6(8), second subparagraph, of Directive 90/496, it is for Member States to specify the reference date (or dates) and the permissible differences in compliance with the provisions and the purpose of Directive 90/496.

46. Like the Commission, I take the view that this argument is not inconsistent with Article 7(3) of Directive 90/946, according to which Member States shall refrain from laying down requirements more detailed than those already contained in this Directive concerning nutrition labelling.

47. This provision should be read in conjunction with the first two paragraphs of the same article, which clearly concern the manner in which labelling should be presented. Paragraph 3 must therefore be considered as referring to the same subject-matter and not to other matters such as the method of determining the average value.

48. What is the position, however, if the Member State has not specified the reference date (or dates) or the permissible differences? Such would seem to be the case here, as the national court explains that the national rules have refrained from laying down requirements more detailed than those already contained in Directive 90/496.

50. More specifically, taking account of the fact that the national court must apply national criminal-law rules, I think that one should refer to X in which the Court held as follows:

25 More specifically, in a case such as that in the main proceedings, which concerns the extent of liability in criminal law arising under legislation adopted for the specific purpose of implementing a directive, the principle that a provision of the criminal law may not be applied extensively to the detriment of the defendant, which is the corollary of the principle of legality in relation to crime and punishment and more generally of the principle of legal certainty, precludes bringing criminal proceedings in respect of conduct not clearly defined as culpable by law. That principle, which is one of the general legal principles underlying the constitutional traditions common to the Member States, has also been enshrined in various international treaties, in particular in Article 7 of the Convention for the Protection of Human Rights and Fundamental Freedoms (see, inter alia, the judgments of the European Court of Human Rights in Kokkinakis v Greece, 25 May 1993, Series A, No 260-A, paragraph 52, and in S.W. v United Kingdom and C.R. v United Kingdom, 22 November 1995, Series A, No 335-B, paragraph 35 and No 335-C, paragraph 33).

26 The national court must therefore ensure that that principle is observed when interpreting, in the light of the wording and the purpose of the Directive, the national legislation adopted in order to implement it.

51. It therefore appears to me that, in the present case, when interpreting, in the light of the wording and the purpose of Directive 90/496, the legislation adopted in order to implement it, the national court must apply the abovementioned principle which precludes bringing criminal proceedings in respect of conduct not clearly defined as culpable by law.

52. More specifically, as regards the determination of the reference date, one solution, where appropriate, might be for the national court to use the end of the minimum conservation period as the reference date, as Ms Scherndl argues.

53. I take the view, and here I am dealing in fact with the first question referred to the Court, that Directive 90/496 does not preclude the figure which gives the average value from representing the value of the product at the end of the minimum conservation period.

54. In this respect, it should be observed that Article 1(4)(k) of Directive 90/496 defines the average value, in general terms, as the value which best represents the amount of the nutrient which a given food contains, taking into account the factors which may cause the actual value of the nutrient to vary.

55. That definition does not preclude, as regards substances such as vitamin C the content in which, it is not disputed, can decrease when influenced by external factors such as air, light, temperature, etc, the value of the substance at the end of the minimum conservation period from being considered as the average value.

56. That interpretation appears to me to be confirmed by Directive 2000/13, to which the Commission refers. Although the date of minimum durability of a foodstuff is the date until which the foodstuff retains its specific properties when properly stored, the validity of labelling mentioning the vitamin C content of the foodstuff in question at that date cannot be disputed.

57. I would add that, where the value mentioned on the labelling is no longer present in the product before the end of the minimum conservation period, the consumer would be entitled to consider himself to have been misled.

58. In the light of all the foregoing, I therefore propose answering the first and second questions referred to the Court to the effect that, in the absence of implementation of Article 6(8), second subparagraph, of Directive 90/496, it is for Member States to specify the reference date (or dates) to be taken into account in the determination of the average value and the permissible differences in compliance with the provisions and the purpose of that directive. In this regard, Article 1(4)(k) of Directive 90/496 does not preclude the figure which gives the average value and which is based on an analysis of the foodstuff in question carried out by the manufacturer pursuant to Article 6(8), first subparagraph, under (a), of that directive, from representing the value which the product has on expiry of the minimum conservation period.

59. By its third question, the national court wonders whether Directive 90/496 is invalid, on the grounds that, according to the national court,

(a) it is too vague in relation to the definition [Article 1(k) of the nutrition labelling directive] and calculation [Article 6(8) of the nutrition labelling 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.

60. Ms Scherndl proposes answering this question to the effect that, essentially, Directive 90/496 should not be applied, in so far as that directive includes information as regards nutrition value, on the grounds that it is too imprecise and that its provisions are disproportionate to the objective to be attained.

61. The Council, for its part, considers that Directive 90/496 is valid.

62. The Council contends, as regards the statement of nutrition value based on vitamin content, that Directive 90/496 satisfies the requirement of legal clarity. The Council not only defined the meaning of average value in Article 1(4)(k) of that directive, having regard to variations in the actual value due to seasonal variations, storage and other factors, but also expressly stated the factors which may be taken into account in the determination of average values with a view to determining the declared value, in Article 6(8), first subparagraph, of that directive.

63. Furthermore, according to the Council, even if the Court was to consider that the term average value and Article 6(8), first subparagraph, of Directive 90/496 considered in isolation are lacking in precision, this would not as such entail the inapplicability of these provisions. The procedure provided for in Article 6(8), second subparagraph, of that directive provides a global response to any need for clarification. The Council considers, in addition, that it would be difficult, if not impossible, to provide a definition of average value in the directive which would be sufficiently precise to cover the full range of situations which could arise. In the Council's view, it is preferable to resolve such issues in the context of the Committee procedure rather than in the directive itself.

64. The Council adds that the rules on the basis of which it may be established whether the provision in question of Directive 90/496 satisfies the conditions as regards specificity, accuracy and clarity are not criminal-law rules, contrary to what the national court claims. The provisions of the directive are not of a criminal nature and although Member States must provide for effective, proportionate and dissuasive sanctions in the event of a breach of Community law, it is none the less not obligatory under the directive for Member States to adopt criminal sanctions for that purpose. The validity of the directive cannot therefore be questioned solely because the Republic of Austria has laid down criminal penalties in order to ensure the effective implementation of Directive 90/496.

65. The Council also considers that Directive 90/496, including the provisions at issue, do not go beyond what is necessary to attain the objective, laid down in Article 95 EC, of the establishment of the internal market based on a high level of protection of health and consumers.

66. Directive 90/496 starts from the premiss that there is a relationship between diet and health, that knowledge of the basic principles of nutrition and appropriate nutrition labelling of foodstuffs would contribute significantly towards enabling the consumer to choose an appropriate diet, and that the labelling should assist action in the area of nutrition education for the public (see, in particular, the second, fourth and fifth recitals in the preamble to the directive).

67. It is proven that vitamins, including vitamin C, are an important part of our diet and that provisions on nutrition labelling which did not mention vitamins would be incomplete. Although the declared value for vitamin C is likely to vary, at a given time, from the actual value, this does not change the fact that a statement of the vitamin content is, overall, helpful for the consumer.

68. According to the Council, it should also be borne in mind that one of the objectives of Directive 90/496 is the progressive establishment of the internal market, notably in ensuring nutrition labelling in a standardised form throughout the Community (see, in particular, the first and sixth recitals in the preamble to the directive). This uniformity is achieved, inter alia, in accordance with the procedure provided for in Article 6(8), second subparagraph, of the directive.

69. The Commission asserts that, in view of its observations in response to the first two questions, there is nothing to suggest that Directive 90/496 is not applicable.

70. I agree entirely with the observations submitted by the Council.

71. It should be borne in mind that under Article 249 EC, third paragraph, 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.

72. A directive is not therefore an instrument to be applied unchanged but a set of rules which must be implemented by appropriate implementing measures carried out by the Member States ....

73. It is not inconceivable that Member States, when adopting national measures transposing a directive, may be required to define more closely certain concepts appearing in the directive. Likewise, as Directive 90/496 confirms, concepts may also be clarified by the adoption of implementing measures by the Community authorities.

74. Therefore, rather than being a reason for a directive to be found invalid, the requirement of accuracy constitutes either, if it is the task of the Member States to provide particulars, a normal characteristic of the directive and even an expression of the principle of subsidiarity or, if the power to provide detailed particulars is delegated by the Council to the Commission in the framework of the Committee procedure, an application of Article 202 EC, final indent.

75. I therefore propose answering the third question referred by the national court to the effect that consideration of this question has disclosed nothing to affect the validity of Directive 90/496.

V ─Conclusion

76. In the light of the foregoing considerations, I propose answering the questions referred by the national court as follows:

the first and second questions:

In the absence of implementation of Article 6(8), second subparagraph, of Council Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs, it is for Member States to specify the reference date (or dates) to be taken into account in the determination of the average value and the permissible differences in compliance with the provisions and the purpose of that directive. In this regard, Article 1(4)(k) of Directive 90/496 does not preclude the figure which gives the average value and which is based on an analysis of the foodstuff in question carried out by the manufacturer pursuant to Article 6(8), first subparagraph, under (a), of that directive, from representing the value which the product has on expiry of the minimum conservation period;

the third question:

Consideration of this question has disclosed nothing to affect the validity of Directive 90/496.

This last provision provides for a Committee procedure, under which the Commission is to adopt measures following referral to the Standing Committee on Foodstuffs.

Case C-159/99 [2001] ECR I-4007.

See point 10 above.

Emphasis given in the original text.

Case 102/79 Commission v Belgium [1980] ECR 1473, paragraph 12.

See X, paragraphs 29 and 30.