Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. In this reference for a preliminary ruling the Tribunal de grande instance (Regional Court), Paris, asks the Court whether Article 10(1) of Law No 88-14 of 5 January 1988 and the Order of 11 March 1988 are compatible with Article 30 of the EEC Treaty inasmuch as they prohibit any statement alluding to the physical, chemical or nutritional properties of sugar or to the word sugar in the labelling or advertising of artificial sweeteners.
2. Before dealing with the substance of the question referred to the Court, I consider it necessary to make several brief comments.
3. Directive 79/112/EEC, which enacts Community rules of a general nature applicable horizontally to foodstuffs, was conceived with the intention of improving the functioning of the common market and the free movement of goods while at the same time ensuring that consumers received correct information and adequate protection.
4. There may in fact be some doubt as to whether the directive and the French law correspond exactly in extending the prohibition to advertising since that is a matter which the Community directive touches upon only in passing.
5. The rules laid down in the Community directive provide in particular, in Article 2, that the labelling and the methods used (paragraph 1(a)) and the presentation and advertising of foodstuffs (paragraph 3) must not be such as could mislead the purchaser to a material degree, particularly as to the characteristics of the foodstuff or by attributing to it effects or properties which it does not possess, or, finally, by suggesting that it possesses special characteristics when in fact all similar foodstuffs possess such characteristics.
6. That having been said, with regard to the legislation at issue, let me say straight away that a prohibition of the use of the word sugar which is as general as that imposed by the French legislature, and which even prohibits the use of the expression sucré avec [sweetened with] and brand names which contain the radical suc (for example Maxi-suc, Pouss-suc, Sucredulcor), goes, in my opinion, far beyond what is required by Directive 79/112 and in particular Article 2 thereof.
7. If therefore, in the light of what has already been said, it is found to be the case that the French law goes beyond what is allowed by Article 2 of the directive for the protection of consumers, the only possible justification could be the derogation provided for in Article 15(2).
8. With regard next to any grounds concerning the requirement to protect public health (raised to some extent by the national court itself), in my opinion they are not seriously tenable since, as I have already said, mention of or reference to the word sugar in the labelling of a product does not in itself mislead the consumer; on the contrary, it may enable the consumer to make a more informed choice.
9. Before concluding, I would like to emphasize that the same conclusion would be reached even if the Court were to consider the aspects of the law at issue which relate to advertising in the light of Article 30 of the Treaty.
10. In the light of the foregoing considerations, I propose that the Court of Justice should give the following reply to the national court:
1 Original language: Italian.
2 OJ 1979 L 33, p. 1.
3 Judgment in Case 35/85 Procureur de la République v Tissier [1986]ECR 1207, paragraph 9.
4 See the second, third, fourth and seventh recitals in the preamble.
5 It should be noted that Directive 79/112/EEC was amended by Directive 89/395/EEC of 14 June 1989 (OJ 1989 L 186, p. 17), which extended the scope of the directive to foodstuffs intended for supply to restaurants, hospitals, canteens and other similar mass caterers.
6 See primarily the judgment in Case 8/74 Procureur du Roi v Dasionville [1974] ECR 837, paragraph 5.
7 Judgment in Case 286/81 Oostboek's Uitgevtrmaatichappij [1982] ECR 4575, paragraph 15.
8 Judgment in Case 120/78 Rewe v Bundtmonopolvtrwalaung fir Branntwein [1979] ECR 649, paragraph 8.