CJEU - C 544/10 / Opinion

Key facts of the case:

1. By order of 23 September 2010, received at the Court on 23 November 2010, the Bundesverwaltungsgericht (Federal Administrative Court, Germany) referred questions to the Court of Justice for a preliminary ruling under Article 267 TFEU on the interpretation of Article 2(2)(5), Article 4(3) and Article 10(3) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, (2) as amended by Commission Regulation (EU) No 116/2010 of 9 February 2010 (3) (‘Regulation No 1924/2006’ or ‘the Regulation’).
2. The reference was made in proceedings between Deutsches Weintor, a wine growers’ cooperative, and Land Rheinland-Pfalz (Land of Rhineland-Palatinate) concerning advertising in which the description of a wine as bekömmlich (digestible, wholesome, nourishing) is coupled with a reference to gentle acidity.
3. With a view to determining whether that description constitutes a ‘health claim’ – which, in relation to alcoholic beverages such as the wine at issue, is generally prohibited under Article 4(3) of Regulation No 1924/2006 – the referring court seeks clarification of that concept.
4. Furthermore, in the event that a description of that nature does indeed fall to be categorised as a health claim which, pursuant to Regulation No 1924/2006, the producer or marketer of wine is accordingly prohibited from using in the presentation and advertisement of wine, the referring court asks whether that prohibition is compatible with the freedom to choose an occupation and the freedom to conduct business, as provided for respectively under Article 15(1) and Article 16 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

Results (sanctions) and key consequences of the case:

The concept of ‘health claim’ under Article 2(2)(5) of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, as amended by Commission Regulation (EU) No 116/2010 of 9 February 2010, is to be interpreted as also covering claims which imply a temporary beneficial effect on the physical condition, such as an effect limited to the time needed to consume and digest the food, including claims which imply that, owing to the reduced content of a substance, the adverse effects of a given food on physical well-being are more limited than is usually the case with food of that kind; –the general prohibition laid down in Article 4(3) of Regulation No 1924/2006 on the use of health claims of the kind at issue in relation to alcoholic beverages such as wine is compatible with Article 6(1) TEU, read in conjunction with the freedom to choose an occupation and the freedom to conduct business as provided for respectively under Articles 15(1) and 16 of the Charter.