Article 11 - Freedom of expression and information
Article 16 - Freedom to conduct a business
Article 52 - Scope and interpretation
Key facts of the case:
Request for a preliminary ruling from the Conseil d’État (France)
Reference for a preliminary ruling on a question of interpretation and an assessment as to validity — Consumer protection – Regulation (EC) No 1924/2006 — Nutrition and health claims made on foods — Natural mineral waters — Basis for calculating ‘the equivalent value for salt’ of the sodium present in a foodstuff — Consideration solely of sodium chloride (table salt) content or of the total quantity of sodium — Directives 2000/13/EC and 2009/54/EC — Labelling of foodstuffs and advertising relating to them — Marketing of natural mineral waters — Prohibition on the indication of a low salt content — Article 6 TEU — Articles 11 and 16 of the Charter of Fundamental Rights of the European Union — Freedom of expression and information — Freedom to conduct a business.
Results (sanctions) and key consequences of the case:
59. ...I propose that the Court answer the questions raised by the Conseil d’État (France) as follows:
(1) The provision in the Annex to 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 relating to the conditions for allowing the nutrition claim ‘low in sodium/salt’ is not intended to apply to natural mineral waters. On the other hand, that annex expressly prohibits use of the claim ‘very low in sodium/salt’ for natural mineral waters.
(2) The provisions of the second subparagraph of Article 9(2) of and Annex III to Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters are valid.
42. There is no doubt that the provisions of Directive 2009/54 at issue constitute a restriction on the fundamental rights enshrined in Articles 11 and 16 of the Charter, since they restrict the possibility of companies marketing natural mineral waters to decide freely on the content of the claims which they use in their marketing messages relating to those products.
43. However, it is settled case-law that the freedom to conduct a business guaranteed by Article 16 of the Charter is not an absolute right and that its use can therefore be validly restricted by the EU legislature. The same applies to the freedom of expression and information protected by Article 11 of the Charter. However, it is clear from Article 52(1) of the Charter, first, that ‘[a]ny limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms’ and, secondly, that ‘[s]ubject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’.
44. In the first place, it seems to me that, in the present case, the statutory limitations resulting from application of the provisions at issue here do not affect the essential content of the freedom of expression and information and the freedom to conduct a business, recognised respectively in Articles 11 and 16 of the Charter. Although those provisions are intended to regulate and establish a framework for the use made of those freedoms, particularly as regards indications relating to sodium content in labelling and advertising for natural mineral waters, they are not such as to ‘undermin[e] the very substance’ of those freedoms, since the persons to whom those rules are applicable retain the right to express themselves and to inform consumers, as well as the right to exercise their entrepreneurial activity within the framework defined in a measured way by EU law.
45. In the second place, I recall that the principle of proportionality requires, according to the case-law of the Court, that measures adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question, it being understood that, when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.
46. With regard to the objectives of the provisions of Directive 2009/54, I note, like the Governments and institutions which made submissions to the Court, that the limitations which they introduce fulfil the ‘primary purposes … to protect the health of consumers, to prevent consumers from being misled and to ensure fair trading’. A ‘high level’ of ‘human health protection’ and ‘consumer protection’ are legitimate objectives of general interest the achievement of which is sought by the European Union, as is reflected in several provisions of the FEU Treaty and the Charter.
47. With regard to the protection of consumers’ health, the link between that objective, which is enshrined in Article 35 of the Charter, and the adoption of Directive 2009/54 is clearly evident from the wording of its provisions, and in particular from recital 5 in the preamble thereto, cited above, and from Article 9(2) thereof.
50. On the other hand, it is clear from the judgment in Deutsches Weintor that, even though a claim might in itself be accurate, its prohibition is legitimate where that claim turns out to be piecemeal. In that case, having been requested to assess the validity of Regulation No 1924/2006, in particular with regard to Article 16 of the Charter, the Court held that provisions prohibiting without exception a producer or a distributor of wines from using a health claim of the type which was at issue in the main proceedings were compatible with the first subparagraph of Article 6(1) TEU, since the claim was incomplete even though it could be accurate. Accordingly, the EU legislature could correctly consider that it is necessary to avoid the use of possibly accurate but none the less ambiguous indications which deprive consumers of the ability to regulate their consumption in an informed manner, in that case in relation to alcoholic beverages and in the present case in relation the sodium content in natural mineral waters.
51. With regard to information for consumers on the essential characteristics of products such as natural mineral waters, I note at the outset that compliance with that objective of general interest is in the present case closely related to that previously referred to, concerning the protection of human health, and that, therefore, some of the considerations set out above may also be relevant in that regard. Furthermore, it must be stated that the freedom of expression and information which is guaranteed by Article 11 of the Charter includes commercial information, in particular for advertising purposes, as is the case with Article 10 of the ECHR.