Italy and Spain have infringed an EC Treaty by prohibiting chocolate products from being marketed under the name 'chocolate' where, in addition to cocoa butter, they also contain other vegetable fats. This was the opinion of the Advocate General in a hearing on Thursday at the European Court of Justice.
The European Commission took the two countries to court because it saw the Italian and Spanish provisions as going against EU free movement of goods principles.
Italy and Spain forbid the marketing under the name 'chocolate' of products which, in addition to cocoa butter, also contain other vegetable fats. Such products need to be described as 'chocolate substitute'.
The prohibition affects chocolate manufactured in Denmark, Ireland, Portugal, Sweden, Finland and the United Kingdom which, whilst adhering to the minimum content of cocoa butter, in addition, also contains other vegetable fats up to a maximum percentage of 5 per cent. With the exception of Spain and Italy all 13 other Member States permit such products to be marketed as 'chocolate'.
The Advocate General pointed out that a Community directive of 1973 makes provision for use of the name 'chocolate' yet does not determine the extent to which products which, in addition to cocoa butter, also contain other vegetable fats may be marketed under the name 'chocolate'. Provision was made in that connection only in an EC directive of 2000 which the Member States have to transpose into national law by August 2003 and which is not therefore applicable to the present dispute.
However, the Advocate General made it clear that whilst under the Court's case-law the Member States are authorised to legislate in areas where only partial harmonisation has taken place, such national legislation must however be compatible with the EC Treaty provisions on free movement of goods. In his opinion Spain and Italy had impeded such free circulation within the Community.
The Advocate General stressed that the addition of other vegetable fats in amounts of up to 5 per cent does not give rise to a substantial alteration in the composition of the product.