For the sake or completeness, I would point out that, as eatly as 1981, the Commission submitted, pursuant to Article 2(2) of Directive 79/112, a proposal for a Council directive providing for the harmonisation of prohibited misleading claims (OJ 1981 C 198, p. 4). The purpose of the draft directive was to establish a non-exhaustive list of claims relating to the characteristics, effects or properties referred to in Article 2(1)(a) of Directive 79/112. However, the proposal was withdrawn in 1985.

The referring court cites as examples of descriptions which have been classified as prohibited health-related information: the healthy alternative; only approx. 105kcal/100g — makes you fit, not fat; Linusit Gold supplies roughage and bulking agent for constipation caused by diet; and improves bladder function.

It is worth mentioning that the referring court states that it does not share the view expressed by the Austrian Government in the reply in Case C-221/00, and discussed further on in this Opinion, that Paragraph 9(1) of the LMG goes beyond the terms of Article 2(1)(b) of Directive 79/112.

It may be noted in passing that the other proceedings for preliminary rulings, in which Austrian courts have referred similar questions, have been stayed (Cases C-66/01, C-74/01, C-339/01, C-343/01 and C-357/01).

Case C-241/89 SARPP [1990] ECR I-4695, paragraph 15.

By analogy with Case C-383/97 Van der Laan [1999] ECR I-731, paragraph 37 et seq.

With reference to Case 178/84 Commission v Germany [1987] ECR 1227, paragraph 32 (Beer Purity).

Case C-77/97, cited in footnote 3, paragraphs 33 and 34.

Case 120/78 Retve-Zentral [1979] ECR 649 (Cassis de Dijon).

Cited in footnote 3, paragraphs 34 and 35.

Case 304/84 Muller and Others [1986] ECR 1511 and the Beer Purity case, cited in footnote 16.

Cited in footnote 3.

At the hearing, the representative or the Austrian Government pointed out that the Commission's application is dated 31 May 2000, whereas Directive 2000/13 had already entered into force on 26 May 2000. The provisions or Directive 79/112 at issue are substantively identical to those or Directive 2000/13, and the transposition requirements are therefore also identical. For that reason, the Commission's omission should not, in my opinion, affect the admissibility or its application.

Cited in footnote 12, paragraph 15. The distinction in question is important. Article 15(2) contains an exhaustive list of matters of public interest which may justify a breach of the prohibition laid down in Article 15(1). On the other hand, in Cassis de Dijon, cited in footnote 16, the Court takes as its starting point a non-exhaustive list of matters of public interest which may be invoked to justify obstacles to imports. I would point out that the Council adopted Directive 79/112 on 18 December 1978 and the Cassis de Dijon judgment was delivered over two months later.

See, as another example of partial harmonisation, where the Court examines national provisions which are not (any longer) harmonised in the light of Article 28 EC, Case C-3/99 Ruwet [2000] ECR I-8749, paragraphs 44 et seq.

If, for example, a Member State adopts a measure in respect of environmental labelling on foodstuffs, that national measure must, in my view, be examined in the light of the primary provisions of the Treaty or any other appropriate secondary Community legislation, since environmental matters are not regulated by Directive 79/112.

See, for example, the three recent judgments concerning Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ 1985 L 210, p. 29). With regard to the degree of harmonisation achieved in respect of product liability, the Court observes in those judgments that the directive seeks to achieve, in the matters regulated by it, complete harmonisation of the laws, regulations and administrative provisions of the Member States (Case C-154/00 Commission v Greece [2002] ECR I-3879, paragraph 20, Case C-52/00 Commission v France [2002] ECR I-3827, paragraph 24, and Case C-183/00 Gonzalez Sánchez [2002] ECR I-3901, paragraph 32; italics added).

Cited in footnote 12.

Here are a few examples. In the Smanor judgment (Case 298/87 [1988] ECR 4489), the Court examined national rules regarding the trade description of deep-frozen yoghurt Both under Article 28 EC and under the provisions of Directive 79/112, in particular the specific rules on names under which foodstuffs are sold in Article 5(1), but also Article 15 of that directive. In infringement proceedings against Germany, the Court gave judgment on national rules under which foodstuffs containing an ingredient which is not in conformity with the traditional national recipe must carry a trade description with an additional statement indicating that the substance in question has been used, even if that substance is already included in the list of ingredients. The Commission had based its complaints both on Article 5 of Directive 79/112 and on Article 28 EC. The Court held as follows in that regard: In that connection, it is sufficient to note that the requirement laid down in Article 5(1) of the Directive to the effect that any additional particulars accompanying the trade description must be necessary for the information of consumers also follows from Article [28 EC] and that, consequently, this point cannot constitute a separate ground of challenge (Case C-51/94 Commission v Germany [1995] ECR I-3599, paragraph 40, italics added). In the Bellamy and English Shop Wholesale case, a Belgian court sought to ascertain whether Article 28 EC precludes a national rule which prohibits giving the impression that a branded product possesses particular qualities when in fact all similar foodstuffs display the same qualities and, if so, whether such a rule may be justified under Article 30 EC. The Court held that the national provision in question correctly transposed Article 2(1)(a)(iii) of Directive 79/112 and thus did not constitute an obstacle to free movement contrary to Article 28 EC (cited in footnote 23, paragraph 21). It is remarkable that the Court implicitly gave judgment by reference to primary Community law, whereas in fact the case concerned the transposition of a provision of a directive. In Darbo, cited in footnote 23, the Court was asked whether Article 2(1)(a)(i) of Directive 79/112 precludes use of the words naturally pure to describe a strawberry jam which contains the gelling agent pectin and traces or residues of lead, cadmium and pesticides in specific quantities. The Court confined itself to an assessment under the directive.

An illustrative example of this is the case-law concerning language requirements which a Member State may impose in the field of labelling. In the judgment in Piageme I, the Court declared that a national rule requiring the exclusive use of a specific language for the labelling of foodstuffs, without allowing for alternative methods of informing the purchaser, was contrary to Article 28 EC and to the rules on the use of languages under Article 14 of Directive 79/112, which were applicable at that time (Case C-369/89 [1991] ECR I-2971). In Piageme 11, on the other hand, a question concerning the same national rule was disposed of solely on the basis of Article 14 (Case C-85/94 [1995] ECR I-2955). Similarly, in the judgment in the related Goerres case, there is no reference to Article 28 EC, perhaps because the national court had not mentioned that provision in its questions (Case C-385/96 [1998] ECR I-4431). In the recent judgment in Geffroy, however, the Court assesses national rules, which on the one hand provide that labelling must not mislead the purchaser, particularly as to the characteristics of the foodstuff, and on the other hand require the use of a specific language for the labelling of foodstuffs, both in the light of the directive and in the light of Article 28 EC. That twofold examination occurs only by virtue of a reference to the abovementioned three judgments in Piageme J, Piageme II and Goerres (Case C-366/98 [2000] ECR I-6579, paragraphs 24 to 28).

As recently held in Case C-324/99 DaimlerChrysler [2001] ECR I-9897, paragraph 32. See also in this respect, as regards the exhaustive Community rules laid down by Directive 76/768/EEC on cosmetic products, my Opinion in the Linhart case, cited in footnote 3, points 27 and 28.

I confine myself to a reference to the judgment in Case C-315/92 Verband Sozialer Wettbewerb [1994] ECR I-317 (Clinique), paragraph 11.

Cited in footnote 16.

See SARPP, cited in footnote 12.

See also my Opinion in Linhart, cited in footnote 3, point 29.

By analogy with the way in winch the Court regards products possessing properties or hoth mediami! products and. for example, cosmetic products as subiect to the more rigorous Community rules applicable to medicinal products (sec Case C-.Ï69/88 Dclutrc |1991] ICR I-1487. paragraphs 20 to 22).

See, in particular, Case C-303/97 Sektkellerei Kessler [1999] ECR I-513, paragraph 33.

It should he borne in mind in this context that a true statement is not automatically a non-misleading statement. Even true information can mislead a purchaser. If, for example, the lahel or a foodstuff states that the product does not contain certain additives which are in any case prohibited by law, that is ascribing to that foodstuff special characteristics which all similar foodstuffs possess. Article 2IH|a)(iii) of Directive 79/112 prohibits such claims since they arc misleading.

See, for example, the case-law on additives, as set out in Müller and Others and Beer Purity, cited in footnotes 24 and 14 respectively.

See, as an example of a general provision, Article 3 of Council Directive 92/59/EEC of 29 June 1992 on general product safety (OJ 1992 L 228, p. 24). On 15 January 1994 that directive was replaced by Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 (OJ 2002 L 11, p. 4). Article 14 of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1) enters into force on 1 January 2005. Paragraph 1 of that provision prohibits in general terms the placing on the market of food if it is unsafe, and will apply in addition to existing specific Community provisions on food safety.

Darbo, cited in footnote 23, paragraph 22.

The argument put forward by the Austrian Government, that there has been negative experience of this form of self-regulation in the United States, is not substantiated in any way by it.

See Unilever, cited in footnote 3. In the pending Linhart case, cited in footnote 3, the Court has before it a reference from the Verwaltungsgerichtshof for a ruling on the compatibility with Community law of a prohibition on the statement dermatologically tested appearing on soaps and shampoos.

Aptly cited in Case C-220/98 Estéé Lauder [2000] ECR I-117 which, like Unilever (cited in footnote 3), relates to cosmetic products and where the Court refers, in paragraph 27, to the judgment in Gut Springenheide and Tusky, which concerns foodstuffs (eggs).