Germany, Federal Supreme Court of Germany, 17 May 2018 I ZR 252/16

Identification of the case

• Freedom to choose an occupation and right to engage in work (art. 15 CFREU)
• Freedom to conduct a business (art. 16 CFREU)
• Health care (art. 35 CFREU)

• §§ 8, 3, 4 Nr. 11 UWG aF, §§ 8, 3, 3a UWG (Gesetz gegen den unlauteren Wettbewerb/Act against Unfair Competition)
• § 12 I 2 UWG
• §§ 291, 288 I 2 BGB (Bürgerliches Gesetzbuch)

• Articles 2 (2) No. 5; 4 (3) (a) Regulation (EC) No 1924/2006 on nutrition and health claims made on foods
• Article 3 (3) Directive 2005/29/EC ‘Unfair Commercial Practices Directive’

Summary of the case

The case was brought before the Federal Supreme Court by the Verband Sozialer Wettbewerb (association for fair competition) as the appellant against a German beer brewery (defendant). The defendant advertised three types of beers on its website by using the word “bekömmlich” (digestible/wholesome).

According to the argument of the appellant, the word “digestible/wholesome” falls within the scope of ‘health claims’ in relation to food and beverages, meaning subsequently that it suggests or implies that a relationship exists between a food category, a food or one of its constituents and health, see Art. 2 (2) No. 5 Regulation No. 1924/2006.

Therefore, the appellant invokes Art. 4 (3) (a) Regulation No. 1924/2006 which prohibits this kind of labelling involving health claims for beverages which contain more than 1,2 blood alcohol percentage.

Consequently, the appellant issued a claim to seek a prohibitory injunction in order to stop the brewery from using this labelling and marketing in context with the beer products on their webpage.

• Civil judicial enforcement

Affirmation of the injunctive relief to refrain from using the described advertisement

Adjudication of the reimbursements of the costs for the disciplinary warning letter

First, the Court ruled that Article 4 (3) (a) Regulation 1924/2006 which refers to the prohibition of health claims on certain alcoholic beverages constitutes a market behaviour rule within the scope of Section 3a UWG. Thus, an infringement of Article 4 (3) (a) is adequate to harm the interests of the consumers to a not insignificant extent.

Then, the Court turned to the question whether the advertisement of the beers in the present case falls within the scope of Article 4 (3) (a) of the Regulation, e.g. whether the beers concerned “bear” health-claims when advertised as “digestible” (or “wholesome”?). It was generally reiterated that – besides the bearing in the initial sense as a label on the product – beverages also “bear” health claims when these claims are made in the context of an advertisement which is obviously linked to the beverages concerned. Thus, the scope of the prohibition of health-claims on alcoholic beverages also extends to the advertisement in order to achieve and guarantee the objective, e.g. a high level of effective protection of the consumer’s health. Here, the Court made explicit reference to CJEUs judgement in the case of “Deutsches Weintor”.

Furthermore, “digestible” is a health-claim in accordance with Art. 2 (2) No. 5 Regulation if this claim suggests or implies that a relationship exists between a food category, a food or one of its constituents and health. The interpretation of the term “relationship” is to be read in a broad manner according to the CJEU in Deutsches Weintor, meaning that it also encompasses claims which imply that the negative or harmful effect on health when consuming the beverage are less or not existent, compared to what is commonly associated with it. The lower court held that “digestible” implies by its textual meaning “healthy”, or “beneficial” for the body system, which was eventually upheld by the Federal Supreme Court. It was further argued that the term “digestible” was not associated with health but with general well-being, thus it is a claim regarding the taste of the beer. With referral to the CJEU judgment in Deutsches Weintor, the Court held that the statement “digestible” cannot be viewed in an abstract manner, but has to be viewed in the context of its usage. In this context, “wholesome (digestible)” beer means “well or easily digestible” which is connected to the functioning of the body. It is therefore a health claim and not related to taste or general well-being. Hence, the Federal Supreme Court stated that “digestible” is a health claim in the sense of Article 4 (3) (a) Regulation.

Lastly, the Court elaborated on the proportionality of the absolute prohibition of health claims for alcoholic beverages set out by Article 4 (3) (a) with reference to the CJEU. The two rights which are possibly infringed in this respect are the right to work (Article 15 (1) CFREU) and the right to conduct business (Article 16 CFREU). These rights need to be balanced with public health (Article 35 (2) CFREU). By relying heavily on Deutsches Weintor, the Court ruled that the protection of public health prevails over the other rights since the prohibition of health claims for alcoholic beverages does not prevent the production or the sale of alcoholic beverages but is limited to a clear-cut area of labelling and advertising. The prohibition does not prevent the defendant from advertising for the beers concerned, only the specific use of the term “digestible” / “wholesome” is not allowed since they are health claims.

Role of the Charter and role of the general principles on enforcement

Since the case concerns the absolute prohibition of labelling and advertising regarding beverages with more than 1,2 by volume, the freedom to choose an occupation and the right to engage in work (Art. 15 CFREU) as well as the freedom to conduct business (Art. 16 CFREU) is infringed. Therefore, it was necessary to balance these two rights against the protection of public health, laid down in Art. 35(2) CFREU.

The Federal Supreme Court justified its decision on grounds of Article 4 (3) (a) Regulation on nutrition and health claims on foods. In this context, it assessed the proportionality of the provision infringing rights guaranteed by the CFREU, namely the right to work and the right to conduct business. It balanced these rights with the competing right of the protection of public health, enshrined in Article 35 (2) CFREU in order to achieve effective protection of the consumer.

• Proportionality

The Federal Supreme Court justified its decision on grounds of Article 4 (3) (a) Regulation on nutrition and health claims on foods. In this context, it assessed the proportionality of the provision which is infringing rights guaranteed by the CFREU, namely the right to work and the right to conduct business. It balanced these rights with the competing right of the protection of public health, enshrined in Article 35 (2) CFREU in order to achieve effective protection of the consumer.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• CJEU C-544/10 Deutsches Weintor
• CJEU C-452/14 Doc Generici

Conform interpretation with EU law as interpreted by the CJEU

Proportionality

The Court used the CJEU’s judgment in Deutsches Weintor to interpret certain terms of the Regulation and received guidance on the balancing of the competing rights within the test of proportionality. The Court used the Doc Generici-decision to state that there is no need to bring this case before the CJEU for the purpose of a preliminary ruling since the case did not pose unsolved questions of interpretation.