This case is about the decision-making process preceding the adoption of a directive on cocoa and chocolate products. The aim of the directive is to approximate the national legislation of the Member States on these products and thus to promote the working of the internal market. The directive will replace the old directives on the subject. The legal basis for harmonisation legislation is Art. 95 EC. In this article, the co-decision procedure of Art. 251 EC is indicated as the procedure to be followed for the adoption of acts.
The procedure began with a proposal, initiated by the Commission on 17 April 1996, specifying, among other things, that Member States may allow on their territory the production of chocolate consisting of a maximum of 5% vegetable fat other than cocoa butter. This is already allowed in seven EU Member States (Austria, Denmark, Finland, Ireland, Portugal, Sweden, and the United Kingdom).
The list of ingredients on the packaging must indicate that other fats have been used. Chocolate products that meet these criteria may freely circulate in the Union under a number of prescribed names, including "chocolate". Producers that only use cocoa butter may explicitly state this on the packaging. Furthermore, a programme will be developed to check whether producers meet the criteria.
Next, as provided in Art. 95 EC, the Economic and Social Committee is consulted. On 31 October 1996, the ESC gave a positive opinion on the Commission proposal. However, the Committee did make a number of comments. It considered the implementation period of 36 months too short and pointed out that all people from a particular language area did not use the product names proposed by the Commission.
The proposal was sent to the European Parliament, where it was dealt with by the Committee on the Environment, Public Health and Consumer Protection. The rapporteur of this Committee formulated a report that was discussed and approved by the Commission on 8 October 1997. It was then sent to the plenary meeting of the Parliament.
On 23 October 1997, the plenary meeting of the Parliament adopted the report of the rapporteur, thus amending the proposal of the European Commission.
The Parliament agreed that chocolate products with other fats than cocoa butter should be able to circulate freely, not just among the seven Member States, but in the entire Union. However, it preferred to postpone implementation until a method had been developed to monitor compliance with the directive. In the Parliament´s opinion, the list of ingredients must indicate the quantities of other fats and the packaging must contain a statement that the product contains fats other than cocoa butter at the top of the packaging and at the top of the list of ingredients.
The Parliament would only allow tropical fats (without enzymatic processing) in chocolate.
The United Kingdom and Ireland wanted to continue to use the name "milk chocolate" instead of "milk chocolate with high milk content", but the Parliament has rejected this option. Furthermore, the definition of an Italian chocolate product (gianduia) was adapted.
The Parliament proposed that the European Commission explore, before 1 January 2002, what effects the directive would have for the producers in Third World Countries.
On 4 March 1998, the Commission submitted a modified proposal. Under the new proposal, the Commission adopted the new definition of giandua as proposed by the Parliament. It also changed the proposal in the sense that a statement must be printed on the front of the product separate from the list of ingredients, to the effect that the product contains fats other than cocoa butter. However, the Commission did not wish to specify the exact location of this statement. Furthermore, the quantities of other fats do not need to be listed among the ingredients.
Ireland and the United Kingdom were allowed to continue to use the term "milk chocolate". The wish of the Parliament that the other fats only be tropical fats, not obtained through enzymatic processing, was not adopted.
On 28 October 1999, the Council (internal market) adopted a common position by a qualified majority in which it agreed with the proposal of 5% fats other than cocoa butter in chocolate products. The Council went even further than the Parliament regarding the types of other fats allowed and made a list of six fats that may be used. The seventh type, coconut oil, may only be used in ice cream and similar frozen products. Enzyme treatments may not be used. The packaging must contain a separate statement that fats other than cocoa butter have been used. This statement must be printed together with the brand name at the top of the list of ingredients. Ireland and the United Kingdom could continue to use the term "milk chocolate".
Belgium and the Netherlands voted with Luxembourg against abstaining. Belgium stated that it was against the act mainly because it would not benefit the quality of chocolate. It seemed incomprehensible to the Belgians that an exemption rule in seven countries had been turned into a general rule. The fact that two countries were allowed a special position as regarded the name of a product was something that Belgium could not agree to either. Moreover, Belgium was of the opinion that the absence of a good control method could be misleading to consumers and thought the packaging provisions insufficient.
On 18 November 1999, the Commission gave a positive opinion on the common position of the Council, since the essence of the position reflected the wishes of the Parliament.
In January, in the run-up to the plenary session of the Parliament in March 2000, the French chocolate makers demonstrated against the decision taken by the Council. They were against products containing 5% other fats being sold as chocolate and proposed to sell these products under fantasy names like végécao. The demonstrators sought the support of the Parliament for their cause.
In a press conference on 24 January 2000, the rapporteur predicted a difficult second reading by Parliament in the plenary session in March. He believed that the Council´s position on the packaging statement was unclear, in contrast to the Parliament´s proposal of two years ago. Moreover, the influence of the measure on Third World countries would have to be studied before the measure could be implemented.
On 23 February 2000, the Committee on the Environment, Public Health and Consumer Protection agreed to the Council decision, with two amendments. First, the use of techniques for genetic modification in the production of chocolate products must be prohibited. Second, the Commission must find out how the interests of producers in Third World countries could best be protected, e.g., by setting up "fair trade" projects.
With these amendments, the commission went against the wish of the rapporteur, who wanted to re-adopt the amendments of the Parliament in the first reading. He was against the common position of the Council because he believed that the measure was bad for cocoa butter producers in Third World countries and that the provisions on the packaging statement would not do much to inform the consumer. He also wanted the implementation of the measure to be postponed until a sound control method was available.
In the second reading by the plenary session on 15 March 2000, the Parliament followed the opinion of the commission, so it did not revert to the amendments made in the first reading. The amendment, proposed by the commission, to prohibit the use of genetic modification was not adopted. However, it did adopt the amendment requiring a study into the interests of producers in Third World countries. Possibilities need to be explored on how the Union, for example, through "fair trade", may contribute to supporting these producers.
On 15 May 2000, the Commission gave a positive opinion on the amendment proposed by Parliament.
The formal adoption of the act by the Council followed on 25 May 2000, whereby the Council adopted the Parliament´s amendment. The act was adopted without debate.
After having been signed by the Presidents of the Council and of Parliament as well as by the secretaries-general of the two institutions on 23 June 2000, the act was published in the Official Journal of the European Communities (OJ EC 2000 L 197/19). The Member States must adapt their legislation to conform to the directive within the implementation term of 36 months.
For a full history of the genesis of this directive, including references to the relevant documents, PRELEX is the ideal database. The result of a search in this database looks like this.