C-239/02 Douwe Egberts NV v Westrom Pharma NV and Others [2004] ECR I-7007

• The ECJ was asked whether the Belgian law, which provides for an outright ban of any references to slimming on foodstuffs labelling, infringes EU law including the principles of the free movement of goods, under Article 28.

• ECJ noted that Rules in issue restricted access to the Belgian market of foodstuffs lawfully manufactured and marketed in the other Member State in which non-misleading particulars concerning health might be mentioned under the provisions of Directive 2000/13.

• Compelling a producer to discontinue an advertising scheme which he considered particularly effective might constitute an obstacle to imports.

  • Therefore such an outright ban was unlawful unless one of the grounds for the restriction stated in Article 30 (human health, etc.) could be made out.

  • This was impossible here, since an EU directive itself allowed such advertising where it was accurate, so that the ban was contrary to Article 28. 

ECJ

• In order for national provisions restricting or prohibiting certain selling arrangements not to be caught by Article 28 EC, they must not be such as to prevent access to the market by products from another Member State or to impede access any more than it impedes access by domestic products.

• An absolute ban on advertising is more likely to harm goods from other states.

  • Such a fetter may only be justified by one of the public-interest grounds set out in Article 30 EC which include the protection of health and life of humans or by one of the overriding requirements ensuring inter alia consumer protection.

  • It must also be appropriate for securing attainment of the objective which it pursues and must not go beyond what is necessary for attaining it.