Case C-207/14, Hotel Sava Rogaška – on appropriating communal mineral water

Underground water can surface at different points in a landscape. Therefore, how should the law respond where a company bottles the water at one point and sells it under a brand name but at another point in the landscape there is a company that bottles the water emerging there and wants to sell it under a different brand name? Can, and how, is the latter company to exploit and market the mineral water when the EU’s ‘marketing of mineral waters’ Directive 2009/54/EC bans the marketing of ‘natural mineral water from one and the same spring under more than one trade description’?

Facts
Slovenia is a place of natural springs and thermal spas. It is also home to companies that bottle, market and sell mineral waters to consumers and industry.

In one region of Slovenia, there is a body of communal underground water which emerges at various points in the landscape. At one particular point, there is a spring and ‘Hotel Sava Rogaška’ takes its water from there. Since it also wanted to sell its water, Hotel Sava Rogaška applied to the relevant Slovenian Ministry to register the words ‘ROI Roitschocrene’ as the trade name for its water.

The Slovenian Ministry realised that the mineral water emerging at Hotel Sava Rogaška’s spring came from a body of underground water that was also emerging at a couple of other points in the landscape, and at those points the Droga Kolinska company was already selling the water under the name of ‘Donat Mg’ – a name registered for the magnesium-rich mineral water by the Ministry back in 2001. In that context, the Ministry remembered that the EU’s Directive 2009/54/EC on the exploitation and marketing of natural mineral waters (as recast in OJ [2009] L164/45), states: ‘It shall be prohibited to market natural mineral water from one and the same spring under more than one trade description’ (Article 8(2)). Consequently, the Ministry refused Hotel Sava Rogaška’s application.

Litigation ensued, and the correct interpretation of the law no longer looked so clear for the court. Slovenian law presented the initial difficulty. Despite the English version of the Directive unequivocally using the word ‘trade description’, the Slovenian implementing provision was quite different. That is to say, instead of using the equivalent words for ‘trade description’, the Slovenian legislature had used the phrase ‘legal trade mark’. Consequently, Hotel Sava Rogaška submitted that it would be possible to have the trade name of ‘ROI Roitschocrene’ on its mineral water because it would be possible for consumers to distinguish one product from another.

That issue had some bearing on the main problem, namely, how to interpret EU law. Article 8(2) of the Directive banned the marketing of ‘natural mineral water from one and the same spring’. But what did that mean in the present case when the mineral water originated in the same aquifer or body of groundwater but was being drawn from different exits?

Unfortunately, referring to other planks of EU legislation was of little or no help to answering that question. For whereas the EU’s water policy framework Directive 2000/60/EC (OJ 2000 L327/1) provided a string of technical definitions for words like ‘aquifer’ or ‘body of groundwater’, there was no coherence to be found between the English, French and German versions of the Directive. Consequently, either a literal or a systematic interpretation of the EU Directive shed no light on the matter.

Using a teleological interpretation of the exploitation and marketing Directive 2009/54/EC would put the focus on the aim of the Directive. The recitals suggested that the Directive was intended to protect consumer health, prevent consumers from being misled, and ensure fair competition.

In essence, the court wondered how to avoid the problem of misleading consumers into thinking that there were different types and brands of water when in fact the water came from the same body of underground water. Might not two names co-exist if the chemical and microbiological composition of the waters differed owing to the fact that, for example, the water had taken different routes to get to the surface, and on their respective journeys the water had percolated through different layers of rock and sediments?

Alternatively, could the following factors also be relevant: the distance between the exits, the depth of the exits, the specific qualities of the water drawn from individual exits (such as its chemical and microbiological composition), hydraulic connectivity between the exits and the confinement of the water held by the aquifer?

Since neither national nor EU legislation seemed to provide answers to these matters, it was decided to make a reference to the CJEU.

Questions Referred
According to the Curia website, the Vrhovno sodišče Republike Slovenije has asked:

1. Is Article 8(2) of Directive 2009/54/EC […] of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters to be interpreted in such as way that ‘natural mineral water from one and the same spring’ means:
a) water from one and the same point of exit, but not water that is drawn from different exits even when such water originates in the same aquifer or body of groundwater within the meaning of the definitions of ‘aquifer’ and ‘body of groundwater’ given in Directive 2000/60[/]EC […] or

b) water from one and the same point of exit, but not water that is drawn from different exits even when such water originates in the same aquifer or body of groundwater within the meaning of the definitions of ‘aquifer’ and ‘body of groundwater’ given in Directive 2000/60EC, although, in interpreting the expression, account should be taken of factors such as the distance between exits, the depth of the exits, the specific qualities of the water drawn from individual exits (such as its chemical and microbiological composition), hydraulic connectivity between exits and the confinement of the water held by the aquifer, or

c) water springing from the same aquifer or body of groundwater within the meaning of the definitions of ‘aquifer’ and ‘body of groundwater’ given in Directive 2000/60EC irrespective of whether it reaches the surface at a number of different exits, or;

d) water springing from the same aquifer or body of groundwater within the meaning of the definitions of ‘aquifer’ and ‘body of groundwater’ given in Directive 2000/60EC irrespective of whether it reaches the surface at a number of different exits, although, in interpreting the expression, account should be taken of factors such as the distance between exits, the depth of the exits, the specific qualities of the water drawn from individual exits (such as its chemical and microbiological composition), hydraulic connectivity between exits and the confinement of the water held by the aquifer?

2. If none of the suggested answers to question 1 should be correct, must the interpretation of the notion of ‘natural mineral water from one and the same spring’ take into account factors such as the distance between exits, the depth of the exits, the specific qualities of the water drawn from individual exits, hydraulic connectivity between exits and the confinement of the water held by the aquifer?

Comment
EU IP law has removed natural mineral waters from the list of products able to benefit from protected geographical indications and designations of origin (Council Regulation (EC) No 692/2003 of 8 April 2003 amending Regulation (EEC) No 2081/92 on the protection of geographical indications and designations of origin for agricultural products and foodstuffs).

Mineral water is not an isolated product. The EU’s mineral water companies are increasingly inside corporate groups that make and distribute soft drinks, and also produce foodstuffs for ‘nutritionally aware’ consumers. Thus, the above-mentioned ‘Donat Mg’ is a magnesium-rich mineral water sold by Droga Kolinska. The company is owned by Atlantic Grupa, which makes a number of products including brands of sports drinks and other ‘functional food’.

This sector of industry may also be affected by another reference currently before the CJEU. In Case C-157/14, Neptune, the applicant is a leading French company that sells French mineral waters but which is part-owned by a Japanese pharmaceutical company that specialises in ‘functional food’. The issue in this case is mineral water which has been marketed and sold as being ‘suitable for a low-salt diet’. The legal question is how should the salt content of that mineral water be measured? Should it be according to a ‘normal’ understanding of the word ‘salt’, namely, the amount of sodium chloride? Or should it be the amount of sodium in all its forms, including sodium bicarbonate? And can a company that has perhaps been wrongly ordered by the state to remove information from the mineral water’s packaging, then claim that its EU Charter rights have been infringed? See further, Case C-157/14, Neptune – mineral water salinity.

Update – 1 February 2015
The Third Chamber is due to hear Case C-207/14, Hotel Sava Rogaška on 4 March 2015.
This hearing therefore happens after the Fourth Chamber has heard Case C-157/14, Neptune.

Update – 29 March 2015
The Opinion of Advocate General Jääskinen on Case C-207/14, Hotel Sava Rogaška is due to be handed to the Third Chamber on 14 April 2015.

Update – 2 June 2015
The judgment of the court is expected to be handed to the Third Chamber on 24 June 2015.

Update – 24 June 2015
Judgment

A version of the CJEU’s judgment in Case C-207/14, Hotel Sava Rogaška ECLI:EU:C:2015:414 is reproduced below. The reproduction is not authentic. Only the versions of the document published in the ‘Reports of Cases’ or the ‘Official Journal of the European Union’ are authentic. The source of the reproduction is the Eur-Lex Europa web site. The information on that site is subject to a disclaimer and a copyright notice.

 

 

JUDGMENT OF THE COURT (Third Chamber)

24 June 2015 ( )

(Reference for a preliminary ruling — Approximation of laws — Natural mineral water — Directive 2009/54/EC — Article 8(2) — Annex I — Prohibition on marketing ‘natural mineral water from one and the same spring’ under more than one trade description — Meaning)

In Case C‑207/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Vrhovno sodišče (Slovenia), made by decision of 16 April 2014, received at the Court on 25 April 2014, in the proceedings

Hotel Sava Rogaška, gostinstvo, turizem in storitve, d.o.o.

v

Republika Slovenija,

THE COURT (Third Chamber),

composed of M. Ilešič, President of the Chamber, K. Lenaerts, Vice-President of the Court, acting as Judge of the Third Chamber, A. Ó Caoimh, E. Jarašiūnas (Rapporteur) and C.G. Fernlund, Judges,

Advocate General: N. Jääskinen,

Registrar: M. Aleksejev, Administrator,

having regard to the written procedure and further to the hearing on 4 March 2015,

after considering the observations submitted on behalf of:

–        Hotel Sava Rogaška, gostinstvo, turizem in storitve, d.o.o., by I. Dobravc Tatalovič and M. Kač, odvetnika,

–        the Slovenian Government, by A. Vran and N. Pintar Gosenca, acting as Agents,

–        the Czech Government, by M. Smolek and S. Šindelková, acting as Agents,

–        the Greek Government, by I. Chalkias, E. Leftheriotou and A.-E. Vasilopoulou, acting as Agents,

–        the European Commission, by S. Grünheid, E. Manhaeve and M. Žebre, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 April 2015,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 8(2) of Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters (OJ 2009 L 164, p. 45).

2        This request has been made in proceedings between Hotel Sava Rogaška, gostinstvo, turizem in storitve, d.o.o. (‘HSR’) and the Republika Slovenija (Republic of Slovenia), represented by the Ministry of Agriculture and the Environment (‘the Ministry’), concerning the latter’s refusal to recognise a trade description that HSR wishes to use for a natural mineral water.

 Legal context

 EU Law

 Directive 2009/54

3        Recitals 5, 7 and 9 in the preamble to Directive 2009/54 state:

‘(5)      The primary purposes of any rules on natural mineral waters should be to protect the health of consumers, to prevent consumers from being misled and to ensure fair trading.

(7)      Care should be taken to ensure that natural mineral waters retain at the marketing stage those characteristics which enabled them to be recognised as such. …

(9)      The inclusion of the statement of the analytical composition of a natural mineral water should be compulsory in order to ensure that consumers are informed.’

4        Article 1(1) of Directive 2009/54 is worded as follows:

‘This Directive concerns waters extracted from the ground of a Member State and recognised by the responsible authority of that Member State as natural mineral waters satisfying the provisions of Annex I, Section I.’

5        Article 4 of Directive 2009/54 lists the treatments that natural mineral water, in its state at source, may be the subject of, and paragraphs (1)(a) to (c) of that article state that the treatments they authorise may only be carried out ‘in so far as [those] treatment[s] [do] not alter the composition of the water as regards the essential constituents which give it its properties’.

6        Article 6 of Directive 2009/54 requires any containers used for packaging natural mineral waters to be fitted with closures designed to avoid any possibility of adulteration or contamination.

7        Under Article 7(2) of that directive:

‘Labels on natural mineral waters shall … give the following mandatory information:

(a)      a statement of the analytical composition, giving its characteristic constituents;

(b)      the place where the spring is exploited and the name of the spring;

…’

8        Article 8 of Directive 2009/54 states:

‘1.      The name of a locality, hamlet or place may occur in the wording of a trade description provided that it refers to a natural mineral water the spring of which is exploited at the place indicated by that description and provided that it is not misleading as regards the place of exploitation of the spring.

2.       It shall be prohibited to market natural mineral water from one and the same spring under more than one trade description.

3.      When the labels or inscriptions on the containers in which the natural mineral waters are offered for sale include a trade description different from the name of the spring or the place of its exploitation, that place of exploitation or the name of the spring shall be indicated in letters at least one and a half times the height and width of the largest of the letters used for that trade description.

The first subparagraph shall apply, mutatis mutandis and with the same intention as regards the importance attributed to the name of the spring or the place of its exploitation, with regard to the trade description used in advertising, in whatsoever form, relating to natural mineral waters.’

9        Under Article 12(a) and (b) of Directive 2009/54, respectively, the European Commission is to adopt limits for the concentrations of constituents of natural mineral waters and any necessary provisions for the indication on the labelling of high levels of certain constituents.

10      Section I, entitled ‘Definition’, of Annex I to Directive 2009/54 contains the following points:

‘1.      “Natural mineral water” means microbiologically wholesome water, within the meaning of Article 5, originating in an underground water table or deposit and emerging from a spring tapped at one or more natural or bore exits.

Natural mineral water can be clearly distinguished from ordinary drinking water:

(a)      by its nature, which is characterised by its mineral content, trace elements or other constituents and, where appropriate, by certain effects;

(b)      by its original purity,

both characteristics having been preserved intact because of the underground origin of such water …

2.      The characteristics referred to in point 1, which may give natural mineral water properties favourable to health, shall have been assessed:

(a)      from the following points of view:

(i)      geological and hydrological;

(ii)      physical, chemical and physico-chemical;

(iii)  microbiological;

(iv)      if necessary, pharmacological, physiological and clinical;

(b)      according to the criteria listed in Section II;

3.      The composition, temperature and other essential characteristics of natural mineral water shall remain stable within the limits of natural fluctuation; in particular, they shall not be affected by possible variations in the rate of flow.

…’

11      Section II of Annex I to Directive 2009/54, entitled ‘Requirements and criteria for applying the definition’, lists the requirements and criteria for geological and hydrological surveys; physical, chemical and physico-chemical surveys; microbiological analyses; and clinical and pharmacological analyses; which, in accordance with point 2(b) of Section I of that annex, must be carried out in order to assess the characteristics of the natural mineral water referred to in point 1 of that section.

12      Annex II to Directive 2009/54, entitled ‘Conditions for exploitation and marketing of natural mineral water’, states at point 2 that ‘[e]quipment for exploiting the [natural mineral] water shall be so installed as … to preserve the properties, corresponding to those ascribed to it, which the water possesses at source’.

 Directive 2000/60/EC

13      Article 1 of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (OJ 2000 L 327, p. 1) provides:

‘The purpose of this Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which:

(a)      prevents further deterioration and protects and enhances the status of aquatic ecosystems …, terrestrial ecosystems and wetlands …;

(b)      promotes sustainable water use based on a long-term protection of available water resources;

(c)      aims at enhanced protection and improvement of the aquatic environment …;

(d)      ensures the progressive reduction of pollution of groundwater and prevents its further pollution, and

(e)      contributes to mitigating the effects of floods and droughts

and thereby contributes to:

–        the provision of the sufficient supply of good quality surface water and groundwater as needed for sustainable, balanced and equitable water use,

–        a significant reduction in pollution of groundwater,

–        the protection of territorial and marine waters, and

–        achieving the objectives of relevant international agreements, including those which aim to prevent and eliminate pollution of the marine environment …’

14      Article 2 of Directive 2000/60 is worded as follows:

‘For the purposes of this Directive, the following definitions shall apply:

11.      “Aquifer” means a subsurface layer or layers of rock or other geological strata of sufficient porosity and permeability to allow either a significant flow of groundwater or the abstraction of significant quantities of groundwater.

12.      “Body of groundwater” means a distinct volume of groundwater within an aquifer or aquifers.

…’

 Slovenian law

15      Council Directive 80/777/EEC of 15 July 1980 on the approximation of the laws of the Member States relating to the exploitation and marketing of natural mineral waters (OJ 1980 L 229, p. 1), as amended, which has now been replaced by Directive 2009/54, was transposed into Slovenian law, inter alia, by the Regulation on natural mineral waters, spring waters and table waters (Pravilnik o naravni mineralni vodi, izvirski vodi in namizni vodi, Uradni list RS, nos 50/04, 75/05, 45/08; ‘the Regulation’).

16      Paragraph 4(1) of the Regulation provides that mineral water is water which, in addition to certain microbiological requirements, satisfies, inter alia, the condition that it should originate in an underground water table or deposit which is protected against any possibility of contamination, and emerges from a spring tapped at one or more natural or bore exits. Under Paragraph 12(4) of the Regulation, natural mineral water drawn from one and the same spring may be marketed under one trade description only.

 The dispute in the main proceedings and the questions referred for a preliminary ruling

17      According to the documents submitted to the Court, on 18 July 2011 HSR made an application to the Ministry for the recognition in Slovenia of the trade description ‘ROI Roitschocrene’ for the natural mineral water drawn from exit RgS-2/88.

18      By decision of 26 February 2012, the Ministry refused that application on the grounds that, pursuant to Paragraph 12(4) of the Regulation and Article 8(2) of Directive 2009/54, a natural mineral water from one and the same spring may be marketed under one trade description only, and that a natural mineral water drawn from the same aquifer as the water at issue but from a different exit, named V-3/66-70, had already been recognised as natural mineral water under the trade description ‘Donat Mg’ by decision of 3 July 2001, and marketed as such.

19      HSR brought an action for the annulment of the decision of 26 February 2012 before the Upravno sodišče Republike Slovenije (Administrative Court of the Republic of Slovenia), claiming, first, that the water drawn from exit RgS-2/88 is not the same as that drawn from exit V-3/66-70 and, secondly, that a distinction should be made between the notion of a ‘spring’ and the notion of an ‘aquifer’. Following the dismissal of that action, HSR lodged an appeal on a point of law before the referring court, arguing, inter alia, that the Upravno sodišče Republike Slovenije had incorrectly interpreted the notion of a ‘spring’ contained in Article 8(2) of Directive 2009/54.

20      Having recalled that it is bound by the findings of fact made at first instance, the Vrhovno sodišče (Supreme Court) stated that it is clear from those facts (i) that the exits V-3/66-70 and RgS-2/88 share one and the same underground water table or deposit and, in that regard, it pointed out that the notion of ‘common underground water table or deposit’ is to be understood to mean ‘body of water from one and the same aquifer’; (ii) that by decision of 3 July 2001, the Ministry recognised the water drawn from exits RgS-2/88 and V-3/66-70 as natural mineral water under the trade description ‘Donat Mg’, even though the addressee of that decision, namely the company Droga Kolinska d.d., does not have a concession to use the water drawn from exit RgS-2/88 (since that concession is in fact held by HSR by virtue of a subsequent decision of 14 February 2008) and, accordingly, Droga Kolinska d.d. cannot market that water under the trade description ‘Donat Mg’; and (iii) that Donat Mg natural mineral water is included in the register of natural mineral waters recognised in Slovenia and on the list of natural mineral waters recognised by Member States (OJ 2013 C 95, p. 38), with Donat being registered as its spring.

21      The referring court, noting the lack of case-law on this matter from the Court of Justice, seeks guidance as to the interpretation of the expression ‘natural mineral water from one and the same spring’ contained in Article 8(2) of Directive 2009/54. It observes that the term ‘spring’, which is used on several occasions in the directive, is not defined therein and that a number of interpretations of the expression ‘natural mineral water from one and the same spring’ are possible in view of the divergences between the various language versions of the definition of ‘natural mineral water’ set out in Annex I, Section I, point 1 of the directive. The referring court suggests that, if the overriding objective is to prevent consumers from being misled, the notion of ‘one and the same spring’ should be understood to mean ‘one and the same exit’ since, in its view, only water drawn from one and the same exit can have the same chemical and microbiological composition. None the less, the referring court notes that it would also be possible to interpret the notion of ‘one and the same spring’, in a broader sense, as referring to water that is drawn from several exits but originates in a single ‘aquifer’, within the meaning of Article 2(11) of Directive 2000/60, or, alternatively, as water belonging to the same ‘body of groundwater’ within the meaning of Article 2(12) of that directive.

22      In those circumstances, the Vrhovno sodišče decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1.      Is Article 8(2) of Directive [2009/54] to be interpreted in such a way that ‘natural mineral water from one and the same spring’ means:

(a)      water from one and the same point of exit, but not water that is drawn from different exits even when such water originates in the same aquifer or body of groundwater within the meaning of the definitions of “aquifer” and “body of groundwater” given in Directive [2000/60], or

(b)      water from one and the same point of exit, but not water that is drawn from different exits even when such water originates in the same aquifer or body of groundwater within the meaning of the definitions of “aquifer” and “body of groundwater” given in Directive [2000/60], although, in interpreting the expression, account should be taken of factors such as the distance between exits, the depth of the exits, the specific qualities of the water drawn from individual exits (such as its chemical and microbiological composition), hydraulic connectivity between exits and the confinement of the water held by the aquifer, or

(c)      water springing from the same aquifer or body of groundwater within the meaning of the definitions of “aquifer” and “body of groundwater” given in Directive [2000/60] irrespective of whether it reaches the surface at a number of different exits, or;

(d)      water springing from the same aquifer or body of groundwater within the meaning of the definitions of “aquifer” and “body of groundwater” given in Directive [2000/60] irrespective of whether it reaches the surface at a number of different exits, although, in interpreting the expression, account should be taken of factors such as the distance between exits, the depth of the exits, the specific qualities of the water drawn from individual exits (such as its chemical and microbiological composition), hydraulic connectivity between exits and the confinement of the water held by the aquifer?

2.      If none of the suggested answers to question 1 should be correct, must the interpretation of the notion of “natural mineral water from one and the same spring” take into account factors such as the distance between exits, the depth of the exits, the specific qualities of the water drawn from individual exits [(such as its chemical and microbiological composition)], hydraulic connectivity between exits and the confinement of the water held by the aquifer?’

 Consideration of the questions referred

23      By its two questions, which it is appropriate to examine together, the referring court is essentially asking how the notion of ‘natural mineral water from one and the same spring’, contained in Article 8(2) of Directive 2009/54, is to be interpreted.

24      That provision states that ‘[i]t shall be prohibited to market natural mineral water from one and the same spring under more than one trade description’. Although Section I, point 1, first paragraph, of Annex I to that directive defines ‘[n]atural mineral water’ as ‘microbiologically wholesome water … originating in an underground water table or deposit and emerging from a spring tapped at one or more natural or bore exits’, no provision of that directive expressly states what is to be understood by the term ‘spring’ or by the expression ‘from one and the same spring’.

25      According to the settled case-law of the Court, the meaning and scope of terms for which EU law provides no definition must be determined by reference to their usual meaning in everyday language, while account is also taken of the context in which they occur and the purposes of the rules of which they form part (judgments in EasyCar, C‑336/03, EU:C:2005:150, paragraph 21 and the case-law cited, and Partena, C‑137/11, EU:C:2012:593, paragraph 56).

26      Additionally, interpreting a provision of Union law involves a comparison of the language versions (judgments in Cilfit and Others, 283/81, EU:C:1982:335, paragraph 18, and Spain v Council, C‑36/98, EU:C:2001:64, paragraph 47 and the case-law cited). Where there is divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (judgments in Bouchereau, 30/77, EU:C:1977:172, paragraph 14, and Brey, C‑140/12, EU:C:2013:565, paragraph 74 and the case-law cited).

27      In this instance, neither the usual meaning of the term ‘spring’, which may be understood to mean either the point of emergence of the water or the point of origin of the water more generally, nor the comparison of the various language versions of either Article 8(2) of Directive 2009/54 or the definition of ‘natural mineral water’ set out in Annex I to that directive, allay the doubts raised by the referring court regarding the interpretation of the notion of a ‘spring’ and the scope of the expression ‘from one and the same spring’ within the meaning of Article 8(2). More specifically, as the Advocate General observed in substance in points 33 and 34 of his Opinion, a comparison of the various language versions of that definition does not make it possible to determine whether that notion is referring to the underground origin of the water at issue or the place through which, or the place at which, the water flows to the surface.

28      It is therefore necessary, for the purposes of the interpretation sought, to consider the context of which Article 8(2) of Directive 2009/54 forms a part, as well as considering the general scheme and purpose of that directive more broadly.

29      In that regard, although the definition of ‘natural mineral water’ set out in Section I, point 1, first paragraph, of Annex I to Directive 2009/54 does not, in itself, clarify the scope of the notion of a ‘spring’, nor what is to be understood by the expression ‘from one and the same spring’ within the meaning of Article 8(2) of that directive, it can nevertheless be inferred from the wording of that definition that the notion of a ‘spring’ cannot be equated with the notion of ‘underground water table or deposit’ since the wording makes a distinction between those two notions. Nevertheless, in view of that wording, for natural mineral water to be considered to originate ‘from one and the same spring’ it must originate in one and the same underground water table or in one and the same underground deposit.

30      It can also be inferred from that wording that the notion of a ‘spring’ cannot, as HSR suggests, be equated with the notion of an ‘exit’ either, since the wording expressly states that the water emerging from a spring may be tapped ‘at one or more natural or bore exits’. On the other hand, it follows that, for the purposes of determining whether or not a natural mineral water originates ‘from one and the same spring’ within the meaning of Article 8(2) of Directive 2009/54, it is irrelevant whether it is tapped at one exit or several exits.

31      None the less, as observed by the Advocate General in point 48 of his Opinion, the fact that a natural mineral water originates in one and the same underground water table or in one and the same underground deposit is a necessary, but not a sufficient, condition for a finding that that water originates from one and the same spring within the meaning of Article 8(2) of Directive 2009/54. It must be noted that the definition of natural mineral water, cited in paragraph 24 of the present judgment, includes a second paragraph which states that ‘[n]atural mineral water can be clearly distinguished from ordinary drinking water … by its nature, which is characterised by its mineral content, trace elements or other constituents and, where appropriate, by certain effects [and] by its original purity, both characteristics having been preserved intact because of the underground origin of such water …’. Since natural mineral waters are thus also defined on the basis of their composition, it must be held that the characteristics of a natural mineral water play a decisive role in its identification.

32      In addition, it is important to note that Article 8 of Directive 2009/54 not only lays down a prohibition on marketing natural mineral water from one and the same spring under more than one trade description in its second paragraph, but also provides, in its first paragraph, that the name of a locality, hamlet or place may only occur in the wording of a trade description provided that it refers to a natural mineral water whose spring is exploited at the place indicated by that description and provided that it is not misleading as regards the place of exploitation of the spring. The third paragraph of that article also regulates the labelling and advertising of natural mineral waters which include a trade description that is different from the name of the spring or the place of its exploitation by requiring that place of exploitation or the name of the spring to be indicated ‘in letters at least one and a half times the height and width of the largest of the letters used for that trade description’.

33      Accordingly, the overall purpose of Article 8 of Directive 2009/54 is to ensure that, in each case, the name of the spring or the indication of the place of exploitation of a natural mineral water enables consumers, when making a purchase, to unequivocally identify the provenance of the water in question and to distinguish a given natural mineral water from any other natural mineral water on the basis of that name or indication. Under that provision, either (i) the trade description may include the name of the spring or the place of exploitation, in which case the trade description itself, as it is, can be used to identify the water at issue, or (ii) the trade description may differ from that name or place, in which case the name of the spring or the place of exploitation must appear on the labels and in advertising in lettering larger than that used for the trade description. Thus, in the identification of a natural mineral water, Article 8 of Directive 2009/54 affords a decisive role to the name of its spring or, as the case may be, the indication of the place of its exploitation.

34      The importance of the role afforded to the name of the spring and the place of exploitation in the identification of a natural mineral water is also apparent from Article 7(2)(b) of Directive 2009/54, which requires labels on natural mineral waters to indicate the place where the spring is exploited and the name of the spring.

35      Given that the name of the spring of a natural mineral water plays a decisive role in the identification of that water by consumers and that, as has been established in paragraph 31 of the present judgment, the identification of a given natural mineral water is primarily based on its characteristics, it is necessarily the characteristics of a natural mineral water that essentially determine the identity of the spring that the water originates from. Accordingly, the notion of natural mineral water ‘from one and the same spring’ must, in essence, be understood to cover natural mineral water which not only originates in one and the same underground water table or in one and the same underground deposit but which also has identical characteristics.

36      That interpretation is, firstly, supported by the general scheme of Directive 2009/54. Indeed, an overall reading of Directive 2009/54 confirms the predominant role afforded to the characteristics of natural mineral waters in the application of that directive.

37      In that regard, specific mention can be made of Article 4 of Directive 2009/54, which sets out the treatments that natural mineral water, in its state at source, may be the subject of and which authorises the treatments listed in Article 4(1)(a) to (c) only ‘in so far as [they do] not alter the composition of the water as regards the essential constituents which give it its properties’; and of Article 6 of that directive which, by requiring all packaging containers to be fitted with closures designed to avoid any possibility of adulteration or contamination of the natural mineral water, ensures that the quality and health characteristics of the natural mineral water are preserved throughout the entire production and marketing chain.

38      Mention can also be made of Article 7(2)(a) of Directive 2009/54 which requires labels on natural mineral waters to include ‘a statement of the analytical composition [of the water at issue], giving its characteristic constituents’; Article 12(a) and (b) of that directive, under which the Commission is to adopt limits for the concentrations of constituents of natural mineral waters and any necessary provisions for the indication on the labelling of high levels of certain constituents; and Annex II to the directive which specifies, at point 2, that equipment for exploiting a natural mineral water must be so installed as to, inter alia, ‘preserve the properties, corresponding to those ascribed to it, which the water possesses at source’.

39      Secondly, only the interpretation set out in paragraph 35 of the present judgment is capable of ensuring the attainment of the objectives pursued by Directive 2009/54.

40      In that regard, recital 5 of Directive 2009/54 specifies that the primary purposes of any rules on natural mineral waters should be to protect the health of consumers, to prevent consumers from being misled and to ensure fair trading. In support of this, recital 7 of that directive provides that care should be taken to ensure that natural mineral waters retain at the marketing stage those characteristics which enabled them to be recognised as such, and recital 9 states that the inclusion of the statement of the analytical composition of a natural mineral water should be compulsory in order to ensure that consumers are informed.

41      Since, in the light of the findings made in paragraphs 29 to 35 of the present judgment, the trade description of a natural mineral water is necessarily associated with the characteristics of that water, consumers would be misled and unable to make an informed choice on the basis of the potential properties of a natural mineral water in terms of the protection of human health if it were possible to market natural mineral waters with the same provenance and the same characteristics under different trade descriptions.

42      In addition, Annex I to Directive 2009/54 sets out the characteristics that are relevant in the identification of a natural mineral water, in particular, its content of minerals, trace elements or other constituents, and specifies the points of view from which, and criteria by which, those characteristics must have been assessed. Those criteria are listed in Section II of that annex, from which it is apparent, inter alia, that, as regards geological and hydrological surveys, there is a requirement, in particular, to supply the exact site of the catchment and the stratigraphy of the hydrogeological layer, and that the physical, chemical and physico-chemical surveys that are required must establish, in particular, the relationship between the nature of the terrain and the nature and type of minerals in the water. Annex I to Directive 2009/54 also states that ‘[t]he composition, temperature and other essential characteristics of natural mineral water shall remain stable within the limits of natural fluctuation’.

43      In that context, there is no need, for the purposes of assessing those characteristics and, accordingly, for the purposes of interpreting Article 8(2) of Directive 2009/54, to refer to the notions of ‘aquifer’ and ‘body of groundwater’ used in Directive 2000/60. It is apparent from Article 1 of that directive and the case-law of the Court (see, to that effect, judgments in Commission v Luxembourg, C‑32/05, EU:C:2006:749, paragraph 41, and Commission v Germany, C‑525/12, EU:C:2014:2202, paragraph 50) that the objectives pursued by Directive 2000/60 differ from those pursued by Directive 2009/54. Whereas the objectives pursued by Directive 2000/60 are essentially environmental, Directive 2009/54 is intended to protect the health of consumers, to prevent consumers from being misled and to ensure fair trading. Accordingly, the provisions of Directive 2000/60 cannot be regarded as relevant for the interpretation requested in the present case (see, by analogy, judgment in Møller, C‑585/10, EU:C:2011:847, paragraph 37).

44      It is therefore solely with regard to the provisions of Directive 2009/54 that it can be determined whether a given natural mineral water originates ‘from one and the same spring’ within the meaning of Article 8(2) of Directive 2009/54.

45      It follows from all of the foregoing considerations that, having regard to the definition of natural mineral water set out in Annex I to Directive 2009/54, the general scheme of that directive and the objective which it pursues, the answer to the questions referred is that the notion of ‘natural mineral water from one and the same spring’ contained in Article 8(2) of Directive 2009/54 must be interpreted as referring to a natural mineral water that is drawn from one or more natural or bore exits, and which originates in one and the same underground water table or in one and the same underground deposit, where, at all those natural or bore exits, that water has identical characteristics, pursuant to the criteria specified in Annex I to Directive 2009/54, that remain stable within the limits of natural fluctuation.

 Costs

46      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

The notion of ‘natural mineral water from one and the same spring’ contained in Article 8(2) of Directive 2009/54/EC of the European Parliament and of the Council of 18 June 2009 on the exploitation and marketing of natural mineral waters must be interpreted as referring to a natural mineral water that is drawn from one or more natural or bore exits, and which originates in one and the same underground water table or in one and the same underground deposit, where, at all those natural or bore exits, that water has identical characteristics, pursuant to the criteria specified in Annex I to Directive 2009/54, which remain stable within the limits of natural fluctuation.

[Signatures]


Language of the case: Slovenian.

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