Important legal notice

61993C0144

European Court reports 1994 Page I-04605

Opinion of the Advocate-General

Mr President, Members of the Court, 1. The instant case is concerned with a request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Administrative Court) on the interpretation of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (hereinafter the "Directive on Labelling" or "the Directive"). (1) The question arose in proceedings between Pfanni Werke Otto Eckart KG (hereinafter "Pfanni") and Landeshauptstadt Muenchen (State capital of Munich, hereinafter "the Landeshauptstadt") concerning whether or not a certain additive had to be mentioned on the labelling of industrially-processed, dried potato products.

Facts and procedure 2. Pfanni manufactures dried potato products composed of blanched, dried potatoes ("Troka") from dried, cooked potatoes in the form of flakes (potato purée flakes) together with starch, salt, spices and other ingredients. The firm adds sodium diphosphate (diphosphate E 450 a) when producing the ingredient potato purée flakes in order to prevent the grated potatoes ° the so-called "wet pulp" ("Nassbrei") ° from discoloring. (2) As a result of the drying of the wet pulp, the diphosphate no longer has any function, since the heating used to dry the pulp precludes any risk of discoloration. (3) However, the diphosphate still remains in the finished product. Pfanni does not mention in the list of ingredients on the labelling of its cooked potato products that it added diphosphate during the manufacture of its potato purée flakes. According to the Landeshauptstadt, supported by the Landesanwaltschaft Bayern (hereinafter "the Landesanwaltschaft") representing the public interest, diphosphate must be included in the list of ingredients, since it is still present in the finished product and affects its colour. The Landesanwaltschaft warned Pfanni that an official prohibition and a fine would be imposed if the firm continued to market dried potato products containing the additive diphosphate without including it on the list of ingredients.

Legislative background 5. The aforementioned Directive on Labelling constitutes the basic legal text. Article 3(1) of the Directive provides as follows: "In accordance with Articles 4 to 14 and subject to the exceptions contained therein, indication of the following particulars alone shall be compulsory on the labelling of foodstuffs: (...) (2) the list of ingredients, (...)."

The obligation to list ingredients is more particularly specified by Article 6 of the Directive on Labelling. Article 6(4) provides as follows: "(a) 'Ingredient' shall mean any substance, including additives, used in the manufacture or preparation of a foodstuff and still present in the finished product, even if in altered form. (b) Where an ingredient of the foodstuff is itself the product of several ingredients, the latter shall be regarded as ingredients of the foodstuff in question. (c) The following shall not be regarded as ingredients: (i) (...) (ii) ° additives: ° whose presence in a given foodstuff is solely due to the fact that they were contained in one or more ingredients of that foodstuff, provided that they serve no technological function in the finished product, ° which are used as processing aids; ° (...)."

Arguments of the parties 8. The parties to the main proceedings, the Bundesverwaltungsgericht and the Commission all consider that sodium diphosphate constitutes an additive which, in the instant case, was incorporated into an ingredient (potato purée flakes) of a finished product (which the Bundesverwaltungsgericht describes as a "dried potato product"). They also agree that, in circumstances such as those at issue and on the basis of the legal provisions cited above, that additive should be mentioned on the labelling of the finished product unless, within the meaning of ° as I assume ° the first indent of Article 6(4)(c)(ii) of the Directive (section 5 above) and Paragraph 5(2)(2) of the LMKV (section 7 above) implementing the Directive, it should "serve no [further] technological function in the finished product". (9) It is disputed, however, whether the additive does in fact serve a technological function in this case or whether it constitutes a so-called "carry-over" product.

Pfanni goes on to analyse the ratio legis of the Directive on Labelling. In its view, precisely in order to inform consumers properly and therefore to protect them, the legislator deliberately opted not to include on foodstuffs labelling indications which were of minor importance or difficult to understand. Contrary to that which the lower courts assumed, longer lists of ingredients do not always secure more effective protection. In contrast, consumers who purchase foodstuffs ° often in a hurry ° and are confronted with interminable lists of ingredients miss what is essential or may even be misled.

Lastly, Pfanni argues that the first indent of Article 6(4)(c)(ii) of the Directive on Labelling would no longer have any practical significance if it were to be assumed, in common with the Landesanwaltschaft, that any additive which affects the characteristics of the finished product serves a technological function in the finished product. An additive invariably affects the characteristics of the finished product, albeit not always to the same degree.

10. As has already been mentioned, the Landesanwaltschaft maintains that the diphosphate added by Pfanni does indeed serve a technological function in the finished product in so far as it helps to determine the characteristics (colour) of the finished product and is intended to do so. Only if an additive "which ends up in the finished product via an ingredient does not determine its characteristics" can a "carry-over" effect be involved. The Landesanwaltschaft ° supported by the Bayerisches Verwaltungsgericht, the Bayerischer Verwaltungsgerichtshof and, according to the order for reference, seemingly the Arbeitskreis der lebensmittelchemischen Sachverstaendigen der Laender and des Bundesgesundheitsamtes (Working Party of Food Chemistry Experts of the Laender and of the Federal Office of Health) ° considers also that that interpretation is most consonant with the ratio legis of the Directive on Labelling, which, they consider, is intended to afford consumers the fullest possible information and protection. In any event, a situation should be avoided in which producers could evade their duty of information by not adding certain additives in the final stage of manufacture but earlier, at the time when the ingredients are produced.

The Commission, too, supports those arguments, but finds ° precisely, moreover, as the Bundesverwaltungsgericht does ° that the interpretation put forward by Pfanni affords too few safeguards against possible abuses on the part of manufacturers. In order to preclude such abuses, the Commission puts forward a test of its own. In order to determine whether a particular additive serves a technological function in a finished product, it should, in its view, be examined whether the finished product would be different if the additive were eliminated from it. The Commission uses the following example to clarify its point of view: a finished product to which a colorant is added will take on a different colour if the colorant is eliminated from it, regardless as to whether the colorant is added directly to the finished product or indirectly via an ingredient. The situation is completely different in a case such as this: the elimination from the finished product (dried potato products) of the diphosphate which was added to the potato flakes cannot alter the characteristics of the finished product. Consequently, in the Commission' s view, the diphosphate no longer serves any technological function in the finished product.

Proposed reply to the preliminary question 12. In common with the Bundesverwaltungsgericht and the Commission, I agree with Pfanni' s argument that, if the first indent of Article 6(4)(c)(ii) of the Directive is to play an effective role, it cannot be assumed that any additive which affects the characteristics of the finished product directly or indirectly must be mentioned on the labelling. That would be tantamount to an absolute obligation to declare all additives, which would be at odds with the wording of the first indent of Article 6(4)(c)(ii) of the directive, which expressly exempts a number of additives from having to be declared. Moreover, it may mislead consumers, something which it is the very aim of the Directive on Labelling to avoid. (11) A consumer who sees the name of an additive mentioned on the labelling of a foodstuff will assume that it is a constituent of the finished product, whereas in a case such as this that is precisely not so.

Lastly, I agree with Pfanni' s argument ° which is supported by the Commission and the Bundesverwaltungsgericht ° that an absolute obligation to declare additives on labelling is incompatible with the ratio legis of the Directive on Labelling. Undoubtedly, the Directive is motivated by the "need to inform and protect the consumer". (12) However, to my mind, the European legislator opted for effective, rather than complete, consumer information. This is substantiated not only by the limitation of the number of particulars which have to be given on foodstuff labelling (13) and the limitation as to the number of products whose ingredients must be listed, (14) but also by the provision at issue in this case, according to which additives not regarded as ingredients (15) are exempted from the listing requirement.

13. How should the first indent of Article 6(4)(c)(ii) be interpreted then? It seems to me that the Court should be guided by a two-fold concern. (16) On the one hand, the passage in question must be interpreted in a manner which does not cause it to lose any real substance. On the other hand, as all the parties involved in the proceedings (with the exception of Pfanni) have argued, potential abuses on the part of manufacturers should as far as possible be precluded. The test proposed by the Commission (section 11 above) seems to me to get round this problem. I therefore propose that the Court in replying to the preliminary question should take up the Commission' s proposal, but in a manner directed to the fact situation in issue.

Conclusion 14. In conclusion, I propose that the Court should reply as follows to the preliminary question:

The first indent of Article 6(4)(c)(ii) of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs should be interpreted as meaning that an additive which, during the manufacture of an ingredient, prevents the discoloration of that ingredient, does not serve any technological function in the finished product where its presence in the finished product is not necessary in order to prevent the discoloration of the finished product.

(*) Original language: Dutch.

(1) ° OJ 1979 L 33, p. 1. The Directive on Labelling has since been amended on five occasions, by Council Directive 85/7/EEC of 19 December 1984 (OJ 1985 L 2, p. 22), Council Directive 86/197/EEC of 26 May 1986 (OJ 1986 L 144, p. 38), Council Directive 89/395/EEC of 14 June 1989 (OJ 1989 L 186, p. 17), Commission Directive 91/72/EEC of 16 January 1991 (OJ 1991 L 42, p. 27) and Commission Directive 93/102/EC of 16 November 1993 (OJ 1993 L 291, p. 14). Its original title was amended by Article 1 of Directive 89/395. Lastly, specific provisions on foodstuffs labelling are set out in Council Directive 90/496/EEC of 24 September 1990 (OJ 1990 L 276, p. 40).

(2) ° Through the addition of diphosphate, ferrous compounds and other complex salts are formed with heavy metals, preventing a grey discoloration from arising. Such discoloration is undesirable, since the consumer associates it with lower quality.

(3) ° Discoloration of the potato flakes through the action of enzymes is ruled out because the enzymes in the potato cells are neutralized by heating.

(4) ° OJ 1989 L 40, p. 27.

(5) ° See footnote 1, OJ 1989 L 40, p. 28.

(6) ° OJ 1974 L 189, p. 1. Under Article 2(1) of that directive, Member States may authorize the use as emulsifiers, stabilizers, thickeners and gelling agents of only substances listed in Annex I to that directive.

(7) ° Bundesgesetzblatt (BGBl) I, 1625. According to the order for reference, the LMKV was most recently amended by the fourth amending regulation of 5 March 1990 (BGBl I, 435).

(8) ° The Zusatzstoffverkehrsverordnung dates from 10 July 1984 (BGBl I, 897) and was amended by regulation of 19 June 1989 (BGBl I, 1123).

(9) ° They also intimate as a result ° and, to my mind, correctly ° that sodium diphosphate was not used merely as a processing aid. By definition (section 6 above), only residues or derivatives of a processing aid remain in the finished product, whereas it appears from the order for reference that the used additive itself is to be found in Pfanni' s dried potato products.

(10) ° The word in square brackets is in the German and Dutch versions of the provision but not in the English: translator.

(11) ° See the twelfth recital in the preamble to the Directive on Labelling: Whereas the rules on labelling should also prohibit the use of information that would mislead the consumer (...) .

(12) ° Sixth recital in the preamble to the Directive. See also Article 4(1) of the Directive.

(13) ° Article 3(1) of the Directive on Labelling: (...) indication of the following particulars alone shall be compulsory on the labelling of foodstuffs: (...) .

(14) ° Article 6(2) of the Directive on Labelling.

(15) ° First indent of Article 6(4)(c)(ii) of the Directive on Labelling. The same applies to the constituents of an ingredient which have been temporarily separated during the manufacturing process and later reintroduced but not in excess of their original proportions and to substances used in the quantities strictly necessary as solvents or media for additives or flavouring (Article 6(4)(c)(i) and the second indent of Article 6(4)(c)(ii), respectively).

(16) ° I am not completely convinced by the arguments based on the wording on which Pfanni relies (section 9 above). I would therefore urge the Court not to base its interpretation (solely) on those arguments.