Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband e.V. v Dr. August Oetker Nahrungsmittel KG (C-388/20)

Contents

Judgment of the Court (Eighth Chamber)11 November 2021^note(Reference for a preliminary ruling — Regulation (EU) No 1169/2011 — Provision of food information to consumers — Article 9(1)(l) — Nutrition declaration — Second subparagraph of Article 31(3) — Calculation of the energy value and of the amounts of nutrients — Possibility of providing that information for the food after preparation — Conditions — Second subparagraph of Article 33(2) — Expression on a per portion basis or per consumption unit)In Case C‑388/20,REQUEST for a preliminary ruling under Article 267 TFEU from the Bundesgerichtshof (Federal Court of Justice, Germany), made by decision of 23 July 2020, received at the Court on 14 August 2020, in the proceedingsBundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband eVvDr. August Oetker Nahrungsmittel KG,THE COURT (Eighth Chamber),composed of J. Passer (Rapporteur), President of the Seventh Chamber, acting as President of the Eighth Chamber, F. Biltgen and N. Wahl, Judges,Advocate General: A. Rantos,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband eV, by P. Wassermann, Rechtsanwalt,– Dr. August Oetker Nahrungsmittel KG, by C. Konnertz-Häußler, Rechtsanwältin,– the European Commission, by C. Hödlmayr and B. Rous Demiri, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 2 September 2021,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of the second subparagraph of Article 31(3) and the second subparagraph of Article 33(2) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18).

2The request has been made in proceedings between Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband eV (Federal union of consumer organisations and associations, Germany) (‘the BVV’) and Dr. August Oetker Nahrungsmittel KG (‘Dr. Oetker’) concerning an application for an order requiring that company to make the nutrition labelling on the front of muesli packaging consistent with the requirements of Regulation No 1169/2011.

Legal context

3Recitals 35, 37 and 41 of Regulation No 1169/2011 state:(35) To facilitate the comparison of products in different package sizes, it is appropriate to retain the requirement that the mandatory nutrition declaration should refer to 100 g or 100 ml amounts and, if appropriate, to allow additional portion-based declarations. Therefore, where food is prepacked and individual portions or consumption units are identified, a nutrition declaration per portion or per consumption unit, in addition to the expression per 100 g or per 100 ml, should be allowed. Furthermore, in order to provide comparable indications relating to portions or consumption units, the Commission should be empowered to adopt rules on the expression of the nutrition declaration per portion or per consumption unit for specific categories of food.…(37) Since one of the objectives pursued by this Regulation is to provide a basis to the final consumer for making informed choices, it is important to ensure in this respect that the final consumer easily understands the information provided on the labelling. ……(41) To appeal to the average consumer and to serve the informative purpose for which it is introduced, and given the current level of knowledge on the subject of nutrition, the nutrition information provided should be simple and easily understood. To have the nutrition information partly in the principal field of vision, commonly known as the “front of pack”, and partly on another side on the pack, for instance the “back of pack”, might confuse consumers. Therefore, the nutrition declaration should be in the same field of vision. In addition, on a voluntary basis, the most important elements of the nutrition information may be repeated in the principal field of vision, in order to help consumers to easily see the essential nutrition information when purchasing foods. A free choice as to the information that could be repeated might confuse consumers. Therefore it is necessary to clarify which information may be repeated.’

4Article 9 of Regulation No 1169/2011, headed ‘List of mandatory particulars’, provides in paragraph 1:‘In accordance with Articles 10 to 35 and subject to the exceptions contained in this Chapter, indication of the following particulars shall be mandatory:…(l) a nutrition declaration.’

5Article 30 of the regulation, headed ‘Content’, states:1.The mandatory nutrition declaration shall include the following:(a) energy value; and(b) the amounts of fat, saturates, carbohydrate, sugars, protein and salt.…3.Where the labelling of a prepacked food provides the mandatory nutrition declaration referred to in paragraph 1, the following information may be repeated thereon:(a) the energy value; or(b) the energy value together with the amounts of fat, saturates, sugars, and salt.4. By way of derogation from Article 36(1), where the labelling of the products referred to in Article 16(4) provides a nutrition declaration, the content of the declaration may be limited to the energy value only.5.Without prejudice to Article 44 and by way of derogation from Article 36(1), where the labelling of the products referred to in Article 44(1) provides a nutrition declaration, the content of that declaration may be limited only to:(a) the energy value; or(b) the energy value together with the amounts of fat, saturates, sugars, and salt.…’

6Article 31 of the regulation, headed ‘Calculation’, provides in paragraph 3:‘The energy value and the amounts of nutrients referred to in Article 30(1) to (5) shall be those of the food as sold.Where appropriate, the information may relate to the food after preparation, provided that sufficiently detailed preparation instructions are given and the information relates to the food as prepared for consumption.’

7Article 32 of the regulation, headed ‘Expression per 100 g or per 100 ml’, states in paragraph 2:‘The energy value and the amount of nutrients referred to in Article 30(1) to (5) shall be expressed per 100 g or per 100 ml.’

8Article 33 of the regulation, headed ‘Expression on a per portion basis or per consumption unit’, provides in paragraphs 1 and 2:1.In the following cases, the energy value and the amounts of nutrients referred to in Article 30(1) to (5) may be expressed per portion and/or per consumption unit, easily recognisable by the consumer, provided that the portion or the unit used is quantified on the label and that the number of portions or units contained in the package is stated:(a) in addition to the form of expression per 100 g or per 100 ml referred to in Article 32(2);(b) in addition to the form of expression per 100 g or per 100 ml referred to in Article 32(3) regarding the amounts of vitamins and minerals;(c) in addition to or instead of the form of expression per 100 g or per 100 ml referred to in Article 32(4).2. By way of derogation from Article 32(2), in the cases referred to in point (b) of Article 30(3) the amount of nutrients and/or the percentage of the reference intakes set out in Part B of Annex XIII may be expressed on the basis of per portion or per consumption unit alone.When the amounts of nutrients are expressed on the basis of per portion or per consumption unit alone in accordance with the first subparagraph, the energy value shall be expressed per 100 g or per 100 ml and on the basis of per portion or per consumption unit.’

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

9Dr. Oetker is a German food business which produces and sells muesli under the name ‘Dr. Oetker Vitalis Knuspermüsli Schoko+Keks’ (crunchy muesli with chocolate and biscuits). The packaging of that product consists of a rectangular cardboard box.

10That packaging includes the following nutrition declarations:– on the side of the packaging (the narrow side of the box), under the heading ‘Nutrition information’, particulars are provided regarding the energy value and amounts of fat, saturates, carbohydrate, sugars, protein and salt, which are indicated, first, per 100 g of the product as sold and, second, per 40 g portion of muesli prepared with 60 ml of milk having a fat content of 1.5%;– on the front of the packaging (the principal field of vision of the box), the particulars regarding the energy value and the amounts of fat, saturates, sugars and salt are repeated solely in relation to the portion of the product after preparation.

11The BVV gave Dr. Oetker formal notice to comply, so far as concerns advertising of the product referred to in paragraphs 9 and 10 of the present judgment, with the rules relating to the nutrition declaration that are laid down by Regulation No 1169/2011. According to the BVV, Dr. Oetker infringed Article 33 of that regulation, read in conjunction with Articles 30 and 32 thereof, on the ground that, on the front of the product’s packaging, the energy value was stated not per portion of the product as sold but only per portion of the product after preparation.

12As that formal notice produced no effect, the BVV brought proceedings before the Landgericht Bielefeld (Regional Court, Bielefeld, Germany), which upheld the action by judgment of 8 August 2018. Following an appeal by Dr. Oetker, the Oberlandesgericht Hamm (Higher Regional Court, Hamm, Germany), by judgment of 13 June 2019, set aside that judgment and dismissed the BVV’s action.

13The BVV brought an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice, Germany), the referring court, against the judgment of the Oberlandesgericht Hamm (Higher Regional Court, Hamm).

14According to the referring court, the outcome of the appeal on a point of law turns in particular on whether Article 31(3) and Article 33(2) of Regulation No 1169/2011 are to be interpreted as prohibiting, in circumstances such as those at issue in the main proceedings, the indication on the front of the packaging, for advertising purposes, of nutrition information per portion of the food after preparation without also stating the energy value per 100 g of that food as sold.

15It was in those circumstances that the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:(1) Must the second subparagraph of Article 31(3) of Regulation No 1169/2011 be interpreted as applying solely to foods which require preparation and for which the method of preparation is predetermined?(2) If Question 1 is answered in the negative: does the phrase “per 100 g” in the second subparagraph of Article 33(2) of Regulation No 1169/2011 only refer to 100 grams of the product as sold, or does it also – at least additionally – refer to 100 grams of the food after preparation?’

Consideration of the questions referred

The first question

16By its first question, the referring court asks, in essence, whether the second subparagraph of Article 31(3) of Regulation No 1169/2011 must be interpreted as applying only to foods which, in order to be consumed, require preparation and for which the method of preparation is predetermined.

17In this instance, the product at issue in the main proceedings may be prepared in various ways, that is to say, inter alia by adding milk, yoghurt, fromage blanc, fruit juice, fruit, jam or honey. It may also be consumed without any preparation.

18Therefore, the Court is called upon to rule whether, where there are various methods of preparing a food, the nutrition declarations that are repeated on a voluntary basis on the front of that food’s packaging can be limited to one of those methods of preparation.

19Under the second subparagraph of Article 31(3) of Regulation No 1169/2011, the nutrition information may, ‘where appropriate’, relate to ‘the food after preparation’ instead of to the food ‘as sold’, ‘provided that sufficiently detailed preparation instructions are given and the information relates to the food as prepared for consumption’.

20The interpretation of that provision, which does not contain any express reference to the law of the Member States for the purpose of determining its meaning and scope, must take into account not only its wording but also its context and the objective pursued by the legislation in question (see, to that effect, judgment of 16 July 2020, AFMB and Others, C‑610/18, EU:C:2020:565, paragraph 50).

21As the Advocate General has observed in points 45, 49 and 50 of his Opinion, the literal and contextual interpretations are not decisive as regards the question whether the second subparagraph of Article 31(3) of Regulation No 1169/2011 concerns only foods in respect of which a single method of preparation is predetermined or also foods which may be prepared in different ways, in particular by means of adding various ingredients to them. In addition to the fact that the wording of that provision yields nothing enabling a clear and unambiguous response to be given to that question, Regulation No 1169/2011 contains no provision relating to the calculation and presentation of the nutrition declarations that are to be displayed on the front of packaging.

22It is therefore only in the light of the teleological interpretation that answers may be found as regards, in particular, the meaning to be given to the words ‘where appropriate’ in the second subparagraph of Article 31(3) of Regulation No 1169/2011.

23The objective pursued by the second subparagraph of Article 31(3) of Regulation No 1169/2011 must be determined in the light both of the aim of that provision and of the objectives of the legislation in question, which, as the Court has already pointed out, include the objective of ensuring a high level of consumer protection in relation to food information, taking into account the differences in perception of consumers (see, to that effect, judgment of 1 October 2020, Groupe Lactalis, C‑485/18, EU:C:2020:763, paragraph 43 and the case-law cited).

24As the Advocate General has observed in point 52 of his Opinion, it is apparent from recitals 35 and 41 of Regulation No 1169/2011 that Article 31 thereof has the objective of facilitating the comparison of foods and providing information to consumers.

25According to recital 35, the provisions relating to a nutrition declaration per 100 g or 100 ml have the objective of ‘facilitat[ing] the comparison of products in different package sizes’. That recital also explains that ‘additional portion-based declarations’ are allowed, ‘in addition to the expression per 100 g or per 100 ml’, ‘if appropriate’, ‘where food is prepacked and individual portions or consumption units are identified’.

26Recital 41 states that, ‘to appeal to the average consumer and to serve the informative purpose for which it is introduced’, the nutrition information provided must ‘be simple and easily understood’. It is also apparent from that recital that, ‘on a voluntary basis, the most important elements of the nutrition information may be repeated in the principal field of vision, in order to help consumers to easily see the essential nutrition information when purchasing foods’.

27It is apparent from those considerations that, where, as in the present instance, a food may be prepared in various ways, the information regarding the energy value and amounts of nutrients of the food after its preparation in accordance with the producer’s suggestion does not enable a comparison to be made with the corresponding foods of other producers, given that the calculation of the energy value and of the amounts of nutrients of a product which may be prepared in various ways is, by definition, uncertain in that it necessarily varies according to the method of preparation.

28Nor can the lack of comparability be made up for by the fact that the values of a portion are indicated elsewhere on the packaging, with the values per 100 g of the product as sold. As the Court pointed out in its judgment of 4 June 2015, Bundesverband der Verbraucherzentralen und Verbraucherverbände (C‑195/14, EU:C:2015:361, paragraphs 38 to 40), the fact that the list of ingredients is displayed on the packaging of the goods concerned does not in itself exclude the possibility that the labelling of those goods and methods used for it may be such as to mislead the purchaser. By analogy, isolated information displayed on the front of the packaging does not enable products to be compared and the additional declarations displayed elsewhere on the packaging with different reference quantities are simply liable to confuse the consumer even more as to comparability with other products.

29That interpretation is, moreover, borne out by recital 37 of Regulation No 1169/2011, according to which it is important to ensure that the final consumer easily understands the information provided on the labelling, in order to provide him or her with a basis for making informed choices.

30Therefore, foods which may be prepared in different ways must be excluded from the scope of the second subparagraph of Article 33(2) of Regulation No 1169/2011.

31Consequently, the answer to the first question is that the second subparagraph of Article 31(3) of Regulation No 1169/2011 must be interpreted as applying only to foods for which preparation is necessary and the method of preparation is predetermined.

The second question

32In view of the answer given to the first question, there is no need to answer the second question.

Costs

33Since 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.

Operative part

On those grounds, the Court (Eighth Chamber) hereby rules: The second subparagraph of Article 31(3) of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 must be interpreted as applying only to foods for which preparation is necessary and the method of preparation is predetermined.