Opinion of Advocate General Van Gerven
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). The question arose in proceedings between Pfanni Werke Otto Eckart KG (hereinafter Pfanni) and Landeshauptstadt München (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 which the potato purée flakes are made from discoloring. 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. However, the diphosphate still remains in the finished product.
3. In 1988 Pfanni brought an action in the Bayerisches Verwaltungsgericht München (Bavarian Administrative Court, Munich) for a declaration that the diphosphate which it added in the course of the manufacturing process for dried potato products up to and including the stage of undried potato pulp did not need to be included on the list of ingredients of the finished products, in so far as the additive was included in the finished product only as part of the ingredient potato purée flakes. The Verwaltungsgericht dismissed Pfanni's action by judgment of 22 March 1989 essentially on the ground that the addition of diphosphate was directed to the appearance of the finished product and therefore had to be mentioned on the labelling.
4. Next, Pfanni appealed on a point of law to the Bundesverwaltungsgericht. It asked that the judgments at first instance and on appeal should be quashed and again that the court should declare that the diphosphate in question did not have to appear in the list of ingredients in so far as it ended up in the finished produce only as part of the ingredient potato purée flakes. In the course of the proceedings in the appeal on a point of law, the Bundesverwaltungsgericht referred the following question to the Court, manifestly on the interpretation of the first indent of Article 6(4)(c) of the Directive on Labelling:
Legislative background
5. The aforementioned Directive on Labelling constitutes the basic legal text. Article 3(1) of the Directive provides as follows:
6. The Directive on Labelling does not specify exactly what is meant by an additive or a processing aid within the meaning of the first indent of Article 6(4)(c)(ii). However, for a definition of those terms reference can be made to Council Directive 89/107/EEC of 21 December 1988 on the approximation of the laws of the Member States concerning food additives authorized for use in foodstuffs intended for human consumption. According to Article 1(2) of that directive, food additive means
7. Germany implemented the Directive on Labelling by means of the Lebensmittelkennzeichnungsverordnung (Foodstuffs Description Regulation, hereinafter the LMKV) of 22 December 1981. According to Paragraph 5(2)(2) of the LMKV, the following are not considered to be ingredients:
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. 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.
9. Pfanni argues that there can be no question of the additive's serving a technological function in the finished product. It relies in the first place on a semantical analysis of the phrase serve no [further] technological function in the finished product in the first indent of Article 6(4)(c)(ii) of the Directive on Labelling. The fact that serve is in the present tense indicates that only a technological function which is still being served in the finished product qualifies, whilst the addition of the word further points to the fact that effects on the finished product in earlier stages of manufacture do not mean that the additive in question has to be mentioned on the labelling. Unfortunately, the German version of the first indent of Article 6(4)(c)(ii), which refers to effect, is less clear than the other language versions, which employ the term function.
10. As has already been mentioned, the Landesanwaltscbaft 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 Sachverständigen der Länder and des Bundesgesundheitsamtes (Working Party of Food Chemistry Experts of the Länder 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. Consequently, decisive importance should not be attached to the time at which the chemical reaction sought by the incorporation of the additive occurs.
11. The Bundesverwaltungsgericht is completely in agreement with the latter view. Yet it seems generally to be more inclined to take Pfanni's point of view. In particular, in the order for reference it takes over Pfanni's arguments with regard to the ratio legis of the Directive on Labelling and with regard to the practical significance to be attached to the first indent of Article 6(4)(c)(ii) of the Directive.
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. 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.
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. 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:
1 Original language: Dutch.
2 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 arc set out in Council Directive 90/496/EEC of 24 September 1990 (OJ 1990 L 276, p. 40).
3 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.
4 Discoloration of the potato flakes through the action of enzymes is ruled out because the enzymes in the potato cells are neutralized by heating.
5 OJ 1989 L 40, p. 27.
6 Sec footnote 1, OJ 1989 L 40. p. 28.
7 OJ 1971 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.
8 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).
9 The Zusatzstoffverkehrsverordnung dates from 10 July 1984 (BGBl I, 897) and was amended by regulation of 19 June 1989 (BGBl I, 1123).
10 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.
11 The word in square brackets is in the German and Dutch versions of the provision but not in the English: translator.
12 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 (...).
13 Sixth recital in the preamble to the Directive. See also Article 4(1) of the Directive.
14 Article 3(1) of the Directive on Labelling: (...) indication of the following particulars alone shall be compulsory on the labelling of foodstuffs: (...).
15 Article 6(2) of the Directive on Labelling.
16 First indent of Article 6(4)(c)(ii) of the Directive on Label-ling. 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).
17 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.