Opinion of Advocate General Van Gerven delivered on 16 June 1994

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.