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 which the potato purée flakes are made 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.
3. In 1988 Pfanni brought an action in the Bayerisches Verwaltungsgericht Muenchen (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.
In its appeal to the Bayerischer Verwaltungsgerichtshof Pfanni was unsuccessful. In a judgment of 1 August 1990 the Verwaltungsgerichtshof dismissed the appeal as unfounded. In its view, an additive did not have to be mentioned only if it did not affect the characteristics of the finished product. However, diphosphate still served a technological function in the finished product because, as part of the ingredient "potato purée flakes", it affected the colour of the finished product. The Verwaltungsgericht considered that mentioning that additive was also necessary regard being had to the legislator' s intention that the consumer should be informed as fully as possible about the composition and nature of the foodstuffs on offer.
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 product 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:
"Does an additive still serve a technological function in the finished product where it prevents discoloration of an ingredient during its manufacture and that continues to be the case in the finished product without the additive necessarily having to be present in the finished product?"
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;
° (...)."
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. (4) According to Article 1(2) of that directive, "food additive" means
"any substance not normally consumed as a food in itself and not normally used as a characteristic ingredient of food whether or not it has nutritive value, the intentional addition of which to food for a technological purpose in the manufacture, processing, preparation, treatment, packaging, transport or storage of such food results, or may be reasonably expected to result, in it or its by-products becoming directly or indirectly a component of such foods."
According to a footnote to that directive, (5) "processing aid" means
"any substance not consumed as a food ingredient by itself, intentionally used in the processing of raw materials, foods or their ingredients, to fulfil a certain technological purpose during treatment or processing and which may result in the unintentional but technically unavoidable presence of residues of the substance or its derivatives in the final product, provided that these residues do not present any health risk and do not have any technological effect on the finished product."
Lastly, sodium diphosphate is listed in Annex I, "Emulsifiers, stabilizers, thickeners and gelling agents which may be used in foodstuffs", to Council Directive 74/329/EEC of 18 June 1974 on the approximation of the laws of the Member States relating to emulsifiers, stabilizers, thickeners and gelling agents for use in foodstuffs. (6)
7. Germany implemented the Directive on Labelling by means of the Lebensmittelkennzeichnungsverordnung (Foodstuffs Description Regulation, hereinafter "the LMKV") of 22 December 1981. (7) According to Paragraph 5(2)(2) of the LMKV, the following are not considered to be ingredients:
"substances listed in Annex 2 to the Zusatzstoffverkehrsverordnung (Regulation on Additives) and flavourings, enzymes and cultures of micro-organisms, contained in one or more ingredients of a foodstuff, provided that they serve no further technological function in the finished product".
Diphosphate E 450 a, as used by Pfanni, is listed in Annex 2 to the aforementioned Zusatzstoffverkehrsverordnung. (8)
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.
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] (10) 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".
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. 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.
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.
Full & Egal Universal Law Academy