C-144/93

1. The instant case is concerned with a request for a preliminary ruling from the Bundesverwaltungsgericht (Federal Adminis­ trative Court) on the interpretation of Coun­ 2. Pfanni manufactures dried potato prod­ cil Directive 79/112/EEC of 18 Decem­ ucts composed of blanched, dried potatoes ber 1978 on the approximation of the laws of ('Troka') from dried, cooked potatoes in the the Member States relating to the labelling, form of flakes (potato purée flakes) together presentation and advertising of foodstuffs with starch, salt, spices and other ingredients. (hereinafter the 'Directive on Labelling' or The firm adds sodium diphosphate (diphos­ 'the Directive'). 1 The question arose in pro­ phate E 450 a) when producing the ingredi­ ceedings between Pfanni Werke Otto Eckart ent potato purée flakes in order to prevent KG (hereinafter 'Pfanni') and Landeshaupts­ the grated potatoes — the so-called 'wet tadt München (State capital of Munich, here­ pulp' ('Naßbrei') — from which the potato inafter 'the Landeshauptstadt') concerning purée flakes are made from discoloring. 2As whether or not a certain additive had to be a result of the drying of the wet pulp, the mentioned on the labelling of industrially- diphosphate no longer has any function, processed, dried potato products. since the heating used to dry the pulp pre­ cludes any risk of discoloration. 3However, the diphosphate still remains in 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 Direc­ tive 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 2 — Through the addition of diphosphate, ferrous compounds (OJ 1989 L 186, p. 17), Commission Directive 91/72/EEC and other complex salts are formed with heavy metals, pre­ of 16 January 1991 (OJ 1991 L 42, p. 27) and Commission venting a grey discoloration from arising. Such discoloration Directive 93/102/EC of 16 November 1993 (OJ 1993 L 291, is undesirable, since the consumer associates it with lower p. 14). Its original title was amended by Article 1 of Direc­ quality. tive 89/395. Lastly, specific provisions on foodstuffs labelling 3 — Discoloration of the potato flakes through the action of arc set out in Council Directive 90/496/EEC of 24 Septem­ enzymes is ruled out because the enzymes in the potato cells ber 1990 (OJ 1990 L 276, p. 40). are neutralized by heating.

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 4. Next, Pfanni appealed on a point of law product only as part of the ingredient 'pota­ to the Bundesverwaltungsgericht. It asked to purée flakes'. The Verwaltungsgericht that the judgments at first instance and on dismissed Pfanni's action by judgment appeal should be quashed and again that the of 22 March 1989 essentially on the ground court should declare that the diphosphate in that the addition of diphosphate was directed question did not have to appear in the list of to the appearance of the finished product ingredients in so far as it ended up in the fin-

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PFANNI WERKE

ished produce only as part of the ingredient cation of the following particulars alone shall potato purée flakes. In the course of the pro­ be compulsory on the labelling of foodstuffs: ceedings in the appeal on a point of law, the Bundesverwaltungsgericht referred the fol­ lowing question to the Court, manifestly on the interpretation of the first indent of Arti­ cle 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 dur­ ing its manufacture and that continues to be (2) the list of ingredients, the case in the finished product without the additive necessarily having to be present in the finished product?'

(b) Where an ingredient of the foodstuff is 6. The Directive on Labelling does not spec­ itself the product of several ingredients, ify exactly what is meant by an 'additive' or the latter shall be regarded as ingredi­ a 'processing aid' within the meaning of the ents of the foodstuff in question. 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 food­ 4 (c) The following shall not be regarded as stuffs intended for human consumption. ingredients: According to Article 1(2) of that directive, 'food additive' means

(i) (…)

(ii) — additives:

— whose presence in a given food­ stuff is solely due to the fact that they were contained in one or more ingredients of that food­ stuff, provided that they serve no technological function in the finished product, '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 — which are used as processing or storage of such food results, or may be aids; reasonably expected to result, in it or its by-products becoming directly or indirectly a component of such foods.'

- (···)·' 4 — OJ 1989 L 40, p. 27.

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Diphosphate E 450 a, as used by Pfanni, is listed in Annex 2 to the aforementioned Lastly, sodium diphosphate is listed in Zusatzstoffverkehrsverordnung. 8 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 approx­ 6 — OJ 1971 L 189, p. 1. Under Article 2(1) of that directive, Member States may authorize the use as emulsifiers, stabiliz­ imation of the laws of the Member ers, thickeners and gelling agents of only substances listed in Annex I to that directive. States relating to emulsifiers, stabilizers, 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 July1984 (BGBl I, 897) and was amended by regulation 5 — Sec footnote 1, OJ 1989 L 40. p. 28. of 19 June 1989 (BGBl I, 1123).

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OPINION OF MR VAN GERVEN — CASE C-144/93

Pfanni goes on to analyse the ratio legis of the Directive on Labelling. In its view, pre­ cisely in order to inform consumers properly and therefore to protect them, the legislator deliberately opted not to include on food­ stuffs labelling indications which were of 9. Pfanni argues that there can be no ques­ minor importance or difficult to understand. tion of the additive's serving a technological 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 9 — They also intimate as a result — and, to my mind, correctly — that sodium diphosphate was not used merely as a 'pro­ cessing aid'. By definition (section 6 above), only residues or derivatives of a processing aid remain in the finished prod­ uct, whereas it appears from the order for reference that the used additive itself is to be found in Pfanni's dried potato 10 — The word in square brackets is in the German and Dutch products. versions of the provision but not in the English: translator.

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PFANNI WERKE

11. The Bundesverwaltungsgericht is com­ pletely 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 10. As has already been mentioned, the the Directive on Labelling and with regard Landesanwaltscbaft maintains that the to the practical significance to be attached to diphosphate added by Pfanni does indeed the first indent of Article 6(4)(c)(ii) of the serve a technological function in the finished Directive. product in so far as it helps to determine the characteristics (colour) of the finished prod­ uct and is intended to do so. Only if an addi­ tive 'which ends up in the finished product via an ingredient does not determine its char­ acteristics' can a 'carry-over' effect be involved. The Landesanwaltschaft — sup­ ported by the Bayerisches Verwaltungsger­ icht, the Bayerischer Verwaltungsgerichtshof and, according to the order for reference, The Commission, too, supports those argu­ seemingly the Arbeitskreis der lebensmit- ments, but finds — precisely, moreover, as telchemischen Sachverständigen der Länder the Bundesverwaltungsgericht does — that

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OPINION OF MR VAN GERVEN — CASE C-144/93

Proposed reply to the preliminary question 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 12 inform and protect the consumer'. How­ ever, to my mind, the European legislator

12. In common with the Bundesverwal­ tungsgericht and the Commission, I agree with Pfanni's argument that, if the first 11 — See the twelfth recital in the preamble to the Directive on Labelling: 'Whereas the rules on labelling should also pro­ indent of Article 6(4)(c)(ii) of the Directive is hibit the use of information that would mislead the con­ sumer (...)'. to play an effective role, it cannot be 12 — Sixth recital in the preamble to the Directive. See also Arti­ assumed that any additive which affects the cle 4(1) of the Directive.

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PFANNI WERKE

13 — Article 3(1) of the Directive on Labelling: '(...) indication of 16 — I am not completely convinced by the arguments based on the following particulars alone shall be compulsory on the the wording on which Pfanni relies (section 9 above). I labelling of foodstuffs: (...)'. would therefore urge the Court not to base its interpreta­ 14 — Article 6(2) of the Directive on Labelling. tion (solely) on those arguments. 15 — 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 manufac­ turing 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 addi­ tives or flavouring' (Article 6(4)(c)(i) and the second indent of Article 6(4)(c)(ii), respectively).

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OPINION OF MR VAN GERVEN — CASE C-144/93

ing to the labelling, presentation and advertising of foodstuffs should be interpreted as meaning that an additive which, during the manufacture of an ingredient, pre­ vents 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.

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