I Facts

Breitsamer und Ulrich GmbH & Co KG v Landeshauptstadt München concerns the labelling of individual portions of honey that are packaged and sold together in a carton with a label indicating the country of origin of the honey.

Breitsamer und Ulrich, a firm involved in the production and bottling of honey and operating in the European Union, sells “Breitsamer Imkergold” (the honey in question). The product consists of 120 individual 20-gram portions of the same honey in portion-cups, sealed with aluminium. The 120 portions are packaged in a carton that is sealed by the firm in question and sold to mass caterers.

On 30 October 2012, the Federal State Capital of Munich fined the managing director of Breitsamer und Ulrich for infringing the statutory labelling requirements, laid down in the Honey Regulations,Footnote ¹ on the grounds that the country of origin was not indicated on the individual portions of honey.

Breitsamer und Ulrich brought an action before the Verwaltungsgericht München (Administrative Court of Munich) later the same year, declaring that it had not infringed the Honey Regulations by not indicating the country of origin on each individual portion of honey. Against this background, the court of referral asked the European Court of Justice for a preliminary ruling on the following:

1. (1) Are individual portions of honey, which are packaged in bulk in a carton containing all the labelling elements, including the indication of the country of origin, and which are not sold as individual portions to the ultimate consumers nor supplied individually to mass caterers, “pre-packaged foodstuff” or “prepacked food” within the meaning of Article 1(3)(b) of Directive 2000/13/ECFootnote ² and Article 2(2)(e) of Regulation (EU) No 1169/2011Footnote ³ respectively, for which there is a corresponding labelling requirement, or are such portions of honey not subject to the labelling requirements for pre-packaged foodstuff/prepacked foods due to their not being offered for sale as a single item?

2. (2) Is the answer different if those individual portions are supplied in mass catering establishments, not only in meals that are paid for as a whole, but are also sold individually?

II Judgement of the Court

The main disagreement between the two parties in this case concerns whether individual portions of honey – supplied by a mass caterer to the ultimate consumer as part of a meal – must be labelled appropriately so as to include the country of origin of the honey. Breitsamer und Ulrich and the Commission argue that such individual portions are not covered by the definition of a “pre-packaged foodstuff”; the city of Munich and the Public Prosecutors of Bavaria argue they are.

The answer of the Court of Justice to this question in the preliminary ruling is positive.

The Court concluded from a combined reading of the Foodstuffs Labelling Directive and the Honey DirectiveFootnote ⁴ that it is mandatory for the particulars of the country of origin of the honey to appear on the packaging or on a label attached to any product covered by the Honey Directive, since failure to do so will mislead the consumer, to a material degree, as to the true origin of the honey.Footnote ⁵

The Court examined the exceptions described in the legislation where, subject to certain conditions, it is sufficient to include the information only on the commercial document given.Footnote ⁶ Article 13(1)(b) of Directive 2000/13 provides that firstly, where pre-packaged foodstuffs are intended for the ultimate consumer but marketed at a stage prior to selling to them (and where selling to a mass caterer is not involved at that stage) and secondly, where pre-packaged foodstuffs are intended for supply to mass caterers for preparation, processing, splitting or cutting up, the particulars required under Article 3Footnote ⁷ and Article 4(2)Footnote ⁸ of the Directive need appear only on the commercial documents referring to the foodstuffs where it can be guaranteed that such documents containing all the labelling information either accompany the foodstuffs to which they refer or were sent before or at the same time as delivery.

However, the portions of honey in question are sold to mass caterers and are not prepared, processed, split or cut up by the mass caterers within the meaning of Article 13(1)(b).Footnote ⁹ Therefore, the mandatory country of origin labelling of the honey in question in accordance with Article 2(4)(a) of the Honey Directive, depends on whether those portions of honey are considered “pre-packaged foodstuffs” for the purpose of the Article 1(3)(b) of Foodstuffs Labelling Directive.Footnote ¹⁰

Article 1(3)(b) stated that a “pre-packaged foodstuff” meant “any single item for presentation as such to the ultimate consumer and to mass caterers, consisting of a foodstuff and the packaging into which it was put before being offered for sale, where such packaging encloses the foodstuff completely or only partially, but in any case, in such a way that the contents cannot be altered without opening or changing the packaging.” A narrow reading of Article 1(3)(b) of the Foodstuffs Labelling Directive by Breitsamer und Ulrich led to the conclusion that a single foodstuff item – packaged prior to its sale – and offered as such for sale to the ultimate consumer at the final stage of the supply chain (who can then choose whether to purchase the foodstuff and ultimately ingest it) is regarded as a “pre-packaged foodstuff”.Footnote ¹¹ According to this narrow interpretation, if the individual portions of honey at issue are sold separately to the ultimate consumer, this falls into the scope of “pre-packaged foodstuffs” and when they are presented as part of a meal by the mass caterers, they will not be considered as “pre-packaged food”. This interpretation is also supported by the Working Group of the Commission’s Health and Consumer Directorate General, which specifically stated that portion-cups (e.g. jams, honeys, mustard), presented as part of a meal to the guests of mass caterers, should not be considered as units of sale.Footnote ¹² However, as confirmed in the introduction to the Questions and Answers of the Working Group, this document has “no formal legal status and in the event of a dispute, ultimate responsibility for the law lies with the Court of Justice of the European Union.”Footnote ¹³

In terms of the present case, given the different language versions of the EU legislative text, the Court found that in some language versions, “any single item” was referred to with the additional concept of “sale”. The Court takes the reading of the Advocate General that when a consumer purchases a meal, the price paid covers all the goods and services needed in supplying that meal, and thus includes the individual portions of honey at issue.Footnote ¹⁴

Furthermore, the Court gave consideration to the purpose of the directive in its interpretation of Article 1(3)(b), namely, to inform and protect the ultimate consumers,Footnote ¹⁵ and enable consumers to choose the foodstuff in full knowledge of the facts which are deemed relevant to that choice,Footnote ¹⁶ in particular as regards the nature, identity, properties, composition, quantity, durability, origin or provenance and method of manufacture or production of the products.Footnote ¹⁷ Pursuant to those objectives of the Directive, indicating a country of origin on the individual portions of honey at issue helps consumers to decide whether to consume the honey or not where it is offered as part of a pre-prepared meal for a fixed price.Footnote ¹⁸

In this regard, the Court ruled that each individual portion of honey – presented in the form of a portion-cup enclosed by an aluminium seal and packed in cartons supplied to mass caterers – satisfied the conditions provided for in Article 1(3)(b) and constitutes a “pre-packaged foodstuff’.Footnote ¹⁹ The Court also concluded that there is no need to distinguish between individual portions of honey being sold separately in a mass catering establishment or their being offered for sale in pre-prepared meals for an all-inclusive price.Footnote ²⁰

III Comments

Article 19 of the Treaty of the European Union (TEU) states that the European Court of Justice (ECJ) shall ensure that, in the interpretation and application of the Treaties, the law is observed. The ECJ must, in its exercise of jurisdiction, interpret the law with a view to filling any normative lacunae, and avoid “judicial activism”. However, the treaties of the European Union do not contain any provision concerning the interpretation of EU laws.Footnote ²¹ In the absence of such a provision, some scholars observe that the interpretative techniques that the ECJ follow do not depart from the classical methods of law interpretation recognised in the national legal context,Footnote ²² namely, literal interpretation, contextual interpretation and teleological interpretation,Footnote ²³ as well as the principles of treaty interpretation provided for in the Vienna Convention.Footnote ²⁴

Regarding this case, in my view, the Court of Justice used various methods of interpretation in order to answer the questions raised by the court of referral and examined both the normative context of the relevant provisions and the objectives they pursue.

The Court, firstly, examines the derogations provided for in Article 13(1)(b) and Article 14 of Directive 2000/13 regarding the exceptions for pre-packaged foodstuffs where labelling information only needs to be provided on the commercial documents, and non-pre-packaged foodstuffs respectively.Footnote ²⁵ With common sense and an ordinary reading of those provisions, such exceptions do not apply to the issue of the individual portions of honey.

The Court then moves to the contextual interpretation of Article 1(3)(b), the definition of “pre-packaged foodstuffs” where the main disagreement between the parties exists. There are difficulties when it comes to law interpretation in the European Union, notably because legislation is drafted in several languages. Thus an interpretation of a provision of EU law involves comparing different language versions.Footnote ²⁶ In light of Article 55 of the TEU, the texts of the Treaties in each of the EU official languages are equally authentic.Footnote ²⁷ The principle of such “linguistic equality” is manifested in the legal obligations of EU institutions to publish and translate all documents in each of the 24 official languages,Footnote ²⁸ and where vocabulary divergences exist among different linguistic versions of an EU act of general application, a textual method of interpretation will not suffice and the ECJ may not limit itself to the wording of one linguistic version. According to the Court’s settled case-law,Footnote ²⁹ the Court interpreted the provision in question in light of all of the EU language versions and with reference to the purpose and general scheme of the Directive. In referring to the wording used in various language versions, the Court concluded that the phrase “pre-packaged foodstuffs” – within the meaning of Article 1(3)(b) – refers to foodstuffs packed before being offered for sale and where their packaging encloses them completely in such a way that their contents cannot be altered without opening or changing the packaging.Footnote ³⁰

Consequently, the Court followed the general scheme of the Directive and examined the object and purpose of the Directive. This interpretation method also appears in the case law,Footnote ³¹ where the ECJ reasoned that the most liberal interpretation must prevail, given that it was sufficient to achieve the objectives pursued by the decision in question.Footnote ³² In light of this consideration, indications on individual portions of honey (whether sold separately to consumers or offered to consumers as part of a pre-prepared meal at a fixed price) enable ultimate consumers to make their choice with full knowledge of the facts and this supports the aims of the Directive.Footnote ³³ The underlying purpose of the Directive supports the interpretation of Article 1(3)(b) that includes the issue at hand.Footnote ³⁴

The preliminary ruling of the Court of Justice employs a systematic interpretation of the provisions in question. Such rulings offer practical implications for the food industry – that manufacturers and distributors have to be careful if their small portions of pre-packaged foodstuffs need to be labelled for resale. Any pre-packaged food (including small portions of ingredients such as milk, salt, sugar, spices and herbs, tea bags, etc.) that falls into the scope of “pre-packaged” foodstuff within the meaning of Article 1(3)(b) and now Article 2(2)(e) of Regulation (EU) No 1169/2011,Footnote ³⁵ should be labelled individually in compliance with the Foodstuffs Labelling Regulation. Exceptions apply to situations where the packaging surface has an area of less than 10 cm² and in terms of the conditions laid down in Article 13(1)(b).