–

Tesco Stores ČR a.s., by M.L. Šrubař, advokát,

–

Ministerstvo zemědělství, by R. Pokorný,

–

the Czech Government, by M. Smolek, J. Vláčil and J. Očková, acting as Agents,

–

the European Commission, by B. Hofstötter, P. Ondrůšek and B. Rous Demiri, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of point 2(a) of part E of Annex VII to Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18), in conjunction with point 2(c) of part A of Annex I to Directive 2000/36/EC of the European Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for human consumption (OJ 2000 L 197, p. 19).

2

The request was made in the context of a dispute between Tesco Stores ČR a.s. (‘Tesco’) and the Ministerstvo zemědělství (Ministry of Agriculture, Czech Republic) concerning the labelling of products sold by Tesco in the Czech Republic.

3

Recitals 1, 3, 4, 13, 17, 20, 22 and 26 of Regulation No 1169/2011 state:

…

…

…

…

…

…

4

Chapter I of Regulation No 1169/2011, entitled ‘General Provisions’, contains Articles 1 and 2 of the regulation.

5

Article 1 of that regulation, entitled ‘Subject matter and scope’, provides, in paragraph 1 thereof:

‘This Regulation provides the basis for the assurance of a high level of consumer protection in relation to food information, taking into account the differences in the perception of consumers and their information needs whilst ensuring the smooth functioning of the internal market’.

6

Article 2 of that regulation, entitled ‘Definitions’, provides, in paragraph 2 thereof:

‘The following definitions shall also apply:

…

…

…

…

…’

7

Appearing in Chapter II of Regulation No 1169/2011, on ‘General principles on food information’, Article 3 of the regulation, entitled ‘General objectives’ provides, in paragraph 1 thereof:

‘The provision of food information shall pursue a high level of protection of consumers’ health and interests by providing a basis for final consumers to make informed choices and to make safe use of food, with particular regard to health, economic, environmental, social and ethical considerations.’

8

Chapter III of that regulation, entitled ‘General food information requirements and responsibilities of food business operators’, contains inter alia Articles 6 and 7 of the regulation.

9

As set out in Article 6 of that regulation, entitled ‘Basic requirement’:

‘Any food intended for supply to the final consumer or to mass caterers shall be accompanied by food information in accordance with this Regulation.’

10

Article 7 of the same regulation, entitled ‘Fair information practices’, provides, in paragraph 1 thereof:

‘Food information shall not be misleading, particularly:

…’

11

Chapter IV of Regulation No 1169/2011, entitled ‘Mandatory food information’, in Section 1, entitled ‘Content and presentation’ contains inter alia Articles 9 and 15 of the regulation.

12

Article 9 of that regulation, entitled ‘List of mandatory particulars’, provides, in paragraph 1 thereof:

‘In accordance with Articles 10 to 35 and subject to the exceptions contained in this Chapter, indication of the following particulars shall be mandatory:

…’

13

Paragraphs 1 and 2 of Article 15 of that regulation, which is entitled ‘Language requirements’, read as follows:

‘1.   Without prejudice to Article 9(3), mandatory food information shall appear in a language easily understood by the consumers of the Member States where a food is marketed.

2.   Within their own territory, the Member States in which a food is marketed may stipulate that the particulars shall be given in one or more languages from among the official languages of the Union.’

14

Also appearing in Chapter IV of the same regulation, in Section 2, entitled ‘Detailed provisions on mandatory particulars’, Article 17 of the regulation, entitled ‘Name of the food’, provides, in paragraph 1 thereof:

‘The name of the food shall be its legal name. In the absence of such a name, the name of the food shall be its customary name, or, if there is no customary name or the customary name is not used, a descriptive name of the food shall be provided.’

15

Also in Section 2 of Chapter IV of Regulation No 1169/2011, paragraphs 1, 2 and 4 of Article 18 of the regulation, which is entitled ‘List of ingredients’, read:

‘1.   The list of ingredients shall be headed or preceded by a suitable heading which consists of or includes the word “ingredients”. It shall include all the ingredients of the food, in descending order of weight, as recorded at the time of their use in the manufacture of the food.

2.   Ingredients shall be designated by their specific name, where applicable, in accordance with the rules laid down in Article 17 and in Annex VI.

…

4.   Technical rules for applying paragraphs 1 and 2 of this Article are laid down in Annex VII.’

16

Annex VII to Regulation No 1169/2011, entitled ‘Indication and designation of ingredients’, includes inter alia Part E, entitled ‘designation of compound ingredients’, which provides:

17

Recitals 7 and 8 of Directive 2000/36 read as follows:

18

As set out in Article 3(1) of Directive 2000/36:

‘Directive 79/112/EEC shall apply to the products defined in Annex I, subject to the following conditions:

However, those sales names may also be used additionally and in accordance with the provisions or customs applicable in the Member State in which the product is sold to the final consumer, to designate other products which cannot be confused with those defined in Annex I.’

19

Article 4 of Directive 2000/36 provides:

‘For the products defined in Annex I, Member States shall not adopt national provisions not provided for by this Directive.’

20

Annex I to that directive, entitled ‘Sales names, definitions and characteristics of the products’, contains a part A, entitled ‘Sales names and definitions’. Point 2(c) in that part states:

‘Powdered chocolate, chocolate in powder

designate the product consisting of a mixture of cocoa powder and sugars, containing not less than 32% cocoa powder.’

21

The Tesco group, a multinational retailer established in the United Kingdom, operates supermarkets in, inter alia, the Czech Republic. Its Czech subsidiary marketed certain food items under the brand name ‘Monte’ in its stores in the Czech Republic. The labelling of the products in question, namely, Monte chocolate milk dessert with hazelnuts (220 g), Monte chocolate milk dessert (100 g) and Monte drink, chocolate milk drink with hazelnuts (200 ml), gave a list of ingredients including čokoládový prášek (chocolate powder) without further specifying its composition.

22

On 27 May 2016, the Státní zemědělská a potravinářská inspekce, inspektorát v Brně (Czech Agriculture and Food Inspection Authority, Brno Inspectorate, Czech Republic) (‘the SZPI’) ordered Tesco to withdraw the products in question from its establishments in the Czech Republic and prohibited it from further placing those products on the market. It relied on the fact that the labelling of those products included the term ‘čokoládový prášek’ (‘chocolate powder’) without providing an itemised list of ingredients, in breach of Article 9(1)(b) in conjunction with Article 18(1) and (4) of Regulation No 1169/2011. In addition, according to the SZPI, it is clear from point 2(c) of Part A of Annex I to Directive 2000/36 that, in the Czech language, the words ‘čokoláda v prášku’ (‘powdered chocolate’ or ‘chocolate in powder’) must be used and not the words ‘čokoládový prášek’ (‘chocolate powder’).

23

Following the objection lodged by Tesco, the SZPI, by two separate decisions of 6 June 2016, annulled the measures adopted on 27 May 2016. Thus, it annulled, by the first decision, the prohibition on marketing the products in question and, by the second decision, the withdrawal of those products from all the establishments located in the Czech Republic.

24

However, under an expedited review procedure, the ústřední inspektorát Státní zemědělské a potravinářské inspekce (Central Inspectorate of the Czech Agriculture and Food Inspection Authority, Czech Republic), by two decisions of2 February 2017, amended the decisions of the SZPI of 6 June 2016, dismissing Tesco’s objection.

25

The Ministry of Agriculture, by two decisions of 21 April 2017, dismissed the action brought by Tesco against the decisions adopted under the expedited review procedure.

26

Tesco filed an action against those decisions before the Krajský soud v Brně (Regional Court, Brno, Czech Republic), claiming that the exception under point 2(a) of part E of Annex VII to Regulation No 1169/2011 also applies to ‘čokoládový prášek’ (‘chocolate powder’) since the content of that formula is identical to that of ‘čokoláda v prášku’ (‘powdered chocolate’ or ‘chocolate in powder’). The conclusion that only the Czech-language version of Directive 2000/36 is decisive is, according to Tesco, contrary to the operating principles of EU law, given that all the language versions of a provision of EU law must be regarded as being equally authentic.

27

By judgment of 26 February 2019, the Krajský soud v Brně (Regional Court, Brno) dismissed that action, holding that the name appearing in each language version of Annex I to Directive 2000/36 is mandatory.

28

Tesco lodged an administrative appeal on a point of law against that judgment before the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic). By a judgment of 11 July 2019, that court set aside the judgment under appeal and referred the case back to the Regional Court for further consideration.

29

When the case came before it again, the Krajský soud v Brně (Regional Court, Brno) observed that both Directive 2000/36 and Regulation No 1169/2011 are designed to protect consumers. It is therefore necessary for economic operators to use, in each Member State, the name as provided for by the EU legislature in a language that is easily understood in that Member State.

30

The referring court also states that the Court’s case-law concerning the resolution of a divergence between different language versions of EU legislative acts does not apply in the present case. In fact, there is no divergence between the language versions of Directive 2000/36, despite the existence of more than one name for the same ingredient in some of the language versions. These are autonomous lists of the mandatory names in the respective official languages, set for the products intended for consumers of the Member State in which the official language concerned is used. The judgment of 14 June 2017, TofuTown.com (C‑422/16, EU:C:2017:458), on which the Nejvyšší správní soud (Supreme Administrative Court) relied, could also be interpreted as meaning that it is not possible to use synonyms or translations of mandatory names.

31

In those circumstances, the Krajský soud v Brně (Regional Court, Brno) decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

‘Should the rule set out in point 2(a) of part E of Annex VII to Regulation No [1169/2011] be interpreted such that, with respect to a food [product] intended for an end consumer in the Czech Republic, a compound ingredient listed in point 2(c) of part A of Annex I to Directive [2000/36] may only be listed among the ingredients of the product without a precise specification of its composition if that compound ingredient is labelled precisely in line with the Czech language version of Annex I to [Directive 2000/36]?’

32

By its question, the referring court asks, in essence, whether point 2(a) of part E of Annex VII to Regulation No 1169/2011 must be interpreted as meaning that, in the context of the labelling of products marketed on the territory of a Member State, an economic operator is exempt from the requirement to list all the ingredients constituting a compound ingredient, within the meaning of Article 2(2)(h) of that regulation, only if that compound ingredient, which is designated by a sales name under part A of Annex I of Directive 2000/36, is described, in the list of ingredients, using that sales name in the language version of the Member State concerned.

33

As is clear from the order for reference, the question has arisen in the context of a dispute that arose in connection with the marketing by Tesco of certain food products in the Czech Republic, because the powdered chocolate used in the manufacture of those food products was not identified in the list of ingredients of those products using the name under which such a compound ingredient is described in the Czech-language version of Annex I to Directive 2000/36, namely ‘čokoláda v prášku’. Tesco substituted for that name its own translation into Czech of other language versions of that annex, such as the German version ‘Schokoladenpulver’ and the Polish version (which contains the words ‘proszek czekoladowy’ as well as ‘czekolada w proszku’). Those translations led to the use of the words ‘čokoládový prášek’ (‘chocolate powder’) to describe that compound ingredient.

34

In the first place, it should be noted, first, that Directive 2000/36 introduced full harmonisation of sales names for cocoa and chocolate products intended for human consumption, in order to guarantee the single nature of the internal market. Therefore, the sales names listed in Annex I to Directive 2000/36 are, in accordance with Article 3(1) of that directive, both mandatory and reserved for the products listed in that annex. Furthermore, since Article 4 of Directive 2000/36 prohibits Member States from adopting national provisions not provided for by that directive for the products defined in Annex I thereto, that directive must be regarded as having created a mandatory and complete system of sales names (see, to that effect, judgment of 25 November 2010, Commission v Italy, C‑47/09, EU:C:2010:714, paragraphs 29 and 36).

35

Secondly, it is clear from point 2(c) of part A of Annex I to Directive 2000/36, in conjunction with Article 3(1) and recital 7 of that directive, that a product that consists of a mixture of cocoa powder and sugars, containing at least 32% cocoa powder, must be designated, for the purposes of the application of that directive, as ‘čokoláda v prášku’ (‘powdered chocolate’ or ‘chocolate in powder’ in English).

36

Therefore, assuming that the compound ingredient at issue in the main proceedings meets the criteria for being designated as ‘čokoláda v prášku’ (‘powdered chocolate’ or ‘chocolate in powder’), within the meaning of point 2(c) of part A of Annex I to Directive 2000/36, which it is for the referring court to determine, that compound ingredient must be designated in trade as ‘čokoláda v prášku’ (‘powdered chocolate’ or ‘chocolate in powder’).

37

That finding is supported by the fact that the name ‘čokoláda v prášku’ (‘powdered chocolate’ or ‘chocolate in powder’ in English), appearing in point 2(c) of part A of Annex I to Directive 2000/36, constitutes a ‘legal name’ prescribed by the EU provisions applicable to that food, within the meaning of Article 2(2)(n) of Regulation No 1169/2011. Under Articles 17 and 18 of that regulation that name must be used throughout the European Union. Under Article 15(1) of that regulation, that name must also appear on the food product in a language easily understood by the consumers of the Member States where the food is marketed.

38

In the second place, it should be noted that, according to Article 9(1)(b), and Article 18(1) of Regulation No 1169/2011, the list of ingredients which must appear on the food must include all the ingredients of the food concerned, in descending order of weight, as recorded at the time of their use in the manufacture of that food.

39

That being the case, according to point 2(a) of part E of Annex VII to Regulation No 1169/2011, the list of ingredients constituting a compound ingredient may be omitted where the composition of the compound ingredient is defined in current EU provisions, and in so far as the compound ingredient constitutes less than 2% of the finished product.

40

In that regard, it follows from paragraphs 36 and 37 of the present judgment that omission of the ingredients constituting a compound ingredient such as the one at issue in the main proceedings is permitted only in so far as that compound ingredient is identified by the name that it has been given under the rules of EU law and appears in a language easily understood by the consumers of the Member States where the food is marketed. In the present case, it therefore appears that, in order to be covered by the exemption provided for in point 2(a) of part E of Annex VII to Regulation No 1169/2011, the compound ingredient appearing on the labelling of food products marketed in the Czech Republic must be identified by its name in the Czech language.

41

In the third place, it is necessary to examine whether the exception provided for in point 2(a) of part E of Annex VII to Regulation No 1169/2011 may apply even in a situation, such as that at issue in the main proceedings, where the economic operator has not used the name of the compound ingredient as it appears in the Czech-language version of Annex I to Directive 2000/36, but has substituted for that name its own translation into Czech of the name of that ingredient as it appears in other language versions of Annex I.

42

In that regard, it should be noted, first, that in so far as it introduces an exception to the rule that all the ingredients comprising a food product must be listed among its ingredients, point 2(a) of part E of Annex VII to Regulation No 1169/2011 must be interpreted restrictively.

43

Secondly, it should be noted that Regulation No 1169/2011, as follows from Article 1(1) and Article 3(1) of that regulation, read in the light of recitals 1, 3 and 4 of that regulation, is intended to ensure a high level of consumer protection in relation to food information, taking into account the differences in perception of consumers (judgment of 1 October 2020, Groupe Lactalis, C‑485/18, EU:C:2020:763, paragraph 43 and the case-law cited).

44

To that end, Article 3(1) of Regulation No 1169/2011, in conjunction with recitals 3 and 4 thereof, seeks to ensure that the information provided to consumers enables them to make informed choices (see, to that effect, judgment of 12 November 2019, Organisation juive européenne and Vignoble Psagot, C‑363/18, EU:C:2019:954, paragraph 53).

45

More particularly, it is clear from recital 17 of Regulation No 1169/2011 that the mandatory nature of the information on the composition of food stems from the need ‘to enable consumers to identify and make appropriate use of a food and to make choices that suit their individual dietary needs’.

46

Such an objective requires that the information relating to food is correct, neutral and objective (see, to that effect, judgments of 22 September 2016, Breitsamer und Ulrich, C‑113/15, EU:C:2016:718, paragraph 69, and of 1 October 2020, Groupe Lactalis, C‑485/18, EU:C:2020:763, paragraph 44). Likewise, that information must not be such as could mislead the consumer, particularly as to the nature, identity, properties, composition, quantity, durability, origin or provenance, method of manufacture or production of the food (judgment of 4 June 2015, Teekanne, C‑195/14, EU:C:2015:361, paragraph 31).

47

Such an objective would be seriously undermined if, where they are obliged to conform to the sales name of a compound ingredient as required under EU provisions, economic operators could avoid using the name of that ingredient, as it appears in the relevant language version of those provisions, and freely translate the words used to describe that compound ingredient in other language versions of those provisions.

48

As the Advocate General states, in essence, in points 63 and 71 of his Opinion, such free translations do not enable consumers to know with certainty the composition of such a compound ingredient by merely reading its name in the list of ingredients of the food into which it is incorporated.

49

In the present case, it should be noted, particularly, that it is only the words ‘čokoláda v prášku’ (‘powdered chocolate’ or ‘chocolate in powder’ in English) that are specifically defined in point 2(c) of part A of Annex I to Directive 2000/36. Such a definition does not exist, in the context of EU provisions, for the words ‘čokoládový prášek’ (‘chocolate powder’).

50

The fact that, as Tesco pointed out in its written reply to the questions put by the Court, the compound ingredient at issue in the main proceedings contains cocoa and sugar and its cocoa content is at least 32%, and so it fully complies with the requirements of Annex I to Directive 2000/36 so as to be described as ‘čokoláda v prášku’ (‘powdered chocolate’ or ‘chocolate in powder’), does not alter the fact that in the present case only the name of that compound ingredient, as it is stated in the Czech-language version of Annex I to Directive 2000/36 is able to meet the requirements of appropriate information for consumers.

51

Furthermore, the fact of allowing economic operators to identify a compound ingredient, designated by a sales name under Directive 2000/36, by freely translating that name as it appears in other language versions of that directive, would undermine the full harmonisation of sales names introduced by that directive, as described in paragraph 34 of the present judgment. It would mean that the list of ingredients of a food product could contain a compound ingredient referred to in Annex I to Directive 2000/36 under a name that did not appear in any of the language versions of that annex, and which would therefore derogate from the legal name stipulated in that directive.

52

It should be added in that regard that taking the principle of equivalence between different language versions of a provision of EU law into account cannot mean that an economic operator is allowed not to conform to any of those versions. Likewise, the finding contained in paragraph 47 of the present judgment does not call into question the principle that, in the event of divergence between the language versions of a provision of EU law, preference should not be given to any one of them. As the Advocate General noted in point 44 of his Opinion, the mere fact that different language versions have different designations for the compound ingredient concerned, some of them using only one name whilst others use more than one, does not mean that there is a divergence of the language versions.

53

Having regard to all of the foregoing considerations, the answer to the question referred is that point 2(a) of part E of Annex VII to Regulation No 1169/2011 must be interpreted as meaning that, in the context of the labelling of products marketed on the territory of a Member State, an economic operator is exempt from the requirement to list all the ingredients constituting a compound ingredient, within the meaning of Article 2(2)(h) of that regulation, only if that compound ingredient, which is designated by a sales name under part A of Annex I to Directive 2000/36, is described, in the list of ingredients, using that sales name in the language version of the Member State concerned.

54

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

Point 2(a) of part E of Annex VII to Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004, must be interpreted as meaning that, in the context of the labelling of products marketed on the territory of a Member State, an economic operator is exempt from the requirement to list all the ingredients constituting a compound ingredient, within the meaning of Article 2(2)(h) of that regulation, only if that compound ingredient, which is designated by a sales name under part A of Annex I to Directive 2000/36/EC of the European Parliament and of the Council of 23 June 2000 relating to cocoa and chocolate products intended for human consumption, is described, in the list of ingredients, using that sales name in the language version of the Member State concerned.