OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 6 October 2021(1)

Case C881/19

Tesco Stores ČR a.s.

v

Ministerstvo zemědělství

(Request for a preliminary ruling from the Krajský soud v Brně (Regional Court, Brno, Czech Republic))

(Reference for a preliminary ruling – Consumer protection – Food information law – Approximation of laws – Provision of food information to consumers – Labelling of food – Cocoa and chocolate products – List of ingredients of a food intended for consumers in a Member State – Regulation (EU) No 1169/2011 – Directive 2000/36/EC)






1.        This reference for a preliminary ruling from the Krajský soud v Brně (Regional Court, Brno, Czech Republic) concerns the use of the name of a compound ingredient in the mandatory list of ingredients for a food marketed in a Member State. The applicant in the main proceedings marketed certain products in the Czech Republic containing, amongst other ingredients, a compound ingredient with a specific designation defined in Directive 2000/36/EC (‘the Chocolate Directive’). (2) The applicant in the main proceedings used its own translation into Czech of the Polish and/or German official language versions of the designation for that product rather than the designation provided in the Czech-language version of the Chocolate Directive.

2.        At the present stage of the proceedings, the Czech competent authorities take the view that only the Czech-language version of that specifically defined designation in the Chocolate Directive exempts the applicant from detailing the contents of that compound ingredient in accordance with the provisions of Regulation (EU) No 1169/2011 (‘the Food Information Regulation’) (3) when marketing the product in the Czech Republic. The applicant in the main proceedings disagrees and argues that it should be allowed to use its own translation into Czech of any of the official language versions of the Chocolate Directive and that it is not required to list the ingredients of the compound ingredient in the list of ingredients for the marketed products.

I.      Legal framework

A.      Directive 2000/36

3.        Article 3 of the Chocolate Directive provides:

‘Directive 79/112/EEC [(4)] shall apply to the products defined in Annex I, subject to the following conditions:

1.      The sales names listed in Annex I shall apply only to the products referred to therein and must be used in trade to designate them.

…’

4.        Annex I to the Chocolate Directive, entitled ‘Sales names, definitions and characteristics of the products’, provides under Part A (‘Sales names and definitions’), in point 2:

‘…

(c)      Powdered chocolate, chocolate in powder

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

…’

5.        The Czech-language version of that provision contains the single designation ‘čokoláda v prášku’ for that same product.

B.      Regulation No 1169/2011

6.        Article 2 of the Food Information Regulation, entitled (‘Definitions’), states:

‘…

2.      The following definitions shall […] apply:

(h)      “compound ingredient” means an ingredient that is itself the product of more than one ingredient;

(n)      “legal name” means the name of a food prescribed in the Union provisions applicable to it or, in the absence of such Union provisions, the name provided for in the laws, regulations and administrative provisions applicable in the Member State in which the food is sold to the final consumer or to mass caterers;

…’

7.        According to Article 9 of the Food Information Regulation, entitled ‘List of mandatory particulars’:

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

(b)      the list of ingredients;

…’

8.        Article 15 of the Food Information Regulation, entitled ‘Language requirements,’ provides:

‘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.

…’

9.        Article 17 of the Food Information Regulation, entitled ‘Name of the food’, states:

‘1.      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.

…’

10.      Article 18 of the Food Information Regulation, entitled ‘List of ingredients’, provides:

‘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.

…’

11.      Part E of Annex VII to the Food Information Regulation, entitled ‘Designation of compound ingredients’, is worded as follows:

‘1.      A compound ingredient may be included in the list of ingredients, under its own designation in so far as this is laid down by law or established by custom, in terms of its overall weight, and immediately followed by a list of its ingredients.

2.      Without prejudice to Article 21, the list of ingredients for compound ingredients shall not be compulsory:

(a)      where the composition of the compound ingredient is defined in current Union provisions, and in so far as the compound ingredient constitutes less than 2% of the finished product; however, this provision shall not apply to food additives, subject to points (a) to (d) of Article 20;

…’

II.    Facts, procedure and the questions referred

12.      The Tesco group is a multinational retailer that operates supermarkets in, inter alia, the Czech Republic. Its Czech subsidiary, Tesco Stores ČR a.s. (‘Tesco’) marketed certain food items under the brand name ‘Monte’ in its Czech stores. The products at issue (5) were labelled with an ingredient list (required pursuant to Article 9(1)(b) of the Food Information Regulation), which listed ‘čokoládový prášek’ without further specifying the ingredients of which that compound ingredient was composed. That term or expression would, freely translated, have a meaning akin to ‘powder of chocolate’ in English.

13.      On 27 May 2016, the Státní zemědělská a potravinářská inspekce (inspektorát v Brně) (Czech Agriculture and Food Inspection Authority, Brno Inspectorate) ordered that those products be recalled from the Czech market, because their list of ingredients included the term ‘čokoládový prášek’ without an itemised list of ingredients being provided for this compound ingredient, as required by Article 9(1)(b) in conjunction with Article 18(1) and (4) of the Food Information Regulation and prohibited further placement of those products on the market.

14.      Tesco lodged an objection against those measures on 1 June 2016. On 6 June 2016, the Czech Agriculture and Food Inspection Authority initially granted Tesco’s application and revoked those measures. Subsequently, however, the central inspectorate of the Czech Agriculture and Food Inspection Authority reversed the decision of 6 June 2016 by decisions of 2 February 2017, dismissing the applicant’s objection and confirming the measures of 27 May 2016. Tesco appealed against the decisions of 2 February 2017. That appeal was dismissed by the defendant’s decisions of 21 April 2017.

15.      Tesco filed an action against the defendant’s decisions of 21 April 2017 before the Krajský soud v Brně (Regional Court, Brno). That action was dismissed by a judgment of 26 February 2019. On the basis of Tesco’s administrative appeal on a point of law, the Nejvyšší správní soud (Supreme Administrative Court, Czech Republic), by its judgment of 11 July 2019, set aside the judgment of the Krajský soud v Brně (Regional Court, Brno) of 26 February 2019 and referred the case back to that court.

16.      The Nejvyšší správní soud (Supreme Administrative Court) in essence agreed with Tesco that it was allowed to use the designation ‘čokoládový prášek’ instead of the designation ‘čokoláda v prášku’ for the compound ingredient in question and that it was not required to list the ingredients of which that compound ingredient was composed in the list of ingredients for the products at issue.

17.      Krajský soud v Brně (Regional Court, Brno), which is bound by the legal opinion of the Nejvyšší správní soud (Supreme Administrative Court), harbours doubts concerning the correctness of the Nejvyšší správní soud’s analysis as regards certain elements of EU law. It has therefore submitted a request for a preliminary ruling and asked the Court for its guidance on the following question:

‘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 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/EC] 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/EC?’

18.      Written observations were submitted by Tesco, the Czech Ministry of Agriculture, the Czech Government and the European Commission. No hearing was requested and none was held. The Court addressed certain questions to the parties for written response. All of those parties provided timely written responses to the questions addressed to them.

III. Analysis

A.      Preliminary remarks

19.      The referring court states in the order for reference that it is bound by the legal opinion of the Nejvyšší správní soud (Supreme Administrative Court). Even though this is the case, the referring court considers that it is not prevented from exercising the right embodied in Article 267 TFEU to make a request to the Court for a preliminary ruling.

20.      This is unquestionably correct. As the Court has stated clearly in its judgment of 5 October 2010, Elchinov (C‑173/09, EU:C:2010:581), which the referring court cites in the order for reference, not only does a lower court have the right to make a reference to the Court for a preliminary ruling at whatever stage of the proceedings it considers appropriate, but having exercised the discretion thus conferred on it by the second paragraph of Article 267 TFEU, such a court is also bound, for the purposes of the decision to be given in the main proceedings, by the interpretation of the provisions at issue given by the Court and must, if necessary, disregard the rulings of the higher court if it considers, having regard to that interpretation, that they are not consistent with European Union law. (6)

21.      Annex VII to the Food Information Regulation contains a ‘Part E – Designation of compound ingredients’. Subject to certain conditions, point 1 of Part E permits the inclusion of a compound ingredient under its own designation in the mandatory list of ingredients required pursuant to Article 9(1)(b) of the Food Information Regulation when the designation of the compound ingredient is followed immediately by a list of its ingredients. Point 2(a) of Part E provides an exception to the otherwise compulsory list of ingredients for compound ingredients ‘where the composition of the compound ingredient is defined in current Union provisions’ and the compound ingredient constitutes less than 2% of the finished product (‘the compound ingredient list exception’).

22.      By its question, the referring court in essence asks whether EU legislation requires that a compound ingredient that is a product defined in Annex I to the Chocolate Directive must be mentioned by the designation given to that product in that annex in the list of ingredients required pursuant to Article 9(1)(b) of the Food Information Regulation in order for the compound ingredient list exception to apply.

23.      According to Tesco’s answers to the questions posed by the Court, the compound ingredient in question, which I shall refer to as ‘powdered chocolate’ in this Opinion, contained the requisite 32% of cocoa powder for the designation pursuant to point 2(c) of Part A of Annex I to the Chocolate Directive – that is to say, as ‘čokoláda v prášku’ in Czech, ‘Schokoladenpulver’ in German, ‘proszek czekoladowy’ or ‘czekolada w proszku’ in Polish, and ‘powdered chocolate’ or ‘chocolate in powder’ in English.

24.      Also, according to Tesco’s answers, the various ‘Monte’ products at issue contained only 0.5% (and thus less than 2%) of this compound ingredient. For the purposes of this Opinion, I will take those statements to be truthful and correct.

25.      The question for the Court therefore does not concern the actual content or the composition of the physical ingredients of the Monte products. Rather, the question for the Court is concerned only with the description of one compound ingredient of those products and the requirements under EU food information law as to how such a compound ingredient must be described in a list of ingredients in a particular official language of the European Union, in this case Czech. The referring court has in this respect asked specifically whether a list of ingredients for the compound ingredient at issue is required under circumstances such as those at issue in the main proceedings.

26.      The referring court has not asked for guidance on the question whether the use of a term other than the one provided for in Annex I to the Chocolate Directive, ‘čokoláda v prášku’, is permissible under EU food information law, but only whether a list of ingredients must be provided for that compound ingredient if such other term is used. Those two questions, however, appear to be intrinsically linked by the relevant EU legislation. I have therefore endeavoured to analyse both questions.

27.      I have reached the conclusion that such a compound ingredient must be described in a list of ingredients by its legal name, as that term is defined by Article 2(2)(n) of the Food Information Regulation, where such a name exists, and that the omission of a list of ingredients for such a compound ingredient is only justified where the composition of that compound ingredient is defined in current Union provisions and the name or designation under which that ingredient is so defined is used in the list of ingredients of the food product at issue.

B.      Equivalence of language versions

28.      Tesco did not use the designated term for powdered chocolate found in the Czech-language version of the Chocolate Directive, ‘čokoláda v prášku’, for the Monte products at issue. Instead, Tesco translated the Polish and/or German labels for the products at issue into Czech. Those labels used the designated term for powdered chocolate in Polish or German. That, or those translations, resulted in the use of the term ‘čokoládový prášek’ for the compound ingredient concerned in the list of ingredients for those products in Czech.

29.      Tesco argues, in essence, that all language versions of the Chocolate Directive are equally authentic, and that it follows from that principle that it may use any of those language versions as the starting point for a faithful translation into Czech of its labels drafted in any other official language of the European Union (in this case, German and/or Polish). Tesco points out that the different language versions of the Chocolate Directive do not correspond exactly (literally) to each other. Some language versions (such as the English- and Polish-language versions) permit the use of two or even three (the Dutch-language version) different expressions for powdered chocolate, whereas other versions (including the Czech) accept only one.

30.      In Tesco’s view, requiring it to use the Czech-language version of the Chocolate Directive would violate the principle of the equivalence of the language versions of the directive.

31.      According to the order for reference, the Nejvyšší správní soud (Supreme Administrative Court) essentially shares that point of view. That court has expressed the view that requiring Tesco to use the Czech designation for powdered chocolate found in point 2(c) of Part A of Annex I to the Chocolate Directive would establish the presumption that only the Czech-language version of that directive applies in that Member State. The Nejvyšší správní soud (Supreme Administrative Court) based that view on the equally binding nature of all language versions of EU legal acts, and rejected the idea that the labelling of chocolate products in the Czech Republic is governed exclusively by the Czech-language version of the Chocolate Directive.

32.      In essence, the Nejvyšší správní soud (Supreme Administrative Court) found that that idea would be in contravention of the Court’s case-law on equivalence of language versions and more importantly, the principle of free movement of goods and the purpose of harmonisation of the labelling of foods. It took the view that the very purpose of that harmonisation is to enable a producer or supplier to use the information it already states on its product in accordance with the Chocolate Directive merely by translating that information into a language understood by the consumers to whom the product is to be marketed.

33.      I do not agree with any of those views.

34.      First, in my view, the equivalence of the language versions of EU law manifestly does not mean that economic operators can pick whichever language version they please of a piece of secondary EU legislation, translate it as they see fit, and use that more or less faithful translation as if it was part of the official text of the relevant piece of EU legislation.

35.      As the Nejvyšší správní soud (Supreme Administrative Court) has observed, citing inter alia the Court’s judgment of 6 October 1982, Cilfit and Others (283/81, EU:C:1982:335, paragraph 18), the different language versions in which EU legislation is drafted are all equally authentic.

36.      Therefore, as the Court continued in that paragraph of Cilfit and Others, ‘an interpretation of a provision of [EU] law […] involves a comparison of the different language versions’. However, as the Court stated in paragraph 19 of that judgment, even where the different language versions are entirely in accord with one another, EU law uses terminology which is peculiar to it. Legal concepts do not necessarily have the same meaning in EU law and in the law of the various Member States. Finally, every provision of EU law must be placed in its context and interpreted in the light of the provisions of EU law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied.

37.      The language versions of an EU act are intended to be synonymous. Exceptionally, where those versions diverge, interpretational issues arise which must be resolved in order to maintain the uniform interpretation of EU law.

38.      Those issues cannot be resolved by recourse to any hierarchy of language versions or by following the majority of the versions. The Court therefore has consistently held that the provision in question in such a case must be interpreted by reference to the purpose and general scheme of the rules of which it forms part and that the wording used in one or more language versions of an act thus cannot serve as the sole basis for the interpretation of that act, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of EU law. (7)

39.      The principle of equal authenticity and the Court’s case-law concerning diverging language versions of EU legislative acts thus in no way supports a right for an economic operator to pick whichever language version of a given directive or regulation it may prefer and then to use its own translations of defined terms and designations found in that version as if those translated terms and designations were taken from the official version in the corresponding language.

40.      Moreover, permitting the use of one chosen language version of a defined term or designation as a basis for translations into other languages would be to give that version a higher rank than the other versions. Permitting all economic operators to make such choices and then to each translate their chosen versions at leisure would inevitably lead to enormous inconsistencies as each private economic operator could create its own set of language versions of those terms or designations. This is the antithesis to a uniform interpretation of EU law.

C.      No real issue of divergence of language versions

41.      In the present case, however, it is my view that no real issue of divergence between the language versions is present. There is disagreement as to what the text of the Food Information Regulation and the Chocolate Directive means or requires from an economic operator such as Tesco, but that disagreement is not caused by differing language versions of either of those legislative acts. Rather, the disagreement concerns whether an economic operator is required to use the designation of a particular compound ingredient as it is contained in the relevant language version of the secondary EU legislation defining it (here the Chocolate Directive) in the list of ingredients that it must provide pursuant to Article 9(1)(b) of the Food Information Regulation, or whether it may substitute its own translation of that designation from a different official language version of the Chocolate Directive into the language(s) required to be used for the ingredient list pursuant to Article 15 of the Food Information Regulation and treat that translation as if it carried the effects of the official version.

42.      There appears to be no disagreement between the parties as to the criteria a chocolate product has to satisfy in order for it to be covered by the designation ‘powdered chocolate’ or ‘čokoláda v prášku’, namely, in essence, that the ingredient must be composed of a mixture of sugar and cocoa powder containing at least 32% cocoa powder.

43.      The same is true for the pertinent provisions of the Food Information Regulation. No discrepancy in any language version has been brought to the attention of the Court during the proceedings as far as those provisions are concerned and a cursory reading of selected language versions (Bulgarian, Czech, Danish, English, French, German and Polish) reveal that they are all identical in meaning.

44.      The mere fact that different language versions have different designations for a given food is not a divergence of the language versions – it is a basic condition of multilingualism that a given item has different names or designations in different language versions. The fact that some language versions provide for two or three alternative designations for the same food and other language versions provide for only one does not in any way alter that.

45.      The factual circumstances at issue in the main proceedings, as described by the referring court in the order for reference, do not involve a situation where Tesco had used an official designation in one language and then encountered another language version of the relevant provision of EU law with a different meaning. What Tesco did was to substitute a defined term for a particular designation in a given language (Czech) with a term of its own invention, which it had derived from a (more or less faithful) literal translation into Czech of one or more defined terms for that particular designation in one or two other language versions.

46.      The question referred therefore does not concern differing language versions, but whether the use of a particular defined term is required for a particular purpose under the relevant provisions of EU legislation.

47.      The answer to that question, in my view, follows from the interpretation of the text of the provisions at issue, the context of those provisions, and the objectives pursued by the EU legislature through those provisions as well as the general scheme of the rules of which those provisions form part.

D.      A textual interpretation of the Food Information Regulation and the Chocolate Directive

1.      Is the use of the designation čokoláda v práškuin a list of ingredients mandatory for the description, in Czech, of a compound ingredient that qualifies as powdered chocolate?

48.      Article 18(1) of the Food Information Regulation requires that the list of ingredients ‘include all the ingredients of the food, in descending order of weight …’. Article 18(2) of that regulation states that the ‘ingredients shall be designated by their specific name, where applicable, in accordance with the rules laid down in Article 17 …’. Article 17(1) of that regulation in turn provides that ‘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’.

49.      Article 17(1) of the Food Information Regulation thus establishes a clear hierarchy according to which the legal name of the food has to be given preference and according to which a customary or descriptive name only can be used in the absence of a legal name for the food in question.

50.      Article 2(2)(n) of the Food Information Regulation provides a definition of ‘legal name’ that contains its own hierarchy. The legal name of a food is the name prescribed in the Union provisions applicable to it. Only in the absence of such Union provisions is the legal name of the food the name provided in the laws, regulation and administrative provisions applicable in the Member State where the food is sold to the final consumer.

51.      According to Tesco’s answer to the Court’s questions for written response, the compound ingredient in the Monte products at issue is composed of ‘cocoa’ and sugar with a minimum of 32% cocoa and ‘completely satisfies the exigencies of the directive’. I take this to mean that ‘cocoa’ qualifies as powdered cocoa, as defined in point 2(a) of Part A of Annex I to the Chocolate Directive, and that the compound ingredient included in the Monte products at issue indeed satisfies the requirements for designation as powdered chocolate within the meaning of that directive.

52.      That means that the compound ingredient has a legal name in Czech within the meaning of the Food Information Regulation, based on the first prong of the definition contained in Article 2(2)(n) of that regulation. That legal name is the designation given in point 2(c) of Part A of Annex I to the Chocolate Directive, namely ‘čokoláda v prášku’.

53.      In contrast, ‘čokoládový prášek’ does not appear to have any official meaning in an EU legal context. None of the parties to the proceedings before the Court has brought any such official meaning of that expression to the attention of the Court, and I am not aware of any other element that would permit it to qualify as a legal name for the compound ingredient in question on the basis of the first prong of the definition contained in Article 2(2)(n) of the Food Information Regulation. A text search on EUR-Lex, the official online database for EU legal documents (https://eur-lex.europa.eu/advanced-search-form.html), on ‘čokoládový prášek’ with Czech as the search language provides zero hits, whereas a similar search on ‘čokoláda v prášku’ provides 12 hits. (8) No Czech legal definition of ‘čokoládový prášek’ has been brought to the attention of the Court by any of the parties during the proceedings. In any event, a Czech legal definition of ‘čokoládový prášek’, if such a definition existed, would not qualify as a ‘legal name’ for purposes of the Food Information Regulation, since such a name – namely ‘čokoláda v prášku’ – exists for the product at issue on the basis of EU legislation. The second prong of the definition of ‘legal name’ in Article 2(2)(n) of the Food Information Regulation therefore does not come into play.

54.      It is therefore my view that a textual analysis of the relevant provisions of the Chocolate Directive and the Food Information Regulation lead to the conclusion that the use of the designation ‘čokoláda v prášku’ in the list of ingredients of a food is mandatory for a description in Czech of a compound ingredient that qualifies as powdered chocolate under the criteria set out in point 2(c) of Part A of Annex I to the Chocolate Directive.

55.      That conclusion is further supported by Article 3 of the Chocolate Directive, which provides that Directive 79/112 (9) shall apply to the products defined in Annex I of the Chocolate Directive (powdered chocolate being one of those products), subject to the condition, inter alia, that ‘the sales names listed in [that] Annex […] must be used in trade to designate them’. That conclusion is valid, in my opinion, whether a list of ingredients is supplied for that compound ingredient or not.

2.      Is a list of ingredients required for powdered chocolate if that compound ingredient is given the designationčokoládovýprášek in a list of ingredients in Czech?

56.      Annex VII to the Food Information Regulation contains a Part E with the heading ‘Designation of compound ingredients’. Point 1 of that part permits the inclusion of a compound ingredient in the list of ingredients ‘in so far as [the designation of the compound ingredient] is laid down by law or established by custom’ and its mention in that list is ‘immediately followed by a list of its ingredients’. Point 2 of the same part provides that the list of ingredients shall not be compulsory where ‘the composition of the compound ingredient is defined in current Union provisions’ and the compound ingredient constitutes less than 2% of the finished product.

57.      In the case before the Court, no list of ingredients of the compound ingredient was provided and a designation other than the legal name of the compound ingredient was used. Even if the Court were to disagree with my analysis in points 48 to 55 of this Opinion and take the view that the use of the designation ‘čokoládový prášek’ for powdered chocolate was permissible in a list of ingredients in Czech, the omission of the list of ingredients for that compound ingredient would only be permissible if the composition of ‘čokoládový prášek’ was ‘defined in current Union provisions’. (10)

58.      Although the physical ingredient described in the list of ingredients for the Monte products at issue by the expression ‘čokoládový prášek’ purportedly met the criteria for powdered chocolate, no definition of any food or food ingredient appears to be associated with the expression ‘čokoládový prášek’.

59.      In those circumstances, it is my view that the omission of a list of ingredients for the compound ingredient powdered chocolate, when that ingredient is labelled ‘čokoládový prášek’, is an infringement of EU food information law as set out in the Food Information Regulation.

E.      Objectives, context and scheme

60.      In my view, the objectives of the Food Information Regulation and the Chocolate Directive offer further support for that interpretation.

1.      The objectives of the Food Information Regulation

61.      The Food Information Regulation, the legal basis of which is Article 114 TFEU, pursues the dual objectives of assuring a high level of consumer protection in relation to food information and ensuring the smooth functioning of the internal market. In doing so, that regulation takes into account the differences in the perception of consumers and their information needs. (11)

62.      In that respect, one of the objectives pursued by the Food Information Regulation is to provide a basis for the final consumer for making informed choices. (12) That regulation therefore seeks to ensure that the final consumer easily understands the information provided on the labelling. (13) Concerning the languages used in labelling, Article 15(1) of the Food Information Regulation provides that mandatory food information, including lists of ingredients, are to appear in a language easily understood by the consumers in the Member State where the food is marketed.

63.      A consumer who encounters a list of ingredients containing an undefined term in place of the proper designation for a given compound ingredient cannot know what that compound ingredient consists of, unless a list of ingredients is provided for it. Even if a list of ingredients is provided for the compound ingredient, it is only where that list provides information regarding the proportions of the ingredients of the compound ingredient that is comparable to the information contained in the definition of the designation that the consumer is comparably informed. In the present case, not only was the proper designation not used, but also no list of ingredients was provided for the compound ingredient at issue. The consumer was therefore not in a position to understand the content of the Monte products at issue, let alone to do so easily. An interpretation of the Food Information Regulation permitting that result would not serve the objective of consumer protection.

2.      The objectives of theChocolate Directive

64.      The Chocolate Directive repealed and replaced Directive 73/241/EEC. (14) That earlier directive was designed to lay down definitions and common rules in respect, inter alia, of the composition and labelling of cocoa and chocolate products so as to ensure their free movement within the European Union. The Chocolate Directive in part amends that earlier directive to take account, inter alia, of technological progress and to bring definitions and rules into line with general EU food legislation, including legislation on labelling.

65.      The Chocolate Directive in that respect made Directive 79/112 (the predecessor legislation to the Food Information Regulation) applicable to cocoa and chocolate products ‘in order to provide consumers with correct information’, and it makes the use of the sales names listed in Annex I mandatory in trade for the designation of the products referred to in that annex. (15) An interpretation that permits a plethora of private translations would be manifestly contrary to those objectives.

3.      Is the use of the designation čokoládovýprášekmisleading to consumers?

66.      Article 7(1)(a) of the Food Information Regulation sets out the principle that food information must not be misleading as to the properties and composition of the food.

67.      This raises the question whether the use of the expression ‘čokoládový prášek’, in particular without a list of ingredients for the compound ingredient so designated, could be considered to be misleading to consumers. Whereas the determination of this question is in part a factual issue that it is eventually incumbent on the referring court to adjudicate upon, I believe the Court may be able to provide some useful guidance.

68.      There are at least two ways consumers could be misled by the use of a designation other than the legal name in Czech for powdered chocolate. Consumers could (i) be misled into believing that the ingredient was composed of something other than its real components or that the proportions of those ingredients were different from the actual composition of the compound ingredient, and consumers could (ii) be misled into believing that the finished product’s content of that ingredient (the percentage amount of it in the finished product) was other (higher) than it actually was.

69.      The expression ‘čokoládový prášek’ would appear to mean something akin to ‘powder of chocolate’. However, there is no chocolate in powdered chocolate as that product is defined in point 2(c) of Part A of Annex I to the Chocolate Directive. The product so designated – the ingredient at issue in the main case – is composed of sugar and cocoa powder, mostly sugar. It does not consist of finely ground chocolate, as the name would suggest. The potential for misleading consumers is only exacerbated by the requirement of Annex VI, Part A, point 1, of the Food Information Regulation pursuant to which the name of the food shall include or be accompanied by particulars as to the physical condition of the food or the specific treatment it has undergone (such as, specifically, ‘powdered’).

70.      One may well counter that that argument also applies to the designation ‘čokoláda v prášku’. That designation could also indicate that the product in question is composed of chocolate that had been given some form of mechanical treatment. (16)

71.      The determinative difference between Tesco’s designation ‘čokoládový prášek’ and the official designation ‘čokoláda v prášku’, apart from the legal requirement that the latter is to be used, as discussed in points 48 to 55 of this Opinion, is that the latter has a defined meaning and the former does not. A consumer, a consumer organisation, or even the public food authorities cannot know, based on the designation ‘čokoládový prášek’, the supposed composition of that compound ingredient. Only Tesco and its supplier can know that.

72.      Whether the term is a precise description or not, ‘čokoláda v prášku’ has a clearly defined meaning in EU food information law, which any person can research in the Chocolate Directive. Whilst it may seem surprising that ‘čokoláda v prášku’ is composed of cocoa powder and sugar rather than chocolate and it may even seem objectionable that a product required to contain only at least 6.4% of cocoa butter should be allowed to be called ‘powdered chocolate’ or ‘chocolate in powder’ (emphasis added), when the minimum required cocoa butter content in chocolate is 18%, (17) the meaning of ‘čokoláda v prášku’ is well defined, whereas ‘čokoládový prášek’ appears to have no independent meaning or specific definition under EU law.

73.      Whether a Czech consumer would indeed be misled by the use of the Czech expression ‘čokoládový prášek’ for the compound ingredient at issue without a specification of its composition in a list of ingredients is a factual matter that is for the referring court to decide.

4.      Internal market concern

74.      The referring court indicates in the order for reference that the Nejvyšší správní soud (Supreme Administrative Court) in part based its decision on internal market concerns.

75.      I do not agree that the internal market access for economic operators would be hindered unless such economic operators were allowed to use their own translations of food ingredient designations. On the contrary, the harmonisation of sales names and rules on labelling serves the purpose of guaranteeing the single nature of the internal market. (18)

76.      The Food Information Regulation serves at least two major objectives, one of which is to protect the consumers in the European Union through common rules regarding food information, and the other of which is to ensure the smooth functioning of the internal market. (19) Indeed, the Food Information Regulation was enacted on the basis of Article 114 TFEU.

77.      As regards the Chocolate Directive, the free movement of chocolate products within the common market is predicated on the existence of common rules and a standardised terminology that ensures a high level of consumer protection throughout the internal market. (20)

78.      The Food Information Regulation pursues both of those objectives by providing common standards for food information and by providing common designations for various foods by means of the integration of terms derived from other secondary EU legislation such as the Chocolate Directive.

79.      That system provides a standardised, easily accessible set of rules and designations that economic operators in the European Union can – and must – use when marketing foods in the EU, thereby improving substantially their ease of market access. The system thus put in place substantially eases the cross-border marketing of food in the European Union compared to any feasible alternative.

80.      There is to my mind no credible reason why using the designation provided by the Chocolate Directive, as required pursuant to the Food Information Regulation, should be considered any more burdensome for an economic operator such as Tesco than for it to invent its own term for the same product.

IV.    Conclusion

81.      In light of the foregoing considerations, I propose that the Court should reply as follows to the question referred by the Krajský soud v Brně (Regional Court, Brno, Czech Republic):

A compound ingredient with a designation pursuant to 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 must, in accordance with Article 18(1) and (2) of 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, read in conjunction with Article 17(1) of that regulation, be listed in a list of ingredients of the food product of which it is a part by that designation, which pursuant to Article 2(2)(n) of Regulation No 1169/2011 is also its legal name. That name must be provided in the language required pursuant to Article 15 of Regulation No 1169/2011.

The list of ingredients for such a compound ingredient may only be omitted, in accordance with point 2(a) of Part E of Annex VII to Regulation No 1169/2011, where that designation is used for the compound ingredient in the list of ingredients for the marketed food product.


1      Original language: English.


2      Directive 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).


3      Regulation 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).


4      Council Directive of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (OJ 1979 L 33, p. 1). Directive 79/112 was repealed and replaced by Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000 L 109, p. 29), which in turn was repealed and replaced by the Food Information Regulation. References to Directive 79/112 are to be construed as references to Directive 2000/13 and references to Directive 2000/13 are to be construed as references to the Food Information Regulation.


5      Monte, mléčný dezert čokoládový s lískovými oříšky (chocolate milk dessert with hazelnuts) 220 g, Monte mléčný dezert čokoládový (Monte chocolate milk dessert) 100 g, and Monte drink mléčný nápoj čokoládový s lískovými oříšky (Monte drink chocolate milk drink with hazelnuts) 200 ml.


6      Judgment of 5 October 2010, Elchinov (C‑173/09, EU:C:2010:581, paragraphs 25 to 26 and 29 to30). See also judgment of 9 September 2021, Dopravní podnik hl. m. Prahy (C‑107/19, EU:C:2021:722, paragraph 46).


7      See, to that effect, judgment of 20 February 2018, Belgium v Commission (C‑16/16 P, EU:C:2018:79, paragraphs 49 to 50 and the case-law cited).


8      Those hits include, apart from the Chocolate Directive, Regulation (EU) 2016/792 of the European Parliament and of the Council of 11 May 2016 on harmonised indices of consumer prices and the house price index, and repealing Council Regulation (EC) No 2494/95 (OJ 2016 L 135, p. 11), and Commission Regulation (EU) 2015/1163 of 15 July 2015 implementing Regulation (EC) No 1445/2007 of the European Parliament and of the Council as regards the list of basic headings used for Purchasing Power Parities (OJ 2015 L 188, p. 6).


9      As mentioned in footnote 5, references to Directive 79/112 now are to be construed as references to the Food Information Regulation.


10      Point 2(a) of Part E of Annex VII to the Food Information Regulation.


11      Article 1(1) of the Food Information Regulation.


12      See Article 3(1) of the Food Information Regulation and recitals 3, 4 and 37 of that regulation. See also judgment of 12 November 2019, Organisation juive européenne and Vignoble Psagot (C‑363/18, EU:C:2019:954, paragraph 53).


13      See, concerning the use of the term ‘salt’ instead of the term ‘sodium’ on the labelling, recital 37 to the Food Information Regulation.


14      Council Directive of 24 July 1973 on the approximation of the laws of the Member States relating to cocoa and chocolate products intended for human consumption (OJ 1973 L 228, p. 23). See Article 7 of the Chocolate Directive.


15      Recital 8 to the Chocolate Directive and Article 3(1) thereof.


16      The same argument applies for the official designations in Bulgarian, Danish, English, French, German and Polish. Only the last two of the three alternative Dutch designations ‘Chocoladepoeder, gesuikerd cacaopoeder, gesuikerde cacao’ seem adequately to describe the product.


17      ‘Chocolate’ and ‘powdered chocolate’ designate two different compound ingredients each with their distinct definition. ‘Chocolate’, as defined in point 3(a) of Part A of Annex I to the Chocolate Directive (‘čokoláda’ in Czech), ‘designates the product obtained from cocoa products and sugars which, subject to (b), contains not less than 35% total dry cocoa solids, including not less than 18% cocoa butter and not less than 14% of dry non-fat cocoa solids’. ‘Cocoa powder’ or ‘cocoa’, as defined in point A of Annex I to the Chocolate Directive (‘kakaový prášek’ or ‘kakao’ in Czech), ‘designate the product obtained by converting into powder cocoa beans which have been cleaned, shelled and roasted, and which contains not less than 20% cocoa butter, calculated according to the weight of the dry matter, and not more than 9% water’. By implication, the minimum permissible percentage of cocoa butter in ‘powdered chocolate’ is 6.4% (powdered chocolate must consists of at least 32% of cocoa powder, which in turn must contain no less than 20% of cocoa butter based on the dry matter weight).


18      See recital 7 to the Chocolate Directive.


19      See Article 1(1) of the Food Information Regulation.


20      See, in that connection, recitals 3, 4 and 7 to the Chocolate Directive.