This article was written by FratiniVergano – European Lawyers and published on Trade Perspectives© (Issue No. 3 of 14 February 2022).
On 13 January 2022, the Court of Justice of the European Union (hereinafter, CJEU) delivered its judgment in Case C-881/19, Judgment of the Court (Fifth Chamber) of 13 January 2022 Tesco Stores ČR a.s. v Ministerstvo zemědělství (Ministry of Agriculture, Czech Republic), in a request for a preliminary ruling from the Regional Court, Brno, Czech Republic, concerning the use of the name of the compound ingredient ‘chocolate powder’ in the mandatory list of ingredients, required by Article 9 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 (hereinafter “FIR”) for food marketed in a Member State. Article 2(h) of the FIR states that
“compound ingredient means an ingredient that is itself the product of more than one ingredient”.
The judgment involving the description of chocolate powder in food products sold in stores in the Czech Republic illustrates the potential danger of certain translations carried out by food business operators.
Facts, procedure, and the question referred to the CJEU
The Tesco-Group is a multinational retailer established in the United Kingdom, which operates, inter alia, supermarkets in the Czech Republic. Its Czech subsidiary, Tesco Stores CR a.s. (hereinafter, Tesco) marketed certain food items under the brand name ‘Monte’ in its Czech stores. The products at issue were labeled with an ingredient list, which listed ‘Cokoládový prášek’ and which, according to the CJEU’s Advocate General’s opinion
“would, freely translated, have a meaning akin to ‘powder of chocolate’ in English”,
without further specifying the ingredients from which that compound ingredient was made.
On 27 May 2016, the Brno Inspectorate of the Czech Agriculture and Food Inspection Authority ordered Tesco to recall those products from the Czech market because their list of ingredients
“included the term ‘Cokoládový prášek’ without an itemized 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”.
The Czech Agriculture and Food Inspection Authority prohibited the further placement of those products on the market and stated that
“it follows from point 2(c) of part A of Annex I to Directive 2000/36 that the term ‘Cokoláda v prášku’ (‘chocolate powder’) must be used in Czech and not the expression ‘Cokoládový prášek’ (‘chocolate in powder form’)”.
In fact, Tesco had used its own translation into Czech, namely ‘?okoládový prášek’, of the Polish and/or German official language versions of the designation for those products, rather than the designation provided in the Czech-language version of 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 (hereinafter, Chocolate Directive), namely ‘Cokoládový prášek’.
After objecting against those measures and after several administrative and judicial instances, the Regional Court Brno, to which the case was referred back from the Supreme Administrative Court of the Czech Republic, submitted a request for a preliminary ruling and asked the CJEU 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 labeled precisely in line with the Czech language version of Annex I to Directive 2000/36/EC?”.
The applicable food information rules
The rules applicable in this case are set out in the Chocolate Directive and in the FIR. Annex I to the Chocolate Directive on ‘Sales names, definitions and characteristics of the products’, provides, under Part A, in point 2, that:
“…(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; …”.
The Czech-language version of that provision contains the single designation ‘?okoláda v prášku’ for that same product. It must be noted that some language versions, such as the English-language versions, permit the use of two (‘powdered chocolate’ and ‘chocolate in powder’) or even three (the Dutch-language version lists ‘chocoladepoeder’, ‘gesuikerd cacaopoeder’, and ‘gesuikerde cacao’) different expressions for powdered chocolate.
Language requirements are set out in Article 15 of the FIR, which ‘provides that:
‘1. […] mandatory food information shall appear in a language easily understood by the consumers of the Member States where a food is marketed […]”.
Article 17 of the FIR on ‘Name of the food’ states that:
“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 […]”.
“Legal name” is defined in Article 2(n) of the FIR as
“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; […]”.
Article 18 of the FIR on the ‘List of ingredients’ provides that:
“1. The list of ingredients […] 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”.
Part E of Annex VII to the FIR on ‘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”.
The CJEU’s judgment
The request for a preliminary ruling concerned whether a compound ingredient listed in Annex I to the Chocolate Directive may only be listed among the ingredients of the product, without a precise specification of its composition, if that compound ingredient is labeled precisely in line with the Czech language version of Annex I to the Chocolate Directive.
The CJEU essentially based its decision on three matters. First, the term ‘chocolate powder’ in the Annex to the Chocolate Directive constitutes a ‘legal name’ within the meaning of Article 2(2)(n) of the FIR, which is required by the EU legislation applicable to that foodstuff. In accordance with Articles 17 and 18 of the FIR, such designation must be used throughout the territory of the EU. Under Article 15(1) of the FIR, that name must appear on the food in a language easily understood by consumers in the EU Member State in which that food is marketed.
Second, the Court held that it is only permissible not to list the ingredients contained in a compound ingredient, such as that at issue in the main proceedings, provided that the compound ingredient is indicated by a name provided for it by EU legislation and in a language easily understood by the consumers of the EU Member State in which the food is marketed.
In the third place, the Court examined whether the exception provided for in point 2(a) of Part E of Annex VII to the FIR may also apply to a situation such as that at issue in the main proceedings, in which the economic operator does not use the name of the compound ingredient as contained in the Czech language version of Annex I to the Chocolate Directive, but instead uses its own translation into Czech of the name of that ingredient, as contained in the other language versions of Annex I. In this regard, the CJEU refers to the Advocate General’s observations in his Opinion that consumers cannot, on the basis of such free translations, identify with certainty the composition of such a compound ingredient by simply reading its reference in the list of ingredients of the food in which it is contained. The CJEU held that in the present case, it should be noted that only the term ‘Cokoláda v prášku’ (‘chocolate powder’) was precisely defined in Annex I to the Chocolate Directive, while the expression ‘Cokoládový prášek’ (‘chocolate in powder form’) was not defined in EU law.
The main take-aways from the case
According to the judgment of the CJEU, food manufacturers may only list a compound ingredient among the ingredients of the product, without a precise specification of its composition, if that compound ingredient is labeled in the precise language version of EU legislation relevant for the EU Member State concerned.
Tesco’s mistake was not having used the correct compound ingredient name, namely ‘Cokoláda v prášku’, and has replaced it with its own translation into Czech of the name of that ingredient in other language versions of the Chocolate Directive, such as the German language version (‘Schokoladenpulver’) and the Polish language version (which bear the designations ‘proszek czekoladowy’ and ‘czekolada w proszku’). Such mistakes can, in fact, easily occur using, for example Google translations of the German term or of the Polish terms. The result is actually never the term ‘cokoláda v prášku’ of the Czech language version used in the Chocolate Directive, but the term ‘Cokoládový prášek’ or even ‘prášková cokoláda’. This shows that a correct translation may not always be compliant, and that appropriate regulatory translation requires the proper identification of an ingredient under the applicable laws. Therefore, it may not be sufficient to translate food labels and ingredients lists by means of machine translators, or by native speakers without a regulatory background.
As often, there are important considerations made in the Advocate General’s opinion. Notably, in the context of translations of diverging language versions, it states that:
“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”.
Moreover, the Advocate General argues that
“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”.
Conclusions
The Krajský soud v Brně (Regional Court, Brno, Czech Republic) now needs to deliver its judgment in the main proceeding, following the guidance from the CJEU. Food business operators are recommended to exercise great diligence when translating names of ingredients, as they must be aware of their legal names, in particular in cases where specific names exist in EU legislation, such as in the Chocolate Directive.
This article was written by FratiniVergano – European Lawyers and published on Trade Perspectives© (Issue No. 3 of 14 February 2022).