Case C-113/15, Breitsamer – individual portions of honey with no country of origin, Pooh cares [judgment 2016, ECLI:EU:C:2016:718]

Honey, marmalade or mustard are frequently available in individual portions. Does EU law require them to indicate the product’s country of origin?

Background
Breitsamer and Ulrich is a company that sells honey. Its customers can buy it by the box. Or rather, they can buy it by the carton containing 120 individual portions of honey.

The legal dispute arises from the fact that the labelling on the outer packaging indicates how much honey is in an individual portion and the honey’s country of origin; however, on the individual portions themselves, there is no mention of the country of origin. Is that lack of information legal?

There are two pieces of EU legislation which are relevant to the dispute. The first is 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] L109/29).

Article 1 of the Directive provides:

1. This Directive concerns the labelling of foodstuffs to be delivered as such to the ultimate consumer and certain aspects relating to the presentation and advertising thereof.

2. This Directive shall apply also to foodstuffs intended for supply to restaurants, hospitals, canteens and other similar mass caterers (hereinafter referred to as “mass caterers”).

3. For the purpose of this Directive,
(a) “labelling” shall mean any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on any packaging, document, notice, label, ring or collar accompanying or referring to such foodstuff;

(b) “pre-packaged foodstuff” shall mean 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, whether 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.

Thus, the labelling obligation applies to foodstuffs for consumers and mass caterers.

The second piece of EU legislation is Regulation (EU) No 1169/2011 on the provision of food information to consumers (OJ [2011] L304/18).

Article 2 of the Regulation provides:

Definitions
2. The following definitions shall also apply:
(a) “food information” means information concerning a food and made available to the final consumer by means of a label, other accompanying material, or any other means including modern technology tools or verbal communication;

(b) “food information law” means the Union provisions governing the food information, and in particular labelling, including rules of a general nature applicable to all foods in particular circumstances or to certain categories of foods and rules which apply only to specific foods;

(c) “mandatory food information” means the particulars that are required to be provided to the final consumer by Union provisions;

(d) “mass caterer” means any establishment (including a vehicle or a fixed or mobile stall), such as restaurants, canteens, schools, hospitals and catering enterprises in which, in the course of a business, food is prepared to be ready for consumption by the final consumer;

(e) “prepacked food” means any single item for presentation as such to the final consumer and to mass caterers, consisting of a food and the packaging into which it was put before being offered for sale, whether such packaging encloses the food completely or only partially, but in any event in such a way that the contents cannot be altered without opening or changing the packaging; “prepacked food” does not cover foods packed on the sales premises at the consumer’s request or prepacked for direct sale;

In view of this legislation, Breitsamer and Ulrich submit that their individual portions of honey are not subject to the labelling requirements. The reason is simply that the portions are not being offered for sale as a single item. In that context, they also note that a working group, comprising of representative experts from the Member States, had also stated that individual portions of foodstuffs (such as marmalade, honey, or mustard) were not to be treated as if they were ‘a single item’. Those experts had concluded that the labelling requirement applies to the packaging that surrounds the individual items.

Furthermore, the company also felt that it was being made an example of. There were smaller companies, and companies based in other Member States, who were also producing individual portions of honey that did not indicate country of origin but they had not come in for criticism from the inspectorate.

That view was not shared by the Bavarian inspectorate, which observed that it was a principle of food labelling that consumers should be provided with complete and detailed information about the food being offered to them. Furthermore, that principle would be successively drained of legal effect in circumstances where the individual portions would remain ‘pre-packaged food’ but could be repeatedly repackaged in bulks of ever-greater size. If Breitsamer and Ulrich were right, then it would suffice for the country of origin only to be indicated on the outermost layer of the packaging.

Questions Referred
According to the Curia website, the Bayerischer Verwaltungsgerichtshof has asked:

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 final consumers nor supplied individually to mass caterers, ‘prepackaged foodstuff’ or ‘prepacked food’ within the meaning of Article 1(3)(b) of Directive 2000/13/EC […] and Article 2(2)(e) of Regulation (EU) No 1169/2011 […] respectively, for which there is a corresponding labelling requirement, or are such portions of honey not subject to the labelling requirements for prepackaged foodstuff/prepacked foods due to their not being offered for sale as a single item?

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?