Opinion of the Advocate General — ECLI:EU:C:2020:1008
Date: 2020-12-09
Language of the case: German
Subject matter: Agriculture and Fisheries;Foodstuffs;Consumer protection
Procedure: Reference for a preliminary ruling
Origin: Germany

summary report of the 45th meeting of the ‘legislation’ working group and of the 
REQUEST FOR A PRELIMINARY RULING OF 5  9. 2019 — CASE C-815/19 
 
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standing committee on organic farming of 29-30 March 1999 
<G/pesiticid/almud/ab99/29marrep>) — also has no basis in current law. 
Article 28 of Regulation (EC) No 889/2008 does not provide for such a restriction 
in respect of ingredients of agricultural origin. 
16 Finally, the opinion of the European Commission of 30 March 2015 (Ref. 
Ares(2015)1395950) submitted by the applicant militates in favour of applying 
point 1.3 of Annex IX to Regulation (EC) No 889/2008. In that opinion, the 
Deputy Director-General of the Directorate-General for Agriculture and Rural 
Development confirms that Lithothamnium comes under point 1.3 of Annex IX to 
Regulation (EC) No 889/2008. 
17 However, it appears to be uncertain whether and to what extent algae fulfil the 
requirements for authorisation pursuant to Article 19(2) of Regulation (EC) 
No 834/2007 that are referred to in Article 21(1)(ii) of Regulation (EC) 
No 834/2007. It is not clear that, without having recourse to the use of algae, it 
would be impossible to produce or preserve the food or to fulfil dietary 
requirements provided for by EU legislation. However, this is likely to be the case 
for a large number of the ingredients listed in Annex IX to Regulation (EC) 
No 889/2008. 
18 3. The court which dealt with the appeal on the merits takes the view that, in 
any event, the dead remains of the alga Lithothamnium calcareum or parts thereof 
can no longer be regarded as [Or. 8] an agricultural ingredient within the meaning 
of point 1.3 of Annex IX to Regulation (EC) No 889/2008. In this respect, there is 
no plant product; in view of the fact that the post-mortem constituents consist 
almost exclusively of calcium carbonate and magnesium carbonate, as well as a 
number of trace elements, these ingredients must instead be classified as minerals. 
19 The fact that Lithothamnium is listed as a feed material ‘of mineral origin’ in 
point 1 of Annex V to Regulation (EC) No 889/2008 militates in favour of such a 
classification. Although that provision relates to the law governing feed, it may 
nevertheless, irrespective thereof, militate in favour of the classification of 
Lithothamnium as a mineral. The lack of a corresponding category in Annex IX to 
Regulation (EC) No 889/2008 would therefore also be plausible: in principle, the 
addition of minerals in the manufacture of a foodstuff is not permitted. 
20 The fact that even a dead alga remains an ingredient of agricultural origin 
militates against such an understanding. It is not clear why an alga should lose its 
agricultural origin and become a mineral because it has died. Thus, if an alga 
harvested while it is alive is regarded as an agricultural ingredient irrespective of 
its calcium content, this must also apply, in principle, to dead algae. The court 
dealing with the appeal on the merits did not establish that ‘calcification’ — the 
high degree of enrichment with calcium carbonate — only occurs at a later point 
in time, on account of an (inorganic) process following the death of the alga. That 
is also not the case according to the expert opinions submitted by the applicant. 
NATUMI 
 
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21 In any event, the classification of Lithothamnium in the rules on feed production 
does not allow any direct conclusions to be drawn as to the delineation within the 
differentiation for food laid down in Article 19 of Regulation (EC) No 834/2007. 
Not only do the rules relate to different subject matter, the system underlying the 
provisions is also structured differently. Article 22 of Implementing Regulation 
(EC) No 889/2008 makes provision for the listing procedure under Annex V to 
Regulation (EC) No 889/2008 for materials of both plant and mineral origin. 
Unlike [Or. 9] in the case of the processing of food pursuant to Article 19 of 
Regulation (EC) No 834/2007, differentiation does not therefore result in a 
different authorisation regime. On the contrary: pursuant to Article 22(2) of 
Regulation (EC) No 889/2008, the permissibility of materials of mineral origin 
listed in Annex V is not subject to any further requirements; they are therefore 
even privileged over materials of plant origin. This classification is not 
transferable in respect of food production pursuant to Article 19 of Regulation 
(EC) No 834/2007, in which, on the contrary, minerals are in principle not 
permitted (cf. Article 27(1)(f) of Regulation (EC) No 889/2008). 
22 However, such differentiation is not provided for in respect of food production in 
Annex IX to Regulation (EC) No 889/2008. Although the legislature was aware of 
the high calcium content of Lithothamnium, as evidenced by the rules pertaining 
to feed law, algae are in fact named without Lithothamnium calcareum being 
excluded. If the provision should nevertheless contain restrictions in this respect, 
this is in any event not evident without there being doubts surrounding the 
required certainty of such a provision. 
23 Finally, doubts surrounding a restrictive understanding of the list in point 1.3 of 
Annex IX to Regulation (EC) No 889/2008 arise in light of the purpose of the 
provision. If the alga Lithothamnium calcareum in its living form already has a 
high calcium content on account of the cell wall calcification that characterises it, 
it is not clear why only the dead alga should no longer be regarded as an 
agricultural ingredient precisely because of that mineral content. 
24 4. Finally, it is questionable whether, if it were to meet the requirements for 
organic labelling, the applicant’s product may be provided with indications 
referring to calcium. 
25 Pursuant to the second subparagraph of Article 23(2) of Regulation (EC) 
No 834/2007, all terms and practices used in labelling or advertising that are 
misleading in relation to the provisions of that regulation are impermissible. This 
militates in favour of [Or. 10] regarding indications referring to calcium in the 
packaging design or in the product name of an organic drink as being 
impermissible. Pursuant to Article 19(2)(b) of Regulation (EC) No 834/2007 in 
conjunction with Article 27(1)(f) of Regulation (EU) No 889/2008, minerals must 
not in principle be added to organic foodstuffs; their use is permitted only under 
restricted conditions, which are not satisfied in the present case. Laudatory 
advertising using the term ‘calcium’, and thus a mineral, is therefore misleading in 
relation to the provisions of Regulation (EC) No 834/2007. 
REQUEST FOR A PRELIMINARY RULING OF 5  9. 2019 — CASE C-815/19 
 
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26 The fact that the indication is factually correct militates against such a prohibition. 
Since the ingredient used in a permissible manner has a high calcium content, the 
indication referring to calcium is not misleading in itself. In this respect, it 
therefore appears to be conceivable that reference is made to the authorised 
agricultural ingredient, such as the indication ‘contains calcium-rich sea alga’ 
used by the applicant. 
27 5. The present Chamber is inclined to take the view that the use of the ground 
remains of dead algae of the species Lithothamnium calcareum in the production 
of organic foodstuffs has been authorised by Article 19(2)(c) of Regulation (EC) 
No 834/2007 in conjunction with Article 28 and point 1.3 of Annex IX to 
Regulation (EC) No 889/2008; on the other hand, it considers that the promotion 
of such products by referring to calcium, and thus a mineral, is not permitted. 
28 However, the aforementioned questions on the interpretation of Regulation (EC) 
No 834/2007 and Regulation (EC) No 889/2008, which have a crucial bearing on 
the decision to be taken in the present case, cannot be answered with sufficient 
certainty by reference to the relevant provisions and the existing case-law of the 
Court of Justice of the European Union. They must therefore be referred to the 
Court of Justice of the European Union by way of a ruling on a request for a 
preliminary ruling — particularly in view of the questions arising in an identical 
manner in other Member States (see CJEU, judgment of 6 October 1982 
[Or. 11] — 283/81 [ECLI:EU:C:1982:335], C.I.L.F.I.T. — paragraph 21 […]). 
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