Opinion of the Advocate General — ECLI:EU:C:2021:830
Date: 2021-10-06
Language of the case: Czech
Subject matter: Agriculture and Fisheries;Foodstuffs;Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Czechia

Summary C-881/19 — 1 
Case C-881/19 
Summary of a request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
4 December 2019 
Referring court:  
Krajský soud v Brně (Česká republika) — Regional Court in Brno 
(Czech Republic) 
Date of the decision to refer: 
25 October 2019 
Applicant:  
Tesco Stores ČR a.s. 
Defendant:  
Ministry of Agriculture  
  
Background to the main proceedings  
The subject of the main proceedings is a dispute in which the applicant challenges 
the decision of the defendant that, by using the term ‘chocolate powder’ instead of 
the term ‘powdered chocolate’, as specified in Directive 2000/36/EC, 1 the 
applicant placed into circulation an inadequately or illegally labelled food, thereby 
breaching applicable national legal provisions. 
Question referred  
Should the rule set out in point 2(a) of part E of Annex VII to Regulation 
[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? 
EN 
SUMMARY OF A REQUEST FOR A PRELIMINARY RULING — CASE C-881/19 
 
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The provisions of primary law cited  
Article 9(1)(b) and Article 18(1) and (4) of Regulation (EU) No 1169/2011 and 
point (2)(a) of part E of Annex VII thereto  
Article 3(1) of Directive 2000/36/EC and point 2(c) of part A of Annex I thereto 
Relevant national law  
Pursuant to Paragraph 11(2)(a), point 3, of Zákon č. 110/1997 (Law 
No 110/1997) 2 an operator of a food enterprise shall remove from circulation, 
without delay, insufficiently or incorrectly labelled food. 
Brief presentation of the facts and main proceedings  
1 The Státní zemědělská a potravinářská inspekce (inspektorát v Brně) (Czech 
Agriculture and Food Inspection Authority, Brno Inspectorate) ordered, on 
27 May 2016: (i) that the applicant’s products 3 be recalled from the market, 
because their ingredients included the term ‘chocolate powder’, 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 Regulation 
No 1169/2011 4 and (ii) that further placement of those products on the market be 
prohibited.  
2 On 1 June 2016, the applicant lodged an objection against the measures specified 
above, which the Czech Agriculture and Food Inspection Authority first granted, 
on 6 June 2016, revoking those measures. Subsequently, however, the central 
inspectorate of the Czech Agriculture and Food Inspection Authority reversed that 
decision of 6 June 2016, by its decisions of 2 February 2017, dismissing the 
applicant’s objection and confirming those measures of 27 May 2016. The 
applicant’s appeal against the decisions of 2 February 2017 was dismissed by the 
defendant’s decisions of 21 April 2017.  
3 The applicant filed an action against the defendant’s decisions of 21 April 2017 
before the Krajský soud v Brně (Regional Court in Brno, Czech Republic), which 
was dismissed by a judgment of 26 February 2019. On the basis of the applicant’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 in Brno) of 26 February 
2019 and referred the case back to the court. 
4 At this stage of the proceedings, the Krajský soud v Brně (Regional Court in 
Brno) is submitting the above issue to the Court of Justice for a preliminary 
ruling. Even though it is bound by the legal opinion of the Nejvyšší správní soud 
(Supreme Administrative Court), it maintains (referring to the judgment of the 
Court of Justice in Case C-173/09 Elchinov and the resolution of the extended 
TESCO STORES ČR 
 
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chamber of the Nejvyšší správní soud (Supreme Administrative Court) of 8 July 
2008, published under 1723/2008 Coll.NSS), that this fact does not prevent it 
from exercising the right embodied in Article 267 of the Treaty on the 
Functioning of the European Union. 
Essential arguments of the parties to the main proceedings  
5 The defendant maintains that, given that point 2(c) of part A of Annex I to 
Directive 2000/36/EC only defines the term ‘powdered chocolate’, but not 
‘chocolate powder’, it is necessary, for the latter term, to provide an itemised list 
of the ingredients contained.  
6 The applicant, on the other hand, believes that the exception set out in point 2(a) 
of part E of Annex VII to Regulation 1169/2011 applies to ‘chocolate powder’, as 
the contents of the term are identical to that of ‘powdered chocolate’, and 
synonymous terms must always be interpreted identically, in order not to result in 
legal uncertainty. Furthermore, all language versions of Directive 2000/36/EC are 
equally authentic. 
Legal opinion of the Supreme Administrative Court  
7 The Nejvyšší správní soud (Supreme Administrative Court) agrees with the 
applicant that it was permitted to use the designation ‘chocolate powder’ instead 
of the designation ‘powdered chocolate’. According to established case-law of the 
Court of Justice, all language versions of legal acts of the EU are equally binding 
(see paragraph 18 of the judgment of the Court of Justice of 6 October 1982 in 
Case C-283/81, Srl Cilfit and Others v Ministry of Health and Lanificio di 
Gavardo SpA v Ministry of Health, paragraph 13 of the judgment of 19 April 2007 
in Case C-63/06, UAB Profisa v Muitinės departamentas prie Lietuvos 
Respublikos finansų ministerijos, and paragraph 24 of the recent judgment of 
13 September 2018 in Case C-287/17, Česká pojišťovna, a. s., v WCZ, spol. s 
r.o.). It is therefore necessary to clearly reject the idea that the labelling of 
chocolate products in the Czech Republic must exclusively be governed by the 
Czech version of Directive 2000/36/EC, whereas the labelling of such products in 
other Member States must be governed by their national language versions. 
8 Such an idea would be in contravention both of the abovementioned case-law and, 
above all, of the principle of free movement of goods and the very purpose of 
harmonisation in the labelling of foods as internal market instruments. It is on 
those principles that Directive 2000/36/EC is indeed based (see recital 7 thereof). 
The labelling of chocolate products in the EU is fully harmonised (see paragraphs 
29 and 45 of the judgment of the Court of Justice of the EU of 25 November 2010 
in Case C-47/09, European Commission v Italian Republic) and the very purpose 
of harmonisation is to enable a producer or supplier to use, when importing a 
product from one Member State to another, the information it is already stating on 
its product in accordance with Directive 2000/36/EC, merely translating that 
SUMMARY OF A REQUEST FOR A PRELIMINARY RULING — CASE C-881/19 
 
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information into a language or languages understood by consumers in the Member 
State in which the products are to be marketed.  
9 The applicant purchased its products from a supplier or producer that produced 
them either in Germany, where the German version of the Directive uses the term 
‘Schokoladenpulver’, or in Poland, where the Polish version uses interchangeably 
both terms ‘proszek czekoladowy’ or ‘czekolada w proszku’. The applicant 
translated verbatim the German or the Polish term into Czech as ‘čokoládový 
prášek’ (chocolate powder), which it used on its products. The purpose of the 
harmonisation of the labelling of chocolate products is for the applicant to be able 
to proceed precisely thus. 
10 An interpretation according to which a supplier or vendor, before starting to sell in 
the Czech Republic a chocolate product manufactured in another Member State, 
would first need to bring the labelling of the composition of the product into 
conformity with the Czech version of Directive 2000/36/EC is contrary to these 
principles. Such an interpretation would establish the assumption that only the 
Czech version of the Directive applies in the territory of the Czech Republic, that 
is, that a sort of a ‘Czech Directive 2000/36/EC’ applies here, which would be in 
direct contravention of the purpose of harmonisation of labelling and of the 
equality of language versions of directives, and would reinstate the condition prior 
to the establishment of an internal market.  
11 Hence, it is not possible in general to concur with the opinion that individual 
language versions of the Annex to Directive 2000/36/EC represent the binding 
labelling of foods for individual Member States. After all, such binding language 
versions are not referred to in Regulation 1169/2011, which requires in 
Article 15(1) merely that mandatory food information is to ‘appear in a language 
easily understood by the consumers of the Member States where a food is 
marketed’. This gives the applicant the option to use the German or Polish name 
of an ingredient of an imported product that is compliant with Union law, simply 
translating it into Czech. 
12 It is true that, in certain Member States, certain food labels are established and a 
translation to other languages may serve to confuse the consumer. In that case, 
however, such a divergence must be explicitly specified in all language versions. 
Regulation 1169/2011 leaves room for such a solution in Article 17(2) and (3). 
Directive 2000/36/EC uses this possibility in relation to a specific designation of 
certain products in English, as it takes over the national definition of the term 
‘milk chocolate’ in Annex I, part A, point 4(d). That specific national regulation 
is, however, mentioned in all language versions of the Directive, and not only the 
English one. If in the Czech Republic purely the term ‘powdered chocolate’ was 
supposed to be used, for example because the term ‘chocolate powder’ would be 
confusing for Czech consumers for some reason, it should be stipulated similarly.  
13 The abovementioned judgment of the Court of Justice of 14 June 2017 in Case 
C-422/16 merely confirms those conclusions. In Regulation 1308/2013, to which 
TESCO STORES ČR 
 
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the case pertained, the Union legislator took a path entirely different from that 
taken in Directive 2000/36/EC, as it explicitly set out in the Annex to the 
Regulation trade names for individual types of products which are to be used in 
individual countries for marketing. The Regional Court quoted paragraph 36 of 
the judgment, which pertained to the implementing Decision of the 
Commission 2010/791 listing the products referred to in the second subparagraph 
of point III(1) of Annex XII to Council Regulation (EC) No 1234/2007. That 
Commission Decision, admittedly, also contains a list of products concurrently 
listing various national names for various dairy products, with respect to which 
the Court of Justice stated in that paragraph that it contains products which have 
been identified by the Member States as meeting the criteria laid down in 
Regulation 1308/2013, and that the names of the products at issue are listed 
according to their traditional use in the various languages of the Union. Hence, the 
Court of Justice confirmed only that it is admissible for different languages to use 
various traditional labels for dairy products which may not necessarily correspond 
to one another. 5  
14 That judgment of the Court of Justice shows that, if various linguistic specifics 
and various local names traditional in the given Member State are to be taken into 
account in national languages in the use of harmonised names, this will not follow 
solely from one specific language version of a provision, but rather, from a 
multilingual table or list that will be contained in every language version of the 
provision. If a French producer wanted to import a product to the United Kingdom 
for which the French part of the table uses the term ‘crème de riz’, it cannot 
simply translate it into English as ‘rice cream’ or ‘rice spray cream’, as the 
English part of the table of binding names does not use such terms.  
15 Hence, the applicant was not obliged to ascertain what name the Czech version of 
the Directive uses and adapt to it the designation of the ingredients for distribution 
in the Czech Republic; it sufficed to translate the term into Czech. The term it 
used, ‘chocolate powder’, corresponded word-for-word to the German and Polish 
terms used in the Directive, and it cannot be found to be incomprehensible, 
confusing, or even misleading for the Czech consumer (see the requirements on 
fair information practices stipulated in Article 7(1) and (2) of Regulation 
1169/2011). Proceeding otherwise would mean pure formalism that in no way 
serves to protect consumers, that would call into question the level of 
harmonisation attained in the labelling of chocolate products on the internal 
market of the European Union, would pose a threat to the smooth functioning of 
the internal market in the sphere of chocolate products (see Article 1(1) of 
Regulation 1169/2011), and would run contrary to the repeatedly mentioned 
principle of equality of language versions of Union legal provisions.  
16 Hence, the present case is one of acte éclairé that does not require the submission 
of the matter to the Court of Justice for a preliminary ruling.  
Legal opinion of the Regional Court in Brno  
SUMMARY OF A REQUEST FOR A PRELIMINARY RULING — CASE C-881/19 
 
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17 First and foremost, standard case-law of the Court of Justice pertaining to a 
resolution of discrepancies between language versions of Union provisions does 
not apply to the matter at hand, because there is no discrepancy between the 
language versions of Directive 2000/36/EC. 6 The language versions fulfil the 
function of a list of binding names of foods in the relevant official language. The 
Court infers that fact: (i) from a comparison of different language versions of 
Directive 2000/36/EC; (ii) from the rule contained in Article 3(1) of Directive 
2000/36/EC, according to which the names of food products specified in Annex I 
are binding; and (iii) from the requirement to provide information about 
ingredients in a language easily understood by the consumers of the Member State 
where a food is marketed (see, for example, Article 15(1) of Regulation 
1169/2011).  
18 A comparison of language versions shows that the annex in question clearly lists 
names typical for the market in the given Member State, many of which cannot be 
strictly translated (for example, the English term ‘family milk chocolate’ or the 
suffix ‘vermicelli’ used in many different language versions). In the case of 
‘powdered chocolate’, this is evident in particular in the case of the Dutch term 
‘gesuikerde cacao’ which, if translated, would most likely correspond to a product 
defined in Annex I, part A, point 2(d) in the eyes of consumers from other 
Member States. The fact that different language versions feature a different 
number of equivalent names for the product specified in Annex I, part A, 
point 2(c) is absolutely essential in a comparison of language versions. Some 
language versions use only one name, some two, and the Dutch version even uses 
three. It is therefore apparent that they are not mere translations — language 
mutations, but rather, independent lists of binding names in each official language, 
that is to say, prescribed for products intended for consumers of that particular 
Member State in which the official language is used.  
19 Defining binding names of foods is generally (as well as specifically, in 
Article 3(1) of Directive 2000/36/EC) based on two rules. The first is the 
obligation to use the prescribed name solely for foods that correspond to the 
definition set in the given legal provision. The other rule is the obligation to use, 
for foods that correspond to a definition stipulated in a legal provision, only and 
exclusively the name under which the food is defined in the legal provision 
concerned. Essentially, the legal opinion of the Supreme Administrative Court 
denies this second rule, as it allows for the use of an unspecified range of potential 
names for a defined food based on the language version and translation option the 
producer of the food chooses as its label.  
20 Ultimately, this interpretation may lead to absurd consequences, as in that case it 
would only be possible with great difficulty to find out what those binding names 
are. Producers and vendors cannot use them for other products, even though they 
may not necessarily be aware that such names are included among binding names. 
At the same time, however, if they are aware of that fact, they can use them as 
names for compound ingredients without specifying the compositions of such 
compound ingredients. In that case, of course, consumers may not have any 
TESCO STORES ČR 
 
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inkling that an ingredient is a compound ingredient or what specific ingredient it 
is, since they will not find its definition anywhere unless they identify, by 
gradually stricter or looser translations into individual official languages of the 
European Union, the language version of Directive 2000/36/EC which defines the 
food in the given language. That is the case of the term ‘chocolate powder’, whose 
definition is not included in the Czech language version of the Directive.  
21 Even if a producer were permitted to use translations only from those languages 
that have a certain relationship to the food product (for example, products that 
were made in the Member State to whose language version the translation of the 
compound ingredient used corresponds), such a rule would defy the requirement 
that clear information about a product’s composition be provided to consumers. 
This would require consumers to first find out the place of production, become 
acquainted with the applicable language version of Directive 2000/36/EC, and 
obtain a translation thereof (or, as the case may be, all possible translations). 
Given that all products defined under point 2 of Annex I, part A, are to a 
significant extent similar (in principle, they are products falling within a single 
category), it is definitely not self-evident that a Czech consumer, having become 
acquainted with Directive 2000/36/EC for that purpose, will identify the term 
‘chocolate powder’ with a product defined as ‘powdered chocolate’ (rather than, 
for example ‘cocoa powder’ or ‘sweetened cocoa powder’). He would have to 
embark on a series of non-trivial considerations, in order to reach the conclusion 
that it is probably a translation of a term defined in another language version of 
Directive 2000/36/EC, without having any guarantee, however, that that is indeed 
the case. Furthermore, it would probably not be evident to producers and vendors 
which possible names they must avoid in labelling foods other than those defined 
in the Directive.  
22 Furthermore, use of names other than binding names misleads not only a well-
informed consumer but also a consumer who has no intention of becoming 
acquainted with Union legislation in greater detail for any reason. Even people 
who are not familiar with the definition set out in Directive 2000/36/EC can, at the 
very least, proceed on the assumption that there is a certain legal reason for not 
specifying the ingredients of a compound ingredient of a specific product, and 
may believe that the reason is the existence of a legal definition of the compound 
ingredient concerned [as stipulated in point 2(a) of part E of Annex VII to 
Regulation 1169/2011]. If, however, a compound ingredient is not defined, such 
as is the case with ‘chocolate powder’, its composition may not correspond to the 
requirements set in point 2(c) of part A of Annex I to Directive 2000/36/EC. In 
that case, a consumer, convinced that he is consuming a food with an approved 
content (that is, compliant with certain criteria), may be consuming an entirely 
different food (for which there are no criteria in legislation). Insisting on 
adherence to binding names may, indeed, be seen as formalism, but not self-
serving formalism.  
23 Facilitation of the free movement of cocoa and chocolate products cannot be 
viewed solely from the point of view of the producer or trader, effectively leaving 
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consumer protection up to an ad hoc assessment of whether a product name may 
be confused with another. If this aspect sufficed, the rule stipulated in Article 3(1) 
of Directive 2000/36/EC would be entirely superfluous.  
24 The Regional Court continues to maintain that the labelling of a food (or an 
ingredient thereof) that is intended for consumers in a specific Member State must 
respect the binding names of cocoa and chocolate products specified in the 
applicable language version of Annex I to Directive 2000/36/EC that corresponds 
to a language easily understood by consumers of the given Member State. Hence, 
in the case of foods intended for consumers in the Czech Republic, the binding 
designation stipulated in the Czech language version of Annex I to Directive 
2000/36/EC must be used. Only when such a designation is used for a compound 
ingredient is it also possible to apply the rule set out in point 2(a) of part E of 
Annex VII to Regulation 1169/2011 (that is, not to list the ingredients of a 
compound ingredient). 
25 In the Court’s opinion, the rules stipulated in Article 17(2) and (3) of Regulation 
1169/2011 by contrast apply to situations when the content of food products are 
not fully harmonised and binding names have not been adopted for those products 
at Union level. That is not the case in respect of the products defined in Directive 
2000/36/EC, having regard to Article 3(1) of the Directive. Hence, the exception 
stipulated in point 4(d) of part A of Annex I to the Directive is not an example of 
the application of those provisions of Regulation 1169/2011, but rather, an 
independent legislative exemption for the United Kingdom and Ireland from the 
rule set out in Article 3(1) of the Directive in relation to the products listed in 
Annex I, part A, point 4(d) and point 5. 
26 Even though the non-existence of a table of all the names, which would be 
identical in all language versions (where the function of a list of binding names in 
the various official languages used in individual Member States is performed by 
the specific language version of the Directive), is not the most appropriate 
legislative solution, it does not constitute grounds for relaxing the rule set out in 
Article 3(1) of Directive 2000/36/EC and for reducing the standard of consumer 
protection. It is true that, in this regard, the applicable rules differ from the method 
of regulation contained in the abovementioned Commission Decision 
2010/791/EU. The decision supports the fact, however, that the stipulation of a 
separate binding sales name for each Member State is no exception in Union food 
law. The same legislative technique of stipulating binding names for food 
products, as in the case of Directive 2000/36/EC, was used, for example, in 
Directive 2001/113,7 whose language versions stipulate binding names of defined 
products for individual official languages.  
27 For the same reason, the judgment of the Court of Justice of 14 June 2017 in Case 
C-422/16 does not address the method of regulation set out in Directive 
2000/36/EC; nevertheless, it is possible to infer therefrom the consequences of the 
adoption of a list of binding names of products for individual Member States and 
hence the impossibility of using synonyms or translations of binding names.  
TESCO STORES ČR 
 
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1 Directive 2000/36/EC relating to cocoa and chocolate products intended for human consumption 
(‘Directive 2000/36/EC’).  
2 Zákon č. 110/1997 Sb., o potravinách a tabákových výrobcích a o změně a doplnění některých 
souvisejících zákonů (Law No 110/1997 on food and tobacco products and amending and 
supplementing certain related laws), version applicable until 6 September 2016. 
3 Monte, mléčný dezert čokoládový s lískovými oříšky (chocolate milk dessert with hazelnuts) 
220g, Monte mléčný dezert čokoládový (Monte chocolate milk dessert) 100g, and Monte drink 
mléčný nápoj čokoládový s lískovými oříšky (Monte drink chocolate milk drink with hazelnuts) 
200ml.  
4 Regulation No 1169/2011, 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 (‘Regulation 1169/2011’).  
5 Here, specifically, no English name corresponded to the French term “crème de riz”, because no 
term like “rice cream” or “rice spray cream” was listed in the English part. 
6 Furthermore, the Nejvyšší správní soud (Supreme Administrative Court) does not premise any 
means of interpretation that would remove such a discrepancy within the framework of a 
coherent interpretation.  
7 Council Directive 2001/113/EC of 20 December 2001 relating to fruit jams, jellies and 
marmalades and sweetened chestnut purée intended for human consumption.