Opinion of the Advocate General — ECLI:EU:C:2021:691
Date: 2021-09-02
Language of the case: German
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-388/20 – 1 
Case C-388/20 
Request for a preliminary ruling 
Date lodged: 
14 August 2020 
Referring court: 
Bundesgerichtshof (German Federal Court of Justice) 
Date of the decision to refer: 
23 July 2020 
Applicant and appellant in the appeal on a point of law: 
Bundesverband der Verbraucherzentralen und 
Verbraucherverbände – Verbraucherzentrale Bundesverband e. V. 
Defendant and respondent in the appeal on a point of law: 
Dr. August Oetker Nahrungsmittel KG 
  
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE) 
ORDER 
[…]        Delivered on: 
23 July 2020 
[…] 
In the case of 
Bundesverband der Verbraucherzentralen und Verbraucherverbände – 
Verbraucherzentrale Bundesverband e. V., […] 
[…] Berlin, 
applicant and appellant in the appeal on a point of law, 
[…] 
EN 
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vs 
Dr. August Oetker Nahrungsmittel KG, 
Bielefeld, 
defendant and respondent in the appeal on a point of law, 
[…] [Or. 2]  
The First Civil Chamber of the Federal Court of Justice has […] 
ordered: 
I. The proceedings will be stayed. 
II. The following questions are hereby referred to the Court of Justice of the 
European Union for the interpretation of the second subparagraph of 
Article 31(3) and the second subparagraph of Article 33(2) 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, 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 L 304, 22 November 2011, 
p. 18,  the Food Information Regulation – ‘FIR’): 
1. Must the second subparagraph of Article 31(3) of the FIR be 
interpreted as meaning that that article applies solely to foods which 
require preparation and for which preparation instructions have been 
provided? 
2. If Question 1 is answered in the negative: Does the phrase ‘per 100 g’ 
in the second subparagraph of Article 33(2) FIR only refer to 100 
grams of the product as sold, or does it also – at least additionally – 
refer to 100 grams of the food after preparation? [Or. 3] 
Reasons: 
1 I. The defendant produces, inter alia, the pre-packaged food ‘Dr. Oetker Vitalis 
Knuspermüsli Schoko + Keks’ and sells it on the German market in rectangular 
cardboard packaging. On the narrow side of the packaging, under the heading 
‘nutritional information’, particulars are provided regarding the energy value and 
amounts of fat, saturates, carbohydrates, sugars, protein and salt per 100 grams of 
the product as sold, on the one hand, and, on the other, per portion of the food 
after preparation consisting of 40 grams of the product and 60 millilitres of milk 
DR AUGUST OETKER NAHRUNGSMITTEL 
 
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with a fat content of 1.5%. On the front of the packaging, on the principal field of 
vision, the particulars regarding energy value and the amounts of fat, saturates, 
sugar and salt are repeated in relation to a 100-gram portion of the food after 
preparation consisting of 40 grams of the product and 60 millilitres of milk with a 
fat content of 1.5%. 
2 The applicant is the […] German consumer organisation, the Bundesverband der 
Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale 
Bundesverband e.V. In its view, the packaging of the defendant’s product 
infringes the provisions of the Food Information Regulation regarding the 
nutrition declaration in the case of per-portion information in that the energy value 
is not shown on the front of the packaging in relation to 100 grams of the product 
as sold, but in relation to 100 grams of the food after preparation. 
3 Having unsuccessfully issued a warning, the applicant filed a claim and applied 
for the court to order the defendant […] to refrain from advertising ‘Vitalis 
Müsli’ in the context of commercial activities as illustrated in Annex K2 
[reproduced below] – or from allowing such advertising to be carried out – 
with nutritional information per portion, without additionally stating the 
energy value per 100 grams of the product as sold, i.e. the unprepared 
product. [Or. 4] 
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DR AUGUST OETKER NAHRUNGSMITTEL 
 
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[Or. 5] 
4 In addition, the claimant sought compensation for lump-sum costs of EUR 214 
plus interest. 
5 The Landgericht (Regional Court) allowed the claim […]. The defendant’s appeal 
led to the claim being dismissed […]. The claimant is continuing to pursue its 
claim by bringing an appeal on a point of law, for which the court of appeal has 
granted leave and which the defendant seeks to have dismissed. 
6 II. The success of the appeal on a point of law hinges on the interpretation of 
Article 31(3) and Article 33(2) of the FIR. For that reason, prior to a decision on 
the appeal, the proceedings must be stayed and a preliminary ruling obtained from 
the Court of Justice of the European Union pursuant to Article 267(1)(b) and (3) 
of the TFEU. 
7 1. The court of appeal considered the claims asserted to be unfounded on the basis 
of the first sentence of Paragraph 8(1), Paragraph 3(1), Paragraph 3a of the Gesetz 
gegen den unlauteren Wettbewerb (German Law on Unfair Competition, ‘UWG’) 
together with the second subparagraph of Article 33(2) of the FIR and the second 
sentence of Paragraph 12(1) of the UWG and gave the following reasons in that 
regard: 
8 The provision in the second subparagraph of Article 33(2) of the FIR – which is 
the only provision on which an obligation on the part of the defendant to indicate 
on the front of the packaging of the product the energy value of the product as 
sold in addition to the nutritional information already provided can be based – 
does not give rise to such an obligation in view of the systematic context of the 
relevant provisions of the Food Information Regulation. The – uncontested – 
information provided on the narrow side of the packaging of the defendant’s 
product serves the purpose of fulfilling the mandatory nutrition declaration 
stipulated in Article 30(1) of the FIR. The information on the front (display side) 
of the packaging, however, constitutes repeated information within the meaning of 
Article 30(3)(b) of the FIR. In that case [Or. 6] the second subparagraph of 
Article 33(2) of the FIR provides that, where the amount of nutrients and the 
energy value are expressed only per portion in the repeated information, the 
energy value must also (additionally) be expressed per 100 grams. The question 
that arises in this regard, i.e. whether – as the applicant claims  – the phrase ‘per 
100 grams’ in the second subparagraph of Article 33(2) of the FIR refers to 100 
grams of the product as sold or – as the defendant contends – whether this (also) 
refers to 100 grams of the food after preparation, must be answered in the latter 
sense. 
9 Pursuant to the second subparagraph of Article 31(3) of the FIR, information 
regarding energy value may also relate to the food after preparation provided 
that – as is the case here – sufficiently detailed preparation instructions are 
supplied and the information relates to the food ready prepared for consumption. 
There is no indication in the Food Information Regulation to support the view of 
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the Regional Court that ‘preparation’ in this sense only covers ‘fairly extensive 
work steps’ such as cooking or heating. The provision in Article 32(2) of the FIR, 
according to which the energy value and the amounts of nutrients must be 
expressed per 100 grams or per 100 millilitres, must be read together with 
Article 31(3) of the FIR, with the result that the energy value must or may be 
expressed either in relation to 100 grams of the product as sold or in relation to 
100 grams of the food after preparation. The first subparagraph of Article 33(2) of 
the FIR constitutes the derogation from Article 32(2) of the FIR and provides 
specifically for cases referred to in point (b) of Article 30(3) of the FIR – such as 
the case at issue here – that the amount of nutrients may exceptionally be 
expressed on the basis of a per-portion unit whose weight or volume does not 
necessarily have to amount to 100 grams or 100 millilitres. In such cases, the 
second subparagraph  of Article 33(2) of the FIR requires the energy value to be 
expressed both in relation to the portion and per 100 grams. There is no reason to 
interpret the phrase ‘per 100 grams’ in the second subparagraph of Article 33(2) 
of the FIR differently from that in Article 32(2) of the FIR, where an indication of 
energy value is also permitted in relation to 100 grams of the food after 
preparation. [Or. 7] 
10 2. The success of the appeal on a point of law depends on whether Articles 31(3) 
and 33(2) of the FIR must be interpreted as prohibiting, in a case such as that at 
issue in the main proceedings, the advertising of nutritional information per 
portion of the food after preparation without additionally indicating the energy 
value per 100 g of the food as sold. 
11 a) According to the first subparagraph of Article 30(1) of the FIR, the mandatory 
nutrition declaration for foods which – like the defendant’s product – do not fall 
within the scope of application of chapter IV section 3 of this regulation (cf. 
Article 29 of the  FIR) comprises the energy value (point a) and the amounts of 
fats, saturates, carbohydrates, sugars, protein and salt (point b). According to the 
first sentence of Article 34(2) of the FIR, those particulars must be included in the 
same field of vision (Article 2(2)(k) of the FIR) and, in accordance with the first 
sentence of Article 34(2) of the FIR, if – as in the case in dispute – there is 
sufficient space available, they must be presented in tabular format with the 
numbers aligned. This obligatory nutrition declaration is provided by way of the 
particulars – which are uncontested – contained on the narrow side on the 
packaging of the defendant’s product. 
12 b) If – as in the case in dispute – the labelling of pre-packaged food contains the 
mandatory nutrition declaration in accordance with Article 30(1) of the FIR, the 
energy value together with the amounts of fat, saturates, sugar and salt may be 
repeated on the packaging in accordance with Article 30(3)(b) of the FIR. In 
accordance with point a in the first subparagraph of Article 34(3) of the FIR 1, 
those particulars shall be presented in the principal field of vision (Article 2(2)(l) 
of the FIR), but in accordance with the second subparagraph of Article 34(3) of 
the FIR they may also be presented in a format different from that specified in 
Article 34(2) of the FIR. The contested particulars on the front of the packaging 
DR AUGUST OETKER NAHRUNGSMITTEL 
 
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regarding energy, fat, saturates, sugar and salt constitute such voluntary, repeated 
information. [Or. 8] 
13 c) Must the second subparagraph of Article 31(3) of the FIR be interpreted as 
meaning that that provision applies solely to foods which require preparation and 
for which preparation instructions have been provided (question 1)? 
14 aa) According to the first subparagraph of Article 31(3) of the FIR the energy 
value and the amounts of nutrients referred to in Article 30(1) to (5) shall be those 
of the food as sold. According to the second subparagraph of Article 31(3) of the 
FIR, where appropriate, that information may relate to the food after preparation 
provided that sufficiently detailed preparation instructions are given and that the 
information relates to the food as prepared for consumption. The provision of Art 
31(3) of the FIR not only applies to the mandatory nutrition declaration (first 
subparagraph of Article 30 FIR) but also in the event of a voluntary, repeated 
nutrition declaration (Article 30(3) of the FIR). 
15 bb) The disputed particulars on the front of the packaging (in the principal field of 
vision) concerning energy value, fat, saturates, sugar and salt do not relate to the 
food as sold (first subparagraph of Article 31(3) of the FIR) but to the food after 
preparation (second subparagraph of Article 31(3) of the FIR), namely the muesli 
prepared with milk, with sufficiently precise information on the method of 
preparation being provided (40 g of muesli is added to 60 ml of milk with a fat 
content of 1.5%) and the information relates to the food ready for consumption. In 
the opinion of the Federal Court of Justice, the court of appeal correctly assumed 
that there is no reference in the Food Information Regulation to support the view 
of the Regional Court that ‘preparation’ within the meaning of this provision 
refers only to ‘fairly extensive work steps’ such as cooking or heating. 
16 cc) The question remains, however, whether (as was argued by the appellant in the 
oral hearing on the appeal on a point of law) the second subparagraph of 
Article 31(3) of the FIR applies only to food – such as instant soups, dessert 
mixes, soluble [Or. 9] drink powders, custard powders or baking mixes – which 
requires preparation and where preparation instructions have been provided. This 
question is relevant to the decision because the latter condition has not been met in 
the case in dispute. Muesli can be prepared in several ways. It can, for instance, be 
prepared with milk or yoghurt, and the milk products may have different fat 
contents; other ingredients such as fruit or honey may also be added. The question 
cannot be answered with certainty. 
17 (1) In its case-law, the European Court of Justice has stated that the need for 
uniform application of EU law and the principle of equality before the law require 
the terms of a provision of EU law to be given an autonomous and uniform 
interpretation throughout the European Union in so far as they do not expressly 
refer to the law of the Member States for the purpose of determining their 
meaning and scope. The interpretation must take into account not only the 
wording of the provision, but also its regulatory context and the objective pursued 
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by the provision ( judgment of 21 June 2018, Oberle, C-20/17, NJW 2018, 2309 
paragraph 33 , judgment of 23 May 2019, WB, C-658/17, NJW 2019, 2293 
paragraph 50). 
18 (2) In common parlance, ‘food after preparation’ generally means all food 
rendered ready to eat; this must be distinguished from food which, like fruit, is 
naturally ready to eat […]. It also follows from the regulatory context of the 
second subparagraph  of Article 31(3) of the FIR that the term ‘food after 
preparation’ generally covers all food ready for consumption. However, the 
introductory phrase ‘where appropriate’ could indicate that the provision does not 
cover all cases where the information relates to a food after preparation. Taking 
into account the purpose [Or. 10] of the provision, it cannot be ruled out that it 
only covers food for which the method of preparation is specified. According to 
recital 35 of the FIR, the purpose of the provisions on mandatory nutrition 
declaration is to render products in different package sizes comparable. In order to 
appeal to the average consumer and to fulfil its information purpose, nutrition 
information should be simple and easily understood (cf. recital 41 of the FIR). 
Where a food can be prepared in different ways, information on the energy value 
and the amount of nutrients in the prepared food that is based on a manufacturer’s 
proposed preparation does not readily allow a comparison with equivalent foods 
from other manufacturers. In such cases, the energy value and amounts of 
nutrients may only be sufficiently comparable if the information relates to the 
food as sold. This could be a reason to suggest that in such cases the particulars 
regarding energy value and amount of nutrients must not refer to the food after 
preparation but to the food as sold. 
19 d) In the event that the first question is answered in the negative, the question 
arises whether the phrase ‘per 100 g’ in subparagraph 2 of Article 33(2) of the FIR 
only refers to 100 grams of the product as sold, or whether it also – at least 
additionally – refers to 100 grams of the food after preparation? 
20 aa) According to Article 32(2) of the FIR, the energy value and the amount of 
nutrients referred to in Article 30(1) to (5) of the FIR must be expressed per 100 g 
or per 100 ml. In addition to this format, according to Article 33(1)(a) of the FIR, 
the energy value and the amounts of nutrients referred to in Article 30(1) to (5) 
may be expressed per portion and/or per consumption unit, easily recognisable by 
the consumer, provided that the portion or the unit used is quantified on the label 
and that the number of portions or units contained in the package is stated. By way 
of derogation from Article 32(2) [Or. 11] of the FIR, the first subparagraph of 
Article 33(2)  stipulates that in the cases referred to in point (b) of Article 30(3) 
the amount of nutrients and/or the percentage of the reference intakes set out in 
Part B of Annex XIII may be expressed on the basis of per portion or per 
consumption unit alone. In such cases, the second subparagraph of Article 33(2) 
of the FIR stipulates that the energy value is expressed per 100 g or per 100 ml 
and per portion or per unit of consumption. 
DR AUGUST OETKER NAHRUNGSMITTEL 
 
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21 bb) Pursuant to the first subparagraph of Article 33(2) of the FIR, in the case of a 
voluntary, repeated declaration of the energy value and the amount of nutrients – 
such as that at issue in the present proceedings – the defendant was allowed to 
state the amounts of nutrients pursuant to Article 30(3)(b) of the FIR per portion 
only. Furthermore – as was the case here – the defendant was allowed to state the 
amount of nutrients per portion of the food after preparation given that the second 
subparagraph of Article 33(2) of the FIR applies equally to cases where the 
information relates to the food as sold (first subparagraph of Article 31(3) of the 
FIR) and to cases – such as that at issue in the present proceedings – in which this 
information relates to food after preparation (second subparagraph of Article 31(3) 
FIR). The defendant stated the amount of nutrients in the case in dispute ‘only’ 
per portion of the food after preparation; this does not conflict with the fact that 
the defendant quantified the portion used by adding ‘= 100 g’ on the label. 
22 cc) Accordingly, pursuant to the second subparagraph of Article 33(2) FIR, the 
defendant was obliged to express the energy value per 100 g or per 100 ml and per 
portion or per unit of consumption. The defendant also provided the energy value 
per portion of the food after preparation and quantified the size of that portion by 
adding ‘= 100 g’. The question remains, however, whether in doing so the 
defendant also met its obligation to indicate the energy value ‘per 100 g’. This 
would only be the case if – as the defendant alleges –the phrase ‘per 100 g’ in the 
second subparagraph of Article 33(2) of the FIR [Or. 12] at least additionally 
referred to 100 grams of the food after preparation and not solely – as the claimant 
alleges – 100 grams of the food as sold. This question cannot be answered with 
certainty either. 
23 (dd) An answer to this question can be inferred neither from the wording nor the 
regulatory context of the provision. The question can therefore only be answered 
by considering the purpose of the nutrition declaration. 
24 (1) Pursuant to the first sentence of recital 35, in order to facilitate the comparison 
of products in different package sizes it is appropriate to retain the requirement 
that the mandatory nutrition declaration should refer to 100 g or 100 ml amounts 
and, if appropriate, to allow additional portion-based declarations. In order to 
facilitate the comparison of products in different package sizes, it might be 
appropriate to declare the energy value of the product as sold and not the energy 
value of a portion of the food prepared according to a specific recipe. It is possible 
that solely a declaration of the energy value of a particular product as sold will 
lead to comparability with the products of other producers as required by the EU 
legislator. It is unlikely that such products can be compared on the basis of the 
nutritional information provided with regard to portions after preparation since the 
method of preparation is left to the discretion of each individual manufacturer. 
However, there is generally no guarantee that a nutrition declaration per 100 g or 
100 ml of the food as sold, which would make it possible to compare the products 
of different manufacturers, appears in the mandatory particulars or on the front of 
the packaging. Both mandatory and voluntary nutrition information may refer to 
the food as sold as well as to the food after preparation. Moreover, the mandatory 
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particulars need not be located in the principal field of vision but may also be 
found in a different field of vision. [Or. 13] 
25 (2) On the other hand, it follows from recital 41 of the regulation that, in order to 
appeal to the average consumer and serve the informative purpose, the nutrition 
information provided should be simple and easily understood so as not to confuse 
the consumer. This could mean that the mandatory nutrition declaration should not 
be overshadowed by the potentially confusing display of other permissible 
information in other visual fields. It could confuse the consumer if, in addition to 
the energy value per portion of the food after preparation, the energy value per 
100 g of the unprepared food were listed […] 
[…]