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Germany / Bavarian Administrative Court / 20 BV 16.1961

Company v Provincial capital Munich

Policy area:
Deciding Body type:
National Court/Tribunal
Deciding Body:
Bavarian Administrative Court
Decision date:

Key facts of the case:

The plantiff is a company producing, filling and marketing honey, sold, among others, in small 20 g packages which do not indicate the country of origin. However, these packages are packed in paper boxes which display information on the country of origin.

Due to the lack of information on the country of origin on the small packages, the defendant issued a fine notice against the plaintiff. The plaintiff then brought an action for a declaratory judgment declaring that, by marketing small packages not intended for retail sail without indicating the country of origin, it had not infringed the Honey Regulation adopted to transpose Directive 2001/110/EC (the „Honey Directive“). The Administrative Court dismissed the action as unfounded, since there was an obligation to display the country of origin on the small packages as well. The plaintiff appealed against that judgment.

The Bavarian Administrative Court referred to the European Court of Justice the question if the small honey packages packed in a larger box are „pre-packed food“ within the meaning of Art. 1 (3) (b) of Directive (EC) 2000/13  and Art. 2 (2) (e) of Regulation (EU) No. 1169/2011. In that case there would be a corresponding obligation for displaying the country of origin. In its reply, the CJEU stated that Article 1(3) (b) of Directive 2000/13/EC means that „each of the honey portion packs, which have the shape of a portion cup sealed by an aluminium lid and packed in larger boxes delivered to community establishments, is 'pre-packaged food' under the condition that those community establishments sell those portions individually or deliver them to the final consumer in ready-made dishes which are paid for on a flat-rate basis“.

The plaintiff stated that the judgment of the CJEU referred solely to the legal situation under Directive 2000/13/EC, which was, however, replaced on 13 December 2014 by Regulation (EU) No 1169/2011, on which the Court had not decided. In this respect, there is no binding effect and a transfer of the findings made to Regulation (EU) No 1169/2011 is not possible. The CJEU did not rule on Regulation (EU) No 1169/2011, so that a new referral procedure had to take place.

Key legal question raised by the Court:

The Higher Administrative Court of Bavaria (Bayerischer Verwaltungsgerichtshof) was dealing with the question if there is an obligation to display the country of origin on small honey packages under Regulation (EU) No. 1169/2011, to what extent the case law of the CJEU on the interpretation of Directive (EC) No 2000/13, which was repealed then, must be taken into account, and whether an obligation to display the country of origin infringes the applicant's fundamental rights or the free movement of goods under Union law.

Outcome of the case:

The Higher Administrative Court of Bavaria dismissed the appeal as unfounded. The relevant legal situation stems from Regulation (EU) No. 1169/2011 and Directive 2001/110/EC ('the Honey Directive'), according to which the applicant is obliged to mark the small packages with the country of origin. There was no infringement of the applicant's fundamental rights or of the free movement of goods under Union law.

The court ruled that the CJEU’s decision in the context of the preliminary ruling procedure can be applied to this case. The wording, context and purpose of the key provisions of Regulation (EU) No. 1169/2011 are in line with the provisions of Directive 2000/13/EC. Thus, displaying the country of origin is mandatory labelling under Article 9(1) (i) of Regulation (EU) No. 1169/2011. It is irrelevant whether the small packages are sold  on an individual basis, as they are „pre-packaged food“ if intended to be offered for sale to the end consumer in a community establishment without further processing, which was the case here.

Since the interpretation of European Union legislation is at stake, the fundamental rights of Union law must be observed. The obligation to mark the country of origin on the small honey packages interferes with the plaintif’s freedom to conduct a business under Article 16 of the Charter but that interference is justified by purposes of public interest, consumer information and the protection of consumers against misleading information.