Athens Multi Member Court of First Instance. Decision 6768/2010: Regutation 1924/2006, term "light" Attorneys at law N.Papakonstantinou- E.Assimakopoulou , Vassilogeorgis and Partners Law Firm

ΒΑΣΙΛΟΓΕΩΡΓΗΣ & ΣΥΝΕΡΓΑΤΕΣ - ΔΙΚΗΓΟΡΙΚΗ ΕΤΑΙΡΙΑ | 24/06/2011

HAVING EXAMINED THE CASE FILE THE COURT REASONED IN ACCORDANCE WITH THE LAW

Regulation No 1/1958 determining the languages to be used by the European Economic Community established the full equality of the languages of the Member States; Article 1 of which stating that the official languages and the working languages of the institutions of the Community include Greek. Article 2 states that, “Documents which a Member State or a person subject to the jurisdiction of a Member State sends to institutions of the Community shall be drafted in the language of that State”. Article 3 states that, “Documents which an institution of the Community sends to a Member State or to a person subject to the jurisdiction of a Member State shall be drafted in the language of such State”. Article 4 then goes on to state that, “Regulations and other documents of general application shall be drafted in the official languages," while Article 5 states that, "the Official Journal of the Community shall be published in the official languages”. Article 6 goes on to add that, “The institutions of the Community may stipulate in their rules of procedure which of the languages are to be used in specific cases," while Article 7 states that, " The languages to be used in the proceedings of the Court of Justice shall be laid down in its rules of procedure” (see Donatou Papagiannis ‘Introduction to European Law’ 2nd ed. p. 116). Moreover, in the well-established case law of the European Court of Justice, the wording used in one of the language versions of a provision of EU law cannot be the sole basis for the interpretation of that provision, nor can be it be characterised as taking precedence over other versions of the text. Such an approach would, in fact, be contrary to the need for the uniform application of Community law. Where there are discrepancies between the various language versions of the text, the contested provision must be interpreted bearing in mind the overall economy and the purpose of the legislation of which it is part (see ECJ judgement in case C-451/2008 Helmut Muller GmbH vs. Bundesanstalt fur Immobilienaufgaben, NOMOS Legal Databank, judgement in case C 149/97, Institute of the Motor Industry, [1998] ECR I 7053, paragraph 16; judgement in case C 372/88, Cricket St Thomas, [1990] ECR I 1345, paragraphs 18 and 19; judgement of 9 October 2008 in case C 239/07, Sabatauskas et al., [2008] ECR I 7523, paragraphs 38 and 39). Moreover, Article 1 of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods relating to the scope of the Regulation states that, “1. This Regulation harmonises the provisions laid down by law, regulation or administrative action in Member States which relate to nutrition and health claims in order to ensure the effective functioning of the internal market whilst providing a high level of consumer protection”. 2. This Regulation shall apply to nutrition and health claims made in commercial communications, whether in the labelling, presentation or advertising of foods to be delivered as such to the final consumer, including foods which are placed on the market unpacked or supplied in bulk. It shall also apply in respect of foods intended for supply to restaurants, hospitals, schools, canteens and similar mass caterers. 3. A trade mark, brand name or fancy name appearing in the labelling, presentation or advertising of a food which may be construed as a nutrition or health claim may be used without undergoing the authorisation procedures provided for in this Regulation, provided that it is accompanied by a related nutrition or health claim in that labelling, presentation or advertising which complies with the provisions of this Regulation”. Moreover, Article 2(2) states that, “For the purposes of this Regulation … the following definitions shall also apply: 1. "claim" means any message or representation, which is not mandatory under Community or national legislation, including pictorial, graphic or symbolic representation, in any form, which states, suggests or implies that a food has particular characteristics; 2. "nutrient" means protein, carbohydrate, fat, fibre, sodium, vitamins and minerals listed in the Annex to Directive 90/496/EEC, and substances which belong to or are components of one of those categories; 3. "other substance" means a substance other than a nutrient that has a nutritional or physiological effect; 4. "nutrition claim" means any claim which states, suggests or implies that a food has particular beneficial nutritional properties due to: (a) the energy (calorific value) it (i) provides, (ii) provides at a reduced or increased rate, or (iii) does not provide; and/or (b) the nutrients or other substances it (i) contains, (ii) contains in reduced or increased proportions, or (iii) does not contain; 5. "health claim" means any claim that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health".” Article 3 of that Regulation relating to the general principles applicable to all claims states that, “Nutrition and health claims may be used in the labelling, presentation and advertising of foods placed on the market in the Community only if they comply with the provisions of this Regulation. Without prejudice to Directives 2000/13/EC and 84/450/EEC, the use of nutrition and health claims shall not: (a) be false, ambiguous or misleading; (b) give rise to doubt about the safety and/or the nutritional adequacy of other foods; (c) encourage or condone excess consumption of a food; (d) state, suggest or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients in general. Derogations in the case of nutrients for which sufficient quantities cannot be provided by a balanced and varied diet, including the conditions for their application, may be adopted in accordance with the procedure referred to in Article 24(2), taking into account the special conditions present in Member States; (e) refer to changes in bodily functions which could give rise to or exploit fear in the consumer, either textually or through pictorial, graphic or symbolic representations.” Article 8 relating to specific conditions laid down by the Regulation states that, “Nutrition claims shall only be permitted if they are listed in the Annex and are in conformity with the conditions set out in this Regulation”. Article 27, relating to transitional provisions after publication of the Regulation, states that, “1. Foods placed on the market or labelled prior to the date of application of this Regulation which do not comply with this Regulation may be marketed until their expiry date, but not later than 31 July 2009. With regard to the provisions in Article 4(1), foods may be marketed until 12 months following adoption of the relevant nutrient profiles and their conditions of use. 2. Products bearing trade marks or brand names existing before 1 January 2005 which do not comply with this Regulation may continue to be marketed until 19 January 2022 after which time the provisions of this Regulation shall apply.” Article 28 relating to the entry into force of the Regulation states that, “This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union. It shall apply from 1 July 2007. This Regulation shall be binding in its entirety and directly applicable in all Member States.” According to the Annex of that Regulation on Nutrition claims and conditions applying to them: LOW ENERGY: A claim that a food is low in energy, and any claim likely to have the same meaning for the consumer, may only be made where the product does not contain more than 40 kcal (170 kJ)/100 g for solids or more than 20 kcal (80 kJ)/100 ml for liquids. For table-top sweeteners the limit of 4 kcal (17 kJ)/portion, with equivalent sweetening properties to 6 g of sucrose (approximately one teaspoon of sucrose), applies. ENERGY-REDUCED: A claim that a food is energy-reduced, and any claim likely to have the same meaning for the consumer, may only be made where the energy value is reduced by at least 30 %, with an indication of the characteristic(s) which make(s) the food reduced in its total energy value. ENERGY-FREE: A claim that a food is energy-free, and any claim likely to have the same meaning for the consumer, may only be made where the product does not contain more than 4 kcal (17 kJ)/100 ml. For table-top sweeteners the limit of 0.4 kcal (1.7 kJ)/portion, with equivalent sweetening properties to 6 g of sucrose (approximately one teaspoon of sucrose), applies. LOW-FAT: A claim that a food is low in fat, and any claim likely to have the same meaning for the consumer, may only be made where the product contains no more than 3 g of fat per 100 g for solids or 1.5 g of fat per 100ml for liquids (1.8 g of fat per 100 ml for semi-skimmed milk). FAT-FREE: A claim that a food is fat-free, and any claim likely to have the same meaning for the consumer, may only be made where the product contains no more than 0.5 g of fat per 100 g or 100 ml. However, claims expressed as "X % fat-free" shall be prohibited. … REDUCED (NAME OF THE NUTRIENT): A claim stating that the content in one or more nutrients has been reduced, and any claim likely to have the same meaning for the consumer, may only be made where the reduction in content is at least 30 % compared to a similar product, except for micronutrients where a 10 % difference in the reference values as set in Council Directive 90/496/EEC shall be acceptable and for sodium, or the equivalent value for salt, where a 25 % difference shall be acceptable. LIGHT/LITE: A claim stating that a product is "light" or "lite", and any claim likely to have the same meaning for the consumer, shall follow the same conditions as those set for the term "reduced"; the claim shall also be accompanied by an indication of the characteristic(s) which make(s) the food "light" or "lite". Moreover, Article 1 of Law 146/1914 on unfair competition prohibits any act for competitive purposes, which is contrary to morality, which takes place in commercial, industrial or agricultural transactions. The provisions of Article 1 of Law 146/1914 introduce a general clause relating to unfair competition which prohibits any act which is contrary to morality for competitive purposes, which takes place in commercial, industrial or agricultural transactions. In order for a competitive act to be subject to the prohibition, the following conditions must be met: a) there must be a relationship of competition, b) the act must be committed for competitive purposes, c) it must be objectively capable of achieving the result sought and d) it must be contrary to morality. The concept of morality is not defined by the law but is left to the judge’s discretion, having diligently weighed up each specific case, based on the feelings and views of every equitable and right thinking man in the same business circle within which the act takes place (Athens Court of Appeal Judgement No. 5489/1991 Elliniki Dikeosini Law Review 32.651, Rokas, Unfair Competition, p. 28). The criterion used for morality is the views on morality of the man in society who thinks in a moral and prudent manner in accordance with general perceptions prevailing from time to time (Hellenic Supreme Court Judgement No. 79/2001, Elliniki Dikeosini Law Review 42.904, Thessaloniki Court of Appeal Judgement No. 3000/2005, Armenopoulos Law Review 2006.896) Moreover, the act of soliciting customers may also be an covered by this general clause when certain specific conditions are met which make it unlawful, in other words where it is done for competitive purposes, using means or methods which are contrary to morality, such as misleading or bribing a customer, or acts designed to impede the customer. Thus, an act contrary to the constitutionally protected core of the economic system also includes any competitive act which goes against the economic freedom of consumers by removing from them their freedom to exercise their purchasing power in such a way that it affects the very core of the constitutionally enshrined right to economic freedom since the effective ability to exercise that right is placed at risk when it is impeded; this being an act contrary to morality under Article 1 of Law 146/1914 (Athens Court of Appeal Judgement No. 1489/2007 DEE Law Review 2007.575, Thessaloniki Court of Appeal Judgement No. 3000/2005 op. cit., Athens Court of Appeal Judgement No. 698/2003 Elliniki Dikeosini Law Review 45.1064, Tsimbanoulis, in Unfair Competition, Nomiki Vivliothiki Press, 1996 ed. § 65). Moreover, given that the purpose of Article 3 of Law 146/1914 is to safeguard the truth, accuracy and clarity of transactions in order to protect both competitors of the businessperson advertising himself (who lose business due to misleading representations of that person) and consumers in general, it is clear that the conditions for applying those provisions are: 1) the existence of a representation relating to commercial, industrial or geographical transactions made in the form of a public statement or notice using any means to publicise it, 2) the representation is intended for a vague, or unlimited, number of people and is inaccurate, in other words its content does not match the truth, and 3) the inaccurate representation is capable of giving consumers the impression that there is a particularly favourable offer being made, without it being necessary in fact for such an impression to have been created. On the contrary, on a correct reading of those provisions, in order to apply the said provisions, it is not strictly necessary for the inaccurate representation to have been made for competitive purposes, it being sufficient for that representation to have caused consumers to be misled (Athens Court of Appeal Judgement No. 1489/2007 DEE Law Review 2007.575, Alexandridou Unfair Competition & Consumer Protection 4th ed. 1992 pp. 68 et seq. and Kotsiris, Competition Law pp. 109 et seq. & p. 117). The inaccurate representation must be capable of affecting the purchasing behaviour of the recipients of the advertisement in any way. The impression caused must be caused to a considerably significant portion of consumers at whom the advertising was aimed and consequently it is not part of the purpose of Article 3 to protect the public from all misleading advertising but only from clearly misleading advertising (Athens Court of Appeal Judgement No. 1489/2007, op. cit.). Moreover, Article 22(5) of Law 146/1914 states that, “in the case of an action for omission brought on the basis of the provisions of this Law, in passing judgement the court may grant permission to the winning party to publicise the operative part of the judgement within a specific deadline at the losing party's expense (Athens Court of Appeal Judgement No. 2767/1996, DEE Law Review 1997.38). Furthermore, the competitive act may contain 'foreign elements’. Unfair competition is one of the offences to which the law of the place where the act was committed applies, according to Article 26 of the Hellenic Civil Code. Thus, irrespective of the nationality of the perpetrator, if the act was committed in Greek territory, the law applicable will be Greek law on unfair competition. There is an issue of jurisdiction for competitive acts which have some foreign element. Article 3 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which replaced the Brussels Convention and which is effective from 1.3.2002 in relation to the EU Member States, apart from Denmark which did not participate in issuing of the Regulation and is not bound by it (recital 22), states that: "1. Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter. 2. In particular the rules of national jurisdiction set out in Annex I shall not be applicable as against them.” Article 5 of that Regulation states that, "A person domiciled in a Member State may, in another Member State, be sued: … 3. in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur.”

In the action at hand, on a correct assessment of the case file, the plaintiff asserts that it is the leading biscuit manufacturer in Greece and among other things produces wholemeal flour biscuits which bear the phrase, “... 30% less fat”. It asserts that the first respondent produces products similar to those plaintiff in Greece and sells them via the second respondent, its distributor, namely wholemeal flour biscuits by the name..........., which are marketed in various flavours, including those in a packaging bearing the markings ‘light wheat, low fat biscuits, 30% less fat’ which were found to have been placed on the Greek market in mid-November 2009. It asserts that that product contains misleading (inaccurate) labelling contrary to business morality and directly infringes the provisions of Articles 3 and 1 of Law 146/1994 on unfair competition in the manner set out in detail in the action. In light of that, the plaintiff has requested in its action (a) that the first respondent be prohibited from supplying and the second respondent from selling the............ products described in detail in the action on the Greek market with the inaccurate markings ‘light wheat, low fat biscuits, 30% less fat’, b) that the respondents be obliged within 10 days from service of the judgement to withdraw the said products from the market and after that deadline that the plaintiff be permitted to seize the contested products in the possession of the respondents or any third parties, c) that a financial penalty of € 300 be imposed on the respondents for each future infringement of the judgement handed down, d) that an order be given for the operative part of the judgement to be published at the respondent’s expense in two newspapers in nationwide circulation, e) that the judgement be declared enforceable on an interim basis and f) that the respondents be ordered to pay the plaintiff’s court costs.

The action at hand, whose content and requests were outlined above, was rightly brought before the local court, and the pre-trial procedure in Article 214A of the Hellenic Code of Civil Procedure was correctly observed since the plaintiff adduced and submitted in evidence the minutes prepared on .........by the authorised attorneys at law of the parties concerning the failed attempt to achieve an out-of-court settlement of the dispute on ...... (.............), that court having jurisdiction in accordance with the points above and was rightly brought to be heard under ordinary proceedings and is specific since it contains all the information required by law and is lawful under Greek law, which is applicable, in light of the legal reasoning set out above, since it is based on the provisions of Articles 481 et seq. of the Hellenic Civil Code, Articles 1, 3, 5, 10 and 22(5) of Law 146/1914 and Articles 907, 908(1)(d), 947 and 176 et seq. of the Hellenic Code of Civil Procedure. Consequently, the action must be examined further as to whether it is well founded on its merits.

In response to this action, the respondents in their written pleadings have denied the content of the action arguing that the labelling on the contested biscuit products is fully in accordance with the requirements of Regulation (EC) No 1924/2006 and that they never took any steps which constitute an infringement of Articles 1 and 3 of Law 146/1914 in line with the detailed points set out in their pleadings.

The following true facts were proven on the basis of the sworn testimony of witnesses for the parties who were examined in accordance with legal procedure in court, which are contained in the court transcripts bearing the same number as this judgement, which were assessed in own right, and in conjunction with the other evidence, and from all public and private documents adduced and relied upon by the parties and the admissions which can been deduced from their pleadings (Article 261 of the Hellenic Code of Civil Procedure). All those points have been taken into account by the Court as direct evidence and for the purpose of making judicial presumptions.The Court has also taken into account affidavits............... The plaintiff, ............, is a biscuit manufacturer in Greece and is one of the leaders in the Greek market in terms of the quality and quantity of biscuits made and sold, including biscuits with the marking ... which are biscuits made of wholemeal flour. This category of biscuits is manufactured by it in various flavours and with various ingredients including ...s with 30% less fat. The first respondent was established in 1948 following the merger of two ...........biscuit makers, ............, and is one of the largest food trading companies worldwide, whose products include biscuits with the brand name.......... The second respondent, a company established in Greece, was set up in 1974 as a limited liability company and in 1990 was converted to a societe anonyme. It acts as an agent and wholesale and retail distributor of consumer products especially foods, and has been distributing the first respondent's products since 2000 when the two companies entered into commercial collaboration, and in particular distributes the biscuits with the brand name..........., which was a biscuit first released internationally in 1892. Given that consumers wish to consume ingredients which are less detrimental to their body both the plaintiff and the first respondent engaged in an ongoing struggle to develop biscuits with the least fat and calories. More specifically, after the enactment of Regulation (EC) No 1924/2006 on nutrition and health claims on 20.12.2006 but before it took effect on 1.7.2007, the first respondent changed the ingredients and packaging of its product with the brand name ... ... Light, and the new packaging was placed on the international market in mid-2008 and became available on the Greek market in May 2009 with the contested markings '... ... Light 30% less fat’ and a note in Greek that it had (in translation) ‘30% less fat than biscuits with the trade name ... ... Original’, thereby amending the markings for the previous version of the biscuit which had the brand name ... ... Light 25% less fat. It should be noted that in March 2010 it changed the packaging of the contested product again by affixing a self-adhesive green sticker to it reading ‘Light 30% less fat, no artificial colours or colorants’. Today the packaging for the contested biscuits reads 'Light 30% less fat, no artificial colours or colorants, Wheat biscuits with reduced fat’. However, despite the current change in the packaging to the contested product and despite claims to the contrary by the respondents, the plaintiff continues to have a legitimate interest in filing this action since as the entire body of evidence has demonstrated, and in particular the purchase receipt for the contested product on the date of the hearing (9.6.2010) and from a few days before it (18.5.2010), that old packaging continues to be in circulation on the Greek market.Consequently, in light of the reasoning set out above, read in conjunction with the Greek version of the Annex to Regulation (EC) No 1924/2006 published in the Official Journal of the European Union, concerning the nutrition claim ‘μειωμένων θερμίδων’ (light / lite) (which would translate in English as ‘reduced calories (light/lite), “A claim stating that a product is 'reduced calories' ("light" or "lite"), and any claim likely to have the same meaning for the consumer, shall follow the same conditions as those set for the term "reduced"; the claim shall also be accompanied by an indication of the characteristic(s) which make(s) the food a ‘reduced calories’ ("light" or "lite") food.” The meaning of the term 'light’ as contained in the said Regulation is that any product with a fat content which has been reduced by at least 30% compared to another similar product is light. Moreover, from the translations of the text into the other official languages of the European Community adduced by the respondents and relied upon in evidence, it was proven that there was a discrepancy in the Community texts on the translation of the term 'light’ which in the Greek text is rendered as ‘μειωμένων θερμίδων' (something equivalent to ‘reduced calories’) instead of the term ‘ελαφρύ’ (which means light) as it appears in the translation in the other EU countries. In accordance with the points made above, all texts of the European Regulation in all official languages, including Greek, are authentic, but in the case of ambiguities or differences in the official texts, as is the case here, the discrepancy which arises must, on a correct reading of the law, be resolved by taking into account (a) the general principles governing Community law on the free movement of goods within the internal market and (b) the entire text, and in particular the purpose of the provision, which is something that must play the decisive role. Consequently, in this case, where the court has ascertained a discrepancy between the translation of the term 'light' in the Greek language, a teleological interpretation of the provision is critical. Judging from the entire body of evidence, in the view of the Court the Greek version of the term 'light' in the said European Regulation has been wrongly translated as referring only to products with reduced calories, since no other European text other than the Greek one limits the said nutrition claim (‘light’) to products with reduced calories only, but on the contrary all texts, other than the Greek one, give that term the meaning of light as it is normally understood in English, which includes not just products which have 30% fewer calories than normal but also products whose content in terms of some nutrient or other ingredient has been reduced by 30%. Moreover, from a detailed examination of the entire text of Regulation (EC) No 1924/2006 it is clear that the Regulation seeks to harmonise the legislative, regulatory and administrative provisions of the Member States relating to the use of nutrition and health claims which appear on foods so as to ensure the effective operation of the internal market and to provide a high level of protection to consumers and to prevent unequal competition conditions. The annex to the Regulation includes a detailed list about nutrition and health claims on foods and the conditions for using them, which seeks to cover all possible nutrition claims. The Regulation includes a special term for foods which have 30% fewer calories which is ‘energy reduced’, and therefore one can easily conclude that there was no need for a double reference to that term in the Regulation, as the plaintiff has argued without basis. On the contrary, in using the term 'light’, on a broad interpretation of the provision, the legislator wanted to cover the cases of products which are 30% lighter than normal products in terms of any ingredients, whether nutrients or not. Moreover, a narrow interpretation of the term 'light' as referring only to low calorie products conflicts with the letter of law which requires that the said nutrition claim ('light’) be accompanied by an indication of the characteristic(s) which make the product light. If the term ‘light’ is to be used solely and exclusively for calories then this provision would be meaningless nor would it be necessary to indicate the characteristics which make it light, and it would be sufficient for that indication only to appear for someone to understand that the product had 30% fewer calories. In addition, the contested packaging is available in many European countries without any similar problem ever having arisen.Furthermore, it was proven that the respondents rightly associated the name of the contested biscuits with the marking ‘light 30% less fat' compared to the.......... original wheat biscuits. In fact, according to the nutritional table the contested biscuits have less fat compared to the original ones, and in particular 14.4gr per 100gr compared to 16 gr per 100 gr in the original product, which is in fact 34% less fat, a figure over the 30% level, and therefore (a) the packaging correctly states the marking 'light' and (b) that nutrition claim is correctly accompanied by an indication of the characteristics which make the food 'light' and in particular the marking '30% less fat' compared to the original product, and any arguments made by the plaintiff to the contrary must be dismissed as unfounded on their merits. Furthermore, the product may not meet the conditions for applying the claim 'low fat’ in accordance with the Regulation, as the plaintiff rightly argued, but it does meet the conditions for products with a reduced nutrient content, which is the category it belongs to, since -as mentioned above- in this case the marking '30% less fat’ accompanies and in effect explains the term ‘light’ in relation to the nutrient which has been reduced in the product, and in that sense (as an accompaniment to the term 'light') is absolutely lawful and in accordance with the said Regulation. In light of that, since the nutrition claim 'light’ and the accompanying marking ‘30% less fat’ compared to the normal product...... original, in fact satisfy the test for products with a reduced nutrient content, namely reduced fat, and complies with the requirements laid down in Regulation (EC) No 1924/2006, it has been proven that the respondents did not make any inaccurate representation and therefore the action must be dismissed as unfounded in its entirety. The court costs must be apportioned between the parties since interpretation of the rules of law applied in this case was particularly difficult (Article 179 of the Hellenic Code of Civil Procedure).

ON THESE GROUNDS
The Court trying the parties by adversarial proceedings:
DISMISSES the action.
APPORTIONS the court costs between the parties