Case BriefsInternational Courts

European Court of Justice: The Bench comprising of J. Passer (Rapporteur), President, F. Biltgen and N. Wahl, JJ., held that the German food manufacturer, Dr. Oetkar had failed to comply with the requirements of providing adequate nutritional value as per European Regulation. The Bench remarked,

“By analogy, isolated information displayed on the front of the packaging does not enable products to be compared and the additional declarations displayed elsewhere on the packaging with different reference quantities are simply liable to confuse the consumer even more as to comparability with other products.”

The instant case was related to a proceeding between Federal Union of Consumer Organisations and Associations, Germany and a German food business, Dr. August Oetker Nahrungsmittel KG (‘Dr. Oetker’) concerning an application for an order requiring the company to make the nutrition labelling on the front of muesli packaging, launched under the name “Dr. Oetker crunchy muesli with chocolate and biscuits”, consistent with the requirements of Regulation No 1169/2011.

According to the Union, Dr. Oetker infringed Article 33 of that regulation, read in conjunction with Articles 30 and 32 thereof, on the ground that on the front of the product’s packaging, the energy value was stated not per portion of the product as sold but only per portion of the product after preparation.

Opinion of Referring Court

According to the referring Court, the outcome of the proceeding depended on a point of law, in particular on whether Article 31(3) and Article 33(2) of Regulation No 1169/2011 are to be interpreted as prohibiting the indication on the front of the packaging of nutrition information per portion of the food after preparation without also stating the energy value per 100 g of that food as sold.  Therefore, the referring Court had asked,

  1. Whether Article 31(3) must be interpreted as applying only to foods which, in order to be consumed, require preparation and for which the method of preparation is predetermined?
  2. Does the phrase “per 100 g” in Article 33(2) 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?’

In short, the referring Court had called the Court to rule whether, where there are various methods of preparing a food, the nutrition declarations that are repeated on a voluntary basis on the front of that food’s packaging can be limited to one of those methods of preparation?

Nutritional Value of ‘Food after Preparation’ v/s of ‘Food as sold’

The product at issue in the main proceedings may be prepared in various ways, e.g. by adding milk, yoghurt, fromage blanc, fruit juice, fruit, jam or honey. It may also be consumed without any preparation.

Noticing that under the second subparagraph of Article 31(3) of Regulation No 1169/2011, the nutrition information may, ‘where appropriate’, relate to ‘the food after preparation’ instead of to the food ‘as sold’, ‘provided that sufficiently detailed preparation instructions are given and the information relates to the food as prepared for consumption’, the Bench opined that the objective pursued by the Article 31(3) must be determined in the light both of the aim of that provision and of the objectives of the legislation in question, including the objective of ensuring a high level of consumer protection in relation to food information, taking into account the differences in perception of consumers.

Customer’s Right to Compare

According to recital 35, the provisions relating to a nutrition declaration per 100 g or 100 ml have the objective of ‘facilitating the comparison of products in different package sizes’, that recital also explains that ‘additional portion-based declarations’ are allowed, ‘in addition to the expression per 100 g or per 100 ml’, ‘if appropriate’, ‘where food is pre-packed and individual portions or consumption units are identified’.

Recital 41 states that, ‘to appeal to the average consumer and to serve the informative purpose for which it is introduced’, the nutrition information provided must ‘be simple and easily understood’.

Hence, where a food may be prepared in various ways, the information regarding the energy value and amounts of nutrients of the food after its preparation in accordance with the producer’s suggestion does not enable a comparison to be made with the corresponding foods of other producers. Considering that the calculation of the energy value and of the amounts of nutrients of a product which may be prepared in various ways is uncertain as it necessarily varies according to the method of preparation, the Bench held that lack of comparability could not be made up for by the fact that the values of a portion were indicated elsewhere on the packaging, with the values per 100 g of the product as sold.

Accordingly, the Bench opined that where a food may be prepared in various ways, the information regarding the energy value and amounts of nutrients of the food after its preparation in accordance with the producer’s suggestion does not enable a comparison to be made with the corresponding foods of other producers.

Verdict

In the backdrop of above, the Bench held that the fact that the list of ingredients was displayed on the packaging of the goods concerned did not in itself exclude the possibility that the labelling of those goods and methods used for it may be such as to mislead the purchaser.

Hence, the Bench held that foods which may be prepared in different ways must be excluded from the scope of the second subparagraph of Article 33(2) of Regulation No 1169/2011 and the second subparagraph of Article 31(3) must be interpreted as applying only to foods for which preparation is necessary and the method of preparation is predetermined.[Verbraucherzentrale Bundesverband eV v. Dr. August Oetker Nahrungsmittel KG, Case C-388/20, decided on 11-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Supreme Court of the United States: Roberts, CJ., while addressing a matter with regard to artworks obtained by Nazis from Jewish art dealers with the usage of coercion, held that:

The phrase “rights in property taken in violation of international law,” as used in the Foreign Sovereign Immunities Act expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.

The Foreign Sovereign Immunities Act provides that foreign nations are presumptively immune from the jurisdiction of United States Courts. One of the exceptions under the statute is:

a sovereign does not enjoy immunity in any case “in which rights in property taken in violation of international law are in issue.”

 The question to be considered in view of the above exception is: Whether a country’s alleged taking of property from its own nationals falls in the above exception?

 Factual Matrix

Present matter is in with regard to the dozen medieval relics and devotional objects known as the Welfnschatz. The pieces date back to the early days of the Holy Roman Empire and occupy a unique position in German History and culture.

The collection was assembled within Germany’s Brunswick Cathedral over the course of several centuries, before being moved to a Hanoverian chapel in 1671 and later to Switzerland for safekeeping in the wake of World War I.

During the waning years of the Weimar Republic, a consortium of three art firms owned by Jewish residents of Frankfurt purchased the Welfenschatz from the Duke of Brunswick. By 1931, the consortium had sold about half of the collection’s pieces to museums and individuals in Europe and the United States, including many to the Cleveland Museum of Art, where they reside today.

After ascending to power, Hermann Goering—Adolf Hitler’s deputy and the Prime Minister of Prussia—became interested in the remainder of the Welfenschatz.

Reasons for the Complaint filed and what does it allege?

It has been alleged in the complaint that Hermann Goering employed a combination of political prosecution and physical threats to coerce the consortium into selling the remaining pieces to Prussia in 1935 for approximately one-third of their value.

What happened to the consortium members and how are the respondents related to them?

Two of the consortium members fled the country following the sale, and the third died in Germany shortly thereafter.

Respondents are two United States citizens and a citizen of the United Kingdom who traces their lineages back to the three members of the consortium.

The United States took possession of the Welfenschatz in the course of the occupation of Nazi Germany at the end of the war, eventually turning the collection over to the Federal Republic of Germany.

For nearly 60 years, the treasure has been maintained by Stiftung Preussischer Kulturbesitz (SPK)—the Prussian Cultural Heritage Foundation—and it is now displayed at a museum in Berlin. SPK is an instrumentality of the Federal Republic.

SPK conducted an investigation on heirs approaching them claiming that the sale of the Welfenschatz to Prussian Government was unlawful. In the investigation, it was determined that the transaction occurred at a fair market price without coercion.

German Advisory Commission

Parties agreed to submit the claim to the German Advisory Commission for Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property.

Commission concluded after reviewing the witnesses and hearing from expert witnesses the sale had occurred at a fair price without duress.

Federal District Court in Washington, D.C.

Germany argued that it was immune from suit because the heirs’ claims did not fall within the FSIA’s exception to immunity for “property taken in violation of international law.”

Panel while agreeing with the heirs that the exception for property taken in violation of international law was satisfied because “genocide perpetrated by a state even against its own nationals is a violation of international law.”

Whether the sale of the consortium’s property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. 

Bench recognized that ‘United States law governs domestically but does not rule the world.’ Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 115 (2013).

As a Nation, we would be surprised—and might even initiate reciprocal action—if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States Government years ago. There is no reason to anticipate that Germany’s reaction would be any different were American courts to exercise the jurisdiction claimed in this case.

Court found that none of the arguments submitted by the heirs could overcome the text, context and history of the expropriation exception.

Heirs could not show that the FSIA allows them to bring their claims against Germany.

Further, while concluding its decision, Supreme Court expressed as follows:

We hold that the phrase “rights in property taken in violation of international law,” as used in the FSIA’s expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.

While vacating the decision of the  Court of Appeals for the D.C. Circuit, Bench remanded the case for further proceedings.[Federal Republic of Germany v. Philipp,  2021 SCC OnLine US SC 1, decided on 03-02-2021]