C-91/87

GUTSHOF-EI v LAND RHEINLAND-PFALZ

O P I N I O N O F M R ADVOCATE GENERAL MANCINI delivered on 8 March 1988 *

Mr President, 'Güteklasse A "frisch"' (Grade A 'fresh Members of the Court, eggs').

1. Under Community law the marketing of eggs is governed by Regulation N o 2772/75 In 1985 the competent department of Land of 29 October 1975 (Official Journal 1975, Rheinland-Pfalz informed the undertaking L 282, p. 56). Article 6 (1) of that regu- that that marking was to be regarded as lation provides that 'eggs shall be graded by unlawful because Article 6 of Regulation quality as follows: Grade A or "fresh eggs", N o 2772/75 only authorized the use either grade B or "second-quality or preserved of the words 'Grade A' or 'fresh eggs'. e Gutshof-Ei did not accept that argument ggs", grade C or "non-graded eggs intended for the food industry" '. As regards and brought an action before the Ver- packaging, Article 16 distinguishes between waltungsgericht (Administrative Court) 'large packs' containing more than 30 eggs Neustadt an der Weinstraße for a and 'small packs' which contain 30 eggs or declaration that its marking practice was in less. By virtue of Article 18, the latter type accordance with the relevant Community of pack must show 'in clearly visible and rules. By order of 20 March 1987, the legible type . . . (c) the quality and weight national court stayed the proceedings and grading' of the eggs. Lastly, Article 21 submitted to the Court for a preliminary provides that 'packs (in general) shall not ruling the following question: bear any indications other than those laid down . . . '; as a result of amendments contained in Regulation N o 1831/84 of 19 June 1984 (Official Journal 1984, L 172, p. 2), Article 21 adds, however, that small packs may carry ' . . . (c) statements designed Under Article 6 (1) and Article 21 of Regu- to promote sales, provided that such lation N o 2772/75, as amended by Regu- statements and the manner in which they lation N o 1831/84, together with the are made are not likely to mislead the preamble to the former regulation, must purchaser'. small packs of Grade A eggs be marked only 'Grade A' or 'fresh eggs', or may both markings be used together?

the European Communities have submitted mutually exclusive. In its view, 'or' has a written and oral arguments. disjunctive effect. If the legislature had intended to permit the combined use of the two expressions, it would have employed the two conjunctions 'and/or' or laid down a rule to that effect. Moreover, from a tele- ologica! interpretation it is clear that the 3. According to Gutshof-Ei, the expressions Council had in mind the interests of 'Grade A' and 'fresh eggs' are synonymous consumers; consequently, it must be and both are intended to describe only eggs assumed that, in defining the quality grade, which comply with the requirements laid it made every effort to prevent the use of down in Article 7 of Regulation N o expressions liable to confuse the consumer 2772/75. For the purposes of marketing of at the time of purchase. such eggs, it is clear that small packs must bear at least one of the two phrases, but that does not mean that they may not contain both. N o such prohibition appears in any provision of the regulation, nor may it be That is, however, the effect of the contested inferred from the general scheme thereof. marking, if it is true that, faced with two That is shown by the fruit of the experience packs of eggs of the same quality and acquired after 1975, namely the new text of weight, one of which is marked 'Grade A' Article 21, which for small packs permits and the other 'Grade A — fresh eggs', 90 additional information designed to promote customers out of 100 would (and do in fact) sales, provided that it does not mislead the choose the pack accentuating the fact that consumer. the goods are fresh. In other words, the addition of the words 'fresh eggs' leads the consumer to believe that the eggs so described have something extra compared with Grade A eggs. The undertaking concludes that there is no doubt that the contested marking complies with the latter condition. Thirteen years after the entry into force of the Community N o r is that conclusion affected by the fact rules, the consumer has certainly learned that Article 21, as amended, permits small that Grade A eggs are also called 'fresh packs to carry 'statements designed to eggs' or, in other words, that the adjective promote sales'. That authorization was 'fresh' merely refers to the first, more granted in very limited circumstances and is general description. The consumer therefore subject to very strict limits: this is shown by cannot be misled by the contested use of the the fact that the word 'extra' may be two expressions, which are entirely inter- stamped only if the eggs are exceptionally changeable. fresh.

Frequently, it is used to define a concept the use of other expressions which are laid more fully by using another or even to down in the same regulation, such as 'extra' separate concepts or words which are inter- and 'eggs laid by free-range hens' or fancy changeable. In Latin, those uses corre- descriptions such as 'eggs for drinking', has sponded from time to time to the no bearing on the problem with which we conjunctions aut, sive, vel and the enclitic are concerned. Thus there would be no -ve; and although modern languages are not contradiction in maintaining both that such as rich, we are all familar with the expressions may be added to the two difference between the meaning of 'or' in phrases at issue and that the latter may not phrases such as 'now we must win or die', be combined. 'felis eatus or the domestic cat is a carni- vorous animal', 'Brussels and Luxembourg are two or three hours apart' and 'the most beautiful mountain in the Alps is the Cervino or the Matterhorn'. The sense in which 'or' is used in Article 6 will be What, then, is the answer to be given to the considered hereinafter; but these simple question put by the Verwaltungsgericht observations are themselves sufficient to Neustadt an der Weinstraße? It may be deprive the institution's line of argument of provided by a short analysis of the problems any cogency. facing the Community legislature when it laid down the classifications in Article 6. It is clear that that task required it to take account of the national rules in force at that time, and thus it necessarily discovered that, although in the main they distinguished between first- and second-quality eggs, they Equally weak is the argument put forward used descriptions which often had different concerning the likelihood that a pack meanings (in Germany, for example, Grade bearing the marking 'Grade A — fresh eggs' I referred to the weight of the goods). That will confuse the consumer. In the first place, is not all. In addition to those categories, it is not clear why such a combined the legislature considered it necessary to expression should be more equivocal than introduce a third category, for 'eggs which the simple expressions ('Grade A' and 'fresh do not meet the requirements for the higher eggs') to which the Commission would like grades but are still suitable for human to restrict the producer's choice. Secondly, consumption' (11th recital). So Grade C to state that the purchaser is attracted was born, and was also subject to the rules mainly by the expression 'fresh eggs' implies laid down in Article 18 for small packs. that this is more expressive and efficacious than 'Grade A', and hence leads to the conclusion that the alternative use of the two expressions may confuse consumers at least as much as their combined use.

was the reason for which the legislature (vel). Consequently, the use of one or the linked the phrases 'fresh eggs', 'second- other — or, equally, both—is of no signif- quality or preserved eggs' and 'non-graded icance or rather is equally valid. eggs intended for the food industry' to 'Grade A', 'Grade B' and 'Grade C', and I would make one final observation. Unlike this also sheds light on the meaning of the the producers and the national courts, the conjunction with which the link was Commission has at its disposal staff who are effected. Far from laying down the two particularly expert in the rules on eggs. To expressions in the alternative (auf), 'or' is use them as it has done in this case, in a intended to explain the first more fully, by stubborn attempt at splitting hairs, seems to means of the second (sivé), and at the same me to be an unforgiveable waste of time and time to show that they are synonymous energy.

5. In the light of the foregoing considerations, I propose that the Court should answer the questions submitted to it by the Verwaltungsgericht Neustadt an der Weinstrasse by order of 20 March 1987 in the proceedings pending before it between Erzeugergemeinschaft Gutshof-Ei and the Land Rheinland-Pfalz as follows:

'The rules contained in Regulation N o 2772/75 of 29 October 1975 on the marketing in small packs of Grade A eggs, and in particular Articles 6 (1), 18 and 21 (c), must be interpreted as permitting the combined use on such packs of the words "Grade A" and "fresh eggs".'