C-204/88
ECLI:EU:C:1989:344
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CRIMINAL PROCEEDINGS AGAINST PARIS
OPINION OF MR ADVOCATE GENERAL TESAURO * delivered on 26 September 1989
Mr President, out that in some cases the national court has Members of the Court, found it necessary to acquit the accused. Other courts have instead applied the relevant provisions to the letter on the ground that the rules in question had not, as 1. The facts in the case pending before the it were, 'lapsed' or even been 'invalidated' tribunal de police, Rethel, which submitted either by technical developments at the time this reference for a preliminary ruling, may of the adoption of the regulation or by the be summarized in three lines: Mr Paris, a need to implement the principle of French poultry breeder, was prosecuted for consumer protection properly and in full. offering for sale in a hypermarket fresh eggs Hence the importance of the Court's whose shells were marked with the date on decision. which they were laid.
4. According to the contested regulation, 2. The legal issues raised by this case lead and particular Article 15 thereof, 'eggs shall me to consider the Community rules on the not bear any marks other than those marketing of eggs not so much, as the provided for in this regulation'. Article 11 national court points out, for the purpose of contains an exhaustive list of 'distinguishing interpreting them, as in fact to establish marks' which may be stamped on eggs to be whether or not the contested Community marketed. The 'marks' do not include the rules are valid. date on which the eggs were laid.
3. As is clear from the Report for the 5. In the criminal proceedings instituted Hearing, to which I refer for a more against them, the accused claimed that detailed summary of the facts of the case Article 15 of the contested regulation must and the arguments of the parties, the sale by be regarded as contrary to the Treaty of Mr Paris of eggs whose shells were marked Rome and to the consumer's basic right to with the date on which they were laid led to information. The national court therefore his being charged with (in France the asks the Court to give a ruling on the inter offence of) infringing Articles 11 and 15 of pretation of Article 15 of the contested Regulation (EEC) No 2772/75 of the regulation in the light of the Treaty. Council of 29 October 1975 on marketing standards for eggs (Official Journal 1975, L 282, p. 56), hereinafter referred to as 'the contested regulation'. As the Court learnt at the hearing, this is not an isolated case since 6. Allow me to preface my Opinion with a several prosecutions have been initiated for remark. The question submitted for a the same offence. It should also be pointed preliminary ruling can turn only on the
* Original language Italian.
OPINION OF MR TESAURO — CASE 204/88
validity of the regulation in question. The consumer protection, was refined at the interpretation of Article 15 in conjunction hearing. Mr Paris argued that the only date with Article 11 is in no way open to doubt. which may lawfully be affixed under the The sale of eggs marked with the date on regulation, apart from the recommended which they were laid is contrary to those sell-by date for small packs, does not provisions. The real problem is whether or provide consumers with proper information, not the Community regulation which thus making it possible — lawfully — to sell, prohibits the eggs from being so marked is as extra fresh, eggs laid more than 10 days valid. before being sold.
7. In that regard there is no need to dwell at great length on one of the possibilities 11. For the purposes of this investigation, I suggested by the national court, that is to would point out that, in principle, that say the existence of a conflict between the assertion has not been challenged either by contested rules and Article 86 of the Treaty the Commission or by the Council, the two of Rome. Article 86 applies to the conduct institutions which submitted observations at of undertakings and the issue in this case is the hearing. Those two institutions have a prohibition on sales of products marked explained to the Court the reasons why the with the production date laid down by Community legislature opted for a Community legislation. Article 86 is prohibition on marking eggs with the date therefore inapplicable to this case. on which they were laid but have been unable either to deny that in certain cases the factual situation may correspond to that described by Mr Paris or to answer the 8. Instead, Mr Paris's critical observations Court's questions exhaustively. In particular, regarding the existence of a conflict notwithstanding repeated requests on my between the prohibition under consideration part, I have been unable to obtain sufficient and the requirements of consumer clarification as to the criteria for checking protection are more substantial and in any the freshness of an egg. Indeed, the event deserve more detailed consideration. Commission acknowledged that there is no reliable criterion for ascertaining with certainty the date on which an egg was laid.
9. In that regard, the exchange of views which took place at the hearing has made it possible to focus more clearly on the elements of a problem which remained 12. That being so, I consider that although somewhat out of focus during the written the grounds relied upon by the two procedure. Community institutions may indeed clarify the ratio legis of the contested legislation, they do not constitute an answer to Mr Paris's argument. Mr Paris does not claim 10. The main argument put forward by Mr that the contested regulation does not state Paris, that is to say that the prohibition laid the reasons on which it is based. Instead, if I down by the contested regulation on understand his argument correctly, he marking eggs with the date on which they maintains that the prohibition in question were laid is unlawful inasmuch as it makes it constitutes a bad solution by the impossible to satisfy the requirement of Community legislature to a real problem,
CRIMINAL PROCEEDINGS AGAINST PARIS
inasmuch as it gives excessive weight to the Similarly, it does not, in my view, serve any interests of egg producers over the interests purpose to consider in depth another of consumers. argument which could be adopted to establish a conflict between the rules under consideration and a general legal principle whose observance is ensured by the Court, 13. In order to give a useful answer to the namely breach of the principle of freedom national court, therefore, it is necessary to to engage in a professional or trade activity. consider whether the legislation in question It has been pointed out that the rules under exhibits a flaw which is sufficiently serious consideration prevent efficient producers, for the legislation to be declared invalid. who are able to make the investments needed in order to equip themselves with devices to ensure that the date marked on the eggs is correct and that the product is
14. To that end it is necessary, in my view, marketed within 24 hours, from taking to rule out the possibility of invalidity as a advantage of that capability. However, it result of a conflict between the relevant must be pointed out in that regard that, as is provisions of secondary legislation and apparent from the Court's judgment of 8 primary rules such as the EEC Treaty or a October 1986 in Case 234/85 Keller [1986] higher principle of law. In that regard, I ECR 2897, for an infringement of that would point out that all the parties which principle to occur, the Community rules have submitted observations in the which impose certain restrictions on the proceedings before the Court, whether in activities of the traders concerned must the oral procedure or at the hearing, namely adversely affect the actual substantive Mr Paris, the United Kingdom, the Council content of the right freely to engage in an and the Commission, acknowledge that one activity. In my view, no such breach of the of the aims of the contested rules is to substantive content of the right under afford protection to the consumer. The consideration has occurred in this case. parties disagree, however, about the effects of taking the interests of consumers into account in that way, said to be sufficient and therefore not open to criticism by some, but totally inadequate and indeed 'deceptive', to adopt the expression used at the hearing, by the accused in the criminal 15. The real problem to be resolved is, proceedings. therefore, whether the Council regulation, which constitutes the outcome of an attempt to reconcile divergent interests, is internally valid or whether, in adopting that regu lation, the Council committed an error Accordingly, without dwelling on the merits which invalidated it. of the conflicting arguments advanced by Mr Paris and the United Kingdom as regards the existence or otherwise of a basic right of consumers to information, I shall confine myself to stating that it is unnecessary to resolve that vexed question in this case since the divergences which have 16. It is clear from the preamble to the come to the fore relate not so much to the contested regulation and the details given at question whether or not the consumer is the hearing by the two Community entitled to information as to the quantum institutions that the reasons which led the thereof.
Community legislature to make the packing
OPINION OF MR TESAURO — CASE 204/88
date mandatory and to prohibit the marking Frères v France [1977] ECR 1835 and of 6 of eggs with the date on which they were December 1984 in Case 59/83 Biovilac v laid are connected with the aims of the EEC [1984] ECR 4057), in pursuing the common agricultural policy referred to in various aims laid down in Article 39 of the Article 39 of the EEC Treaty and are essen Treaty, the Community institutions have a tially as follows: permanent duty to reconcile the individual aims. Although that duty to reconcile means that no single aim may be pursued in isolation in such a way as to make the (i) to contribute to an improvement in the achievement of the others impossible, the quality of the product; Community institutions may allow one of them temporary priority in order to satisfy the demands of the economic or other conditions in view of which their decisions (ii) to guarantee Community producers are made'. equivalent prospects of sale, in order to ensure a fair standard of living for them.
Even if the approach initially taken by the Added to those is the concern: Court in its judgment of 1 July 1965 in Joined Cases 106 and 107/63 Töpfer [1965] ECR 405, namely that 'by subordinating the requirements of market stability to main (i) to ensure that the consumer is given tenance of the farmers' standard of living sufficient information; seemed to establish an order of priority between social purposes and economic purposes', 1 has been refined as the case-law has developed, with the result that the (ii) to avoid any effect on trading objectives of Article 39 need not all be conditions within the Community. achieved simultaneously and in full but must be reconciled with each other, the Court's current approach confirms the conclusion 17. The Commission has pointed out in that which I had reached earlier, namely that regard that the primary aim of those rules is pursuit of the priority objective referred to the second of the two aforesaid objectives, by the Commission at the hearing cannot be namely ensuring equivalent prospects of sale seen as constituting an infringement by the for Community producers. In that Council of Article 39 of the Treaty. connection I would point out in the first place that, as the Court stated, in particular, in paragraph 21 of its judgment of 11 March 1987 in Joined Cases 279, 280, 285 and 286/84 Rau [1987] ECR 1069, Accordingly, it is possible to state, by way of initial conclusion, that although, in order to maintain equivalent conditions of production and marketing for eggs, the '. . . according to the settled case-law of the Community legislature selected, in the light Court (judgments of 24 October 1973 in of existing inspection methods, a type of Case 5/73 Balkan Import-Export v Haupt- zollamt Berlin-Packhof [1973] ECR 1091, of 1 — J. Boulouis, R. M. Chevalier: Grands arrêts de la Cour de justice des Communautés européenes, Vol. 2, Second Edition, 20 October 1977 in Case 29/77 Roquette p. 326.
CRIMINAL PROCEEDINGS AGAINST PARIS
mark — the packing date — which is 21. Finally, it remains to be seen whether or accessible to the largest possible number of not excessive consideration of one or more producers and not only to a restricted group of the objectives referred to earlier to the thereof, to give priority to the pursuit of detriment of another can lead to a that objective by means of the chosen declaration of invalidity. And that is method is not contrary to Article 39 of the evidently the argument advanced by Mr Treaty and is therefore not in itself open to Paris. He has laid particular emphasis on criticism. the view that, under the pretext of ensuring the smooth operation of the market, the real aim of the regulation in question is to 18. It remains to be seen whether the prevent consumers from ascertaining the pursuit of an unjustifiable objective or the precise date on which eggs were laid. 'isolation of one of the aims pursued in such Accordingly, the need to safeguard farmers' a way as to make the achievement of the interests leads to the consequence of frus others impossible' could lead to a trating the legitimate expectations of declaration of nullity. consumers in ascertaining whether an egg is really fresh.
19. One of the objectives pursued by the contested regulation is, as we have seen, the need to avoid any effect on trade within the 22. What are we to make of that argument? Community. Both the Council and the At first sight, it undeniably has the merit of Commission have laid emphasis on that drawing attention to a seemingly para objective, arguing that the prohibition on doxical state of affairs. Even on the marking eggs with the date on which they assumption (admittedly in this area we are were laid is justified by the requirement of in the realm of assumptions and the freedom of movement for goods in a single proceedings before the Court have not market. In particular, the point was made produced the desired degree of clarity) that that to mark that date on the eggs would the packing date can be checked more easily raise further problems of inspection upon and reliably than the date on which the eggs their exportation to another Member State, were laid, the fact remains that the packing such as to hinder the free movement of date refers, and I ask for the Court's eggs. indulgence for this truism, only to the date on which the eggs were packed. In particular, that date cannot provide an 20. Even though I must admit that I am absolute guarantee of the freshness of an puzzled by that irgument because I do not egg. And the Commission, I repeat, believe that, in itself, the admittedly funda acknowledged at the hearing that not even mental principle of freedom of movement examination of the air chamber enables the must necessarily lead to a prohibition on date on which an egg was laid to be marking eggs with the date on which they determined. were laid, I consider that, in pursuing that objective, especially if viewed not in isolation but in connection with the other priority objective examined earlier, the Council did not have recourse to measures At this juncture it would seem legitimate to which were disproportionate to the aim raise the question whether the obligation to pursued and which were such as to affix a mark which does not make it constitute a defect invalidating the regu possible to trace the date on which the eggs lation. were laid, except indirectly, that is to say on
OPINION OF MR TESAURO — CASE 204/88
the assumption that the various provisions 24. In my view, no such conclusion can be on gathering and labelling the eggs have all drawn. The Court has consistently held been scrupulously complied with, really is in that, in assessing a complex economic the interest of consumers. Furthermore, in situation, the Community institutions enjoy those circumstances, is there any justifi a broad discretion, which is not open to cation for imposing a prohibition on criticism by the Court except in the event of affixing another date, namely that on which a manifest error, abuse of power or where the eggs were laid, on the ground that the limits of the discretion have obviously existing technical and structural conditions been exceeded. in manufacturing and distribution under takings, would render checks unreliable, when it is quite clear that the only date which can lawfully be affixed may perhaps 25. It is apparent from the foregoing be easier to check but is undoubtedly no considerations that this was not the case more indicative of the sole factor which in here. the end seems to count for the consumer, that is to say whether an egg is really fresh?
23. Is the fact that the prohibition on A charge which may, in the final analysis, marking eggs with the date on which they be levelled against the contested legislation were laid may, at first sight, seem to is that the choice made with regard to the constitute an 'over-reaction' on the part of markings which may be affixed on the the legislature — in the sense that a failure eggshell is perhaps incapable of providing to abide by that prohibition would not in consumers with an absolute guarantee as to any event aggravate a situation which is the freshness of the product purchased. already not very transparent for the However, marking the eggs with the date consumer, who has to settle for a packing on which they were laid would not have date which says little as regards the actual given consumers such a guarantee either degree of freshness of the product — since, as we have just seen, there does not sufficient to support the conclusion that the seem to be a reliable method of checking balance which the Council must seek to the freshness of an egg. In those circum establish amongst the various, at times stances, therefore, I fail to detect the char conflicting, objectives has in this case been acteristic features of one of the three defects unlawfully upset? referred to earlier.
26. In the light of the foregoing considerations, I propose that the Court's answer to the national court should be that Article 15 of Regulation No 2772 / 75 of the Council must be interpreted as imposing a prohibition on marking eggs with dates , such as the date on which they were laid, other than those provided for in the regulation and , secondly, that consideration of the question submitted to the Court has disclosed no factor of such a kind as to affect the validity of Article 15.