C-203/90
ECLI:EU:C:1991:481
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GUTSHOF-EI
OPINION OF MR ADVOCATE GENERAL TESAURO delivered on 13 December 1991 *
Mr President, of 'statements designed to promote sales, Members of the Court, provided that such statements and the manner in which they are made are not likely to mislead the purchaser' and that such indications, being allowed on small packs with which the consumers comes into 1. In. the present proceedings the Court is contact most frequently, should a fortiori be again called on to interpret the Community allowed on large packs. The fact that Article legislation governing the marketing of eggs. 21 provides for the use of statements designed to promote sales only on small packs is therefore due, in the appellant's view, to a simple drafting error. Gutshof-Ei, the appellant in the proceedings before the national court, is a company which produces and markets eggs. It delivers eggs from its packing centre to retailers in large cardboard boxes which bear on the sides various statements such as 'Legefrische... die Sie schmecken' [new laid . . . as you can taste] and 'Legefrische' By order of 20 June 1990, the Verwaltungs- [new laid]. gerichtshof Baden-Württemberg, before which the appeal was brought, decided to stay the proceedings and ask the Court of Justice whether Article 21 of Regulation No Following objections raised by the 2772/75 is to be interpreted as meaning that competent authorities in the city of Bühl, large packs of eggs too may bear statements Gutshof-Ei brought an action before the designed to promote sales; in the event of Verwaltungsgericht Karlsruhe (Adminis- an affirmative answer, whether statements trative Court, Karlsruhe) for a declaration which are objectively true may mislead that it was entitled to use those statements consumers if they associate false on its large packs. The action was dismissed assumptions with them, and also whether by judgment of 23 August 1989. Article 21 prohibits on large packs of eggs statements designed to promote sales which concern the freshness of eggs.
Gutshof-Ei appealed against that decision, contending in particular that subparagraph (c) of the second paragraph of Article 21 of Council Regulation (EEC) No 2772/75 of 29 October 1975 on marketing standards for eggs ' allows the affixing to small packs 2. With regard to the first question, let me * Original language: Italian. say at the outset that, as is apparent from 1 — OJ 1975 L 282, p. 56. Articles 16 to 20 thereof, Regulation No
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2772/75 draws, even in its initial version, a lation No 1831/84 appearing on large clear distinction between large and small packs. packs. Moreover, as is absolutely clear from subparagraph (c) of the second paragraph of Article 21 of the regulation in question and from the fourth recital in the preamble to Regulation (EEC) No 1831/84, 2 which amended Regulation N o 2772/75, the However, an examination of the text of Council intended to restrict to small packs Regulation No 3341/84 shows unequi- the possibility of affixing statements vocally that that instrument allows the designed to promote sales. In fact, that affixing to large packs of eggs only of the provision states, in its first paragraph, that management code or the stock control code packs are not to bear any indications other and, also, it is clearly apparent from the than those provided for in the regulation operative part of Regulation No 36/85 that and, in the next paragraph, that small packs by that instrument — which in any event may nevertheless carry statements designed could not have amended a measure to promote sales. emanating from the Council — the Commission simply sought to adapt Regu- lation No 1295/70 5 to reflect the changes made to Regulation No 2772/75 by the later Regulations Nos 1831/84 and 3341/84.
The clear distinction drawn by the Community legislature between large and small packs, both in the original text of the regulation and in the subsequent amendments, thus points to the conclusion Finally, it also seems impossible to accept that there was no drafting oversight in the the view advanced by the national court that present case. the legislation in question should be inter- preted as allowing statements designed to promote sales to be affixed to large packs used within only one Member State. There is no basis in the legislation for such a distinction and such a distinction would barely be conceivable under legislation It is true that the first recital in the preamble intended to facilitate the marketing of a to Commission Regulation (EEC) No 36/85 product in the framework of a common of 7 January 1985 3 appears to show that organization of the markets. Council Regulation (EEC) No 3341/84 4 introduced the possibility of the statements already allowed for small packs by Regu-
2 — OJ 1984 L 172, p. 2. 3 — OJ 1985 L 5, p. 5.. The wording of the recital is as 3. The considerations put forward with follows: 'Whereas, pursuant to Regulation (EEC) No respect to the first question make it 2771/75, as amended by Reguládon (EEC) No 1831/84, the indication of the packing week number on egg packs unnecessary for me to examine the second has been replaced by that of the packing period; whereas and third questions submitted by the small packs may, pursuant to the same regulation, bear certain indications; whereas Regulation (EEC) No national court. However, in order to give 3341/84 introduced such a possibility in the case of large the national court a helpful answer for the packs; whereas, therefore, Commission Regulation (EEC) N o 1295/79 should be amended accordingly'. 4 — OJ 1984 L 312, p. 7. 5 — OJ English Special Edition 1970 (II) p. 408.
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purpose of applying Community law in the 4. For a proper understanding of the scope case before it, I think it is appropriate also of the question it is necessary at this point to examine Regulation (EEC) No to describe, if only summarily, the devel- 1907/90, 6 which repealed and replaced opment of the Community legislation Regulation No 2772/75, redefining the concerning indication of the date of laying marketing standards for eggs. The national of eggs, bearing in mind above all that the court will probably have to apply to the case now repealed Regulation No 2772/75 before it the legislation adopted in the contained an absolute prohibition of indi- meantime, on the interpretation of which cating the date of laying on the eggs the parties in fact submitted their obser- (Article 15) and on the packs (Article 21). vations. 7
As is apparent from the grounds of the judgment in Case 204/88 Ministère Public v Paris,* that prohibition was justified by the difficulty — in view of the extremely large The answer to the first question would be number of producers — of carrying out the considerably different if based on the new checks needed to ensure the accuracy of the rules adopted by the Council. Article 10(2) date of laying. Whilst not disputing that of Regulation No 1907/90 provides that reliable systems existed for checking the both large and small packs may carry on date of laying, the Commission had pointed either inner or outer surfaces statements out that such systems can in fact only be designed to promote sales, provided that used by the big producers who are in a such statements and the manner in which position to make the requisite investments they are made are not likely to mislead the for that purpose, emphasizing that in the purchaser. event of only the latter being permitted to indicate the date of laying, the equality of marketing conditions for Community producers would be undermined. In those circumstances, the Community institutions decided that only the date of packing should be indicated, being easier to check because of the limited number of packing centres. Whilst on the basis of that legislation the answer to the first question raises no problems and is incontestably affirmative, it becomes more complex to deal with the other questions, in which the national court essentially seeks to determine whether the In the light of those arguments the Court Community legislation prohibits statements stated in that judgment that, in view of the designed to promote sales which refer, need to reconcile both the interests of albeit only in general terms, to the time of producers and consumers and the — at laying of the eggs and whether the truth of times — divergent interests of different such statements is relevant in that regard. categories of producers, it did not appear that by prohibiting traders from indicating 6 — OJ 1990 L 173, p. 5. 7 — Both the appellant and the Commission referred in their written observations to Regulation N o 1907/90. 8 — Case 204/88 [1989], ECR 4361.
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the date of laying on the eggs marketed by No 1274/91 of 15 May 1991 introducing them that the Community institutions had detailed rules for the implementation of committed any manifest error in their Regulation (EEC) No 1907/90, 10 the overall assessment of the situation and of Commission laid down that the possibility the nature of the measures required or of affixing the date of laying on eggs and exceeded in one way or another the general packs should be subject to compliance with limits of their discretion. particularly severe administrative formalities and controls intended to guarantee the accuracy of the information given to the consumer (see in particular Article 17 of Regulation No 1274/91).
In its later judgment in Gold-Ei,9 the Court then made clear that wording such as 'packed on the day of laying' on the outside or inside of a pack, designed to inform the consumer of the date of laying, cannot be regarded as a statement designed to promote sales and is therefore prohibited by The use of indications which, albeit indi- the first paragraph of Article 21 of Regu- rectly, refer to the time of laying of the egg lation No 2772/75, in the same way as an and in any way lead the consumer to explicit indication of the date of laying. presume the existence of Community checks of that time is therefore allowed under the new legislation but only if the trader accepts the obligations and controls provided for by Community law in order to guarantee the accuracy of such information. It need hardly be pointed out that, as is apparent from the judgments cited, a general prohibition of that kind applies whether or not it is possible in certain circumstances to check reliably the date of laying. 6. As regards the additional risk that the consumer may be induced to believe that in addition to the gradings provided for by Community law there is a particular grade known as 'new-laid' eggs, ' ' I must point 5. The legal situation that I have described out that such an eventuality depends on the was partly modified by the adoption of manner in which such wording is shown on Regulation N o 1907/90, which now allows the pack and that a presentation clearly the indication of dates other than that of constituting advertising could avoid any packing (seventeenth recital and Articles such risk. However, assessments of such 7(b) and 10(2)(c), but makes that possibility matters of fact fall within the exclusive dependent upon fulfilment of the conditions purview of the national court. laid down by the Commission under the management-committee procedure (Article 10 — OJ 1991 L 121, p. 11. 10(3)). And in fact, by Regulation (EEC) 11 — The risk is particularly great in some languages such as German because of the closeness of die terms 'extra fresh' provided for in Regulation No 1907/90 and 'new laid' 9 — Case 372/89 [1991] ECR 1-43. ('extra frisch' and 'legefrisch').
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7. In view of the foregoing considerations I therefore propose the following answer to the questions submitted by the Verwaltungsgerichtshof Baden- Württemberg:
(1) Article 21 of Regulation (EEC) N o 2772/75, as amended by Regulation (EEC) N o 1831/84, is to be interpreted as meaning that only small packs of eggs may carry statements designed to promote sales;
(2) Article 10 of Regulation (EEC) No 1907/90 extends that possibility to large packs;
(3) Article 10 of Regulation (EEC) N o 1907/90 is to be interpreted as allowing the affixing to large and small packs statements which refer directly or indi- rectly to the time of laying of the eggs, subject to compliance with the conditions and limitations laid down by the Commission in order to guarantee the accuracy of such statements and provided that those statements are not likely to give rise to confusion with the quality gradings provided for by Community law.
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