C-83/96

PROVINCIA A U T O N O M A DI TRENTO A N D ANOTHER v DEGA

OPINION OF ADVOCATE GENERAL LÉGER delivered o n 29 M a y 1997 *

1. 'Il suffit du déplacement d'une virgule Facts and procedure pour dénaturer le sens de ma penséee' (mov- ing a single comma is enough to distort my meaning), said Michelet, 1 a comment which indicates to perfection the profound perplex- ity of the reader faced with two differently- 4. A fine was imposed on the company Dega punctuated versions of the same text. Such di Depretto Gino for having marketed in perplexity the Corte Suprema di Cassazione Italy cans of pineapple in syrup, produced (Supreme Court of Cassation) must have and packaged by a company established out- experienced in its endeavour to determine side the Community, without indicating the the precise meaning of a provision of Com- details required by the Italian legislation, 3 munity law. under which the labelling on foodstuffs must indicate, in particular:

2. It is in considering a reference for a pre- 'the name, business name or registered trade- liminary ruling from that court, seeking mark and the registered office of the manu- clarification of one of the requirements of facturer or packager or of a seller established the Community rules on the labelling and within the European Economic Commu- presentation of foodstuffs 2 concerning the nity'. 4 indication of details of a trader, that the finesses and nuances of good punctuation become apparent.

5. The appeal against that administrative fine was upheld by the Pretura (Magistrate's Court), Rovereto, which, by judgment of 20 November 1990, annulled the fine on the 3. Let us first consider the facts and pro- ground that it had been imposed on the basis cedure in this case.

6. The Provincia Autonoma di Trento 'Must Article 3(1)(6) of Council Directive (Autonomous Province of Trento) and the 79/112/EEC (on the approximation of the Ufficio del Medico Provinciale di Trento laws of the Member States relating to the (Medical Office of the Province of Trento) labelling, presentation and advertising of lodged an appeal seeking to have the judg- foodstuffs for sale to the ultimate consumer) ment set aside on a single ground: they chal- be interpreted as meaning that the expression lenged the interpretation given by the Pre- "established within the Community" used in tura to the national provision at issue. They it refers only to the seller or refers, in the claimed that protection of the ultimate con- absence of a seller established within the sumer is only fully guaranteed if at least one Community, also to the manufacturer and/or trader (producer, packager or seller) estab- packager? Must that provision therefore be lished within the Community is indicated on taken to mean that, in the absence of a seller the label. established in the Community, the manufac- turer and/or the packager must be estab- lished in the Community?'

7. The Corte Suprema di Cassazione noted that the national provision which it was asked to interpret 'reproduces almost exactly' the wording of Article 3(1 )(6) of Legal background Directive 79/112, the French version of which provides that the labelling of food- stuffs must indicate 'le nom ou la raison sociale et l'adresse du fabricant ou du condi- tionneur, 5 ou d'un vendeur établit à l'intérieur de la Communauté'; the Italian version reads as follows: 'il nome o la 9. The directive on the labelling of food- ragione sociale ė l'indirizzo del fabbricante o stuffs enacts 'Community rules of a general del condizionatore o di un venditore stabilito nature applicable horizontally to all food- nella Communità'. stuffs put on the market'. 6 The harmoniza- tion of laws carried out by the directive is

intended to prevent barriers to the free identifying that person as being the only one movement of such products, which can lead to whom the expression at issue could apply. to unequal conditions of competition, in The English version of that provision, 'the order to contribute to the smooth function- name or business name and address of the ing of the common market. 7 The 'prime' manufacturer or packager, or of a seller consideration, however, is 'the need to established within the Community', which inform and protect the consumer'. 8 In order also has the comma, seems to call for the to do so, the directive provides in particular same reading. that the labelling must indicate certain infor- mation, to the exclusion of any other. That information is set out in Article 3(1), (1) to (8). 13. The German ('den Namen oder die Firma und die Anschrift des Herstellers, des Verpackers oder eines in der Gemeinschaft Answer to the question niedergelassenen Verkäufers') and Dutch ('de naam of de handelsnaam en het adres van de fabrikant of van de verpakker of van een in de Gemeenschap gevestigde verkoper') ver- 10. The question relating to the interpreta- sions 9 of the text are also unambiguous. The tion of Article 3(1 )(6) essentially asks the syntax of those two languages makes it even Court to rule whether the condition of clearer that the expression 'established 'Community establishment' applies only to within the Community' ('in der Gemein- the seller or whether, on the contrary, it must schaft niedergeUssenen' and 'in de Gemeen- be satisfied by at least one of the three trad- schap gevestigde') applies only to the 'seller' ers mentioned (manufacturer, packager and ('Verkäufers' and 'verkoper'), since that seller). expression direcdy precedes the word 'seller' and it is thus not possible to interpret the text so as to apply the condition at issue to all three traders listed. 11. A careful reader will have noted the slight difference in meaning between the Ital- ian and the French versions of the directive: in the former, no comma separates the expression 'or of a seller established within the Community' from the other persons 14. The Italian version, on the other hand, mentioned. which gave rise to the national court's ques- tions and which can be compared to later translations, 10 could be interpreted as having an entirely different meaning. Nonetheless, contrary to what was argued by the Italian 12. The position of the comma in the French Government at the hearing, the interpreta- version has the advantage of separating, in my view quite clearly, the last person men- tioned from the two others, and thus of 9 — Emphasis added. 10 — There is no sign of the comma at issue in the Spanish ver- sion: 'el nombre o la razón social y la dirección del fabri- cante o del embalador o de un vendedor establecido dentro 7 — First and second recitals. de la Communidad'. The Danish and Greek versions seem 8 — Sixth recital, emphasis added. to follow the 'Iulian example'.

"The name or business name of the manufac­ turer, packer or seller, together with his 16. However, before doing so, I suggest address, which must be within the Commu­ account should be taken of one factor which nity".' 1 3 appears to me to be conclusive.

12 — Opinion on the proposal for a Council Directive on the 11 — Case C-449/93 Rockfort v Specialarbejderforbundet i Dan­ approximation of the laws of the Member Sutes relating to mark [1995] E C R 1-4291, paragraph 28, emphasis added, the labelling, presentation and advertising of foodstuffs for which refers to Case 30/77 R v Bouchereau [1977] ECR sale to the ultimate consumer (OJ 1976 C 285, p. 3). 1999, paragraph 14. See also, for example, Case 100/84 13 — The French version of the proposed wording ('Le nom ou Commission v United Kingdom [1985] ECR 1169, para­ la raison sociale et l'adresse du fabricant ou du condition­ graph 17 and Case C-72/95 Kraaiįeveld and Others v neur, ou d'un vendeur, établi à l'intérieur de la Commu- Gedeputeerde Staten van Zuid-Holland [1996] ECR 1-5403, nauté') includes two commas, separating the expression 'ou paragraph 28. d'un vendeur' from the rest of tne sentence.

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The Italian version of that proposal is even 20. A purposive interpretation of the provi- clearer: sion at issue only confirms that view.

'Il Comitato ritiene che l'imballaggio debba 21. In that respect, as the Italian and Greek comportare l'indicazione della persona Governments have rightly recalled, the responsabile nella Communità. Esso chiede Court has already identified the purpose and quindi che il punto 6 sia redatto nel modo general scheme of Directive 79/112 as fol- seguente: lows:

19. The fact that that proposal was not taken up in the final draft of the provision at issue 15 can, in my opinion, mean only that the Community legislature considered that the requirement of Community establish- ment should apply only to the seller. 22. I do not consider that it would detract from the information and protection of con- 14 — It should be noted that, in the Italian version, the proposed sumers to permit indication of the manufac- amendment concerned the plural agreement of the past par- ticiple of the verb 'to establish' (stabiliti instead of stabilito)-, turer or packager of the product established thus referring to all the traders mentioned and not merely in a non-member country. to one of them. 15 — The wording in Directive 79/112 is exactly the same as that originally proposed by the Commission in its 'proposal for a Council Directive on the harmonization of the laws of the Member Sutes relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer' 16 — Case 298/87 Smanor [1988] ECR 4489, paragraph 30. Sec submitted to the Council on 30 March 1976 (OJ 1976 C 91, also Case C-285/92 Twee Provinciën [1993] ECR 1-6045, p. 3), including the Italian version. paragraphs 14 and 15.

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23. More specifically, Article 3(1)(6) of the 26. However, contrary to what has been Directive, 'is mainly intended to enable the argued by the Italian authorities and the consumer to contact a person responsible for Greek Government, subjecting those traders the manufacture or packaging of the food­ to the requirement of Community establish­ stuff with a view to expressing any positive ment contained in Article 3(1 )(6) would or negative criticism about the product pur­ have, at the very least, surprising conse­ 17 chased ...'. quences.

28. If, none the less, it were desired to fol­ low that interpretation without entailing such a consequence, the text at issue could be understood as systematically requiring refer­ ence to the establishment within the Com­ munity of one of the three traders men­ tioned, so that reference to a seller 25. O n the one hand, manufacturers and established within the Community would be packagers have in common the fact that they required if the product were not manufac­ are generally established, easily identifiable tured or packaged within the Community. traders who can therefore be contacted with­ But in that case how is it possible to explain out difficulty. Those characteristics mean that they satisfy the conditions necessary for achieving the aim pursued. 18 — Moreover, the French version of Article 3(1)(6) uses the words 'du fabricant' and 'du conditionneur' ('deľ in Italian; 'the' in English), but to ' u n ' vendeur ('un' in Italian; 'a' in English). ' D u ' is a definite article (more specifically, a con­ tracted definite article; a contraction of the preposition 'de' 17 — Commission answer to a written question of 28 July 1995 and the definite article 'le'), whereas 'un' is an indefinite (E-2170-95, OJ 1995 C 340, p. 19). article.

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19 — See note above.

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