C-210/96

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OPINION OF MR MISCHO — CASE C-210/96

(e) statements designed to promote sales, 5. The company Gut Springenheide GmbH, provided that such statements and the the applicant in the main proceedings (here- manner in which they are made are not inafter 'Gut Springenheide'), markets eggs likely to mislead the purchaser. ready-packed under the description '6-Korn — 10 frische Eier' (six-grain — 10 fresh eggs). A slip of paper, inserted in each pack of eggs, contains this promotional statement:

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7. Gut Springenheide and its manager then 2. If it is consumers' actual expectations brought an action before the Verwaltungs­ which matter, the following questions gericht (Administrative Court) for a declara­ arise: tion that the description on the packs and the pack insert were not contrary to the law in force. Unsuccessful at first instance and on appeal, they then applied to the Bundesver­ waltungsgericht (Federal Administrative Court) for a review of the appeal court's judgment. (a) Which is the proper test: the view of the informed average consumer or that of the casual consumer?

(b) Can the proportion of consumers needed to prove a crucial consumer 8. The Bundesverwaltungsgericht considered expectation be determined in per­ that the outcome of the proceedings hinged centage terms? on the interpretation of Article 10(2)(e) of Regulation N o 1907/90. It therefore decided to stay proceedings and to refer the follow­ ing questions to the Court of Justice for a preliminary ruling:

3. If an objectified concept of a purchaser open only to legal interpretation is the right test, how is that concept to be defined?'

'1. In order to assess whether, for the pur­ poses of Article 10(2)(e) of Regulation Preliminary considerations (EEC) N o 1907/90, statements designed to promote sales are likely to mislead the purchaser, must the actual expecta­ tions of the consumers to whom they are addressed be determined, or is the aforesaid provision based on a criterion 9. The French Government contends that of an objectified concept of a purchaser, there is no need for the Court to reply to the open only to legal interpretation? questions referred to it, for two reasons.

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However, these changes do not affect the for­ standards for poultry, wherein descriptions mulation of the questions referred by the of feed are included under descriptions of Bundesverwaltungsgericht. the type of farming for poultry.

16. Article 10(3) of Regulation N o 1907/90 states that descriptions of the type of farm­ 13. The French Government puts forward a ing can only be used in accordance with second reason in support of its view that rules to be laid down under the procedure there is no need for the Court to reply to the set out in Article 17 of Regulation N o questions. 2771/75. Against that background, the Com­ mission adopted Regulation (EEC) N o 1274/91.

14. It claims that the description 'six-grain eggs' is, in any event, prohibited under 17. Article 18 of Regulation N o 1274/91 Articles 10(l)(a), 10(3) and 14 of Regulation exhaustively lists the terms related to the N o 1907/90 and that, therefore, the question type of farming that may appear on the of the interpretation of the concept of 'likely packs in which eggs are sold. Since the term to mislead the purchaser', within the mean­ 'six-grain' is not one of the terms listed in ing of Article 10(2)(e) of the regulation, does the regulation, according to the French Gov­ not even arise. ernment its use is unlawful. Therefore, in its view, it is no longer even necessary to reply to the questions posed by the Bundesverwal­ tungsgericht.

22. Article 10(1) of the aforementioned regulation lists the information whose use is compulsory. Article 10(3) lays down the 19. In this respect, the documents before the rules governing certain information whose Court suggest that the words in question are use is optional. This information concerns also a trade mark. The referring court has further dates and indications concerning the not, however, asked the Court about the type of farming and the origin of the eggs. interpretation of Article 10(1)(a), which is The information referred to in Article 10(3) the provision of the regulation that applies to may only be used in accordance with strict trade marks. This could, however, be due to conditions laid down in Commission Regu- the fact that, as the French Government has lation N o 1274/91. Finally, Article 10(2) of quite rightly stated, the question of knowing Regulation N o 1907/90 lists a number of whether the term 'six-grain' is or is not used terms whose use is permitted, including as a trade mark in the case in point is irrel- 'statements designed to promote sales, pro- evant to the legal rules that apply to that vided that such statements and the manner in term: it must, in any event, comply with the which they are made are not likely to mis- regulation and, in particular, with the other lead the purchaser', which are the subject of requirements of Article 10 thereof. the present case.

23. These provisions are completed by 20. The term 'six-grain' is unquestionably Article 14 of Regulation N o 1907/90, which not one of the terms related to the type of states that: 'Packs may not bear any indica- farming permitted under the rules. But tions other than those laid down in this should this necessarily lead to the conclusion Regulation'. that its use is unlawful?

28. Therefore, 'statements designed to pro­ mote sales' must be of a kind to confer a dis­ 25. In my view, the answer to this question tinct identity on the eggs of the producer must be in the affirmative. One of the aims using such statements. Furthermore, such of rules is in fact to ensure that the consumer statements must be assumed to be lawful is given the fullest information possible so unless expressly prohibited by the rules or that he can make his choice in the best pos­ likely to mislead the purchaser. sible conditions. What is more, by permit­ ting the use of statements designed to pro­ mote sales, the rules expressly enable producers to distinguish their products in consumers' eyes from those of their com­ petitors, thereby encouraging them to offer consumers greater diversity. 29. However, Regulation N o 1274/91, laying down rules governing statements on the type of farming, makes no mention of type of feed. In fact, it makes only one reference to the type of farming, in Article 18, which lists the lawful ways of describing the hens' habi­ tat but says nothing about poultry feeding method.

26. Indeed, this is reinforced by the 13th recital of Regulation N o 1907/90, which states that:

30. Should it be concluded from this that the Community legislature implicitly wanted to preclude any reference to the latter? Given the principles set out above, my view is that, on the contrary, its intention, in these provi­ sions, was only to regulate statements regarding the environment in which the 'anyone marketing "fresh eggs" should be poultry is farmed. In contrast, the legisla­ permitted to stamp such eggs with other par­ ture's silence on the type of feed implies that ticulars serving publicity purposes'. producers are free to inform consumers on

'Whereas among the indications which may 32. The definitions in this regulation reflect optionally be used on the labelling are those the need to define standards applicable to the concerning the method of chilling and par- marketing of poultry, which is an economic ticular types of farming; whereas the use of activity separate from the marketing of eggs. the latter, in the interest of consumer protec- Furthermore, the terms set out in Regulation tion, needs to be subordinated to the respect N o 1538/91, regarding the habitat of poultry, of closely-defined criteria concerning both are different from those laid down on the husbandry conditions and quantity thresh- same subject in Article 18 of Regulation N o olds for stating certain criteria such as age at 1274/91. It is therefore clear that is not pos- slaughter or length of fattening period and sible unreservedly to have recourse to the content of certain foodstuff ingredients'. provisions of Regulation N o 1538/91 for the purposes of interpreting Regulation N o 1274/91.

35. Egg marketing, on the other hand, was viewed differently by the legislature. The 33. This is particularly the case as far as the legislature considered that the type of farm- type of animal feed is concerned. Feed plays ing aspect which was of greatest concern to a major role in the purchasers' perception of consumers, whose protection was its prior- poultry meat and, as stated by the Commis- ity, was the method of keeping poultry. So it sion at the hearing, sufficiently clear and irre- focused on the need to regulate the provision futable information on the impact of animal of particulars in that regard, about which it feed on meat characteristics does exist. In was entitled to assume that consumers would that respect, it was inevitable that the legisla- attach particular importance to them.

42. In the first case, the national court asks whether, in order to determine what that 38. Against this background, it cannot be actual expectation is, reference has to be inferred from the legislature's silence that it made to the concept of the informed average sought to prohibit all reference to the type of consumer or to that of the casual consumer, feed whereas, in the case of meat, where the and whether the proportion of consumers risk of misleading the consumer was consid­ needed in order to prove an expectation on ered to be greater, such a reference was pos­ the part of consumers can be established in sible, albeit under strictly defined conditions. percentage terms.

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43. In the second case, the national court 47. The French Government considers that asks for the legal definition of the objectified it is the responsibility of the national court concept of a purchaser. to determine whether the statements are likely to mislead purchasers and, accordingly, to identify the reference consumer using the methods that it thinks fit (for instance, but not necessarily, by conducting a survey). This is how, in France, the national court The first question assesses the misleading nature of a statement by reference to the 'average consumer'.

44. The first step is to provide the referring court with guidance on the concept of a 'purchaser likely to be misled' within the meaning of Regulation N o 1907/90. 48. The Austrian Government considers that the provisions of Article 10(2)(e) refer to an objective concept of a purchaser requiring a purely legal interpretation. In the view of this Government, the expression 'likely to mislead the purchaser' that appears in this provision raises a question of law, not of fact. 45. While the term used in Article 10(2)(e) of Regulation N o 1907/90 is 'purchaser' and not 'consumer', although the latter term is used in the regulation's recitals, I consider that the two words are interchangeable and will therefore refer to the case-law of the Court on the concept of a consumer.

50. In the Commission's view, assessments and, within this context, look at what the as to whether statements designed to pro­ provision at issue aims to achieve and the mote the sale of eggs are likely to mislead the place it occupies in the scheme of Commu­ purchaser should be based on the criteria nity law. contained in the regulation, having regard also to the decisions of the Court on other provisions prohibiting misleading advertis­ ing. Under these conditions, it is not abso­ lutely essential to establish the purchaser's actual perception of the promotional description or statement at issue by means of an opinion poll or survey. However, if the national court still has doubts as to whether or not a statement is misleading, it can com­ 53. According to the German Government, mission a survey or conduct a poll of con­ measures of inquiry are only necessary if the sumers. statement in question is addressed to a clearly defined group of people, such as experts, or to people who may easily be mis­ led, such as children. In a case such as the present one, the rules are for all egg consum­ ers. Even the statement that the court has to assess is addressed to all consumers. There­ 51. The German Government explained at fore, measures of inquiry are not really nec­ the hearing that it was necessary to know essary. whether the rule at issue applied only in rela­ tion to a clearly defined group of people or whether it was a matter of protecting all Community citizens from the danger of being misled.

56. I believe that this definition is substan­ tially the same as the one given by the 59. As the Court has generally considered Bundesverwaltungsgericht on page 9 of the consumers to mean all 'average, reasonably original text of the reference for a prelimi­ circumspect consumers', it has necessarily nary ruling, that of 'the informed average had recourse to an abstract idea of this con­ consumer who takes in the information cept. about the product on sale and hence the overall characterisation of the products attentively' as opposed to the consumer 'who has regard to the information about the product on sale and the statements promot­ ing sale only casually and uncritically, with­ out checking more closely the message put 60. However, in the decision in the X (or over by the information'. Nissan) case, 1 0 the Court combined its abstract concept of a consumer with guid­ ance to the national court that the latter was nevertheless also entitled to decide the case by considering the concrete reaction of a sig­ nificant number of purchasers to a particular 57. To the same effect one could cite the form of advertising. judgment in the Langguth case, 8 concerning

9 — Case C-372/89 Gold-Ei Erzeugerverbund ν Überwachungs- 7 — Case C-470/93 Verein gegen Unwesen in Handel und Gew­ stelle für Milcherzeugnisse und Handelsklassen [1991] ECR erbe Koeln ν Mars [1995] ECR 1-1923. I-43; Case C-203/90 Gutshof-Ei ν Stadt Bühl [1992] ECR 8 — Case C-456/93 Zentrale zur Bekämpfung unlauteren Wett- 1-1003 and Case C-204/88 Ministère Public ν Jean-Jacques bewerbs ν Privatkellerei Franz Wuhelm Langguth Erben Paris [1989] ECR 4361, paragraph 11. GmbH&Co. [1995] ECR I-1737. 10 — Case C-373/90 X [1992] ECR I-131.

65. The Court did not specify how the 63. But, in the grounds of that same national court was to 'ascertain' or 'establish' decision, 12 the Court stated that it was for that the consumers' decisions to buy had been affected or could have been affected by this advertising.

11 — Council Directive 84/450/EEC of 10 September 1984 relat­ ing to the approximation of laws, regulations and adminis­ trative provisions of the Member States concerning mislead­ ing advertising (OJ 1984 L 250, p. 17). 13 — My italics. 12 — Paragraphs 15 and 16. 14 — My italics.

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66. According to the decision cited, this court may commission surveys or polls on could be a finding made by the court after consumer expectations if it considers this to simply hearing the parties and, if necessary, be necessary. an expert, or a conclusion reached by the court following a survey of consumer reac- tions.

70. In its third question, the Bundesverwal- tungsgericht asks us how the objectified con- cept of a purchaser is to be defined. 67. The fact remains that this decision implies that Community law does not require a court to elucidate consumers' actual expectations if it concludes that a par- ticular advertisement, given the way it is worded and the foreseeable reaction of the average 'reasonably circumspect' consumer, 71. Let us therefore pass straight on to that is or is not likely to mislead the purchaser. question.

— information that is objectively correct;

— information that is objectively incorrect; 75. The question whether a reasonably cir­ cumspect consumer is likely to be misled clearly depends, above all, on the content of the advertising slogan at issue. Like the Commission, I consider that the first action of the court should be to establish the mean­ — information that is objectively correct ing of the advertising statement according to but which could mislead the consumer linguistic usage and how, on the basis of that because it does not reflect the entire meaning, it accords with the truth. truth.

79. As far as information that is objectively correct is concerned, the Court considers, 76. The court should then evaluate the effect and this has been pointed out by the Com­ that the advertising statement may have on mission, that true statements are not in prin­ the reasonably circumspect consumer. ciple likely to mislead the consumer. 1 5

80. However, it should be noted that some­ times even promotional statements that are

77. In the eyes of the applicant in the main proceedings, the term 'six-grain — 10 fresh eggs' and the statement inserted in the egg 15 — Case C-362/88 GB INNO/BM ν Confédération du Com- merce Luxembourgeois [1990] ECR 1-667, paragraph 17; packs constitute true information which, by judgment in the X (or Nissan) case, paragraph 17; sec also the Opinion of Advocate General Léger in the Mars case, definition, cannot mislead the purchaser, point 51, which refers to the decisions of the Court of Jus- whatever conclusions the latter might be tice in the X (or Nissan) case and in Case C-126/91 Schutz- verband gegen Unwesen in der Wirtschaft ν Yves Rocher likely to draw. [1993] ECR I-2361.

'1. The labelling and methods used must not: 82. Eye-catching but irrelevant information can be considered to fall into the category of correct, incontroversial information. For instance, if a producer were to print on his packs the statement 'hen raised in pure (a) be such as could mislead the purchaser mountain air' or 'hen raised in the sunny to a material degree, particularly: South of France', the information would probably be true but would have no bearing on the quality of the eggs. It might influence the casual consumer but would be a source of amusement for the informed consumer. (i) ...

16 — See the judgment in the Gutshof-Ei case, paragraphs 17 to 19. 17 — OJ 1979 L 33, p. 1.

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(ii) by attributing to the foodstuff effects 89. The appeal court, cited by the Bundes­ or properties which it does not pos­ verwaltungsgericht, considers that this sess; description goes along with the 'fad for cere­ als' and gives the impression that the eggs have something special, whereas that court is persuaded they have no advantages over other eggs (page 5 of the reference for a pre­ liminary ruling).

(iii) by suggesting that the foodstuff pos­ sesses special characteristics when in fact similar foodstuffs possess such characteristics.' 90. It therefore remains to be determined whether, in view of the sway exerted by the 'cereals fad' over German consumers, even a reasonably circumspect consumer might be taken in by this impression and so be led to buy the eggs in question.

The second question

97. The casual consumer does not pay enough attention to the fine print on a prod- uct but is more likely to be influenced by the 93. This question is put to the Court in the colour of the pack, by the designs on the event that the reply to the first question indi- pack or by slogans which are so exaggerated cates that consumers' actual expectations that it is not even necessary to prohibit them, must be determined in concrete terms. such as 'The egg that will get you going for the day'.

94. Since I concluded above that the national court was under no obligation to conduct an investigation of this kind but that Commu- 98. We have also seen above that in its judg- nity law did not preclude it from doing so in ments the Court has always adopted an cases where this seemed to it to be appropri- interpretation of the concept of consumer ate, I consider that a reply to the second consisting of a reasonably circumspect indi- question will be of assistance. vidual capable of taking in, with some atten- tion, the information appearing on products which he is invited to buy.

Part (a) of the second question

99. Advocate General Tesauro rightly stated, in his Opinion in the X (or Nissan) case, that 'vigilantibus, non dormientibus iura succur- runt'. 18 95. The referring court asks first whether it is the concept of the informed average con- sumer which counts or that of the casual consumer. 18 — [1992] ECR I-145.

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ing food and relating to health and it should has ruled on this question itself. 2 0 It should be considered that even a percentage of less be emphasised, however, that those cases than 10% of consumers misled is no longer were somewhat different from the situation insignificant.' in the present case.

107. It seems to me that the guideline thus developed by the German courts is quite 110. In those cases it was a matter of assess­ appropriate. Since the statements at issue in ing the lawfulness under Community law of the main proceedings are not such as to national measures restricting the free move­ encourage the consumer to purchase a prod­ ment of goods and allegedly justified by uct hazardous to health, the figure of 15% mandatory requirements, within the meaning could be indicated, provided that the of the Court's case-law relating to the free Bundesverwaltungsgericht considered that it movement of goods. However, in this par­ was necessary to investigate consumers' ticular case, the problem is a different one: actual expectations. the Court is asked to provide the national court with the criteria for interpretation which it needs in order to be able to apply a piece of secondary legislation to the facts before it.

Council Regulation (EEC) N o 1907/90 of 26 June 1990 on certain marketing stan­ dards for eggs, in particular Article 10(2)(e) thereof, must be interpreted as mean­ ing that, in order to determine whether a statement designed to promote sales is likely to mislead the purchaser, reference should be made to an objective concept of purchaser which is open only to legal interpretation. However, Community law does not preclude the national court from commissioning surveys or polls on con­ sumers' actual expectations if it considers this to be necessary.

Third question

The objective concept of purchaser to be used is that of the average, reasonably circumspect consumer. In order to determine whether a statement designed to pro­ mote sales is likely to mislead such a purchaser, within the meaning of Article 10(2)(e) of Regulation N o 1907/90, account should be taken of the terms and pur­ pose of the Regulation, the factual accuracy of the statement, its lack of ambiguity and the verifiable nature, for the authorities, of the information that it contains.

Second question

(a) It is the view of the informed average consumer which counts in determining whether a statement designed to promote sales is likely to mislead.

(b) It is for the national court ruling on the question whether a statement or description is likely to mislead consumers to establish, in the light of the