C-385/96

GOERRES

OPINION OF ADVOCATE GENERAL COSMAS delivered on 19 February 1998 *

I — Introduction bore no particulars in German but only in French, English or Italian.

II — National legal framework 1. In the present case the Amtsgericht (Local Court) Aachen has referred two ques- tions to the Court on the interpretation of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of 3. Paragraph 3 of the German rules on the foodstuffs for sale to the ultimate consumer 1 labelling of foodstuffs (Regulation on the (hereinafter the 'directive'). designation of foodstuffs, hereinafter the 'LMKV') provides:

2. The questions were raised in the course of an appeal by a seller of foodstuffs against an '1. Packaged foodstuffs may be marketed administrative penalty imposed on him on only if the following particulars appear on the ground that, in breach of German legisla- the packaging: tion, he had offered for sale foodstuffs which

(iii) I Pelati di San Marzano — il Vero 3. The particulars specified in subparagraph Gusto del Pomodoro, and 1 of the LMKV are to be stated on the pack- aging or on a label affixed thereto, in a clearly visible place, in German, in a readily intelligible, clearly legible and indelible man- ner. The particulars specified in subpara- graph 1 may also be given in another easily intelligible language, if the provision of (iv) Pasta sauce with olives and capers. information to the consumer is not adversely affected thereby.'

These goods were not labelled in German but only in French, Italian and French, Ital- III — Facts ian and English respectively.

5. By a decision of 6 July 1995 the Oberkre- isdirektor (Chief Executive) of Kreis Aachen 4. Mr Goerres, the defendant in the main (Aachen district) imposed on the defendant a proceedings, operates a foodshop in Esch- penalty of DEM 2 000 for infringement of weiler. O n 13 January 1995 he had on offer Paragraph 3(3) of the LMKV.

I - 4434

GOERRES

2. If the answer to that question is in the negative, does the trader none the less satisfy the requirements of Article 14 of Council Directive 79/112/EEC by placing a supple- mentary sign in his shop at the location of the goods in question, containing the pre- scribed particulars in German?' 7. The national court considers that food- stuffs are in principle to be labelled in the language which is usual for the language area in question. For the average German con- sumer that language is German. N o r does the hanging of a notice satisfy the require- V — Directive 79/112/EC ment that particulars of the product be stated on it. However, according to the national court, its opinion is in conflict with the inter- pretation of Article 14 of the directive given by the Court of Justice in its judgment in Piageme2 (hereinafter 'Piageme II'). Accordingly, the national court has submit- 8. In the words of the first and second recit- ted to the Court for a preliminary ruling the als in the preamble to the directive, it seeks questions set out below. to approximate the laws of the Member States on the labelling of foodstuffs in order to contribute to the smooth functioning of 2 — Case C-85/94 Piageme [1995] ECR I-2955. the common market since the differences at

I - 4435

OPINION OF MR COSMAS — CASE C-385/96

present existing impede the free circulation in the case of prepackaged foodstuffs, the net of products and can lead to unequal condi- quantity; (4) the date of minimum durability; tions of competition. (5) any special storage conditions or condi- tions of use; (6) the name or business name and address of the manufacturer or packager, or of a seller established within the Commu- nity; (7) the place of origin or provenance in cases where failure to give those particulars might mislead the consumer as to the true 9. None the less, in the words of the sixth origin or provenance of the foodstuff, and recital the prime consideration for any rules (8) instructions for use when it would be on the labelling of foodstuffs should be the impossible to make appropriate use of the need to inform and protect the consumer. foodstuff in the absence of such instructions.

14. Thus, Article 1(9) of Directive 97/4/EC repeals the second paragraph of Article 14, whilst Article 1(8) adds to the directive a new Article 13a which provides: VI — Substance

' 1 . Member States shall ensure that the sale is prohibited within their own territories of foodstuffs for which the particulars provided for in Article 3 and Article 4(2) do not appear in a language easily understood by the consumer, unless the consumer is in fact informed by means of other measures deter- mined in accordance with the procedure laid down in Article 17 as regards one or more labelling particulars. 16. The order for reference shows that, in order to assess the lawfulness of the admin- istrative penalty imposed, the national court wishes in the first place to ascertain whether Paragraph 3(3) of the LMKV is compatible with Article 14 of the directive. In its first question it is therefore asking in substance 2. Within its own territory, the Member whether it is permissible under Article 14 of State in which the product is marketed may, the directive for a national rule to require in accordance with the rules of the Treaty, particulars to be given on packaged food- stipulate that those labelling particulars shall stuffs at least in the language of the State be given in one or more languages which it concerned, in particular in the case of a shall determine from among the official lan- monolingual state such as Germany. In its guages of the Community.' second question it goes on to ask whether hanging an additional notice in the shop enables the consumer adequately to be 3 — See footnote 1. informed.

Objective of the directive 20. However, before 7 and after those judg­ ments, the Court, highlighting the sixth recital in the preamble to and Article 2 of the directive, the Court has acknowledged 'that its object was to inform and protect the ulti­ mate consumer of foodstuffs, in particular as 18. With regard to the objective of the direc­ regards the nature, identity, properties, com­ tive certain fluctuations may be discerned in position, quantity, durability, origin or prov­ the case-law of the Court. Some judgments enance, and the method of manufacture or mention the free movement of goods as production thereof'. 8 being the objective, whereas others prefer to mention consumer protection. However, the precise determination of the directive's pur­ pose is of particular importance, inasmuch as that determination provides the guiding principle for interpreting the provisions of the directive, particularly in uncertain situa­ tions, which are the most common. 21. In my opinion consumer protection is the immediate and main aim of the directive. That objective is attained by means of the bundle of measures imposed or prohibited by the directive, in other words by the con­ tent of the rules which it lays down. Con­ 19. It will be remembered that, in its judg­ versely, the free movement of goods consti­ ment in SARPP, 4 the Court stated that 'as is tutes an indirect objective of the directive evident from its preamble, the objective of which is attained by the introduction of the directive is to promote the free move­ common rules on the labelling of foodstuffs. ment of foodstuffs by the approximation of the laws of the Member States on labelling' (paragraph 11). Similarly, in its judgment in Piageme5 (hereinafter 'Piageme ľ) the 6 — For the record I would observe that in both cases the Court essentially adopted the point of view formulated by Advo­ Court held that: 'it follows from the first cate General Tesauro (see paras 3 and 6 of the Opinions in those cases respectively). three recitals in the preamble that Directive 7 — See judgment of the Court in Case 298/87 Smanor [1988] ECR 4489, paragraph 30. 8 — See judgments in Case C-285/92 Twee Provinden [1993] ECR I-6045, paragraph 15; Case C-144/93 Pfanni Werke [1994] ECR I-4605, paragraph 15; Case C-83/86 DEGA 4 — Case C-241/89 SARPP [1990] ECR 1-4695. [1997] ECR I-5001, paragraph 16. See also Van der Veldt, 5 — Case C-369/89 Piageme [1991] ECR 1-2971. cited at footnote 11, paragraph 28.

Freedom of movement is enhanced in the sense that the Member States are no longer Indeed Article 30 et seq. of the Treaty authorised to impose more requirements enshrine the principle of the free movement than those deemed indispensable by the of goods. directive unless otherwise expressly provided for. In other words, the directive eliminates the unnecessary obstacles to the movement of foodstuffs put in place by the Member States. None the less, the prohibition also imposed on the Member States from laying down less restrictive requirements than those Moreover, the Court has consistently which are necessary permits the inference affirmed that consumer protection consti­ that what is in contemplation is the free tutes a ground of public interest on which movement of foodstuffs in the proper sense, restrictions on that freedom are justified, 1 0 that is to say a healthy movement of food­ henceforth constituting one of the activities stuffs from a qualitative point of view and of the Community (Article 3(s) of the EC not a mere increase in quantities in circula­ Treaty, as amended by the Treaty on Euro­ tion. The combined effect of the freedom pean Union). Likewise, Article 129a of the

9 — That is the way in which the free movement of goods is usu­ 10 — Sec, inter alia, judgments in Case 120/78 Rewe-Zentrale ally perceived for the purposes of Article 30 of the Treaty. [1979] ECR 649; Case C-238/89 Pall [1990] ECR 1-4827, See, for example, the judgment in Case 152/78 Commission ν paragraphs 11 and 12 and in Case C-315/92 Verband France [1980] ECR 2299, paragraph 11. Sozialer Wettbewerb [1994] ECR I-317, paragraph 13, etc.

A comparison of that kind between the prin- 24. Evidently, however, the objectives pur- ciples of free movement of goods and con- sued by the directive are not always mutu- sumer protection show that priority must in ally compatible. In that regard, the directive principle be accorded to the latter principle, seeks to reconcile matters which are fre- which is of greater or preponderant value. In quently incompatible. fact, in the structure of the Treaty it is con- sumer protection (just as the other grounds of general interest mentioned in Article 36) which justifies restrictions on freedom of movement, and not the other way round. In other words, a measure affecting the free movement of goods may be regarded as law- 25. Indeed, for the purposes of the interpre- ful to the extent to which it essentially serves tation and application of Community law, to protect public health or consumer protec- the Community institutions, in the same way tion, whereas a measure inimical to public as the Member States and in particular the health or consumer protection cannot be courts, are required to take into account and upheld on the sole ground that it serves to reconcile the objectives pursued by Commu- promote, even to a significant extent, the free nity law which include those mentioned movement of goods.

I - 4440

GOERRES

28. This is a finding of some significance, in particular as regards review of the compat- Secondly, national provisions implementing in the domestic legal order provisions of the 11 — Case C-17/93 [1994] ECR I-3537. directive which are concrete and complete, in 12 — It should be noted that the opportunity afforded by Article 23 aforesaid was removed by Article 1(23) of Directive other words provisions bringing about a 89/395 which takes the view that 'Directive 79/112/EEC 'complete harmonisation' (such as provisions makes provision for national derogations in a number of cases' and that 'with the dual aim of completing the internal imposing actual restrictive obligations) are to market and providing improved information for all con- sumers in the Community, those derogations should be be assessed on the basis of the directive. To eliminated' (first and second recitals). the extent to which the national measures are 13 — See judgment in Case C-349/95 Loendersloot [1997] ECR I-6227, in which the Court held that Article 7 of Council in accordance with the directive, they are Directive 89/104/EEC of 21 December 1988 on the deemed also to accord with the provisions of approximation of the laws of the Member States on trade marks, just as Article 36 of the Treaty, seeks to reconcile the fundamental interest in protecting trade mark rights with the fundamental interest in the free movement of goods in the common market, so that those two provisions, which aim to achieve the same result, must be interpreted in the 14 — See judgment in SARPP (paragraph 15), cited above at foot- same way (paragraph 18). note 4.

For the Court it followed that imposing a stricter obligation than the use of a language 30. Those cases raised the question of the easily understood, that is to say, for example, compatibility with Community law of a pro- the exclusive use of the language of a linguis- vision of Belgian law requiring particulars to tic region and, on the other hand, failing to appear in the language of the linguistic acknowledge the possibility that the pur- chaser might be informed by other measures, went beyond the requirements of the direc- 15 — Unless, of course, the provisions of the directive are invalid tive; in that connection it considered that under the Treaty, which is not the case here. 'the obligation exclusively to use the lan- 16 — See judgments in Case 148/78 Ratti [1979] ECR 1629, para- guage of the linguistic region constitutes a graph 36 and paragraph 20 of the judgment in Piageme II (mentioned at paragraphs 29 and 33 of this Opinion). measure having equivalent effect to a quanti- 17 — See paragraph 25 of judgment in Van der Veldt, cited above tative restriction on imports, prohibited by at footnote 8. 18 — Cited above at footnote 2. Article 30 of the Treaty' (paragraph 16).

I - 4442

GOERRES

31. This judgment provided some indica- tions as to the meaning of the expression 'language easily understood'. But, as it later turned out, those indications were not suffi- After stressing that other directives on label- cient. The Belgian courts reverted to the ling, such as Council Directive 92/27/EEC question, seeking further clarification from of 31 March 1992 on the labelling of medici- the Court. That was to be expected. In fact, nal products for human use and on package the issue raised by the Sibylline terms of the leaflets, 19 expressly provide that the official second sentence of Article 14 does not so language or languages of the Member State much refer to what the directive prohibits where the product is placed on the market but rather to what it authorises or tolerates. must be used (paragraph 16), the Court went More importantly, it has a bearing on on to hold, referring to its judgment in whether the Member State ought to elucidate Piageme I, that: the meaning of the term 'language easily understood' by means of general implement- ing rules or whether it is for the courts to do so in each concrete case, and according to what criteria. 'The obligation to use a specific language for the labelling of foodstuffs, even if the use of other languages at the same time is not pre- cluded, also constitutes a requirement stricter than the obligation to use a language easily understood. 32. In Piageme II a different Belgian court reverted to the question, asking whether the national measure was justified in light of 19 — OJ 1992 L 113, p. 8.

The Court further considered that 'it is for the national court to determine in each indi- vidual case whether what appears on the labelling is such as to give consumers full information as to the compulsory particulars specified in the Directive' (paragraph 28) and 34. I have quoted copiously from these two 'whether the compulsory particulars given in judgments because, though I believe their a language other than the language mainly operative part to be correct, I would like to used in the Member State or region con- discuss some of the grounds on which they cerned can be easily understood by consum- are based. In any event I agree with the view ers in that State or region' (paragraph 29). expressed by the French Government in its written observations to the effect that, whereas the solution arrived at corresponds to that of a country with a special linguistic regime, such as the Kingdom of Belgium, it cannot be extended to monolingual States such as, for example, the Federal Republic of In that connection the Court considered that Germany, the Portuguese Republic or the 'various factors may be relevant, though not Hellenic Republic. decisive in themselves, for example, the pos- sible similarity of words in different lan- guages, the widespread knowledge amongst the population concerned of more than one language, or the existence of special circum- stances such as a wide-ranging advertising campaign or widespread distribution of the 35. I will start by formulating certain obser- product, provided that it can be established vations in regard to the two latter judgments which in my view will more easily enable a reply to be given to the preliminary 20 — Paragraphs 18 to 20. question.

In light of those aspects, the general applica- tion of the abovementioned judgment would mean that a Member State would not be authorised to require labelling in its national language, even for foodstuffs produced and marketed in its own territory, a consequence which could not be allowed and which in 38. Secondly, the scope of the directive does any event is not warranted by the terms of not exactly correspond to that of Article 30 the directive. of the Treaty because it is broader. Indeed it is common ground that Article 30 of the Treaty is intended to eliminate the obstacles 21 — See judgment in Mathot [1987] ECR 809, paras. 7 and 11, to imports of goods into a Member State, and in Smanor, cited above at footnote 7 (para. 36) and whereas the directive applies to foodstuffs SARPP, cited above at footnote 4 (para. 16). 22 — See paragraph 15 of the judgment in Piageme I, cited above marketed in the whole of the Community, at paragraph 30 of this Opinion. without any distinction as to their origin, 23 — It is otiose to point out that the directive can in no way serve in itself as a basis for a prohibition which would therefore both to foodstuffs of national origin apply to the entry into a Member State of foodstuffs from another Member State on grounds to do with the compre- and to imported foodstuffs. Thus, rules com- hensibility of the labelling. In general, no sanction under ing within the scope of the directive apply to the directive is conceivable at an intermediate stage prior to the time of offering for sale because until this time the ven- foodstuffs of national provenance in the dor may quite lawfully affix the appropriate labelling.

39. Moreover, the questions which remain cerned in the specific instance, is informed in unanswered following Piageme I24 are still another manner. pending even following the judgment in Piageme II, while other questions have inevitably been added. This is true of the fol- lowing questions: if the easily understood language is neither the official language nor the language of the region, what language is That rule is complemented by the more spe- it? Is it the national language? Are the Mem- cific rule not allowing Member States to pre- ber States still authorised, or are they no vent foodstuffs from being labelled in differ- longer authorised, to legislate on matters of ent languages. language? Where an assessment is made by the national court on a case-by-case basis, who is the 'purchaser' to be taken into account when it assesses whether the lan- guage is easily understood? Is it the actual purchaser, that is to say the purchaser in the region, or the average purchaser in the Mem- 41. The terms in which these provisions are ber State? Is the question whether the pur- couched, as well as other provisions of the chaser will be informed in one or other lan- directive which, for example, require particu- guage or by 'other measures', at the end of lars to be 'clearly legible', 25 or determine the the day, a matter for the discretion of trad- contents and precise terms of the particu- ers? lars, 26 show that under the terms of the Directive the particulars may in principle appear only in written form on the label. Indeed, only language is capable of commu- nicating complete and reliable information concerning all the ingredients and the other 40. In my view, Article 14 of the directive particulars which are mandatory under the lays down a rule at the same time as provid- terms of the directive. Thus, only exception- ing for an exception therefrom. The rule pro- ally does the question arise as to the provi- vides that foodstuffs must be labelled in a sion of information to the consumer by language easily understood by 'purchasers' other means, namely when the language in (in the plural), that is to say the purchasing which the label is worded is not easily public in general. If that is not the case, it is understandable. for the Member States to ensure that the marketing of the product is banned.

45. It is therefore important that there 43. Indeed, language is not the only semio- should be a precise definition of the 'con- logical system enabling human beings to sumer', as that term is used in the directive. communicate with each other. There are oth- The consumer in the contemplation of the ers which, it seems, were precursors to lan- directive is the typical and predictable con- guage, such as nods, winks, gestures, pic- sumer who has no particular knowledge or tures, etc. Depictions have evolved from the requirements, a person completely without cave-drawings of Lascaux, ancient frescoes any specialised knowledge or requirements, and miniature medieval manuscripts, to the in other words the consumer of average type graffiti of today, comic strips and various who represents the run of the mill of cus- representations and symbols which convey a tomers in general. Furthermore, as the con- message. sumer must be in a position to read the writ- ten label showing the particulars relating to the foodstuffs, the directive covers the aver- age consumer who is sufficiently able to read and write his own language. This definition therefore excludes consumers with certain 44. Thus, for example, it is not impossible specific characteristics, such as the polyglot for a talented designer to reproduce in or illiterate consumer, just as it does consum- graphic form a large number of the charac- ers belonging to certain groups, communities teristics of the meat contained in a packet. 27 or regions. However, it will never be possible by this means to indicate all the characteristic fea- tures that the directive requires the consumer to be informed about. Moreover, the time, skill and familiarity required to decipher such designs would give rise to difficulties. 46. The fact that the directive focuses on the average consumer does not mean that this is an ill-informed consumer or one who is unable to articulate his preferences or requirements. It is a commonplace to say that in this day and age habits of consump- However that might be, this is not the usual tion have evolved and that people have means of communication in contemporary become more demanding. The consumer does not buy (and must not be encouraged to buy) a product irrespective of its charac- 27 — Thus a map could represent the country of origin, an ani- teristics or because that product has been the mal could indicate the species, scales with figures could indicate the weight, etc. subject of more widespread publicity. He

chooses the product which corresponds to his 49. The question then arises as to which lan- actual needs and requires to be informed as guage this should be and who should decide: fully as possible concerning that product. the Member State concerned under general Precision of information concerning the implementing rules or the courts in a proper qualitative choice is not only an aspiration of case? Community law but also a legitimate aspira- tion of the Member States. It is for that rea- son that the Court has repeatedly acknowl- edged it to be 'legitimate for a Member State to ensure that consumers are properly informed about the products which are offered to them, thus giving them the possi- bility of making their choice on the basis of 50. In my opinion, the language in question that information' and that such information must be deemed to be the national language might be given effectively by requiring or, where it is established by law, the official adequate labelling. 28 It must therefore be language of the State or, where there are sev- concluded that the directive has in contem- eral official languages, at least one of these, at plation the average, informed consumer. the discretion of the State concerned. It fol- lows that a State which requires the particu- lars appearing on foodstuffs to be worded at the very least in its official language (or in one of the official languages, as the State con- cerned may decide) does not infringe Article 47. Nor, finally, are we talking about a con- 14 of the directive. sumer irrespective of time or place. The directive is addressed to the Member States and requires them to adopt implementing measures in favour of consumers. Accord- ingly, it is the nationals of each Member State who are the consumers which each Member State is required primarily to pro- tect. 51. It is perhaps noteworthy that the Euro- pean Parliament has expressed itself in simi- lar terms, both at the stage of the prepara- tory work leading up to the directive, where it insisted that 'manufacturers should be required to make the stipulated indications on product packings for the consumer's 48. The inference to be drawn therefore is information at least in the language or lan- that the concept of a language 'easily under- guages of the country of destination, so as to stood' within the meaning of Article 14 avoid serious confusion and misunderstand- refers to the language which is readily com- ings;' 29 and subsequently. 30 prehensible to the average, informed con- sumer of the Member State in the particular case. 29 — OJ 1976 C 178 p. 52. 30 — See the 1992 Resolution on The consumer protection and public health requirements to be taken into account in the completion of the Internal Market (OJ 1992 C 94, p. 217), 28 — Judgment in Smanor, cited above at footnote 7, paragraphs already mentioned in my Opinion in Piageme II (see para- 18 and 19. graph 19 of that Opinion).

52. Moreover, in reply to written questions expressly authorising the Member States put to him on the occasion of the judgment essentially to impose their official language in Piageme I, Mr Bangemann, representing or one of them in the labelling of food- the Commission, pointed out that a proper stuffs. 33 And even if Directive 97/4 does not balance had to be struck between the need to have retroactive effect, I am of the view that combat disguised restrictions on trade and it conveys the actual intention of the Com- the consumer's right to receive comprehen- munity legislature which may, I believe, be sible information and went on to say that inferred in any event from the letter and pur- 'the national language or languages in which pose of the directive, even in its initial ver- the product is marketed may in fact be sion. regarded as the most objective common denominator as regards the comprehensible nature of information to be communicated to the consumer', stating that it was neces- sary to consider whether the requirement for particulars to appear in the national language ought not to be extended to all the infor- mation to be provided to the consumer. 31 55. First of all, even though it is true that the directive does not impose the use of a specific language (Piageme II, paragraph 15), it does not necessarily follow that it prevents a lan- guage from being used because it may per- fectly well allow or tolerate the use of a lan- 53. The Commission subsequently reverted guage. 34 It is my view that the Member to the question in its 'communication con- States are not merely entitled to regulate this cerning the use of languages in the marketing question but are also obliged to do so in of foodstuffs in the light of the judgment in order to ensure the uniform application of the Peeters case'. 32 That statement indicates, the directive and of the principle of legal cer- inter alia, that (in Article 14 of the Directive) tainty. 'the concept of "a language easily under- stood by purchasers" must obviously be left to the discretion of Member States. Similarly, an official language of the Member State of marketing will in principle be a language allowing consumers a good understanding of the labelling' (paragraph 30). 56. It should first of all be noted that the policy of the Community institutions in this area is characterised by the lack of any sys- tematic and coherent view. Thus, regarding

(a) certain directives for the national lan- (c) yet others opt for the official language or guage or languages of the State in which languages or the national language or the product is offered for sale (Article 8 languages of the State in which the pur- of Directive 71/307/EEC of the Council chase was made (Article 7(2) of Council of 26 July 1971 on the approximation of Directive 76/768/EEC of 27 July 1976 the laws of the Member States on textile on the approximation of the laws of the names (OJ 1971 L 185, p. 16); Article Member States relating to cosmetic 7(2) of Council Directive 73/404/EEC of products (OJ 1976 L 262, p. 169); Article 22 November 1973 on the approxima- 7(4) of Directive 78/631/EEC of 26 June tion of the laws of the Member States 1978 on the approximation of the laws of relating to detergents (OJ 1973 L 347, p. the Member States relating to the classi- 51); Article 11(9) of Council Directive fication, packaging and labelling of dan- 75/726/EEC of 17 November 1975 on gerous preparations (pesticides) (OJ 1978 the approximation of the laws of the L 206, p. 13), whereas Council Directive Member States concerning fruit juices 89/117/EEC of 13 February 1989 on the and certain similar products (OJ 1975 L obligations of branches established in a 311, p. 40.); Article 11 of Council Direc- Member State of credit institutions and tive 88/378/EEC of 3 May 1988 on the financial institutions having their head approximation of the laws of the Mem- onice outside that Member State regard- ber States concerning the safety of toys ing the publication of annual accounting (OJ 1988 L 187, p. 1), etc.); documents (OJ 1989 L 44, p. 40) adopts an original solution by opting for the drawing up of the requisite documents in the official national language or lan- guages (Article 4));

(e) others prefer to mention at least one or several languages which the country of destination is to determine from among In conclusion, no argument from the con- the national or official languages of the trary premiss may be based on the fact that Community (Article 11 of Council other directives apart from Directive 79/112 Directive 79/373/EEC of 2 April 1979 provide for labelling in a different language, on the marketing of compound food- as paragraph 16 of the judgment in Piageme stuffs for animals (OJ 1979 L 86, p. 30), II would seem to suggest.. as amended by Council Directive 96/24/EC of 29 April 1996 (OJ 1996 L 125, p. 33), although the initial version provided for labelling in one of the national or official languages of the country of destination). Besides, it should be pointed out that most Member States impose the use of their national or official language or one of those two languages for the particulars which must appear on foodstuffs, either under measures implementing the directive or in the context of the application of general consumer- In my view, an analysis of these directives protection measures. 35 allows no conclusion to be drawn as to the reasons which guided the Community insti- tutions each time they opted for one or other form of words. For instance, no rule is dis- cernible whereby 'strict' conditions (for example use of national or official language) apply to products injurious to health 57. Moreover, as a general rule, these mea- whereas 'less strict' conditions (for example sures are linked to the more general policy use of easily understood language) is suffi- for protecting national or official languages cient for other products (for example food- adopted in most Member States by way of stuffs). In fact, if that were the case, I do not see why, for example, fruit juices have greater health risks and should be labelled in 35 — See on this point the detailed study by the 'Consumer the national language of the State in which Policy' department of the Commission of the European Communities, currently a Directorate-General, entitled they are consumed (see above at (a)), whilst Étude sur les principes et dispositions actuels concernant les exigences linguistiques en rapport avec la legislation du con- not being a requirement in the case of food- sommateur dans la Communaute européenne (Rapport stuffs. Likewise, why should animal feed- final), pub. Bureau europeen des Unions des Consomma- teurs, Brussels, August 1993, p. 9 et seq. (hereinafter 'the stuffs be required to be labelled in one of the study').

59. It is not possible to ignore this Treaty 37 — Case C-379/87 [1989] ECR 3967. In that case a Nether- lands national had been precluded from taking up a post as article when sensitive questions arise such as a teacher of painting in an Irish State school on the ground that of the national language, which consti- that she did not know Irish which, alongside English, is an official language in Ireland. The Court held that, under tutes a fundamental feature of culture. As Article 3(1) of Council Regulation (EEC) N o 1612/68 of 15 October 1968 on freedom of movement for workers within Advocate General Darmon rightly pointed the Community (OJ, English Special Edition 1968 (II), p. 475) such a requirement of linguistic knowledge was justi- fied having regard to the nature of the tasks to be per- formed by the person concerned 'provided that the linguis- tic requirement in question is imposed as part of a policy for the promotion of the national language which is, at the 36 — Language enjoys formal constitutional recognition in Bel- same time, the first official language, and provided that that gium, Spain, France, Ireland and Italy and is formally rec- requirement is applied in a proportionate and non- ognised in legislation in Greece and Luxembourg. Other discriminatory manner' (para 24). Member States have specific laws of sectoral scope (see on this paragraph 40 et seq. of the study). 38 — Paragraphs 19 and 20 respectively of that Opinion.

I - 4452

GOERRES

61. I believe that the proper and balanced discretionary power on the part of the State, assessment of the question in the abovemen- requires State implementing measures. tioned case indicates the way the measure at issue should be assessed for compatibility with Community law. I will return to this question shortly.

65. In fact, in the latter case there are no hard and fast rules and the fundamental pre- condition for the correct operation of com- petition is lacking. Each trader will be acting arbitrarily, either considering in good or bad 63. First of all, it is of course the Member faith that the language in which the labels on States which are the addressees of the direc- his goods are worded is 'easily understood' tive and it is for them to adopt the appropri- by consumers, or hoping that a dispute of ate measures to comply with it (Articles 16 this nature will not be brought before the to 22 and 26). Neither the regions nor the courts or again hoping, should a case of this linguistic communities nor the national kind be brought before the courts, that he authorities themselves are competent to will receive a favourable decision or, in any adopt such measures. The national courts event, win time. must obviously interpret the national mea- sures in the light of the directive and, when no such interpretation is possible, refrain from applying them. That does not mean, however, that they can substitute themselves for the State in the exercise of its legislative 66. O n the other hand, in the absence of a power or themselves adopt measures imple- national rule providing guidelines for menting the directive which are in their view appraising the dispute before it, each court of appropriate. Therefore, even a ban on the each Member State will proceed by endeav- marketing of goods under Article 14 of the ouring to draw up a specific rule in each case directive for which the Member States are for each product on the basis of the general responsible through the intermediary of their indications provided by the Court's case-law. competent authorities, thus excluding any Moreover, as those courts will never be

68. In my opinion, the jurisdiction of the court lies, not in laying down the rule, but in finding exceptions thereto. That competence appears more specifically in the imposition of penalties for infringement of national rules imposing the use of the language of the 67. More specifically, I cannot accept that a State in which a product is marketed and national court has jurisdiction to adjudge consists in examining whether the particulars whether the language required to be used by appearing on the foodstuff in question, a Member State is or is not easily under- although not worded in the abovementioned stood, particularly not on a case-by-case language, are, owing to particular circum- basis. If it did have that jurisdiction, that stances, readily understood by the average would mean that there would be a specific consumer. That is because, in that case, rule depending on the product, the court, the application of the national measure would go place and time of assessment, which would further than the objective pursued by the have the effect of sowing confusion and directive, that is to say the effective infor- above all would make it impossible for the mation of the consumer. The national court directive to be applied uniformly within the is then required to deem the national meas- Member State concerned. Furthermore, such ure to run counter to the directive and then a solution would surely result in the de facto to declare it inapplicable, not in its entirety acceptance of the solution rightly rejected in but to the extent to which it provides for a Piageme I and II, namely the de jure imposi- penalty although in fact the consumer is tion of local languages as 'easily understood' languages. In practical terms, to remain with the example of Belgium, the most likely out- come is that a court in the Flemish region 40 — That was precisely the decision taken on 27 June 1996 by the Belgian Court following the judgment in Piageme II. The national court took the view that the particulars in French or in German (albeit official languages in Belgium) appearing on bottles of mineral water under the brand names Perrier, Evian, Contrex and Apollinaris (even though 39 — In fact the fourth time if one counts the Colim case all these waters were well known to the public) were not (C-33/97) in which I am also delivering my Opinion today. comprehensible for consumers of the Flemish region!

69. Owing to the diversity of situations which may be encountered, it is not easy in advance to determine the matters to which 70. Furthermore, along the same lines, it the courts will have to have regard in assess- should be said that the question arises in ing whether, on the facts of the case before it, respect of all particulars which are compul- the consumer has been properly informed. sory under the directive and not merely in respect of some of them. It is not therefore possible to acknowledge the relevance of the argument put forward by the defendant in the main proceedings that where, thanks to its name, a product is widely known, it may be exemplified from the requirement for par- ticulars to appear on it in the language deter- mined by law in the State in which the goods are marketed, in accordance with Article 14 In Piageme II (see paragraph 33 above), the of the directive. In fact this is only one of the Court provided certain indications. How- compulsory matters required by the directive ever, as the Court also pointed out, none of to be mentioned. those indications is decisive. Indeed, how much importance attaches to the fact that 50% of the inhabitants of a region speak lan- guages which are foreign to the other 50% who are not in a position to understand the particulars appearing on foodstuffs worded 71. Moreover, the distinction between 'well- in a foreign language? O r what is the signifi- known' products and others — that is to say cance of an information campaign for con- those which are 'less well-known' or new — sumers who have not followed it? The same is irrelevant. An interpretation which leads is true of the similarity of terms in different to the exemption of 'well-known' products languages: suffice it to observe that a super- from the obligations which apply to the oth- market is not the most appropriate setting in ers is likely to distort the rules on compe- tition and runs counter to the directive because it has the effect of systematically 41 — Case 27/80 Fietje [1980] ECR 3839, paragraph 12. favouring products which are already known

and established on the market to the detri- Article 14 or by reference to other Treaty ment of less 'well-known' or newly intro- articles, in particular Articles 30 to 36? duced products. Indeed, on the supposition that including the particulars in the language of the state in which the product is marketed (for example by affixing an additional label) represents a financial burden which increases the cost of the product, it is obvious that to exempt 'well-known' (imported) products from that obligation will make them cheaper and thus more attractive to the consumer than analogous (imported) products coming within the other category. Under those con- 74. The Court has held that the directive ditions the products would not be competing merely represented a first step in the har- on a level playing field and competition monisation process. 4 3 Accordingly, as would therefore be distorted. already stated (paragraph 28), reference will have to be made to the preceding Treaty articles. None the less, I take the view that, as a result of its successive amendments, the directive in its present version is contemplat- ing a relatively thorough approximation which does not fall far short of harmonisa- tion. Furthermore, I consider that each pro- vision must be examined independently. This gives Article 14 autonomous status and 72. I will now examine the conditions under although it affords a certain margin of discre- which the imposition by Member States of tion to the Member States in determining the the use of their national language, of their easily understood language, both that Article official language 42 or of one of their official and the directive as a whole lay down the languages, is lawful under Community law. limits within which that margin of discretion has to be applied. At all events, as the direc- tive and, in particular, Article 14 thereof seek to reconcile different objectives, 44 the method of interpretation is not substantially different from that generally used in the case of Articles 30 to 36. 45 These limits must therefore be determined, in other words it is a question of defining the conditions under which the discretionary power of the Mem- 73. In this context an important question ber States which I have mentioned above arises: is such lawfulness to be assessed under does not conflict with Community law.

75. It may be inferred from the foregoing guage may be easily comprehensible to the reasoning that the discretionary power con- purchaser is of only marginal importance.' ferred by Article 14 must be exercised so as However, this possibility must be confined to protect consumers and also, as far as pos- to what is absolutely necessary. sible, so as not to jeopardise freedom of movement. Accordingly, the restrictions imposed by the Member States in the use of a language must be subservient to the objec- tive pursued and must be limited to what is absolutely necessary. In other words, where several measures are available to the Member 77. From that point of view, it should be States it is the least restrictive one which noted that the last subparagraph of Article must be chosen (see paragraph 60 above). 14(2) allows the use on the label of languages other than the compulsory language. That mandatory rule is autonomous and uncondi- tional. It therefore produces direct effect, whether or not the Member States mention it in their implementing measures.

I - 4457

OPINION OF MR COSMAS — CASE C-385/96

fairly serve the interests of both consumers tuted by the expenditure which the manufac- and traders. turer or importer would be compelled to incur and the resulting advantage which would enure to the benefit of domestic prod- ucts to the detriment of imported products, in breach of Article 30 of the Treaty.

Moreover, such a manner of proceeding would result in insufficient information being provided to the consumer and also in a restriction in the choices open to him, as the 79. The only argument which could be advanced against the solution I have advo- cated would be the fetter on imports consti- 47 — See paragraphs 45 to 48.

I - 4458

GOERRES

Swedish Government correctly points out. languages, at the trader's choice. In that case In fact, the consumer would be inclined to the trader will assume responsibility for the choose products with particulars worded in choice of one of those languages and the his own language. wording of the particulars in that language is in any event in conformity with the direc- tive. Conversely, to require the use of the language of the region would compel importers to label their products in different languages and would unduly impede imports I believe that it is for this reason that the and in particular parallel imports. Court ruled, in reply to a preliminary ques- tion on this point, that affixing an additional (self-adhesive) label was the appropriate way in which to attain objectives which ham- pered the free movement of goods. 48 The second question

81. Finally, it goes without saying, I believe, that such an obligation concerns only the compulsory particulars required by the directive and not the additional particulars which may in an appropriate case be affixed 83. In asking the second question, the to the product. The latter particulars may national court essentially seeks an answer to lawfully be worded in the product's original the question whether Article 14 of the direc- language. tive allows the consumer to be informed not by means of the labelling but by means of information boards hanging in the shop.

(2) The compulsory particulars specified in Directive 79/112 must appear on the labelling of foodstuffs rather than be displayed at other points, such as on notices hanging at the point of sale.

I - 4460