C-366/98

GEFFROY

OPINION OF ADVOCATE GENERAL RUIZ-JARABO C O L O M E R delivered on 25 November 1999 *

1. By the question which it has referred for June 1996 at the Géant hypermarket a preliminary ruling under Article 177 of (Casino Group) in Clermond-Ferrand, offi- the EC Treaty (now Article 234 EC), the cials of the Direction de la Concurrence, de Cour d'Appel (Court of Appeal), Lyon, la Consommation et de la Répression des France, is asking the Court of Justice for an Fraudes (Department of Competition and interpretation of the combined provisions Consumer Protection) found: of Article 30 of the EC Treaty (now, after amendment, Article 28 EC), which prohi- bits, between Member States, quantitative restrictions on imports and all measures having equivalent effect, and Article 14 of Directive 79/112/EEC 1(hereinafter 'Direc- tive 79/112') on the labelling, presentation — that the labelling on 432 bottles of and advertising of foodstuffs. Coca-Cola, 47 bottles of Merrydown cider and 22 bottles of Red Raw ginger ale was not in French, save for the indications of volume and alcohol content;

I — The facts in the main proceedings — that advertisements showed bottles of the OD (Old Deadly) Pirat and Shock brands as cider, whereas those products did not conform to that description, which is reserved for alcoholic drinks made from apples;

2. The Cour d'Appel states in its judgment that, during an inspection carried out in

* Original language: Spanish. — that the shelf labelling of the products 1 — Council Directive 79/112/EEC of 18 December 1978 on the OD Pirat, Snake Bite and Blackadder approximation of the laws of the Member States relating to also represented those products as the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (OJ 1979 L 33, p. 1). ciders.

'... for a ruling as to whether the combined provisions of Article 30 of the Treaty and 4. By judgment of 18 November 1997, the Article 14 of Council Directive 79/112/ Tribunal de Police (Local Criminal Court), EEC of 18 December 1978 preclude the

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application of national legislation such as The Member States shall, however, ensure that contained in Decree No 84-1147 of that the sale of foodstuffs within their own 7 December 1984, implementing the Law territories is prohibited if the particulars of 1 August 1905 which was applicable at provided in Article 3 and Article 4(2) do the time, as amended by Article L. 213-1 et not appear in a language easily understood seq. of the Code de la Consommation.' by purchasers, unless other measures have been taken to ensure that the purchaser is informed. This provision shall not prevent such particulars from being indicated in various languages.'

III— The Community legislation

8. In order to interpret those two provi- sions, the Court will also need to take into 6. The national court seeks from the Court account the following articles of the same of Justice an interpretation of Article 30 of directive: the EC Treaty, which is worded as follows:

OPINION OF MR RUIZ-JARABO — CASE C-366/98

its nature, identity, properties, microbiological point of view, are composition, quantity, durability, highly perishable, the "use by" date; 2 origin or provenance, method of manufacture or production,

(5) any special storage conditions or con- ditions of use;

Article 3 (6) the name or business name and address of the manufacturer or packager, or of a seller established within the Commu- nity;

' 1 . In accordance with Articles 4 to 14 and subject to the exceptions contained therein, indication of the following particulars alone shall be compulsory on the labelling of foodstuffs:

(1) the name under which the product is sold; (7) particulars of the place of origin or provenance in the cases where failure to give such particulars might mislead the consumer to a material degree as to the true origin or provenance of the foodstuff; (2) the list of ingredients;

9. Article R. 112-7 of the Code de la Consommation (Consumer Code) provides, so far as is relevant to this case, that the labelling and methods used must not be such as to give rise to confusion in the mind 11. Written observations in the present of the purchaser or the consumer, particu- proceedings have been submitted, within larly as to the characteristics of the food- the period prescribed for that purpose by stuff and, in particular, as to its nature, Article 20 of the EC Statute of the Court of identity, properties, composition, quantity, Justice, by the defendant in the national durability, conservation, origin or prove- criminal proceedings, the French, Austrian nance, method of manufacture or produc- and United Kingdom Governments, and the tion. That article of the Code de la Commission. Consommation corresponds to Article 3 of Decree No 84-1147 of 7 December 1984 implementing the Law of 1 August 1905 on frauds and falsifications relating to products or services concerning the label- ling and presentation of foodstuffs, which was incorporated in the Code de la Con- At the hearing, which was held on sommation. 20 October 1999, the representative of Mr Geffroy and Casino, as well as those of the French Government and the Com- 3 — This item was added by Council Directive 86/197/EEC of mission, appeared in order to present their 26 May 1986 amending Directive 79/112/EEC (OJ 1986 L 144, p. 38). observations orally.

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OPINION OF MR RUIZ-JARABO — CASE C-366/98

VI — Examination of the questions raised not give rise to confusion in the mind of the purchaser.

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laws so as to contribute to the smooth case-law on the limits which Community functioning of the common market. In the law imposes on Member States when they recitals in the preamble to the directive, the lay down the linguistic requirements Community legislature states that the prime applicable to the marketing within their consideration for any rules on the labelling territories of foodstuffs coming from other of foodstuffs should be the need to inform Member States. and protect the consumer. 4

In order to understand the meaning of that provision, it is necessary to turn to the interpretation given by the Court of Justice 20. In its judgment the Court held that, in its case-law. This is not the first time that according to a literal interpretation, Arti- a national court has asked the Court to cle 14 does not preclude a national law interpret Article 14 of Directive 79/112. which allows, for the information of the On the contrary, there is a settled body of consumer, only the use of the language or

4 — First, second and sixth recitals in the preamble to the 5 — Judgment in Case C-369/89 Piageme and Others [1991] directive. ECR I-2971 (hereinafter 'the Piademe I judgment7).

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The legislation in question therefore allowed for the pos- sibility of using other languages as well as the obligatory use of the language of the linguistic region. The Court concluded that the obligation to use exclusively the language of the linguis- tic region constituted a measure having equivalent effect to a quantitative restric- tion on imports, prohibited by Article 30 of the Treaty. Consequently, it replied cate- 22. In its second Piageme judgment, 9the gorically that Article 30 of the EEC Treaty Court of Justice held that the expression 'a and Article 14 of Directive 79/112 preclude language easily understood' used in Arti- a national law from requiring the exclusive cle 14 of the directive is not equivalent to use of a specific language for the labelling 'the official language of the Member State' or 'the language of the region'.

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rather than to impose the use of a specific Member State, having regard to the use of a language. The Court went on to contrast language easily understood by purchasers, the requirement to use a 'language easily from requiring the use of a language which understood', imposed by Directive 79/112 is that most widely spoken in the area in on the labelling of foodstuffs, with the which the product is offered for sale, even if stricter obligation imposed by other Com- the use at the same time of another munity provisions, such as Directive 92/27/ language is not excluded. 12 EEC 10 on the labelling of medicinal prod- ucts for human use and on package leaflets, Article 8 of which provides expressly that the official language or languages of the Member State where the product is placed on the market must be used.

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OPINION OF MR RUIZ-JARABO — CASE C-366/98

and has been mentioned by the majority of the parties who have submitted observa- tions in the present proceedings. It is apparent from the documents in the file that the defendant in the main proceedings is charged with offences which took place in June 1996 when Directive 97/4/EC had not even been adopted. 18 Moreover, as the Court stated in the Piageme I judgment, 16 the obligation exclusively to use the language of the linguistic region — which in this case coincides with the territory of the Member State itself — constitutes a measure having equivalent effect to a quantitative restric-

. .'. 18 — This directive specified 14 August 1998 as the latest date by which Member States were to amend their laws in order 16 — Cited above in footnote 5, paragraph 16. to allow trade in products conforming to its provisions.

29. The defendant in the criminal proceed- ings, the Austrian Government and the United Kingdom Government, which states that at least one of the drinks mentioned in It adds that the differences between the the order for reference (that named 'Shock') French and British legislation regulating the was lawfully manufactured and marketed manufacture of cider have already been as cider within its territory, maintain that taken into account in an agreement on the both Article 30 of the EC Treaty and labelling of British ciders, concluded in Article 14 of Directive 79/112 preclude a 1993 between the main trade representa- Member State from restricting or prohibit- tives of the cider industry in the United ing the sale within its territory of cider Kingdom and France. 19 That agreement lawfully produced and marketed in another which, as the representative of the French Member State on the ground that it does Government confirmed at the hearing, is not conform to the definition of that applied by the great majority of cider product given by its national legislation. manufacturers in the United Kingdom, provides that British ciders are to be described as 'cider(s)' and bear the indica- tion 'boisson alcoolisée à base de pommes' (alcoholic drink made from apples). 30. The Commission, on the other hand, takes the view that Article 30 of the Treaty does not preclude national legislation which provides, in general terms, that labelling and the methods used must not be such as to give rise to confusion in the It affirms that, in the present case, the mind of the purchaser or the consumer, majority of the drinks were labelled in that especially as to the characteristics of the way and that the report drawn up by the foodstuff. consumer protection inspection was not aimed at requiring changes in the names under which the products are sold.

33. As proof of this difficulty, the French Government asserts that Mr Geffroy dis- tributed misleading advertising which could deceive the purchaser; for their part, the Austrian and United Kingdom Govern- ments have understood that he is accused of putting on sale, under the description 'cidre', drinks made from apples, which On the other hand, in its order for refer- were lawfully manufactured and marketed ence, the national court mentions that the in another Member State and described as defendant pleads in his defence, as to the 'cider', but whose composition did not descriptions of the ciders, that even if three conform to the requirements of the French products had been described by the shelf legislation on the manufacture of cider; the labelling as ciders, they were nevertheless Commission is aware of the vagueness put on sale on the beers shelf. which characterises the order for reference and, in its written observations, proposed that, so as to make the national court's task easier, the Court should give the broadest possible reply, providing it with whatever information may be necessary for it to give judgment on the restrictions on the use of the description 'cidre' which are contained in the French legislation, although it chan- 35. I note from the photocopy of the ged its position at the hearing. advertising leaflet annexed to Mr Geffroy's observations that the drinks named Black- adder, O.D. Pirat, Snake Bite, Strongbow Ice, Merrydown and Shock are presented in an overall manner as 'Les Ciders', with an asterisk referring to a footnote stating 'Boissons alcoolisées à base de pommes'. 34. But the confusion does not end there, as Some of those drinks are described in the was demonstrated throughout the hearing. leaflet as British cider (this is the case with On the one hand, the representative of Mr O.D. Pirat, Merrydown and Shock), Geffroy and Casino, referring to documents whereas others are shown as a blend of such as the advertisements distributed or beer, cider and blackcurrant liqueur (this is the judgment given by the Tribunal de the case with Blackadder) or as a blend of Police de Saint-Étienne, which he had beer and cider (such as Snake Bite, for annexed to his written observations but of example).

I must add that none of the legal represen- needing to be interpreted, having regard to tatives who attended the hearing was able the subject-matter of the dispute. 21 to tell me, even approximately, the percen- tage of each product in the blended drinks. It seems surprising to me that, as was stated at the hearing, this question was likewise not looked into by the Tribunal de Police de Saint-Etienne which imposed a fine on Mr Geffroy. 38. However, I take the view, in the present case, that the court which has raised the question referred for a preliminary ruling has not defined the legal framework in which the interpretation sought is to be applied, since it refers only to the national legislation on the labelling and presentation 36. The Court has consistently held that of foodstuffs and it is not clear whether the information provided in orders for that legislation prohibits the marketing in reference must not only be such as to France, under the description of cider, of enable the Court to reply usefully but must drinks made from apples which are law- also give the governments of the Member fully manufactured and marketed in other States and other interested parties the Member States. opportunity to submit observations pur- suant to Article 20 of the EC Statute of the Court of Justice. It is the Court's duty to ensure that the opportunity to submit observations is safeguarded, bearing in mind that, by virtue of the abovementioned provision, only the orders for reference are 39. That is why I consider that it is not notified to the interested parties. 2 0 necessary to reformulate the question in order to give the national court a more complete reply. Contrary to what I had decided before the hearing, I shall not, therefore, examine the restrictions which French legislation may impose on the use of the description 'cidre' in Decree No 53-978 37. It is true that, where questions are of 30 September 1953 on cider production formulated imprecisely, the Court reserves policy and the marketing of ciders, perries the right to extract from all the information and similar beverages, for the simple reason provided by the national court and from that I do not know whether that has any the documents concerning the main pro- bearing on the conduct with which the ceedings the points of Community law defendant in the main proceedings is charged. Consequently, I propose that the

Court should confine itself to answering the indirectly, actually or potentially, to intra- question as it has been raised. community trade. 22 However, obstacles to free movement within the Community resulting from disparities between the national laws must be accepted in so far as such rules, applying without distinction to national and imported products, may be 40. It is apparent from the order for justified as being necessary to satisfy man- reference that the national provision which datory requirements of inter alia the pro- the defendant is accused of infringing is tection of public health, the fairness of Article 3 of Decree No 84-1147, the first commercial transactions and the defence of paragraph of which corresponds almost the consumer. 23 word for word to Article 2(1) of Directive 79/112. As provided in the French legisla- tion, the labelling and methods used must not be such as to give rise to confusion in the mind of the purchaser or the consumer, particularly as to the characteristics of the foodstuff and, in particular, as to its nature, identity, properties, composition, quantity, durability, conservation, origin or prove- 42. There are no common rules on the nance, and method of manufacture or production and marketing of the various production. types of cider in the Community, and Article 3 of Decree No 84/1147 merely reproduces one of the provisions of Direc- tive 79/112, the purpose of which is precisely to approximate the laws of the Member States concerning the labelling of 41.1 am of the opinion, as is the Commis- foodstuffs in order to contribute to the sion, that such a provision, assuming that it smooth functioning of the common market, could have the effect of hindering the free giving prime consideration to the need to movement of goods, merely reflects the inform and protect the consumer. need for consumer protection and fair trading and would be justified by those imperative requirements.

(1) Article 30 of the EC Treaty and Article 14 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 foodstuffs for sale to the ultimate consumer preclude national legislation from requiring exclu- sively the use of a particular language for the labelling of foodstuffs, without allowing for the possibility of using another language easily understood by purchasers or of informing the purchaser by other measures.

(2) Article 30 of the EC Treaty does not preclude national legislation such as Article 3 of Decree N o 84-1147 which provides that the labelling and methods used must not mislead the purchaser or the consumer, particularly as to the characteristics of the foodstuff.

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