61996CC0385_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
1 In the present case the Amtsgericht (Local Court) Aachen has referred two questions 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 foodstuffs for sale to the ultimate consumer (1) (hereinafter the `directive').
2 The questions were raised in the course of an appeal by a seller of foodstuffs against an administrative penalty imposed on him on the ground that, in breach of German legislation, he had offered for sale foodstuffs which bore no particulars in German but only in French, English or Italian.
II - National legal framework
3 Paragraph 3 of the German rules on the labelling of foodstuffs (Regulation on the designation of foodstuffs, hereinafter the `LMKV') provides:
`1. Packaged foodstuffs may be marketed only if the following particulars appear on the packaging:
(1) the trade name ...;
(2) the manufacturer's name and address;
(3) the list of ingredients ...;
(4) sell-by date ...;
(5) . ...
3. The particulars specified in subparagraph 1 of the LMKV are to be stated on the packaging or on a label affixed thereto, in a clearly visible place, in German, in a readily intelligible, clearly legible and indelible manner. The particulars specified in subparagraph 1 may also be given in another easily intelligible language, if the provision of information to the consumer is not adversely affected thereby.'
III - Facts
4 Mr Goerres, the defendant in the main proceedings, operates a foodshop in Eschweiler.
On 13 January 1995 he had on offer for sale in his shop the following goods, amongst others:
(i) Fanta Orange, Soda au Jus d'Orange;
(ii)
Corn flakes;
(iii) I Pelati di San Marzano - il Vero Gusto del Pomodoro, and
(iv) Pasta sauce with olives and capers.
These goods were not labelled in German but only in French, Italian and French, Italian and English respectively.
5 By a decision of 6 July 1995 the Oberkreisdirektor (Chief Executive) of Kreis Aachen (Aachen district) imposed on the defendant a penalty of DEM 2 000 for infringement of Paragraph 3(3) of the LMKV.
6 The defendant lodged an objection to the penalty notice, arguing that, under Article 14 of the directive, use of a particular language could not be prescribed and that the decisive criterion was the intelligibility of the labelling.
More particularly, it was contended on his behalf that, in the case of products with a high degree of familiarity, the consumer's interest in receiving information was not adversely affected by the use of foreign languages.
He stated, moreover, that he had placed additional signs in his shop on which the ingredients of the products at issue were given in German.
7 The national court considers that foodstuffs are in principle to be labelled in the language which is usual for the language area in question.
For the average German consumer that language is German.
Nor does the hanging of a notice satisfy the requirement that particulars of the product be stated on it.
However, according to the national court, its opinion is in conflict with the interpretation of Article 14 of the directive given by the Court of Justice in its judgment in Piageme (2) (hereinafter `Piageme II').
Accordingly, the national court has submitted to the Court for a preliminary ruling the questions set out below.
IV - The preliminary questions
`1. Does a trader act in compliance with Article 14 of Council Directive 79/112/EEC 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, if he offers for sale in the Federal Republic of Germany foodstuffs labelled in Italian, French or English?
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 supplementary sign in his shop at the location of the goods in question, containing the prescribed particulars in German?'
V - Directive 79/112/EC
8 In the words of the first and second recitals in the preamble to the directive, it seeks to approximate the laws of the Member States on the labelling of foodstuffs in order to contribute to the smooth functioning of the common market since the differences at present existing impede the free circulation of products and can lead to unequal conditions of competition.
9 None the less, in the words of the sixth recital the prime consideration for any rules on the labelling of foodstuffs should be the need to inform and protect the consumer.
10 Article 1(3) of the directive provides as follows:
`For the purpose of this directive,
(a) "labelling" shall mean any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on any packaging, document, notice, label, ring or collar accompanying or referring to such foodstuff.'
11 Article 3 sets out the particulars which must appear on labelling.
Essentially they are as follows: (1) the name under which the product is sold; (2) the list of ingredients; (3) in the case of prepackaged foodstuffs, the net quantity; (4) the date of minimum durability; (5) any special storage conditions or conditions of use; (6) the name or business name and address of the manufacturer or packager, or of a seller established within the Community; (7) the place of origin or provenance in cases where failure to give those particulars might mislead the consumer as to the true origin or provenance of the foodstuff, and (8) instructions for use when it would be impossible to make appropriate use of the foodstuff in the absence of such instructions.
12 Article 14 of the directive provides:
`Member States shall refrain from laying down requirements more detailed than those already contained in Articles 3 to 11 concerning the manner in which the particulars provided for in Article 3 and Article 4(2) are to be shown.
The Member States shall, however, ensure that the sale of foodstuffs within their own territories is prohibited if the particulars provided for in Article 3 and Article 4(2) do not appear in a language easily understood 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.'
13 As I have already stated, (3) the directive was substantially amended by Directive 97/4/EC.
Although the latter directive is subsequent in time to the facts of the case in the main proceedings, it is worth noting the amendment made to Article 14.
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:
`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 determined in accordance with the procedure laid down in Article 17 as regards one or more labelling particulars.
2. Within its own territory, the Member State in which the product is marketed may, in accordance with the rules of the Treaty, stipulate that those labelling particulars shall be given in one or more languages which it shall determine from among the official languages of the Community.'
15 Finally, Article 1(1) of Directive 97/4/EC inserted after the sixth recital, to which I have already referred at paragraph 9 hereof, the following recital: `whereas that need means that Member States may, in compliance with the rules of the Treaty, impose language requirements.'
VI - Substance
16 The order for reference shows that, in order to assess the lawfulness of the administrative 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
whether it is permissible under Article 14 of the directive for a national rule to require particulars to be given on packaged foodstuffs at least in the language of the State concerned, in particular in the case of a monolingual state such as Germany.
In its second question it goes on to ask whether hanging an additional notice in the shop enables the consumer adequately to be informed.
17 In order to reply to the preliminary questions it is appropriate to set in context the framework and objective of the directive, as well as certain concepts used by the directive, such as those of consumer or purchaser and easily understandable language.
Objective of the directive
18 With regard to the objective of the directive certain fluctuations may be discerned in the case-law of the Court. Some judgments mention the free movement of goods as being the objective, whereas others prefer to mention consumer protection.
However, the precise determination of the directive's purpose is of particular importance, inasmuch as that determination provides the guiding principle for interpreting the provisions of the directive, particularly in uncertain situations, which are the most common.
19 It will be remembered that, in its judgment in SARPP, (4) the Court stated that `as is evident from its preamble, the objective of the directive is to promote the free movement of foodstuffs by the approximation of the laws of the Member States on labelling' (paragraph 11).
Similarly, in its judgment in Piageme (5) (hereinafter `Piageme I') the Court held that: `it follows from the first three recitals in the preamble that Directive 79/112 seeks in particular to eliminate the differences which exist between national provisions and which hinder the free movement of goods' (paragraph 15). (6)
20 However, before (7) and after those judgments, 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 ultimate consumer of foodstuffs, in particular as regards the nature, identity, properties, composition, quantity, durability, origin or provenance, and the method of manufacture or production thereof'. (8)
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 content of the rules which it lays down.
Conversely, the free movement of goods constitutes an indirect objective of the directive which is attained by the introduction of common rules on the labelling of foodstuffs.
22 In any event, it is not possible to conceive of the directive as seeking to enhance free movement simply by way of an `increase in the volume of imports', (9) in other words by having regard only to quantitative criteria.
In fact, the detailed rules on labelling and the different restrictions imposed by the directive (which become more stringent over time as a result of successive amendments to the directive) do not necessarily involve an increase in trade, at least initially, until the Member States and trade adapt themselves to common rules.
Freedom of movement is enhanced in the sense that the Member States are no longer authorised to impose more requirements than those deemed indispensable by the 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 which are necessary permits the inference that what is in contemplation is the free movement of foodstuffs in the proper sense, that is to say a healthy movement of foodstuffs from a qualitative point of view and not a mere increase in quantities in circulation. The combined effect of the freedom viewed in this light and uniform conditions applying to the offering for sale of foodstuffs enables the consumer to make an informed choice, encourages healthy competition between products and allows the best products to dominate the market.
Framework of the directive
23 The directive therefore pursues the two abovementioned objectives which are at the same time objectives of Community law.
Indeed Article 30 et seq. of the Treaty enshrine the principle of the free movement of goods.
Moreover, the Court has consistently affirmed that consumer protection constitutes a ground of public interest on which restrictions on that freedom are justified, (10) henceforth constituting one of the activities of the Community (Article 3(s) of the EC Treaty, as amended by the Treaty on European Union).
Likewise, Article 129a of the Treaty, which was added by the Treaty of Maastricht to the third part of the Treaty on the policies of the Community, provides that `the Community shall contribute to the attainment of a high level of consumer protection' through (a) measures adopted pursuant to Article 100a, and (b) specific action which supports and supplements the policy pursued by the Member States to protect the health, safety and economic interests of consumers and to provide adequate information to consumers.
Although the directive predates the foregoing article, in regard to situations arising after the introduction of Article 129a of the Treaty, it must be recognised that the directive is to be interpreted in the light of the particular requirements of that
provision.
24 Evidently, however, the objectives pursued by the directive are not always mutually compatible.
In that regard, the directive seeks to reconcile matters which are frequently incompatible.
25 Indeed, for the purposes of the interpretation and application of Community law, the Community institutions, in the same way as the Member States and in particular the courts, are required to take into account and reconcile the objectives pursued by Community law which include those mentioned above in order to facilitate their actual harmonisation.
None the less, where those objectives prove to be irreconcilable, priority will inevitably have to be given to one of those objectives over another, following an assessment of the harm done to one or other of those objectives, the resultant risk and
the balance of advantage in serving one objective to the detriment of another.
26 It goes without saying that that assessment will have to be made in light of the actual features of each situation. Nevertheless, regard must be had to an objective assessment and the order of importance of the values protected, as applicable under Community law.
A comparison of that kind between the principles of
free movement of goods and consumer protection show that priority must in principle be accorded to the latter principle, which is of greater or preponderant value.
In fact, in the structure of the Treaty it is consumer 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 lawful to the extent to which it essentially serves to protect public health or consumer protection, whereas a measure inimical to public health or consumer protection cannot be upheld on the sole ground that it serves to promote, even to a significant extent, the free movement of goods.
A particular illustration of this viewpoint is afforded by the judgment in Van der Veldt. (11)
In that case the Court took the view that a Member State was entitled, relying on the overriding requirement of consumer protection, to require particulars to be indicated of the preserving agents of a foodstuff from another Member State where that foodstuff, pursuant to the option provided for in Article 23(1)(a) of the directive, was lawfully marketed under a merely generic reference to preserving agents, (12) even though that constituted a restriction on the free movement of goods.
27 Viewed in that light, Article 14 of the directive essentially pursues the same objective as Article 36 of the Treaty.
It gives concrete effect to the principle of consumer protection as a ground of general interest justifying the imposition of restrictions on the free movement of goods and, therefore, must be interpreted in the same way. (13)
28 This is a finding of some significance, in particular as regards review of the compatibility with Community law of national measures for implementing the directive and, in particular, in replying to the question whether compatibility is to be assessed solely in light of the provisions of the directive and/or by reference to Articles 30 to 36 of the Treaty.
Even though, subsequently, I will revert to this question at an appropriate point in this Opinion, I should like at this stage to recall certain rules which have been established in the Court's case-law.
First, it is common ground that national provisions adopted in areas not within the scope of the directive are to be assessed in light of Articles 30 to 36 of the Treaty. (14)
Secondly, national provisions implementing in the domestic legal order provisions of the directive which are concrete and complete, in other words provisions bringing about a `complete harmonisation' (such as provisions imposing actual restrictive obligations) are to be assessed on the basis of the directive.
To the extent to which the national measures are in accordance with the directive, they are deemed also to accord with the provisions of the Treaty, (15) and it is therefore no longer necessary to examine them in the light of the Treaty. (16)
Finally, national measures adopted under Treaty provisions which bring about an incomplete harmonisation (such as provisions authorising derogations or leaving to the Member States a margin of discretion) are to be assessed in light of the objectives and economy of the directive but also by reference to Articles 30 and 36 of the Treaty. (17)
Article 14 of the Directive
29 As we know, the Court has had occasion to interpret Article 14 of the directive in its Piageme I (cited above at footnote 5) and Piageme II judgments. (18)
30 Those cases raised the question of the compatibility with Community law of a provision of Belgian law requiring particulars to appear in the language of the linguistic region in which the foodstuffs are to be sold (paragraph 13).
In Piageme I the Court held that Article 14 did not require the use of a particular language (paragraph 13). Certainly, the Court said, it was true that, on a literal interpretation of Article 14, the language of the linguistic region is the language which appears to be most `easily understood' (paragraph 14).
However, in light of the directive's objective which is in particular to `eliminate the differences which exist between national provisions and which hinder the free movement of goods', the Court held that `Article 14 is limited to the requirement of a language easily understood by the purchaser and provides that the entry of foodstuffs into the territory of a Member State may be authorised where the relevant particulars do not appear in a language easily understood "if other measures have been taken to ensure that the purchaser is informed"' (paragraph 15).
For the Court it followed that imposing a stricter obligation than the use of a language easily understood, that is to say, for example, the exclusive use of the language of a linguistic region and, on the other hand, failing to acknowledge the possibility that the purchaser might be informed by other measures, went beyond the requirements of the directive; in that connection it considered that `the obligation exclusively to use the language of the linguistic region constitutes a measure having equivalent effect to a quantitative restriction on imports, prohibited by Article 30 of the Treaty' (paragraph 16).
On those grounds, the Court ruled that: `Article 30 of the EEC 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 a national law from requiring the exclusive use of a specific language for the labelling of foodstuffs, without allowing for the possibility of using another language easily understood by purchasers or of ensuring that the purchaser is informed by other measures.'
31 This judgment provided some indications as to the meaning of the expression `language easily understood'. But, as it later turned out, those indications were not sufficient.
The Belgian courts reverted to the question, seeking further clarification from the Court.
That was to be expected.
In fact, the issue raised by the Sibylline terms of the second sentence of Article 14 does not so much refer to what the directive prohibits but rather to what it authorises or tolerates.
More importantly, it has a bearing on whether the Member State ought to elucidate the meaning of the term `language easily understood' by means of general implementing rules or whether it is for the courts to do so in each concrete case, and according to what criteria.
32 In Piageme II a different Belgian court reverted to the question, asking whether the national measure was justified in light of Articles 128 and 129a of the Treaty, where that national measure did not preclude the use of another language.
33 In its judgment in that case, the Court held, first, that `the expression "a language easily understood" used in Article 14 of the Directive is not equivalent to "the official language of the Member State" or "the language of the region".
It is designed to ensure that the consumer is provided with information rather than to impose the use of a specific language' (paragraph 15).
After stressing that other directives on labelling, such as Council Directive 92/27/EEC of 31 March 1992 on the labelling of medicinal products for human use and on package leaflets, (19) expressly provide that the official language or languages of the Member State where the product is placed on the market must be used (paragraph 16), the Court went on to hold, referring to its judgment in Piageme I, that:
`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 precluded, also constitutes a requirement stricter than the obligation to use a language easily understood.
Neither Article 128 nor Article 129a of the Treaty authorise a Member State to substitute a more stringent rule for that laid down in the Directive.
In the light of the foregoing considerations, there is no need to examine the question in the context of Article 30.' (20)
The Court further considered that `it is for the national court to determine in each individual 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 `whether the compulsory particulars given in a language other than the language mainly used in the Member State or region concerned can be easily understood by consumers in that State or region' (paragraph 29).
In that connection the Court considered that `various factors may be relevant, though not decisive in themselves, for example, the possible similarity of words in different languages, the widespread knowledge amongst the population concerned of more than one language, or the existence of special circumstances such as a wide-ranging advertising campaign or widespread distribution of the product, provided that it can be established that the consumer is given sufficient information' (paragraph 30).
On those grounds the Court ruled that `Article 14 of the Directive ... precludes a Member State, with regard to the use of a language easily understood by purchasers, from requiring the use of a language which is that most widely spoken in the area in which the product is offered for sale, even if the use at the same time of another language is not excluded' (operative part).
34 I have quoted copiously from these two judgments because, though I believe their operative part to be correct, I would like to discuss some of the grounds on which they are based.
In any event I agree with the view 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 Germany, the Portuguese Republic or the Hellenic Republic.
35 I will start by formulating certain observations in regard to the two latter judgments which in my view will more easily enable a reply to be given to the preliminary question.
36 First of all, it must be recognised that the link made in Piageme I between the directive and Article 30 of the Treaty was not particularly apposite, principally for two reasons.
37 First of all, as has been demonstrated, it was no coincidence that the free movement of goods was chosen as the main objective of the directive.
That conception undeniably had an effect on the logical approach of both the first judgment and the second, which was based on the first one.
From that point of view, the fact that the Court in Piageme II did not deem it necessary to revert to the Article 30 issue does not alter the matter since, on the one hand, the Court refers to the first judgment and, on the other, it did not formally distance itself from its earlier interpretation.
38 Secondly, the scope of the directive does not exactly correspond to that of Article 30 of the Treaty because it is broader.
Indeed it is common ground that Article 30 of the Treaty is intended to eliminate the obstacles to imports of goods into a Member State, whereas the directive applies to foodstuffs marketed in the whole of the Community, without any distinction as to their origin, therefore both to foodstuffs of national origin and to imported foodstuffs.
Thus, rules coming within the scope of the directive apply to foodstuffs of national provenance in the same way as to imported foodstuffs, whereas legislation contrary to Articles 30 and 36 can apply only to imported products. (21)
Nor, therefore, does the question arise as to the conditions under which Article 14 may authorise `the entry of foodstuffs into the territory of a Member State', (22) for example by a wholesaler.
In fact, the object of the Directive is the labelling of packaged foodstuffs intended for the final consumer (see the fifth recital in the preamble to the directive). (23)
In light of those aspects, the general application 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 any event is not warranted by the terms of the directive.
39 Moreover, the questions which remain unanswered following Piageme I (24) are still pending even following the judgment in Piageme II, while other questions have inevitably been added.
This is true of the following questions: if the easily understood language is neither the official language nor the language of the region, what language is it? Is it the national language? Are the Member States still authorised, or are they no longer authorised, to legislate on matters of 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 language is easily understood? Is it the actual purchaser, that is to say the purchaser in the region, or the average purchaser in the Member State? Is the question whether the purchaser will be informed in one or other language or by `other measures', at the end of the day, a matter for the discretion of traders?
40 In my view, Article 14 of the directive lays down a rule at the same time as providing for an exception therefrom. The rule provides that foodstuffs must be labelled in a language easily understood by `purchasers' (in the plural), that is to say the purchasing public in general.
If that is not the case, it is for the Member States to ensure that the marketing of the product is banned.
The exception allows a Member State to refrain from banning the marketing of a product where the `purchaser' (in the singular), that is to say the purchaser directly concerned in the specific instance, is informed in another manner.
That rule is complemented by the more specific rule not allowing Member States to prevent foodstuffs from being labelled in different languages.
41 The terms in which these provisions are couched, as well as other provisions of the directive which, for example, require particulars to be `clearly legible', (25) or determine the contents and precise terms of the particulars, (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 communicating complete and reliable information concerning all the ingredients and the other particulars which are mandatory under the terms of the directive. Thus, only exceptionally does the question arise as to the provision of information to the consumer by other means, namely when the language in which the label is worded is not easily understandable.
42 It follows that information by way of the written language and information by means other than the written language are not equivalent and interchangeable and do not come within the margin of discretion of the Member States, of the competent authorities or, still less, of the traders themselves.
43 Indeed, language is not the only semiological system enabling human beings to communicate with each other. There are others which, it seems, were precursors to language, such as nods, winks, gestures, pictures, etc. Depictions have evolved from the cave-drawings of Lascaux, ancient frescoes and miniature medieval manuscripts, to the graffiti of today, comic strips and various representations and symbols which convey a message.
44 Thus, for example, it is not impossible for a talented designer to reproduce in graphic form a large number of the characteristics of the meat contained in a packet. (27) However, it will never be possible by this means to indicate all the characteristic features 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.
However that might be, this is not the usual means of communication in contemporary society and, in any event, is not the system contemplated by the directive.
The directive had in contemplation human language and, in particular, not just any language but a language `easily understood' by the consumer.
45 It is therefore important that there should be a precise definition of the `consumer', as that term is used in the directive.
The consumer in the contemplation of the directive is the typical and predictable consumer who has no particular knowledge or requirements, a person completely without any specialised knowledge or requirements, in other words the consumer of average type who represents the
run of the mill of customers in general.
Furthermore, as the consumer must be in a position to read the written label showing the particulars relating to the foodstuffs, the directive covers the average consumer who is sufficiently able to read and write his own language.
This definition therefore excludes consumers with certain specific characteristics, such as the polyglot or illiterate consumer, just as it does consumers belonging to certain groups, communities or regions.
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 consumption have evolved and that people have become more demanding.
The consumer does not buy (and must not be encouraged to buy) a product irrespective of its characteristics or because that product has been the subject of more widespread publicity.
He chooses the product which corresponds to his actual needs and requires to be informed as fully as possible concerning that product.
Precision of information concerning the qualitative choice is not only an aspiration of Community law but also a legitimate aspiration of the Member States. It is for that reason that the Court has repeatedly acknowledged 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 possibility of making their choice on the basis of that information' and that such information might be given effectively by requiring adequate labelling. (28) It must therefore be concluded that the directive has in contemplation the average, informed consumer.
47 Nor, finally, are we talking about a consumer irrespective of time or place. The directive is addressed to the Member States and requires them to adopt implementing measures in favour of consumers.
Accordingly, it is the nationals of each Member State who are the consumers which each Member State is required primarily to protect.
48 The inference to be drawn therefore is that the concept of a language `easily understood' within the meaning of Article 14 refers to the language which is readily comprehensible to the average, informed consumer of the Member State in the particular case.
49 The question then arises as to which language this should be and who should decide: the Member State concerned under general implementing rules or the courts in a proper case?
50 In my opinion, the language in question must be deemed to be the national language or, where it is established by law, the official language of the State or, where there are several official languages, at least one of these, at the discretion of the State concerned.
It follows that a State which requires the particulars appearing on foodstuffs to be worded at the very least in its official language (or in one of the official languages, as the State concerned may decide) does not infringe Article 14 of the directive.
51 It is perhaps noteworthy that the European Parliament has expressed itself in similar terms, both at the stage of the preparatory 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 information at least in the language or languages of the country of destination, so as to avoid serious confusion and misunderstandings;' (29) and subsequently. (30)
52 Moreover, in reply to written questions put to him on the occasion of the judgment in Piageme I, Mr Bangemann, representing the Commission, pointed out that a proper balance had to be struck between the need to combat disguised restrictions on trade and the consumer's right to receive comprehensible information and went on to say that `the national language or languages in which the product is marketed may in fact be regarded as the most objective common denominator as regards the comprehensible nature of information to be communicated to the consumer', stating that it was necessary to consider whether the requirement for particulars to appear in the national language ought not to be extended to all the information to be provided to the consumer. (31)
53 The Commission subsequently reverted to the question in its `communication concerning the use of languages in the marketing of foodstuffs in the light of the judgment in the Peeters case'. (32) That statement indicates, inter alia, that (in Article 14 of the Directive) `the concept of "a language easily understood 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).
54 These views were confirmed in Directive 97/4 amending Directive 79/112 and expressly authorising the Member States essentially to impose their official language or one of them in the labelling of foodstuffs. (33)
And even if Directive 97/4 does not have retroactive effect, I am of the view that it conveys the actual intention of the Community legislature which may, I believe, be inferred in any event from the letter and purpose of the directive, even in its initial version.
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 language from being used because it may perfectly well allow or tolerate the use of a language. (34) It is my view that the Member States are not merely entitled to regulate this question but are also obliged to do so in order to ensure the uniform application of the directive and of the principle of legal certainty.
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 systematic and coherent view.
Thus, regarding the terms in which all or some of the mandatory particulars are couched:
(a) certain directives for the national language or languages of the State in which the product is offered for sale (Article 8 of Directive 71/307/EEC of the Council of 26 July 1971 on the approximation of the laws of the Member States on textile names (OJ 1971 L 185, p. 16); Article 7(2) of Council Directive 73/404/EEC of 22 November 1973 on the approximation of the laws of the Member States relating to detergents (OJ 1973 L 347, p. 51); Article 11(9) of Council Directive 75/726/EEC of 17 November 1975 on the approximation of the laws of the Member States concerning fruit juices and certain similar products (OJ 1975 L 311, p. 40.); Article 11 of Council Directive 88/378/EEC of 3 May 1988 on the approximation of the laws of the Member States concerning the safety of toys (OJ 1988 L 187, p. 1), etc.);
(b) other directives opt for the official language or languages of the State in which the purchase is made (Article 8(4) of Council Directive 88/379/EEC of 7 June 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ 1988 L 187, p. 14); Article 1 of Council Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning labelling of tobacco products (OJ 1989 L 359, p. 1); Article 8 of Directive 92/27, and others);
(c) yet others opt for the official language or languages or the national language or languages of the State in which the purchase was made (Article 7(2) of Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (OJ 1976 L 262, p. 169); Article 7(4) of Directive 78/631/EEC of 26 June 1978 on the approximation of the laws of the Member States relating to the classification, packaging and labelling of dangerous preparations (pesticides) (OJ 1978 L 206, p. 13), whereas Council Directive 89/117/EEC of 13 February 1989 on the obligations of branches established in a Member State of credit institutions and financial institutions having their head office outside that Member State regarding the publication of annual accounting 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 languages (Article 4));
(d) yet other directives opt for the use of an language easily understood by consumers (see, in addition to Directive 79/112, Article 10 of Council Directive 89/107/EEC of 21 December 1988 on
the approximation of the laws of the Member States concerning food additives authorised for use in foodstuffs intended for human consumption (OJ 1988 L 40, p. 27); Article 7(3) of Council Directive 90/496/EEC of 24 September 1990 on nutrition labelling for foodstuffs (OJ 1990 L 276, p. 40), and others;
(e) others prefer to mention at least one or several languages which the country of destination is to determine from among the national or official languages of the Community (Article 11 of Council Directive 79/373/EEC of 2 April 1979 on the marketing of compound foodstuffs for animals (OJ 1979 L 86, p. 30), 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).
In my view, an analysis of these directives allows no conclusion to be drawn as to the reasons which guided the Community institutions each time they opted for one or other form of words.
For instance, no rule is discernible whereby `strict' conditions (for example use of national or official language) apply to products injurious to health whereas `less strict' conditions (for example use of easily understood language) is sufficient for other products (for example foodstuffs).
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 the national language of the State in which they are consumed (see above at (a)), whilst not being a requirement in the case of foodstuffs. Likewise, why should animal feedstuffs be required to be labelled in one of the national or official languages of the country (see above at (e)), whereas foodstuffs intended for human consumption are to be subject to allegedly more flexible criteria?
In conclusion, no argument from the contrary premiss may be based on the fact that other directives apart from Directive 79/112 provide for labelling in a different language, as paragraph 16 of the judgment in Piageme II would seem to suggest.
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-protection measures. (35)
57 Moreover, as a general rule, these measures are linked to the more general policy for protecting national or official languages adopted in most Member States by way of legislative or even constitutional provisions. (36)
58 From this viewpoint the adoption of measures such as those at issue must be seen in their wider setting, in particular in the context of the legitimate interest on the part of Member States in protecting their national language.
We already find a marker being set for this concern in Article 128 of the Treaty, added by Article G.37 of the Treaty on European Union.
That article enshrines the cultural diversity of the Union (paragraph 1), the competence of the Member States in cultural matters (paragraph 5) and commands the Community institutions to take account of cultural matters in their activity under other provisions of the Treaty (paragraph 4).
59 It is not possible to ignore this Treaty article when sensitive questions arise such as that of the national language, which constitutes a fundamental feature of culture.
As Advocate General Darmon rightly pointed out in his Opinion in Groener, (37) `preservation of the language is one of those
questions of principle which one cannot dismiss without striking at the very heart of cultural identity.
(...) Every State has the right to try to ensure the diversity of its cultural heritage and, consequently the means to carry out such a policy.' (38)
60 In its judgment in that case, having noted the `special linguistic situation in Ireland' (paragraph 17), the Court stated that `The EEC Treaty does not prohibit the adoption of a policy for the protection and promotion of a language of a Member State which is both the national language and the first official language.
However, the implementation of such a policy must not encroach upon a fundamental freedom such as that of the free movement of workers. Therefore, the requirements deriving from measures intended to implement such a policy must not in any circumstances be disproportionate in relation to the aim pursued and the manner in which they are applied must not bring about discrimination against nationals of other Member States.' (paragraph 19).
61 I believe that the proper and balanced assessment of the question in the abovementioned case indicates the way the measure at issue should be assessed for compatibility with Community law.
I will return to this question shortly.
62 I previously maintained (paragraph 55 above) that the question as to the language easily understood should as far as possible be governed by provisions of a general kind adopted by the Member States, for reasons of legal certainty.
I will attempt to elucidate in what follows the basis of this point of view.
63 First of all, it is of course the Member States which are the addressees of the directive and it is for them to adopt the appropriate measures to comply with it (Articles 16 to 22 and 26).
Neither the regions nor the linguistic communities nor the national authorities themselves are competent to adopt such measures.
The national courts must obviously interpret the national measures 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 power or themselves adopt measures implementing the directive which are in their view appropriate.
Therefore, even a ban on the marketing of goods under Article 14 of the directive for which the Member States are responsible through the intermediary of their competent authorities, thus excluding any discretionary power on the part of the State, requires State implementing measures.
64 That means, in my view, that the State is to determine the language easily understood for the purposes of the directive either by way of measures implementing the directive or by referring to pre-existing measures on that matter. On the other hand, if the question were left to a case-by-case assessment by the national authorities, there would be a risk of confusion and legal uncertainty.
65 In fact, in the latter case there are no hard and fast rules and the fundamental precondition for the correct operation of competition is lacking.
Each trader will be acting arbitrarily, either considering in good or bad faith that the language in which the labels on his goods are worded is `easily understood' by consumers, or hoping that a dispute of this nature will not be brought before the courts or again hoping, should a case of this kind be brought before the courts, that he will receive a favourable decision or, in any event, win time.
66 On the other hand, in the absence of a national rule providing guidelines for appraising the dispute before it, each court of each Member State will proceed by endeavouring to draw up a specific rule in each case for each product on the basis of the general indications provided by the Court's case-law.
Moreover, as those courts will never be certain that a case is covered by that case-law and that they are observing it, they will not be reluctant to refer questions for a preliminary ruling to the Court of Justice.
Besides, it is not by chance that over a relatively brief period the Court has now been requested for the third time (39) to interpret the same problematical wording in Article 14 of the directive by courts which are familiar with its case-law but are not conversant with the manner in which it should be applied.
67 More specifically, I cannot accept that a national court has jurisdiction to adjudge whether the language required to be used by a Member State is or is not easily understood, particularly not on a case-by-case basis.
If it did have that jurisdiction, that would mean that there would be a specific rule depending on the product, the court, the place and time of assessment, which would have the effect of sowing confusion and above all would make it impossible for the directive to be applied uniformly within the Member State concerned.
Furthermore, such a solution would surely result in the de facto acceptance of the solution rightly rejected in Piageme I and II, namely the de jure imposition of local languages as
`easily understood' languages.
In practical terms, to remain with the example of Belgium, the most likely outcome is that a court in the Flemish region would consider Dutch to be the most easily understood language, (40) whereas a court in the French-speaking region would regard it as being French and a court of the German-speaking region would opt for German.
The result of that would be to require an Italian or Greek producer, for example, who wished to export to Belgium or an importer of products from those countries to label their products in three different languages or else face being barred from a whole region of the country!
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 State in which a product is marketed and consists in examining whether the particulars appearing on the foodstuff in question, although not worded in the abovementioned language, are, owing to particular circumstances, readily understood by the average consumer. That is because, in that case, application of the national measure would go further than the objective pursued by the directive, that is to say the effective information of the consumer.
The national court is then required to deem the national measure to run counter to the directive and then to declare it inapplicable, not in its entirety but to the extent to which it provides for a penalty although in fact the consumer is adequately informed. (41) In other words the courts will not altogether penalise the requirement to use the language of the State, on the ground of its invalidity, but will set aside the administrative penalty or will not impose any criminal penalty in the case before it.
69 Owing to the diversity of situations which may be encountered, it is not easy in advance to determine the matters to which the courts will have to have regard in assessing whether, on the facts of the case before it, the consumer has been properly informed.
In Piageme II (see paragraph 33 above), the Court provided certain indications. However, as the Court also pointed out, none of those indications is decisive. Indeed, how much importance attaches to the fact that 50% of the inhabitants of a region speak languages which are foreign to the other 50%
who are not in a position to understand the particulars appearing on foodstuffs worded in a foreign language? Or what is the significance of an information campaign for consumers who have not followed it? The same is true of the similarity of terms in different languages: suffice it to observe that a supermarket is not the most appropriate setting in which to indulge in etymological exercises or comparative linguistics.
It should in any event be borne in mind that the exception to the compulsory use of the national language must be interpreted restrictively in order to avoid overturning the rule.
70 Furthermore, along the same lines, it should be said that the question arises in respect of all particulars which are compulsory 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 particulars to appear on it in the language determined by law in the State in which the goods are marketed, in accordance with Article 14 of the directive.
In fact this is only one of the compulsory matters required by the directive to be mentioned.
71 Moreover, the distinction between `well-known' products and others - that is to say those which are `less well-known' or new - is irrelevant.
An interpretation which leads to the exemption of `well-known' products from the obligations which apply to the others is likely to distort the rules on competition and runs counter to the directive because it has the effect of systematically favouring products which are already known and established on the market to the detriment of less `well-known' or newly introduced 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 conditions the products would not be competing on a level playing field and competition would therefore be distorted.
72 I will now examine the conditions under which the imposition by Member States of the use of their national language, of their official language (42) or of one of their official languages, is lawful under Community law.
73 In this context an important question arises: is such lawfulness to be assessed under Article 14 or by reference to other Treaty articles, in particular Articles 30 to 36?
74 The Court has held that the directive merely represented a first step in the harmonisation process. (43) Accordingly, as 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 contemplating a relatively thorough approximation which does not fall far short of harmonisation.
Furthermore, I consider that each provision must be examined independently.
This gives Article 14 autonomous status and although it affords a certain margin of discretion to the Member States in determining the easily understood language, both that Article and the directive as a whole lay down the limits within which that margin of discretion has to be applied.
At all events, as the directive 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 Member States which I have mentioned above does not conflict with Community law.
75 It may be inferred from the foregoing reasoning that the discretionary power conferred by Article 14 must be exercised so as to protect consumers and also, as far as possible, 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 objective pursued and must be limited to what is absolutely necessary.
In other words, where several measures are available to the Member States it is the least restrictive one which must be chosen (see paragraph 60 above).
76 I do not think it is open to doubt that the use of the national language or of the official language is the most appropriate means in order to provide consumers with proper information.
Moreover, that has substantially been acknowledged by the Court.
Thus, in its judgment in Meyhui, (46) concerning the validity of Council Directive 69/493/EEC of 15 December 1969 on the approximation of the laws of the Member States relating to crystal glass (OJ, English Special Edition 1969 (II), p. 599), which required certain designations to appear in the language or languages of the country in which the goods were marketed, the Court held that `the fact that consumers in a Member State in which the products are marketed are to be informed in the language or languages of that country is therefore an appropriate means of protection [of the consumer against confusion as between different products].
In this regard', the Court went on, `it should be held that the hypothesis referred to by the national court that another language may be easily comprehensible to the purchaser is of only marginal importance.'
However, this possibility must be confined to what is absolutely necessary.
77 From that point of view, it should be noted that the last subparagraph of Article 14(2) allows the use on the label of languages other than the compulsory language. That mandatory rule is autonomous and unconditional.
It therefore produces direct effect, whether or not the Member States mention it in their implementing measures.
The result is that the Member State is not permitted to impose exclusivity in the use of its language: in other words, it cannot require particulars appearing on packaging to be worded solely in its language.
Such a measure would compel foreign manufacturers or importers to replace the packaging of their products.
Such an attitude would obviously have the effect of favouring domestic production and reducing flows of imports.
To that extent it would amount to an unduly stringent measure equivalent to a quantitative restriction.
78 I believe that the most appropriate solution would be to affix a supplementary label giving a translation of the particulars in the language of the country in which the goods are marketed.
That solution would involve only relatively small expenditure and would fairly serve the interests of both consumers and traders.
It would also be a solution which, applied to all the Member States, would not entail the risk of favouring products imported from one Member State into another: in fact, in their turn, products from the second Member State will have also to be labelled in the language of the first State in order to be exported into the second State.
Any negative consequences of the labelling will be mutually cancelled out.
Thus, as regards competition, all products will have the same starting-point.
Conversely, the viewpoint that I have rejected could create the impression that there are in the Community languages which are by definition more `easily understood' than others.
That argument is unacceptable because, first, it runs counter to the principle of equality as between Community languages and, secondly, it would confer an initial advantage on products of a certain origin to the detriment of others (that is to say the advantage of moving freely without labelling in the language of the country in which the product is marketed), which would place other manufacturers at a disadvantage and would thus distort competition in the Community.
79 The only argument which could be advanced against the solution I have advocated would be the fetter on imports constituted by the expenditure which the manufacturer or importer would be compelled to incur and the resulting advantage which would enure to the benefit of domestic products to the detriment of imported products, in breach of Article 30 of the Treaty.
80 I am not persuaded by this argument.
First of all, I find it to be in the interests of importers to make their product known and therefore to render it accessible to the average consumer.
Indeed, if the hypotheses set out above (47) concerning the conduct, habits and requirements of current consumers are correct, it is very likely that the average consumer (that is the vast bulk of consumers) will turn away from a product on which there are no particulars in a language which he understands and speaks and will be inclined to favour products with particulars in a language which is familiar to him.
Thus, foreign manufacturers or importers, in saving the relatively modest cost of affixing a label indicating the characteristics of the product in the language of the State in which it is marketed, run the risk of suffering a considerable loss by staying outside the market of which they seek to acquire a share, which in no way enhances the free movement of goods, that is to say one of the objectives pursued by the directive.
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 Swedish Government correctly points out.
In fact, the consumer would be inclined to choose products with particulars worded in his own language.
I believe that it is for this reason that the Court ruled, in reply to a preliminary question on this point, that affixing an additional (self-adhesive) label was the appropriate way in which to attain objectives which hampered the free movement of goods. (48)
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 to the product.
The latter particulars may lawfully be worded in the product's original language.
82 In multilingual States, however, it may not be made a legal requirement for particulars to be worded in the language of each of the regions.
Where there are several official languages they must be presumed to be equivalent and therefore more or less well known to the citizens of the Member State.
In that context I consider that the Member State is legally entitled under Article 14
to require particulars to appear in one of those languages, at the trader's choice.
In that case the trader will assume responsibility for the choice of one of those languages and the wording of the particulars in that language is in any event in conformity with the directive.
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 and in particular parallel imports.
The second question
83 In asking the second question, the national court essentially seeks an answer to the question whether Article 14 of the directive allows the consumer to be informed not by means of the labelling but by means of information boards hanging in the shop.
84 I will not dwell on this question since the judgment in Piageme II gave a reply to this question.
In that judgment the Court considered that protection of the ultimate consumer, who is not necessarily the purchaser, is not secured by measures which do not appear on the labelling, such as information provided at the point of sale or in the context of large-scale information campaigns (paragraph 26).
I therefore propose that the Court should reply in those terms.
VI - Conclusion
85 In light of the foregoing analysis, I propose that the Court should reply as follows to the questions referred to it for a preliminary ruling:
(1) Article 14 of Directive 79/112 does not preclude a Member State from requiring the compulsory particulars on foodstuffs to be given at least in the national or official language of that State, unless the consumer is in fact informed by means deemed appropriate by the court.
(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.
(1) - OJ 1979 L 33, p. 1. The directive was amended before the facts of the present case occurred by Council Directives 86/197/EEC (OJ 1986 L 144, p. 38), 89/395/EEC (OJ L 186, p. 17) and by Commission Directive 93/102/EEC (OJ 1989 L 291, p. 14). Since the facts in the main proceedings occurred, the directive has been amended on essential points by European Parliament and Council Directive 97/4/EC (OJ 1997 L 43, p. 21). It should be noted that, under Article 1(1) of Council Directive 89/395/EEC of 14 June 1989 amending Directive 79/112/EEC 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, the title of the directive is: `Council Directive of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs.'
(2) - Case C-85/94 Piageme [1995] ECR I-2955.
(3) - See footnote 1.
(4) - Case C-241/89 SARPP [1990] ECR I-4695.
(5) - Case C-369/89 Piageme [1991] ECR I-2971.
(6) - For the record I would observe that in both cases the Court essentially adopted the point of view formulated by Advocate General Tesauro (see paras 3 and 6 of the Opinions in those cases respectively).
(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 Provincien [1993] ECR I-6045, paragraph 15; Case C-144/93 Pfanni Werke [1994] ECR I-4605, paragraph 15; Case C-83/86 DEGA [1997] ECR I-5001, paragraph 16. See also Van der Veldt, cited at footnote 11, paragraph 28.
(9) - That is the way in which the free movement of goods is usually perceived for the purposes of Article 30 of the Treaty. See, for example, the judgment in Case 152/78 Commission v France [1980] ECR 2299, paragraph 11.
(10) - See, inter alia, judgments in Case 120/78 Rewe-Zentrale [1979] ECR 649; Case C-238/89 Pall [1990] ECR I-4827, paragraphs 11 and 12 and in Case C-315/92 Verband Sozialer Wettbewerb [1994] ECR I-317, paragraph 13, etc.
(11) - Case C-17/93 [1994] ECR I-3537.
(12) - It should be noted that the opportunity afforded by Article 23 aforesaid was removed by Article 1(23) of Directive 89/395 which takes the view that `Directive 79/112/EEC makes provision for national derogations in a number of cases' and that `with the dual aim of
completing the internal market and providing improved information for all consumers in the Community, those derogations should be eliminated' (first and second recitals).
(13) - See judgment in Case C-349/95 Loendersloot [1997] ECR I-6227, in which the Court held that Article 7 of Council Directive 89/104/EEC of 21 December 1988 on the 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 same way (paragraph 18).
(14) - See judgment in SARPP (paragraph 15), cited above at footnote 4.
(15) - Unless, of course, the provisions of the directive are invalid under the Treaty, which is not the case here.
(16) - See judgments in Case 148/78 Ratti [1979] ECR 1629, paragraph 36 and paragraph 20 of the judgment in Piageme II (mentioned at paragraphs 29 and 33 of this Opinion).
(17) - See paragraph 25 of judgment in Van der Veldt, cited above at footnote 8.
(18) - Cited above at footnote 2.
(19) - OJ 1992 L 113, p. 8.
(20) - Paragraphs 18 to 20.
(21) - See judgment in Mathot [1987] ECR 809, paras. 7 and 11, and in Smanor, cited above at footnote 7 (para. 36) and SARPP, cited above at footnote 4 (para. 16).
(22) - See paragraph 15 of the judgment in Piageme I, cited above at paragraph 30 of this Opinion.
(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 apply to the entry into a Member State of foodstuffs from another Member State on grounds to do with the comprehensibility of the labelling. In general, no sanction under the directive is conceivable at an intermediate stage prior to the time of offering for sale because until this time the vendor may quite lawfully affix the appropriate labelling.
(24) - See paragraph 31 above.
(25) - See Article 11(2).
(26) - See Annex I to the Directive, as replaced by Commission Directive 93/102/EEC, Article 9a of the Directive, inserted by Article 2(19) of Council Directive 89/395, Commission Directive 91/72 concerning particulars of flavourings etc.
(27) - Thus a map could represent the country of origin, an animal could indicate the species, scales with figures could indicate the weight, etc.
(28) - Judgment in Smanor, cited above at footnote 7, paragraphs 18 and 19.
(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), already mentioned in my Opinion in Piageme II (see paragraph 19 of that Opinion).
(31) - See the joint reply of 5 January 1993 (OJ 1993 C 95, p. 7).
(32) - OJ 1993 C 345, p. 3.
(33) - See paragraph 14 above.
(34) - On the four traditional branches of ethical logic, namely prescription, permission, prohibition and discretion, and their reciprocal relationship, see, inter alia, B.S. Jackson, Semiotics and Legal Theory, London 1985, p. 100 et seq., particularly at p. 104, and J. Lyons, Semantics, London (1977), 1986, Vol. 2, pp. 823 to 841.
(35) - See on this point the detailed study by the `Consumer Policy' department of the Commission of the European Communities, currently a Directorate-General, entitled tude sur les principes et dispositions actuels concernant les exigences linguistiques en rapport avec la legislation du consommateur dans la Communaute européenne (Rapport final), pub. Bureau europeen des Unions des Consommateurs, Brussels, August 1993, p. 9 et seq. (hereinafter `the study').
(36) - Language enjoys formal constitutional recognition in Belgium, Spain, France, Ireland and Italy and is formally recognised in legislation in Greece and Luxembourg. Other Member States have specific laws of sectoral scope (see on this paragraph 40 et seq. of the study).
(37) - Case C-379/87 [1989] ECR 3967. In that case a Netherlands national had been precluded from taking up a post as a teacher of painting in an Irish State school on the ground that she did not know Irish which, alongside English, is an official language in Ireland. The Court held that, under Article 3(1) of Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of
movement for workers within the Community (OJ, English Special Edition 1968 (II), p. 475) such a requirement of linguistic knowledge was justified having regard to the nature of the tasks to be performed by the person concerned `provided that the linguistic requirement in question is imposed as part of a policy for the promotion of the national language which is, at the same time, the first official language, and provided that that requirement is applied in a proportionate and non-discriminatory manner' (para 24).
(38) - Paragraphs 19 and 20 respectively of that Opinion.
(39) - In fact the fourth time if one counts the Colim case (C-33/97) in which I am also delivering my Opinion today.
(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 all these waters were well known to the public) were not comprehensible for consumers of the Flemish region!
(41) - Case 27/80 Fietje [1980] ECR 3839, paragraph 12.
(42) - Without laying claim to scientific precision I use the expression `national language' as meaning the language spoken in the whole of the territory of a Member State and the term `official language' as meaning the language recognised as such by a law, whether it be at the same time a national language or is spoken in part of the territory of a Member State.
(43) - See Van der Veldt, cited above at footnote 8.
(44) - With particular regard to Article 14, those objectives are on the one hand freedom of movement, and on the other hand consumer protection and possibly protection of the national language.
(45) - See paragraph 27 above.
(46) - Case C-51/93 Meyhui [1994] ECR I-3879. See also Piageme I, paragraph 14.
(47) - See paragraphs 45 to 48.
(48) - See judgment in Loendersloot, cited above, at paragraph 46.
Moreover, it is evident that `labelling is one of the means that least restricts the free movement of products within the Community' (see, for example, the judgment in
Van der Veldt, cited above, at paragraph 31).