61989J0372
REPORT FOR THE HEARING
in Case C-372/89 (
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)
I — Facts and Procedure
1. Legal Background
Regulation (EEC) No 2772/75 of the Council of 29 October 1975 on marketing standards for eggs (Official Journal L 282, p. 56, hereinafter referred to as ‘the Regulation’), as amended by Council Regulation (EEC) No 1831/84 of 19 June 1984 (Official Journal L 172, p. 2) lays down marketing standards for eggs which are considered necessary to improve their quality and facilitate their sale, in the interests of producers, traders and consumers.
Article 2(1) provides that eggs marketed within the Community by way of business or trade must satisfy the provisions of the Regulation. Pursuant to the first paragraph of Article 21 of the Regulation, ‘packs shall not bear any indications other than those laid down in this Regulation’. Article 18(1)(e) requires that small packs, namely those containing 30 eggs or fewer (see Article 16), are to indicate the date or period of packing of the eggs. By virtue of the same provision, the recommended sell-by date may be indicated. Subparagraph (c) of the second paragraph of Article 21 provides that small packs may also carry ‘statements designed to promote sales, provided that such statements and the manner in which they are made are not likely to mislead the purchaser’.
2. Facts
Gold-Ei Erzeugerverbund GmbH (hereinafter referred to as ‘Gold-Ei’) is an association of egg producers established throughout the territory of the Federal Republic of Germany. The eggs produced by its members are always packed on the premises where they are laid and are also marketed from such premises. However, the form of packaging is determined by the central management of Gold-Ei. The packs bear the statement ‘Guaranteed packed on the day of laying’. In addition, a slip inside the pack bears the words ‘Congratulations on buying these top quality “Gold eggs” showing the date of laying’.
By letter of 22 May 1987, the Überwachungsstelle fur Milcherzeugnisse und Handelsklassen (Dairy Products and Grading Supervisory Office) required Gold-Ei to suspend deliveries to Schleswig-Holstein of packs of eggs bearing the above statement and informed it that a decision would shortly be adopted confirming the obligation to suspend deliveries. The Überwachungsstelle relied on Articles 18 and 21 of the Regulation.
In proceedings commenced on 12 June 1987, Gold-Ei sought a declaration that it was entitled to market eggs bearing the above Statement, provided that it was true. It relied on a judgment of the Verwaltungsgericht (Administrative Court) Stuttgart of 5 June 1987, which had given judgment to that effect in proceedings instituted by Gold-Ei.
However, the national court considered that the statement used by Gold-Ei infringed Articles 18 and 21 of the Regulation. The words ‘packed on the day of laying’ combined with the (lawful) words ‘packed on ... ’ also appearing on the pack make it possible immediately to determine the date of laying. Moreover, in the opinion of the Verwaltungsgericht, it appears from the words on the slip inside the pack that that was Gold-Ei's intention. The date of laying is not included in the information permitted by Article 18 of the Regulation and the contested statement likewise was not covered by the authorization contained in subparagraph (c) of the second paragraph of Article 21 for statements designed to promote sales, since such an interpretation of Article 21 would circumvent the provisions of Article 18 concerning the date.
By order of 2 November 1989, the Verwaltungsgericht stayed the proceedings and referred the following question to the Court for a preliminary ruling:
‘Is Regulation (EEC) No 2772/75 of the Council of 29 October 1975 on marketing standards for eggs, as amended by Council Regulation (EEC) No 1831/84 of 19 June 1984, to be interpreted as allowing the inclusion, on the outside or inside of packs, of direct or indirect references to the date of laying?’
3. Procedure before the Court
The order for reference was received at the Court Registry on 15 December 1989.
Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were lodged on 29 March 1990 by Gold-Ei, represented by Thomas Volkmann-Schluck, Rechtsanwalt Hamburg, and on 9 March 1990 by the Commission of the European Communities, represented by its Legal Adviser, Dierk Booß, acting as Agent.
Upon hearing the Repon of the Judge-Rapporteur and the views of the Advocate General, the Court decided on 20 September 1990 to assign the case to the First Chamber and to open the oral procedure without any preparatory inquiry.
II — Summary of the written observations
Gold-Ei considers that the words ‘packed on the day of laying’ are compatible with subparagraph (c) of the second paragraph of Article 21 of the Regulation. In that respect, it relies on two judgments of German courts (the abovementioned judgment of the Verwaltungsgericht Stuttgart and another of the Verwaltungsgericht Berlin) which held that the contested wording constituted a statement designed to promote sales, which was acceptable if correct.
Gold-Ei considers that the judgment of the Court of 13 December 1989 in Case C-204/88 Paris [1989] ECR 4361, stressed two principles: on the one hand, information must be given to the consumer and, on the other, that information must be reliable. According to a survey mentioned by Gold-Ei, the date of packing (required by Article 18 of the Regulation) is regarded by consumers as being of only limited value since packing may take place up to 12 days after laying. On the other hand, the reliability of the statement ‘packed on the day of laying’ is easily verifiable. The checks carried out at Gold-Ei's premises by the supervisory body gave rise to no complaints. The place where the eggs are produced and the packing centre form a single unit and the eggs are carried direct to the grading machine by conveyor belts. The packing centres operate on a continuous basis.
Moreover, checks of the accuracy of the packing date can be carried out only at the time of grading and packing. On the other hand, if details of the storage conditions are available, it is possible to trace exactly the time at which the egg was laid, providing further verification of the statement at issue.
Gold-Ei considers that any producer, whatever its size, which is linked to a packing unit is entitled to use the statement ‘packed on the day of laying’. It is true that packing centres which purchase eggs from producers are not in a position to use that statement, but that is no reason for prohibition of its use. Indeed, such a prohibition would be tantamount to restricting competition on the part of producers who are able to offer additional benefits.
The Commission considers that the present case is to be distinguished from Case C-204/88 since it relates not to Article 15 of the Regulation, which concerns the marking of eggs, but to Article 21, which concerns packing. However, the dicta of the Court concerning Article 15 apply also to Article 21 : the information provided to consumers must be reliable and therefore easily verifiable, and the date of laying does not fulfil those requirements.
In the Commission's opinion, it is apparent from Articles 21 and 18(1)(c) of the Regulation that, in addition to the date of packing, only the recommended sell-by date may be shown. It follows that the date of laying is not acceptable as a ‘statement designed to promote sales’ within the meaning of subparagraph (c) of the second paragraph of Article 21 of the Regulation. The wording on the pack ‘packed on the day of laying’ and ‘packed on ... ’ suggests quite unambiguously that the eggs were laid on the day of packing and therefore amounts to nothing other than an indication of the date of laying.
The Commission therefore proposes the following ruling in reply to the question submitted by the Verwaltungsgericht Schleswig-Holstein :
‘Regulation (EEC) No 2772/75 of the Council of 29 October 1975 on marketing standards for eggs, as amended by Council Regulation (EEC) No 1831/84 of 19 June 1984, must be interpreted as prohibiting information displayed outside or inside an egg pack which enables the date of laying to be determined’.
Gordon Slynn
Judge-Rapporteur
(
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)	Language of the case: German.