REPORT FOR THE HEARING

in Case C-372/89 ( *1 )

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

( *1 ) Language of the case: German.

JUDGMENT OF THE COURT (First Chamber)

15 January 1991 ( *1 )

In Case C-372/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht (Administrative Court) Schleswig-Holstein for a preliminary ruling in the proceedings pending before that Court between

Gold-Ei Erzeugerverbund GmbH

and

Überwachungsstelle für Milcherzeugnisse und Handelsklassen (Dairy Products and Grading Supervisory Office),

on the interpretation of Regulation (EEC) No 2772/75 of the Council of 29 October 1975 on marketing standards for eggs (Official Journal L 282, p. 56), as amended by Council Regulation (EEC) No 1831/84 of 19 June 1984 (Official Journal L 172, p. 2),

THE COURT (First Chamber)

composed of G. C. Rodriguez Iglesias, President of the Chamber, Sir Gordon Slynn and R. Joliét, judges,

Advocate General: G. Tesauro

Registrar: H. A. Rühi, Principal Administrator,

after considering the observations submitted on behalf of:

Gold-Ei, by Thomas Volkmann-Schluck, Rechtsanwalt Hamburg,

the Commission of the European Communities, by Dierk Booß, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing oral argument presented by Gold-Ei and the Commission at the sitting on 13 November 1990,

after hearing the Opinion of the Advocate General delivered at the sitting on the same date,

gives the following

Judgment

1 By order of 2 November 1989, which was received at the Court on 15 December 1989, the Verwaltungsgericht Schleswig-Holstein, Federal Republic of Germany, referred to the Court for a preliminary ruling under Article 1 77 of the EEC Treaty a question on the interpretation of Regulation (EEC) No 2772/75 of the Council of 29 October 1975 on marketing standards for eggs (Official Journal L 282, p. 56), as amended by Council Regulation (EEC) No 1831/84 of 19 June 1984 (Official Journal L 172, p. 2) (hereinafter referred to as ‘the Regulation’).

2 The question was raised in proceedings brought by Gold-Ei Erzeugerverbund GmbH (hereinafter referred to as ‘Gold-Ei’), an association of egg producers, against Überwachungsstelle für Milcherzeugnisse und Handelsklassen, concerning certain indications on the packs of eggs marketed by Gold-Ei.

3 Regulation No 2772/75, adopted on the basis of Regulation (EEC) No 2771/75 of the Council of 29 October 1975 on the common organization of the market in eggs (Official Journal L 282, p. 49), lays down marketing standards in the interests of producers, traders and consumers, with a view to improving the quality of eggs and thereby facilitating their sale. Those standards relate in particular to the criteria for grading eggs (Articles 1 to 13), common provisions on packaging (Articles 16 to 22) and checks to be carried out by the competent national agencies (Articles 26 and 28). Article 29 requires the Member States to take the necessary measures to penalize infringements of the Regulation.

4 Article 2(1) of the Regulation provides that eggs marketed within the Community by way of business or trade must satisfy the provisions of the Regulation. ‘Small packs’ which, according to Article 16, contain 30 eggs or less, are to bear certain mandatory indications, pursuant to Article 18, in particular the packing period or packing date. Article 18(1)(e) provides that the recommended sell-by date may also be indicated.

5 Pursuant to the first paragraph of Article 21, ‘packs shall not bear any indications other than those laid down in this Regulation’. However, subparagraph (c) of the second paragraph of Article 21 provides that small packs may bear ‘statements designed to promote sales, provided that such statements and the manner in which they are made are not likely to mislead the purchaser ... ’.

6 The small packs of eggs marketed by Gold-Ei bear the date of packing, in accordance with Article 18 of the Regulation, and in addition the words ‘Guaranteed packed on the day of laying’. Moreover, a slip in the pack bears the words ‘Congratulations on buying these top quality “Gold eggs” showing the date of laying’.

7 Relying on Articles 18 and 21 of Regulation No 2772/75, in May 1987 the Supervisory Office ordered Gold-Ei to suspend the delivery of small packs bearing the abovementioned indication. In the proceedings commenced by it against that order before the Verwaltungsgericht Schleswig-Holstein, Gold-Ei sought a declaration that it was entitled to market packs bearing those words, provided that they were true.

8 Considering that the case raised a question of the interpretation of Regulation No 2772/75, as amended, the Verwaltungsgericht decided to refer 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?’

9 Reference is made to the Report for the Hearing for a fuller account of the legal background and the facts of the main proceedings, the course of the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

10 It should be noted in the first place that it is undisputed that the first paragraph of Article 21 prohibits any indication of the date of laying, as such, on egg packs.

11 Gold-Ei contends that neither the wording on the pack nor the slip inside it amounts to an indication of the date of laying, but that both such indications are evidence of the freshness of the eggs and therefore a ‘statement designed to promote sales’, which is permitted under subparagraph (c) of the second paragraph of Article 21, provided that its accuracy can be easily verified by the competent authorities.

12 That argument cannot be upheld. The authority to add ‘statements designed to promote sales’ contained in subparagraph (c) of the second paragraph of Article 21 cannot constitute an authorization to display wording or information prohibited by the Regulation. Indications appearing on the outside or inside of a pack, such as those at issue in the present case, whose purpose and effect are manifestly to inform the purchaser of the date of laying, are prohibited, as is an express indication of the date of laying, which is precluded by the first paragraph of Article 21 of Regulation No 2772/75, as amended.

13 Consequently, it must be stated in reply to the question submitted by the Verwaltungsgericht Schleswig-Holstein that Article 21 of Regulation 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 meaning that an indication on the outside or inside of a pack of eggs from which the date of laying may be inferred is prohibited and cannot be regarded as a statement designed to promote sales.

Costs

14 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (First Chamber), in reply to the question submitted to it by the Verwaltungsgericht Schleswig-Holstein, by order of 2 November 1989, hereby rules:

Article 21 of 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 meaning that an indication on the outside or inside of a pack of eggs from which the date of laying may be inferred is prohibited and cannot be regarded as a statement designed to promote sales.

Rodríguez Iglesias Slynn Joliét Delivered in open court in Luxembourg on 15 January 1991. J. G. Giraud Registrar G. C. Rodriguez Iglesias President of the First Chamber

( *1 ) Language of the case: German.