Opinion of Mr Advocate General Mancini delivered on 8 March 1988. - Erzeugergemeinschaft Gutshof-Ei GmbH v Land Rheinland-Pfalz. - Reference for a preliminary ruling: Verwaltungsgericht Neustadt an der Weinstraße - Germany. - Marketing standards for eggs - Grade A eggs - Fresh eggs. - Case 91/87.



European Court reports 1988 Page 02541



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1 . Under Community law the marketing of eggs is governed by Regulation No 2772/75 of 29 October 1975 ( Official Journal 1975, L 282, p . 56 ). Article 6 ( 1 ) of that regulation provides that "eggs shall be graded by quality as follows : Grade A or 'fresh eggs' , grade B or 'second-quality or preserved eggs' , grade C or 'non-graded eggs intended for the food industry' ". As regards packaging, Article 16 distinguishes between "large packs" containing more than 30 eggs and "small packs" which contain 30 eggs or less . By virtue of Article 18, the latter type of pack must show "in clearly visible and legible type ... ( c ) the quality and weight grading" of the eggs . Lastly, Article 21 provides that "packs ( in general ) shall not bear any indications other than those laid down ..."; as a result of amendments contained in Regulation No 1831/84 of 19 June 1984 ( Official Journal 1984, L 172, p . 2 ), Article 21 adds, however, that small packs may carry "... ( c ) 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 . Erzeugergemeinschaft Gutshof-Ei, of Bad Segeberg ( Federal Republic of Germany ), is an undertaking which produces eggs and markets Grade A eggs, using small packs which are stamped "Gueteklasse A 'frisch' " ( Grade A "fresh eggs ").

In 1985 the competent department of Land Rheinland-Pfalz informed the undertaking that that marking was to be regarded as unlawful because Article 6 of Regulation No 2772/75 only authorized

the use either of the words "Grade A" or "fresh eggs ". Gutshof-Ei did not accept that argument and brought an action before the Verwaltungsgericht ( Administrative Court ) Neustadt an der Weinstrasse for a declaration that its marking practice was in accordance with the relevant Community rules . By order of 20 March 1987, the national court stayed the proceedings and submitted to the Court for a preliminary ruling the following question :

Under Article 6 ( 1 ) and Article 21 of Regulation No 2772/75, as amended by Regulation No 1831/84, together with the preamble to the former regulation, must small packs of Grade A eggs be marked only "Grade A" or "fresh eggs", or may both markings be used together?

In the course of the procedure before the Court Gutshof-Ei and the Commission of the European Communities have submitted written and oral argument .

3 . According to Gutshof-Ei, the expressions "Grade A" and "fresh eggs" are synonymous and both are intended to describe only eggs which comply with the requirements laid down in Article 7 of Regulation No 2772/75 . For purposes of the marketing of such eggs, it is clear that small packs must bear at least one of the two phrases, but that does not mean that they may not contain both . No such prohibition appears in any provision of the regulation, nor may it be inferred from the general scheme thereof . That is shown by the fruit of the experience acquired after 1975, namely the new text of Article 21, which for small packs permits additional information designed to promote sales, provided that it does not mislead the consumer .

The undertaking concludes that there is no doubt that the contested marking complies with the latter condition . Thirteen years after the entry into force of the Community rules, the consumer has certainly learned that Grade A eggs are also called "fresh eggs" or, in other words, that the adjective "fresh" merely refers to the first, more general description . The consumer therefore cannot be misled by the contested use of the two expressions, which are entirely interchangeable .

The Commission takes the opposite view . It considers that the wording of Article 6 above all and, in particular, the use of the conjunction "or" in the phrase "Grade A or fresh eggs", proves that the expressions are mutually exclusive . In its view, "or" has a disjunctive effect . If the legislature had intended to permit the combined use of the two expressions, it would have employed the two conjunctions "and/or" or laid down a rule to that effect . Moreover, from a teleological interpretation it is clear that the Council had in mind the interests of consumers; consequently, it must be assumed that, in defining the quality grade, it made every effort to prevent the use of expressions liable to confuse the consumer at the time of purchase .

That is, however, the effect of the contested marking, if it is true that, faced with two packs of eggs of the same quality and weight, one of which is marked "Grade A" and the other "Grade A - fresh eggs", 90 customers out of 100 would ( and do in fact ) choose the pack accentuating the fact that the goods are fresh . In other words, the addition of the words "fresh eggs" leads the consumer to believe that the eggs so described have something extra compared with Grade A eggs .

Nor is that conclusion affected by the fact that Article 21, as amended, permits small packs to carry "statements designed to promote sales ". That authorization was granted in very limited circumstances and is subject to very strict limits : this is shown by the fact that the word "extra" may be stamped only if the eggs are exceptionally fresh .

4 . The aforesaid arguments both seem to me to be unacceptable . As regards the letter of the regulation, for example, the Commission does not take into account the fact that the word "or" separates, but does not always exclude, one of two concepts . Frequently, it is used to define a concept more fully by using another or even to separate concepts or words which are interchangeable . In Latin, those uses corresponded from time to time to the conjunctions aut, sive, vel and the enclitic -ve; and although modern languages are not as rich, we are all familar with the difference between the meaning of "or" in phrases such as "now we must win or die", "felis catus or the domestic cat is a carnivorous animal", "Brussels and Luxembourg are two or three hours apart" and "the most beautiful mountain in the Alps is the Cervino or the Matterhorn ". The sense in which "or" is used in Article 6 will be considered hereinafter; but these simple observations are themselves sufficient to deprive the institution' s line of argument of any cogency .

Equally weak is the argument put forward concerning the likelihood that a pack bearing the marking "Grade A -- fresh eggs" will confuse the consumer . In the first place, it is not clear why such a combined expression should be more equivocal than the simple expressions (" Grade A" and "fresh eggs ") to which the Commission would like to restrict the producer' s choice . Secondly, to state that the purchaser is attracted mainly by the expression "fresh eggs" implies that this is more expressive and efficacious than "Grade A", and hence leads to the conclusion that the alternative use of the two expressions may confuse consumers at least as much as their combined use .

In my view, the arguments put forward by the plaintiff in the main action are no more convincing . The fact that Article 21 permits the use of other expressions which are laid down in the same regulation, such as "extra" and "eggs laid by free-range hens" or fancy descriptions such as "eggs for drinking", has no bearing on the problem with which we are concerned . Thus there would be no contradiction in maintaining both that such expressions may be added to the two phrases at issue and that the latter may not be combined .

What, then, is the answer to be given to the question put by the Verwaltungsgericht Neustadt an der Weinstrasse? It may be provided by a short analysis of the problems facing the Community legislature when it laid down the classifications in Article 6 . It is clear that that task required it to take account of the national rules in force at that time, and thus it necessarily discovered that, although in the main they distinguished between first - and second-quality eggs, they used descriptions which often had different meanings ( in Germany, for example, Grade I referred to the weight of the goods ). That is not all . In addition to those categories, the legislature considered it necessary to introduce a third category, for "eggs which do not meet the requirements for the higher grades but are still suitable for human consumption" ( 11th recital ). So Grade C was born, and was also subject to the rules laid down in Article 18 for small packs .

Consequently two of the grades were already familiar, though they had no single meaning, and one grade entirely unknown; in such circumstances, it was essential to explain to producers and consumers in language that was clear and universally understood the meaning of the nomenclature laid down under the new rules . This was the reason for which the legislature linked the phrases "fresh eggs", "second-quality or preserved eggs" and "non-graded eggs intended for the food industry" to "Grade A", "Grade B" and "Grade C", and this also sheds light on the meaning of the conjunction with which the link was effected . Far from laying down the two expressions in the alternative ( aut ), "or" is intended to explain the first more fully, by means of the second ( sive ), and at the same time to show that they are synonymous ( vel ). Consequently, the use of one or the other - or, equally, both - is of no significance or rather is equally valid .

I would make one final observation . Unlike the producers and the national courts, the Commission has at its disposal staff who are particularly expert in the rules on eggs . To use them as it has done in this case, in a stubborn attempt at splitting hairs, seems to me to be an unforgiveable waste of time and energy .

5 . In the light of the foregoing considerations, I propose that the Court should answer the questions submitted to it by the Verwaltungsgericht Neustadt an der Weinstrasse by order of 20 March 1987 in the proceedings pending before it between Erzeugergemeinschaft Gutshof-Ei and the Land Rheinland-Pfalz as follows :

"The rules contained in Regulation No 2772/75 of 29 October 1975 on the marketing in small packs of Grade A eggs, and in particular Articles 6 ( 1 ), 18 and 21 ( c ), must be interpreted as permitting the combined use on such packs of the words 'Grade A' and 'fresh eggs' .

(*) Translated from the Italian .