1 BY AN ORDER DATED 21 MARCH 1984 , WHICH WAS RECEIVED AT THE COURT ON 6 APRIL 1984 , THE AMTSGERICHT KOLN ( LOCAL COURT , COLOGNE ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY CERTAIN QUESTIONS CONCERNING THE INTERPRETATION OF DIRECTIVE 76/211/EEC OF 20 JANUARY 1976 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE MAKING-UP BY WEIGHT OR BY VOLUME OF CERTAIN PREPACKAGED PRODUCTS ( OFFICIAL JOURNAL 1976 , L 46 , P . 1 ).
2 THE QUESTIONS WERE RAISED IN THE CONTEXT OF AN ACTION BETWEEN VERENIGING SLACHTPLUIMVEE-EXPORT E.V ., A NETHERLANDS UNDERTAKING , AND REWE-ZENTRAL-AKTIENGESELLSCHAFT RELATING TO THE FAILURE BY VERENIGING SLACHTPLUIMVEE TO FULFIL ITS CONTRACTUAL OBLIGATION TO DELIVER TO REWE-ZENTRAL 200 BOXES OF WHOLE CHICKENS BEARING THE EEC ' E ' SIGN .
3 IT IS CLEAR FROM THE DOCUMENTS ON THE FILE SENT BY THE AMTSGERICHT THAT ON 27 DECEMBER 1982 THE PARTIES TO THE MAIN PROCEEDINGS CONCLUDED A CONTRACT UNDER WHICH VERENIGING SLACHTPLUIMVEE UNDERTOOK TO SUPPLY 200 BOXES OF WHOLE CHICKENS BEARING THE EEC ' E ' SIGN . HOWEVER , VERENIGING SLACHTPLUIMVEE WAS UNABLE TO DELIVER THE BOXES OF CHICKENS BEARING THE EEC ' E ' SIGN BECAUSE IT HAD NOT OBTAINED FORMAL AUTHORIZATION FROM THE NETHERLANDS WEIGHTS AND MEASURES OFFICE TO AFFIX THE SIGN TO ITS PREPACKAGED GOODS , AS IS REQUIRED BY THE NETHERLANDS ROYAL DECREE OF 18 APRIL 1980 . SINCE REWE-ZENTRAL DID NOT RECEIVE THE BOXES OF CHICKENS BEARING THE EEC ' E ' SIGN AT THE PROPER TIME , IT OBTAINED SUPPLIES FROM A GERMAN SUPPLIER AND CHARGED VERENIGING SLACHTPLUIMVEE THE DIFFERENCE IN PRICE WHICH IT HAD BEEN OBLIGED TO PAY , NAMELY DM 1 139.60 . THAT SUM WAS DEDUCTED FROM AN ACCOUNT SENT BY VERENIGING SLACHTPLUIMVEE IN RESPECT OF ANOTHER CONTRACT BETWEEN THE PARTIES TO THE MAIN PROCEEDINGS .
4 VERENIGING SLACHTPLUIMVEE HAS BROUGHT AN ACTION BEFORE THE AMTSGERICHT KOLN RECLAIMING THAT AMOUNT . IT CLAIMS THAT THE AFOREMENTIONED NETHERLANDS ROYAL DECREE CONSTITUTES AN ABSOLUTE AND INSURMOUNTABLE OBSTACLE TO PROPER PERFORMANCE OF THE CONTRACT WITH THE RESULT THAT THE CONTRACT MUST BE DECLARED VOID UNDER PARAGRAPH 306 OF THE BURGERLICHES GESETZBUCH ( CIVIL CODE ). FOR ITS PART REWE- ZENTRAL CONTENDS THAT PERFORMANCE OF THE CONTRACT WAS NOT IMPOSSIBLE BECAUSE COUNCIL DIRECTIVE 76/211/EEC GIVES THE MANUFACTURERS THE UNRESERVED RIGHT TO USE THE EEC ' E ' SIGN IF THE RELEVANT BASIC CONDITIONS HAVE BEEN FULFILLED . CONSEQUENTLY , REWE-ZENTRAL CONSIDERS THAT VERENIGING SLACHTPLUIMVEE SHOULD PAY DAMAGES FOR ITS FAILURE TO FULFIL THE CONTRACT .
5 IN ORDER TO ELIMINATE OBSTACLES TO THE FREE MOVEMENT OF PREPACKAGED PRODUCTS CAUSED BY THE DIFFERENCES BETWEEN THE NATIONAL LAWS APPLICABLE , COUNCIL DIRECTIVE 76/211 PROVIDES FOR THE APPROXIMATION OF THOSE LAWS . ARTICLE 2 ( 2 ) OF THE DIRECTIVE PROVIDES THAT : ' A PRODUCT IS PREPACKED WHEN IT IS PLACED IN A PACKAGE OF WHATEVER NATURE WITHOUT THE PURCHASER BEING PRESENT AND THE QUANTITY OF PRODUCT CONTAINED IN THE PACKAGE HAS A PREDETERMINED VALUE AND CANNOT BE ALTERED WITHOUT THE PACKAGE EITHER BEING OPENED OR UNDERGOING A PERCEPTIBLE MODIFICATION ' . ARTICLE 3 ( 1 ) FURTHER PROVIDES THAT : ' THE PREPACKAGES WHICH MAY BEAR THE EEC SIGN SPECIFIED IN SECTION 3.3 OF ANNEX I ARE THOSE WHICH COMPLY WITH THIS DIRECTIVE AND WITH ANNEX I THERETO ' . THE FIRST FIVE PARAGRAPHS OF SECTION 4 OF THE ANNEX , REFERRED TO IN THE ORDER FOR REFERENCE , ARE AS FOLLOWS : ' THE PACKER OR IMPORTER SHALL BE RESPONSIBLE FOR ENSURING THAT PREPACKAGES MEET THE REQUIREMENTS OF THIS DIRECTIVE . THE QUANTITY OF PRODUCT CONTAINED IN A PREPACKAGE ( OR PACKING QUANTITY ), KNOWN AS THE ' ' ACTUAL CONTENTS ' ' , SHALL BE MEASURED OR CHECKED BY WEIGHT OR VOLUME ON THE RESPONSIBILITY OF THE PACKER AND/OR IMPORTER . THE MEASUREMENT OR CHECK SHALL BE CARRIED OUT BY MEANS OF A LEGAL MEASURING INSTRUMENT SUITABLE FOR EFFECTING THE NECESSARY OPERATIONS . THE CHECK MAY BE CARRIED OUT BY SAMPLING . WHERE THE ACTUAL CONTENTS ARE NOT MEASURED , THE CHECK CARRIED OUT BY THE PACKER SHALL BE SO ORGANIZED THAT THE QUANTITY OF THE CONTENTS IS EFFECTIVELY ENSURED . THIS CONDITION IS FULFILLED IF THE PACKER CARRIES OUT PRODUCTION CHECKS IN ACCORDANCE WITH PROCEDURES RECOGNIZED BY THE COMPETENT DEPARTMENTS IN THE MEMBER STATE AND IF HE HOLDS AT THE DISPOSAL OF THOSE DEPARTMENTS THE DOCUMENTS CONTAINING THE RESULTS OF SUCH CHECKS , IN ORDER TO CERTIFY THAT THESE CHECKS , TOGETHER WITH ANY CORRECTIONS AND ADJUSTMENTS WHICH THEY HAVE SHOWN TO BE NECESSARY , HAVE BEEN PROPERLY AND ACCURATELY CARRIED OUT . '
6 THE AMTSGERICHT KOLN TAKES THE VIEW THAT REWE-ZENTRAL ' S SUBMISSION RAISES A QUESTION OF THE INTERPRETATION OF COMMUNITY LAW AND THAT IT IS NECESSARY TO REFER THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING : ' IS COUNCIL DIRECTIVE 76/211/EEC OF 20 JANUARY 1976 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE MAKING-UP BY WEIGHT OR BY VOLUME OF CERTAIN PREPACKAGED PRODUCTS AS AMENDED BY COMMISSION DIRECTIVE 78/891/EEC OF 28 SEPTEMBER 1978 ADAPTING TO TECHNICAL PROGRESS THE ANNEXES TO COUNCIL DIRECTIVES 75/106/EEC AND 76/211/EEC ON PREPACKAGING IN PARTICULAR ANNEX I , SECTIONS 1.3 , 3.3 , 4 AND 5 , TO BE INTERPRETED AS MEANING THAT THE NATIONAL AUTHORITIES RESPONSIBLE FOR SUPERVISING MANUFACTURERS OF PREPACKAGES MAY MAKE THE RIGHT OF SUCH MANUFACTURERS TO AFFIX AN ' ' E ' ' SIGN TO THEIR PRODUCTS CONDITIONAL UPON AN EXPRESS ' ' GRANT ' ' WHICH ITSELF DEPENDS ON FULFILMENT OF SUCH REQUIREMENTS IMPOSED BY THOSE AUTHORITIES AS ARE INTENDED TO ENSURE THE ATTAINMENT OF THE OBJECTIVES SET OUT IN SECTION 1 OF ANNEX I TO DIRECTIVE 76/211/EEC? OR IS THE DIRECTIVE TO BE INTERPRETED AS ITSELF CONFERRING ON ALL MANUFACTURERS WITHOUT ANY FURTHER RESERVATION THE RIGHT TO USE THE ' E ' SIGN PROVIDED THAT THE REQUIREMENTS LAID DOWN BY ARTICLE 3 OF THE DIRECTIVE IN CONJUNCTION WITH SECTIONS 1.3 AND 3.3 OF ANNEX I THERETO ARE FULFILLED? ARE THE ABOVE-MENTIONED PROVISIONS OF DIRECTIVE 76/211/EEC DIRECTLY APPLICABLE IN A NATIONAL CONTEXT? ' THE FIRST QUESTION
7 THE FIRST QUESTION SEEKS TO KNOW ESSENTIALLY WHETHER A PACKER OF PREPACKAGED PRODUCTS MUST OBTAIN PRIOR AUTHORIZATION FROM THE NATIONAL WEIGHTS AND MEASURES AUTHORITIES IN ORDER TO BE ABLE , UNDER COUNCIL DIRECTIVE 76/211 , TO AFFIX THE EEC ' E ' SIGN TO THOSE PRODUCTS .
8 IT FOLLOWS FROM THE SECOND PARAGRAPH OF SECTION 4 OF ANNEX I TO THE DIRECTIVE THAT THE PACKER MAY EITHER MEASURE THE QUANTITY OF A PRODUCT CONTAINED IN EACH PREPACKAGE OR CHECK THAT THE STATED QUANTITIES ARE CORRECT . THE THIRD PARAGRAPH OF SECTION 4 GOES ON TO STATE THAT IN THE LATTER CASE THE CHECK MAY BE CARRIED OUT BY SAMPLING .
9 VERENIGING SLACHTPLUIMVEE , REWE-ZENTRAL , THE COMMISSION AND THE GOVERNMENT OF THE NETHERLANDS AGREE THAT IF A PACKER OPTS FOR MEASURING , HE HAS THE RIGHT TO AFFIX THE EEC ' E ' SIGN WITHOUT THE NEED FOR PRIOR AUTHORIZATION FROM THE NATIONAL WEIGHTS AND MEASURES AUTHORITIES . THAT INTERPRETATION , WHICH NECESSARILY FOLLOWS FROM THE ACTUAL WORDING OF SECTION 4 OF ANNEX I TO THE DIRECTIVE , MUST BE ADOPTED BY THE COURT .
10 HOWEVER , IF THE PACKER OPTS FOR CHECKING , THE OBSERVATIONS SUBMITTED TO THE COURT DIFFER AS TO THE NEED FOR PRIOR AUTHORIZATION FROM THE NATIONAL WEIGHTS AND MEASURES AUTHORITIES .
11 VERENIGING SLACHTPLUIMVEE MERELY REFERS TO THE REPLIES GIVEN BY THE COMMISSION OF THE EUROPEAN COMMUNITIES TO WRITTEN QUESTIONS NOS 1855/81 AND 2169/82 WHICH WERE PUT BY A MEMBER OF THE EUROPEAN PARLIAMENT ON 22 FEBRUARY 1982 AND 10 FEBRUARY 1983 RESPECTIVELY ( OFFICIAL JOURNAL 1982 , C 98 , P . 24 AND OFFICIAL JOURNAL 1983 , C 216 , P . 3 ). IT CONCLUDES FROM THOSE REPLIES THAT THE ROYAL DECREE OF 18 APRIL 1980 IS NOT CONTRARY TO COMMUNITY LAW AND THAT THE DUTCH AUTHORITIES ARE COMPLETELY JUSTIFIED IN PRESCRIBING A PRIOR AUTHORIZATION PROCEDURE .
12 ACCORDING TO REWE-ZENTRAL IT IS NECESSARY TO MAKE A CLEAR DISTINCTION BETWEEN THE AFFIXING OF AN EEC ' E ' SIGN TO PREPACKED PRODUCTS AND THE QUESTION IN WHAT CIRCUMSTANCES THE PACKER MAY BE HELD RESPONSIBLE FOR ENSURING THAT THE PREPACKAGES ACTUALLY MEET THE REQUIREMENTS OF THE DIRECTIVE . IF THE PACKER OPTS FOR CHECKING , HE IS FREE TO DECIDE BY WHAT METHOD TO CARRY OUT THE CHECKS . BUT IF THE PACKER CARRIES OUT PRODUCTION CHECKS IN ACCORDANCE WITH THE PROCEDURES RECOGNIZED BY THE NATIONAL WEIGHTS AND MEASURES AUTHORITIES HE IS CONSIDERED TO HAVE ORGANIZED CHECKS WHICH ENSURE THAT THE QUANTITY OF THE PREPACKAGE IS CORRECT . SUCH A PACKER CANNOT THEREFORE BE CHARGED , IN THE CASE OF AN ADMINISTRATIVE INFRINGEMENT , WITH HAVING ORGANIZED THE CHECKS IN AN UNSATISFACTORY MANNER . THE RELEVANT NATIONAL AUTHORITY MAY REQUIRE COMPLIANCE WITH A SPECIFIC PROCEDURE ONLY WHERE THE PACKER WISHES TO RELY , WITH REGARD TO THE CHECKS WHICH HE IS OBLIGED TO CARRY OUT UNDER THE RULES CONCERNING WEIGHTS AND MEASURES , ON THE ' PROCEDURES RECOGNIZED BY THE COMPETENT DEPARTMENTS IN THE MEMBER STATE ' ( FIFTH PARAGRAPH OF SECTION 4 OF ANNEX I TO THE DIRECTIVE ).
13 THE COMMISSION STATES THAT COUNCIL DIRECTIVE 76/211 REQUIRES THAT THE CHECKING PROCEDURES BE RECOGNIZED BUT NOT THE PACKER . IT ADDS THAT THE DIRECTIVE DOES NOT SPECIFY WHETHER THE INDIVIDUAL PACKERS ARE TO APPLY TO THE MEMBER STATES FOR RECOGNITION OF THEIR PROPOSED CHECKING PROCEDURES OR WHETHER THE MEMBER STATES THEMSELVES ARE TO STATE WHAT CHECKS ARE RECOGNIZED .
14 IN THE OPINION OF THE GOVERNMENT OF THE NETHERLANDS , COUNCIL DIRECTIVE 76/211 LEAVES THE PACKER FREE , IN PRINCIPLE , TO DETERMINE WHAT PROCEDURE IT WISHES TO USE TO CHECK THE QUANTITY OF THE CONTENTS OF THE PREPACKAGES IT PRODUCES . THE PROCEDURE CHOSEN MUST THEN BE RECOGNIZED BY THE COMPETENT NATIONAL AUTHORITIES .
15 IT MUST BE STATED THAT COUNCIL DIRECTIVE 76/211 DOES NOT SPECIFY WHAT CHECKING PROCEDURES ARE TO BE RECOGNIZED OR THE MANNER IN WHICH SUCH PROCEDURES ARE TO BE RECOGNIZED . NEVERTHELESS , ACCORDING TO THE WORDING OF THE FIFTH PARAGRAPH OF SECTION 4 OF ANNEX I TO THE DIRECTIVE , IN ORDER TO BE ABLE TO USE THE EEC ' E ' SIGN , A PACKER WHO CHECKS THAT THE ACTUAL CONTENTS CORRESPOND TO THE STATED CONTENTS MUST CARRY OUT CHECKING PROCEDURES WHICH HAVE PREVIOUSLY BEEN RECOGNIZED BY THE NATIONAL WEIGHTS AND MEASURES AUTHORITIES EITHER BY MEANS OF GENERAL PROVISIONS OR BY MEANS OF INDIVIDUAL DECISIONS .
16 THE REPLY TO THE FIRST QUESTION SHOULD THEREFORE BE THAT UNDER SECTION 4 OF ANNEX I TO COUNCIL DIRECTIVE 76/211/EEC OF 20 JANUARY 1976 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE MAKING-UP BY WEIGHT OR BY VOLUME OF CERTAIN PREPACKAGED PRODUCTS , A PACKER WHO MEASURES THE QUANTITY IN EACH PREPACKAGE IS ENTITLED TO AFFIX THE EEC ' E ' SIGN WITHOUT PRIOR AUTHORIZATION FROM THE NATIONAL WEIGHTS AND MEASURES AUTHORITIES , BUT A PACKER WHO MERELY CHECKS THE QUANTITY OF THE PRODUCT CONTAINED IN EACH PREPACKAGE MUST , IN ORDER TO BE ABLE TO USE THE EEC ' E ' SIGN , OPERATE CHECKING PROCEDURES WHICH HAVE BEEN RECOGNIZED BY THE NATIONAL WEIGHTS AND MEASURES AUTHORITIES EITHER BY MEANS OF GENERAL PROVISIONS OR BY MEANS OF INDIVIDUAL DECISIONS . THE SECOND QUESTION
17 THE SECOND QUESTION SEEKS TO KNOW ESSENTIALLY WHETHER A PACKER WHO CARRIES OUT CHECKS WHICH ENSURE THAT THE ACTUAL CONTENTS OF THE PREPACKAGES CORRESPOND TO THE STATED CONTENTS AND WHOSE CHECKING PROCEDURES HAVE NOT BEEN RECOGNIZED , MAY INVOKE THE PROVISIONS OF THE DIRECTIVE BEFORE A NATIONAL COURT .
18 REWE-ZENTRAL STATES THAT THE PROVISIONS OF COUNCIL DIRECTIVE 76/211 ON THE BASIS OF WHICH , IN ITS OPINION , A PACKER IS ENTITLED TO AFFIX THE EEC ' E ' SIGN TO ITS PREPACKAGES ON ITS OWN RESPONSIBILITY , HAVE BEEN DIRECTLY APPLICABLE IN THE NATIONAL LEGAL SYSTEMS SINCE 1 JANUARY 1980 , THE DATE BY WHICH THE DIRECTIVE HAD TO BE IMPLEMENTED IN ALL THE MEMBER STATES .
19 IN THE COMMISSION ' S VIEW , A PACKER IS ENTITLED IN THE AFOREMENTIONED CIRCUMSTANCES TO INVOKE THE PROVISIONS OF THE DIRECTIVE BEFORE A NATIONAL COURT .
20 ACCORDING TO THE NETHERLANDS GOVERNMENT , THE NATIONAL WEIGHTS AND MEASURES AUTHORITIES MUST RECOGNIZE THE CHECKING PROCEDURES ADOPTED BY THE PACKER WHERE HE CAN SHOW THAT , IN COMPLIANCE WITH THE FOURTH PARAGRAPH OF SECTION 4 OF ANNEX I TO THE DIRECTIVE , THE PROCEDURES ENSURE THAT THE CONTENTS OF THE PREPACKAGES CORRESPOND TO THE STATED AVERAGE QUANTITY . NO FURTHER CONDITIONS ARE LAID DOWN IN THAT RESPECT BY THE DIRECTIVE .
21 THE COURT ACCEPTS THE COMMISSION ' S VIEW . WHEN THE CHECKING PROCEDURES ARE RECOGNIZED BY THE MEMBER STATES , THE WORDING OF THE FIFTH PARAGRAPH OF SECTION 4 OF ANNEX I TO THE DIRECTIVE DOES NOT GRANT THEM ANY POWER OTHER THAN TO CHECK THAT THE PROCEDURES ENSURE THAT THE ACTUAL CONTENTS OF A PREPACKAGE CORRESPOND TO ITS STATED CONTENTS AS GUARANTEED BY THE EEC ' E ' SIGN . THE MEMBER STATES ARE NOT ENTITLED TO REFUSE A PACKER RECOGNITION OF CHECKING PROCEDURES OTHER THAN THOSE WHICH HAVE ALREADY BEEN RECOGNIZED BY THE RELEVANT AUTHORITIES AND THEREFORE TO PREVENT HIM FROM USING THE ' E ' SIGN , IF THE PACKER HAS SHOWN THAT THE CHECKING PROCEDURES ADOPTED BY HIM CORRESPOND OBJECTIVELY TO THE REQUIREMENTS OF THE FOURTH PARAGRAPH OF SECTION 4 OF ANNEX I TO THE DIRECTIVE .
22 THE REPLY TO THE SECOND QUESTION SHOULD THEREFORE BE THAT A PACKER WHO SHOWS THAT HE IS OPERATING CHECKING PROCEDURES WHICH ENSURE THAT THE QUANTITY OF THE CONTENTS OF HIS PREPACKAGES ACTUALLY CORRESPONDS TO THEIR STATED CONTENTS MAY INVOKE THE PROVISIONS OF COUNCIL DIRECTIVE 76/211/EEC OF 20 JANUARY 1976 ON THE APPROXI MATION OF THE LAWS OF THE MEMBER STATES RELATING TO THE MAKING-UP BY WEIGHT OR BY VOLUME OF CERTAIN PREPACKAGED PRODUCTS , AND ANNEX I THERETO , VIS-A-VIS THE COMPETENT NATIONAL AUTHORITIES WHICH DO NOT WISH TO RECOGNIZE THOSE PROCEDURES .