Gold-Ei Erzeugerverbund GmbH v Überwachungsstelle für Milcherzeugnisse und Handelsklassen (C-372/89)

Contents

Judgment of the Court (First Chamber)15 January 1991^noteIn 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 betweenGold-Ei Erzeugerverbund GmbHandÜberwachungsstelle für Milcherzeugnisse und Handelsklassen (Dairy Products and Grading Supervisory Office),THE COURT (First Chamber)composed of G. C. Rodriguez Iglesias, President of the Chamber, Sir Gordon Slynn and R. Joliét, judges,Advocate General: G. TesauroRegistrar: 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

1By 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’).

2The 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.

3Regulation 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.

4Article 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.

5Pursuant 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 ... ’.

6The 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’.

7Relying 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.

8Considering 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?’

9Reference 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.

10It 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.

11Gold-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.

12That 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.

13Consequently, 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

14The 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.

Operative part

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.

Delivered in open court in Luxembourg on 15 January 1991.