Report for the Hearing delivered in Case C-204/88
I — Applicable Community legislation
1. Prohibition on the marking of eggs with the date on which they were laid
Article 6(1) of Regulation (EEC) No 2772/75 of the Council of 29 October 1975 on marketing standards for eggs (Official Journal 1975, L 282, p. 56, hereinafter referred to as the contested regulation) provides as follows:
Article 11(1), as amended by Council Regulation (EEC) No 1831/84 (Official Journal 1984, L 172, p. 2), provides that:
Article 15 provides that:
Article 29 provides that Member States shall take all appropriate measures to penalize infringements of this regulation.
2. Dates which may be marked on eggs or packs
The contested regulation was adopted in implementation of Regulation (EEC) No 2771/75 of 29 October 1975 on the common organization of the market in eggs (Official Journal 1975, L 282, p. 49, hereinafter referred to as the basic regulation). Article 2(2) of the basic regulation provides that marketing standards are to be adopted by the Council relating in particular to grading by quality and weight, packaging, storage, transport, presentation and marketing.
In that regard, the preamble to the contested regulation states that the desired improvement in quality necessitates regular and frequent egg collection;... the grading of eggs should be confined solely to undertakings which are adequately equipped for the purpose;... the quality requirements for eggs must be easy for consumers to understand;...therefore, a limited but adequate number of quality and weight grades should be laid down;...common provisions should be adopted for packing such as will ensure that the quality of the eggs is maintained;... in order to leave a choice open to the consumer and to ensure that he is offered goods conforming with quality and weight standards, retailers must display the appropriate information either on the goods offered or beside them...
According to Article 4(2) of the regulation, all packing centres and collectors shall collect eggs from the producers at least once a week... all collectors shall deliver eggs to the packing centres not later than the third working day following that of collection.
According to Article 5(1), only packing centres may grade eggs by quality and weight.
Article 11 provides for the option of stamping Grade A eggs with, inter alia, a mark showing the packing period or packing date. According to Articles 16 to 18 (as amended by Regulation No 1831/84), large packs (containing more than 30 eggs) and small packs (containing 30 eggs or less) must bear either the packing date or the packing period, defined in Article 17(2) as running from 00.00 on Thursday to 24.00 on Wednesday.
The packing date or packing period must be marked on the packs at the latest on the working day following the day on which the eggs are received in the packing centre.
The only additional date which may be marked — on small packs alone — is the recommended sell-by date, in accordance with Article 18(1)(e), as amended.
II — The dispute in the main proceedings and the reference for a preliminary ruling
Mr Jean-Jacques Paris (the defendant) was prosecuted for offering for sale at a hypermarket fresh eggs whose shells were marked with the date on which they were laid, an offence contrary to Articles 11 and 15 of the contested regulation and the French Law of 1 August 1905.
In the proceedings before the tribunal de police (Local Criminal Court), the defendant maintained that Article 15 was contrary to the consumer's basic right to information and to the EEC Treaty. In the alternative, he asked for the matter to be referred to the Court of Justice for a ruling on the validity and interpretation of that article.
In the order for reference, the tribunal de police expressed the view that Article 15 reflected a situation which had changed a great deal since its adoption, inasmuch as reliable methods had been developed for dating eggs when they were laid.
Furthermore, in the light of Community law, Article 15 seemed, according to the tribunal, to be in conflict with the provisions of the Treaty, in particular Article 86. It therefore decided, by order of 10 May 1988, to refer the matter to the Court of Justice for a preliminary ruling on the interpretation of Article 15 of the regulation of 29 October 1975 in the light of the Treaty of Rome.
III — Procedure before the Court
The order for reference was received at the Court Registry on 27 July 1988.
In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted on 4 October 1988 by Jean-Jacques Paris, represented by Luc Bihl, of the Paris Bar, on 3 November 1988 by the United Kingdom, represented by J. A. Gensmantel, of the Treasury Solicitor's Department, acting as Agent, and on 21 October 1988 by the Commission of the European Communities, represented by Patrick Hetsch, a member of its Legal Department, acting as Agent.
On hearing the Report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.
IV — Summary of the written observations submitted to the Court
The defendant acknowledges that the contested regulation prohibits the marking of eggs with the date on which they were laid.
He maintains, nevertheless, that since 1985 reliable and verifiable devices have been available which can mark eggs, once they have been laid, with the day, the month and the year on which they were laid.
He claims that the accuracy and reliability of the marking have not been challenged in this case.
In the defendant's view, the information which can be supplied to consumers in conformity with the applicable rules is inadequate and ambiguous, since the eggs may be packed within a period of varying length after being laid. The date of laying constitutes a far more useful piece of information and is demanded by the vast majority of consumers, according to a survey and a study to which the defendant refers.
Relying on the preamble to the contested regulation, the defendant maintains that the information of consumers is one of the express aims of the regulation and that it is contrary to that aim to deny consumers the very information which they seek.
The defendant refers to the European Economic Community's active policy on consumer protection and the creation of consumer law and, more particularly, to the two consumer protection programmes adopted on 14 April 1975 and 19 May 1981 respectively, in which it is acknowledged that the right to information is one of the consumer's five basic rights.
In his view, Article 15 of the contested regulation is contrary to that basic right and to the spirit of the Treaty of Rome. It also constitutes an abusive practice contrary to Article 86 of the Treaty inasmuch as it restricts technical development to the detriment of consumers.
Finally, the defendant points out that legislation on the rights of consumers tends to lay emphasis on the obligation on the part of traders to provide consumers with precise information. For their part, the courts tend to refuse to apply laws prohibiting specific references which constitute additional information for the benefit of consumers. In that regard, he refers to a judgment of the tribunal de police at Le Havre of 29 June 1983 (GP 1983 2. Som.423) and a judgment of 20 June 1988 whereby the tribunal de police at Bordeaux acquitted an egg producer who had marked eggs with the date on which they were laid, contrary to Article 15 of the contested regulation.
According to the United Kingdom, the question submitted for a preliminary ruling relates essentially to the validity of Article 15 in so far as it prohibits the marking of eggs with the date on which they were laid.
Article 86 of the Treaty applies only to undertakings and is not concerned with legislative measures adopted by the Community institutions or the Member States.
Although consumer protection is one of the imperative requirements which may justify a prohibition on imports notwithstanding Article 30 of the Treaty, there does not seem to be in Community law a basic right to information. The question in this case is what kind of information about eggs should be made available to consumers.
The United Kingdom suggests that the Court examine that question in the same way as it did in its judgment of 8 October 1986 in Case 234/85 Ministère public v Keller [1986] ECR 2897, which was concerned with the information allowed by the Community legislation on the labelling of table wines.
Accordingly, the Court should ask itself first whether the restriction of the number of terms which may be used is justified on the basis of the objectives pursued by the common organization of the market in question and, secondly, whether the exclusion of the disputed information (in this case, the date on which the eggs were laid) goes beyond what is required for the attainment of those objectives.
With regard to the first issue, the United Kingdom recalls the objectives of the basic regulation and those set out in the preamble to the contested regulation, and argues that they also include two implied objectives, namely ensuring that the information provided is truthful and that the rules laid down are enforceable by the authorities of the Member States.
In some cases, those objectives cannot be achieved unless the number of markings permitted is limited, in particular in order to ensure that consumers are not misled. That objective might require the prohibition of certain markings demanded by consumers, even if true, where the information in question is unsubstantiated or unverifiable. By way of example, the United Kingdom refers to the fact that many consumers prefer to buy eggs which are not produced by hens in battery units. Commission Regulation (EEC) No 1943/85 (Official Journal 1985, L 181, p. 34), amending Regulation (EEC) No 95/69 of the Commission (Official Journal, English Special Edition 1969 (I), p. 7), authorized the use of additional terms for that purpose, whilst limiting their number to four and specifying the production conditions which must be complied with for each term.
The United Kingdom comes to the conclusion that such a restriction of the number of terms which may be used in the marking of eggs is justified on the basis of the objectives pursued.
With regard to the second issue, the United Kingdom considers that the discretion conferred on the Council by Article 2(2) of the basic regulation is very wide. The Council was justified in exercising it so as to restrict the number of terms that may be used and has not infringed any binding principle of Community law.
Whilst acknowledging that in recent years there have been technical developments as regards the physical integration of battery production units with packing centres, the United Kingdom points out that the principle of legal certainty would be infringed if the validity of a Community act could be challenged simply on the basis of such developments. In any event, the United Kingdom questions the national court's statements to the effect that such developments make it possible in practice to determine accurately the date on which the eggs have been laid.
In order to avoid prohibitive costs, packing centres do not operate continuously, although eggs can be laid at any time of the day or night. Even if producers were to make the necessary arrangements (including ensuring that eggs leaving the battery units after midnight are marked with the following day's date), national authorities would never be in a position to verify that the system was working properly.
Consequently, the technical developments referred to by the national court are incapable of giving consumers the assurance that eggs are graded, packed and marked on the day on which they are actually laid. In those circumstances, to allow eggs to be marked with the date on which they were laid would be to risk misleading consumers. The only reliable factor (since it can be verified by the Member States) is the packing date or the packing period, subject to the conditions laid down by Articles 11, 17 and 18 of the contested regulation.
For those reasons, the United Kingdom considers that the exclusion of the date on which eggs are laid from the terms which may be used is justified in the interests of producers, traders and consumers, and that the answer to the question referred to the Court should be as follows:
If the Court should take the opposite view, the United Kingdom suggests that Article 15 should be declared invalid only in so far as it applies to the exclusion of the date on which eggs are laid from the terms that may be used in marking them.
The Commission considers that although the regulation precludes the date on which the eggs were laid from being marked either on them or on the packs, it nevertheless guarantees the freshness of the eggs and provides consumers with reliable information in that respect.
Although Article 86 of the Treaty affords indirect protection to consumers, it applies only to undertakings. However, the establishment of marketing standards with regard in particular to the dating of eggs makes it possible to create equal conditions of competition and to ensure freedom of trade within the Community (see the judgment of the Court in Case 31/78 Bussone [1978] ECR 2429).
Consumer protection has been the subject-matter of two Council directives, one on the labelling and presentation of foodstuffs (Directive 79/112/EEC, Official Journal 1979, L 33, p. 1, as most recently amended by Directive 86/197/EEC, Official Journal 1986, L 144, p. 38) and the other on misleading advertising (Directive 84/450/EEC, Official Journal 1984, L 250, p. 17). According to the sixth recital in the preamble to the first directive the prime consideration for any rules on the labelling of foodstuffs should be the need to inform and protect the consumer.
The general rules laid down by those two directives apply to the marketing of eggs only when the eggs are sold directly by the producer to the consumer, which would not appear to be the case in the dispute in the main proceedings, which concerns sales in a hypermarket. In those circumstances, it is the contested regulation which applies.
Nevertheless, the general principle laid down by the first directive is complied with.
According to the Commission, it follows quite clearly from the contested regulation and from Regulation No 95/69 that the only dates or periods which may or must be marked on eggs or on packs are the date of packing and the recommended sell-by date, and that marking the eggs with the date on which they were laid is forbidden, which leaves no room for doubt as to the obligation on the part of the national authorities to enforce that prohibition, in accordance with Article 29 (see the Court's judgment of 5 May 1988 in Case 91/87 Gutshof-Ei [1988] ECR 2541).
The prohibition does not constitute an infringement of the consumer's right to information but is justified in view of the objective, stated in a number of recitals in the preamble to the contested regulation, of providing consumers with reliable and adequate information. The Commission refers, in particular, to Articles 4(2), 17 and 18 of the contested regulation, and to the possibility of adding the recommended sell-by date. The rules thus ensure that eggs are collected and packed within mandatory periods guaranteeing their freshness and provide consumers with reliable information in that respect.
The prohibition on the marking of eggs with the date on which they were laid is also justified by the difficulty of verifying the accuracy of the date, which would involve checks on the producer's premises (dispersed over a wide area, especially so far as small producers are concerned), whereas at present checks are carried out primarily at packing centres. Such a check further up the chain of production does not really seem feasible, and consequently neither the Council nor the Commission considered it possible for eggs to be marked with the date on which they were laid. Nevertheless, in a proposal for the amendment of the contested regulation (Doc. COM(88) 347 final, of 16 June 1988), which was submitted to the Council, the Commission envisaged the possibility, under the management committee procedure, of allowing the inclusion of other dates designed to provide the consumer with further information. If that amendment is accepted by the Council, it will be for the Commission to determine, when the time comes, whether it has been possible to overcome the difficulties involved in checking the marking of eggs with the date on which they were laid.
The Commission therefore suggests that the question submitted for a preliminary ruling should be answered as follows:
V — Answer to the question put by the Court
The Court asked the Commission to state whether the judgment of 20 June 1988 of the tribunal de police at Bordeaux, to which Mr Paris refers in his observations, was an isolated decision. The information gathered by the Commission from the Member States indicates that that is the case, since the marking of eggs with the date on which they were laid has not been the subject of any other proceedings in the Community.
1 Language of the case: French.