Opinion of Mr Advocate General Tesauro
Mr President,
Members of the Court,
1. In. the present proceedings the Court is again called on to interpret the Community legislation governing the marketing of eggs.
2. With regard to the first question, let me say at the outset that, as is apparent from Articles 16 to 20 thereof, Regulation No 2772/75 draws, even in its initial version, a clear distinction between large and small packs. Moreover, as is absolutely clear from subparagraph (c) of the second paragraph of Article 21 of the regulation in question and from the fourth recital in the preamble to Regulation (EEC) No 1831/84, which amended Regulation No 2772/75, the Council intended to restrict to small packs the possibility of affixing statements designed to promote sales. In fact, that provision states, in its first paragraph, that packs are not to bear any indications other than those provided for in the regulation and, in the next paragraph, that small packs may nevertheless carry statements designed to promote sales.
3. The considerations put forward with respect to the first question make it unnecessary for me to examine the second and third questions submitted by the national court. However, in order to give the national court a helpful answer for the purpose of applying Community law in the case before it, I think it is appropriate also to examine Regulation (EEC) No 1907/90, which repealed and replaced Regulation No 2772/75, redefining the marketing standards for eggs. The national court will probably have to apply to the case before it the legislation adopted in the meantime, on the interpretation of which the parties in fact submitted their observations.
4. For a proper understanding of the scope of the question it is necessary at this point to describe, if only summarily, the development of the Community legislation concerning indication of the date of laying of eggs, bearing in mind above all that the now repealed Regulation No 2772/75 contained an absolute prohibition of indicating the date of laying on the eggs (Article 15) and on the packs (Article 21).
5. The legal situation that I have described was partly modified by the adoption of Regulation No 1907/90, which now allows the indication of dates other than that of packing (seventeenth recital and Articles 7(b) and 10(2)(c), but makes that possibility dependent upon fulfilment of the conditions laid down by the Commission under the management-committee procedure (Article 10(3)). And in fact, by Regulation (EEC) No 1274/91 of 15 May 1991 introducing detailed rules for the implementation of Regulation (EEC) No 1907/90, the Commission laid down that the possibility of affixing the date of laying on eggs and packs should be subject to compliance with particularly severe administrative formalities and controls intended to guarantee the accuracy of the information given to the consumer (see in particular Article 17 of Regulation No 1274/91).
6. As regards the additional risk that the consumer may be induced to believe that in addition to the gradings provided for by Community law there is a particular grade known as new-laid eggs, I must point out that such an eventuality depends on the manner in which such wording is shown on the pack and that a presentation clearly constituting advertising could avoid any such risk. However, assessments of such matters of fact fall within the exclusive purview of the national court.
7. In view of the foregoing considerations I therefore propose the following answer to the questions submitted by the Verwaltungsgerichtshof Baden-Württemberg:
1 Original language: Italian.
2 OJ 1975 L 282, p. 56.
3 OJ 1984 L 172, p. 2.
4 OJ 1985 L 5, p. 5.. The wording of the recital is as ollows: Whereas, pursuant to Regulation (EEC) No 2771/75, as amended by Reguládon (EEC) No 1831/84, the indication of the packing week number on egg packs has been replaced by that of the packing period; whereas small packs may, pursuant to the same regulation, bear certain indications; whereas Regulation (EEC) No 3341/84 introduced such a possibility in the case of large packs; whereas, therefore, Commission Regulation (EEC) No 1295/79 should be amended accordingly.
5 OJ 1984 L 312, p. 7.
6 OJ English Special Edition 1970 (II) p. 408.
7 OJ 1990 L 173, p. 5.
8 Both the appellant and the Commission referred in their written observations to Regulation No 1907/90.
9 Case 204/88 [1989], ECR 4361.
10 Case 372/89 [1991] ECR I-43.
11 OJ 1991 L 121, p. 11.
12 The risk is particularly great in some languages such as German because of the closeness of die terms extra fresh provided for in Regulation No 1907/90 and new laid (extra frisch and legefrisch).