Opinion of Advocate General Van Gerven delivered on 15 July 1993

1 Original language: Dutch.

2 OJ 1979 L 33, p. 1. The labelling directive has been succes sivcly amended by Council Directive 85/7/EEC of 19 December 1984 (OJ 1984 L 2, p. 22). Council Directive 86/197/EEC of 26 May 1986 (OJ 1986 L 144, p. 38), Council Directive 89/395/EEC of 14 June 1989 (OJ 1989 L 186, p. 17) and Council Directive 91/72/EEC of 16 January 1991 (OJ 1991 L 42, p. 24). A consolidated version would undoubtedly make the directive more accessible.

3 Case 237/82 jongeneel Kaas (1984) LCR 483.

4 Staatsblad, p. 371.

5 Staatsblad p. 726.

6 Order No J 7974, Staatscourant, p. 251.

7 According to Article 13 of the Landbouwkwaliteitsbesluit, this foundation is a legal person governed by private law with full legal capacity, which is responsible for supervising that its members comply with the rules laid down by or pursuant to the Landbouwkwaliteitsbesluit, inspecting cheese products and issuing marks, stamps or evidence.

8 Sec also the third recital in the preamble to the directive.

9 Article 1(2) of the labelling directive as replaced by Directive 89/395/EEC.

10 The second subparagraph of Article 4(2) provides that, where there arc no Community provisions. Member States may make provision for particulars other than those set out in Article 3 in accordance with the procedure laid down in Article 16. In brief. Article 16 distinguishes between national provisions which were already in force before the directive was adopted and provisions adopted subsequently: (i) if a Member State wishes to mitiniam provisions of the first type, it must inform the Commission and the other Member States within two years of notification of the directive; (ii) if a Member State wishes to adopt tit'u legislation, a specific Community procedure applies

11 According to Twee Provinciën, the price obtained for cheeses made in the F region — including therefore its cheeses — is as much as HFL 0.50 per kilo less than that paid for cheeses made in other parts of the Netherlands, although they arc comparable in point of taste, smell and external appearance. It maintains that the F mark constitutes a very important sign of their distinction from cheeses produced elsewhere in the Netherlands, with the result that the compulsory F mark makes for a distortion of the conditions of competition, causing, inter alia, the lower price of cheese in the F region to be reflected in a lower price for milk. In my discussion, I shall not be going into these remarks, since Twee Provinciën has not adduced any evidence to support them (its written observations include only a notice setting out cheese prices in February 1992) and it did not emerge from its arguments at the hearing whether, and if so to what extent, the F mark has the effect of distorting competition. Moreover, this question is separate from the legal issue in this case as to wncther the mark in question constitutes labelling prohibited by the labelling directive.

12 In its written observations, the Commission also sets out a number of remarks with regard to the other particulars set out on the national cheese mark, in particular Gouda, Volvei 48+ and Holland, and their compatibility with the labelling directive. It considers that a question from the national court relating thereto cannot be ruled out at a later stage in the proceedings. For details of the Commission's view, I would refer to the Report for the I fearing: I shall not go into it here, since, as the Commission itself acknowl edges, the national court's question docs not relate to those other particulars. Furthermore, Twee Provinciën gave it to be understood at the hearing that it had no intention of raising this matter before the national court even at a later stage m the proceedings.

13 Case 289/87 Smanor [1988] ECR 4489, paragraph 29.

14 Smanor, paragraph 30. In particular, the sixth recital in the preamble to the directive states that the prime consideration for any rules on the labelling of foodstuffs should be the need to inform and protect the consumer.

15 The Court has often stated that it is not prepared to allow its interpretation of a Community provision to be influenced by such (unpublished, confidential) declarations, a fortiori where such a declaration is prayed in aid in order to justify an interpretation which differs from the actual wording of the provision at issue: sec in particular the judgments in Case 429/85 Commission v Italy [1988] ECR 843, paragraph 9, and Case C-292/89 Antonissen [1991] ECR I-745, paragraph 18. It is further questionable whether such a practice would be desirable, regard being had to the need lor transparency in the activities and legislative process of the Community.

16 Case C-241/89 SARPP [1990] ECR I-4695, paragraph 12.

17 Jongeneel Kaas, cited in footnote 2, paragraph 24.

18 Jongeneel Kaas, cited in footnote 2, paragraph 20.

19 [1991] ECR I-4189 (summary publication only).

20 Jongeneel Kaas, cited in footnote 2, paragraph 28.