Avis juridique important

Judgment of the Court (Sixth Chamber) of 17 November 1993. - Criminal proceedings against Coöperatieve Zuivelindustrie "Twee Provinciën" WA. - Reference for a preliminary ruling: Arrondissementsrechtbank Leeuwarden - Netherlands. - National measures in the cheese sector - Labelling. - Case C-285/92. European Court reports 1993 Page I-06045

Summary Parties Grounds Decision on costs Operative part

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Approximation of laws ° Labelling and presentation of foodstuffs ° Directive 79/112 ° Definition of labelling ° National mark intended to facilitate the performance of controls by the public authorities ° Not included

(Council Directive 79/112, Art. 1(3)(a))

Labelling within the meaning of Article 1(3)(a) of Directive 79/112 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer must be construed as words, particulars and other information relating to a foodstuff which are specifically intended to inform the consumer as to the characteristics of the product in question.

A national cheese mark constituting a sign imposed by the public authorities which is designed to enable them to check that the production rules have been complied with and which comprises not only particulars of the country of production and the type of cheese, but also one or two letters varying according to the region of production, a serial number and a combination of letters or of letters and numbers, does not have that aim and consequently does not constitute labelling for those purposes. Such a mark therefore does not fall within the scope of that directive.

In Case C-285/92,

REFERENCE to the Court under Article 177 of the EC Treaty by the Arrondissementsrechtbank (District Court), Leeuwarden (Netherlands), for a preliminary ruling in the criminal proceedings before that court against

Cooeperatieve Zuivelindustrie "Twee Provinciën" WA,

on the interpretation of the provisions of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (OJ 1979 L 33, p. 1),

THE COURT (Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, M. Diez de Velasco, C.N. Kakouris, F.A. Schockweiler and P.J.G. Kapteyn, Judges,

Advocate General: W. Van Gerven,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° Cooeperatieve Zuivelindustrie "Twee Provinciën" WA, by H.J. Bronkhurst, of the Hague Bar, and E.H. Pijnacker Hordijk, of the Amsterdam Bar,

° the Netherlands Government, By A. Bos, Legal Adviser in the Ministry of Foreign Affairs, acting as Agent,

° the Commission of the European Communities, by T. van Rijn, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Coeoperatieve Zuivelindustrie "Twee Provinciën" WA, the Netherlands Government, represented by J.W. de Zwaan, Assistant Legal Adviser in the Ministry of Foreign Affairs, and the Commission of the European Communities at the hearing on 8 July 1993,

after hearing the Opinion of the Advocate General at the sitting on 15 July 1993,

gives the following

Judgment

1 By order of 15 June 1992, received at the Court on 24 June 1992, the Arrondissementsrechtbank, Leeuwarden (Netherlands), referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of the provisions of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (OJ 1979 L 33, p. 1).

2 The question arose in criminal proceedings brought against the officers of Cooeperatieve Zuivelindustrie "Twee Provinciën" WA for failing to affix to cheeses of its manufacture the national cheese mark which is compulsory for the type of cheese in question under the Netherlands rules on the quality of agricultural products.

3 It appears from the case file that the manufacture and marketing of cheese are governed in the Netherlands by measures adopted pursuant to the Landbouwkwaliteitswet of 8 April 1971 (Law on the Quality of Agricultural Products, Staatsblad 371). Article 2 of that Law provides that a decree or a provision adopted pursuant to a decree may, with a view to promoting sales, lay down product quality rules relating to the properties, grading, packaging, shape and finish of products. Under Article 7, control marks, signs or documents may be required where rules exist on the control of agricultural products.

4 Pursuant to that Law, the Landbouwkwaliteitsbesluit Kaasprodukten of 2 December 1981 (Decree on the Quality of Agricultural Products ° Cheese Products, Staatsblad 726) in particular was adopted. Article 8 of that decree empowers the minister to determine the control marks, signs and documents referred to in Article 7 of the Law.

5 Pursuant to those provisions, the Landbouwkwaliteitsbeschikking Kaasproducten of 28 December 1981 (Order on the Quality of Agricultural Products ° Cheese Products, Staatscourant 251) was adopted. Under Article 14 of that order, cheese producers required to use a national mark must affix to their cheeses in the course of manufacture the mark prescribed by the Keuringsreglement (Inspection Regulation). Under Article 11(2) of the order, national marks are to include, inter alia, different particulars depending on the region in accordance with the provisions of the Inspection Regulation. Article 12 provides that the national cheese mark constitutes a control sign designed to establish that the cheese complies with the general and specific requirements laid down for the type of cheese concerned.

6 The Inspection Regulation was adopted on 14 April 1982 by Stichting Centraal Orgaan Zuivelcontrole (Foundation for the Central Control of Dairy Products).

7 Article 2 of the Inspection Regulation provides that national marks must show, in the space below the word "Holland", a serial number and, below that, a combination of letters or of letters and numbers consisting of at least two letters immediately preceded by:

° the letter F in the case of cheese marks for industrial cheeses manufactured in the provinces of Groningen, Friesland, Drenthe and Overijssel,

° the letters HB for industrial cheeses manufactured in the provinces of Zuid-Holland, Utrecht, Gelderland, Limburg, Noord-Brabant and Zeeland,

° the letters NH for industrial cheeses manufactured in the province of Noord-Holland and

° the letter Z for farmhouse cheeses.

8 As the accused argued that the obligation to include on the national cheese mark one or two letters depending on the region of production was incompatible with Directive 79/112, the Arrondissementsrechtbank, Leeuwarden, considered it necessary, before giving judgment in the criminal proceedings, to request the Court to give a preliminary ruling on the following question:

"Is a national measure requiring cheese producers to affix a cheese mark not merely indicating the country of production and the type of cheese, but also one or two letters depending on the region of production, although there are no appreciable regional differences in quality, consistent as regards the latter requirement with the provisions of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer, in particular Article 15 thereof?"

9 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, 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.

11 In those circumstances, the national court' s question must be construed as seeking essentially to establish whether Directive 79/112/EEC is to be interpreted as precluding national measures requiring cheese producers to affix a cheese mark comprising not only particulars of the country of production and the type of cheese, but also one or two letters varying according to the region of production when there is no significant difference in quality as between regions.

12 In order to answer that question, it is necessary to consider first whether a national cheese mark incorporating, in addition to particulars of the country of production and the type of cheese, one or two letters varying according to the region of production, a serial number and a combination of letters or of letters and numbers, constitutes labelling within the meaning of Directive 79/112 and therefore falls within its scope.

13 Directive 79/112 lays down Community provisions of a general nature on labelling, presentation and advertising applicable to foodstuffs intended to be delivered as such to the ultimate consumer (see the third recital in the preamble and Article 1(1)). It also applies to foodstuffs intended for supply to restaurants, hospitals, canteens and other similar mass caterers (Article 1(2)). "Labelling" is defined as "any words, particulars, trade marks, brand name, pictorial matter or symbol relating to a foodstuff and placed on any packaging, document, notice, label, ring or collar accompanying or referring to such foodstuff" (Article 1(3)(a)).

14 As the Court held in its judgment in Case 298/87 (Smanor SA [1988] ECR 4489, paragraph 29), the exact meaning and scope of Article 5 of Directive 79/112 must be determined regard being had to its context and, in particular, to the directive' s general purpose and structure. This is true of all the provisions of the directive.

16 Accordingly, labelling within the meaning of Article 1(3)(a) of Directive 79/112 must be construed as words, particulars and other information relating to a foodstuff which are specifically intended to inform the consumer as to the characteristics of the product in question.

17 A national cheese mark of the kind at issue in the main proceedings does not have that aim. It embodies a serial number in the range from 00001 to 99999 and, below that, a combination of letters or of letters and numbers, preceded by one or two letters varying according to the region of production. Such a national mark cannot be intended to inform the consumer as to the characteristics of the product concerned. Instead, it constitutes a sign imposed by the Netherlands public authorities which makes it possible to verify that the cheese was produced in accordance with the relevant rules. As was stated at the hearing, the code numbers and letters on the national mark enable the place of production, the producer, the date of production and the batch or consignment to which a particular cheese belongs to be identified when spot checks are carried out in the Netherlands.

18 The answer to the national court' s question must therefore be that Directive 79/112 is to be interpreted as meaning that a national cheese mark comprising not only particulars of the country of production and the type of cheese, but also one or two letters varying according to the region of production, a serial number and a combination of letters or of letters and numbers, does not constitute labelling within the meaning of Article 1(3)(a) of that directive and therefore does not fall within its scope.

Costs

19 The costs incurred by the Netherlands Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question referred to it by the Arrondissementsrechtbank, Leeuwarden (Netherlands), by order of 15 June 1992, hereby rules:

Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer is to be interpreted as meaning that a national cheese mark comprising not only particulars of the country of production and the type of cheese, but also one or two letters varying according to the region of production, a serial number and a combination of letters or of letters and numbers, does not constitute labelling within the meaning of Article 1(3)(a) of that directive and therefore does not fall within its scope.