JUDGMENT OF THE COURT (Fifth Chamber)

16 July 1998 (1)

(Marketing standards for eggs — Promotional descriptions or statements liableto mislead the purchaser — Reference consumer)

In Case C-210/96,

REFERENCE to the Court under Article 177 of the EC Treaty by theBundesverwaltungsgericht (Germany) for a preliminary ruling in the proceedingspending before that court between

Gut Springenheide GmbH,

Rudolf Tusky

and

Oberkreisdirektor des Kreises Steinfurt — Amt für Lebensmittelüberwachung,

Joined party: Oberbundesanwalt beim Bundesverwaltungsgericht,

on the interpretation of Article 10(2)(e) of Council Regulation (EEC) No 1907/90of 26 June 1990 on certain marketing standards for eggs (OJ 1990 L 173, p. 5),

THE COURT (Fifth Chamber),

composed of: C. Gulmann, President of the Chamber, M. Wathelet, J.C. Moitinhode Almeida, D.A.O. Edward and J.-P. Puissochet (Rapporteur), Judges,

Advocate General: J. Mischo,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

—    Gut Springenheide GmbH and Rudolf Tusky, by Bernhard Stüer,Rechtsanwalt, Münster,

—    the French Government, by Catherine de Salins, Deputy Director at theLegal Affairs Directorate of the Ministry of Foreign Affairs, and FrédéricPascal, seconded to that directorate from the central administration, actingas Agents,

—    the Austrian Government, by Franz Cede, Botschafter at the FederalMinistry of Foreign Affairs, acting as Agent,

—    the Swedish Government, by Lotty Nordling, Rättschef in the Ministry ofForeign Affairs, acting as Agent,

—    the Commission of the European Communities, by Klaus-Dieter Borchardt,of its Legal Service, acting as Agent, assisted by Hans-Jürgen Rabe andGeorg M. Berrisch, Rechtsanwälte, Hamburg,

having regard to the Report for the Hearing,

after hearing the oral observations of Gut Springenheide GmbH and Rudolf Tusky,represented by Bernhard Stüer; of the German Government, represented byCorinna Ullrich, Regierungsrätin zur Anstellung in the Federal Ministry of Justice,acting as Agent; and of the Commission, represented by Klaus-Dieter Borchardtand Hans-Jürgen Rabe, at the hearing on 29 January 1998,

after hearing the Opinion of the Advocate General at the sitting on 12 March 1998,

gives the following

Judgment

1.

    By order of 8 February 1996, received by the Court on 20 June 1996, theBundesverwaltungsgericht referred to the Court for a preliminary ruling under

Article 177 of the EC Treaty three questions on the interpretation of CouncilRegulation (EEC) No 1907/90 of 26 June 1990 on certain marketing standards foreggs (OJ 1990 L 173, p. 5).

2.

    The questions have been raised in proceedings brought by Gut SpringenheideGmbH (hereinafter 'Gut Springenheide‘) and its director, Rudolf Tusky, againstOberkreisdirektor des Kreises Steinfurt — Amt für Lebensmittelüberwachung (ChiefAdministrative Officer of the Rural District of Steinfurt — Office for Supervision ofFoodstuffs, hereinafter 'the Office for Supervision of Foodstuffs‘) concerning adescription appearing on packs of eggs marketed by Gut Springenheide and aninsert enclosed in the packs.

Community legislation

3.

    Regulation (EEC) No 2771/75 of the Council of 29 October 1975 on the commonorganisation of the market in eggs (OJ 1975 L 282, p. 49) provides for the adoptionof marketing standards relating in particular to grading by quality and weight,packaging, storage, transport, presentation and marketing of eggs. On the basis ofthat regulation, the Council adopted Regulation No 1907/90, which repealed andreplaced Regulation (EEC) No 2772/75 of 29 October 1975 on marketing standardsfor eggs (OJ 1975 L 282, p. 56).

4.

    Article 10(1) of Regulation No 1907/90 lists the particulars which packs of eggsmust bear. These include the name or business name, and address of theundertaking which has packed the eggs or had them packed; however the name,business name or the trade mark used by that undertaking may be shown only ifit contains no wording incompatible with the regulation relating to the quality orfreshness of the eggs, to the type of farming used for their production or to theorigin of the eggs (Article 10(1)(a)).

5.

    Article 10(2) of the regulation provides that packs may also carry certain additionalinformation, including statements designed to promote sales, provided that suchstatements and the manner in which they are made are not likely to mislead thepurchaser (Article 10(2)(e)). That provision was amended by Council Regulation(EEC) No 2617/93 of 21 September 1993 (OJ 1993 L 240, p. 1), so as to makeclear that the optional additional information for publicity purposes on egg packsmay include symbols and refer to eggs and to other items. However thatamendment is of no relevance in the present case.

6.

    Under the first subparagraph of Article 10(3) of Regulation No 1907/90, furtherdates and indications concerning the type of farming and the origin of the eggs mayonly be used in accordance with rules to be laid down under the procedure set outin Article 17 of Regulation No 2771/75. Those rules are to cover in particular the

terms used in indications of the type of farming and the criteria concerning theorigin of the eggs.

7.

    Article 14 of Regulation No 1907/90 provides that packs may not bear anyindications other than those laid down in the Regulation.

8.

    On 15 May 1991, the Commission adopted Regulation (EEC) No 1274/91introducing detailed rules for implementing Regulation (EEC) No 1907/90 (OJ1991 L 121, p. 11). Article 18 of that regulation lists, in particular, the termsindicating the type of farming as referred to in Article 10(3) of Regulation (EEC)No 1907/90 which eggs as well as small packs may carry. Article 18 was amendedby Commission Regulation (EC) No 2401/95 of 12 October 1995 (OJ 1995 L 246,p. 6).

The main proceedings

9.

    Gut Springenheide markets eggs ready-packed under the description '6-Korn — 10frische Eier‘ (six-grain — 10 fresh eggs). According to the company, the six varietiesof cereals in question account for 60% of the feed mix used to feed the hens. A slipof paper enclosed in each pack of eggs extols the beneficial effect of this feed onthe quality of the eggs.

10.

    On 24 July 1989, having repeatedly advised Gut Springenheide of its reservationswith regard to the description 'six-grain — 10 fresh eggs‘ and the pack insert, theOffice for the Supervision of Foodstuffs gave the company notice that it mustremove them. Also, a fine was imposed on its director, Rudolf Tusky, on 5September 1990.

11.

    By judgment of 11 November 1992, the Verwaltungsgericht (Administrative Court),Münster, dismissed the declaratory action brought by Gut Springenheide andRudolf Tusky on the ground that the description and the pack insert infringedParagraph 17(1) of the Lebensmittel- und Bedarfsgegenständegesetz (Foodstuffsand Consumer Goods Law) under which misleading descriptions were prohibited.

12.

    Gut Springenheide and Rudolf Tusky appealed unsuccessfully against thatjudgment. The appeal court considered that the description and the pack insert inquestion infringed Article 10(1)(a) and (2)(e) of Regulation No 1907/90. Accordingto that court, the description 'six-grain — 10 fresh eggs‘, which is also a trade mark,and the pack insert were likely to mislead a significant proportion of consumers inthat they implied falsely that the feed given to the hens is made up exclusively ofthe six cereals indicated and that the eggs have particular characteristics.

13.

    Gut Springenheide and Rudolf Tusky then brought an appeal on a point of lawbefore the Bundesverwaltungsgericht (Federal Administrative Court). They arguedthat the description and the pack insert at issue provided the consumer with vital

information and that the appeal court had not produced any expert opinion toprove that they misled the purchaser.

14.

    The Bundesverwaltungsgericht took the view that the outcome of the proceedingsturned on Article 10 of Regulation No 1907/90, but had doubts regarding theinterpretation of Article 10(2)(e), which allows packs to bear statements designedto promote sales provided that they are not likely to mislead the purchaser.According to the referring court, that provision could be interpreted in two ways.Either the misleading nature of the statements in question is to be assessed in thelight of the actual expectations of consumers, in which case those expectationsought, if necessary, to be ascertained by means of a survey of a representativesample of consumers or on the basis of an expert's report, or the provision inquestion is based on an objective notion of a purchaser, which is only open to legalinterpretation, irrespective of the actual expectations of consumers.

15.

    Accordingly, the Bundesverwaltungsgericht ordered that proceedings be stayed andthe following questions be referred to the Court of Justice for a preliminary ruling:

'1.    In order to assess whether, for the purposes of Article 10(2)(e) ofRegulation (EEC) No 1907/90, statements designed to promote sales arelikely to mislead the purchaser, must the actual expectations of theconsumers to whom they are addressed be determined, or is the aforesaidprovision based on a criterion of an objectified concept of a purchaser, openonly to legal interpretation?

2.    If it is consumers' actual expectations which matter, the following questionsarise:

    (a)    Which is the proper test: the view of the informed average consumeror that of the casual consumer?

    (b)    Can the proportion of consumers needed to prove a crucial consumerexpectation be determined in percentage terms?

3.    If an objectified concept of a purchaser open only to legal interpretation isthe right test, how is that concept to be defined.‘

Preliminary considerations

16.

    In the first place, the French Government expresses doubts about the admissibilityof the questions referred, since Regulation No 1907/90 came into force on 1October 1990, that is to say, after the events in issue in the main proceedings.

17.

    On this point, it should be noted, first, that the provisions of Article 10(2)(e) of thatregulation which are of relevance in the present case are substantially equivalentto those contained in the second paragraph of Article 21 of Regulation No 2772/75,as amended by Council Regulation (EEC) No 1831/84 of 19 June 1984 (OJ 1984L 172, p. 2), which Regulation No 1907/90 repealed and replaced.

18.

    Second, Gut Springenheide, the German Government and the Commission allpointed out at the hearing that, since, in the main proceedings, the appellants seekto have their practices declared to be in compliance with the rules in force, thereferring court must take account of the provisions applicable at the time when itgives judgment, or, at the very least, those in force when the action was brought.Thus, the action in the main proceedings does not concern the fine imposed on thedirector of the appellant company.

19.

    The questions referred by the Bundesverwaltungsgericht must therefore beanswered (see, to that effect, Case C-203/90 Gutshof-Ei [1992] ECR I-1003,paragraph 12).

20.

    The French Government also takes the view that there is no need to consider theinterpretation of Article 10(2)(e) of Regulation No 1907/90, sought by the referringcourt, because that provision prohibits in any event a description such as that inissue in this case. It argues that the description 'six-grain — 10 fresh eggs‘ refers tothe feeding of laying hens and therefore concerns the type of poultry farming asreferred to in Article 10(3) of the Regulation. Article 18(1) of Regulation No1274/91, which lists exhaustively the terms, indicating the type of farming, that mayappear on packs, does not list the description in issue.

21.

    That interpretation cannot be upheld.

22.

    Under Article 18 of Regulation No 1274/91, as amended by Regulation No 2401/95,small packs containing a certain category of eggs may carry one of the followingterms to indicate the type of farming as referred to in Article 10(3) of RegulationNo 1907/90: 'Free range eggs‘, 'Semi-intensive eggs‘, 'Deep litter eggs‘,'Perchery eggs (Barn eggs)‘ and 'Eggs from caged hens‘. Those terms may beused only for eggs produced in poultry enterprises meeting the criteria set out inAnnex II to the regulation, which essentially concern the ground or floor areaavailable for the hens, and not the type of feed.

23.

    According to the 18th recital of Regulation No 1274/91, those provisions areintended to safeguard the consumer from misleading statements which mightotherwise be made with the fraudulent intention to obtain prices higher than thoseprevailing for eggs of hens raised in batteries. They are thus confined to regulatingthe description of the type of farming which egg packs may bear, irrespective of thetype of feed given to the animals, which in any case does not depend on the typeof farming.

24.

    Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailedrules for implementing Regulation (EEC) No 1906/90 on certain marketingstandards for poultry (OJ 1991 L 143, p. 11) does not support any other conclusion.

25.

    Whilst it is true that Article 10 of that regulation, read together with its Annex IV,includes amongst the optional descriptions of the type of farming some referringto the type of feed, those are separate rules, with specific provisions, which, for thereasons given by the Advocate General at paragraphs 31 to 38 of his Opinion,cannot be relied on in this case in order to interpret Regulation No 1274/91.

26.

    It follows from the foregoing that the provisions of Regulations Nos 1907/90 and1274/91 regarding the descriptions of the type of farming of laying hens do notpreclude egg packs from bearing a description such as 'six-grain — 10 fresh eggs‘.

The questions referred for a preliminary ruling

27.

    By its three questions, which it is appropriate to answer together, the referringcourt is essentially asking the Court of Justice to define the concept of consumerto be used as a standard for determining whether a statement designed to promotesales of eggs is likely to mislead the purchaser, in breach of Article 10(2)(e) ofRegulation No 1907/90.

28.

    In answering those questions, it should first be noted that provisions similar toArticle 10(2)(e), intended to prevent consumers from being misled, also appear ina number of pieces of secondary legislation, applying generally or in particularfields, such as Council Directive 79/112/EEC of 18 December 1978 on theapproximation of the laws of the Member States relating to the labelling,presentation and advertising of foodstuffs for sale to the ultimate consumer (OJ1979 L 33, p. 1), or Council Regulation (EEC) No 2392/89 of 24 July 1989 layingdown general rules for the description and presentation of wines and grape musts(OJ 1989 L 232, p. 13).

29.

    The protection of consumers, competitors and the general public against misleadingadvertising is also regulated by Council Directive 84/450/EEC of 10 September 1984relating to the approximation of the laws, regulations and administrative provisionsof the Member States concerning misleading advertising (OJ 1984 L 250, p. 17).Under Article 2(2) of that directive, misleading advertising means any advertisingwhich in any way, including its presentation, deceives or is likely to deceive thepersons to whom it is addressed or whom it reaches and which, by reason of itsdeceptive nature, is likely to affect their economic behaviour or which, for thosereasons, injures or is likely to injure a competitor.

30.

    There have been several cases in which the Court of Justice has had to considerwhether a description, trade mark or promotional text is misleading under the

provisions of the Treaty or of secondary legislation. Whenever the evidence andinformation before it seemed sufficient and the solution clear, it has settled theissue itself rather than leaving the final decision for the national court (see, inparticular, Case C-362/88 GB-INNO-BM [1990] ECR I-667; Case C-238/89 Pall[1990] ECR I-4827; Case C-126/91 Yves Rocher [1993] ECR I-2361; Case C-315/92Verband Sozialer Wettbewerb [1994] ECR I-317; Case C-456/93 Langguth [1995]ECR I-1737; and Case C-470/93 Mars [1995] ECR I-1923).

31.

    In those cases, in order to determine whether the description, trade mark orpromotional description or statement in question was liable to mislead thepurchaser, the Court took into account the presumed expectations of an averageconsumer who is reasonably well-informed and reasonably observant andcircumspect, without ordering an expert's report or commissioning a consumerresearch poll.

32.

    So, national courts ought, in general, to be able to assess, on the same conditions,any misleading effect of a description or statement designed to promote sales.

33.

    It should be noted, further, that, in other cases in which it did not have thenecessary information at its disposal or where the solution was not clear from theinformation before it, the Court has left it for the national court to decide whetherthe description, trade mark or promotional description or statement in question wasmisleading or not (see, in particular, Gutshof-Ei, cited above; Case 94/82 DeKikvorsch [1983] ECR 947; and Case C-313/94 Graffione [1996] ECR I-6039).

34.

    In Case C-373/90 X [1992] ECR I-131, paragraphs 15 and 16, in which Directive84/450 was in point, the Court held, inter alia, that it was for the national court toascertain in the circumstances of the particular case and bearing in mind theconsumers to which the advertising was addressed, whether advertising describingcars as new despite the fact that they had been registered for the purposes ofimportation, without ever having been driven on a road, could be misleading in sofar as, on the one hand, it sought to conceal the fact that the cars advertised asnew were registered before importation and, on the other hand, that fact wouldhave deterred a significant number of consumers from making a purchase. TheCourt also held that advertising regarding the lower prices of the cars could be heldto be misleading only if it were established that the decision to buy on the part ofa significant number of consumers to whom the advertising in question wasaddressed was made in ignorance of the fact that the lower price of the vehicleswas matched by a smaller number of accessories on the cars sold by the parallelimporter.

35.

    The Court has not therefore ruled out the possibility that, in certain circumstancesat least, a national court might decide, in accordance with its own national law, toorder an expert's opinion or commission a consumer research poll for the purposeof clarifying whether a promotional description or statement is misleading or not.

36.

    In the absence of any Community provision on this point, it is for the nationalcourt, which may find it necessary to order such a survey, to determine, inaccordance with its own national law, the percentage of consumers misled by apromotional description or statement that, in its view, would be sufficientlysignificant in order to justify, where appropriate, banning its use.

37.

    The answer to be given to the questions referred must therefore be that, in orderto determine whether a statement or description designed to promote sales of eggsis liable to mislead the purchaser, in breach of Article 10(2)(e) of Regulation No1907/90, the national court must take into account the presumed expectations whichit evokes in an average consumer who is reasonably well-informed and reasonablyobservant and circumspect. However, Community law does not preclude thepossibility that, where the national court has particular difficulty in assessing themisleading nature of the statement or description in question, it may have recourse,under the conditions laid down by its own national law, to a consumer research pollor an expert's report as guidance for its judgment.

Costs

38.

    The costs incurred by the German, French, Austrian and Swedish Governments andby the Commission, which have submitted observations to the Court, are notrecoverable. Since these proceedings are, for the parties to the main proceedings,a step in the proceedings pending before the national court, the decision on costsis a matter for that court.

On those grounds,

THE COURT (Fifth Chamber)

in answer to the questions referred to it by the Bundesverwaltungsgericht by orderof 8 February 1996, hereby rules:

In order to determine whether a statement intended to promote sales of eggs isliable to mislead the purchaser, in breach of Article 10(2)(e) of Regulation (EEC)No 1907/90 of 26 June 1990 on certain marketing standards for eggs, the nationalcourt must take into account the presumed expectations which it evokes in anaverage consumer who is reasonably well-informed and reasonably observant andcircumspect. However, Community law does not preclude the possibility that,where the national court has particular difficulty in assessing the misleadingnature of the statement or description in question, it may have recourse, under theconditions laid down by its own national law, to a consumer research poll or anexpert's report as guidance for its judgment.

GulmannWathelet Moitinho de Almeida     Edward                     Puissochet

Delivered in open court in Luxembourg on 16 July 1998.

R. Grass

C. Gulmann

Registrar

President of the Fifth Chamber

1: Language of the case: German.