CJEC, 1st chamber, September 17, 1997, No C-83/96

THE COURT (First Chamber)

1 By order of 4 December 1995, received at the Court on 18 March 1996, the Corte Suprema di Cassazione (Supreme Court of Cassation) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question on the interpretation of Article 3(1)(6) 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 (`the Directive') (OJ 1979 L 33, p. 1).

2 That question was raised in proceedings between, on the one hand, the Provincia Autonoma di Trento (Autonomous Province of Trento) and the Ufficio del Medico Provinciale di Trento (Medical Office of the Province of Trento) (`the administrative authorities of the Province of Trento') and, on the other, the partnership Dega di Depretto Gino (`Dega') concerning the latter's failure to comply with the Italian legislation on labelling.

3 Dega markets cans of pineapple in Italy, on which the labels state only the name and address of the producer and packager, an undertaking established outside the Community.

4 On 13 June 1988, an administrative fine was imposed on Dega on the ground that those labels did not bear the details of a trader established within the Community.

5 In support of that decision, the administrative authorities of the province of Trento relied on Article 3(h) of Decree No 322 of the President of the Republic of 18 May 1982 (GURI No 156 of 9 June 1982, p. 4167) according to which the labelling on foodstuffs must indicate, in particular, `the name or business name or registered trademark and the registered office of the manufacturer or packager or of a seller established within the European Community'.

6 That article transposes Article 3(1)(6) of the Directive into Italian law. The English version of that provision, which agrees with the French version, reads as follows:

`1. In accordance with Articles 4 to 14 and subject to the exceptions contained therein, indication of the following particulars alone shall be compulsory on the labelling of foodstuffs:

...

(6) the name or business name and address of the manufacturer or packager, or of a seller established within the Community.

...'

In contrast to the French and English texts, the Italian version of the Directive does not include a comma between the words `packager' and `or of a seller established within the Community'.

7 By judgment of 20 November 1990, the Pretura (Magistrate's Court), Rovereto, upheld the appeal brought by Dega against the decision of the administrative authorities of the province of Trento and annulled the administrative fine. It held that the expression `established within the European Economic Community' in Article 3(h) of Decree No 322 referred only to sellers, and that, as in this case, it was sufficient to indicate the name and address of the producer and packager established in a third country.

8 By application of 3 June 1992, the administrative authorities of the province of Trento lodged an appeal seeking to have the Pretura's judgment set aside. They claimed that protection of the ultimate consumer is only fully guaranteed if details of at least one trader established within the Community are indicated on the label, whether of the manufacturer, the packager, or the seller.

9 As the national provision at issue reproduces almost exactly Article 3(1)(6) of the Directive, the Corte Suprema di Cassazione considered it necessary to refer the following question to the Court of Justice for a preliminary ruling:

`Must Article 3(1)(6) of Council Directive 79-112-EEC (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) be interpreted as meaning that the expression "established within the Community" used in it refers only to the seller or refers, in the absence of a seller established within the Community, also to the manufacturer and/or packager? Must that provision therefore be taken to mean that, in the absence of a seller established in the Community, the manufacturer and/or the packager must be established in the Community?'

10 The Italian and Greek Governments consider that the labels of products referred to by the Directive must always bear details of a trader established within the Community, whether of the producer, the packager or the seller. In their view, the word `established' is capable of referring without distinction to all the operators mentioned in the Directive.

11 Furthermore, they consider that interpretation to be in accordance with the aim of the Directive, which is to inform and protect consumers. Article 3(1) is intended to identify traders responsible for any misrepresentation, food-borne infections or other injury caused by the product so that penalties can be more easily imposed and compensation more easily sought. If the packaging of the products does not bear details of a natural or legal person established in the Community, the protection of consumers in that respect is severely jeopardized.

12 That interpretation cannot be accepted.

13 Firstly, it is apparent from the French, Danish, English, German and Dutch language versions of the Directive that the expression `established within the Community' applies only to the seller. In the French, Danish and English versions, the position of the comma serves to separate the seller from the other two traders. Furthermore, that separation is reinforced in the English version by the fact that the word `seller' is preceded by the indefinite article `a', whilst the words `manufacturer' and `packager' are preceded by the definite article `the'. Finally, the nature of German and Dutch syntax makes it even more clear that the expression `established within the Community' applies only to the seller (`den Namen oder die Firma und die Anschrift des Herstellers, des Verpackers oder eines in der Gemeinschaft niedergelassenen Verkäufers', `de naam of de handelsnaam en het adres van de fabrikant of van de verpakker of van een in de Gemeenschap gevestigde verkoper').

14 Secondly, it should be noted that the final version of the Directive does not take up the punctuation proposed by the Economic and Social Committee in its opinion on the draft directive (OJ 1976 C 285, p. 3, point 2.7.1), which was precisely intended to apply the condition of Community establishment to all the traders mentioned in the provision at issue.

15 Thirdly, Article 3(1)(6) of the Directive must be interpreted with reference to the purpose and general scheme of the rules of which it forms a part (Case 100-84 Commission v United Kingdom [1985] ECR 1169, paragraph 17; Case C-449-93 Rockfon v Specialarbejderforbundet i Danmark [1995] ECR I-4291, paragraph 28; Case C-72-95 Kraaijeveld and Others v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403, paragraph 28).

16 In that respect, it is apparent from both the sixth recital in the preamble and from Article 2 that the Directive was intended to ensure the information and protection of the ultimate consumer of foodstuffs, in particular as regards the nature, identity, properties, composition, quantity, durability, origin or provenance and method of manufacture or production of those products.

17 In particular, Article 3(1)(6) of the Directive `is mainly intended to enable the consumer to contact a person responsible for the manufacture or packaging of the foodstuffs with a view to expressing any positive or negative criticism about the product purchased' (Commission answer to a written question E-2170-95 of 28 July 1995, OJ 1995 C 340, p. 19).

18 That goal can only be achieved if the ultimate consumer can easily identify the person responsible for the product. In that respect, producers and packagers differ from sellers. The former are generally established, easily identifiable traders, meaning that the fact that they might be situated outside the Community does not present a problem. In contrast, sellers are generally much smaller traders and, consequently, more difficult to identify, particularly if they are established outside the Community.

19 That is why the Community legislature, for the purposes of the rules on labelling of foodstuffs, laid down different rules in relation to traders depending on whether they are manufacturers or packagers, on the one hand, or sellers, on the other. As regards manufacturers and packagers, the label on the packaging may indicate details of either one or the other, whether established within the Community or outside; as regards sellers, the label may only indicate details of a trader established within the Community.

20 The answer to the national court's question must therefore be that Article 3(1)(6) of the Directive is to be interpreted as meaning that the expression `established within the Community' used in it refers only to the seller.

Costs

21 The costs incurred by the Italian, Greek and French Governments and by 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 action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(First Chamber),

in answer to the question referred to it by the Corte Suprema di Cassazione by order of 4 December 1995, hereby rules:

Article 3(1)(6) 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 is to be interpreted as meaning that the expression `established within the Community' used in it refers only to the seller.