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Cite as: [2005] EUECJ C-203/04, [2005] EUECJ C-203/4

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JUDGMENT OF THE COURT (Third Chamber)

14 July 2005 (*)

(Poultrymeat - Marketing standards - Prohibition on including certain indications concerning the type of farming on labelling - Regulation (EEC) No 1538/91)

In Case C-203/04,

REFERENCE for a preliminary ruling under Article 234 EC from the Landgericht Frankfurt am Main (Germany), made by decision of 28 April 2004, received at the Court on 7 May 2004, in the proceedings

Gebrüder Stolle GmbH & Co. KG

Heidegold Geflügelspezialitäten GmbH,

THE COURT (Third Chamber),

composed of A. Rosas, President of the Chamber, A. Borg Barthet (Rapporteur), A. La Pergola, U. Lõhmus and A. Ó Caoimh, Judges,

Advocate General: M. Poiares Maduro,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the written procedure and further to the hearing on 6 April 2005,

after considering the observations submitted on behalf of:

- Gebrüder Stolle GmbH & Co. KG, by P. Deutschbein, Rechtsanwalt,

- Heidegold Geflügelspezialitäten GmbH, by U. Brückmann, H.-G. Kamann and T. Beyerlein, Rechtsanwälte,

- the German Government, by C.-D. Quassowski and A. Tiemann, acting as Agents,

- the Greek Government, represented by G. Kanellopoulos, V. Kontolaimos and I. Pouli, acting as Agents,

- the French Government, by G. de Bergues and A. Colomb, acting as Agents,

- the Commission of the European Communities, by G. Braun, acting as Agent,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Article 10(1) of Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Council Regulation (EEC) No 1906/90 on certain marketing standards for poultrymeat (OJ 1991 L 143, p. 11).

2 This reference has been made in the course of proceedings between Gebrüder Stolle GmbH & Co. KG (hereinafter -�Gebrüder Stolle-�) and Heidegold Geflügelspezialitäten GmbH (hereinafter -�Heidegold-�) regarding the latter-�s use of a label bearing the wording -�Heidegold Deutsches Qualitäts-Geflügel aus kontrollierter Aufzucht-� (Heidegold Quality German Poultry reared under controlled conditions, hereinafter the -�contested wording-�) to market its products.

Law

3 Article 10 of Regulation No 1538/91, as amended by Commission Regulation (EC) No 1321/2002 of 22 July 2002 (OJ 2002 L 194, p. 17), provides:

-�1. In order to indicate types of farming [-�Haltungsformen-�] with the exception of organic or biological farming, no other terms except those set out hereunder and the corresponding terms in the other Community languages listed in Annex III may appear on the labelling within the meaning of Article 1(3)(a) of Directive 2000/13/EC and in any case they may appear only if the relevant conditions specified in Annex IV are fulfilled:

(a) -�Fed with -� % of -�-�;

(b) -�Extensive indoor-� (-�Barn reared-�);

(d) -�Traditional free range-�;

(e) -�Free range - total freedom-�.

These terms may be supplemented by indications referring to the particular characteristics of the respective types of farming [-�jeweilige Haltungsform-�].

When free-range production (points c, d and e) is indicated on the label for meat coming from ducks and geese kept for the production of -�foie gras-�, the term -�from foie gras production-� shall also be indicated.

2. Mention of the age at slaughter or length of fattening period shall be permitted only when use is made of one of the terms referred to in paragraph 1 and for an age of not less than that indicated in Annex IV(b), (c) or (d). However, this provision does not apply in the case of animals falling within the fourth indent of point 1(a) of Article 1.

...-�

4 Under the seventh recital in the preamble to Regulation No 1538/91:

-�-� among the indications which may optionally be used on the labelling are those concerning the method of chilling and particular types of farming [-�Haltungsform-�]; -� the use of the latter, in the interest of consumer protection, needs to be subordinated to the respect of closely-defined criteria concerning both husbandry conditions [-�Aufzucht-�] and quantity thresholds for stating certain criteria such as age at slaughter or length of fattening period and content of certain foodstuff ingredients-�.

5 Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000 L 109, p. 29) repealed 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). Article 1(3)(a) of Directive 2003/13 defines the term -�labelling-�.

The main proceedings and the question referred for a preliminary ruling

6 Heidegold operates a slaughterhouse specialising in the end production of poultrymeat products. It uses a label bearing the contested wording for the marketing of its products.

7 Gebrüder Stolle, a business competitor of Heidegold, takes the view that the label used by the latter constitutes a breach of Article 10(1) of Regulation No 1538/91 and amounts to an unlawfully acquired competitive advantage for that undertaking. On this ground, Gebrüder Stolle brought proceedings against Heidegold before the Landgericht (Regional Court) Frankfurt am Main. It seeks to have the use of the contested wording prohibited on the basis of Paragraph 1 of the Gesetz gegen den unlauteren Wettbewerb (Law on unfair competition). Heidegold, on the contrary, claims that it is not in breach of Regulation No 1538/91 inasmuch as the meaning of the term -�Aufzucht-� is not the same as that of -�Haltung-�. Consequently, according to Heidegold, the contested wording cannot be regarded as an indication of the type of farming (-�Haltungsform-�).

8 The Landgericht Frankfurt am Main decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

-�Should Article 10(1) of Regulation (EEC) No 1538/91 of 5 June 1991 (marketing standards for poultrymeat) be interpreted as meaning that on labelling within the meaning of Article 1(3)(a) of Directive 79/112/EEC the wording -�reared under controlled conditions-� indicates a type of farming within the meaning of Article 10(1) of Regulation (EEC) No 1538/91?-�

The question referred for a preliminary ruling

9 It must first be stated that, although the referring court cites the version of Article 10(1) of Regulation No 1538/91 which refers to Directive 79/112 as regards the meaning, inter alia, of -�labelling-�, it is necessary to take into account the repeal of that directive and its replacement by Directive 2003/13. Therefore, reference will be made to Article 10 of Regulation No 1538/91 as amended by Regulation No 1321/2002 (hereinafter -�Regulation No 1538/91-�) and referring to Directive 2000/13.

10 As Heidegold states, the terms -�Haltung-� and -�Aufzucht-� are sometimes used in Community law in such a way as to differentiate between them. Thus, the definition of -�holding-� given in Article 2(8) of Council Directive 90/539/EEC of 15 October 1990 on animal health conditions governing intra-Community trade in, and imports from third countries of, poultry and hatching eggs (OJ 1990 L 303, p. 6), as amended by Council Directive 93/120/EEC of 22 December 1993 (OJ 1993 L 340, p. 35, hereinafter -�Directive 90/539-�), sets out a distinction between the two terms inasmuch as holding, within the meaning of that provision, -�shall mean a facility -� used for the rearing [-�Aufzucht-�] or keeping [-�Haltung-�] of breeding or productive poultry-�. Likewise, the Court used the two terms in such a way as to differentiate between them in paragraph 2 of its judgment in Case C-'157/96 National Farmers-� Union and Others [1998] ECR I-2211, in describing the undertakings represented by the applicant trade association as -�undertakings engaged in the raising [-�Aufzucht-�] for sale, feeding, lairage [-�Haltung-�], transport and export of livestock-�.

11 It is apparent from the abovementioned examples and the wording of Article 2(9)(c) of Directive 90/539 that the term -�Aufzucht-� relates more to the stage of rearing animals whilst the term -�Haltung-�, which is more general in meaning, refers to the overall process of keeping them.

12 The wording of the seventh recital in the preamble to Regulation No 1538/91 also provides that an indication of particular types of farming (-�Haltungsform-�) needs to be subordinated to closely-defined criteria concerning husbandry conditions (-�Aufzucht-�).

13 Furthermore, the wording of Article 10 of Regulation No 1538/91 includes not only expressions which refer to conditions under which animals may be kept (-�Barn reared-�, -�Free range-�, etc.) and correspond to husbandry conditions within the meaning of the expression -�Haltungsformen-�, but also terms referring to the rearing of animals (-�Fed with -� % of -�-�, fixing of a minimum age for slaughter) which relate more to the term -�Aufzucht-� according to the linguistic distinction made in paragraph 11 of this judgement.

14 The same is true of the conditions laid down in Annex IV to Regulation No 1538/91, to which the first subparagraph of Article 10(1) of that regulation refers, and which take into consideration, inter alia, the age of animals at slaughter to distinguish the different types of farming.

15 It follows that, in the context of Regulation No 1538/91, the terms -�Aufzucht-� and -�Haltung-� have to a great extent the same meaning, but the latter has a wider scope than the term -�Aufzucht-� and the types of farming (-�Haltungsformen-�) also relate to husbandry conditions (-�Aufzucht-�).

16 This conclusion is reinforced by the analysis of other language versions of Regulation No 1538/91, from which it appears that the same term is used in the wording of the seventh recital. Thus, an examination of the different versions in which that regulation was adopted indicates that the same term is used in French (-�mode d-�élevage/conditions d-�élevage-�), in Spanish (-�sistemas particulares de cría/condiciones de cría-�), and in Dutch (-�bijzondere houderijsystemen/houderijsystemen-�).

17 In the light of the foregoing, the answer to the question referred must be that Article 10(1) of Regulation No 1538/91 is to be interpreted as meaning that the wording -�reared under controlled conditions-� (-�kontrollierte Aufzucht-�) constitutes an indication of the type of farming (-�Haltungsform-�) and for that reason does not allow an undertaking to include that wording on the labelling of a product falling within the scope of that regulation.

Costs

18 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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Article 10(1) of Commission Regulation (EEC) No 1538/91 of 5 June 1991 introducing detailed rules for implementing Council Regulation (EEC) No 1906/90 on certain marketing standards for poultrymeat, as amended by Commission Regulation (EC) No 1321/2002 of 22 July 2002, must be interpreted as meaning that the wording -�reared under controlled conditions-� (-�kontrollierte Aufzucht-�) constitutes an indication of the type of farming and for that reason that article does not allow an undertaking to include that wording on the labelling of a product falling within the scope of that regulation.

[Signatures]

* Language of the case: German.