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MINISTRY OF AGRICULTURE, FISHERIES and FOOD v. MARTIN HENRY PITT [2000] EWHC Admin 310 (27th March, 2000)

Case No: CO/4606/99

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM CROWN OFFICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 27 March 2000

B e f o r e :
LORD JUSTICE SCHIEMANN
MR. JUSTICE ASTILL
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	MINISTRY OF AGRICULTURE, FISHERIES & FOOD	Appellant
	-v -
	MARTIN HENRY PITT	Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
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DAVID LLOYD JONES (instructed by Solicitor to the Minister of Agriculture, Fisheries and Food for the Appellant)
MAURICE SHERIDAN (instructed by Messrs. Wilsons, Salisbury, for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©

Lord Justice Schiemann:

This is a prosecutor's appeal by way of case stated from a decision of magistrates. It raises a point of general significance to egg producers in relation to the marks which may be affixed to eggs and their boxes referring to the day of laying. The magistrates have held that a mark stating "laid between 21 - 23rd. October is lawful. In my judgment they erred. The relevant Regulations and case law are of such complexity that no conceivable criticism can attach to them. On the contrary the case is well set out and they clearly took a lot of trouble.
Mr Pitt produced and packed free-range eggs. He was prosecuted by the MAFF because of what he had printed on his egg boxes. He had printed "Laid between 21-23 October". The MAFF claimed that this breached the Eggs (Marketing Standards) Regulations 1995. The magistrates acquitted him. The MAFF appeals to this court by way of case stated.
These Regulations provide in Regulation 8 (1) that:
"Any person who..... contravenes or fails to comply with any Community provision shall be guilty of an offence....."
The relevant Community provisions are complex. One starts with Council Regulation (EEC) No 1907/90 on certain marketing standards for eggs. This provides in Article 14 that:
"Packs may not bear any indications other than those laid down in this Regulation".
The Magistrates held that what Mr Pitt had printed was specifically permitted by Article 10(2)(e)of this Council Regulation. The MAFF submit that this finding is wrong because were it right it would be possible to side-step a detailed scheme established by the Community for the labelling of eggs and their boxes (or "packs" as they are described in the regulations). The Magistrates pose the following question for the opinion of the High Court:
"Were we correct in law in finding that the marking "laid between 21-23 OCT" on a pack of eggs was a marking permitted by Article 10(2)(e) of the Council Regulation (EEC) No. 1907/90?"
That subparagraph permits:
"statements designed to promote sales, provided that such statements and the manner in which they are made are not likely to mislead the purchaser".
The magistrates reasoning was simple. They held that the statement was true, was not likely to mislead the customer and that it had been made to promote sales.
The MAFF rely on two cases which have been decided by the ECJ in relation to the predecessor of Regulation 1907/90, namely Regulation (EEC) No 2772/75. I shall refer to these two regulations as the 1975 Regulation and the 1990 Regulation. In each case I have emphasised in bold the passages upon which the MAFF in particular rely.
The first of these cases was Gold-Ei Erzeugerverbund GmbH v Überwachungstelle für Milcherzeugnisse und Handelsklassen Case C - 372/89 [1991] ECR I-43. As the law then stood it was permissible to indicate on packs the date of packing but not the date of laying. The claimant was a producers' organisation whose members marketed eggs in packs which, in addition to the packing date and in the same print-face, bore the statement "Guaranteed packed on the day of laying". The claimant accepted that it was prohibited to indicate the date of laying on small packs but contended that such a prohibition did not extend to wording such as "packed on the day of laying" and it contended that this was an indication as to the efficiency and rapidity of the marketing system used by the producer and was thus lawful pursuant to sub-paragraph (c) of the second paragraph of Article 21 of Regulation at issue which allowed statements designed to promote sales to be affixed to small packs, provided that such statements and the manner in which they are made are not likely to mislead the purchaser. That paragraph was thus in identical terms to the one relied on by the magistrates in the present case. Advocate General Tesauro said this in his opinion:
"4. .......... that argument appears sophistic and unconvincing. A statement affixed to a pack which bears the date of packing, indicating that the eggs were packed on the day of laying, is clearly intended to draw the consumer's attention not to the efficiency and rapidity of the marketing system but rather to the actual date of laying of the eggs......
Whilst it is true that the indication of the date of laying is thus merely indirect, the fact remains that the statement leaves no room for uncertainty or doubt as to what that date is.
To allow such a statement to be printed on the egg packs would therefore be tantamount to total evasion of the prohibition imposed by the Community Legislature, conflicting with its various substance.
Finally it is not permissible to allow an extensive interpretation of the second paragraph of Article 21 of the Regulation at issue to be used in order to circumvent the prohibition laid down in the previous paragraph".
The judgment of the Court contains the following:
"5. Pursuant to the first paragraph of Article 21, "packs shall not bear any indication other than those laid down in this Regulation". However, sub-paragraph (c) of the second paragraph of Article 21 provides that small packs may bear "statements designed to promote sales, provided that such statements and the manner in which they are made are not likely to mislead the purchaser......"
............
11. Gold-Ei contend that neither the wording on the pack nor the slip inside it amounts to an indication of the date of laying, but that both such indications are evidence of the freshness of the eggs and therefore a "statement designed to promote sales", which is permitted under sub-paragraph (c) of the second paragraph of Article 21, provided that its accuracy can be easily verified by the competent authorities.
12. That argument cannot be upheld. The authority to add "statements designed to promote sales" contained in sub-paragraph (c) of the second paragraph of Article 21 cannot constitute an authorisation to display wording or information prohibited by the Regulation. Indications appearing on the outside or inside of a pack, such as those at issue in the present case, whose purpose and effect are manifestly to inform the purchaser of the date of laying, are prohibited, as is an express indication of the date of laying, which is precluded by the first paragraph of Article 21 of Regulation No 2772/75, as amended".
The second case relied on by the MAFF is concerned both with the now repealed 1975 Regulations and with their replacement the 1990 Regulations. The case is
Erzeugergemeinschaft Gutshof-Ei Gmbh v Stadt Bühl Case C-203/90 [1992] ECR I-1003. The producer there had affixed to its large egg packs statements such as "new-laid" and the issue before the court was whether this was permissible. The producer claimed that this was a statement designed to promote sales. It faced the initial difficulty that the 1975 regulations only allowed any promotional material on small packs whereas the producer had affixed them to large packs. It lost on that point but the court went on to consider what the position would be under the 1990 Regulations where there was no distinction between small packs and large packs. Advocate General Tesauro referred to the decision in Gold-Ei, stating at the conclusion of paragraph 4:
"In its later judgment in Gold-Ei, the Court then made clear that wording such as "packed on the day of laying" on the outside or inside of a pack, designed to inform the consumer of the date of laying, cannot be regarded as a statement designed to promote sales and is therefore prohibited by the first paragraph of Article 21 of Regulation 2772/75, in the same way as an explicit indication of the date of laying.
It need hardly be pointed out that, as is apparent from the judgments cited, a general prohibition of that kind applies whether or not it is possible in certain circumstances to check reliably the date of laying.
5. The legal situation that I have described was partly modified by the adoption of Regulation 1907/90, which now allows the indication of dates other than that of packing (seventeenth recital and Articles 7(b) and 10 (2)(c)), but makes that possibility dependent upon fulfilment of the conditions laid down by the Commission under the management-committee procedure (Article 10(3)). And in fact, by Regulation 1274/91 introducing detailed rules for the implementation of Regulation 1907/90, the Commission laid down that the possibility of affixing the date of laying on eggs and packs should be subject to compliance with particularly severe administrative formalities and controls intended to guarantee the accuracy of the information given to the consumer: see in particular Article 17 of Regulation 1274/91.
The use of indications which, albeit indirectly, refer to the time of laying of the egg and in any way lead the consumer to presume the existence of Community checks of that time is therefore allowed under the new legislation but only if the trader accepts the obligations and controls provided for by Community law in order to guarantee the accuracy of such information".
The Court followed his reasoning as appears from the following paragraphs of its judgment:
"13 In its second and third questions the national court seeks to determine whether the Community legislation prohibits statements designed to promote sales which refer to the freshness of eggs and which, although objectively accurate, may nevertheless mislead the purchaser.
14 It must first be pointed out that a promotional statement concerning the freshness of eggs may give rise to misconceptions in the mind of the consumer where the latter has no reliable criterion to enable him to check the accuracy of such information. On the other hand, if the consumer is provided with a point of reference, such as the date of laying, which will enable him to assess the freshness of the eggs for himself the statement in question is not likely to mislead him.
15 It should be borne in mind in that regard that, under Regulation 2772/75, direct or indirect indications relating to the date of laying were prohibited: see Case C-372/89,Gold-Ei. Article 10(2)(c) of Regulation 1907/90 provides, on the other hand, that both large and small packs may carry one or more dates, other than the date of packing, intended to provide the consumer with additional information. However, pursuant to Article 10(3) of the same regulation, those additional dates may be used only in accordance with the implementing rules to be adopted by the Commission.
16 The implementing rules for affixing the date of laying, are contained in Articles 15 and 16 of Commission Regulation 1274/91 introducing detailed rules for implementing Regulation 1907/90 on certain marketing standards for eggs. In order to prevent fraud, those rules lay down for eggs on which provision is made for the laying date to be stamped a system of daily collection and classification and immediate marking and also especially rigorous registration, record-keeping and monitoring procedures (see the fourteenth recital in the preamble to Regulation 1274/91).
17 In those circumstances, it must be concluded that promotional statements which refer to the freshness of eggs may, even if objectively correct, mislead the purchaser, unless the eggs bear the date of laying, affixed in accordance with the Community provisions.
20 It must therefore be stated in reply to the second and third questions submitted by the Verwaltungsgerichtchof Baden-Würtemberg that Community law as it stands prohibits the display on packs of statements designed to promote sales which refer to the freshness of the eggs if the eggs in question bear no date of laying indicated in a manner which complies with Community legislation. It is for the national courts to determine whether the statements are displayed in a manner likely to lead to confusion with information restricted by Community legislation to a quality grading."
Relying on those opinions and decisions, the MAFF submits that the date of laying in the present case is not indicated in a manner which complies with Community legislation and that
therefore Community law prohibits the display on packs of statements designed to promote sales which refer to the freshness of the eggs.
Was the date of laying indicated in a manner which complied with Community legislation?
The root legislation here is Article 10 of the 1990 Regulation. This provides as far as presently relevant
1. Large packs, and small packs even when contained in large packs, shall bear on the outer surface in clearly visible and legible type:
....
(e) the packing date
2. Both large and small packs may, however, carry the following additional information, on either inner or outer surfaces:
(a) the selling price;
...
(c) one or more further dates aimed at providing the consumer with additional information;
...
(e) statements designed to promotes sales, provided that such statements and the manner in which they are made are not likely to mislead the purchaser.
One must also heed Article 20 of the 1990 Regulation which provides:
"1. Detailed rules for the implementation of this Regulation shall be adopted in accordance with the procedure laid down in Article 17 of Regulation (EEC) No 2771/75, in particular regarding:
Frequency of collection, delivery and handling of eggs,
Quality criteria and weight grading,
Particulars of indications on eggs and their packs."

The rules are to be found in Commission Regulation (EEC) No 1274/91 as amended by Commission Regulation (EC) No 3300/93. I shall refer to that amended regulation as the Commission Regulation in order to distinguish it both from the Council Regulations and the national regulations to which I have already referred. So it is to the Commission Regulation that we must look in order to see what particulars of indications on eggs are permitted.

The MAFF contend that, although the phrase "laid between 21-23 OCT" could be described as providing the consumer with additional information, there was no compliance with Commission Regulation. Mr Pitt contends that there was such compliance.
Before setting out the relevant parts of the Commission Regulation and the arguments on either side in relation to it , I should point out that the parties are agreed that if the lawfulness of the markings in question is to be considered as governed by Article 10 (2) (c), then Mr. Pitt cannot rely on Article 10 (2) (e). However, Mr. Pitt contends that just because the markings refer to a matter within Article 10 (2) (c) does not mean that the markings cannot be within Article 10 (2) (e). As it seems to me, there has not been compliance with the Regulation because the lawfulness of the markings is governed by Article 10 (2) (c). The case law of the Community which I have cited leads to the conclusion that in those circumstances the marking is not permitted under Article 10 (2) (e). The magistrates' concentration on the latter provision is wholly understandable since the MAFF before them expressly stated that they were not relying on Article 10 (2) (c).
As amended the Commission Regulation makes various provisions for the way in which various indications are to be given in the various Community languages. It includes the following:
Article 14
1. The indication of the date of minimum durability..... shall comprise one or more of the following:
......
Best before.......
.....
For this purpose the date shall be indicated by two sets of figures representing the following order:
- the day, from figure 1 to 31,
- the month: from figure 1 to 12.
[The paragraph in bold is referred to later in the Regulation as the second subparagraph of Article 14(1).]
Article 15
The indication of the packing date referred to in Articles 10 and 15 of Regulation (EEC) No 1907/90 shall comprise one or more of the following:
- Packing date: ........,
followed by the two sets of figures referred to in the second sub-paragraph of Article 14 (1).
Article 16
..........
3. The laying date may be indicated by the operator on packs at the time of packing, in which case it shall also be indicated on the eggs contained in the packs. The laying date may, however, also be stamped on eggs at the farm.
4. For the indication of the dates referred to in this Article on eggs, and in the case the sell-by and laying dates also on packs, one or more of the terms listed in Annex 1 shall be used.
5. The dates referred to in this Article shall be indicated by two sets of figures as referred to in the second sub-paragraph of Article 14 (1).
Annex 1 .........
.......
4. Laying date:
Laid

Both the English version and the versions in such of the other Community languages in which I have any facility indicate that the date referred to is a date in the singular.
From the case stated the following appears. The pack was marked "laid between 21-23 OCT,". The only marking on the eggs was "Martin Pitt Free Range". It is common ground that no laying date was indicated on the eggs.
Conclusion
Under Community Law all "indications" on packs are prohibited save those which are specifically permitted: Article 14 of the 1990 Regulations. Whatever else may be said, "laid between 21-23 OCT" is undoubtedly an indication.
The only arguable permission is the one conferred by Article 10 (2)(c) or (e). I am content to accept from the magistrates that what has happened here falls within the wording of Article 10(2)(e). However, even if an indication on its face falls within the wording of either of those subparagraphs it will still be prohibited if it amounts to the display on packs of statements designed to promote sales which refer to the moment of the laying of the eggs unless the eggs
in question bear a date of laying indicated in a manner which complies with Community legislation dealing with permissible methods of indicating the date of laying: That is in my judgment clearly implicit in Gutshof-Ei and Gold-Ei.
It is argued on behalf of Mr Pitt that the regulations under consideration in Gold-Ei contained an express prohibition against putting any markings with any reference to any date of laying on the outside of small packs of eggs and that the ECJ had decided that this was in effect what had been done by the producer. The prohibition in that case was expressed in all but identical terms to that now contained in Article 14 of the 1990 Regulation - "packs shall not bear any indications other than those laid down in this Regulation". True it is that in that case the indication made mention of only one date whereas in the present case it makes mention of the period between two dates. That however does not affect the principle to be applied.
Further, it was argued on behalf of Mr Pitt that Gutshof-Ei was a case concerned with an indication of freshness of eggs and that paragraph 14 of the court's judgment did not rule out referring to a reference point such as a date of lay. It was submitted that what we have in the present case can fairly be described as such a reference point. All this is true. But none of it gainsays the clear policy which I have indicated is implicit in those two judgments.
The indication in the present case was designed to refer to the moment of laying of the eggs. It did not in my judgment comply with Community legislation dealing with permissible methods of indicating the date of laying. One reason for this is that, as it seems to me, Article 16 of the Commission Regulation envisages that a single date should be stamped on the pack. Another reason is that whatever is stamped on the pack must also be stamped on the eggs.
In those circumstances the principle set out in the two ECJ cases which I have cited applies and the fact that the wording on the packs did not offend against Article 10(2)(e) of the 1990 Regulation is not sufficient to have the effect of overcoming the prohibition on packs bearing any indications other than those laid down in this Regulation which is contained in Article 14 thereof.
The MAFF are concerned with the magistrates' ruling as a matter of principle. Mr Pitt has meanwhile retired. It is not suggested that the case should be sent back to the magistrates.
MR JUSTICE ASTILL:-
I agree.
I shall order:
1. The Order as to costs in the Court below will remain.
2. Respondent to pay costs of the MAFF in the Court of Appeal.