C-150/88

OPINION OF MR DARMON — CASE C-150/8 8

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 13 July 1989 *

PARFÜMERIE-FABRIK 4711 v PROVIDE

Italian company to refuse to take delivery of 8. Let us examine successively each of the the goods ordered by it, with the result that two questions submitted. it was sued by the other party to the contract for failure to discharge its contractual obligations, before the court specified in the contract. This court, on the basis of similar facts which led the Landgericht Hamburg to submit a question 9. The first concerns Article 8(1)(d) of the for a preliminary ruling on the Belgian law Italian Law, which requires 'details of the on the marketing of margarine, took the quality and quantity of the substances view that the information before it left no whose presence is indicated on the room for any doubt as to the genuineness of packaging, in advertisements or in the name the dispute. 4 of the product'. According to the Italian Government, 7 that provision is in conformity with Article 6(2) of the directive, which requires the Member States to 'take all measures necessary to ensure that in the labelling, presentation for sale and adver­ 6. It seems to me, however, that it will be tising of cosmetic products, the wording, necessary to reformulate the questions since, use of names, trade marks, images or other as the Court has consistently held, in signs, figurative or otherwise, suggesting a particular in the Pretore di Salò judgment, characteristic which the products in question do not possess, shall be prohibited'. Article 6(1) sets out the information which must appear on the packaging, containers or labels of the products. That information 'it may not, in proceedings under Article does not include details of the quality of the 177, rule on the conformity of national substances mentioned on the labels. measures with Community law'. 5 Moreover, pursuant to Article 7(1), the Member States may not refuse, prohibit or restrict the marketing of products which comply with the requirements of Directive 76/768. Article 7(2) allows a single exception: Member States may require that 7. However, as the Court has frequently certain of the items of information which stated, it may are compulsory under Article 6(1) be expressed in their own national or official language or languages.

substances mentioned constitutes a barrier fully harmonized the rules on the packaging to trade, in so far as it leads to a par and labelling of cosmetic products. titioning of the markets, and, on the other, that imperative requirements relating to consumer protection would be just as well fulfilled by a general prohibition of any labelling, presentation or advertising of a misleading nature. The Italian legislation is thus unacceptable in that it contravenes the principle of proportionality. 13. The preamble to the Community directive seems to me to suggest that that is the case.

. . labelling and packaging of 'where, in application of Article 100 of the cosmetic products'. Those considerations led Treaty, Community directives provide for it to adopt the central provision of the the harmonization of the measures directive, namely Article 7(1), which necessary to ensure the protection of animal provides that a Member State may no and human health and establish Community longer refuse, prohibit or restrict the procedures to check that they are observed, marketing of cosmetic products which recourse to Article 36 is no longer justified comply with the requirements of the and the appropriate checks must be carried directive. That provision seems to me to out and the measures of protection adopted demonstrate the comprehensive nature of within the framework outlined by the the harmonization thereby accomplished. harmonizing directive'. 8 Moreover, Article 12 of the directive grants Member States the possibility of temporarily preventing the marketing on their territory of cosmetic products which, although complying with the requirements of the directive, represent a hazard to health.

PARFÜMERIE-FABRIK 4711 v PROVIDE

ations calling for rapid intervention with a and concluded that view to the protection of health. It seems to me therefore that the matter at issue — the labelling and packaging of cosmetic products — has been totally harmonized 'it is not therefore for the Member States to and that, in consequence, the Member determine such qualitative criteria at States may no longer impose the national level'. 11 requirement that cosmetic products placed on the market should bear information not prescribed by the directive and prevent the marketing thereof if such information is not 15. We should also note that Article 7(2), given. Article 6(2) is a measure intended to which allows Member States to require the obviate fraud, that is to say it is negatively prescribed information to be expressed in prescriptive. The Member States may their own official or national language or therefore not, in order to apply such languages, constitutes the only exception measures, impose requirements of a posi­ allowed by the directive to the harmon­ tively prescriptive nature which are liable to ization which it imposes in the area of impede intra-Community trade in an area in packaging and labelling of cosmetic which there has been total harmonization. It products. In other words, the Community would be entirely paradoxical to allow the legislature itself provided for the only case provisions of a directive designed to ensure in which a Member State may prevent the the free movement of cosmetic products marketing in its own territory of products within the Community to be used to complying with the requirements of the frustrate such free movement. Furthermore, directive, by requiring that information one commentator has stated, with respect to should be expressed in a particular Directive 76/768, that 'the composition of language; it follows that the Member States cosmetics need not be indicated ... '. 9 have no right to obstruct the marketing of imported products by requiring other particulars to appear which are not mentioned in the directive.

18 19 Community legislature used the expression bourg and the Netherlands ) and in some 'prohibitions or restrictions' shows clearly cases more generally applicable (United 20 21 22 that it does not intend to allow the impo Kingdom, Denmark and Portugal ). sition of positive obligations in order to attain the desired objective. Similarly, Article 2(2) provides that 'the Council shall draw up a non-exhaustive list of the claims within the meaning of paragraph (1), the 19. It seems to me therefore that legislation, use of which must at all events be prohibited like the Italian legislation, which requires

15 Kikvorsch, a prohibition of the provision means less restrictive of intra-Community of certain information on the products if it trade. A general requirement prohibiting is likely to cause confusion and attribute to any presentation or labelling likely to them characteristics which they do not mislead the consumer seems wholly possess. However, it does not authorize adequate both to ensure fair trading and them to jeopardize the harmonization which consumer protection. It is hardly likely that has been achieved by requiring information a traditional user of cosmetic products will to be shown on the packaging of those be in a position to know whether a products which is not provided for in the particular substance mentioned on the label Community legislation. should account for 5 % or 0.5% of the composition of the product in order to have an effect. Moreover, such a measure would not prevent unscrupulous manufacturers

16 1 Republic of Germany, Belgium, 7 Luxem 18 — Grand-Duca! Regulation of 24 October 1978 on cosmetic 14 — Emphasis added. products, M. A. 1978, p. 1936. 15 — Judgment of 17 Match 1983 in Case 94/82 [1983] ECR 19 — Royal Decree of 3 April 1980, stb 256. 947, paragraph 12. 20 — Trade Descriptions Act 1968. 16 — Kosmetik-Verordnung BGBl I, p. 1082. 21 — Law on chemicals No 574, 26.8.1987. 17 — Royal Decree of 10 May 1978, Moniteur beige, 1.9.1978. 22 — Decree-Law No 28-84, 20.1.1984.

21. Finally, the Court may have allowed 25. Circular No 1 of the Italian Ministry of 25 that Health dated 2 February 1987 states that the abovementioned provision of the Italian Law must be regarded as referring to the Italian manufacturer or the person in Italy 'consumer protection may also entail a responsible for marketing the product. prohibition of the provision of certain infor­ mation on the products, particularly if that information may be confused by the consumer with other information required 23 26. It seems to me that the relevant by the national rules', provision of the directive cannot be inter­ preted as permitting such a requirement. Article 6(l)(a) is intended only to require details of the manufacturer or person but it certainly did not say that a positive responsible for marketing the product in the obligation could be imposed in order to Community, not on the national market of achieve that same objective. a Member State. With respect to feeding- stuffs, Directive 79/112, Article 3(l)(b) of which contains provisions of a similar kind, expressly provides, in Article 3(2), for the 22. The adoption of a measure such as the Member States to be able, by way of dero­ national measure in question thus seems to gation from Article 3(1), to 'retain national me to be wholly precluded by Articles 6 and provisions which require indication of the 7 of Directive 76/768. factory or packaging centre in respect of home production'. No such derogation is contained in Directive 76/768. 23. The second question submitted by the national court relates to Article 8(l)(a) of the Italian Law which requires the name or style and address or registered office of the 27. Moreover, with respect to liability for manufacturer or person responsible for damage caused by products, Article 3(2) of marketing the product to be indicated on 26 Council Directive 85/374/EEC defines the packaging, containers or labels of the importer as the person who imported cosmetic products. the product into the Community. That directive applies inter alia to cosmetic

products. In general, as far as both the before it is sold to the public. However, marketing conditions and the rules on Directive 76/768, which has fully liability are concerned, trade between harmonized the marketing rules for Member States must be considered as trade cosmetic products in the Community, does within a single market and therefore regard not require the identity of the person is to be had only to the identity of the responsible for placing the product on the person who places the product on the home market to be given. Any obligation of Community market. that kind, which makes the marketing of such products more difficult, entails a 28. In its written observations, the Italian distortion of competition between Government refers to the amending Community undertakings, which the provisions of Circular No 22 of 13 May directive was intended to eliminate. 27 1987, and expresses the view that 'the premise on which the second question is 30. It is pointless to seek to rely here on the based no longer exists in the applicable 28 judgment of this Court of 11 May 1989, Italian rules'. since it was stated in that decision that:

29. Let me say in that regard that that second circular merely allows the indication 'a unilateral measure constituting a barrier of the undertaking responsible for to intra-Community trade can only be marketing in Italy to be affixed to the justified if Community rules have been 29 packaging of the product subsequently, adopted to regulate the area in question'.

31. I therefore propose that the Court should rule as follows: