C-222/91

Mr President, 3. Case C-222/91, which is a reference from 2 Members of the Court, the Consiglio di Stato (Council of State), concerns the provisions of the ministerial decree adopted to implement Article 4 of the Directive, which have been contested by undertakings in the tobacco sector ('the A — Introduction respondents in the Italian proceedings'). With regard to Article 4(2) of the Directive, which provides for the inclusion of specific warnings on cigarette packets, the decree, in its original form, stipulated that two such 1. These two references for preliminary rul­ warnings should be printed on every packet. ings in Cases C-222/91 and C-11/92 concern The respondents in the Italian proceedings the interpretation of individual articles take the view that this was contrary to the in Council Directive 89/622/EEC of provision in the Directive, on the ground 13 November 1989 on the approximation of that the latter required only one warning. the laws, regulations and administrative pro­ visions of the Member States concerning the labelling of tobacco products (hereinafter 'the Directive'). ' Although the two cases have not been joined, I consider it appropri­ ate to deal with them together in one opin­ ion in view of the fact that they are closely related. 4. Although the rule in the ministerial decree was amended after being set aside by judg­ ment of the Tribunale Amministrativo Regionale del Lazio, with the result that in future only one specific warning is required, 2. The facts, the background and course of the ministries involved have appealed to the the national proceedings, the relevant provi­ Consiglio di Stato against the judgment of sions of Community and national law and the Tribunale on the ground that the original the pleas in law of the parties involved are version of the decree had constituted a set out in the reports for the hearing; conse­ proper implementing measure. It is in this quently, I may limit myself to recapitulating connection that the Consiglio di Stato has the essential features of the two cases. In so asked the Court of Justice how many warn­ far as it may prove necessary, I shall return ings the Directive itself requires and whether to details in the course of my opinion. the Member States have at least a discretion to insist on more than one warning.

B — Opinion 6. In Case C-11/92, the High Court of Jus­ tice has requested the Court to interpret those provisions of the Directive which relate to the surface area requirements in 8. All of the questions referred concern respect of information on tar and nicotine (albeit from different perspectives) the lati­ yields (Article 3(3)) and warnings (Article tude which the Directive confers on Member 4(4)) on cigarette packets. The national rules States in respect of the labelling of tobacco introduced in the United Kingdom to give products. It is for that reason appropriate at effect to the Directive, namely the Tobacco the outset to examine in general the nature Products Labelling (Safety) Regulations and scope of the approximation of laws 1991, stipulate in this regard that the infor­ towards which the Directive strives (I), in mation shall cover 'at least 6%' of the rele­ order then to examine individually each of vant side of the packet. However, in the case the questions referred (II). where cigarettes of any brand are imported from another Member State in order to be sold in the United Kingdom, the require­ ments of the United Kingdom regulations 9. I. (1) According to its first citation, the are to be regarded as having been satisfied if Directive is based on Article 100a of the the packets contain warnings in English EEC Treaty. That provision authorizes the which meet the requirements imposed by Council, subject to the conditions set out that other Member State for the purpose of therein, to adopt the 'measures for the giving effect to the Directive. In the opinion approximation of the provisions laid down of the national court making the reference, by law, regulation or administrative action in this means that cigarettes labelled under the Member States which have as their object the law of another Member State in accordance establishment and functioning of the internal with a spatial requirement of 4% may be market'. According to Article 8a of the EEC imported from that Member State and sold Treaty, the internal market shall comprise an

11. It should be noted in this regard that the measures to be adopted under Article 100a 'It follows that action intended to approxi­ are undoubtedly intended, in the light of the mate national rules concerning production definition of the internal market, to remove conditions in a given industrial sector with the barriers arising from domestic provisions the aim of eliminating distortions of compe­ in Member States under which those States tition in that sector is conducive to the may rely on urgent requirements of public attainment of the internal market and thus welfare or on the protection of the interests falls within the scope of Article 100a, a pro­ set out in Article 36 of the EEC Treaty. Indi­ vision which is particularly appropriate to 4 vidual cases, however, may demonstrate that the attainment of the internal market.' the free movement achieved through this concept cannot by itself suffice to create an internal market. On the contrary, it may prove necessary to this end to approximate conditions of competition existing on the 14. The harmonization under Article 100a of markets of the Member States so that it may domestic legal provisions affecting the move­ be possible to exercise the freedom to move ment of goods can therefore have as its goods (or any other basic freedom) effec­ objective both the free movement of goods tively and without discrimination. and the approximation of conditions of com­ petition. In this, the degree of approximation and the weight attached to each aspect may differ. The Commission set this point out in great detail in Case C-222/91. In the follow­ 12. The Court itself was thinking along ing section I shall demonstrate that those these lines when, in its judgment in the 'tita- 3 who drafted the Directive unambiguously nium dioxide' case, it ruled that: opted for one of the possible conceptions.

18. With regard to the approximation of the conditions of competition, the question arises 16. Article 8 of the Directive provides as fol­ of the extent to which the Directive sets out lows: the requirements which Member States may impose on products irrespective of their ori- gin. In this connection, a distinction is to be drawn between the lower and upper limits of '1 . Member States may not, for reasons of such requirements. So far as the former labelling, prohibit or restrict the sale of aspect is concerned, it appears from the sec­ products which comply with this Directive. ond and third recitals in the preamble, as well as from Article 9, that products which do not comply with the requirements laid down in the Directive may not as a rule be 2. The provisions of this Directive do not put on sale. With regard to the 'common affect the right of the Member States to lay rules' which, according to the second recital,

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the Directive contains, the third recital, pur­ applies even in the case of domestic prod­ suant to the spirit of Article 100a(3) of the ucts, with the result that marketing of such Treaty, provides that: products may not be prevented so long as they comply with that limit.

'... such common rules must take due account of public health protection'. 22. Subject to certain individual provisions which confer on Member States a certain ele­ ment of latitude, I am of the opinion that this question must in principle be answered in the affirmative. 19. Article 9(2) provides that the implement­ ing provisions of the Member States must be brought into force before 31 December 1991. Article 9(2) concludes by providing that:

labelling of dangerous preparations (sol­ 26. That which was valid in this regard for vents). The relevant provisions of this Directive 73/173 must a fortiori also be valid directive (the first recital in the preamble and for the present Directive, as it must be borne Article 8) are almost wholly identical to the in mind that the Community legislature corresponding provisions of the present would have been aware of the Ratti judg­ Directive. Article 3 of Directive 73/173 pro­ ment when it adopted Directive 89/622. Had hibits the marketing of dangerous prepara­ it intended to base this Directive on a prin­ tions; its function is analogous to that of ciple other than that which the Court had Article 9 in the Directive at present under previously derived from the text of Directive examination. 73/173, it would have expressed this through a choice of words which represented a clear departure. In view of the fact that this did not happen, it must be assumed that Member States may not in general impose, in the area 25. With regard to Directive 73/173, the to which the Directive applies, any different Court stated (at paragraphs 26 and 27 of its or, in particular, any more stringent require­ judgment) that: ments than those provided for by the Direc­ tive.

8 — judgment in Case C-376/90 Commission v Belgium [1992] ECU I-6153. 9 — Article 10(2) of Council Directive 80/836/Euratom of 6 — Council Directive of 4 June 1973, OJ 1973 L 189, p. 7. 15 July 1980, OJ 1980 L 246, p. 1. 7 — Emphasis added. 10 — Paragraphs 18 and 19 of the judgment.

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in the same way since it provided no indica­ 30. I then intend to address the first ques­ tion that the Community legislature had tion from the Consiglio di Stato (which is intended to adopt a stance different from similar in certain respects to that referred by that of the Commission on Radiological Pro­ the High Court) before going on to deal 1 tection. 1 Those considerations, however, with the remaining two questions from the cannot be applied by analogy to the present Italian court. case.

29. II. It is on this basis that the questions referred by the Consiglio di Stato and the High Court require to be examined. In this regard it seems appropriate first of all to deal with the single question submitted by the 32. Article 4(4) regulates the relative size of High Court. the general and specific warnings as follows: 'On cigarette packets the warnings provided for in paragraphs 1 and 2 shall cover at least 11 — Paragraphs 24 to 27 of the judgment. 4% of each large surface of the unit packet,

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excluding the indication of the authority States a degree of latitude in the sense that provided for in paragraph 3. This percent­ they might impose on domestic products a age shall be increased to 6% for countries greater spatial requirement than that under with two official languages and to 8% for the Directive, provided only that imported countries with three official languages.' products could be marketed freely so long as they satisfied the percentage laid down in the Directive.

36. It is my opinion that the phrase relates 34. In the light of the preceding consider­ to the labelling by manufacturers and that it ations, this question raises the problem of confers no discretion on Member States, whether it was intended through use of the contrary to the views expressed by the Com­ expression 'at least' to confer on Member mission, the United Kingdom and Ireland. The applicants in the United Kingdom pro­ ceedings are correct in pointing out that a 12 — Under paragraph 3, 'Member States may stipulate that the very similar provision, concerning the label­ warnings referred to in paragraphs 1 and 2 be combined with the indication of the authority that is their author'. ling of solvents, is be found in Article 6 of

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Directive 73/173, cited above. The infer­ 38. In contrast to the view taken in respect ences which the Court drew in the Ratti case of Article 6 of Directive 73/173 in Ratti, the with regard to the nature of harmonization Court has recognized that Article 3(2) of under Directive 73/173 do not appear to Directive 79/112 represents an exception to have been affected by Article 6 of that direc­ the principle of complete harmonization as tive, since the Court refers expressly to that laid down in Directive 79/112. In its judg­ provision. 1 ment in Mathot, 5which was delivered on 18 February 1987 and therefore prior to the adoption of the Directive here in dispute, the Court ruled that:

37. It can moreover be stated that in Direc­ 14 tive 79/112, which regulates, inter alia, the labelling of foodstuffs, the Community legis­ lature intended a provision which expressly 'It is correct that Directive 79/112 created reserved the right to impose more stringent obligations concerning the labelling and pre­ conditions on domestic products. Following sentation of foodstuffs marketed in the entire on Article 3(1) of that directive, under which Community without permitting any distinc­ the indication of specific particulars alone tion to be drawn according to the origin of 'shall be compulsory' on the labelling of those foodstuffs, subject only to the con­ foodstuffs (subject to other arrangements dition contained in Article 3(2).' and exceptions), Article 3(2) provides that:

13 — Article 6(1) of Directive 73/173 provides as follows: '1.Where the particulars required by Article 5 appear on a label, that label must be placed on one or more surfaces of the package so that it can be read horizontally when the package is set down normally. The dimensions of the label must be as fol-lows: 40. The principles which it laid down in Package contents Dimensions Mathot have in any event also been con­ — less than or equal to 3 l if possible 52 x 74 mm — greater than 3 l and not firmed by the Court in its judgment in exceeding 50 l at least 74 x 105 mm SARPP. 16 — greater than 50 l and not exceeding 500 l at least 105 x 148 mm — greater than 500 l at least 148 x 210 mm Each symbol must cover at least one tenth of the surface area of the label. The entire surface of the label must adhere to the package immediately containing the substance.' 15 — Judgment in Case 98/86 Ministère Public v Mathot [1987] 14 — Council Directive of 18 December 1978 on the approxima­ ECR 809, at para. 11. tion of the laws of the Member States relating to the label­ 16 — Judgment in Case C-241/89 SARPP v Chambre Syndicale ling, presentation and advertising of foodstuffs for sale to des Raffinenrs et Conditionneurs de Sucre de France and the ultimate consumer, OJ 1979 L 33, p. 1. Others [1990] ECR I-4695, at para. 16.

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45. The nature of the common rules here at recital describes as being the prime objec­ issue also suggests such a course of action. tive of the joint programme of action against Differences in the stringency of rules on cancer. labelling warning against consumption of the product in question and thereby designed to bring about a reduction in that consumption may have a particularly marked detrimental impact on the equality of competitive pros­ pects. To that extent, then, there is a differ­ 47. When one considers the protection of ence between rules of this kind and those public health, for the improvement of which which relate to the inherent qualities of the the eighth recital retains the right to intro­ product itself. National provisions which go duce subsequent measures, it might have beyond the standard laid down in a harmo­ been appropriate to provide a different sys­ nization directive with regard to the inherent tem. However, no such intention on the part qualities of the product concerned may, of the drafters of the Directive is expressed depending on the case, justify products man­ in its text or structure and the Court, for the ufactured in that State in enjoying a compet­ purposes of its interpretation, may rely only itive advantage on the markets of Member on objective and consequently verifiable States (including Member States other than points of reference. the State of manufacture) in the case where those more stringent provisions are associ­ ated with the product's good reputation. In certain circumstances, this advantage may balance out the competitive disadvantage arising from the application of more strin­ 48. For the above reasons, I propose that the gent provisions on the market of the Mem­ Court should reply as follows to the ques­ ber State of manufacture. Such a scheme, tion referred by the High Court: however, is not conceivable in the present case, since the function of the warnings is precisely to damage the 'reputation' of the product.

49. The first question referred by the Con­ siglio di Stato concerns Article 4(5) of the Directive, which deals with the general warning in the case of tobacco products other than cigarettes. That provision reads as 51. Unlike the case with the question just follows: discussed, this raises the problem of Member States' discretion from the perspective, not of a power set out in a directive, but of the scope of harmonization. Article 4(5) in no way states that Member States may adopt 'In the case of tobacco products other than differing rules according to the particular cigarettes, the general warning laid down in context. From this two possible results fol­ paragraph 1 shall be printed in, or irremov- low: either the spatial requirement is subject ably affixed to, a conspicuous place on a con­ to the harmonization created by Article 4(5), trasting background and in such a way as to with the result that it breaches that provision be easily visible, clearly legible and indelible. and is in that case entirely impermissible in It shall not in any way be hidden, obscured respect of domestic and imported products or interrupted by other written or pictorial alike; in the alternative, it falls outside the matter.' area covered by harmonization, again for both types of products, in which case it can no longer be assessed in the light of the Directive but rather in that of Articles 30 and 36 of the EEC Treaty, both of which deal exclusively with imported goods. Unlike the provision on cigarette packets 8 (Article 4(4)), 1 Article 4(5) does not lay down a specific spatial percentage for the warning on the side or other surface of the packet.

familiar with the problem of spatial require­ 55. I propose that the Court should answer ments. We must for that reason assume that the first question referred by the Consiglio they consciously chose not to adopt a rule in di Stato in the following terms: this sense in the case of Article 4(5). This conclusion becomes all the more cogent when one considers that the warning under Article 4(5) must be affixed to a (conspicu­ ous) 'place' on the product. Article 3(1) and Article 4(5) of Directive 89/622 does not per­ (3) and Article 4(1), (2) and (4), in contrast, mit Member States, in the case of tobacco proceed on the basis that the warnings shall products other than cigarettes, to require be printed on the 'surfaces' of the packets, that the general warning laid down in Article up to a specified percentage of those sur­ 4(1) must cover at least 4% of the surface on faces. In addition, a requirement of the type which it is printed. here under discussion complements the rules on visibility and legibility set out in similar terms in Article 3(3) and in Article 4(4) and (5): if the labelling is below a specific abso- lute size, the average consumer will not be able to decipher it; if below a specific relative The second and third questions referred by size, the lettering may not attract his atten­ the Consiglio di Stato tion since it will appear insignificant in comparison with the dimensions of the packet.

56. These questions concern Article 4(2) of the Directive, which deals with the 'specific' warnings on packets of cigarettes and which provides as follows:

59. Several possibilities are theoretically con­ ceivable. 57. It is with regard to those provisions that the Italian court poses the following ques­ tions:

— The Directive requires only one warning. In that case, the requirement that the packet must display more than one warn­ ing may be either permissible or '(b) Is Article 4(2) of Directive 89/622/EEC excluded. of 13 November 1989 to be interpreted as requiring only one specific warning to be printed on each cigarette packet, or as requir­ ing a greater number of specific warnings to — The Directive requires several warnings, be printed thereon? that is to say, at least two. Logically this means that Member States will be com­ plying with the Directive if they require more than two warnings.

(c) If the answer to Question (b) is that the aforesaid Community Directive in itself requires not more than one specific warning to be printed on each cigarette packet, may the national authority nevertheless require a 60. My understanding of the wording, as greater number of specific warnings to be construed, is that only one warning must be printed on each packet?' required, but also that more than one warn­ ing cannot be required.

58. Each of those questions is justified by reason of a linguistic ambiguity in Article 61. The reason for this is that any solution 4(2): the provision uses only the plural term which even merely allows Member States to 'warnings'. While the sense of the plural in require more than one warning would have the first indent is immediately clear (the ref­ the result that the number of warnings which erence there being to the 'warnings ... listed could lawfully be required could not be lim­ in the Annex'), uncertainty surrounds the ited in accordance with objective criteria. wording of the introductory clause and the Thus, what is lacking here is a framework of second indent, which refer merely to the provisions from which the assumption may

In Case C-222/91:

(1) Article 4(5) of Directive 89/622 does not permit Member States, in the case of tobacco products other than cigarettes, to require that the general warning laid down in Article 4(1) must cover at least 4 % of the surface on which it is printed.

(2) Article 4(2) of Directive 89/622 is to be interpreted as meaning that it requires one specific warning to be printed on each cigarette packet and that Member States may not require a greater number of such warnings to be printed on each packet.

In Case C-11/92:

Under Articles 3(3) and 4(4) of Directive 89/622, Member States must prescribe for all cigarette packets that the information on nicotine and tar yields and the warnings under Article 4(1) and (2) shall cover at least 4 % of the side of the packet in question. Member States may not impose a greater spatial requirement even if they confine this more stringent requirement to domestic production.

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