C-315/92

— at the time when the products were launched in Europe at the beginning of the 1970s, Estéé Lauder decided to mar­ ket them in Germany under the name

— the defendants have argued that a ban would make it impossible for them to * Original language: Danish. import cosmetics manufactured under the

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Clinique name in England or Belgium of a national provision on unfair competition and that such a ban would be contrary to under which the importation and marketing Article 30 of the EEC Treaty; of a cosmetic product which has been law­ fully manufactured and/or lawfully marketed in another European country may be pro­ hibited on the ground that consumers would be misled by the product name — Clinique — the national court takes the view that 'the — in that they would take it to be a medici­ claims in the application are pertinent nal product, where that product is lawfully since it is possible that an appreciable marketed without any objection under that proportion of the sector of the market name in other countries of the European concerned might attribute prophylactic Community?' or curative medical effects on the skin to the Clinique range of cosmetics';

4. Paragraph 3 of the UWG provides that 'Injunction proceedings may be brought — the national court takes the view that it against anyone who, in the course of trade may be necessary for 'evidence thereof ... and for purposes of competition, provides to be obtained by a market research sur­ misleading information on, in particular, ..., vey commissioned by the court' and that with a view to securing an end to the dis­ 'if it were to be confirmed that some 10 semination of the information in question'. to 20% of consumers would be misled, it would be necessary to ban the use of the name Clinique';

6. It may be noted that the provisions relied on by the plaintiff in the main proceedings are general clauses, which means that the 8. The question referred concerns the inter­ specific content of the provisions has to be pretation of Article 30 of the EEC Treaty on determined by case-law. On the basis of the the prohibition of restrictions on intra- UWG, which dates from 1909, there has Community trade and the significance of arisen in Germany 'within the parameters of that provision for the application to a spe­ the general clauses contained in Paragraphs 1 cific case of the prohibition of misleading and 3 of the UWG, in an interplay between information laid down in the German legis­ case-law and legal writing, a closely woven lation. fabric of intersecting case situations which at least to some extent provide consumers, undertakings and society on the whole with legal certainty and leads to foreseeability in 2 matters relating to competition'.

9. While the Court cannot, in proceedings for a preliminary ruling, take a position on how a national court should decide a par­ ticular case, it can provide that court with all 7. It is undoubtedly correct that judicial appropriate material on the interpretation of decisions in Germany have — in contrast to Community law to enable it to determine, the position in most of the other Member when giving its decision, whether the States — contributed to the imposition of a national provisions are compatible with relatively strict standard with regard to what Community law. constitutes misleading information and that this can be said to have secured a relatively high level of protection for the interests of consumers and others which the legislation is designed to protect. This applies not least in the context of information which may be

It is, however, necessary to bear in mind that tising. Article 2 of that directive defines the question in this case is not whether misleading advertising and is linked to national legislation is generally compatible Article 3, which provides that in determining with Article 30; rather, the question concerns whether advertising is misleading account the application of national rules to a particu­ must be taken of all its features. Article 4 lar legal situation requiring a specific assess­ requires Member States to ensure 'that ment of whether consumers are misled in the adequate and effective means exist for the particular circumstances. It would in my control of misleading advertising in the inter­ opinion be wrong for the Court, in a case ests of consumers as well as competitors and such as this, to link its interpretation of the general public'. Finally, Article 7 pro­ Article 30 too closely to the particular facts vides that the directive does not preclude of the case. If it were to do so, it would be 'Member States from retaining or adopting running the risk of interpreting Article 30 in provisions with a view to ensuring more the light of facts which have been inad­ extensive protection for consumers'. equately clarified before it or of taking a position on the particular circumstances of the case, which is not its task but that of the national court. In addition, it would be beyond the capacity of the Court, through its interpretation of Article 30, to assume the task of ensuring a uniform application of general provisions such as those in this case. Under the system of the Treaty, that task Another is Council Directive 76/768/EEC devolves on the national courts, which are on the approximation of the laws of the responsible for ensuring the correct applica­ Member States relating to cosmetic prod­ tion of Community law. 5 ucts, which, with the particular objective of ensuring free trade in those products, con­ tains rules on their composition, labelling and packaging. Articles 6 (2) and 7 (1) of that directive, which are relevant to the present case, provide respectively as follows:

13. The national court was in my opinion correct to ask the Court to interpret 6 11. The German Government has pointed Article 30 of the EEC Treaty. out that the provisions of those two direc­ tives have been implemented in German law by way of, inter alia, the above rules on mis­ leading information, and that any prohibi­ tion under the German rules will be consis­ tent with the directives. It argues in that connection that the question referred to the Court must be answered on the basis of the 14. The reply to the question in the refer­ directives inasmuch as measures consistent ence must therefore be based on the estab with the directives cannot a priori infringe Article 30 of the EEC Treaty unless the Community rules in question are themselves at variance with Article 30. 6 — The Court also dismissed a (at least in some respects) similar argument by the German Government in its judgment in Case C-238/89 Pall Corp. v P. ]. Dahlbausen [1990] ECR I- 4827, which concerned the legality of a ban imposed under Paragraph 3 of the UWG on the marketing of products bear­ ing the symbol (R) next to the trade mark. The Court dis­ missed the German arguments based on the directive on mis­ leading advertising by stating that 'since the prohibition at issue nas been found not to be justified by imperative requirements relating to consumer protection or fair trading, 12. That view, in my opinion, is incorrect. It it can also find no basis in the aforementioned directive. That directive confines itself to a partial harmonization of the oversimplifies the problem and fails to take national laws on misleading advertising by establishing, firstly, minimum objective criteria for determining whether proper account of the nature of the Commu­ advertising is misleading, and, secondly, minimum require­ nity obligations which the two directives ments for the means of affording protection against such advertising'. impose on Member States. Those obligations The Court's judgment in Case C-373/90 Complaint against are couched in very general terms and X [1992] ECR I-131, which concerned the legality of adver­ tisements for cars introduced into France by way of parallel require national legal systems to protect con­ imports, cannot be cited in support of the German Govern­ ment's argument, even though the Court concentrated its sumers and others against misleading infor­ reply to the question referred in that case on an interpreta­ mation within specified areas. Thus, the tion of the directive on misleading advertising. The Court took the view that the question whether the disputed sales directive on misleading advertising lays practice was consistent with the relevant Community rules was to be understood as a question on the interpretation of down only relatively vague criteria as to the directive on misleading advertising.

— Obstacles to intra-Community trade resulting from disparities between provi­ 17. As we know, the Court has also held sions of national law must be accepted in that obstacles to trade can be justified on the so far as such provisions, applicable to grounds set out in Article 36 of the EEC domestic and to imported products with­ Treaty or in the Court's case-law only if out distinction, may be justified as neces­ common rules have not been laid down at sary in order to satisfy imperative Community level in the areas in question. 8 requirements relating, inter alia, to con­ sumer protection and fair trading. How­ ever, in order to be permissible, such pro­ visions must be proportionate to the objective pursued and that objective must not be capable of being achieved by meas­ ures which are less restrictive of intra- 7 Community trade'. As already mentioned, there are common rules relevant to the question referred in this case, but in my opinion they do not preclude justifying the present measure in restraint of trade on the basis of the so-called 'rule of reason'.

15. The order making the reference is based on the assumption, which in any event is 8 — See the Court's judgment in Case 120/78 Rewe-Zentral v Bundesmonopolverwaltimg für Branntwein [1979] ECR649 and most recently its judgment of 18 May 1993 in Case C-126/91 Schutzverband gegen Unwesen in der Wirtschaft v 7 — Judgment in Case C-238/89 Pall Corp. cited above, para­ Yves Rocher, at paragraph 12, which concerns rules in the graphs 11 and 12. UWG on comparative advertising.

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19. The Community rules in this case do not 9 — It is appropriate in this connection to refer to Article 2 of Council Directive 79/112/EEC on the approximation of the therefore in my opinion preclude the possi­ laws of the Member States relating to the labelling, presen­ bility of justification. However, the signifi­ tation and advertising of foodstuffs for sale to the ultimate consumer (OJ 1979 L 33, p. 1), which provides that prod­ cance of those provisions (and this is the real ucts which arc not medicinal products must not under Community law give the impression that they are medicinal thrust of the abovementioned arguments of products. Article 2 (1) (b) of the directive provides that the labelling and methods of packaging used must not attribute the German Government) is that they show to any foodstuff the property of preventing, treating or cur­ that great importance is attached to the ing a human disease, or refer to such properties. I agree with the German Government in its argument that a similar desire to protect consumers and others rule must be read into Article 6 (2) of the cosmetics direc­ tive. against misleading information in connection 10 — See, most recently, paragraph 12 of the judgment in Case with the marketing of goods and services, C-126/91 Yves Rocher, cited above in footnote 8.

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VERBAND SOZIALER WETTBEWERB v CLINIQUE LABORATORIES AND ESTEE LAUDER

under Article 36 of the Treaty and the be misled as to the characteristics of the Court's case-law may properly be taken into products in question. consideration by the Member States — even though the rules adopted may give rise to barriers to trade. 11

27. A specific ban would also, in my opin­ ion, not be contrary to the directive on mis­ leading advertising. One reason is simply that the directive does not prevent the Mem­ It may be appropriate in this connection to ber States from imposing a more stringent refer to an argument submitted to the Court level of protection than that laid down in the by the defendants in the main proceedings. directive. But I also do not consider that They contended that nothing can justify the such a result would in principle be contrary view expressed that German consumers to any of the specific minimum requirements require a greater level of protection than which the directive imposes on the legisla­ 1 13 consumers in the other Member States. 2It tion of Member States. should be noted in this connection that, as just mentioned above, under Community law it is primarily a matter for national leg­ islatures to determine the level of protection desired in each country. Moreover, as already 28. That does not, however, rule out the mentioned, there may be specific differences possibility that requirements may be derived in linguistic, social and cultural conditions from Community law for the application by which have the result that something which the German courts of the prohibitions in the does not mislead consumers in one country two national provisions on misleading infor­ may do so in another. mation.

Conclusion

29. On the basis of the above considerations, I propose that the Court reply to the question referred in the following terms:

Article 30 of the EEC Treaty must be interpreted as meaning that it does not in principle preclude the application of national provisions on unfair competition to prohibit the marketing of a cosmetic product on the ground that consumers might be misled by the name of the product into believing that the product has medicinal characteristics, even though the product is lawfully marketed in other Member States under the name in question.

The national court must, however, when applying national provisions, ensure that their application will not lead to obstacles to trade between Member States, unless that application is imperative for consumer protection and fair trading, and unless the measure chosen is proportionate to the objective pursued and that objective can­ not be achieved by measures which are less restrictive of intra-Community trade.

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VERBAND SOZIALER WETTBEWERB v CLINIQUE LABORATORIES AND ESTEE LAUDER