C-315/92

JUDGMENT OF 2.2.1994 — CASE C-315/92

JUDGMENT OF THE COURT (Fifth Chamber) 2 February 1994 *

In Case C-315/92,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Landgericht Berlin for a preliminary ruling in the proceedings pending before that court between

Verband Sozialer Wettbewerb eV

and

THE COURT (Fifth Chamber),

composed of: J. C. Moitinho de Almeida, President of the Chamber, D. A. O. Edward, R. Joliét, G. C. Rodríguez Iglesias and F. Grévisse (Rapporteur), Judges,

Advocate General: C. Gulmann, Registrar: H. A. Rühi, Principal Administrator,

after considering the written observations submitted on behalf of:

— Verband Sozialer Wettbewerb eV, the plaintiff in the main proceedings, by Manfred Burchert, Rechtsanwalt, Berlin,

— Clinique Laboratories SNC and Estéé Lauder Cosmetics GmbH , the defend­ ants in the main proceedings, by Kay Jacobsen, Rechtsanwalt, Berlin,

after hearing the Opinion of the Advocate General at the sitting on 29 September 1993,

gives the following

Judgment

1 By order of 30 June 1992, which was received at the Court on 22 July 1992, the Landgericht (Regional Court) Berlin referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Articles 30 and 36 of that Treaty.

2 That question was raised in proceedings between a trade association, the Verband Sozialer Wettbewerb eV, and the companies Clinique Laboratories SNC and Estéé Lauder Cosmetics GmbH concerning the use of the name 'Clinique' for the mar­ keting of cosmetic products in the Federal Republic of Germany.

3 Those companies are, respectively, the French and German subsidiaries of the United States company Estéé Lauder and market cosmetics manufactured by that company. Those products have been sold for many years under the name 'Clinique' except in the Federal Republic of Germany, where they have been mar­ keted, since their launch in 1972, under the name 'Linique'. With a view to reduc­ ing packaging and advertising costs arising from this difference in names, the com-

'Are Articles 30 and 36 of the EEC Treaty to be interpreted as precluding the application of a national provision on unfair competition under which the impor­ tation and marketing of a cosmetic product which has been lawfully manufactured and/or lawfully marketed in another European country may be prohibited on the

I-333

JUDGMENT OF 2.2.1994 — CASE C-315/92

ground that consumers would be misled by the product name — Clinique — in that they would take it to be a medicinal product, where that product is lawfully marketed without any objection under that name in other countries of the Euro­ pean Community?'

7 It should be noted at the outset that the Court, which is competent under Article 177 of the Treaty to provide courts of the Member States with all the ele­ ments of interpretation of Community law, may deem it necessary to consider provisions of Community law to which the national court has not referred in its question (judgment in Case C-241/89 SARPP v Chambre Syndicale des Raffineurs et Conditionneurs de Sucre de France [1990] ECR1-4695, paragraph 8) . It is there­ fore necessary to determine which provisions of Community law are applicable to the main proceedings in this case before examining whether those provisions pre­ clude the use of the name 'Clinique' in the circumstances described by the national court.

8 It appears from the case-file that the national provisions at issue, that is to say, Paragraph 3 of the UWG and Paragraph 27 of the LMBG, correspond to certain provisions in the Community directives on the approximation of the laws of the Member States concerning misleading advertising and cosmetic products.

12 As the Commission has correctly pointed out, however, that directive must, like all secondary legislation, be interpreted in the light of the Treaty rules on the free movement of goods (see, in particular, the judgment in Case C-47/90 Delhaize and Le Lion v Promalvin and AGE Bodegas Unidas [1992] ECR I-3669, paragraph 26).

13 In that connection, the Court has recently ruled that Article 30 of the Treaty pro­ hibits obstacles to the free movement of goods resulting from rules that lay down requirements to be met by such goods (such as requirements as to designation, form, size, weight, composition, presentation, labelling, packaging), even if those rules apply without distinction to all products, unless their application can be jus­ tified by a public-interest objective taking precedence over the free movement of goods (judgment of 24 November 1993 in Joined Cases C-267/91 and C-268/91 Keck and Mithonard, paragraph 15).

14 The rules contained in Directive 76/768 include the obligation set out in Article 6 (2) (which was transposed in German law by Paragraph 27 of the LMBG), which requires Member States to take 'all measures necessary to ensure that in the label­ ling» presentation for sale and advertising of cosmetic products, the wording, use of names, trade marks, images or other signs, figurative or otherwise, suggesting a characteristic which the products in question do not possess, shall be prohibited'.

I-335

JUDGMENT OF 2.2.1994 — CASE C-315/92

15 Article 6 (2), which is contained in a directive designed, as is plain in particular from the second and third recitals in its preamble, to ensure free trade in cosmetic products, thus defines the measures to be taken in the interests of consumer pro­ tection and fairness of commercial transactions, which are included among the imperative requirements specified in the case-law of the Court in the context of the application of Article 30 of the Treaty. It also pursues the objective of protecting the health of humans, within the meaning of Article 36 of the Treaty, in so far as misleading information as to the characteristics of such products may have an effect on public health.

20 In order to determine whether, in preventing a product being attributed with char­ acteristics which it does not have, the prohibition of the use of the name 'Clinique' for the marketing of cosmetic products in the Federal Republic of Germany can be justified by the objective of protecting consumers or the health of humans, it is necessary to take into account the information set out in the order of reference.

21 In particular, it is apparent from that information that the range of cosmetic prod­ ucts manufactured by the Estéé Lauder company is sold in the Federal Republic of Germany exclusively in perfumeries and cosmetic departments of large stores, and therefore none of those products is available in pharmacies. It is not disputed that those products are presented as cosmetic products and not as medicinal products. It is not suggested that, apart from the name of the products, this presentation does not comply with the rules applicable to cosmetic products. Finally, according to the very wording of the question referred, those products are ordinarily mar­ keted in other countries under the name 'Clinique' and the use of that name appar­ ently does not mislead consumers.

22 In the light of these facts, the prohibition of the use of that name in the Federal Republic of Germany does not appear necessary to satisfy the requirements of consumer protection and the health of humans.

I-337

JUDGMENT OF 2.2.1994 — CASE C-315/92

23 The clinical or medical connotations of the word 'Clinique' are not sufficient to make that word so misleading as to justify the prohibition of its use on products marketed in the aforesaid circumstances.

Articles 30 and 36 of the EEC Treaty and Article 6 (2) of Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the

I-338

VERBAND SOZIALER WETTBEWERB v CLINIQUE LABORATORIES AND ESTEE LAUDER

Member States relating to cosmetic products must be interpreted as precluding a national measure which prohibits the importation and marketing of a prod­ uct classified and presented as a cosmetic on the ground that the product bears the name 'Clinique'.

Moitinho de Almeida Edward Joliét

Rodríguez Iglesias Grévisse