C-51/93

... with regard to the descriptions laid down for the various categories of crystal glass and to the characteristics of those categories the 2. The directive, which applies to products purpose of the Community provisions to be falling within Heading No 70.13 of the adopted is to protect both the buyer against Common Customs Tariff lays down rules on fraud and the manufacturer who complies the composition, characteristics of manufac­ with those provisions' (emphasis added). ture and labelling of such products. It is apparent from the preamble that the direc­ tive is in particular designed to harmonize the descriptions of the goods in order to facil­ itate the free movement of goods while at the same time safeguarding the interests of con­ sumers and manufacturers. 3. The descriptions are set out in Annex I to the directive. In that annex crystal glass products are divided into four categories. fr For each category the appropriate descrip­ Original language: Danish. 1 — OJ, English Special Edition 1969 (II), p. 599. Apart from the tion is given in column (b) in each of the adjustments made necessary as a result of the accession of Member States' languages. For each category, new Member States to the Community, the directive has not been amended. columns (d) to (g) set out the 'characteristics

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OPINION OF MR GULMANN — CASE C-51/93

of manufacture' (metal oxides, density and so (c) provides as regards both categoiy 3 and on) the goods in question must have in order category 4 goods: 'Only the description in to be described in the specified manner. the language or languages of the country in which the goods are marketed may be used'. 3

5. Article 3 of the directive provides that the 8. The case was brought by a Belgian said descriptions must not be 'used commer­ importer of category 3 goods against the cially for products which do not have the German producer and exporter of those corresponding characteristics' of manufac­ goods. The importer is alleging breach of the ture prescribed by the directive. contract of sale on the grounds that the exported goods are described in a manner incompatible with the requirement regarding the appropriate description. The German manufacturer, who according to the informa­ tion we have been given has never complied 4 with that requirement, contends that that requirement is unlawful as being contrary to the prohibition under Article 30 of the EEC 6. Column (c) in Annex I ('explanatory Treaty against measures having equivalent notes') provides as regards both category 1 effect to quantitative restrictions. and category 2 products: 'Description may be freely used, whatever the country of ori­ gin or the country of destination'. Column 3 — The Danish version of the directive is certainly incorrect in this respect since, unlike the versions in all the other lan­ guages, it refers only to 'language' and not 'languages'. The provision cited here is the 'correct' version. 2 — At the hearing the defendant in the main proceedings stated 4 — The German undertaking stated at the hearing that, like that technical developments have now made it possible to other undertakings in the sector, it has hitherto affixed to the produce crystal glass products without using lead and that goods the descriptions specified in column (c) in German, such glass can be of high quality. French and Enghsh.

12. The German Government has stated, referring inter alia to the preamble to the directive and the ordinary meaning of 'mar­ keted' in Community law, that the directive must envisage the country of first marketing, (2) If the directive is compatible with Arti­ which will generally signify that the descrip­ cle 30 of the EEC Treaty, must the tion must be given in the language of the words "pays ou la marchandise est com­ country of production; a requirement that mercialisée" and "Land, in den die Ware the language of the country in which the in den Verkehr gebracht wird" be con­ goods are sold to the consumer must be used strued as meaning the country of final would, according to the German Govern­ marketing or the country of initial mar­ ment, entail for the producers separate pro­ 5 keting of the goods?' duction, labelling and warehousing and thus higher costs as a result of which the directive would hinder the free movement of goods. The defendant in the main proceedings has 5 — The questions are in Dutch but use the French and German texts of the directive. taken the same view.

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OPINION OF MR GULMANN — CASE C-51/93

7 — Case C-315/92 Clinique Laboratories [1994] ECU I-317. 6 — See for example Joined Cases 80/77 and 81/77 Commission- 8 — See for example Case C-238/89 Pall Corp. [1990] ECR naires Réunis [1978] ECB. 927. I-4827, paragraphs 11 and 12.

I - 3884

MEYHUT v SCHOTT ZWIESEL GLASWERKE

16. It is indisputable and it has not been dis­ 19. Before I examine the actual problem puted in these proceedings that a language posed in this case, it may be appropriate to requirement such as that at issue constitutes make some general observations concerning a barrier to trade within the meaning the difficult questions that arise when the of Article 30. That is clear for example requirement of the free movement of goods 9 from the judgment in Case C-369/89 has to be reconciled with the requirements concerning a Belgian requirement on the underlying the obligation imposed on eco­ labelling of foodstuffs in the language of the nomic operators to give consumers specific linguistic region in which the products information concerning the goods marketed. were offered for sale in which the Court stated inter alia: 'The obligation exclusively to use the language of the linguistic region constitutes a measure having equivalent effect to a quantitative restriction on imports, prohibited by Article 30 of the Treaty' (paragraph 16). 20. That informational requirement may be imposed inter alia in order to make it possi­ ble for consumers to make an informed choice and in particular to handle the goods purchased in a responsible manner vis-à-vis themselves and their environment.

22. It can hardly be doubted that in the lat­ ter case it is normal that in connection with such an informational requirement it is either expressly provided or in any event implicitly presupposed that the information should be given in the language of the country con­ cerned.

25. Some legal acts specify that the informa­ 23. When Community rules contain require­ tion may or must be given in the official lan­ ments concerning certain information on or guage or languages of the country in which relating to goods, a decision is in principle the goods are marketed; for example: taken on the language in which such infor­ mation should be given. In their observations in this case the Council and Commission have pointed out that many different formu­ lations are used for the provisions setting out language requirements and they state that in each case it is specifically determined which formulation is right in the area concerned in order to reconcile the requirements relating to the free movement of goods and the requirements relating to the protection of — Directive 88/378/EEC on the approxima­ consumers. tion of the laws of the Member States 12 concerning the safety of toys, and

11 — OJ 1991 L 175, p. 35. 12 — OJ 1988 L 187, p. 1. Article 11(5) of the directive provides: 'Annex IV sets out the warnings and indications of precau­ tions to be taken during use that have to be given for cer­ tain toys. Member States may require that these warnings and precautions, or some of them, together with the infor­ 24. There are instances where the Commu­ mation specified in paragraph 4, be given in their own national language or languages when the toys are placed on nity measure itself lists in all the Community the market'.

In 1992 the European Parliament adopted a Resolution on consumer protection and pub­ lic health requirements in the internal market in which it stated inter alia that 'consumers will enjoy proper protection only if all infor­ mation is always available in their own lan­ 15 26. Directive 79/112 was in point in the guage'. abovementioned judgment in Piageme in which the Court held that: 'Article 30 of the EEC Treaty and Article 14 of Direc­ tive 79/112 preclude a national law from requiring the exclusive use of a specific lan­ guage for the labelling of foodstuffs, without allowing for the possibility of using another language easily understood by purchasers or 28. In 1993 Mr Bangemann, a Member of the Commission, stated in answer to a ques­ tion from Members of the European Parlia­ 13 — OJ 1992 L 113, p. 8. Article 8 provides: ment: 'The Commission is therefore cur­ 'The package leaflet must be written in clear and under­ standable terms for the patient and be clearly legible in the rently considering the conclusions to be official language or languages of the Member State where the medicinal product is placed on the market. This provi­ drawn from the judgment' in Piageme. He sion docs not prevent the package leaflet being printed in several languages, provided that the same information is given in all the languages used.' 14 — Council Directive 79/112/EEC of 18 December 1978, OJ 1979 L 33, p. 1. Article 14 provides: 15 — OJ 1992 C 94, p. 217, recital V. Point I 10 (c) (gg) of the "... The Member States shall, however, ensure that the sale Resolution concerning food labelling calls on the Commis­ of foodstuffs within their own territories is prohibited if the sion 'to make it compulsory for all information which must particulars provided in Article 3 and Article 4(2) do not be provided obligatorily or which is of use to the consumer appear in a language easily understood by purchasers, to be given in the consumer's language in accordance with unless other measures have been taken to ensure that the EC legislation in force, and where applicable, national leg­ purchaser is informed. This provision shall not prevent islation, taking into account the linguistic features of the such particulars from being indicated in various languages.' area in which the product is sold'.

31. In their observations the plaintiff at the main proceedings and the German Govern­ ment claim that the note at issue leads to obstacles to trade which are not necessary in 29. It should finally be observed that the order to protect consumers and traders. The argument has been put forward that consum­ Council, Commission and French Govern­ ers might be confronted with undesirable ment on the other hand contend that that legal uncertainty if the legal position were requirement is necessary in order to prevent that it is in principle for traders to determine consumers from being misled and to protect whether the requisite information is given in traders against unfair competition because of a language easily comprehensible to the pur­ the special danger of misuse of descriptions chaser or whether the information can be in order to mislead consumers as to the qual­ given to the purchaser by other means. 17 ity of the goods sold. The danger is, they assert, a real one because of the significant differences in price between goods in the var­ ious categories and because the goods are ones with which consumers are not com­ monly acquainted.

30. The Community rules at issue in this case are very specific as regards the goods covered. But, like the abovementioned rules regarding foodstuffs, they are clearly designed to ensure the free movement of goods while respecting the interest of con­ sumers.

32. For better comprehension of the prob­ lems which confronted the Community leg­ 16 — OJ 1993 C 95, p. 7. islature, it is necessary to set out the descrip­ 17 — See the final report on Current principles and provisions concerning language demand for consumer related legisla- tions laid down in the directive. For the sake tion within the European Community drawn up by the of clarity only the descriptions in the four Bureau Européen des Unions de Consommateurs in August 1993. languages concerned when the directive was

33. It will be seen that all the descriptions in 35. As mentioned above the rule under the categories 1 and 2 contain the word 'crystal' directive is that producers can sell category 1 and 2 goods anywhere in the Community provided that the specified description is used (whether only one or all the descrip­ 18 — In Belgium the description is 'Kristallinglas'. 19 — The corresponding descriptions in the other languages arc: tions are used and whether or not the description in the language of the country of Categoiy 1 Category 2 marketing is used). Category 1 goods pro­ English Full lead crystal 30% Lead crystal 24% duced in Germany may thus — if the pro­ Danish Krystal 30% Krystal 24% ducer so wishes — be marketed throughout Spanish Cristal superior 30% Cristal al the Community as 'Hochbleikristall 30%'. plomo 24% Portuguese Cristal de chumbo Cristal de chumbo superior 30% 24% Greek (transit- Cristalla ipsiüs periaek- Molivduh(r)a cris- terated into La- tikotitos cae molivdo talla tin characters)

Categoiy 3 Category -f English Crystal glass, crystallin Crystal glass, Because of the danger of misleading and crystallin unfair marketing of categories 3 and 4 goods Danish Krystallin Krystallin the rules under the directive are quite differ­ Spanish Vidrio sonoro superior Vidrio sonoro ent for those goods. First, the description in Portuguese Vidro sonoro superior Vidro sonoro the language of the country in which the Greek (transliterated into La- Ialocristalla tin characters) goods are marketed must be used and, sec­ Ialocristalla ond, no other description may be used.

37. The second limb of the requirement, that solely the description in the language of the country of marketing may be used, undoubt­ edly poses real practical problems for trad­ ers.

40. There are greater doubts as to the danger 38. The Community legislature considered of consumers being misled when the word that that part of the requirement is also 'krystallin' is used. The question is whether for example an Italian or Spanish consumer might be misled when buying French- 20 — In such a case it must be regarded as sufficient to require produced category 3 goods to which is that a language be used whose spelling differs only slightly from that of the consumer. affixed, in addition to the correct Italian or

I - 3890

MEYHUI v SCHOTT ZWIESEL GLASWERKE

Spanish description, also the French descrip­ 43. It may thus be held that there will be tion 'cristallin'. For the consumer to be mis­ cases where the application of the note will led it is necessary first that he is not given entail obstacles to trade which, taken in iso­ sufficient guidance by the use of the correct lation, are not justified in order to protect Italian or Spanish description and second against unfair competition and for the mis­ that use of the word 'cristallin' gives rise to leading of consumers, but there are also sit­ the risk of the consumer being led to believe uations where the contrary will be the case. that the goods are crystal in category 1 or 2.

44. The question therefore arises whether it 41. It is not easy to form a reasoned view on is possible for the Community legislature to the matter. In those circumstances it must be adopt alternative rules which ensure that the appropriate to accept the assessment which concerns underlying the rule in the directive underlies the rules adopted by the Commu­ can be safeguarded while at the same time nity legislature. not obstructing the free movement of goods in cases where there is no justification for 22 it.

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takes better account of the requirements 47. That does not necessarily signify that inherent in the establishment of the internal each of the descriptions in the Member market for the free movement of goods States' languages may be used when market­ while at the same time protecting traders ing goods in all the Member States. against unfair competition and preventing consumers from being misled.

Until the Council has adopted other provi­ sions it will be possible for the Member States, on the basis of the general rules 46. On the basis of the foregoing I shall sug­ applying in the States, to adopt the necessary gest that the Court hold that the disputed precautions as regards marketing of cate­ note in column (c) is invalid as regards cate­ gory 3 and 4 goods if the description used is gories 3 and 4 goods. liable to mislead consumers.

Conclusion

48. On the basis of the foregoing I propose that the Court give the following answer to the national court's questions: