C-470/93
ECLI:EU:C:1995:87
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VEREIN G E G E N UNWESEN IN H A N D E L U N D GEWERBE KÖLN ν MARS
OPINION OF ADVOCATE GENERAL LÉGER delivered on 28 March 1995 *
1. Since delivery of the judgment in the Keck aging of marketed products concern a prod- case on 24 November 1993 ' national rules uct characteristic as referred to in paragraph applicable without distinction '... restricting 15 of the Keck judgment or a selling arrange- or prohibiting certain selling arrangements ment within the meaning of paragraph 16 of ..." do not constitute measures having an that judgment? effect equivalent to quantitative restrictions within the meaning of the Dassonville judg- ment, 2 '... so long as those provisions apply to all relevant traders operating within the national territory and so long as they affect in the same manner, in law and in fact, the marketing of domestic products and of those 4. In his Opinion in the Hünermund case, 5 from other Member States'. 3On the other Mr Advocate General Tesauro felt that this hand, rules making the marketing of prod- distinction, applied to the field of advertis- ucts subject to certain conditions (such as ing, would give rise to difficulties of inter- those relating to designation, form, size, pretation which could only be resolved case weight, composition, presentation, labelling, by case. 6 packaging) are covered by Article 30 of the EEC Treaty. 4
5. The question referred to the Court by the 2. What is meant by the term 'selling Landgericht Köln is an illustration of this. arrangement'?
6. The Mars company markets in Germany 3. Does it cover rules regulating advertising? ice-cream bars of the Mars, Snickers, Bounty Do rules relating to advertising on the pack- and Milky Way brands which it imports from France where they are lawfully
* Original language: French. 1 — Joined Cases C-267/91 and C-26S/91 Bernard Keck and 5 — Case C-292/92 Hiinermund and Others ν Landesapothek Daniel Mithouard [1993] ECR 1-6097. erhammer Baden-Württemberg [1993] ECR I-67S7. 2 — Judgment in Case S/74 Dassonville [1974] ECR 837. 6 — Paragraphs 22 and 24 of the Opinion. See also Stuyck, J.: 3 — Paragraph 16. note on the Keck judgment in Cahiers de Droit Européen, 4 — Paragraph 15. 1994, Nos 3-4, p. 431, 451.
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produced and packaged with uniform pre- 9. It bases its action on two grounds: sentation for distribution throughout Europe.
1) that that presentation is liable to mislead consumers who would expect the price at which the goods are offered to be the same as that under the old presentation;
7. The packaging is marked '+10%'.
2) that the '+10%' marking gives the impression that the product has been increased by a quantity corresponding to the coloured part of the new packaging. The visual highlighting of the '+10%' marking is much greater than the increase in volume which it represents. 8. The Verein gegen Unwesen in Handel und Gewerbe (Association against Improper Practices in Trade and Businesses) is seeking an injunction against the Mars company pur- suant to Paragraph 3 of the Gesetz gegen den unlauteren Wettbewerb (Law on Unfair Competition, hereinafter 'the UWG'), which 10. The question referred by the Landger- provides that: icht Köln is whether, where 'ice-cream snacks' lawfully produced and marketed in a Member State in the presentation described in the application, the principle of the free movement of goods allows those products to be prohibited from being marketed in that presentation in another Member State on the two grounds raised by the plaintiff associa- tion. 'Whoever in commercial transactions for the purposes of competition gives misleading information about, in particular, the quality, origin, method of manufacture or price cal- culation of specific goods ... or of the whole offer, or about price lists, the nature or source of the supply of goods ... or about the 11. I will consider two points in turn. Does reason or purpose of the sale, or about the a prohibition of marketing of ice-cream bars quantity of stocks held may be restrained by bearing the promotional marking '+10% ice- action from continuing to provide such cream' on their wrappers constitute an information'. obstacle to trade between Member States and
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does it fall within the scope of application of 15. By requiring an imported product to be Article 30 of the Treaty? If this is the case, is repackaged or its substantive qualities to be such a prohibition justified on the grounds modified in order for it to be sold in the advanced by the plaintiff association? State of importation, such rules constitute an obstacle to trade by making imports more costly or more difficult and therefore favour ing, or creating a competitive advantage for, the domestic industry of that State.
I — The scope of application of Article 30 of the Treaty
16. In the second case, the national rules have no link with imports and apply to com 12. Paragraph 3 of the UWG is a rule which mercial activity in general. They affect is applicable without distinction to national imports only indirectly in that they may lead and imported products alike. It allows a pro to a reduction or compression of sales but hibition to be imposed on the marketing in they do not affect the marketing of products Germany of ice-cream bars bearing the from other Member States in a different way advertising which I have mentioned. than the marketing of domestic products. They do not prevent their access to the mar ket. They impede imports no more than they impede domestic products. I would refer, for example, to rules governing the opening of shops on Sunday. 7
13. Does that prohibition relate to the char acteristics of the product, within the meaning of paragraph 15 of the Keck judgment, or to selling arrangements within the meaning of paragraph 16 of that judgment?
17. Provisions on advertising are divided between the two cases. Whereas some rules have only an indirect link with free move ment and escape application of Article 30 of the Treaty, others are indissociable from the 14. The first case, remember, concerns rules presentation of the product and are caught which, in the absence of harmonization, by that article. require a product to have a certain presenta tion, a certain composition or certain intrin sic qualities which are different from those 7 — See the judgment in Joined Cases C-69/93 and required in the Member State of origin. C-258/93 Punto Casa and PPV [1994] ECR 1-2355.
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18. The situation is this: 21. Similarly, the Court held, on the same grounds, 9 in its judgment of 9 February 1995 in Case C-412/93 Société d'importation Edouard Leclerc-Siplec, 10 that the French decree which bans televised advertising in the distribution sector '... concerns selling arrangements since it prohibits a particular form of promotion (televised advertising) of a particular method of marketing products 19. Some regulate commercial activity in (distribution)'. 11 general and have no link with imports. They do not prevent marketing of the product itself under a uniform presentation and with uni- form characteristics — those imposed by the Member State of origin — throughout the Community. They do not affect the func- tioning of the internal market. They reflect a 22. Other rules on advertising, however, political choice: what are the limits to be affect sales of imported products to a greater placed on advertising? extent than sales of domestic products and are likely to impede intra-Community trade.
23. This is certainly the case with a prohibi- tion of advertising appearing on product 20. Thus, since the Keck judgment, the packaging. 12 First, the importer will be Court has held in its judgment in the Hiiner- forced to modify the presentation, packaging mund case, cited above, that Article 30 of the and promotional markings appearing on the Treaty does not apply to a rule of profes- product in order to comply with the legisla- sional conduct, laid down by the pharma- tion of the State of importation, which will cists' professional body in a Member State, mean that he must bear additional costs which prohibits pharmacists from advertis- which are not borne by the domestic pro- ing pharmaceutical products outside the ducer in that State. Secondly, he will be pharmacy. Such a rule constitutes a selling obliged to arrange separate distribution arrangement within the meaning of para- channels and to make sure that products graph 16 of the Keck judgment in so far as '... bearing the promotional words or marks in the application of such rules to the sale of question are not marketed on the territory of products from another Member State meet- the State in which the prohibition applies. 13 ing the requirements laid down by that State is not by nature such as to prevent their access to the market or to impede access any 9 — Paragraph 21. more than it impedes the access of domestic 10 — Case C-412/93 [1995] ECR 1-179. products'. 8 11 — Paragraph 22 of the judgment. 12 — See paragraph 20 of the Opinion of Advocate General Van Gerven in Joined Cases C-401/92 and C-402/92 Tanksta- tion 't Heukske and Boermans [1994] ECR 1-2199. 13 — See, by analogy, paragraph 13 of the judgment in Case- 8 — Paragraph 21. 238/89 Pall [1990] ECR 1-4827.
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24. Even in the case-law prior to the Keck State of origin constitutes an obstacle to judgment the principle was clearly laid down intra-Community trade. The Court held in that the obligation to mark a product with fact that information, in so far as it might require the manufacturer or the importer to alter the product's presentation, is apt to make the marketing of the product in certain Member States more difficult and therefore has a restrictive effect on trade. 14 'The fact that by reason of that prohibition the undertaking in question is obliged in that Member State alone to market its products under a different name and to bear additional packaging and advertising costs demon strates that this measure does affect free 25. In its judgment in the Pall case, 15 the trade'. 18 Court held that a prohibition in a Member State against using the symbol (R) beside the trade mark in order to indicate that the trade mark was registered constituted an obstacle '... because it can force the proprietor of a trade mark that has been registered in only one Member State to change the presentation 27. The Court went on to conclude that of his products according to the place where Articles 30 and 36 of the EC Treaty and it is proposed to market them and to set up Article 6(2) of Council Directive separate distribution channels in order to 76/768/EEC of 27 July 1976, 19 precludes a ensure that products bearing the symbol (R) national measure which prohibits the impor are not in circulation in the territory of tation and marketing of a product classified Member States which have imposed the pro and presented as a cosmetic on the ground hibition at issue'. 16 that the product bears the name 'Clinique'.
26. Recently, in its judgment in the 'Clin ique' case, 17 the Court held that the name of 28. The Pall and 'Clinique' cases concerned a product is one of its characteristics within prohibitions of distribution — based, as our the meaning of paragraph 15 of the Keck case, on the UWG — owing to the different judgment. A prohibition of using in the State presentation of the products. 2 0 This is also so of importation a name which is lawful in the in the present case. The '+10% ice-cream' marking is both informative and promo-
14 — Judgments in Case 27/80 Fietje [1980] ECR 3839, paragraph 10, and Case 94/82 Kikvorsch [1983] ECR 947, paragraph 18 — Ibid-, paragraph 19, my emphasis. 10. 19 -— Directive 76/768/EEC on the approximation of the laws of 15 — Cited above, in footnote 13. the Member States relating to cosmetic products (OJ 16 — Paragraph 13. 1976 L 262, p. 169). 17 — Case C-315/92 Verbund Sozialer Wettbewerb v Clinique 20 — See the Commission's observations, p. 7 of the French Laboratoires and Estéé Lauder [1994] ECR 1-317. translation.
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tional. It appears on the packaging of the from one Member State to another or to dis- product itself. Some of the wrappers at issue continue a scheme which he considers to be in the main proceedings are printed in five particularly effective may constitute an languages. There is therefore no special pack- obstacle to imports even if the legislation in aging for the German market. It is only if the question applies to domestic products and '+10%' marking is prohibited by the Ger- imported products without distinction'. 22 man legislation that special wrapping for that State is required. 21 Prohibiting such a mark- ing would therefore mean that the product would have to be repackaged and specific packaging and promotional markings used for Germany. The impediment to trade is therefore obvious. 31. That very broad formulation has cer- tainly allowed rules on selling arrangements which, under paragraph 16 of the Keck judg- ment, now fall outside the ambit of Article 30 of the Treaty, to be caught by that article.
29. As one can see, not all rules governing advertising are to be put in the category of those concerning selling arrangements. One can therefore understand why the Keck judg- II — The grounds of justification ment excludes only certain selling arrange- ments from the scope of Article 30.
32. The Court has consistently held that: 30. The distinction made in the Keck judg- ment strikes down the formula which the Court had applied to many sets of national rules governing advertising:
'... in the absence of common rules relating to marketing, obstacles to the free movement
'The possibility cannot be ruled out that to 22 — Paragraph 15 of the judgment in Case 286/81 Oosthoek [1982] ECR 4575 on the prohibition of offering goods for compel a producer either to adopt advertis- sale with free gifts. See also the judgment in Case ing or sales promotion schemes which differ 382/87 Buet and EBS [1989] ECR 1235 on the banning of doorstep selling of educational material; paragraph 7 of the judgment in Case C-362/88 GB-INNO-BM [1990] ECR Ι-667; paragraph 10 of the judgment in Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad Exterior et Publivia [1991] ECR 1-4151 and paragraph 10 of the judg 21 — O n this point, see the defendant's observations, point Ι-1. ment in Case C-126/91 Yves Rocher [1993] ECR Ι-2361.
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of goods within the Community resulting improvement in the 'quantity/price' relation from disparities between national laws must ship, which would explain the promotional be accepted in so far as such rules, applicable campaign launched by Mars. to domestic and imported products without distinction, may be justified as being neces sary in order to satisfy mandatory require ments relating inter alia to consumer protec tion or the fairness of commercial 23 transactions'. 36. Secondly, the consumer would be deceived by the dimensions of the band marked '+10% ice-cream', which covers more than 10% of the total surface of the wrapper. 33. Those mandatory requirements may be accepted only if two conditions are met: the rules in question must be proportional to the 24 aim in view and that aim must be incapa ble of being achieved by measures less restrictive of intra-Community trade. 2 5 37. Let us examine those two points in turn.
34. The prohibition in question would be justified on two grounds. — A —
35. First, the '+10% ice-cream' marking would mislead the consumer who might rea 38. First, the national court considers that sonably believe that the price has remained such a promotional offer makes sense only if the same in spite of the increase in the quan it is not accompanied by a price increase. tity for sale, in short that there would be an Such a promotion would have no point if the increase in volume were to entail a propor tionate increase in price: '... die nur geringfü- gig geändert Rezeptur (ist) bei höherem Preis 23 — Paragraph 12 of the judgment in the Yves Rocher case, cited in the previous footnote. See also paragrapll 8 of the judg- nichts Besonderes ...'. 26 The promotion can ment in the 'Cassis de Dijon' case, Case 120/78 [1979] ECR only be explained if, for the same price, the 649 and paragraph 10 of the judgment in the GB-INNO-BM case, cited in the previous footnote. quantity is greater. 24 — Judgment in the Buet and EBS case, cited above in footnote 22, paragraph 11. 25 — Judgment in the 'Cassis dc Dijon' case, cited in footnote 23. See also paragraph 12 of the judgment in the Pall case, cited above. 26 — Order of the Landgericht Köln, p. 4.
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39. It is not disputed that the defendant 43. Let's consider those two points. company did not take advantage of the pro- motional campaign in order to increase the sale price. 27 There is no indication of the attitude adopted by retailers in this instance.
44. a) Where either the producer or the retailer puts up the price when the quantity 40. The national court examined the associa- offered is increased, there is deception or a tion which the consumer might make risk of deception only if the promotional between that marking — which relates only marking in question misleads the consumer to quantity — and the price and concluded and affects his behaviour. It must be stated that the consumer would expect the price to here that the '+10%' marking indicates an be unchanged. This means that there are two increase in volume in relation to the old pre- alternative situations: sentation and is not indicative as to price: there is no indication anywhere of '+10% more product for the same price as the old price'. There is no argument that the promo- tional marking in question is objectively true. Consequently, I see neither deception nor the risk of deception here. However, the 41. If the retailer increases the price, the national court believes that it has shown that consumer could, in the national court's view, a significant number of consumers affected be the victim of deception within the mean- by such an offer will buy the products con- ing of Paragraph 3 of the UWG. cerned only because they are convinced that they will get 10% more product for the same price. Investigating that question would require an assessment of consumer behaviour which, in my view, only the national court is competent to carry out. 28
42. If the retailer does not increase his price, the offer meets the consumer's expectation and no deception can be identified. How- ever, a question would arise concerning the application of Paragraph 15 of the Gesetz gegen Wettbewerbsbeschränkungen (Law against restraints of competition, hereinafter 'GWB'), which prohibits manufacturers from imposing prices on retailers. Such a 45. b) Whether Paragraph 15 of the GWB is lack of price competition would be contrary applicable here and whether the sale of to German competition law.
28 — See, for a case where reference was made to the national court, paragraph 15 of the judgment in Case 27 — Ibid., p. 13 of the French translation. C-373/90 Complaint against X [1992] ECR I-131.
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ice-cream bars in the presentation in ques — B — tion entails an obligation — and not merely an incentive — for the retailer not to alter his prices or constitutes an agreement restricting his freedom to set prices requires an inter pretation of national law and is a matter exclusively for the national court's assess 49. Secondly, it is argued that this prohibi ment. tion is justified because the '+10% ice-cream' marking — which occupies a quarter of the wrapper — would mislead the consumer who would have the impression that the increase is bigger than that advertised.
46. If the conditions for the application of that provision were to be met, it would have to be accepted that the marketing of ice cream bars in the presentation in question on 50. I am not convinced of this, for the fol German territory would constitute an lowing reasons. infringement of the principle of the retailer's freedom to set prices laid down in German law.
5î. First of all, the '+10% ice-cream' mark- ing is accurate. The Court considers that national rules prohibiting misleading adver- tising are incompatible with the principle of the free movement of goods when they 47. Is it possible in the name of that princi apply to true statements which correspond ple — whose purpose is in particular to guar to reality. 29 antee genuine price competition for consum ers — and therefore in the name of the overriding requirement to protect consum ers, to impede trade exchanges?
52. Secondly, the argument put forward by the plaintiff in the main proceedings is based on the assumption that when seeing that marking the consumer would overestimate the real increase in volume or weight. According to the Landgericht Köln, '... a not 48. I do not see how one could regard that principle as justifying such an obstacle when the retailer's obligation not to alter his prices prevents any price increase and in the present 29 — Case C-373/90 Complaint against X, citedabove, paragraph 17, and Case C-126/91 Yves Rocher, cited above, para- case is therefore favourable to the consumer. graph 17.
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inconsiderable number of consumers will the length of the wrapper and would conse- gain the impression from the visual presenta- quently become unreadable. tion ... that the coloured portion of the pack- aging marked "new" indicates the weight or volume increase of the product'. 30
55. In any event, a total ban on advertising of that kind is disproportionate and cannot be justified on grounds of the protection of consumers.
53. However, it has not been demonstrated at all that consumers showing normal care consistently make a connection between the size of the promotional markings or state- ments relating to an increase in the quantity 56. Finally, whilst the '+10%' marking is offered and the size of that increase. In this promotional, it also contains information regard, I share the Commission's view: intended for the consumer. In its judgment in the GN-INNO-BM case, cited above, the Court held that '... under Community law concerning consumer protection the provi- sion of information to the consumer is con- sidered one of the principal requirements. Thus Article 30 cannot be interpreted as meaning that national legislation which '... it must also be clear to a careful consumer denies the consumer access to certain kinds that a certain amount of exaggeration is of information may be justified by manda- inherent in any promotion of a product'. 31 tory requirements concerning consumer pro- tection'. 32
54. May, for that matter, the national rules 57. I would make one last observation on require the promotional marking to be 'cali- the application of secondary law. brated' to the exact percentage of the increase? Must the width of the band indi- cating 10% more ice-cream be 10% of the total length of the wrapper? To me, that seems too demanding. Taken to the extreme, it would mean that a marking indicating a 58. It must be the case that once a prohibi- 5% increase would not have to exceed 5% of tion is not justified by overriding require- ments relating to consumer protection and
30 — Order of the Landgericht, last page of the German text. 31 — Commission observations, page 12 of the French text. 32 — Paragraph 18.
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fair trading, it cannot have any basis in ondly, minimum requirements for the means Council Directive 84/450/EEC of 10 Sep of affording protection against such advertis tember 1984 relating to the approximation of ing'. 34
the laws, regulations and administrative pro visions of the Member States concerning 33 misleading advertising either. According to the settled case-law of the Court: 59. This is also the case with Council Direc tive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Mem ber States relating to the labelling, presenta tion and advertising of foodstuffs for sale to 'That directive confines itself to a partial har the ultimate consumer, 35 Article 2(1) of monization of the national laws on mislead which lays down the general principle that ing advertising by establishing, firstly, mini purchasers are not to be misled about the mum objective criteria for determining characteristics of the foodstuff and, in partic whether advertising is misleading, and, sec ular, its quantity.
60. Consequently, I p r o p o s e that the C o u r t should rule:
Articles 30 and 36 of the E C Treaty are t o be interpreted as precluding a national measure from prohibiting the importation and marketing of the p r o d u c t 'ice-cream snack' w h e n it bears on its packaging the marking ' + 1 0 % ice-cream', unless it is s h o w n before the national court that such a presentation, even w h e n the price has been increased, w o u l d lead t o confusion in the mind of the consumer w h o w o u l d expect the price at which the goods are offered t o be the same as that at which they were offered u n d e r the old presentation.
33 — OJ 1984 L 250, p. 17. 34 — Judgment in the Pall case, cited above, paragraph 22 and in the 'Clinique' case, cited above, paragraph 10. 35 — OJ 1979 L 33, p. 1.
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