C-33/97

OPINION OF MR COSMAS — CASE C-33/97

O P I N I O N OF ADVOCATE GENERAL COSMAS delivered on 19 February 1998 *

I — Introduction Π — National provisions

3. The Law of 14 July 1991 on Trade Practices and Consumer Information and Protection (Moniteur Belge of 29 August 1991), the text of which is annexed to the 1. In the present case, the Rechtbank van written observations of the applicant in the Koophandel (Commercial Court), Hasselt, main proceedings, contains provisions is asking the Court to interpret Council regarding the sale of products to consumers Directive 83/189/EEC of 28 March 1983 generally and certain special types of sale, laying down a procedure for the provision such as the sale of sale goods, distance of information in the field of technical selling, sale outside the vendor's trading standards and regulations,1 as amended by premises and so forth. It also includes Council Directive 88/182/EEC of provisions regarding matters such as desig­ 22 March 1988. 2 nations of origin, advertising, the obser­ vance of honest practices and the provision of services to consumers.

4. Chapter II, which is headed 'Consumer 2. The dispute before the national court has information', contains, inter alia, provi­ arisen from the respective allegations by sions concerning the obligation to give the two companies, Colim NV (hereinafter price of products sold (Part 1) and the 'Colim') and Bigg's Continent Noord NV specifying of quantities (Part 2). In Part 3 of (hereinafter 'Bigg's'), that the other is sell­ the same Chapter, which is entitled 'Desig­ ing various products which do not bear any nation, composition and labelling of prod­ labelling, or sufficient labelling, in the ucts and services', Article 13 provides: language of the area, namely Dutch, con­ trary to the relevant Belgian legislation.

'No later than at the time of the conclusion of the sale, the vendor must in good faith On no account may the labelling be pre­ provide the consumer with the appropriate sented in such a way as to cause confusion and useful information concerning the with a certificate of quality.' characteristics of the product or service and concerning the conditions of sale, having regard to the need for information expressed by the consumer and the use which has been specified by him or is reasonably foreseeable.' In addition, Article 14, which is also to be found in Part 3, confers a series of powers on the King to regulate a number of subjects, such as the labelling of specific products or types of products, especially the particulars and other information on the labelling (Article 14(a)), the composi­ tion, presentation, quality and safety of 6. Finally, in Chapter χ relating to penal­ products offered for sale (Article 14(b)), ties, Part 1 ('Criminal penalties') contains prohibitions on the use of, or requirements Article 102 which provides:

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'A fine of BEF 250 to BEF 10 000 shall be III— Facts imposed on persons who infringe the provisions:

7. Colim, the applicant in the main pro- ceedings, operates a department store in Houthalen-Helchteren, while Bigg's has recently begun to operate one in Kurin- gen-Hasselt.

2. of Article 13 relating to the designation, composition and labelling of products and services and of the decrees implementing Articles 14 and 15. 8. A court bailiff instructed by Colim visited the defendant's store and established that many of the products sold, including foodstuff, cosmetics, detergents and pet- food, did not carry labelling in Dutch, the language of the area, but in other lan- guages. The bailiff also recorded that there 3. ...' were seven 'Information Points' in the store, that is to say devices which recognise goods by means of bar codes on their packaging and show on a screen certain information relating to the product, such as a summary translation of the sales descrip- tion and the price. Article 103 then provides:

IV — Questions referred for a preliminary ruling

'1. Is a legal provision of a Member State whereby: 12. The defendant submitted before the court that the provisions relied on by the applicant, including Articles 13 and 30 of the abovementioned Law, were invalid because they had not been notified to the — the particulars to appear on label- Commission in accordance with Directive ling which are mandatory under 83/189. national law;

— instructions for use; and

13. According to the applicant, on the other hand, the language employed for labelling and for instructions for use and — guarantee certificates; so forth is not a 'characteristic' of a product but a means of providing information with regard to certain of its characteristics and the Belgian provisions therefore did not have to be notified to the Commission must be given at least in the language under Directive 83/189. or languages of the area where the

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'For the purpose of this Directive, the following meanings shall apply: (b) If the answer to Question (a) is in the affirmative, may such a requirement be made of all infor- mation on packaging or only of certain information and, if so, which ? 1. "technical specification", a specifica- tion contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards terminology, symbols, testing and test methods, (c) In respect of products for which packaging, marking or labelling and there are no specific Community the production methods and proce- rules, may a Member State require dures for agricultural products as all or certain (and if so which) defined in Article 38(1) of the Treaty information on the imported pro- and for products intended for human ducts to be given in the language of and animal consumption and for med- the area in which the products are icinal products as defined in Article 1 sold or in a language readily under- of Directive 65/65/EEC, as last amen- stood by the consumer?' ded by Directive 87/21/EEC;

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which case information regarding the rele- vant standard shall suffice; they shall also let the Commission have a brief statement of the grounds which make the enactment of such a technical regulation necessary, where these are not already made clear in 5. "technical regulation", technical speci- the draft. Where appropriate, Member fications, including the relevant admin- States shall simultaneously communicate istrative provisions, the observance of the text of the basic legislative or regulatory which is compulsory, de jure or de provisions principally and directly con- facto, in the case of marketing or use in cerned, should knowledge of such text be a Member State or a major part necessary to assess the implications of the thereof, except those laid down by draft technical regulation. local authorities;

'Articles 8 and 9 shall not apply where the Member States fulfil their obligations as arising out of Community directives and regulations; the same shall apply in the case 20. Under Article 9(1) the Member States of obligations arising out of international are to postpone the adoption of a draft agreements which result in the adoption of technical regulation for six months from uniform technical specifications in the the date of the notification if the Commis- Community.' sion or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure envisaged must be amended in order to eliminate or reduce any barriers which it might create to the free movement of goods. The relevant Member State is to inform the Commission of the action it VI — Substance proposes to take with regard to such detailed opinions. The Commission is to comment on that reaction. In accordance with Article 9(2), the period is extended from six to twelve months if, within three months following the notification under Preliminary observations Article 8(1), the Commission gives notice of its intention to propose or adopt a directive on the subject. 22. First of all, the parties agree, rightly in my view, that since the Belgian provisions at issue predate Directive 94/10, 5 by which Directive 83/189 was substantially amen- ded, Directive 83/189 must be interpreted as amended by Directive 88/182.

On the other hand, it is apparent from Article 9(1) that Member States may adopt the notified draft where the Commission or a Member State does not comment before 23. Also, as the French Government cor- the three-month period expires. rectly points out, instructions for use and guarantees are not among the technical specifications referred to in Article 1(1) of 4 — Article 8(4) was amended by Directive 94/10/EC of the directive and therefore do not fall 23 March 1994 (OJ 1994 L 100, p. 30) so that the information supplied is no longer regarded as confidential unless the notifying Member State makes a request in that regard supported by reasons. However, that directive is not applicable in the present case. 5 — Cited in footnote 4 above.

26. By contrast Bigg's, the defendant in the main proceedings, considers that the above- mentioned requirement amounts to a tech- nical regulation. It submits that the termi- nology, symbols and labelling constitute the means by which information relating to a product's characteristics may be conveyed 24. Having regard to the above, the issue and that the mandatory use of a language is raised by the first question is whether the closely linked with the labelling, packaging obligation, imposed by Article 13 of the and terminology. Furthermore, that Belgian Law of 14 July 1991, that particu- requirement is liable to obstruct the free lars to appear on labelling which are movement of goods, by obliging traders to mandatory under other provisions must change the packaging or to attach new be given at least in the language or labels to imported products, and therefore languages of the area constitutes a 'techni- constitutes a measure having an effect cal specification' and the provision enact- equivalent to a quantitative restriction, ing it constitutes a 'technical regulation' prohibited by the Treaty. within the meaning of Directive 83/189.

27. Finally, the Commission states that two opposing interpretations are tenable. 28. In my opinion, that divergence in the views of the parties and the uncertainty of the Commission itself as to the nature of the obligation at issue are principally due to the lack of clarity in the wording of Article 1 of the directive. This lack of clarity is aggravated by the directive's very broad scope, which has been continually extended by the successive amendments to the directive, in particular the most recent (i) Under the first approach, the obliga- one. That is the case notwithstanding the tion at issue constitutes a technical apparent effort to define the directive's requirement 'as regards terminology, scope accurately by means of the defini- symbols... packaging, marking or label- tions in Article 1. Those imperfections, ling' of the product. An obligation of which are out of place in rules of law and that kind amounts to a regulation create legal uncertainty, have now been concerning the requirements which intensified following the draconian inter- the product itself must satisfy, and pretation of the Court in CIA Security 7 and may make it necessary to adapt the Bic Benelux8 with regard to the conse- product to the market in question. The quence of failure by the Member States to Commission states that, if the Court notify technical regulations to the Commis- were to adopt this interpretation, it sion, namely the inapplicability of unnoti- would be expedient to restrict the fied drafts as against individuals, which has temporal effects of the ruling, in view of the consequences for the Member States which have enacted analogous 7 — Case C-194/94 CIA Security v Signalson and Securitel provisions without notifying them to [1996] ECR I-2201. the Commission. 8 — Case C-13/96 Bic Benelux v Belgian State [1997] ECR I-1753.

9 —Case C-317/92 Commission v Germany [1994] ECR 11 — CIA Security, cited in footnote 7 above. I-2039. 10 —Case C-273/94 Commission v Netherlands [1996] ECR 12 — Case C-289/94 Commission v Italy [1996] ECR I-4405. 1-31. 13 — Bic Benelux, cited in footnote 8 above.

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31. On the other hand, the following do sary since technical regulations covered by not constitute technical regulations under the Directive are capable of hindering, the case-law: directly or indirectly, actually or poten­ tially, intra-Community trade in goods.' 16

— the enabling provision on the basis of which the provision laying down the technical regulation was adopted; 1 4

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35.I come now to the material scope of the agricultural products, 18 products intended directive, which, although broad, is not for consumption and medicinal products unlimited. Given that the subject-matter of (therefore not cosmetics).19 the directive is the technical requirements which apply to certain products, it is necessary first of all, when determining the directive's scope, to specify the products to which it applies.

38. Specifying the products to which the directive applies is relevant for determining the field of application of Article 1(1), which contains the definition of the term 'technical specification' and, by extension, also of Article 1(5) which defines 'technical 36. The scope of the directive has some- regulation', since a technical regulation times been broadened and sometimes been within the meaning of the directive is a narrowed by the successive amendments to regulation containing technical specifica- it. Thus, under its original wording, Arti- tions. cle 1(7) defined products for the purposes of the directive as industrially manufac- tured products, but excluding agricultural products, products for human or animal consumption, medicinal and cosmetic prod- ucts.

(a) in accordance with Article 8(1), the Member States are not required to send the Commission the text of a draft technical regulation which transposes 41. In view of the foregoing points, it is the full text of an international or apparent from Article 1(1), in conjunction European standard. In that case, it is with Article 1(7), that the following are to sufficient simply to inform the Com- be understood as technical specifications mission; 21 within the meaning of the directive:

45. First of all it is, I believe, clear that the use of a particular language, possibly a (c) finally, under the second part of Arti- particular dialect or a particular linguistic cle 10 the same applies in the case of form of that language, 24 when giving the technical specifications which are mandatory particulars to appear on label- adopted in compliance with an inter- ling does not constitute a 'characteristic' of national agreement and are therefore the product. However broadly that term in already uniform. Article 1(1) of the directive is interpreted, it will still refer to properties or qualities which are inherent in the product at issue in each case. The language or the linguistic form which is used to express and convey to the purchaser information relating to 43. It follows from the foregoing that those qualities and properties constitutes a Community law is not opposed to technical general system for the transmission of specifications in themselves but to the information of every kind, of which the adoption of technical specifications which information at issue is just one example. are not coordinated, uniform or necessary. Consequently, the language is necessarily a Accordingly, the objective of the Commu- separate matter and cannot be equated with nity legislature is, by means of the recipro- the information conveyed. cal provision of information, the uniformi- sation, which includes the standardisation, of technical specifications by product or by 23 — It is, I believe, clear that Article 30 of the Belgian Law does not amount to a technical regulation within the meaning of product category, so that uniform rules the directive inasmuch as it imposes a general obligation exist within the Community. 22 on vendors to inform purchasers. Besides, a similar obligation arises from the general principles of contract law of the Member States and is usually also set out in civil codes or legislation governing the sale of goods. I will accordingly not concern myself with that article. 22 — That objective will have to be regarded as an intermediate 24 — So far as concerns this last possibility, I mention by way of objective between the direct objective, which is to inform example that until the beginning of the 1980s the accepted the Member States and the Commission, and safeguarding language in Greece was katharevousa, that is to say a the free movement of goods. Standardisation is emphasised learned form of Greek with many archaistic elements, as in particular in the preamble to Directive 94/10. opposed to the everyday language, demotic Greek.

26 — It is self-understood that every requirement constitutes a regulation applicable to the product. Thus, the 'terminology' to which the direc­ 27 — See, for example, Directive 89/108/EEC of 21 December tive refers is the selection of a scientific 1988 on the approximation of the laws of the Member States relating to quick-frozen foodstuffs for human term, from among a number available, consumption (OJ 1989 L 40, p. 34) which, in Arti- cle 8(l)(a), makes it compulsory to use the term 'quick- which will characterise the product or one frozen' as rendered in the various Community languages. of its properties. That term will have to be Thus, in German it is possible to choose between the terms 'tiefgefroren', 'Tiefkühlkost', 'tiefgekühlt' and 'gefrostet', while in English only the term 'quick-frozen' may be used (and not, for example, 'super-frozen' or 'deeply-frozen' or some similar term). Here, the imposition of a particular 25 — The conjunctive wording is 'καθώς και' ('as well as') in term (the same term in all the languages) is a technical Greek. By contrast it is 'including' in English, 'y compris' issue while the question as to the choice of one language or in French, 'einschließlich' in German, 'comprese' in Italian, another by the Member States is a related, 'metatechnical', and so forth. I conclude that the second, stronger, meaning issue. is more correct. 28 — See point 27.

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51. In the first two parts of the second 50. In the present case, Article 13 of the question submitted by it, the national court Belgian Law refers, with regard to the essentially asks whether, where specific question of which particulars are manda- Community rules exist for a given product, tory, either to other provisions of the same it is open to the Member States to require Law or to decrees which exist already or information in addition to that imposed will be enacted in the future to implement under the Community rules and whether the Law. The content of Article 13 leads me they may require that information to be to the view that that provision does not given in a particular language. include a technical requirement relating to a particular product or category of pro- ducts and therefore does not constitute a technical regulation within the meaning of the directive. Nor is the fact the packaging of an imported product might need to be 52. I consider that the question submitted replaced because that obligation is imposed is put in very imprecise and hypothetical sufficient in itself to refute the above terms given that it neither seeks the inter- interpretation. Regardless of the fact that pretation of a specific provision, despite the the new Belgian provision adds nothing of fact that it presupposes the existence of substance to previous provisions imposing specific Community rules, nor reveals the the same obligation and that a large number of Community directives contain specific provisions regarding labelling in 29 —See my Opinion in Case C-385/96 Coerres [1998] ECR the national or official language of the State I-4431, point 33.

factual situation to which it relates. In view 54. The same is true with regard to the of its wording I doubt whether it is possible question of the language in which it is to give a useful answer to it. permissible, compulsory or prohibited to express mandatory information under a directive or any additional references which the Member States may legitimately require. As we have already seen, Commu- nity rules on that issue lack coherence and consistency 34 and the relevant provisions are contained in specific directives for the marketing of a particular product or cate- gory of products. Since, in any event, the question of the language in which the additional information is given is ancillary to the question of the latter's permissibility, 53. With the exception of certain directives it follows that where a directive prohibits of general application, 3 0Community leg- the Member States from requiring addi- islation regarding the placing of consumer tional information, it also prohibits them products on the market is fragmentary and from requiring that information to be regulates the issue by product or categories expressed in a particular language. Where, of product, such as goods for human on the other hand, it allows the Member consumption, goods for animal consump- States to require additional information, a tion, cosmetics, detergents and so forth. general rule cannot be deduced. The lan- Those specific directives do not always seek guage in which that information is given the same degree of harmonisation of may be, depending on the interpretation of national laws. They generally require spe- the directive, either the language in which cified information to be given on labelling, the mandatory information under the direc- in which case it is not open to the Member tive must be expressed or the language to States to require additional information. 31 be chosen by the Member State subject to It is possible, however, for the Member observance of Community law. 35 States to be left with an element of discretion. 3 2Accordingly, the issue as to whether the Member States may require more information than that laid down by the directive must be assessed on a case by However, given that, as set out above, the case basis, in accordance with the particu- second question submitted for a prelimin- lar provisions and the aim of the directive ary ruling is imprecise and general, I which governs the marketing of the product propose that no "answer be given to it. 36 at issue in each case. 33

Question 3 57. The position is similar with regard to the imposition of an obligation to give one or more pieces of information in a parti- cular language, which potentially constitu- tes 'a barrier to intra-Community trade in so far as products coming from other Member States have to be given different labelling causing additional packaging 55. The national court asks thirdly costs'. 39 whether, where no Community rules exist, a Member State may require certain infor- mation to be given on the product being sold and to be written in a particular language (for example, the language of the area where the product is placed on the market). 58. The answer to the question as to the appropriate language is determined by balancing, on the one hand, the need to inform consumers of the characteristics of the product and to avoid confusion and, on the other, the need for the movement of goods between the Member States to be unimpeded. In that context, the Court has held that a requirement to give certain 56. As is apparent from the case-law to information in the language or languages of which I have referred previously,37 where the State where goods are marketed con- Community rules do not exist, the Member stituted the appropriate method for pro- States are free to adopt rules relating to the tecting the consumer, that such a measure marketing of products subject to obser- was not disproportionate to the goal pur- vance of the rules of Community law, in sued and that, in adopting a measure of particular Articles 30 and 36 of the Treaty. that kind the Community legislature had They may thus impose restrictions on intra- not exceed the limits of its discretion.40 Community trade, including, in principle, a requirement to specify certain information on the product, provided that those restric- tions are necessary to serve objectives in the public interest, such as the protection of health, the protection of consumers and so forth, and are proportionate to the aim 59. I have already set out my view: in pursued. 38 However, it is not possible to monolingual States, it is in principle legit- state in advance which information is allowed and which is not because the answer depends on the circumstances of 39 — Case C-51/93 Meyhui v Schott Zwiesel Glaswerke [1994] ECR I-3879, paragraph 13. That case was concerned with each case. a Community provision which required certain informa- tion to be given in the language or languages of the State in which the product was marketed (see the Opinion in Goerres, paragraph 76), but a measure is reviewed in the same way whether it emanates from a Community 37 — See my Opinion in Coerres, cited above, point 28. institution or from a Member State (see Meyhui, para- 38 — See Van der Veldt, cited in footnote 32 above, paragraphs graph 11). 23 to 31. 40 — Meyhui, cited above, paragraphs 19, 20 and 21.

63. The issue was raised by the Commis- 61. That view is not inconsistent with the sion in Communication 86/C 245/05 judgment in Meyhui, cited above. In my (OJ 1986 C 245, p. 4), where it began with view, it does not follow from Meyhui that, some stern observations such as 'experience in the case of multilingual States, as in the shows that a State's membership of the present case, information relating to prod- Community is not always sufficiently reflected in the attitudes and outlook of its administration' and pointed out the 41 — See the Opinion in Coerres, point 50. obligation under Articles 8 and 9 of the 42 — Ibid., point 82. directive to notify the Commission of

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64. The issue came up again in actions brought by the Commission under Arti- cle 169 of the Treaty against Member 67. We have thus reached the point where a States which had failed to communicate plethora of references for preliminary rul- technical regulations to it. In the course of ings relating to the directive are pending the administrative procedure, the Commis- before the Court, turmoil has been caused sion, in addition to alleging that failure on in the Member States 44 by the realisation the part of the Member States, had also put that a large number of legislative provisions forward the abovementioned view regard- risk being held invalid, an attempt is ing unenforceability. However, it did not already being made to restrict the extent persist with the point before the Court and of the legal consequences of a failure to the Advocates General did not express a notify 45 and the Commission itself, clearly view on the matter. 43 troubled by the breadth which the indefi- nite term 'technical regulation' might take on, seeks, as a subsidiary plea in the present case, a temporal restriction on the effects of a judgment of the Court holding legislation

Where the Community legislature has wanted a different result it has stated so 69. First of all, Article 213, which consti­ expressly, as in Article 93(3) of the Treaty tutes the basis and the limit of the powers which makes provision for the Commission conferred by the Council on the Commis­ to be informed of national plans to grant sion, merely states that the Commission State aid and states that 'the Member State may 'collect any information and carry out concerned shall not put its proposed mea­ any checks required'. This means that the sures into effect until this procedure has Commission may only demand information resulted in a final decision'. Because of their about measures which the Member States specific nature, provisions of that kind have adopted or are to adopt and carry out cannot be applied by analogy to the present checks which, by express application of the case, as has been suggested in the past. 4 7 principle of proportionality, are absolutely necessary. Furthermore, the Commission's powers are to be exercised 'within the limits and under conditions laid down by the Council in accordance with the provi­ sions of [the] Treaty'. 4 6

71. Apart from not being expressly pro­ vided for, unenforceability of national regu­ lations is, moreover, manifestly dispropor­ tionate to the aim pursued by the direc­ 70. While the procedure for providing 48 tive. Just as the Member States are not information to the Commission and the allowed to rely on generalities in order to other Member States is laid down in the justify measures which diverge from Com­ directive, not the slightest reference is made munity law, the Community institutions to the possible consequences of failing to likewise may not rely in a general and notify technical regulations which are (or

All the cases concerning Directive 83/189 73. The Court held in CIA Security that which the Court has had to deal with Articles 8 and 9 of the Directive are hitherto have concerned 'technical regula­ unconditional and sufficiently precise for tions', that is to say national regulatory individuals to be able to rely on them measures whose text must be published before national courts (paragraph 44) and officially in the Member States. It would that an express provision to such effect is therefore be sufficient if the Committee not required, it being sufficient that that provided for in Article 5 of the directive consequence helps to achieve the aim scanned periodically, by means of a small pursued by the directive (paragraph 48). number of officials specifically assigned that task, the official journals of the Member States in order to nip in the bud any infringement, real or supposed, of the directive, instead of waiting for a case to reach the courts, should that occur. 74. I will not return to the aim of the directive, nor will I set out now my view regarding the limits which every interpreta­ tion, including the teleological interpreta­ tion, necessarily has. I will simply state, first, that it is clear in my view from the 72. So far as concerns Article 100 of the fourth, fifth, tenth and eleventh recitals in Treaty, which is also relied on for the the preamble to the directive and from directive's legal basis, it is sufficient to Articles 8 5 2 and 9 thereof that the proce­ recall that that article requires unanimity in dure for providing information laid down order for measures to be adopted under it. by the directive concerns strictly the Com­ Given the strong opposition of at least mission and the Member States, without three Member States to the Commission's any substantive right in favour of indivi­ 50 position on unenforceability and the duals being created. 53 Second, the direct subsequent rejection by the Council of a Commission proposal reflecting that posi­ 5 tion, 1there is no doubt that an express 52 — It is to be noted that Article 8(4) provides that 'the information supplied under [Article 8] shall be confiden­ tial' (see also footnote 4 above). 53 — See Case 380/87 Enichem Base and Others v Comune di 49 — See Germany v Council, cited in footnote 46 above, Cinisello Balsamo [1989] ECR 2491, paragraph 23. From that point of view, the fact that Articles 8 and 9 of the paragraph 42. directive provide for rudimentary preventive monitoring of 50 — See the views of the German, Netherlands and United national measures which is in any event advisory and not Kingdom Governments in CIA Security, cited in footnote 7 binding in nature, does not, in my opinion, differentiate above, paragraph 39. those provisions from those at issue in Enichem Base and 51 — See point 65 above. Others.

effect of directives, an excellent judicial has laid down. If, finally, the national creation, is designed to allow individuals to measure is not covered by a specific direc- enjoy a right which a directive envisages for tive, it will be assessed on the basis of the them and a Member State denies them by Treaty articles, as in all cases where a not adopting, or by adopting inappropri- national measure is reviewed as to its ate, implementing measures. For that rea- compatibility with Community law. son the substantive rule laid down in the directive is applied in their favour. How- ever, Directive 83/189 was not adopted for the benefit of individuals, nor does it contain substantive rules which can be applied in the absence of national imple- menting rules. Thus, the only effect of unenforceability, vis-à-vis the individual invoking it, is a legal lacuna, and not the regulation of his situation by a rule which flows directly from the directive. 76. In his Opinion cited above, Advocate General Van Gerven, considering that the Commission's position on unenforceability was clearly untenable, discreetly stated: 'It may be wondered why, if the Commission regards that proposition as being essential to the proper working of the procedure established by Directive 83/189, it has never proposed to the European Parliament and the Council that it should be adopted in an amending directive'. 55 75. In my view, a national court is unable to declare a national measure invalid solely on the basis of a finding that the measure was not notified. Specifically, it must pro- ceed as follows. First, it must establish whether the national measure falls within the field of application of the directive. If the measure does, it must, second, check whether there are grounds justifying exemption from the obligation to notify, 77. The Council having rejected such a in particular by reason of the fact that, in possibility, it may be discreetly asked, accordance with Article 10, the matter falls following the example of Advocate General within the field of application of a specific Van Gerven, whether it would be appro- directive.54 If that is the case, the national priate for the Community institutions to re- measure will be assessed on the basis of the examine the issue of the consequences provisions of the specific directive which arising from a failure to notify national covers it, in accordance with the general draft technical regulations under Directive principles of interpretation which the Court 83/189.

(2) Where common rules do not exist for the marketing of a particular product, Community law allows the Member States to lay down conditions for its marketing, provided that the requirements flowing from Articles 30 and 36 of the Treaty are observed. Those conditions include a requirement to give the information essential for identifying the product in the language, or in one of the languages, of the State in which the product is placed on the market.

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