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2. The first sentence of Article 6(1) and Article 6(1)(d) of the Directive, as amended (d) particular precautions to be observed by Council Directive 88/667/EEC of in use, and especially those listed in the 21 December 1988, 3provide as follows: column "Conditions of use and warn- ings which must be printed on the label" in Annexes III, IV, VI and VII, which must appear on the container and packaging as well as any special precautionary information on cosmetic products for professional use, in parti- 'Member States shall take all measures cular in hairdressing. Where this is necessary to ensure that cosmetic products impossible for practical reasons, this information must appear on an enclosed leaflet, with abbreviated 1 — Original language: French. information on the container and the 2 — OJ 1976 L 262, p. 169. packaging referring the consumer to 3 — OJ 1978 L 382, p. 46. That directive was to be implemen- ted by 31 December 1989. the information specified.'

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3. Following the adoption of Council 5. The first part of Annex III requires that Directive 93/35/EEC of 14 June 1993, 4 the following warnings be given in respect the last sentence of subparagraph (d) was of those substances as follows: replaced by the following:

— for diaminophenols: 'Where this is impossible for practical reasons, an enclosed leaflet, label, tape or card5 must contain that information to which the consumer is referred either by abbreviated information or the symbol given in Annex VIII,6 which must appear on the container and the packaging.' 'Can cause an allergic reaction. Sensitivity test advisable before use. Contains diami- nophenols. Do not use to dye eyelashes or eyebrows.'

— 'Avoid contact with eyes.' 9. The Zentrale zur Bekämpfung unlaute- ren Wettbewerbs eV (Office for the Pre- vention of Unfair Competition, 'the ZBUW) considers that this practice infringes the German cosmetics regulation and is anti-competitive. The ZBUW — 'Do not spray into eyes.' brought proceedings against Schwarzkopf to prevent it from placing on the market the products in question without the full warn- ings appearing on the packaging and con- tainer. In the view of the ZBUW this would be feasible if Schwarzkopf confined the full — 'For preparations in aerosol dispensers: warning to the official language of the do not spray on a naked flame.' country of distribution.

— 'Avoid contact with eyes. Can cause blindness. Keep away from children.' 10. Having lost on appeal, 7Schwarzkopf appealed on a point of law to the Bundes- gerichtshof, which ordered:

8. It appears from the order for reference that, instead of printing the prescribed warnings in full on the packaging (box) and the container (a tube) for the products 'The following questions on the interpreta- in this range, Schwarzkopf printed on those tion of the second sentence 8 of Arti- items, in eight official languages of the European Communities and in Arabic, the following: 'For commercial use only. 7 — Decision of the Oberlandesgericht Hamburg of 24 October Important: follow instructions for use and 1996 overturning the decision of the Landgericht Hamburg heed warnings'. Schwarzkopf enclosed with of 24 May 1995 (corrected by decision of 30 June 1995). 8 — German version of the order for reference: 'Art. 6 Abs. 1 lit. each product a leaflet setting out the d Halbsatz 3'.

12. The first concerns the terms of the order for reference. According to the word- ing of that order, the Court is asked to Is the term "practical reasons" in the interpret Article 6(1)(d) of the Directive in second sentence 9 of Article 6(1)(d) of the version contained in Directive 88/667. Directive 76/768/EEC to be interpreted as also permitting the inclusion of prescribed warnings in several languages, where the manufacturer or marketer of cosmetic prod- ucts considers it desirable on economic grounds and to enhance the marketability 13. Contrary to the wording of the opera- of the products in the Community, if as a tive part of the order, the referring court, result the full warning appears in a clearly however, remarks in the second subpara- legible format on an enclosed leaflet only, graph of paragraph III. 1 of the grounds of with the packaging and container simply the order that: furnishing abbreviated information for lack of space? Specifically, is it permissible for the packaging and container to carry not the full warning but only abbreviated information where a company, for the reasons given above, considers it desirable to market its products in a uniform get-up 'The dispute between the parties concerns the question whether the defendant may rely on the exception in Article 4(2)(2) of 9 — German version of the order for reference: 'Art. 6 Abs. 1 lit. the cosmetics regulation. The version of tl Halhsatz .V. that regulation which entered into force on

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1 January 1997 applies in this case. It term at issue ('impossible for practical provides...' reasons') has not changed from one version of the Directive to another, I consider that it is permissible to refer to Directive 93/35 in so far as this may throw light on the presumed intentions of the Community legislature. 14. The version of the German cosmetics regulation which entered into force on 1 January 1997 is that which implements Directive 93/35.

19. That interpretation is probably based on the fact that, in the German language version of the Directive prior to Directive 93/35, the different sections of Arti- 16. On the other hand, it was made clear at cle 6(1)(d) were separated by semicolons, the hearing that the action was heard in the such that the passage referring to impossi- German courts on 9 February 1995, that is, bility for practical reasons could be read as after the adoption of Directive 93/35, but referring only to the passage immediately before the expiry of the period prescribed before it, namely that concerning the for implementation, and its entry into force particular precautions to be observed by in German law. professional users. By contrast, in the other language versions the phrase 'Where this is impossible for practical reasons' begins with a capital letter and therefore is to be read as referring to the entirety of the preceding text. 17. Nevertheless, having regard to the passages of the order for reference just cited, and to the fact that, in any event, the

10 — The order for reference states at point I, third subpara- graph, second sentence, of the grounds that: 'Auf der Verpackung befindet sich zusätzlich noch das Symbol 20. In Directive 93/35, that section of gemäss Anlage 8 zur Kosmetik-Verordnung'. 11 — Article 1 (14) provides that: 'Annex VIII to the Directive is subparagraph (d) was changed, in the Ger- appended'. man language version, to a free-standing

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for further warnings. The referring court users. It is not, however, possible to bring concludes that the type of statement made about that objective by including the full in this case should be sufficient to meet the text of the mandatory warnings, in nine requirements for the protection of health. languages, on the packaging and container without resorting to a packaging which was deceptive in appearance, because dispro- portionate to the size of the contents.

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their uniform application in all Member for practical reasons') and the Danish, 13 States. Spanish, 14 Finnish, 15 Greek 16 and Dutch 17 language versions, the expression 'not possible' is replaced by 'impossible', these two expressions are, to my mind, equivalent. 28. In Stauder, 12 the Court held, in con- nection with a decision addressed to all the Member States, that 'the necessity for uniform application and accordingly for uniform interpretation makes it impossible 32. The French language version, together to consider one version of the text in with the Italian 18 and Portuguese 19 ver- isolation, but requires that it be interpreted sions, uses the expression 'en cas d'impos- on the basis of both the real intention of its sibilité pratique'. That may, at first sight, author and the aim he seeks to achieve, in appear to be a little stronger, but there is no the light, in particular, of the versions in all difference in fact between the adjective [official] languages'. 'impossible' and the noun 'impossibility'.

35. The ZBUW goes on to explain that what is meant by that is that recourse to the derogation is only possible where the 38. I, too, propose to the Court that the manufacturer faces 'obstacles which, for term in question be interpreted as meaning technical reasons, render it impossible to 'material impossibility'. include appropriate information on the container, such as the reduced size of the container or technical difficulties in dis- playing information on the container in indelible, easily legible and visible letter- ing', even if the 'impossibility' is not total. 39. I will examine in due course whether that interpretation must be regarded as incompatible with Article 30 of the Treaty, because it would require undertakings to produce different packaging for each Mem- ber State for which the goods are intended. 36. The Netherlands Government contends that the 'practical impossibility' of comply- ing with the warning obligation must relate to the shape or volume of the product in question, having regard to its nature, function, or usual get-up. 40. The first reason which leads me to share the view of ZBUW, the three Govern- ments and the Commission is the fact that the expressions 'not possible', 'impossible' or 'impossibility' are used by reference to a factual situation over which the party relying on it has no control, or which do 37. The ZBUW adds, in common with the not depend upon that party's intention. Commission, and the Finnish and Nether- lands Governments, that purely economic considerations are insufficient to justify recourse to the derogation. The same is true as regards reasons of expediency, convenience or relating to the wishes of 41. Second, it should be observed that, if the manufacturer or distributor, who natu- the Council had intended also to include rally prefer a situation which is simpler, economic reasons, it would have been easy more practical, easier or more economical for it to make specific provision for this in

In the case of soap, bath balls and other small products where it is impracticable, for reasons of size or shape, for the 2. The purpose of the Directive particulars referred to in point (g) 22 to appear on a label, tag, tape or card or in an enclosed leaflet, 23 those particulars shall 46. In my opinion, the argument that the 21 — Emphasis added. Directive is designed only secondarily to 22 — Paragraph (g) refers to the list of ingredients. It includes an assure the protection of the health of users identical derogation to that in paragraph (d) in issue in this case. of the products in question is unsustain- 23 — Emphasis added. able.

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47. In terms of its logic, the approach observed as regards the composition, label­ followed by the Council seems to have ling and packaging of cosmetic products been as follows: (fourth recital).

48. First, it established that there was a barrier to free movement of the products in 52. The Council drew from this the logical question because the Member States had conclusion, in Article 7(1), that 'Member adopted divergent provisions governing the States may not, for reasons related to the composition and labelling of cosmetics requirements laid down in this Directive products (first and second recitals in the and the Annexes thereto, refuse, prohibit or preamble to the Directive). restrict the marketing of any cosmetic products which comply with the require­ ments of this Directive and the Annexes thereto'.

49. The Council was aware that it could not invoke the Cassis de Dijon 24 decision against those divergent provisions because the Member States were entitled to rely on 53. In parallel with this, the Council pro­ the Article 36 proviso which permits vided in Article 3 of the Directive that restrictions on imports justified on grounds 'Member States shall take all necessary of public health to be maintained. measures to ensure that only cosmetic products which conform to the provisions of this Directive and its Annexes may be put on the market'.

60. It is therefore undeniable that, where there is a conflict between the principles of the free movement of cosmetic products and the concerns relating to the safeguard- ing of public health, it is the latter which 57. Lastly, Article 12 provides that 'if a must take precedence. Member State notes, on the basis of a substantiated justification, that a cosmetic product, although complying with the requirements of the directive, 25 represents a hazard to health, it may provisionally 61. It is also clear, that, given the pre- prohibit the marketing of that product in its eminence accorded, within the framework territory or subject it to special conditions'. of this directive, to the concern to safe- guard public health, the expressions 'where this is impossible for practical reasons' or 'where that is not possible for practical reasons' must be interpreted narrowly. They can only refer to those cases where the full inclusion of the warning on the packaging and the container is materially 58. The Commission must then enter into impossible. consultation, issue an opinion and take the appropriate steps. 'If the Commission is of the opinion that technical amendments to the directive are necessary, such amend- ments shall be adopted by either the 62. I would add, lastly, that Schwarzkopf's Commission or the Council in accordance argument presenting the legislation in ques- with the procedure laid down in Article 10. tion as a barrier to the free movement of In that event, the Member State which has goods is, to say the least, paradoxical. As I adopted safeguard measures may maintain have shown, the free movement of cosmetic them until entry into force of the adapta- tions.' 26 — That is. Commission Directive 97/18/EC of 17 April 1997 postponing the date alter which animal tests are prohibited for ingredients or combinations of ingredients of cosmetic 25 — Emphasis added. products (OJ 1997 L 114, p. 43).

63. On the other hand, the Court has held, in the Clinique27 case, that the Directive 66. Schwarzkopf claims, first, that this must, 'like all secondary legislation, be system makes it possible to give informa- interpreted in the light of the Treaty rules tion also to foreigners resident in the on the free movement of goods (see, in country of distribution who are not fluent particular, the judgment in Case C-47/90 in the language of that country. To that the Delhaize and Le Lion v Promalvin and Commission replies, rightly in my view, AGE Bodegas Unidas [1992] ECR I-3669, that the abbreviated warning would also paragraph 26)'. have to appear in the Turkish language, given that the Federal Republic of Germany has a sizeable resident population of Turk- ish mother tongue. Moreover, that argu- ment in no way justifies the conclusion that the double inclusion of the full warning 64. Certain of the arguments put forward required by the Directive is not necessary by Schwarzkopf amount, in essence, to for the attainment of, or that it is dispro- maintaining that the rule in issue consti- portionate to, the objective pursued. tutes a hindrance to free trade which is unnecessary for the attainment of the objective pursued.

67. The Council clearly intended that the 3. Is the rule in question disproportionate? warning be such as to 'catch the eye' of users, first, picking up the box and, second, on taking hold of the tube. It may thus be assumed that the Council had in mind that certain people will not tend to read a leaflet, even when they are referred to it. 65. Schwarzkopf submits that the rule The Finnish Government also added, cannot be justified on the ground of public rightly, that not all of the containers are intended to be used once only, and the leaflet could become lost after the product 27 — Case C-315/92 Verband Sozialer Wettbewerb 'Clinique' [1994] ECR I-317, paragraph 12. is first used.

70. For my part, I agree that consumers and professional users cannot be required to exercise the same degree of caution in the handling of cosmetic products as of medicines, since they do not expect cos- 72. The average consumer is well aware metic products to be harmful to health. The that some medicines can have side effects, Directive defines cosmetic products as and will therefore be more likely to refer to being 29 'any substance or preparation the conditions for use on the enclosed intended to be placed in contact with the leaflet. Nor should we forget that most medicines are prescribed by doctors, who will already have explained to the patient 28 — Sec Article 2( I ) of the Directive, which states 'A cosmetic the proper dosage and drawn his attention product put on the market within the Community must not cause damage to human health when applied under normal to any possible side effects. or reasonably foreseeable conditions or use, taking account, in particular, tit the product's presentation, its labelling, any instructions for its use and disposal as well as any other indication or information provided by the 30 — See Article 1(2) of Council Directive 65/65/EEC of manufacturer or his authorised agent or by any other 26 Januarv 1965 on the approximation of provisions laid person responsible for placing the product on the Com- down by law, regulation or administrative action relating munity market'. to proprietarv medicinal products (OJ, English Special 29 — See Article 1 (1)(1) of the Directive. Edition, First Series 1965-1966. p. 24).

— the method and, if necessary, the route of administration; 77. As regards cosmetic products, it is also necessary to bear in mind, as the Finnish and Netherlands Governments point out, that the Community legislature has clearly accorded to the appending of the full wording of the warnings set out in the — a special warning that the medicinal Annexes to the Directive on the packaging product must be stored out of reach of and the container of a cosmetic product in children; the national or official language, or lan- guages, of the country of distribution a greater protective effect for the average 31 —OJ 1992 L 113, p. 8. cosumer and professional user than to the

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appending of an abbreviated warning with consumer and providing the consumer with a reference to an enclosed leaflet. information...' 32 and that 'it follows from the foregoing that under Community law concerning consumer protection the provi- sion of information to the consumer is considered one of the principal require- ments...'. 33 78. The French and Netherlands Govern- ments submit, also rightly, that the consu- mer must be able to inform himself of any precautions to be taken before buying a cosmetic product, and therefore without 81. It remains to consider whether a opening the packaging, in order to be able requirement, which is not disproportionate to choose with full knowledge of the facts. when it concerns products intended for use by the general public, becomes so when it concerns products specifically intended for professional use.

85. If a committee within which the views of both businesses and workers are expressed comes to the conclusion that the information prescribed by the Directive would be improved by the addition of material intended for professionals, it can hardly be said that the legislature has 84. It should be recalled, in this regard, infringed the principle of proportionality that, until the adoption of Directive in not authorising recourse to more suc- 88/667, Article 6(1)(d) made no mention cinct information for professionals than for of a requirement to append to the packa- ordinary consumers. ging and container warnings addressed specifically to professional users. It was only as a result of the observations of the Economic and Social Committee that the phrase 'as well as any special precautionary information on cosmetic products for pro- fessional use, in particular in hairdressing' 86. Whilst professionals with a long experi- was inserted into Article 6(1)(d) of the ence are probably aware of the precautions Directive. The Committee had stated, at to be taken, the same is not necessarily true paragraph 2.3, of its opinion on the draft for apprentices. Furthermore, it may be directive, 34 that '[t]he Committee expresses that new product marks or commercial its concern over the failure to mention names will begin to be used without the special precautions to be taken in the case employees being immediately aware that of cosmetic products for professional use, they pose the same possible risks as those in particular by hairdressers. Some infor- with which they are familiar. mation on this matter, intended for all users, is admittedly set out in Annex III. Manufacturers should, however, be required to indicate — at all events in the case of some products — that it is advisa- ble to wear gloves when applying them. 87. It would, admittedly, be conceivable that, for products intended exclusively for professional use, a briefer warning would 34 — Opinion of the Economic and Social Committee on the proposal for a Council Directive amending for the fourth suffice, emphasising the essential points time Directive 76/768 on the approximation of the laws of the Memher States relating to cosmetic products (OJ 1987 such as 'Warning: harmful to the eyes; risk C 319, p. 5). of allergy; read the leaflet carefully'.

91. Let us acknowledge that, if it were possible to satisfy the requirements of the protection of public health and to use one form of packaging for the whole of the Community market, then we would have an ideal situation.

89. Nor, if tomorrow the legislature were to make a different choice, would that choice be open to objection, provided that the measures adopted respected the princi- ple of proportionality; nor would that 92. However, there can be a gap between mean that the choice it had made pre- the ideal and the attainable. The inescap- viously was erroneous. The existence of a able reality of the Community is that of the discretion means, by definition, that differ- coexistence, within the same market, of a ent solutions, all perfectly lawful, are open large number of different national and to the decision-maker. It is only in the official languages.

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95. It is, therefore, right that the Commu- nity legislature has provided in Article 7(2) that the Member States 'may require that the particulars provided for in Arti- cle 6(1)(b), (c) and (d) be expressed at least 98. These include the qualitative and quan- in their own national or official language or titative composition of the product, the languages'. 35

36 — I have before me a hair colouring reserved for professional 35 — Directive 93/35 has replaced this subparagraph with the use, sold under the name 'Majirel HT'. It carries the following: following warning in French, English and Spanish on the 'They may, however, require that the particulars provided cardboard packaging aud ott the tube: 'Contains: Diami- for in Article 6(1)(b), (c), (d) and (f) be expressed at least in nophenol, resorcinol and ammonia. Wear appropriate their own national or official language or languages; they gloves, preferably single-use. Rinse well after applying. may also require that the particulars provided for in May cause an allergic reaction. Sensitivity testing (touch Article 6(1)(g) be expressed in a language easily under- test): see leaflet. Rinse immediately if the product comes stood by the consumer. To that end, the Commission shall into contact with the eyes. Follow the instruction leaflet'. adopt a common ingredients nomenclature in accordance This tube contains 50 ml whilst Schwarzkopf's contains 60 with the Article 10 procedure.' ml.

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laws of the Member States relating to cosmetic products, in conjunction with Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 and 30 EC), must be interpreted as meaning that it does not permit the full wording of the warning not to be given merely because the undertaking considers it appropriate, for economic reasons, to market its products in a uniform get-up in nine languages in different States, furnishing only abbreviated information on the packaging and container, so long as it is materially possible to print the full information.

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