C-358/01

COMMISSION v SPAIN

OPINION OF ADVOCATE GENERAL ALBER delivered on 22 May 2003 1

I — Introduction II — Legal framework

A — Community law

2. Article 28 EC provides that quantitative restrictions on imports and all measures having equivalent effect are to be pro- hibited between Member States. Article 30 EC provides that exceptions to Article 28 may be justified, among other, on grounds of the protection of health and life of humans. Such prohibition or restrictions are not, however, to constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. 1. These infringement proceedings concern the free movement of cleaning products containing bleach. The Kingdom of Spain prohibits the marketing of products under the name 'limpiador con lejía' ('cleaning product containing bleach') or similar 3. Decision No 3052/95/EC of the Euro- (hereinafter referred to only as 'cleaning pean Parliament and of the Council of product containing bleach'), which are 13 December 1995 2 (hereinafter: 'Decision lawfully manufactured and marketed in 3052/95') established a procedure for the other Member States, if they do not contain exchange of information on national meas- at least 35 g active chlorine per litre, as ures derogating from the principle of the prescribed in Spain. Spain regards this as free movement of goods within the Com- the minimum concentration necessary to be munity. Article 1 of Decision 3052/95 effective as a disinfectant. provides: 'Where a Member State takes

1 — Original language: German. 2 — OJ 1995 L 321, p. 1.

6. Article 2(2) of C o u n c i l Directive 84/450/EEC of 10 September 1984 on the approximation of the laws, regulations and administrative provisions of the Member 4. Council Directive 88/379/EEC of 7 June States concerning misleading advertising 6 1988 on the approximation of the laws, (hereinafter: 'Directive 84/450') defines regulations and administrative provisions misleading advertising as 'any advertising of the Member States relating to the which in any way, including its presenta- classification, packaging and labelling of tion, deceives or is likely to deceive the dangerous preparations 3(hereinafter: 'Di- persons to whom it is addressed or whom it rective 88/379') is also relevant to the present case. Article 1(2) provides that this Directive is to apply to preparations which 4 — Article 2 of Directive 88/379 also refers to the definitions in are placed on the market in Member States Article 2 of Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and adminis- and which contain at least one dangerous trative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special substance, within the meaning of Article 2. Edition 1967, p. 234). Article 4 of that Directive refers to Annex I, which contains a list of dangerous substances classified in accordance with the provisions of Article 3. 5 — OJ 1989 L 2 9 1 , p. 55. 3 — OJ 1988 L 187, p. 14. 6 — OJ 1984 L 250, p. 17.

I-13148

COMMISSION v SPAIN

reaches and which, by reason of its decep- (bleach) as a solution of alkaline hypo- tive nature, is likely to affect their economic chlorite containing a proportion of active behaviour or which, for those reasons, chlorine that must be not less than 35 g per injures or is likely to injure a competitor'. litre and not more than 100 g per litre. Article 3 provides: Article 5 stipulates the conditions subject to which it is permissible for bleach to be described as 'suitable for disinfecting drink- ing water'. That is, the chlorine content must be between 35 g and 60 g per litre. 'In determining whether advertising is mis- leading, account shall be taken of all its features, and in particular of any infor- mation it contains concerning:

9. Procter & Gamble España, S.A. and Colgate-Palmolive España, S.A. had mar- keted cleaning products labelled 'bleach' in Spain, although the products contained less 8. A report issued by the Instituto nacional than 35 g bleach per litre. After the del consumo on 7 April 1998 confirms that Consejería de Economia y Empleo de la the person responsible for marketing the Comunidad de Madrid (hereinafter: 'the product must provide the authorities with autonomous community of Madrid') had the following documents in order to be able become aware of this, it started penalty to take advantage of the mutual recognition proceedings against both undertakings for clause (Article 17 of Decree 349/1993): infringement of the labelling regulations in force in Spain.

— a label which clearly states the true 10. This event came to the Commission's concentration of active chlorine; attention because of a complaint. The Commission then instituted proceedings under Article 226 EC and issued a letter of formal notice to the Spanish Govern- ment on 4 November 1999, in which the Commission alleged that the Kingdom of Spain had failed to fulfil its obligations under Article 28 EC et seq., by refusing — sufficient evidence to show that the access to the Spanish market to products products concerned have the same lawfully produced and marketed in other disinfecting power as conventional Member States under the name 'limpiador (that is to say, Spanish) bleach prod- con lejía' (cleaning products containing ucts; bleach) or similar.

11. With its reply of 28 December 1999, — certified evidence that these products the Spanish Government sent the Commis- are marketed in the country of origin. sion a report of the Ministerio de Sanidad y

12. On 17 February 2000, the Commission sent a further letter of formal notice to the Spanish Government, in which it stated 14. The Commission claims that the Court that the decisions by the city authority of should Madrid to refuse access to the market to these products, were measures which contravened the principle of free movement of goods within the Community. The Kingdom of Spain, it claimed, had failed to fulfil its obligations under Decision 3052/95 (cited in point 3), as it had failed 1. declare that, by refusing access to the to notify the Commission of these meas- Spanish market under the name of ures. The Spanish Government rectified this 'limpiador con lejía' (cleaning product by e-mail of 1 August 2000. containing bleach) or similar to prod- ucts lawfully manufactured and mar- keted in other Member States, with an active chlorine content of less than 35 g per litre, the Kingdom of Spain has failed to fulfil its obligations under Article 28 EC; and

13. However, the Spanish Government did not respond to the further letter of formal notice, and so the Commission submitted its reasoned opinion to the Government on 24 July 2000. The Spanish Government 2. order the Kingdom of Spain to pay the r e s p o n d e d t o t h i s in w r i t i n g o n costs of the proceedings.

I - 13151

OPINION OF MR ALBER — CASE C-358/01

15. The Kingdom of Spain claims that the V — On the admissibility of the appli- Court should cation

1. declare that the information about the A — Submissions of the parties undertakings Procter & Gamble Esp- aña S.A. and Colgate-Palmolive España S.A., as well as about the products in issue in the penalty proceedings, which is contained in the Defence and in its 1. Kingdom of Spain annexes, is confidential,

authority of Madrid. The Commission had problem of refusing access to the market to noted that the decisions taken in those products lawfully produced and marketed proceedings constituted measures which in other Member States under the name conflicted with the free movement of goods 'cleaning product containing bleach' where within the Community. these have an active chlorine content of less than 35 grams per litre. The administrative sanctions and the report of the Spanish national consumer institute of 7 April 1998 were raised as examples, which, the Com- mission maintains, is apparent from the 19. In its reasoned opinion, the Commis- terms of the application. The reference to sion alleged that the Kingdom of Spain had the report was particularly important, as it infringed Article 28 EC by making adminis- is argued in both the reasoned opinion and trative decisions, such as that referred to the application, that this interprets the above. On the other hand, the complaints mutual recognition clause in Article 17 of made in the Commission's application were Decree 349/1993. The report applies in the n o t l i m i t e d to t h e s e a d m i n i s t r a t i v e whole of the territory of Spain, and its decisions, but were vague and phrased in significance can be seen also in the fact that very general terms. The Commission it is expressly referred to in the judgment of applied for a declaration that the Kingdom the Administrative Court of Madrid of of Spain had failed to fulfil its obligations 11 December 2000. under Article 28 EC et seq., by refusing access to the Spanish market to products lawfully produced and marketed in other M e m b e r States under the description 'cleaning product containing bleach' where these contain less than 35 grams active chlorine per litre. This reference to the minimum content appears for the first time in the application. This, therefore, amounts to an inadmissible extension of the sub- stance of the application, and that is why the application should be struck out as inadmissible. 2 1 . It follows from all of this that the reasoned opinion deals with the problem of refusing access to the market generally, and that the pre-litigation procedure was not limited to the question of sanctions in the penalty proceedings either. Ultimately, the 2. The Commission Commission had merely repeated in its application the conclusions in the reasoned opinion, without altering the substance of the dispute. Rephrasing the issue in dispute is permitted, according to the settled case- law of the Court, as the Spanish Govern- 20. The Commission is of the view that the ment had also stated in its written sub- Spanish Government's approach is based mission. Therefore, the Commission asks on a misunderstanding of the reasoned the Court to dismiss the plea of inadmis- opinion. Essentially, this concerned the sibility.

23. As the Court explained in paragraph 56 of its judgment in Case C-191/95: 10 '[h]owever, that requirement cannot be carried so far as to mean that in every case the statement of complaints in the letter of 2 5 . As described in point 22 of this formal notice, the operative part of the Opinion, the purpose of the pre-litigation reasoned opinion and the form of order procedure is to give the Member State sought in the application must be exactly concerned an opportunity to state its case the same, provided that the subject-matter in response to the charges formulated by the Commission. The Court has declared, for example in Case 51/83, 11 that 'the 8 — See Cases C-152/98 Commission v Netherlands [2001] ECR opportunity for the Member State con- I-3463, paragraph 2 3 , and C-439/99 Commission v Italy cerned to submit its observations consti- [2002] ECR I-305, paragraph 10. 9 — Cases 51/83 Commission v Italy [1984] ECR 2793, para- tutes an essential guarantee required by the graph 4, C-206/96 Commission v Luxembourg [1998] ECR Treaty and, even if the Member State does I-3401, paragraph 13, C-392/96 Commission v Ireland [1999] ECR I-5901, paragraph 51 and C-340/96 Commis- sion v United Kingdom [1999] ECR I-2023, paragraph 36. 10 — Case C-191/95 Commission v Germany [1998] ECR I-5449. 11 — Case C-51/83 (cited in footnote 9, paragraph 5).

I-13154

COMMISSION v SPAIN

not consider it necessary to avail itself 27. According to the settled case law of the thereof, observance of that guarantee is an Court, 1 2the reasoned opinion should rep- essential formal requirement of the pro- resent a detailed and logical exposition of cedure [for a declaration of the failure by a the grounds on which the Commission has Member State to fulfil its obligations]'. The come to the view that the Member State has Kingdom of Spain had the opportunity to failed to fulfil its obligations under the respond to the general charge of denying Treaty. These requirements have been fully access to the market. The Commission's met in the present case. letter of formal notice is broadly drafted; the Spanish authorities could, therefore, have taken note of the charges raised, and availed themselves accordingly of their right to defend themselves.

I-13155

OPINION OF MR ALBER — CASE C-358/01

VI — The merits of the application restrictive effect on trade than a ban. Various Community regulations exist in respect of washing and cleaning products in relation to labelling. These include, for example, Directive 88/379 or the Recom- m e n d a t i o n of t h e C o m m i s s i o n of 13 September 1989. The application of A — Submissions of the parties these regulations allows the consumer to find out about the product ingredients. This could remove the risk of confusing 'bleach' with a 'product containing bleach'. 1. The Commission

I-13156

COMMISSION v SPAIN

2. Kingdom of Spain fied on the grounds of health protection, as the consumer must have a product at his disposal that ensures total disinfection.

33. Before responding to the complaints made by the Commission, the Kingdom of 36. There would be a risk to the health and Spain explains the characteristics of bleach protection of the consumer if imported and its use by Spanish consumers. The main products did not have the same active ingredient of bleach is hypochlorite. In chlorine content as those to which the Spain, bleach products are primarily used Spanish consumer is accustomed and which for domestic cleaning and disinfection, as he expects. Marketing products described they are the most effective disinfectants. as 'bleach', which have only a weak disinfecting power, is, furthermore, mis- leading advertising within the meaning of Directive 84/459.

38. In its rejoinder, the Spanish Govern- to be met by such goods, such as those ment emphasises that access to the Spanish relating to presentation, labelling and pack- market is entirely possible for products aging, even if those rules apply without lawfully produced and marketed in other distinction to domestic p r o d u c t s and Member States. Those who wish to bring imported products. 14 such products onto the market must, how- ever, prove that they have the same dis- infecting characteristics as conventional bleach products. This is not disproportion- ate or contrary to the provisions of the EC Treaty. 40. Consequently it must be considered to what extent the Spanish ban on bringing products onto the market, which contain less than 35 grams active chlorine per litre, but which are lawfully marketed and marketed in other Member States under the name of 'cleaning product containing bleach', represents an obstacle to the free movement of goods.

B — Assessment

1. Is there an obstacle to the free movement of goods

44. The Spanish Government argues that these products may be marketed under the name 'cleaning product containing bleach' if the three conditions set out in the report of the Instituto nacional del consumo have been met. To that extent, access to the Spanish market is not, in principle, pro- hibited. The interpretation by that institute of the mutual recognition clause does not 43. In the present case, it is true that the conflict with the text of Article 17 of trade description, 'cleaning product con- Decree 349/1993 or, consequently, with taining bleach', is not reserved to Spanish the Community's rules on the free move- products. Rather, it may be applied to any ment of goods. product containing at least 35 grams active chlorine per litre. According to information given by the Commission, comparable p r o d u c t s are also m a r k e t e d in other Member States, albeit with a lower chlorine content; only in Belgium is the concen- tration as high as in Spain. The Spanish authorities point out that the products which were at issue in the penalty proceed- ings contained significantly less active 45. This argument cannot stand. Fulfilment chlorine, namely 9 grams per litre and of the prescribed conditions, or rather, 10.4 grams per litre. The Spanish regu- submission of the requisite evidence, lations thus favour a typical domestic amounts to an additional requirement for product and, at the same time, operate to foreign products, which hinders the free the disadvantage of products lawfully movement of bleach products. If the Span- ish authorities interpret the mutual recog- nition clause in this manner, they are 15 — Opinion of 6 December 2001 in Case C-14/00 Commis- undermining its purpose altogether. sion v Italy [2003] ECR I-513, points 33 and 36. 16 — See also Cases 193/80 Commission v Italy [1981] ECR 3019, paragraph 26 and Case 286/86 Ministère public v Deserbais [1988] ECR 4907, paragraph 12. 17 — See Case 193/80, cited in footnote 16, paragraph 20.

50. The Spanish provision is undoubtedly suited to protecting the health of the Spanish population. Because of the ban, Spanish consumers can only buy products with a relatively high active chlorine con- tent, which have very strong disinfecting 2. Justification for the restriction of free qualities. The likelihood is thus higher that movement of goods use of these products will result in as many germs being killed as possible.

48. The Spanish Government's first line of 51. In order for the provision at issue to be argument to justify the regulations at issue compatible with Community law, however,

I-13160

COMMISSION v SPAIN

it must not exceed that which is required to The consumer would remain free, as now, achieve its purpose. The Commission's to opt for a Spanish product, if he wished submissions reveal that comparable bans to have a particularly strong disinfectant. do not apply in other Member States, This argument is valid. The settled case-law where products with a significantly lower of the Court 18 presumes the consumer to active chlorine content are marketed. The be an informed adult, who may easily be case for necessity could be supported by the trusted to make a conscious purchasing Spanish G o v e r n m e n t ' s a r g u m e n t t h a t decision. relatively high temperatures prevail in Spain. The probability of micro-organisms multiplying is, therefore, high, and, in order to keep in check the associated risks, disinfection is a necessary measure for the preservation of public health.

I-13161

OPINION OF M R ALBER — CASE C-358/01

concentration required by the Spanish the justification on grounds of consumer regulation now in force is thus significantly protection, as the issues are similar. It must higher than is necessary. be concluded, therefore, that the complete ban on marketing on grounds of health protection cannot be justified.

55. National measures which have, or could have, a restrictive effect on the import of goods, are only compatible with the Treaty if they are necessary for the 4. Justification on grounds of consumer effective protection of health and human protection life. A national law or practice conflicts with Article 30 EC, therefore, if health or human life could be equally effectively protected by measures which are less restrictive of intra-Community trade. 20

58. The Spanish regulations apply without 6 1 . It must, therefore, be considered distinction to domestic and foreign prod- whether the measure is proportionate to ucts. Thus the first condition is met. the objective pursued. The Commission takes the view that it is impossible to insist that a product, which consists of several ingredients, should have the same qualities as one of its ingredients. Further, consumer protection may be achieved by measures which have a less restrictive effect on intra-Community trade. According to the settled case-law of the Court, in the absence of harmonisation at Community level, such national measures are compatible with Article 28 et seq. of the Treaty as are 59. The Spanish Government maintains the necessary in order to ensure the correct view that the ban at issue is justified on description of products and thereby prevent consumer protection grounds. Spain is the any mistake by the consumer, and guaran- member of the European Community with tee the integrity of trade. 24 the highest consumption of bleach per member of the population. The Spanish consumer has traditionally only known bleach products with a high active chlorine c o n t e n t , and expects the same from imported products. If these are marketed in Spain, the consumer would be at risk of confusing the products, and not achieving 62. The ban on marketing 'cleaning prod- the disinfectant effect he expects and ucts with bleach' under this description is requires. This could have negative con- suitable for protecting the Spanish con- sequences for the consumer. sumer from mistakes. The ban also ensures that only bleach products containing at least 35 grams active chlorine per litre are offered for sale, and that the customs and expectations of Spanish consumers are thereby met.

that the ban is not necessary, and proposes, in another Member State. The importing for example, the affixing of appropriate Member State may not prohibit the import labelling, containing information about the and trade of such products under this manufacture and relevant characteristics of generic description if consumers are not the product. The Court has, in its case-law, provided with information. 27 acknowledged that labelling which describes the nature and characteristics of the product being sold, is, as a rule, a less drastic measure. 25 The Spanish Govern- ment takes the view that this solution cannot guarantee consumer protection to the same extent, as the consumer would not really be able to understand and assess the information on the label. Furthermore, scientific analysis would be necessary to identify the disinfectant strength of the product, which the consumer himself would be unable to carry out.

I - 13164

COMMISSION v SPAIN

66. The Spanish Government argues that products with bleach to Spain must comply the case-law which has been developed by with. Article 7 of the Directive stipulates the Court in relation to labelling does not the information which must be quite legibly apply to the present case. Case-law has and indelibly affixed to the packaging. developed in relation to foodstuffs and Article 7(c) provides that the chemical cosmetics, and cannot be applied to clean- composition of the substance or substances ing products such as bleach, as consumers must be stated according to the regulations cannot assess the disinfectant qualities of set out therein. It must be assumed that the the product by reading the label. This point level of safety set by the Directive is cannot be accepted. adequate to satisfy the consumer protection argument put forward by the Spanish Government.

I-13165

OPINION OF MR ALBER — CASE C-358/01

70. As a result it must be concluded that VII — Costs the ban on marketing products which are lawfully manufactured and marketed in other Member States under the name 'cleaning product with bleach' is dispro- portionate, because it is not the simplest means of ensuring that the Spanish con- sumer is protected from mistaking these for Spanish bleach products. The requirement 71. According to Article 69(2) of the Rules of appropriate labelling is less invasive in of Procedure, the unsuccessful party must terms of the free movement of goods. To bear the costs, where an application to that that extent, the Spanish provision is not effect has been made. As the Kingdom of suited to justifying the established restric- Spain has failed in its submissions, and the tion of the free movement of goods. It Commission has applied for the Kingdom follows that the Commission's application of Spain to bear the costs, the Kingdom of must be upheld. Spain should be ordered to pay the costs.

VIII — Conclusion

72. On the basis of the foregoing, it is proposed that the Court should rule as follows:

(1) By refusing access to the Spanish market to products lawfully manufactured and marketed in other Member States under the name of 'limpiador con lejía' (cleaning product containing bleach), or similar, with an active chlorine content of less than 35 grams per litre, the Kingdom of Spain has failed to fulfil its obligations under Article 28 EC.