CJEC, 6th chamber, November 23, 1989, No C-150/88

THE COURT (Sixth Chamber)

1 By order dated 4 May 1988 which was received at the Court on 26 May 1988, the Landgericht Koeln referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Council Directive 76-768-EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (Official Journal 1976, L 262, p. 169), for the purpose of determining whether the Italian rules adopted to implement that directive were compatible with Community law.

2 Those questions were raised in proceedings between the German company Kommanditgesellschaft in Firma Eau de Cologne & Parfuemerie-Fabrik Glockengasse No 4711 (hereinafter referred to as "4711 ") and the Italian company Provide SRL, in connection with the performance of a contract for the sale of cosmetic products.

3 Under Article 6(1)(a) of the directive, Member States are to take all measures necessary to ensure that cosmetic products may be marketed only if their packaging, containers or labels bear, inter alia, the name or style and the address or registered office of the manufacturer or the person responsible for marketing the cosmetic product who are established within the Community. Article 6(2) provides that Member States are also to take all measures necessary to ensure that in the labelling, presentation for sale and advertising of cosmetic products, the wording, use of names, trade marks, images or other signs, figurative or otherwise, suggesting a characteristic which the products in question do not possess, is prohibited.

4 Article 8(1)(a) of Italian Law No 713 of 11 October 1986, implementing Article 6(1)(a) of the abovementioned directive, as interpreted by ministerial circular, requires that the name of the Italian producer of a cosmetic product or the person in Italy responsible for marketing the product should be mentioned. For products already bearing details of the producer or person responsible for marketing who is established in another Member State, it is sufficient if the Italian undertaking responsible for marketing in Italy indicates its particulars on the outer packaging of the product after importation and before sale to the public. Article 8(1)(d) of the abovementioned law, which implements Article 6(2) of the directive, requires an indication of the quality and quantity of the substances whose presence is indicated on the packaging, in advertisements or in the product' s name.

5 Provide ordered from 4711 a quantity of Vitamol, a cosmetic product whose packaging and instructions for use mentioned the names of the vitamins it contained and in particular D-Panthenol. 4711 guaranteed, inter alia, that the product in question satisfied the laws and other legal provisions in force and could be marketed in Italy.

6 Provide subsequently refused to take delivery of the order on the ground that it did not comply with the terms of the contract. The product was not marketable in Italy because, contrary to the abovementioned provisions of Italian law, there was no indication of either the Italian importer or the quantities of the vitamins contained in the product, although the names of those vitamins were expressly mentioned on the packaging.

7 4711 brought proceedings before the Landgericht Koeln, which had jurisdiction under the terms of the contract, to obtain performance, claiming in substance that the product provided complied fully with the requirements of the directive and was therefore marketable in all the Member States.

8 The Landgericht Koeln considers that the Italian legislation is contrary to the abovementioned provisions of the directive. In particular, the national court considers that although the obligation to indicate the quality and the quantity of substances does provide a means of achieving the objective pursued by Article 6(2) of the directive, namely that of preventing consumers from being misled in any way, that obligation goes too far and its effectiveness is open to doubt.

9 The Landgericht therefore decided to stay the proceedings and to submit to the Court for a preliminary ruling under Article 177 of the EEC Treaty the following questions :

"(1) Is Article 8(1)(d) of Italian Law No 713 of 11 October 1986 compatible with Article 6(2) of the Council Directive of 27 July 1976 and Article 30 of the EEC Treaty inasmuch as it requires an indication of the quality and quantity of the substances whose presence is indicated on the packaging, in advertisements, or in the product' s name?

(2) Is Article 8(1)(a) of Italian Law No 713, as construed in the Italian Minister of Health' s circular of 2 February 1987, No 3, compatible with Article 6(1)(a) of the Council Directive of 27 July 1976 and Article 30 of the EEC Treaty inasmuch as even in the case of products of a manufacturer established in the Community which are imported into Italy 'the name of the Italian undertaking responsible for marketing' must be given on the packaging, containers or labels?"

10 Reference is made to the Report for the Hearing for a fuller account of the legal background, the facts of the case, the course of the procedure and the written observations submitted to the Court, which are referred to hereinafter only in so far as is necessary for the reasoning of the Court.

Jurisdiction of the Court

11 The Italian Government notes that the preliminary questions arose in the context of a dispute between individuals, the genuineness of which is open to doubt, and that they are intended to permit a court in one Member State to determine whether the rules of another Member State are compatible with Community law. Referring to the Court' s judgment of 16 December 1981 in Case 244-80 Foglia v Novello ((1981)) ECR 3045, the Italian Government therefore expresses its doubts as to the propriety of the request for a preliminary ruling. It further maintains that the Court has no jurisdiction under Article 177 to rule on the compatibility of national legislation with Community law.

12 Those objections must be dismissed. First, the documents before the Court do not allow any doubt as to the genuineness of the dispute in the main proceedings or, therefore, the propriety of the request for a preliminary ruling. Secondly, the Court has consistently held (see, in particular, its judgment of 9 October 1984 in Joined Cases 91 and 127-83 Heineken Brouwerijen BV v Inspecteurs der Vennootschapsbelasting, Amsterdam and Utrecht ((1984)) ECR 3435) that, when ruling on questions intended to permit the national court to determine whether national provisions are in accordance with Community law, the Court may provide the criteria for the interpretation of Community law which will enable the national court to solve the legal problem with which it is faced. The same is true when it is to be determined whether the provisions of a Member State other than that of the court requesting the ruling are compatible with Community law.

The first question

13 The first question seeks, essentially, to determine whether Article 6(2) of the directive, cited above, precludes national rules from requiring an indication of the quality and quantity of the substances whose presence is indicated on the packaging, in advertisements, or in the names of cosmetic products.

14 It must be pointed out that the directive was prompted, in the words of one of the recitals in its preamble, by the need "to determine at Community level the regulations which must be observed as regards the composition, labelling and packaging of cosmetic products ". The directive thus seeks to eliminate the differences between national laws, which oblige Community producers to vary their production according to the Member State for which the products are intended and thus hinder trade in those products.

15 Article 6(1) of the directive lists the information which the packaging, containers or labels of cosmetic products are to bear; that list does not include information as to the quality and quantity of the substances mentioned in the presentation of those products.

16 Furthermore, Article 7(1) of the directive provides that Member States may not refuse, prohibit or restrict the marketing of any cosmetic products which comply with the requirements of the directive, subject only to the proviso, in Article 7(2), that they may require that certain of the particulars provided for in Article 6(1) be expressed in their own national or official language or languages.

17 It follows that that list of information is exhaustive, and that a Member State may not require the indication, not expressly provided for in the directive, of particulars as to the quality and quantity of the substances mentioned in the presentation of cosmetic products.

18 Because of the implied obligation to modify the packaging in which the products are legally marketed in certain Member States, such a requirement is likely to hinder trade within the Community. A distributor established in one of those States may even encounter difficulty in exporting cosmetic products to another Member State, if that State requires the indication in question and the producer does not provide the distributor with the requisite information.

19 It must be added that, whilst Article 6(2) of the directive requires Member States to take the measures necessary to ensure that, in the labelling or presentation for sale of cosmetic products, wording, names, trade marks, images or other signs suggesting a characteristic which the products in question do not possess are prohibited, it does not authorize Member States to require information not provided for in the directive on the labelling or packaging of those products.

20 Furthermore, the underlying aim of Article 6(2) of the directive, that of protecting consumers, may be achieved by means less restrictive of Community trade. It appears from a comparison of the national provisions adopted for that purpose that certain Member States have laid down a general prohibition of any indication likely to mislead the consumer. There is nothing to suggest that such a general prohibition is inadequate to achieve the desired end.

21 The answer to the first question must therefore be that Article 6(2) of Council Directive 76-768-EEC precludes national rules from requiring an indication of the quality and quantity of the substances whose presence is indicated on the packaging, in advertisements, or in the names of cosmetic products covered by the directive.

The second question

22 This question seeks, essentially, to determine whether Article 6(1)(a) of the directive prohibits a Member State from requiring, in the case of imported cosmetic products, manufactured by a producer established in the Community, that the name of the undertaking established and responsible for marketing in that State should be given on the packaging, containers or labels of the products.

23 From its wording, it is clear that Article 6(1)(a) of the directive requires only the indication of either the manufacturer or the person responsible for marketing the cosmetic product, in so far as one or the other is established within the Community.

24 It follows that the paragraph in question prohibits a Member State from requiring, in the case of imported cosmetic products, manufactured by a producer established in the Community, that the name of the distributor established and responsible for marketing in that State should be given on the packaging, containers or labels of the products.

25 It is immaterial in that regard that the Member State requires merely that it must be possible to add the particulars of the distributor on the outer packaging of the product after importation and before sale to the public by means which do not make it necessary to open the packaging of the product.

26 Such an obligation makes it in any event more costly to distribute the products and thus entails a barrier to trade, the removal of which is the aim of the directive.

27 The answer to the second question must therefore be that Article 6(1)(a) of the directive prohibits a Member State from requiring, in the case of imported cosmetic products, manufactured by a producer established in the Community, that the name of the undertaking established and responsible for marketing in that Member State should be given on the packaging, containers or labels of the products.

28 Since the directive has provided exhaustively for the harmonization of national rules on the packaging and labelling of cosmetic products, it is not necessary to give a ruling on the interpretation of Article 30 of the Treaty as requested by the national court.

Costs

29 The costs incurred by the Kingdom of Spain, the Italian Republic and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the questions referred to it by the Landgericht Koeln, by order of 4 May 1988, hereby rules :

(1) Article 6(2) of Council Directive 76-768-EEC on the approximation of the laws of the Member States relating to cosmetic products precludes national rules from requiring an indication of the quality and quantity of the substances whose presence is indicated on the packaging, in advertisements, or in the names of cosmetic products covered by the directive;

(2) Article 6(1)(a) of the aforesaid directive prohibits a Member State from requiring, in the case of imported cosmetic products, manufactured by a producer established in the Community, that the name of the undertaking established and responsible for marketing in that Member State should be given on the packaging, containers or labels of the products.