Opinion of the Advocate General — ECLI:EU:C:2025:676
Date: 2025-09-04
Language of the case: German

Summary C-473/24 – 1 
Case C-473/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
4 July 2024 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
27 June 2024 
Defendant and appellant on a point of law: 
Speyer & Grund GmbH & Co. KG 
Applicant and respondent on a point of law: 
Werner & Mertz GmbH 
  
Subject matter of the main proceedings 
Civil proceedings pending at last instance (appeal on a point of law) before the 
Bundesgerichtshof (Federal Court of Justice), in which the applicant and 
respondent on a point of law (hereinafter: applicant) is seeking, in relation to two 
products that contain, among other ingredients, acetic acid and can be used both as 
a cleaning agent and as a food (‘dual-use products’), an order, among other things, 
prohibiting the defendant and appellant on a point of law (hereinafter: defendant) 
from advertising these products as a food and obligating the defendant to comply 
with certain provisions of European Union law 
Subject matter and legal basis of the request 
Interpretation of European Union law under Article 267 TFEU in the areas of 
hazardous substances, food hygiene and food safety 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-473/24 
 
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Questions referred for a preliminary ruling 
1. Is the first sentence of point (a) of Article 3(1) of Regulation (EU) 
No 528/2012 to be interpreted as meaning that the intended purpose necessary for 
a product to be categorised as a biocidal product must be the sole or primary 
purpose, or is it sufficient that a product is also intended – albeit secondarily – to 
be used as a biocidal product? 
2. Is the second sentence of Article 2(1), read in conjunction with Annex V to 
Regulation (EU) No 528/2012, to be interpreted as meaning that a biocidal 
product, which is (also) intended for cleaning food, falls within the scope of 
Regulation (EU) No 528/2012 as a product of product-type 4 (Food and feed area) 
in Main group 1 (Disinfectants)? 
3. Is point (e) of the first subparagraph of Article 2(2) and the second 
subparagraph of Article 2(2) Regulation (EU) No 528/2012 to be interpreted as 
meaning that a biocidal product, which is (also) intended for the 
cleaning/disinfection of foods, falls solely within the scope of Regulation (EC) 
No 852/2004 of the European Parliament and of the Council of 29 April 2004 on 
the hygiene of foodstuffs (OJ L 139, 30.4.2004, p. 1), and in particular is not 
included in the scope of Regulation (EU) No 528/2012 by virtue of the reverse 
exception provided for in the second subparagraph of Article 2(2) thereof? 
4. Is the area exception for food provided for in point (e) of Article 1(5) of 
Regulation (EC) No 1272/2008 to be interpreted as meaning that that Regulation 
applies to a product, which is intended as both a food as defined in Article 2 of 
Regulation (EC) No 178/2002 of the European Parliament and of the Council of 
28 January 2002 laying down the general principles and requirements of food law, 
establishing the European Food Safety Authority and laying down procedures in 
matters of food safety (OJ L 31, 1.2.2002, p. 1) and as a biocidal product as 
defined in Article 2(1) and the first sentence of point (a) of Article 3(1) of 
Regulation (EU) No 528/2012, notwithstanding that area exception, if applicable 
provided that the intended purpose as a biocide is the primary purpose? 
5. Is the area exception for food provided for in point (d) of Article 2(6), read 
in conjunction with Title IV, of Regulation (EC) No 1907/2006 to be interpreted 
as meaning that the application of Title IV to a product within the meaning of the 
fourth question referred for a preliminary ruling is not precluded, notwithstanding 
that area exception, if applicable provided that the intended purpose as a biocide is 
the primary purpose? 
Provisions of national law cited 
Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb; 
UWG), Section 3(1), Section 3a and Section 8(1) and Section 8(3) subparagraph 1 
SPEYER & GRUND 
 
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Provisions of European Union law cited 
Regulation (EU) No 528/2012 of the European Parliament and of the Council of 
22 May 2012 concerning the making available on the market and use of biocidal 
products (OJ 2012 L 167, p. 1; hereinafter: Biocidal Products Regulation), in 
particular Article 1(1), the second sentence of Article 2(1) read in conjunction 
with Annex V, point (e) of the first subparagraph of Article 2(2) and the second 
subparagraph of Article 2(2), the first sentence of point (a) of Article 3(1), 
Article 3(2) and Article 72(1) 
Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 
16 December 2008 on classification, labelling and packaging of substances and 
mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and 
amending Regulation (EC) No 1907/2006 (OJ 2008 L 353, p. 1; hereinafter: CLP 
Regulation), in particular point (e) of Article 1(5) 
Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 
18 December 2006 concerning the Registration, Evaluation, Authorisation and 
Restriction of Chemicals (REACH), establishing a European Chemicals Agency, 
amending Directive 1999/45/EC and repealing Council Regulation (EEC) 
No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council 
Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 
93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1, as corrected by OJ 2007 L 136, 
p. 3; hereinafter: REACH Regulation), in particular point (d) of Article 2(6) 
Regulation (EC) No 852/2004 of the European Parliament and of the Council of 
29 April 2004 on the hygiene of foodstuffs (OJ 2004 L 139, p. 1), Article 1(1) and 
point (a) of Article 2(1) 
Regulation (EC) No 178/2002 of the European Parliament and of the Council of 
28 January 2002 laying down the general principles and requirements of food law, 
establishing the European Food Safety Authority and laying down procedures in 
matters of food safety (OJ 2002 L 31, p. 1), Articles 2, 14 and 16 
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 
2005 concerning unfair business-to-consumer commercial practices in the internal 
market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 
98/27/EC and 2002/65/EC of the European Parliament and of the Council and 
Regulation (EC) No 2006/2004 of the European Parliament and of the Council 
(OJ 2005 L 149, p. 22, as corrected by OJ 2009 L 253, p. 18), Article 3(1) and 
Article 3(3) and Article 4 
Directive 98/8/EC of the European Parliament and of the Council of 16 February 
1998 concerning the placing of biocidal products on the market (OJ 1998 L 123, 
p. 1) 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-473/24 
 
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Succinct presentation of the facts, procedure and main arguments of the 
parties in the main proceedings 
1 The applicant distributes cleaning agents. The defendant advertises and distributes 
products under the brand name ‘SURIG’, including ‘SURIG Essigspray 
UNIVERSAL’ and ‘SURIG Essigspray EXTRA’. These products are chemical 
mixtures composed in any event of water and acetic acid (7.5%) (SURIG 
Essigspray UNIVERSAL) or water, acetic acid (10%) and citric acid (1.5%) 
(SURIG Essigspray EXTRA). The products are sold in transparent spray bottles. 
In addition to the brand name and product name, the label shows unprocessed 
vegetables in the foreground, and a gleaming kitchen sink in the background. A 
round seal on the label reads (in German) ‘Proven food quality’, ‘100% plant-
based’, ‘with recycled PET’. The products have the design illustrated below: 
 
The labels on the back have the following design: 
SPEYER & GRUND 
 
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These read (in German) as follows (extracts): 
‘… The practical spray bottle makes it easy to use on salads, fruit and vegetables. 
1 spray is about 1 ml.’ 
‘…not only suitable for tasty salad dressings, but also a perfect addition to other 
dishes …’ 
2 The applicant argues that the offering of both products as food infringes the 
prohibition on the use of misleading information because they are actually 
cleaning agents, and the offering is unfair because it infringes the market 
behaviour rules laid down in the Biocidal Products Regulation, the CLP 
Regulation and the REACH Regulation. 
3 The applicant sought, inter alia, an order from the court ordering the defendant to 
cease, in the course of trade, 
(a) with respect to ‘SURIG Essigspray UNIVERSAL’ and ‘SURIG Essigspray 
EXTRA’ 
(aa) advertising these products as food and/or allowing these products to be 
advertised as food and/or 
(bb) … 
(cc) advertising these products and/or allowing these products to be 
advertised, without providing the sentences specified in Article 72(1) 
of the Biocidal Products Regulation, in particular ‘Use biocides safely. 
Always read the label and product information before use.’ and/or 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-473/24 
 
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(b) with respect to ‘SURIG Essigspray EXTRA’ 
(aa) offering this product and/or allowing this product to be offered, 
without providing on the respective product labels suitable warnings 
arising from and required by the CLP Regulation in relation to the 
health risks to the skin and eyes associated with these products and/or 
(bb) offering this product and/or allowing this product to be offered, without 
making available a safety data sheet that meets the requirements laid 
down in Article 31, read in conjunction with Annex II, of the REACH 
Regulation, 
if and in so far as the products ‘SURIG Essigspray UNIVERSAL’ and ‘SURIG 
Essigspray EXTRA’ are offered and/or distributed, as shown in the illustrations 
above. 
4 By its appeal on a point of law, which the applicant is seeking to have dismissed, 
the defendant is pursuing its application for complete dismissal of the action. 
Succinct presentation of the reasoning in the request for the preliminary 
ruling 
5 With regard to the applications made by the applicant, as set out in point 3, the 
success of the appeal depends on the interpretation of the second sentence of 
Article 2(1), read in conjunction with Annex V, and the first sentence of point (a) 
of Article 3(1) of the Biocidal Products Regulation, point (e) of Article 1(5) of the 
CLP Regulation and point (d) of Article 2(6) of the REACH Regulation. 
Preliminary remarks on the first to third questions referred 
6 The success of the appeal against the defendant’s conviction as sought by 
application for injunctive relief 1 a cc set out in point 3 depends on whether the 
products at issue are biocidal products within the meaning of the Biocidal 
Products Regulation (first sentence of point (a) of Article 3(1) of the Biocidal 
Products Regulation) and fall within its scope (Article 2 of the Biocidal Products 
Regulation). Only in that case would there be, as claimed in that application, an 
infringement of Article 72(1) of the Biocidal Products Regulation – which 
governs the advertising of biocidal products – which would constitute an unfair 
act within the meaning of Section 3 of the UWG and would be unlawful under 
Section 3(1) of the UWG, which, because of the risk of recurrence in the present 
case, would give rise to a right of cease and desist under the first sentence of 
Section 8(1) of the UWG that could be relied on by the applicant as a competitor 
(Section 8(3) subparagraph 1 of the UWG). A conviction as sought by application 
1 a aa as set out in point 3 can also only be considered if the products at issue fall 
under the Biocidal Products Regulation. 
SPEYER & GRUND 
 
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The first question referred for a preliminary ruling 
7 Under the first indent of the first sentence of point (a) of Article 3(1) of the 
Biocidal Products Regulation, for the purposes of that Regulation, ‘biocidal 
product’ means any mixture (likewise any substance), in the form in which it is 
supplied to the user, consisting of, containing or generating one or more active 
substances, with the intention of destroying, deterring, rendering harmless, 
preventing the action of, or otherwise exerting a controlling effect on, any harmful 
organism by any means other than mere physical or mechanical action. Under 
point (c) of Article 3(1) of the Biocidal Products Regulation, the term ‘active 
substance’ means a substance or micro-organism that has an action on or against 
harmful organisms. Under point (b) of Article 3(2) of the Biocidal Products 
Regulation, read in conjunction with Article 3(2) of the REACH Regulation, 
‘mixture’ means a mixture or solution composed of two or more substances. 
8 According to the case-law of the Court of Justice, the criteria of having an (active) 
substance, the intended purpose and the mode of action are three cumulative 
conditions which must be satisfied in order for a product to be classified as a 
biocidal product. It is for the national court to determine whether the product in 
question satisfies all the conditions laid down in this provision in order to come 
under that definition (see judgment of 14 October 2021, Biofa, C-29/20, 
EU:C:2021:843, paragraphs 23 and 26). 
9 There is no dispute between the parties to the main proceedings as to whether the 
first condition (active substance) and the third condition (mode of action) for the 
classification of the products at issue here as biocidal products are met. 
Clarification of European Union law is required as regards the second condition 
(intended purpose). The question that arises is whether the required intended 
purpose as a biocide must be the sole or the primary purpose, or whether it is 
sufficient that a product is also intended, albeit secondarily, as a biocidal product 
(dual-use product). 
10 In this respect, an objective intended purpose recognisable to the public must be 
required and an overall view of the product and its presentation must be taken. In 
the view of the referring court, the qualification of dual-use products as biocides 
within the meaning of the first sentence of point (a) of Article 3(1) of the Biocidal 
Products Regulation does not depend on whether their purpose as biocides is the 
sole or primary purpose. On the contrary, it is sufficient that the product also has 
at least one intended purpose as a biocide among purposes. In this respect, 
particular account should be taken of the aim, which is based on the precautionary 
principle and set out in Article 1(1) of the Biocidal Products Regulation, of 
ensuring a high level of protection of both human and animal health and the 
environment, which is also emphasised in recital 3 of the Biocidal Products 
Regulation. This high level of protection can only be ensured if the provisions of 
the Biocidal Products Regulation already apply if a product that satisfies the first 
([active] substance) and the third condition (mode of action) of the first sentence 
of point (a) of Article 3(1) of the Biocidal Products Regulation also has at least 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-473/24 
 
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one intended purpose as a biocide within the meaning of the second condition, 
even if this is not its sole purpose. This is in line with the fact that the Court of 
Justice of the European Union has pointed out that the mere presence of an active 
substance as such in a product can pose a risk to the environment (see judgment of 
14 October 2021, Biofa, C-29/20, EU:C:2021:843, paragraph 35). 
The second question referred for a preliminary ruling 
11 The scope of the Biocidal Products Regulation could also be opened, in 
accordance with Article 2(1) thereof, merely because the products at issue may be 
included in the list of biocidal product types covered by the Biocidal Products 
Regulation, in accordance with the second sentence of Article 2(1), read in 
conjunction with Annex V, of the Biocidal Products Regulation. In this respect, 
however, the further question requiring clarification arises as to whether the 
second sentence of Article 2(1), read in conjunction with Annex V, of the Biocidal 
Products Regulation is to be interpreted as meaning that a biocidal product which 
is (also) intended for cleaning food, falls within the scope of the Biocidal Products 
Regulation as a product of product-type 4 (Food and feed area) in Main group 1 
(Disinfectants). 
12 Pursuant to the first sentence of Article 2(1) of the Biocidal Products Regulation, 
the Regulation applies to biocidal products and treated articles. The second 
sentence of Article 2(1) of the Biocidal Products Regulation refers to Annex V, 
which contains a list of the types of biocidal products falling under the Biocidal 
Products Regulation, together with their description. Annex V specifies 
‘Disinfectants’ as Main group 1. The introductory sentence of this main group 
states that these product-types exclude cleaning products that are not intended to 
have a biocidal effect, including washing liquids, powders and similar products. 
The subsequently specified ‘Product-type 4: Food and feed area’ includes 
products used for the disinfection of equipment, containers, consumption utensils, 
surfaces or pipework associated with the production, transport, storage or 
consumption of food or feed (including drinking water) for humans and animals. 
Also specified here are products used to be incorporated into materials which may 
enter into contact with food. 
13 The question of whether products that are (also) intended for the 
cleaning/disinfection of food itself fall under product-type 4 of main group 1 of 
Annex V to the Biocidal Products Regulation cannot be answered unequivocally. 
14 The extensive list of product-types in Annex V to the Biocidal Products 
Regulation could be an exhaustive list. It could also follow from the naming 
(only) of products intended to disinfect drinking water as product-type 5 in main 
group 1 that products for cleaning other food should not be covered by the 
Regulation. 
SPEYER & GRUND 
 
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15 However, in the view of the referring court, it should rather be assumed that 
products for cleaning and disinfecting food are covered by product-type 4 of main 
group 1 of Annex V to the Biocides Regulation: 
16 (1) According to its wording, product-type 4 covers products used for the 
disinfection of surfaces associated with the consumption of food for humans. This 
may include the disinfection of food surfaces. In addition, the ‘Food and feed 
area’ covered by product-type 4 also includes food itself. 
17 (2) The systematic context of the legislation speaks in favour of a broad scope. 
According to recital 18 of the Biocidal Products Regulation, product-type 
descriptions are only examples. The list cannot therefore be assumed to be 
exhaustive. 
18 (3) Interpretation in line with the meaning and purpose of the provision also 
shows that products for cleaning food are covered by product-type 4. This is the 
only way to take adequate account of the precautionary principle, which aims to 
ensure the protection of human and animal health and the environment (second 
sentence of Article 1(1) of the Biocidal Products Regulation). 
19 (4) Reference to product-type 5 ‘Drinking water’, which includes products used 
for the disinfection of drinking water for humans and animals and from which it is 
supposed to follow that products for cleaning ‘other food’ are not covered by the 
Regulation, is also not convincing. This is already apparent from the fundamental 
separation between ‘Food and feed area’ (product-type 4) on the one hand and 
‘Drinking water’ (product-type 5) on the other hand in the product-types listed in 
Annex V to the Biocidal Products Regulation. 
20 (5) The non-inclusion of product-type 20 from the (predecessor) Directive 98/8 in 
the Biocidal Products Regulation is also irrelevant. According to recital 23 of the 
Biocidal Products Regulation, products used for the protection of food and feed 
against harmful organisms hitherto covered by product-type 20 are covered by 
regulations which are not relevant in the present case. 
21 (6) In so far as, in Annex V, cleaning agents that are not ‘intended’ to have a 
biocidal effect are, according to the introductory sentence for ‘Main group 1: 
Disinfectants’, excluded from these product-types, it can be assumed that this 
means, in line with the first sentence of point (a) of Article 3(1), the – objective – 
intended purpose. This is demonstrated by the English and French versions, which 
do not use different terms in this regard, but both in the first sentence of point (a) 
of Article 3(1) of the Biocidal Products Regulation and in the introductory 
sentence of Main group 1: Disinfectants use the wording ‘intended to/intention’ 
and ‘destiné/destinés’ respectively. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-473/24 
 
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The third question referred for a preliminary ruling 
22 In so far as the products fundamentally fall within the scope of the Biocidal 
Products Regulation, it is also necessary to clarify the interpretation of the area 
exception provided for in point (e) of the first subparagraph of Article 2(2) of the 
Biocidal Products Regulation, as well as the reverse exception provided for in the 
second subparagraph of Article 2(2) of the Biocidal Products Regulation. The 
question which arises is whether point (e) of the first subparagraph of Article 2(2) 
and the second subparagraph of Article 2(2) of the Biocidal Products Regulation 
are to be interpreted as meaning that a biocidal product, which is (also) intended 
for the cleaning/disinfection of food, falls solely within the scope of Regulation 
No 852/2004 and, in particular, is not included in the scope of the Biocidal 
Products Regulation by virtue of the reverse exception provided for in the second 
subparagraph of Article 2(2) thereof. 
23 Under point (e) of the first subparagraph of Article 2(2) of the Biocidal Products 
Regulation, the Biocidal Products Regulation does not apply, subject to any 
explicit provision to the contrary in this Regulation or other Union legislation, to 
biocidal products or treated articles falling within the scope of Regulation 
No 852/2004. Under the second subparagraph of Article 2(2) of the Biocidal 
Products Regulation, the Regulation also applies, notwithstanding the first 
subparagraph, to biocidal products which fall within the scope of one of the 
instruments referred to in the first subparagraph, including also Regulation 
No 852/2004, and are intended to be used for purposes not covered by those 
instruments, in so far as those purposes are not addressed by those instruments. 
24 Regulation No 852/2004 governs the production and processing of food. Its basic 
rules form the general basis for the hygienic production of all foods (recital 5). 
Under the first subparagraph of Article 1(1) of Regulation No 852/2004, that 
Regulation lays down general rules for food business operators on the hygiene of 
foodstuffs, taking particular account of certain principles that are set out in more 
detail. Under the second subparagraph of Article 1(1) of Regulation No 852/2004, 
that Regulation applies to all stages of production, processing and distribution of 
food and to exports, and without prejudice to more specific requirements relating 
to food hygiene. The term ‘food hygiene’ is defined in point (a) of Article 2(1) of 
Regulation No 852/2004 as the measures and conditions necessary to control 
hazards and to ensure fitness for human consumption of a foodstuff taking into 
account its intended use. Annexes I and II to the Regulation contain the general 
hygiene rules for food business operators, including Chapter IX of Annex II to the 
Regulation, which lays down, for example, adequate procedures for controlling 
pests (point 4, first sentence). 
25 Accordingly, a biocidal product which is (also) intended – like the products at 
issue – for the cleaning of food, could fall within the scope of Regulation 
No 852/2004 because it can be used in the context of food hygiene – for example 
to control pests – within the meaning of that Regulation. 
SPEYER & GRUND 
 
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26 Regulation No 852/2004 does not govern the lawfulness of the use of biocidal 
products for cleaning and disinfection purposes. It is therefore doubtful whether 
all biocidal products used in food hygiene within the meaning of Regulation 
No 852/2004 and (also) intended for this purpose should actually be excluded 
from the scope of the Biocidal Products Regulation by virtue of the area exception 
laid down in point (e) of the first subparagraph of Article 2(2) of the Biocidal 
Products Regulation. That conclusion is contradicted by the fact that Annex V to 
the Biocidal Products Regulation, by means of product-type 4 ‘Food and feed 
area’ in Main group 1: Disinfectants’, expressly lists products for disinfection in 
the area of food and feed as a product-type of biocidal products within the 
meaning of the second sentence of Article 2(1) of the Biocidal Products 
Regulation. It could be inferred from this that disinfectants should also be covered 
by the Biocidal Products Regulation in the area of food production and in 
delimitation from other legislative acts. The Biocidal Products Regulation 
therefore also takes into account the risks associated with the use of biocidal 
products for humans, animals and the environment in the context of the food 
production. 
27 To delimit the respective scopes of the Biocidal Products Regulation and 
Regulation (EC) No 852/2004, one could rely on whether Regulation 
No 852/2004 subjects the biocidal product concerned and its use to a more 
specific or exhaustive regulatory regime, for example because it poses specific 
risks to food hygiene. For biocidal products which, as in the present case, are used 
for the disinfection of food, Regulation No 852/2004 does not constitute a more 
specific regulatory regime. The lawfulness of the use of (specific) biocidal 
products as cleaning and disinfection agents for production sites and production 
means is also not specifically or exhaustively governed by Regulation 
No 852/2004. On the contrary, that Regulation contains only general hygiene 
rules. 
No general area exception in the Biocidal Products Regulation for food 
28 The Biocidal Products Regulations only contains express derogations for certain 
types of food (see points (e), (f) and (g) of the first subparagraph of Article 2(2), 
point (a) of Article 2(5) of the Biocidal Products Regulation). Food should 
otherwise be covered by the Biocidal Products Regulation without restriction. The 
first subparagraph of Article 2(2) of the Biocidal Products Regulation does not 
contain an area exception for food within the meaning of Regulation 
No 178/2002. 
29 The first sentence and point (a) of the second sentence of Article 25, read in 
conjunction with Annex I, of the Biocidal Products Regulation, also supports the 
view that the Biocidal Products Regulation can also apply to food, in particular 
vinegar. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-473/24 
 
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The fourth question referred for a preliminary ruling 
30 The defendant’s appeal against the conviction sought by application for injunctive 
relief 1 b aa must be upheld if the products at issue do not fall within the scope of 
the CLP Regulation. In this respect, the question arises whether the area exception 
for food provided for in point (e) of Article 1(5) of the CLP Regulation is to be 
interpreted as meaning that the CLP Regulation applies to a product which is 
intended both as food within the meaning of Article 2 of Regulation No 178/2002 
and as a biocidal product within the meaning of Article 2(1) and the first sentence 
of point (a) of Article 3(1) of the Biocidal Products Regulation, notwithstanding 
this area exception, if applicable provided that the intended purpose as a biocide is 
the primary purpose. 
31 ‘SURIG Essigspray EXTRA’ is a mixture as defined in point 8 of the first 
subparagraph of Article 2 of the CLP Regulation, which is classified as hazardous 
under the first subparagraph of Article 3, Part 3.2.3.3.3 of Annex I, read in 
conjunction with Table 3.2.3 of the CLP Regulation. The question arises, 
however, whether the area exception laid down in point (e) of Article 1(5)of the 
CLP Regulation excludes the application of the CLP Regulation. 
32 Under point (e) of Article 1(5) of the CLP Regulation, the CLP Regulation does 
not apply to food as defined in Regulation No 178/2002 as substances and 
mixtures in the finished state intended for the final user. The wording of this area 
exception is relevant because ‘SURIG Essigspray EXTRA’ is (also) a food as 
defined in Article 2 of Regulation No 178/2002. The area exception cannot be 
interpreted in a restricted manner for products which, as in the present case, are 
intended not only as foods but also are intended, if applicable primarily, as 
biocidal products. Unlike the Biocidal Products Regulation, which does not 
contain a clear area exception for food as defined in Article 2 of Regulation 
No 178/2002, this conclusion is precluded by the clear wording of point (e) of 
Article 1(5) of the CLP Regulation and recital 11 of the CLP Regulation. 
Accordingly, the Regulation fundamentally applies to all substances and mixtures 
supplied within the Community, except where other Community legislation lays 
down more specific rules on classification and labelling, such as, in the present 
case, Regulation No 178/2002. Given that Article 14(1) of Regulation 
No 178/2002 lays down food safety requirements, including a prohibition on the 
placing on the market of unsafe foods, and that Article 16 of Regulation 
No 178/2002 prohibits the use of misleading information as regards the labelling, 
advertising and presentation of food, that Regulation contains more specific rules 
as regards the classification and labelling of foodstuffs and therefore, in the view 
of the referring court, it takes precedence over the CLP Regulation in this respect. 
The fifth question referred for a preliminary ruling 
33 The defendant’s appeal against the conviction sought by application for injunctive 
relief 1 b bb must be upheld if the products at issue do not fall within the scope of 
the REACH Regulation. In this context, too, the question arises as to whether the 
SPEYER & GRUND 
 
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area exception for food provided for in point (d) of Article 2(6), read in 
conjunction with Title IV, of the REACH Regulation is to be interpreted as 
meaning that the application of Title IV to a product within the meaning of the 
fourth question referred is not precluded, notwithstanding this exception – if 
applicable provided that the intended purpose as a biocide is the primary purpose. 
34 Under point (d) of Article 2(6) of the REACH Regulation, Title IV shall not apply 
to food or feed as defined in Regulation No 178/2002 as mixtures in the finished 
state intended for the final user. Title IV also lists point (a) of Article 31(1) of the 
REACH Regulation, under which the supplier of a substance or mixture is to 
provide the recipient of the substance or mixture with a safety data sheet 
complying with Annex II if the substance or mixture meets the criteria for 
classification as hazardous under the CLP Regulation. 
35 The area exception provided for in point (d) of Article 2(6) of the REACH 
Regulation is, according to its wording, relevant to Title IV. It seems doubtful 
whether it can be interpreted in a restrictive manner, contrary to its clear wording 
and taking into account the aims of the REACH Regulation, namely to ensure a 
high level of protection of human health and the environment (see recital 1), in 
relation to dual-use products such as ‘SURIG Essigspray EXTRA’ at issue here.