Judgment — ECLI:EU:C:1999:274
Date: 1999-06-03
Language of the case: Dutch
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Approximation of laws
Concepts: Rules concerning the production, denomination and marketing of products;Standardisation
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary translation of the sales descrip­
tion and the price. 
9. Following those findings, Colim applied 
on 27 September 1996 to the national 
court for interim relief; it submitted that 
the sale of a total of 48 products in the 
abovementioned conditions infringed, inter 
alia, Articles 13 and 30 of the Law of 
14 July 1991 and sought an order, subject 
to financial penalties for non-compliance, 
restraining the sale of those products. 
3 — I deduce from those provisions, read together, that contra­
vention of Article 30 is punished under Article 103. 
I -3180 
COLIM V BIGG'S CONTINENT NOORD 
10. In addition, a court bailiff instructed by 
the defendant recorded that the applicant's 
store was likewise selling various products 
which did not bear labelling in Dutch, 
contrary to the Belgian legislation. 
11. The defendant then brought, on 
18 October 1996, a counterclaim before 
the national court which contained claims 
analogous to the applicant's. 
12. The defendant submitted before the 
court that the provisions relied on by the 
applicant, including Articles 13 and 30 of 
the abovementioned Law, were invalid 
because they had not been notified to the 
Commission in accordance with Directive 
83/189. 
13. According to the applicant, on the 
other hand, the language employed for 
labelling and for instructions for use and 
so forth is not a 'characteristic' of a product 
but a means of providing information with 
regard to certain of its characteristics and 
the Belgian provisions therefore did not 
have to be notified to the Commission 
under Directive 83/189. 
14. The national court granted the two 
opposing applications in part and made an 
order, subject to financial penalties for non­
compliance, restraining the parties from 
continuing to sell the relevant products. It 
considered, however, that in order to deter­
mine whether Articles 13 and 30 of the 
Law of 14 July 1991 were consistent with 
Directive 83/189, given the fact that those 
provisions had not been notified to the 
Commission, it should submit to the Court 
of Justice the questions set out below. 
IV — Questions referred for a preliminary 
ruling 
' 1 . Is a legal provision of a Member State 
whereby: 
— the particulars to appear on label­
ling which are mandatory under 
national law; 
— instructions for use; and 
— guarantee certificates; 
must be given at least in the language 
or languages of the area where the 
I -3181 
OPINION OF MR COSMAS — CASE C-33/97 
products are placed on the market, 
with the consequence that the packa­
ging of imported products must be 
altered, a "technical regulation" within 
the meaning of Directive 83/189/EEC? 
2. (a) Where specific Community rules 
exist concerning the particulars 
which must appear on specific 
products, may a Member State 
require imported products to carry 
other information in the language 
of the area in which the products 
are sold or in a language readily 
understood by the consumer? 
(b) If the answer to Question (a) is in 
the affirmative, may such a 
requirement be made of all infor­
mation on packaging or only of 
certain information and, if so, 
which ? 
(c) In respect of products for which 
there are no specific Community 
rules, may a Member State require 
all or certain (and if so which) 
information on the imported pro­
ducts to be given in the language of 
the area in which the products are 
sold or in a language readily under­
stood by the consumer?' 
V — Directive 83/189 
15. The directive lays down a procedure for 
the provision of information under which 
the Member States must communicate any 
draft technical regulation to the Commis­
sion. 
16. In Article 1(1), (5), (6) and (7) the 
terms 'technical specification', 'technical 
regulation', 'draft technical regulation' 
and 'product' are defined as follows: 
'For the purpose of this Directive, the 
following meanings shall apply: 
1. "technical specification", a specifica­
tion contained in a document which 
lays down the characteristics required 
of a product such as levels of quality, 
performance, safety or dimensions, 
including the requirements applicable 
to the product as regards terminology, 
symbols, testing and test methods, 
packaging, marking or labelling and 
the production methods and proce­
dures for agricultural products as 
defined in Article 38(1) of the Treaty 
and for products intended for human 
and animal consumption and for med­
icinal products as defined in Article 1 
of Directive 65/65/EEC, as last amen­
ded by Directive 87/21/EEC; 
I -3182 
COLIM V BIGG'S CONTINENT NOORD 
5. "technical regulation", technical speci­
fications, including the relevant admin­
istrative provisions, the observance of 
which is compulsory, de jure or de 
facto, in the case of marketing or use in 
a Member State or a major part 
thereof, except those laid down by 
local authorities; 
6. "draft technical regulation", the text of 
a technical specification including 
administrative provisions, formulated 
with the aim of enacting it or of 
ultimately having it enacted as a tech­
nical regulation, the text being at a 
stage [of] preparation at which sub­
stantial amendments can still be made; 
7. "product", any industrially manufac­
tured product and any agricultural 
product.' 
17. Article 8(1) of the directive states: 
'Member States shall immediately commu­
nicate to the Commission any draft techni­
cal regulation, except where such technical 
regulation merely transposes the full text of 
an international or European standard, in 
which case information regarding the rele­
vant standard shall suffice; they shall also 
let the Commission have a brief statement 
of the grounds which make the enactment 
of such a technical regulation necessary, 
where these are not already made clear in 
the draft. Where appropriate, Member 
States shall simultaneously communicate 
the text of the basic legislative or regulatory 
provisions principally and directly con­
cerned, should knowledge of such text be 
necessary to assess the implications of the 
draft technical regulation. 
The Commission shall immediately notify 
the other Member States of any draft it has 
received; it may also refer this draft to the 
Committee referred to in Article 5 and, if 
appropriate, to the Committee responsible 
for the field in question for its opinion.' 
18. Following notification, the Commis­
sion and the Member States may comment 
on the draft; under Article 8(2) the relevant 
Member State is to take those comments 
into account as far as possible in the 
subsequent preparation of the technical 
regulation. 
19. In accordance with Article 8(4), the 
information supplied under Article 8 is 
confidential. However, the Committee and 
the Member States may, provided that the 
necessary precautions are taken, consult for 
I -3183 
OPINION OF MR COSMAS — CASE C-33/97 
an expert opinion natural or legal persons, 
including persons in the private sector.4 
20. Under Article 9(1) the Member States 
are to postpone the adoption of a draft 
technical regulation for six months from 
the date of the notification if the Commis­
sion or another Member State delivers a 
detailed opinion, within three months of 
that date, to the effect that the measure 
envisaged must be amended in order to 
eliminate or reduce any barriers which it 
might create to the free movement of 
goods. The relevant Member State is to 
inform the Commission of the action it 
proposes to take with regard to such 
detailed opinions. The Commission is to 
comment on that reaction. In accordance 
with Article 9(2), the period is extended 
from six to twelve months if, within three 
months following the notification under 
Article 8(1), the Commission gives notice 
of its intention to propose or adopt a 
directive on the subject. 
On the other hand, it is apparent from 
Article 9(1) that Member States may adopt 
the notified draft where the Commission or 
a Member State does not comment before 
the three-month period expires. 
21. Article 10 of the directive provides: 
'Articles 8 and 9 shall not apply where the 
Member States fulfil their obligations as 
arising out of Community directives and 
regulations; the same shall apply in the case 
of obligations arising out of international 
agreements which result in the adoption of 
uniform technical specifications in the 
Community.' 
VI — Substance 
Preliminary observations 
22. First of all, the parties agree, rightly in 
my view, that since the Belgian provisions 
at issue predate Directive 94/10, 5 by which 
Directive 83/189 was substantially amen­
ded, Directive 83/189 must be interpreted 
as amended by Directive 88/182. 
23. Also, as the French Government cor­
rectly points out, instructions for use and 
guarantees are not among the technical 
specifications referred to in Article 1(1) of 
the directive and therefore do not fall 4 — Article 8(4) was amended by Directive 94/10/EC of 
23 March 1994 (OJ 1994 L 100, p. 30) so that the 
information supplied is no longer regarded as confidential 
unless the notifying Member State makes a request in that 
regard supported by reasons. However, that directive is not 
applicable in the present case. 5 — Cited in footnote 4 above. 
I -3184 
COLIM V BIGG'S CONTINENT NOORD 
within the directive's field of application. 
The issue as to whether Article 13 of the 
Belgian law is compatible with the directive 
therefore does not arise in so far as that 
article imposes a language requirement in 
relation to those matters.6 
Question 1 
24. Having regard to the above, the issue 
raised by the first question is whether the 
obligation, imposed by Article 13 of the 
Belgian Law of 14 July 1991, that particu­
lars to appear on labelling which are 
mandatory under other provisions must 
be given at least in the language or 
languages of the area constitutes a 'techni­
cal specification' and the provision enact­
ing it constitutes a 'technical regulation' 
within the meaning of Directive 83/189. 
25. The applicant in the main proceedings 
and the French Government maintain that 
that language requirement does not amount 
to a technical regulation within the mean­
ing of the directive. They contend in 
particular that the requirement does not 
relate to the product itself, nor to one of its 
characteristics or the manner in which it is 
conceived, produced and packaged. Fur­
thermore, the terms 'marking' and 'label­
ling' must, for the purposes of the directive, 
be understood as referring to the external 
appearance or the content of labels and not 
to their linguistic form. 
26. By contrast Bigg's, the defendant in the 
main proceedings, considers that the above-
mentioned requirement amounts to a tech­
nical regulation. It submits that the termi­
nology, symbols and labelling constitute the 
means by which information relating to a 
product's characteristics may be conveyed 
and that the mandatory use of a language is 
closely linked with the labelling, packaging 
and terminology. Furthermore, that 
requirement is liable to obstruct the free 
movement of goods, by obliging traders to 
change the packaging or to attach new 
labels to imported products, and therefore 
constitutes a measure having an effect 
equivalent to a quantitative restriction, 
prohibited by the Treaty. 
The United Kingdom Government consid­
ers that, in principle, the words 'character­
istics required of a product' in Article 1(1) 
of the directive include requirements relat­
ing to the provision of information on 
labels, so that a requirement relating to the 
language in which that information is to be 
6 — It should be noted that instructions for use may now, 
following the amending Directive 94/10, be covered as an 
'other requirement' imposed on a product for the purpose of 
protecting consumers and affecting the product's life cycle 
after it has been placed on the market (see Article 1(3) and 
(9) of Directive 83/189, in the version applicable following 
the amendments and additions introduced by Article l(l)(b) 
and (g) of Directive 94/10). Also, instructions for use are 
required by various directives in a variety of instances, for 
example Articles 3(1)(8) and 10 of Directive 79/112 relating 
to the labelling of foodstuffs, and Article 3(2) of Council 
Directive 92/59/EEC of 29 June 1992 on general product 
safety (OJ 1992 L 228, p. 24) in so far as there are no 
specific Community rules (Article 1(2) ofthat directive) and 
so forth. 
I -3185 
OPINION OF MR COSMAS — CASE C-33/97 
provided is also such a characteristic. It 
submits, however, that, in so far as the 
national provisions at issue merely repro­
duce pre-existing measures, using the same 
terminology as national provisions which 
preceded Directive 83/189, they do not 
amount to a draft technical regulation 
within the meaning of Article 1(6) of the 
Directive. 
27. Finally, the Commission states that two 
opposing interpretations are tenable. 
(i) Under the first approach, the obliga­
tion at issue constitutes a technical 
requirement 'as regards terminology, 
symbols... packaging, marking or label­
ling' of the product. An obligation of 
that kind amounts to a regulation 
concerning the requirements which 
the product itself must satisfy, and 
may make it necessary to adapt the 
product to the market in question. The 
Commission states that, if the Court 
were to adopt this interpretation, it 
would be expedient to restrict the 
temporal effects of the ruling, in view 
of the consequences for the Member 
States which have enacted analogous 
provisions without notifying them to 
the Commission. 
(ii) Under the second approach, to which 
the Commission appears to incline, the 
language which is used to convey 
information relating to the product is 
not to be equated with that informa­
tion. A national provision under which 
the particulars appearing on labelling 
must be expressed in a language that 
can be readily understood or in a 
specific language essentially imposes a 
requirement which is inherent in every 
linguistic message, that is to say it must 
be accessible to the reader (addressee). 
28. In my opinion, that divergence in the 
views of the parties and the uncertainty of 
the Commission itself as to the nature of 
the obligation at issue are principally due to 
the lack of clarity in the wording of 
Article 1 of the directive. This lack of 
clarity is aggravated by the directive's very 
broad scope, which has been continually 
extended by the successive amendments to 
the directive, in particular the most recent 
one. That is the case notwithstanding the 
apparent effort to define the directive's 
scope accurately by means of the defini­
tions in Article 1. Those imperfections, 
which are out of place in rules of law and 
create legal uncertainty, have now been 
intensified following the draconian inter­
pretation of the Court in CIA Security 7 and 
Bic Benelux8 with regard to the conse­
quence of failure by the Member States to 
notify technical regulations to the Commis­
sion, namely the inapplicability of unnoti­
fied drafts as against individuals, which has 
7 — Case C-194/94 CIA Security v Signalson and Securitel 
[1996] ECR I-2201. 
8 — Case C-13/96 Bic Benelux v Belgian State [1997] ECR 
I-1753. 
I -3186 
COLIM V BIGG'S CONTINENT NOORD 
the potential to paralyse the Member 
States' exercise of their legislative function. 
29. In view of the above, it is not surprising 
that the Court has not hitherto made a 
broad statement as to the meaning of 
Article 1(1) and (5) of the directive and 
has merely classified various cases in accor­
dance with those provisions. 
30. Thus, provisions which have been held 
by the Court to constitute technical regula­
tions include the following: 
— German legislation which extended to 
sterile medical instruments the obliga­
tions applicable to medicinal products 
so far as concerns the giving of man­
datory labelling particulars (the expiry 
date);9 
— the Netherlands provision which laid 
down the requirements for the manu­
facture and marketing of new types of 
margarine and substitute products, 
which differed from those prescribed 
for normal margarine;10 
— the provision that introduced tests as to 
the quality and proper functioning of 
alarms systems and networks, which 
had to be passed if those systems and 
networks were to be granted author­
isation and placed on the market in 
Belgium;11 
— Italian provisions which concerned, 
respectively, the quality of waters 
inhabited by lamellibranch molluscs, 
the production and marketing of mol­
luscs and certain safety requirements 
concerning proprietary medicinal prod­
ucts made from cattle organs and 
tissues;12 
— the Belgian provision which imposed 
an obligation requiring the marking of 
certain products, that is to say the 
affixing of a special sign indicating that 
environmental tax was payable.13 
9 —Case C-317/92 Commission v Germany [1994] ECR 
I-2039. 
10 —Case C-273/94 Commission v Netherlands [1996] ECR 
1-31. 
11 — CIA Security, cited in footnote 7 above. 
12 — Case C-289/94 Commission v Italy [1996] ECR I-4405. 
13 — Bic Benelux, cited in footnote 8 above. 
I -3187 
OPINION OF MR COSMAS — CASE C-33/97 
31. On the other hand, the following do 
not constitute technical regulations under 
the case-law: 
— the enabling provision on the basis of 
which the provision laying down the 
technical regulation was adopted;1 4 
— the Belgian provision which laid down 
the conditions governing the establish­
ment of security firms, since that pro­
vision did not relate to the character­
istics of the products.1 5 
32. In my view, the obligation imposed by 
the national provision at issue is a generally 
applicable obligation which is imposed 
without distinction whenever products 
and services are sold, does not relate to 
the characteristics of products or to the 
specifications which are applicable to them 
and therefore does not amount to a tech­
nical specification within the meaning of 
the directive. 
33. I will begin by referring briefly to the 
aim of the directive. It has been held that 
'the aim of [the] Directive is, by preventive 
monitoring, to protect the free movement 
of goods, which is one of the foundations of 
the Community. Such monitoring is neces­
sary since technical regulations covered by 
the Directive are capable of hindering, 
directly or indirectly, actually or poten­
tially, intra-Community trade in goods.' 16 
34. I consider that that aim is the indirect 
and broader objective of the directive.17 
The specific and direct objective is apparent 
from the directive's title, broad logic and 
preamble, and in particular from Arti­
cle 213 of the Treaty which, together with 
Article 100, constitutes its legal basis (see 
the first citation of the directive) and which 
is referred to again, at length, in the tenth 
recital in its preamble. That objective is, in 
my view, the laying down of a procedure 
for informing the Commission and the 
other Member States (see the third, fourth 
and fifth recitals in the preamble) of certain 
technical regulations, regarding certain 
products, which a Member State proposes 
to enact. That procedure is intended, in 
view of the barriers to trade which result 
from the enactment of unnecessary techni­
cal regulations to avoid the adoption of 
dissimilar and unnecessary technical 
requirements (see the second recital in the 
preamble) but also to give the Community 
institutions, and in particular the Commis­
sion, the opportunity to enact common 
rules on the matter (see the sixth recital). 
14 — Commission ν Germany, cited in footnote 9 above, 
paragraph 26. 
15 — CIA Security, cited in footnote 7 above, paragraph 25. 
16 — Bic Benelux, cited in footnote 8 above, paragraph 19. 
17 — In other words, safeguarding the free movement of goods 
is a 'γένος γενικώτατον' ('summum genus'), that is to say 
an objective pursued by a large number of directives. The 
search is for the 'ειδοποιός διαφορά' ('differentia speci­
fica'), that is to say the specific objective which charac­
terises the directive and is the objective of greatest 
importance for filling gaps and interpreting unclear 
provisions in the directive. 
I-3188 
COLIM V BIGG'S CONTINENT NOORD 
35.I come now to the material scope of the 
directive, which, although broad, is not 
unlimited. Given that the subject-matter of 
the directive is the technical requirements 
which apply to certain products, it is 
necessary first of all, when determining 
the directive's scope, to specify the products 
to which it applies. 
36. The scope of the directive has some­
times been broadened and sometimes been 
narrowed by the successive amendments to 
it. Thus, under its original wording, Arti­
cle 1(7) defined products for the purposes 
of the directive as industrially manufac­
tured products, but excluding agricultural 
products, products for human or animal 
consumption, medicinal and cosmetic prod­
ucts. 
37. Following its amendment by Directive 
88/182, that provision also included agri­
cultural products. The remaining products 
which were originally excluded were now 
made subject to an intermediate regime 
since, in accordance with Article 1(1) 
which defines 'technical specification' (as 
supplemented by Directive 88/182), the 
directive appears to be concerned only with 
the production methods and procedures for 
agricultural products,18 products intended 
for consumption and medicinal products 
(therefore not cosmetics).19 
38. Specifying the products to which the 
directive applies is relevant for determining 
the field of application of Article 1(1), 
which contains the definition of the term 
'technical specification' and, by extension, 
also of Article 1(5) which defines 'technical 
regulation', since a technical regulation 
within the meaning of the directive is a 
regulation containing technical specifica­
tions. 
39. It should be noted first of all that 
Article 1(1) and (5) relates to issues of a 
technical nature, that is to say issues which 
relate to 'technique'. That term may be 
regarded, broadly speaking, as referring to 
all scientific and practical knowledge and 
methods which are used to produce goods 
and, generally, to achieve a result. 
18 — With regard to the reference to agricultural products in 
both Article 1(1) and Article 1(7) of the directive, see 
point 41(a) and (b) below. 
19 — Directive 94/10 subsequently widened the field of applica­
tion further by the addition in the second subparagraph of 
Article 1(1) (which was renumbered Article 1(2)) of the 
words 'as well as production methods and processes 
relating to other products, where these have an effect on 
their characteristics'. That wording is not applicable to the 
present case and, whatever its meaning, is in any event 
concerned only with production methods and processes. 
I -3189 
OPINION OF MR COSMAS — CASE C-33/97 
40. Article 1(1) defines a 'technical specifi­
cation' as the 'characteristics required' of a 
product, that is to say the technical char­
acteristics which are necessary in order to 
recognise, identify and evaluate a product, 
and sets out for that purpose, in the first 
part of the definition, some examples, such 
as quality, performance, safety and dimen­
sions. 20 In the second part of the definition, 
it is provided that the abovementioned 
characteristics also include requirements 
which, if testing and test methods are 
excluded, are basically concerned with the 
general get-up of the product. 
41. In view of the foregoing points, it is 
apparent from Article 1(1), in conjunction 
with Article 1(7), that the following are to 
be understood as technical specifications 
within the meaning of the directive: 
(a) the production methods and procedures 
for agricultural products, for products 
intended for human and animal consump­
tion and for medicinal products; and 
(b) the technical characteristics of all 
industrially manufactured products and 
agricultural products, including the 
requirements applicable to the product as 
regards terminology, symbols, testing and 
test methods, packaging, marking and 
labelling. 
42. However, the directive is not concerned 
with all the technical specifications relating 
to the abovementioned products. Thus: 
(a) in accordance with Article 8(1), the 
Member States are not required to send 
the Commission the text of a draft 
technical regulation which transposes 
the full text of an international or 
European standard. In that case, it is 
sufficient simply to inform the Com­
mission;21 
(b) in accordance with the first part of 
Article 10, technical specifications 
adopted to fulfil an obligation which 
arises out of Community directives are 
not to be notified to the Commission. 
That provision means, in my view, that 
the Commission is not to be notified of 
technical specifications covered by spe­
cific directives which require the Mem­
ber States to adopt implementing mea­
sures on 'technical' matters within the 
meaning of Directive 83/189. This view 
is reasonable, because in that case the 
need to adopt technical specifications 
arises from specific pre-existing rules of 
Community law which are bind the 
20 — In my view, since the words in question are introduced by 
'such as', the enumeration in the directive of those 
characteristics must be indicative and not exhaustive. 
Thus, for example, the weight of a product must be 
considered to be a technical characteristic. 
21 — I assume that the reason for the exception is that there is 
presumed in that case to be a need to introduce the 
standard, which, moreover, is already uniform. 
I -3190 
COLIM V BIGG'S CONTINENT NOORD 
Member States. Those rules are known 
both to the other Member States and to 
the Commission, and the latter will not 
be devising Community rules on the 
matter in question given that they 
already exist. Besides, directives gener­
ally contain a provision under which 
the measures adopted by the Member 
States in implementation of the direc­
tive are to be communicated to the 
Commission; here double notification 
would simply serve to increase bureauc­
racy without adding anything of sub­
stance; 
(c) finally, under the second part of Arti­
cle 10 the same applies in the case of 
technical specifications which are 
adopted in compliance with an inter­
national agreement and are therefore 
already uniform. 
43. It follows from the foregoing that 
Community law is not opposed to technical 
specifications in themselves but to the 
adoption of technical specifications which 
are not coordinated, uniform or necessary. 
Accordingly, the objective of the Commu­
nity legislature is, by means of the recipro­
cal provision of information, the uniformi­
sation, which includes the standardisation, 
of technical specifications by product or by 
product category, so that uniform rules 
exist within the Community. 22 
44. On the basis of the above considera­
tions, I will now examine whether a 
provision such as Article 13 of the Belgian 
Law — for that is the provision principally 
at issue here 23 — contains a technical 
specification and whether, for that reason, 
it constitutes a technical regulation. 
45. First of all it is, I believe, clear that the 
use of a particular language, possibly a 
particular dialect or a particular linguistic 
form of that language, 24 when giving the 
mandatory particulars to appear on label­
ling does not constitute a 'characteristic' of 
the product. However broadly that term in 
Article 1(1) of the directive is interpreted, it 
will still refer to properties or qualities 
which are inherent in the product at issue in 
each case. The language or the linguistic 
form which is used to express and convey 
to the purchaser information relating to 
those qualities and properties constitutes a 
general system for the transmission of 
information of every kind, of which the 
information at issue is just one example. 
Consequently, the language is necessarily a 
separate matter and cannot be equated with 
the information conveyed. 
22 — That objective will have to be regarded as an intermediate 
objective between the direct objective, which is to inform 
the Member States and the Commission, and safeguarding 
the free movement of goods. Standardisation is emphasised 
in particular in the preamble to Directive 94/10. 
23 — It is, I believe, clear that Article 30 of the Belgian Law does 
not amount to a technical regulation within the meaning of 
the directive inasmuch as it imposes a general obligation 
on vendors to inform purchasers. Besides, a similar 
obligation arises from the general principles of contract 
law of the Member States and is usually also set out in civil 
codes or legislation governing the sale of goods. I will 
accordingly not concern myself with that article. 
24 — So far as concerns this last possibility, I mention by way of 
example that until the beginning of the 1980s the accepted 
language in Greece was katharevousa, that is to say a 
learned form of Greek with many archaistic elements, as 
opposed to the everyday language, demotic Greek. 
I -3191 
OPINION OF MR COSMAS — CASE C-33/97 
46. It remains for me to examine whether 
the giving of those particulars in a parti­
cular language constitutes a requirement 
applicable to the product within the mean­
ing of the second part of the definition in 
Article 1(1). 
47. It is to be noted first of all that the two 
parts of the definition are closely linked, 
the second being included within the 
first. 25 It follows, in my view, that the 
requirements covered by the second part of 
the definition are likewise, essentially, tech­
nical characteristics of the product or 
products at issue in each case, that is to 
say technical means whereby those prod­
ucts may be recognised, identified and 
evaluated. 
48. Accordingly, the language in which a 
term relating to a product is expressed or in 
which a label is written does not constitute, 
in my view, a 'requirement applicable to the 
product' for reasons which are essentially 
the same as the reasons why it does not 
constitute a 'characteristic' of the product. 
Thus, the 'terminology' to which the direc­
tive refers is the selection of a scientific 
term, from among a number available, 
which will characterise the product or one 
of its properties. That term will have to be 
the same in the various Member States, that 
is to say in each Member State the equiva­
lent term must be found. That term, and 
not its linguistic form, constitutes the 
requirement, that is to say the regulation, 
applicable to the p r o d u c t , 2 6 and it is the 
uniformisation of those terms that the 
directive is interested i n . 2 7 Moreover, in 
the Community, a multilingual entity in 
which 11 official languages of equal value 
apply simultaneously, the linguistic form of 
requirements cannot be rendered uniform 
precisely because there is no single or 
uniform Community language. 
49. The same is true of the packaging, 
marking and labelling of products. As the 
Commission correctly submits in its second 
approach referred to above, 2 8 so far as 
those elements are concerned the 'require­
ments' applicable to the product must be 
understood as the references, particulars 
and other information which, under the 
relevant legislation, must be put on the 
packaging, the label and so forth, that is to 
say their mandatory content, including 
obligations concerning the packaging or 
the label themselves such as dimensions and 
colour, and not the their linguistic form. 
The latter constitutes the means by which 
the technical characteristics of the product 
25 — The conjunctive wording is 'καθώς και' ('as well as') in 
Greek. By contrast it is 'including' in English, 'y compris' 
in French, 'einschließlich' in German, 'comprese' in Italian, 
and so forth. I conclude that the second, stronger, meaning 
is more correct. 
26 — It is self-understood that every requirement constitutes a 
regulation applicable to the product. 
27 — See, for example, Directive 89/108/EEC of 21 December 
1988 on the approximation of the laws of the Member 
States relating to quick-frozen foodstuffs for human 
consumption (OJ 1989 L 40, p. 34) which, in Arti­
cle 8(l)(a), makes it compulsory to use the term 'quick-
frozen' as rendered in the various Community languages. 
Thus, in German it is possible to choose between the terms 
'tiefgefroren', 'Tiefkühlkost', 'tiefgekühlt' and 'gefrostet', 
while in English only the term 'quick-frozen' may be used 
(and not, for example, 'super-frozen' or 'deeply-frozen' or 
some similar term). Here, the imposition of a particular 
term (the same term in all the languages) is a technical 
issue while the question as to the choice of one language or 
another by the Member States is a related, 'metatechnical', 
issue. 
28 — See point 27. 
I - 3192 
COLIM V BIGG'S CONTINENT NOORD 
are expressed and made known to the 
person receiving the corresponding mes­
sage, but cannot be equated with the 
technical characteristics themselves. In 
other words, the obligation to include 
certain particulars on the packaging or 
label amounts to a technical regulation 
which relates to and characterises the 
product, while the obligation to express 
those particulars in a given language does 
not relate to or characterise that product, 
nor, any specific product at all. While, 
therefore, that obligation is a regulation, it 
is a a 'metatechnical' regulation, that is to 
say a regulation which relates to the 
technical regulation and not to the product. 
50. In the present case, Article 13 of the 
Belgian Law refers, with regard to the 
question of which particulars are manda­
tory, either to other provisions of the same 
Law or to decrees which exist already or 
will be enacted in the future to implement 
the Law. The content of Article 13 leads me 
to the view that that provision does not 
include a technical requirement relating to 
a particular product or category of pro­
ducts and therefore does not constitute a 
technical regulation within the meaning of 
the directive. Nor is the fact the packaging 
of an imported product might need to be 
replaced because that obligation is imposed 
sufficient in itself to refute the above 
interpretation. Regardless of the fact that 
the new Belgian provision adds nothing of 
substance to previous provisions imposing 
the same obligation and that a large 
number of Community directives contain 
specific provisions regarding labelling in 
the national or official language of the State 
where goods are placed on the market, 29 
the obligation to replace the packaging or 
the label (or, less onerously, a requirement 
to affix a self-adhesive label with the 
translation of the mandatory particulars 
in the language of the State in which the 
product is placed on the market) is, in any 
event, merely an incidental obligation to a 
basic obligation which, as I have explained 
above, does not itself constitute a technical 
regulation; it therefore has no influence on 
the present case. 
Question 2 
51. In the first two parts of the second 
question submitted by it, the national court 
essentially asks whether, where specific 
Community rules exist for a given product, 
it is open to the Member States to require 
information in addition to that imposed 
under the Community rules and whether 
they may require that information to be 
given in a particular language. 
52. I consider that the question submitted 
is put in very imprecise and hypothetical 
terms given that it neither seeks the inter­
pretation of a specific provision, despite the 
fact that it presupposes the existence of 
specific Community rules, nor reveals the 
29 —See my Opinion in Case C-385/96 Coerres [1998] ECR 
I-4431, point 33. 
I -3193 
OPINION OF MR COSMAS — CASE C-33/97 
factual situation to which it relates. In view 
of its wording I doubt whether it is possible 
to give a useful answer to it. 
53. With the exception of certain directives 
of general application, 30 Community leg­
islation regarding the placing of consumer 
products on the market is fragmentary and 
regulates the issue by product or categories 
of product, such as goods for human 
consumption, goods for animal consump­
tion, cosmetics, detergents and so forth. 
Those specific directives do not always seek 
the same degree of harmonisation of 
national laws. They generally require spe­
cified information to be given on labelling, 
in which case it is not open to the Member 
States to require additional information. 31 
It is possible, however, for the Member 
States to be left with an element of 
discretion. 32 Accordingly, the issue as to 
whether the Member States may require 
more information than that laid down by 
the directive must be assessed on a case by 
case basis, in accordance with the particu­
lar provisions and the aim of the directive 
which governs the marketing of the product 
at issue in each case. 33 
54. The same is true with regard to the 
question of the language in which it is 
permissible, compulsory or prohibited to 
express mandatory information under a 
directive or any additional references which 
the Member States may legitimately 
require. As we have already seen, Commu­
nity rules on that issue lack coherence and 
consistency 34 and the relevant provisions 
are contained in specific directives for the 
marketing of a particular product or cate­
gory of products. Since, in any event, the 
question of the language in which the 
additional information is given is ancillary 
to the question of the latter's permissibility, 
it follows that where a directive prohibits 
the Member States from requiring addi­
tional information, it also prohibits them 
from requiring that information to be 
expressed in a particular language. Where, 
on the other hand, it allows the Member 
States to require additional information, a 
general rule cannot be deduced. The lan­
guage in which that information is given 
may be, depending on the interpretation of 
the directive, either the language in which 
the mandatory information under the direc­
tive must be expressed or the language to 
be chosen by the Member State subject to 
observance of Community law. 35 
However, given that, as set out above, the 
second question submitted for a prelimin­
ary ruling is imprecise and general, I 
propose that no "answer be given to it. 36 
30 — Such as Council Directive 85/374/EEC concerning liability 
for defective products (OJ 1985 L 210, p. 29) and Council 
Directive 92/59/EEC on general product safety (OJ 1992 
L 228, p. 24). 
31 — See, for example, Case 148/78 Pubblico Ministero v Ratti 
[1979] ECR I-1629, paragraphs 26 and 27. 
32 — For such an instance see, for example, Case C-17/93 Van 
der Veldt [19941 ECR 1-3537, paragraph 22. 
33 — For an instance of a directive containing provisions of both 
kinds, see Case C-241/89 SARPP [1990] ECR I-4695, 
paragraph 15. 
34 — See my Opinion in Goerres, cited above, point 56. 
35 — See points 59 and 60 below. 
36 — See, inter alia, Case C-83/91 Meilicke v ADV/ORCA 
[1992] ECR I-4871, paragraph 25, Joined Cases C-320/90, 
C-321/90 and C-322/90 Telemarsicabruzzo and Others v 
Circostel and Others [1993] ECR I-393, Case C-415/93 
Union Royal Belge des Sociétés de Football Association 
and Others v Bosman and Others [1995] ECR I-4921, 
paragraph 60, Case C-307/95 Max Mara [1995] ECR 
I-5083, paragraph 9, and Case C-369/95 Somalfruit and 
Camar v Ministero delle Finanze and Ministero del 
Commercio con l'Estero [1997] ECR 1-6619, paragraph 
41. 
I - 3194 
COLIM V BIGG'S CONTINENT NOORD 
Question 3 
55. The national court asks thirdly 
whether, where no Community rules exist, 
a Member State may require certain infor­
mation to be given on the product being 
sold and to be written in a particular 
language (for example, the language of 
the area where the product is placed on the 
market). 
56. As is apparent from the case-law to 
which I have referred previously,37 where 
Community rules do not exist, the Member 
States are free to adopt rules relating to the 
marketing of products subject to obser­
vance of the rules of Community law, in 
particular Articles 30 and 36 of the Treaty. 
They may thus impose restrictions on intra-
Community trade, including, in principle, a 
requirement to specify certain information 
on the product, provided that those restric­
tions are necessary to serve objectives in the 
public interest, such as the protection of 
health, the protection of consumers and so 
forth, and are proportionate to the aim 
pursued. 38 However, it is not possible to 
state in advance which information is 
allowed and which is not because the 
answer depends on the circumstances of 
each case. 
57. The position is similar with regard to 
the imposition of an obligation to give one 
or more pieces of information in a parti­
cular language, which potentially constitu­
tes 'a barrier to intra-Community trade in 
so far as products coming from other 
Member States have to be given different 
labelling causing additional packaging 
costs'. 39 
58. The answer to the question as to the 
appropriate language is determined by 
balancing, on the one hand, the need to 
inform consumers of the characteristics of 
the product and to avoid confusion and, on 
the other, the need for the movement of 
goods between the Member States to be 
unimpeded. In that context, the Court has 
held that a requirement to give certain 
information in the language or languages of 
the State where goods are marketed con­
stituted the appropriate method for pro­
tecting the consumer, that such a measure 
was not disproportionate to the goal pur­
sued and that, in adopting a measure of 
that kind the Community legislature had 
not exceed the limits of its discretion.40 
59. I have already set out my view: in 
monolingual States, it is in principle legit-
37 — See my Opinion in Coerres, cited above, point 28. 
38 — See Van der Veldt, cited in footnote 32 above, paragraphs 
23 to 31. 
39 — Case C-51/93 Meyhui v Schott Zwiesel Glaswerke [1994] 
ECR I-3879, paragraph 13. That case was concerned with 
a Community provision which required certain informa­
tion to be given in the language or languages of the State in 
which the product was marketed (see the Opinion in 
Goerres, paragraph 76), but a measure is reviewed in the 
same way whether it emanates from a Community 
institution or from a Member State (see Meyhui, para­
graph 11). 
40 — Meyhui, cited above, paragraphs 19, 20 and 21. 
I -3195 
OPINION OF MR COSMAS — CASE C-33/97 
imate from the point of view of Commu­
nity law for a Member State to require 
mandatory information relating to a pro­
duct to be given in the national or official 
language of that State. 41 In States which 
have more than one official language, it is 
sufficient for the information to be given in 
any one of those languages, at the trader's 
choice. 42 Those languages, being equal in 
rank, are presumed to be sufficiently 
known to the purchasing public of the 
State in question and a trader who draws 
up the mandatory information in one of 
them must be regarded as having dis­
charged his obligations as against that 
State. 
60. Accordingly, the obligation to give 
mandatory information 'in the language 
of the area' where the product is on the 
market constitutes a measure which is 
onerous and disproportionate to the aim 
which it pursues — as a rule, consumer 
protection — because it obliges the person 
concerned either to think each time about 
the area in which his product is to be placed 
on the market so that he uses the corre­
sponding language or to use all the official 
or local languages in order not to be 
excluded from any area. 
61. That view is not inconsistent with the 
judgment in Meyhui, cited above. In my 
view, it does not follow from Meyhui that, 
in the case of multilingual States, as in the 
present case, information relating to prod­
ucts must be given in all the languages. In 
that case, the issue raised was not, as in the 
present case, one of determining the most 
extreme linguistic requirement which a 
Member State may put forward in accor­
dance with the Treaty, but whether a 
Community measure which is acknowl­
edged to confer the Member States suffi­
cient flexibility, since it allows them to 
require the information to be given in 
several languages, exceeds the discretion 
which the Community institution has in the 
matter. 
Excursus 
62. In case the Belgian legislation at issue is 
considered to constitute a technical regula­
tion, I wish to set out some extremely brief 
reflections on the effects with regard to 
third parties of the failure to communicate 
national technical regulations to the Com­
mission, while saving a more extensive 
exposition of my views for a more appro­
priate occasion. 
63. The issue was raised by the Commis­
sion in Communication 86/C 245/05 
(OJ 1986 C 245, p. 4), where it began with 
some stern observations such as 'experience 
shows that a State's membership of the 
Community is not always sufficiently 
reflected in the attitudes and outlook of 
its administration' and pointed out the 
obligation under Articles 8 and 9 of the 
directive to notify the Commission of 
41 — See the Opinion in Coerres, point 50. 
42 — Ibid., point 82. 
I -3196 
COLIM V BIGG'S CONTINENT NOORD 
proposed technical regulations and to sus­
pend their adoption. It then stated that 
failure by the Member States to comply 
with that obligation 'would lead to the 
creation of serious loopholes in the internal 
market, with potentially damaging trade 
effects'. It concluded by expressing the view 
that when a Member State enacts a techni­
cal regulation which falls within the scope 
of the directive without notifying the draft 
to the Commission, the regulation thus 
adopted 'is unenforceable against third 
parties' in the legal system of the Member 
State in question, and it stated that it 
expected national courts to refuse to 
enforce such a regulation. 
64. The issue came up again in actions 
brought by the Commission under Arti­
cle 169 of the Treaty against Member 
States which had failed to communicate 
technical regulations to it. In the course of 
the administrative procedure, the Commis­
sion, in addition to alleging that failure on 
the part of the Member States, had also put 
forward the abovementioned view regard­
ing unenforceability. However, it did not 
persist with the point before the Court and 
the Advocates General did not express a 
view on the matter.43 
65. Subsequently, the Commission included 
a specific recital to such effect (the six­
teenth recital) in the preamble to its pro­
posal for a directive (OJ 1992 C 340, p. 7) 
which resulted in Directive 94/10, but tHat 
approach was not accepted by the Council. 
66. Finally, as is known, in CIA Security 
and Bic Benelux, cited above, the Court 
adopted the Commission's view in full and 
held that national technical regulations 
which have not been notified are unen­
forceable against individuals, who may rely 
on that unenforceability before national 
courts. 
67. We have thus reached the point where a 
plethora of references for preliminary rul­
ings relating to the directive are pending 
before the Court, turmoil has been caused 
in the Member States44 by the realisation 
that a large number of legislative provisions 
risk being held invalid, an attempt is 
already being made to restrict the extent 
of the legal consequences of a failure to 
notify 45 and the Commission itself, clearly 
troubled by the breadth which the indefi­
nite term 'technical regulation' might take 
on, seeks, as a subsidiary plea in the present 
case, a temporal restriction on the effects of 
a judgment of the Court holding legislation 
43 — See, in that regard, point 7 of the Opinion of Advocate 
General Van Gerven in Case C-52/93 Commission v 
Netherlands [1994| ECR I-3591. 
44 — 'Something of a commotion' as Advocate General Fennelly 
tactfully describes the impact in the Netherlands alone 
caused by the finding that approximately 400 legislative 
measures which were not notified to the Commission 
might be caught by Directive 83/189 and thus be 
considered invalid (see paragraph 2 of his Opinion in 
Case C-226/97 Lemmens [1998] ECR I-3711). 
45 — See the Opinion of Advocate General Fennelly in Lem­
mens, cited above, in accordance with which only an 
individual showing an interest linked to the free movement 
of goods is entitled to rely on the directive in a Member 
State (see, in particular, paragraph 32). 
I -3197 
OPINION OF MR COSMAS — CASE C-33/97 
to constitute a technical regulation (see 
point 27 above). 
68. In my view, it would be desirable for 
the Court to re-examine the question of 
unenforceability, because that consequence 
does not appear to follow either from the 
directive or from the Treaty articles on 
which the directive is based. 
69. First of all, Article 213, which consti­
tutes the basis and the limit of the powers 
conferred by the Council on the Commis­
sion, merely states that the Commission 
may 'collect any information and carry out 
any checks required'. This means that the 
Commission may only demand information 
about measures which the Member States 
have adopted or are to adopt and carry out 
checks which, by express application of the 
principle of proportionality, are absolutely 
necessary. Furthermore, the Commission's 
powers are to be exercised 'within the 
limits and under conditions laid down by 
the Council in accordance with the provi­
sions of [the] Treaty'.4 6 
70. While the procedure for providing 
information to the Commission and the 
other Member States is laid down in the 
directive, not the slightest reference is made 
to the possible consequences of failing to 
notify technical regulations which are (or 
are assumed to be) caught by the directive. 
It follows that the only consequences of a 
failure to notify are the general conse­
quences provided for by the Treaty where a 
Member State does not fulfil its obliga­
tions, that is to say an application to the 
Court, brought by the Commission under 
Article 169 of the Treaty or by the Member 
States under Article 170. 
Where the Community legislature has 
wanted a different result it has stated so 
expressly, as in Article 93(3) of the Treaty 
which makes provision for the Commission 
to be informed of national plans to grant 
State aid and states that 'the Member State 
concerned shall not put its proposed mea­
sures into effect until this procedure has 
resulted in a final decision'. Because of their 
specific nature, provisions of that kind 
cannot be applied by analogy to the present 
case, as has been suggested in the past. 4 7 
71. Apart from not being expressly pro­
vided for, unenforceability of national regu­
lations is, moreover, manifestly dispropor­
tionate to the aim pursued by the direc­
tive.4 8 Just as the Member States are not 
allowed to rely on generalities in order to 
justify measures which diverge from Com­
munity law, the Community institutions 
likewise may not rely in a general and 
46 — Case C-426/93 Germany ν Council [1995] ECR 1-3723, 
paragraph 11. 
47 — See the Opinion of Advocate General Elmer in CM 
Security, point 56. 
48 — With regard to that aim, see point 34 above. 
I-3198 
COLIM V BIGG'S CONTINENΤ NOORD 
vague manner on the principles of the 
Treaty in order to justify measures of 
whatever kind but must prove that that 
the measures are appropriate and propor­
tionate. 4 9 
All the cases concerning Directive 83/189 
which the Court has had to deal with 
hitherto have concerned 'technical regula­
tions', that is to say national regulatory 
measures whose text must be published 
officially in the Member States. It would 
therefore be sufficient if the Committee 
provided for in Article 5 of the directive 
scanned periodically, by means of a small 
number of officials specifically assigned 
that task, the official journals of the 
Member States in order to nip in the bud 
any infringement, real or supposed, of the 
directive, instead of waiting for a case to 
reach the courts, should that occur. 
72. So far as concerns Article 100 of the 
Treaty, which is also relied on for the 
directive's legal basis, it is sufficient to 
recall that that article requires unanimity in 
order for measures to be adopted under it. 
Given the strong opposition of at least 
three Member States to the Commission's 
position on unenforceability 50 and the 
subsequent rejection by the Council of a 
Commission proposal reflecting that posi­
tion, 5 1 there is no doubt that an express 
provision to similar effect would have had 
no prospects of being approved by the 
Community legislature, that is to say by the 
Council, on the adoption of the directive. 
73. The Court held in CIA Security that 
Articles 8 and 9 of the Directive are 
unconditional and sufficiently precise for 
individuals to be able to rely on them 
before national courts (paragraph 44) and 
that an express provision to such effect is 
not required, it being sufficient that that 
consequence helps to achieve the aim 
pursued by the directive (paragraph 48). 
74. I will not return to the aim of the 
directive, nor will I set out now my view 
regarding the limits which every interpreta­
tion, including the teleological interpreta­
tion, necessarily has. I will simply state, 
first, that it is clear in my view from the 
fourth, fifth, tenth and eleventh recitals in 
the preamble to the directive and from 
Articles 8 5 2 and 9 thereof that the proce­
dure for providing information laid down 
by the directive concerns strictly the Com­
mission and the Member States, without 
any substantive right in favour of indivi­
duals being created. 53 Second, the direct 
49 — See Germany v Council, cited in footnote 46 above, 
paragraph 42. 
50 — See the views of the German, Netherlands and United 
Kingdom Governments in CIA Security, cited in footnote 7 
above, paragraph 39. 
51 — See point 65 above. 
52 — It is to be noted that Article 8(4) provides that 'the 
information supplied under [Article 8] shall be confiden­
tial' (see also footnote 4 above). 
53 — See Case 380/87 Enichem Base and Others v Comune di 
Cinisello Balsamo [1989] ECR 2491, paragraph 23. From 
that point of view, the fact that Articles 8 and 9 of the 
directive provide for rudimentary preventive monitoring of 
national measures which is in any event advisory and not 
binding in nature, does not, in my opinion, differentiate 
those provisions from those at issue in Enichem Base and 
Others. 
I-3199 
OPINION OF MR COSMAS — CASE C-33/97 
effect of directives, an excellent judicial 
creation, is designed to allow individuals to 
enjoy a right which a directive envisages for 
them and a Member State denies them by 
not adopting, or by adopting inappropri­
ate, implementing measures. For that rea­
son the substantive rule laid down in the 
directive is applied in their favour. How­
ever, Directive 83/189 was not adopted for 
the benefit of individuals, nor does it 
contain substantive rules which can be 
applied in the absence of national imple­
menting rules. Thus, the only effect of 
unenforceability, vis-à-vis the individual 
invoking it, is a legal lacuna, and not the 
regulation of his situation by a rule which 
flows directly from the directive. 
75. In my view, a national court is unable 
to declare a national measure invalid solely 
on the basis of a finding that the measure 
was not notified. Specifically, it must pro­
ceed as follows. First, it must establish 
whether the national measure falls within 
the field of application of the directive. If 
the measure does, it must, second, check 
whether there are grounds justifying 
exemption from the obligation to notify, 
in particular by reason of the fact that, in 
accordance with Article 10, the matter falls 
within the field of application of a specific 
directive.54 If that is the case, the national 
measure will be assessed on the basis of the 
provisions of the specific directive which 
covers it, in accordance with the general 
principles of interpretation which the Court 
has laid down. If, finally, the national 
measure is not covered by a specific direc­
tive, it will be assessed on the basis of the 
Treaty articles, as in all cases where a 
national measure is reviewed as to its 
compatibility with Community law. 
76. In his Opinion cited above, Advocate 
General Van Gerven, considering that the 
Commission's position on unenforceability 
was clearly untenable, discreetly stated: 'It 
may be wondered why, if the Commission 
regards that proposition as being essential 
to the proper working of the procedure 
established by Directive 83/189, it has 
never proposed to the European Parliament 
and the Council that it should be adopted 
in an amending directive'.55 
77. The Council having rejected such a 
possibility, it may be discreetly asked, 
following the example of Advocate General 
Van Gerven, whether it would be appro­
priate for the Community institutions to re­
examine the issue of the consequences 
arising from a failure to notify national 
draft technical regulations under Directive 
83/189. 
54 — For those cases, see point 42 above. 55 — See point 9 of the Opinion cited in footnote 43 above. 
I - 3200 
COLIM V BIGG'S CONTINENT NOORD 
VII — Conclusion 
In view of the foregoing, I propose that the following answers should be given to 
the questions referred for a preliminary ruling: 
(1) On a proper construction of Article 1(1) and (5) of Directive 83/189/EEC, as 
amended by Directive 88/182/EEC, a general obligation that the particulars 
which are required by other national provisions to appear on products sold 
must be given in the language of the area where the product is on the market 
does not constitute a 'technical specification' and a national measure which 
imposes such a requirement does not constitute a 'technical regulation'. 
(2) Where common rules do not exist for the marketing of a particular product, 
Community law allows the Member States to lay down conditions for its 
marketing, provided that the requirements flowing from Articles 30 and 36 of 
the Treaty are observed. Those conditions include a requirement to give the 
information essential for identifying the product in the language, or in one of 
the languages, of the State in which the product is placed on the market. 
I - 3201