Opinion of the Advocate General — ECLI:EU:C:2003:306
Date: 2003-05-22
Language of the case: Spanish
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Action for failure to fulfil obligations - successful
Origin: Spain

summary of the complaints. There is therefore nothing to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in the letter of formal notice (Case C-279/94 Commission v Italy [1997] ECR I-4743, paragraph 15). 30. However, in the present case, the Commission cannot be criticised for having set out the subject-matter more extensively in its application than it had done during the pre-litigation procedure. 31. In the letter of formal notice the Commission had first of all clearly indicated that the procedure concerned the refusal to grant access to foreign products to the Spanish market and that such refusal arose from the way in which the Spanish authorities interpret the royal decree. The decisions of the autonomous community of Madrid are mentioned in the supplementary letter of formal notice. That subsequent letter sets out, in addition, the complaint regarding the failure to comply with the notification obligation provided for in Article 1 of Decision No 3052/95. 32. Next, in the reasoned opinion, the Commission arrives at the conclusion that the Kingdom of Spain has failed to fulfil its obligations under Article 28 EC, first, by adopting measures which obstruct access to the Spanish market under the name of limpiador con lejía or similar of products lawfully manufactured and marketed in another Member State and, secondly, under Decision No 3052/95 by failing to notify it of the abovementioned measures. It is only by way of example (como) that it mentions the penalties imposed in Joined Cases 28/802/97-A and 28/063/98-A and in Case 28/801/97-A and the memorandum of 7 April 1998. 33. Finally, although the form of order sought in the application is drawn up in a slightly different way to the wording of the letters of formal notice and the reasoned opinion, it nevertheless reproduces the arguments put forward during the pre-litigation stage. The form of order sought no longer mentions the decisions of the autonomous community of Madrid but makes clear, as is evident from the abovementioned decisions, that the minimum concentration of active chlorine less than which access to the Spanish market is to be refused is 35 g/l. 34. It follows that the Commission has not extended or altered the subject-matter of the dispute during the procedure but has merely abandoned the complaint relating to the failure to notify, pursuant to Article 1 of Decision No 3052/95, the national measures in issue. 35. Furthermore, there is nothing to indicate that the Spanish authorities have not had available all the necessary information to enable them to put their case properly. 36. Given that the Commission has made use of the penalties imposed by the autonomous community of Madrid only by way of example, there is no need for the Court to restrict the scope of the application to those sanctions. 37. The plea of inadmissibility must therefore be dismissed in its entirety and the action declared admissible. Substance 38. It is not disputed by the parties and is, moreover, expressly admitted by the Spanish Government that refusal to grant access to the Spanish market under the name limpiador con lejía or similar to products lawfully manufactured and marketed in other Member States where their chlorine content is less than 35 g/l constitutes a measure having equivalent effect within the meaning of Article 28 EC. It is also common ground that active chlorine content for cleaning products has not been harmonised at Community level. 39. The parties however disagree as to whether that obstacle to the free movement of goods may be justified in the light of public health or consumer protection. Arguments of the parties 40. The Spanish Government states that the only way adequately to control micro-organisms such as salmonella, campylobacter and escherichia coli is by using sound cleaning and disinfection procedures both at work and at home. That is all the more important where, in Spain, the ambient temperature is relatively high during most of the year. It is therefore essential as regards protection of public health to ensure a minimum active chlorine content of 35 g/l. Since the royal decree applies indifferently to domestic and to imported products, there is no arbitrary discrimination nor hidden restriction on intra-Community trade. 41. So far as concerns consumer protection, the Spanish Government submits that Spanish consumers traditionally recognise bleach for its whitening and disinfecting properties. Furthermore, affixing a label including the term bleach when the active chlorine content of the hypochlorite solution is substantially less than the limits prescribed by law infringes the right of consumers to be clearly and precisely informed of the nature of the product being marketed in view of the choice available to them and the use to which they intend to put it. Such a product does not satisfy the characteristics required under the legislation governing bleach. 42. The Commission points out that consumer protection could be ensured by measures other than those consisting in reserving certain sales names, for example use of the term bleach, for products having specific characteristics. Other measures, such as the affixing of an appropriate label mentioning the nature and the characteristics of the product on sale, would be less restrictive of the marketing within one Member State of products coming from another Member State which comply with the standards required in the latter State. 43. Moreover, the interpretation of the royal decree advocated by the Spanish authorities renders meaningless the mutual-recognition clause the purpose of which is precisely to enable the marketing in Spain of bleach and particularly of products containing bleach which do not meet the requirements laid down by Spanish legislation but which satisfy those of other Member States in which they are lawfully manufactured and marketed. Findings of the Court 44. It is settled case-law that Article 28 EC prohibits obstacles to the free movement of goods, in the absence of harmonisation of national laws, which are the consequence of applying to goods coming from other Member States, where they are lawfully manufactured and marketed, rules that lay down requirements to be met by those goods (such as those relating to their name, form, size, weight, composition, presentation, labelling and packaging), even if those rules apply to national and imported products alike (Case C-14/00 Commission v Italy [2003] ECR I-513, paragraph 69, and the case-law cited therein). 45. In order for protection of public health to justify the obstacle found, it must be established that products lawfully manufactured and marketed in Member States other than the Kingdom of Spain under the name limpiador con lejía or similar where their active chlorine content is less than 35 g/l pose a risk to public health. 46. It cannot be claimed that a cleaning product whose active chlorine content is less than 35 g/l poses, of itself, a risk greater than that of similar products having a minimum active chlorine content of 35 g/l and whose marketing is authorised. Indeed, since active chlorine is a dangerous substance, the less of it a product contains, the less harmful it is likely to be to public health. 47. Even supposing that an active chlorine content of 35 g/l or greater were necessary for certain types of disinfection, it does not follow that any product whose active chlorine content is less than that figure constitutes a danger to public health. It must none the less be acknowledged that such cleaning products are not suitable for use for that type of disinfection. 48. The risk which could be linked to such a product therefore arises rather from the danger that a consumer might use it inappropriately or for purposes other than those for which it was intended. 49. In that respect, it must be stated, as the Commission has pointed out, that the Spanish legislation as applied by the national authorities is disproportionate to the objective of protecting consumers. 50. The affixing of a label containing information on the nature and main characteristics of the product, including its active chlorine content, appears altogether sufficient to inform consumers of the properties and composition of products such as those in issue in the present case. 51. The Spanish Government argues that, in Spain, consumers expect the active chlorine content of bleach to be not less than 35 g/l. They would therefore be misled if cleaning products which did not fulfil that expectation could be marketed in Spain. 52. However, the fact that the consumers of a Member State have very definite views regarding the composition or the characteristics of a given product is, in principle, not such as to justify obstacles to the free movement of goods. 53. The Court has held that the reference consumer is an average consumer who is reasonably well informed and reasonably observant and circumspect (see, with regard to foodstuffs, Case C-210/96 Gut Springenheide and Tusky [1998] ECR I-4657, paragraph 31). That test, based on the principle of proportionality, also applies in the context of the marketing of cosmetic products where a mistake as to the product's characteristics cannot pose any risk to public health (Case C-220/98 Estée Lauder [2000] ECR I-117, paragraph 28, and Case C-99/01 Linhart and Biffl [2002] ECR I-9375, paragraph 31). 54. However, the Spanish Government has not been able to establish that there exist significant differences between the legibility and intelligibleness of labels on foodstuffs or cosmetics, on the one hand, and cleaning products, on the other, the alleged effect of which is that the disinfecting properties of the latter would not be correctly appreciated by consumers on reading the label. So far as concerns disinfecting products, it is essential that consumers should be informed of the active chlorine content of such products, whether it be less or greater than 35 g/l. 55. The Spanish Government none the less points out that, so far as concerns bleach, an error with regard to the level of sodium hypochlorite could have harmful consequences for the health of a consumer since the latter is counting on a disinfectant effect which the product does not possess. 56. Even if that were the case, the Spanish Government has not established the reason why an average consumer who is reasonably well informed and reasonably observant and circumspect should make such a mistake with regard to bleach when the same kind of mistake, equally harmful to health, is not committed as a result of misreading information on the labels of other products. 57. In that connection, Community legislation relating to the classification, packaging and labelling of dangerous preparations lays down the labelling requirements for dangerous preparations which manufacturers of bleach-based cleaning products must comply with if they wish to market them in Spain (see, in particular, Council Directive 88/379/EEC of 7 June 1988 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ 1988 L 187, p. 14) and Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ 1999 L 200, p. 1) repealing and replacing Directive 88/379 from 30 July 2002). Article 7 of Directive 88/379 specified the information which must appear clearly and indelibly on packaging and provided for the manner in which the chemical name of the substance or substances present in the preparation concerned should be indicated. 58. Where those requirements are met, there is no reason to doubt that the level of safety thus prescribed suffices to guarantee adequate and appropriate protection of consumers. 59. The Spanish Government further maintains that products which have been lawfully manufactured and marketed under the name limpiador con lejía in other Member States do not comply with Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17). 60. That argument cannot be accepted. The labels affixed to the abovementioned products do not mislead the consumer with regard to the actual properties of those products since they bear the words with bleach. The preposition with (con) clearly tells the consumer that he is purchasing a product which consists mainly but not exclusively of bleach. The true nature of that product is therefore not hidden from the consumer. 61. It must therefore be held that, by refusing access to the Spanish market under the name of limpiador con lejía or similar to products lawfully manufactured and marketed in other Member States where their active chlorine content is less than 35 g/l, the Kingdom of Spain has failed to fulfil its obligations under Article 28 EC. Costs 62. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Kingdom of Spain has been unsuccessful and the Commission has applied for costs, the Kingdom of Spain must be ordered to pay the costs. On those grounds, THE COURT (Fifth Chamber) hereby: 1. Declares that, by refusing access to the Spanish market under the name of limpiador con lejía (cleaner with bleach) or similar to products lawfully manufactured and marketed in other Member States where their active chlorine content is less than 35 grams per litre, the Kingdom of Spain has failed to fulfil its obligations under Article 28 EC; 2. Orders the Kingdom of Spain to pay the costs. Edward La Pergola Jann Delivered in open court in Luxembourg on 6 November 2003. R. Grass V. Skouris Registrar President 1: Language of the case: Spanish.