Opinion of the Advocate General — ECLI:EU:C:1999:425
Date: 1999-09-16
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Approximation of laws;Quantitative restrictions
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
Approximation of laws — Cosmetic products — Packaging and labelling — Directive 
76/768 — Measures to prevent advertising attributing to cosmetic products characteristics 
which they do not possess — Ban on the importing or marketing of a cosmetic product 
whose name includes the term 'lifting' — Whether permissible — Condition — Whether 
such a name is misleading — To be assessed by the national courts 
(EC Treaty, Arts 30 and 36 (now, after amendment, Arts 28 EC and 30 EC); Council 
Directive 76/768, Art. 6(3» 
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SUMMARY — CASE C-220/98 
Article 6(3) of Directive 76/768 on the 
approximation of the laws of the Member 
States relating to cosmetic products 
requires the Member States to take all 
measures necessary to ensure that, in the 
labelling, putting up for sale and advertis­
ing of cosmetic products, text, names, trade 
marks, pictures and figurative or other 
signs do not attribute to those products 
characteristics which they do not possess. 
Thus, on the one hand, that provision 
defines the measures to be taken in the 
interests of consumer protection and fair 
trading, which rank among the imperative 
requirements which may justify restrictions 
on the free movement of goods within the 
meaning of Article 30 of the Treaty (now, 
after amendment, Article 28 EC); on the 
other, it seeks to protect human health, 
within the meaning of Article 36 of the 
Treaty (now, after amendment, Article 30 
EC), in so far as any information which is 
misleading as to the characteristics of such 
products could have an impact on public 
health. 
Those provisions do not preclude the 
application of national legislation which 
prohibits the importation and marketing of 
a cosmetic product whose name incorpo­
rates the term 'lifting' in cases where the 
average consumer, reasonably well 
informed and reasonably observant and 
circumspect, is misled by that name, believ­
ing it to imply that the product possesses 
characteristics which it does not have. 
It is for the national court to decide, having 
regard to the presumed expectations of the 
average consumer, whether the name is 
misleading. Community law does not pre­
clude the national court, should it experi­
ence particular difficulty in deciding whe­
ther or not the name at issue is misleading, 
from commissioning, in accordance with its 
national law, a survey of public opinion or 
an expert opinion for the purposes of 
clarification. 
(see paras 24-25, 32 and operative part) 
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