Opinion of the Advocate General — ECLI:EU:C:2024:473
Date: 2024-06-06
Language of the case: Swedish
Procedure: Reference for a preliminary ruling
Origin: Sweden

Summary C-88/23 – 1 
Case C-88/23 
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:  
15 February 2023 
Referring court:  
Svea Hovrätt, Patent- och marknadsöverdomstolen (Sweden) 
Date of the decision to refer:  
13 February 2023 
Appellant:  
Parfümerie Akzente GmbH 
Respondent:  
KTF Organisation AB 
  
Subject matter of the main proceedings 
Marketing of cosmetic products (online sales); prohibition on the use of certain 
promotional claims and on the marketing of certain goods. 
Subject matter and legal basis of the request 
Interpretation of Article 3(2) of Directive 2000/31/EC; scope of the coordinated 
field. Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Must Article 3(2) of Directive 2000/31/EC, having regard to EU law in 
general and its effective implementation, be interpreted as precluding national 
legislation which entails the non-application of national rules within the 
coordinated field, including national rules which implement Directive 
2005/29/EC, if the supplier of the service is established and supplies information 
society services from another Member State and there are no requirements to 
EN 
SUMMARY OF REQUEST FOR PRELIMINARY RULING – CASE C-88/23 
 
2  
apply any exception flowing from those national provisions which implement 
Article 3(4) [of Directive 2000/31/EC]? 
2. Does the coordinated field cover, under Directive 2000/31/EC, the 
marketing on the seller’s website and the online sales of a product alleged to be 
labelled in breach of the requirements applicable to such goods in the purchasing 
consumer’s Member State? 
3. If the answer to Question 2 is in the affirmative, are such requirements as 
apply to the delivery and the products themselves also excluded from the 
coordinated field, in accordance with Article 2(h)(ii) of Directive 2000/31/EC, 
where the delivery of the goods themselves constitutes a necessary step in the 
marketing and online sales, or is the delivery of the goods themselves to be 
deemed to constitute an element that is ancillary to and inseparable from the 
marketing and online sales?  
4. What weight, if any, does the fact that the requirements applicable to the 
goods themselves flow from national provisions which implement and supplement 
sector-specific EU legislation, including Article 8(2) of Directive 75/324/EEC and 
Article 19(5) of Regulation [No] 1223/2009, and which mean that the 
requirements applicable to the goods must be fulfilled in order for it to be possible 
for the goods to be released onto the market or supplied to end consumers in the 
Member State have in the consideration of Questions 2 and 3? 
Provisions of European Union law and case-law relied on 
Directive 2000/31/EC: recitals 18 and 21; Articles 2(h)(ii) and 3(1), 3(2) and 3(4) 
Directive 75/324/EEC: Article 8(1) and 8(2) 
Regulation (EC) No 1223/2009: Article 19(1)(d) and 19(5) and Annex III 
Directive 2005/29/EC: Article 11 
Directive (EU) 2020/1828 
Judgment of 25 October 2011, eDate Advertising and Others (C-509/09, 
EU:C:2011:685): paragraphs 53 to 68 
Judgment of 2 December 2010, Ker-Optika (C-108/09, EU:C:2010:725): 
paragraphs 24 to 31 
Judgment of 1 October 2020, A (Advertising and sale of medicinal products 
online) (C-649/18, EU:C:2020:764): paragraphs 54 to 59 
PARFÜMERIE AKZENTE 
 
3 
Provisions of national law relied on 
Lag (2002:562) om elektronisk handel och andra informationssamhällets tjänster 
(e-handelslagen) (Law (2002:562) on electronic commerce and other information 
society services (the Law on e-commerce): first subparagraph of Paragraph 3 and 
Paragraph 5 
Marknadsföringslag (2008:486) (Law (2008:486) on marketing): Paragraph 2, 
Paragraph 3 and Paragraph 23 
Förordning (2013:413) om kosmetiska produkter (Regulation (2013:413) on 
cosmetic products): first subparagraph of Paragraph 4 
Myndigheten för samhällsskydd och beredskaps föreskrifter om aerosolbehållare 
(MSBFS 2018:1) (Swedish Civil Contingencies Agency’s Rules on Aerosol 
Dispensers (MSBFS 2018:1)) 
Succinct presentation of the facts and procedure in the main proceedings 
1 The parties to the case are KTF Organisation AB (Swedish Association of 
Chemical Products Suppliers; ‘KTF’) and Parfümerie Akzente GmbH 
(‘Parfümerie Akzente’). KTF is a service company of an industry organisation for 
companies which import, produce or market chemical or technical consumer 
goods such as cosmetic products and hygiene products. Parfümerie Akzente is a 
German company which, via its website parfumdreams.se markets and sells hair 
care products and other cosmetic products. The marketing and selling on the 
website are directed to the Swedish market and Swedish customers. 
2 KTF claimed that Parfümerie Akzente was engaging in unfair marketing practices 
and, in February 2020, brought an action before the Patent- och 
marknadsdomstolen (Patent and Market Court[, District Court, Stockholm]; ‘the 
PMD’) against that company. In that case, KTF claimed, inter alia, that the PMD 
should prohibit, on pain of financial penalty, Parfümerie Akzente from 
- using certain specific promotional claims in the marketing of cosmetic 
products and hair care products; 
- marketing certain cosmetic products with aerosol dispensers which are not 
labelled in Swedish in accordance with Swedish rules which implement and 
supplement Directive 75/324; 
- marketing certain cosmetic products which are not labelled in Swedish in 
accordance with Swedish rules which supplement Regulation No 1223/2009. 
3 The PMD upheld KTF’s claims. The court found that the marketing practices 
complained of were unfair and that there were grounds under the Swedish rules on 
SUMMARY OF REQUEST FOR PRELIMINARY RULING – CASE C-88/23 
 
4  
advertising and commercial practices for prohibiting Parfümerie Akzente from 
using those marketing practices. 
4 The PMD first examined the applicability of Swedish marketing law to that part of 
the action which concerned the promotional claims complained of which appeared 
on the website. In the view of the court, Parfümerie Akzente was a service 
supplier established in Germany. The online sales of the goods at issue constituted 
an information society service. The PMD also held that the promotional claims in 
question appearing on the website constituted a part of that service and that the 
requirements for those promotional claims were covered by the coordinated field. 
5 In the view of the PMD, that means that Parfümerie Akzente was entitled within 
the coordinated field, without being subject to the Swedish rules, to supply its 
information society service to service users in Sweden. In that regard, the PMD 
interpreted the Swedish rules which implement Directive 2000/31 as meaning that 
the court was to apply Swedish law to the area at issue, but that the application of 
Swedish law generally could not mean that the service provider Parfümerie 
Akzente was subject to requirements which were stricter than those provided for 
in the substantive law of the State of establishment, Germany. 
6 Further, the PMD stated that Directive 2005/29 is a directive of full 
harmonisation. In the view of that court, that means that the provisions of the 
directive are to be given the same meaning and scope throughout the entire 
European Union and that the Member States may not provide otherwise than in 
accordance with the directive and with the case-law of the Court of Justice. The 
PMD was of the view that accordingly there should be no difference between 
German and Swedish law which could cause Parfümerie Akzente to be subject, on 
application of Swedish law, to requirements that are stricter than those provided 
for in German law or which otherwise constitute obstacles to the free movement 
of services. The court stated that nor had Parfümerie Akzente claimed in what way 
the Swedish marketing legislation is more restrictive than Directive 2005/29 or 
German substantive law. On that basis, and since the promotional claims 
complained of had had their effects in Sweden, there was no obstacle to the rules 
under Swedish marketing law applying. 
7 Parfümerie Akzente has appealed against the judgment of the PMD to the 
referring court and claimed that that court should reject KTF’s claims. 
The essential arguments of the parties in the main proceedings 
8 KTF claims that the marketing practices complained of are unfair and must 
therefore be prohibited. Parfümerie Akzente has marketed wrongly labelled goods 
on its website and sold and delivered those goods to end consumers in Sweden. 
The company has marketed and sold certain cosmetic products with aerosol 
dispensers which have not been marked in accordance with the Swedish rules 
which implement and supplement Directive 75/324. It is not lawful to market or 
supply to end consumers in Sweden goods with aerosol dispensers which lack 
PARFÜMERIE AKZENTE 
 
5 
such labelling in Swedish. Furthermore, Parfümerie Akzente has marketed and 
sold a quantity of cosmetic products which lack information in Swedish on 
specific safety precautions which must be taken when using those goods, in 
accordance with Article 19(1)(d) of Regulation No 1223/2009 and Annex III to 
that regulation. Such information is to be given in Swedish in accordance with 
Swedish rules which supplement the regulation. It is unlawful to market or supply 
to end consumers in Sweden cosmetic products which do not bear information in 
Swedish on specific safety precautions. 
9 With regard to the importance of Directive 2000/31 and the Swedish rules which 
implement the directive, KTF has stated as follows. Parfümerie Akzente has 
marketed and sold its goods on the Swedish market. The marketing practices have 
therefore had effects in Sweden. The Swedish rules which implement Directive 
2000/31 are subordinate to the rules which implement Directive 2005/29. The 
generally established marketing law principle of the country of effect therefore 
takes precedence over the principle of the country of origin in accordance with the 
Swedish rules which flow from Directive 2000/31. Directive 2005/29 is a 
directive of full harmonisation and Swedish marketing law rules can therefore 
never be stricter than those in German law. Since the marketing practices 
complained of concern, inter alia, cosmetic products and dispensers which may 
not be marketed on the Swedish market, nor are the provisions of German law 
relevant. 
10 Parfümerie Akzente has disputed KTF’s claims and allegations that the company 
has acted in a manner contrary to the rules under Swedish marketing law. 
11 Parfümerie Akzente claims that Directive 2000/31 and the Swedish rules which 
implement the directive constitute obstacles in that the supplier of a service within 
electronic commerce is subject to stricter rules than those laid down in the 
relevant substantive law of the State of establishment. The principle of the country 
of origin under those rules means in the present case that Swedish law is not to 
apply where German marketing law rules are less strict than the Swedish rules. 
The principle of the country of origin is applicable to that part of the case which 
concerns the promotional claims on the website. That principle does not, however, 
apply to those parts of the case which concern the marketing of wrongly labelled 
goods, since it follows from Directive 2000/31 that national provisions are to 
apply to the delivery itself of goods, despite the fact that the contract was entered 
into electronically. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
12 Questions have arisen in the proceedings before the referring court concerning, 
first, the Swedish implementation of Directive 2000/31 and its conformity with 
EU law and, second, the scope of the coordinated field. 
13 The Swedish Law on e-commerce implements Directive 2000/31 and applies to 
information society services and the initiation and carrying out of activities related 
SUMMARY OF REQUEST FOR PRELIMINARY RULING – CASE C-88/23 
 
6  
to such services. Examples of information society services are sending 
commercial communications online and selling goods online (see, for example, 
recital 18 of Directive 2000/31). 
14 It follows from Article 3(1) of the directive that each Member State is to ensure 
that the information society services provided by a service provider established on 
its territory comply with the national provisions applicable in the Member State in 
question which fall within the coordinated field. Further, it follows from 
Article 3(2) thereof that Member States may not, for reasons falling within the 
coordinated field, restrict the freedom to provide information society services 
from another Member State. 
15 It is clear from the case-law of the Court of Justice that the directive does not 
require Article 3 to be instituted as a specific conflict-of-laws rule. However, with 
regard to the coordinated field, Member States are to ensure that a service 
provider within e-commerce is not subject to requirements which are stricter than 
those provided for in the substantive law of the Member State where the service 
provider is established, except as expressly provided for in Article 3(4) (see 
judgment of 25 October 2011, eDate Advertising and Others, C-509/09, 
EU:C:2011:685, paragraphs 53 to 68). 
16 Paragraph 5 of the Law on e-commerce implements Article 3(1) of Directive 
2000/31. It follows from that paragraph that, within the coordinated field, Swedish 
law is to apply to information society services supplied by service providers 
established in Sweden, including where the services in whole or in part are 
directed to recipients of services who are in a different State of the EEA. The 
effect of that provision is that all services providers established in Sweden must 
comply with Swedish rules within the coordinated field when they supply 
information society services. That is also the case if the services are directed only 
to recipients in another EEA country. The rule is therefore a conflict-of-laws rule 
which gives effect to part of the principle of country of origin. Within the scope of 
the Law on e-commerce, that conflict-of-laws rule is deemed to take precedence 
over the principle of country of effect generally established in Swedish marketing 
law. 
17 That part of the principle of country of origin which applies to service providers 
established outside Sweden is set out in Paragraph 3 of the Law on e-commerce. 
Under the first subparagraph of that paragraph, a service provider established in 
an EEA State other than Sweden is entitled, without hindrance from Swedish rules 
within the coordinated field, to supply information society services to recipients in 
Sweden. The provision implements Article 3(2) of Directive 2000/31, which states 
that Member States may not, for reasons falling within the coordinated field, 
restrict the freedom to provide information society services from another Member 
State. 
18 The wording of the first subparagraph of Paragraph 3 of the Law on e-commerce 
is not the same as that of Article 3(2) of Directive 2000/31. In that regard, it is not 
PARFÜMERIE AKZENTE 
 
7 
stated in the Swedish provision, as it is in Article 3(2), that Swedish rules within 
the coordinated field may not restrict the freedom to provide information society 
services from another Member State. Nor does it state, in line with the finding of 
the Court of Justice, that Swedish rules are to apply provided that the service 
provider is not subject to rules stricter than those provided for in the substantive 
law of the Member State in which the service provider is established. 
19 The wording of the Swedish provision could therefore be regarded as meaning 
that Swedish rules within the coordinated field are not to apply to services 
originating outside Sweden, irrespective of whether the Swedish rules are or are 
not stricter than the rules of the country of origin. In implementing Directive 
2000/31, the Swedish legislature has also set out the principle of country of origin 
in a manner such that it is to be sufficient for a service provider covered by the 
coordinated field to comply with the law in the State where he or she is 
established. 
20 If the first subparagraph of Paragraph 3 of the Law on e-commerce were to be 
interpreted as meaning that a foreign operator is to be able to offer services in 
Sweden freely and without hindrance from Swedish rules, such a manner of 
implementing Article 3(2) of Directive 2000/31 would indeed comply with the 
finding of the Court of Justice in the case of eDate Advertising and Others. Such a 
system would in fact incontrovertibly ensure that, as a general rule, a foreign 
operator is never subject to Swedish requirements within the coordinated field 
which are stricter than those provided for in the substantive law of the country of 
origin. At the same time, in the view of the referring court, the question arises 
whether such an implementation of Article 3(2) would be compatible with EU law 
and its effective application. 
21 For example, such implementation would mean that the marketing law rules 
implementing Directive 2005/29 in principle cannot apply, if the service provider 
is established in and supplies information society services from another Member 
State. In turn, that would mean, inter alia, that competitors or consumer 
associations which are affected by certain online marketing practices would be 
forced to apply to courts and other authorities in the service provider’s State of 
establishment to bring proceedings there in a different language and subject to the 
application of the substantive law of a different Member State. Even having 
regard to the background of the protective rules set out, for example, in Directive 
(EU) 2020/1828 on representative actions for the protection of the collective 
interests of consumers, such a system can still be called into question with regard 
to the high level of consumer protection and the system of compliance with the 
provisions of Directive 2005/29 (see, in particular, Article 11). 
22 Overall, in the view of the referring court, it is neither clear nor has it been 
clarified how EU law is to be interpreted, as regards conformity with EU law and 
its effective application, with respect to the implementation of Article 3(2) in a 
way which means that national rules within the coordinated field, including 
national rules which implement Directive 2005/29, cannot as a general rule be 
SUMMARY OF REQUEST FOR PRELIMINARY RULING – CASE C-88/23 
 
8  
applied if the service provider is established in and supplies information society 
services from a different Member State. 
23 With regard to the scope of the coordinated field, the referring court has stated 
that it covers requirements concerning such online activity as online information, 
online advertising, online commerce and online contracts. However, it does not 
cover the Member States’ legal requirements concerning goods, such as safety 
standards, labelling requirements or product liability, or the Member States’ 
requirements concerning delivery or carriage of goods (see recital 21 and 
Article 2(h) of Directive 2000/31). 
24 The Court of Justice has also ruled that the coordinated field covers requirements 
for the selling of goods online. However, the coordinated field does not cover 
requirements applicable to the supply of goods in respect of which a contract has 
been concluded by electronic means. National rules which relate to the conditions 
under which goods sold online may be supplied within the territory of a Member 
State fall outside the scope of that directive (see judgment of 2 December 2010, 
Ker-Optika, C-108/09, EU:C:2010:725, paragraphs 24 to 31). 
25 Neither Directive 2000/31 nor the case-law of the Court of Justice makes it clear, 
however, how that works in a situation where marketing and online sales involve 
goods which are alleged to be labelled in contravention of the requirement 
applicable to those goods themselves in the purchasing consumer’s Member State. 
Specifically, it does not follow clearly from EU law whether the coordinated field 
under Directive 2000/31 covers requirements for the marketing and online sales of 
a product which is alleged not to meet the requirements applicable to the product 
itself. 
26 If the coordinated field were to cover, in such a situation, the marketing and online 
sales of the product, in the view of the referring court the question also arises 
whether the requirements in respect of the delivery and the product itself are to be 
excluded from the coordinated field, in accordance with Article 2(h)(ii) of 
Directive 2000/31. 
27 In online sales, where the service provider’s sales are entirely directed to 
consumers in another Member State, in which the service provider has no fixed 
establishment, the delivery of the product is, in practice, a necessary step in the 
provision of the service and would therefore be deemed to constitute an element 
that is ancillary to and inseparable from the provision of the service. In such cases, 
the delivery of the product itself thus constitutes an essential requirement for 
online sales. 
28 If the coordinated field were to cover, in such a situation, the requirements 
concerning marketing and online sales, but not the requirements concerning 
delivery or the goods themselves, different Member States’ legislative frameworks 
could be applicable to the different stages of the transaction. In such a case, the 
situation could arise in which it is legal per se to market and sell goods online to 
PARFÜMERIE AKZENTE 
 
9 
the consumer, but at the same time not legal to deliver the goods themselves to the 
consumer. The aim of Directive 2000/31, which is to eliminate legal uncertainty 
and promote free movement in respect of, inter alia, such selling as is carried out 
online, could therefore be said to be frustrated. 
29 A further aspect in the consideration of the scope of the coordinated field is the 
relation and interaction between Directive 2000/31 and other EU legislation. The 
requirements to which goods themselves are subject in the consumer’s Member 
State can, in fact, as in the present case, follow from national provisions which 
implement and supplement sector-specific EU legislation, including Article 8(2) 
of Directive 75/324 and Article 19(5) of Regulation No 1223/2009, and mean that 
requirements concerning the goods must be fulfilled for it to be possible for the 
goods to be released onto the market or supplied to end consumers in that Member 
State.