Opinion of the Advocate General — ECLI:EU:C:2007:345
Date: 2007-06-14
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 1. Approximation of laws – Prepackaging of liquids – Directive 75/106 (Art. 28 EC; Council Directive 75/106, as amended by the Act of Accession of 2003, Art. 5(3)(b) and (d) and Annex III, section 4) 2. Free movement of goods – Quantitative restrictions – Measures having equivalent effect (Art. 28 EC; Council Directive 75/106, as amended by the Act of Accession of 2003, Art. 5(3)(b) and (d) and Annex III, section 4) 1. Having regard to the general scheme and purpose of Directive 75/106 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids and to the principle of the free movement of goods guaranteed by Article 28 EC, Article 5(3)(d) of that directive must be interpreted as meaning that prepackages with a nominal volume of 0.071 litre, which contain one of the products listed in section 4 of the same directive, and which are lawfully manufactured and marketed in Ireland or the United Kingdom, may also be marketed in all the other EC Member States. A contrary interpretation cannot be justified by an overriding requirement relating to consumer protection. Whilst it is true that, according to the fourth recital of its preamble, Directive 75/106 seeks to avoid the risk that consumers will be misled by nominal volumes which are too close to one another, such a risk may be considered to be excluded, taking as the reference point the average consumer, reasonably well informed and reasonably observant and circumspect. Article 4(1) of Directive 75/106 lays down, in respect of prepackages covered by that directive, the obligation to indicate on the labelling the net quantity of liquid contained in the packaging, expressed in units of volume, in order to avoid, in the mind of the reference consumer, any confusion between the two volumes and to enable that consumer to take account of the ascertained difference in volume when comparing the prices of the same liquid presented in two different types of packaging. In that regard, a nominal volume such as 0.071 litre, situated between the nominal volumes of 0.05 litre and 0.10 litre, included in the Community range of nominal volumes allowed for the products listed in Annex III, section 4, of Directive 75/106, represents in respect of each of those two nominal volumes a difference greater than 0.01 litre which is sufficient to avoid any confusion in the mind of the reference consumer. Finally, it is necessary to take into account the obligation, arising from Directive 98/6 on consumer protection in the indication of the prices of products offered to consumers, to indicate the unit price, irrespective of the nominal value of the prepackage. (see paras 27-31, operative part 1) 2. The general scheme and purpose of Directive 75/106 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids and the principle of the free movement of goods preclude the prohibition on marketing the products listed in section 4 of Annex III to the directive in prepackages of a nominal volume of 0.071 litre from Member States other than Ireland and the United Kingdom, as a consequence of the final sentence of the second paragraph of Article 5(3)(b) of that directive, read in conjunction with Article 5(3)(d) thereof. As, in accordance with those provisions, the prepackages can be marketed only from those two Member States, such a prohibition is liable to hinder intra‑Community trade because it could result in making their manufacture and marketing by producers established in other Member States more difficult or more onerous, dissuading them from marketing them in such prepackages. That prohibition on marketing cannot be justified since it manifestly contradicts one of the objectives pursued by Directive 75/106 itself, namely the free movement of prepackages containing liquids referred to in Annex III to that directive, and since the risk of consumers being misled is excluded. In so far as the possibility, provided for in Article 5(3)(d) of Directive 75/106, of marketing prepackages of a nominal volume of 0.071 litre exclusively from Ireland and the United Kingdom is accorded permanently, it cannot be justified by the objective pursued by that provision, since it goes beyond what is necessary in order to attain the objective, namely, as is clear from the sixth recital in the preamble to Directive 75/106, to allow those two Member States to adapt to the difficulties presented by too swift a change in the means of determining quantity laid down by their national legislation and the organisation of new systems of control as well as the adoption of a new measurement system. Therefore, the final sentence of the second paragraph of Article 5(3)(b) of Directive 75/106, read in conjunction with Article 5(3)(d) thereof, is invalid in so far as it excludes the nominal volume of 0.071 litre from the harmonised Community range of nominal volumes appearing in column I of section 4 of Annex III to that directive. (see paras 32-33, 35-37, 39, operative part 2)