EN Official Journal of the European Union CE 311/21

COMMON POSITION (EC) No 34/2006

adopted by the Council on 4 December 2006

with a view to adopting Directive 2006/…/EC of the European Parliament and of the Council of … laying down rules on nominal quantities for prepacked products, repealing Council Directives 75/106/EEC and 80/232/EEC, and amending Council Directive 76/211/EEC

(2006/C 311 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),

Whereas:

(1) Council Directives 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids (3) and 80/232/EEC of 15 January 1980 on the approximation of the laws of the Member States relating to the ranges of nominal quantities and nominal capacities permitted for certain prepackaged products (4) set out nominal quantities for a number of liquid and non-liquid prepacked products, the purpose of which was to ensure the free movement of products complying with the requirements of those Directives. For most products, national nominal quantities are allowed to exist alongside the Community nominal quantities. For some products, however, Community nominal quantities are set to the exclusion of any national nominal quantities.

(2) Changes in consumer preferences and innovation of prepacking and retailing at Community and national level made it necessary to assess whether the existing legislation is still appropriate.

(3) The Court of Justice held in its judgment of 12 October 2000 in Case C-3/99 Cidrerie Ruwet (5) that Member States are precluded from prohibiting the marketing of a prepackage having a nominal volume not included in the Community range, which is lawfully manufactured and marketed in another Member State, unless such a prohibition is designed to meet an overriding requirement relating to consumer protection, applies without distinction to national and imported products alike, is necessary in order to meet the requirement in question and is proportionate to the objective pursued, and that objective cannot be achieved by measures which are less restrictive of intra-Community trade.

(4) Consumer protection is facilitated by directives which were adopted after Directives 75/106/EEC and 80/232/EEC, notably Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (6).

(5) An impact assessment, including a wide consultation of all interested stakeholders, indicated that, in many sectors, free nominal quantities increase the freedom of producers to provide goods according to consumer tastes and enhance competition as regards quality and price on the internal market. In other sectors, however, it is more appropriate, in the interests of consumers and business, to retain mandatory nominal quantities for the time being.

(6) Implementation of this Directive should be accompanied by more information for consumers and industry to enhance understanding of unit pricing.

(7) Consequently, nominal quantities should generally not be subject to regulation at Community or national level and it should be possible to place prepacked goods on the market in any nominal quantity.

(8) However, in certain sectors such deregulation could result in disproportionately heavy extra costs, especially for small and medium sized enterprises. For those sectors, therefore, existing Community legislation should be adapted in the light of experience, in particular to ensure that Community nominal quantities are fixed at least in the case of those products most sold to consumers.

(9) Since the maintenance of mandatory nominal quantities should be regarded as a derogation, it should be periodically reassessed in the light of experience and in order to meet the needs of consumers and producers. For these sectors, existing Community legislation should be adapted, in particular to limit the fixed Community nominal quantities only to those most sold to consumers.

(10) In order to promote transparency, all nominal quantities for prepacked products should be set in a single legislative text, and consequently Directives 75/106/EEC and 80/232/EEC should be repealed.

(11) In order to increase protection for consumers, in particular vulnerable consumers, such as the disabled and the elderly, proper attention should be paid to weight and volume indications on consumer product labelling being more easily legible and visible on the prepackage in normal conditions of presentation.

(12) For certain liquid products, Directive 75/106/EEC sets out metrological requirements identical to those set out in Council Directive 76/211/EEC of 20 January 1976 on the approximation of the laws of the Member States relating to the making-up by weight or by volume of certain prepackaged products (7). Directive 76/211/EEC should therefore be amended to include in its scope the products currently covered by Directive 75/106/EEC.

(13) In accordance with point 34 of the Interinstitutional Agreement on better law-making (8), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

(14) Since the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore, by reason of repealing Community ranges and ensuring uniform Community nominal quantities where needed, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and scope

1. This Directive lays down rules on the nominal quantities for products put up in prepackages. It shall apply to prepacked products and prepackages, as defined in Article 2 of Directive 76/211/EEC.

2. This Directive shall not apply to the products listed in the Annex which are sold in duty-free shops for consumption outside the European Union.

Article 2

Free movement of goods

1. Save as otherwise provided for in Articles 3 and 4, Member States may not, on grounds relating to the nominal quantities of the package, refuse, prohibit or restrict the placing on the market of prepacked products.

2. While respecting the principles stated in the Treaty and, in particular, the free movement of goods, Member States which currently prescribe mandatory nominal quantities for milk, butter, dried pasta and coffee may continue to do so until … (9).

Member States which currently prescribe mandatory nominal quantities for white sugar may continue to do so until … (10).

CHAPTER II

SPECIFIC PROVISIONS

Article 3

Placing on the market and free movement of certain products

Member States shall ensure that the products listed in point 2 of the Annex and put up in prepackages in the intervals listed in point 1 of the Annex are placed on the market only if they are prepacked in the nominal quantities listed in point 1 of the Annex.

Article 4

Aerosol dispensers

1. Aerosol dispensers shall indicate the nominal total capacity of the container. The indication shall be such as not to create confusion with the nominal volume of the contents.

2. By way of derogation from Article 8(1)(e) of Council Directive 75/324/EEC of 20 May 1975 on the approximation of the laws of the Member States relating to aerosol dispensers (11), products which are sold in aerosol dispensers need not be marked with the nominal weight of their contents.

Article 5

Multi-packs and prepackages made up of individual packages which are not intended to be sold individually

1. For the purposes of Article 3, where two or more individual prepackages make up a multi-pack, the nominal quantities listed in point 1 of the Annex shall apply to each individual prepackage.

2. Where a prepackage is made up of two or more individual packages which are not intended to be sold individually, the nominal quantities listed in point 1 of the Annex shall apply to the prepackage.

CHAPTER III

REPEALS, AMENDMENT AND FINAL PROVISIONS

Article 6

Repeals

Directives 75/106/EEC and 80/232/EEC shall be repealed.

Article 7

Amendment

In Article 1 of Directive 76/211/EEC, the words ‘with the exception of those referred to in the Council Directive 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids, and’ shall be deleted.

Article 8

Transposition

1. Before … (12) Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof.

They shall apply those measures from … (13).

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 9

Reporting, communication of derogations and monitoring

1. The Commission shall submit a report on the application and effects of this Directive to the European Parliament, the Council and the European Economic and Social Committee by … (14) at the latest, and every ten years thereafter. Where necessary, the report shall be accompanied by a proposal for revision of this Directive.

2. The Member States referred to in Article 2, paragraph 2 shall communicate to the Commission before … (13) the sectors subject to the derogation referred to in that paragraph, the period of such derogation, the range of mandatory nominal quantities applied and the interval concerned.

3. The Commission shall monitor the application of Article 2(2) based on its own findings and on reports from the Member States concerned.

Article 10

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Articles 2, 6 and 7 shall apply from … (13).

Article 11

Addressees

This Directive is addressed to the Member States.

Done at Brussels, For the European Parliament The President … For the Council The President …

(1) OJ C 255, 14.10.2005, p. 36.

(2) Opinion of the European Parliament of 2 February 2006 (not yet published in the Official Journal), Council Common Position of 4 December 2006 and Position of the European Parliament of … (not yet published in the Official Journal)

(3) OJ L 42, 15.2.1975, p. 1. Directive as last amended by the 2003 Act of Accession.

(4) OJ L 51, 25.2.1980, p. 1. Directive as last amended by Directive 87/356/EEC (OJ L 192, 11.7.1987, p. 48).

(5) [2000] ECR I-8749.

(6) OJ L 80, 18.3.1998, p. 27.

(7) OJ L 46, 21.2.1976, p. 1. Directive as amended by Commission Directive 78/891/EEC (OJ L 311, 4.11.1978, p. 21).

(8) OJ C 321, 31.12.2003, p. 1.

(9) 60 months after the date of entry into force of this Directive.

(10) 72 months after the date of entry into force of this Directive.

(11) OJ L 147, 9.6.1975, p. 40. Directive as last amended by Regulation (EC) No 807/2003 (OJ L 122, 16.5.2003, p. 36).

(12) 12 months after the date of entry into force of this Directive.

(13) 18 months after the date of entry into force of this Directive.

(14) 8 years after the date of entry into force of this Directive.