Case C-358/01: Action brought on 19 September 2001 by the Commission of the European Communities against the Kingdom of Spain
Date: 2001-10-27
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, market access, polishing and scouring preparations, product designation

C 303/14

EN

Official Journal of the European Communities

27.10.2001

Communities, represented by Richard Lyal, acting as agent,
with an address for service in Luxembourg.

The applicant claims that the Court should:

The Applicant claims that the Court should:

(1) declare that Council Directive 2001/44/EC of 15 June
2001 (1) amending Directive 76/308/EEC on mutual
assistance for the recovery of claims resulting from
operations forming part of the system of financing the
European Agricultural Guidance and Guarantee Fund,
and of agricultural
levies and customs duties and in
respect of value added tax and certain excise duties is
void;

(2) maintain the effects of the directive until the entry into
force of a directive adopted on the correct legal basic;

— Declare that, by refusing access to the Spanish market to
products lawfully manufactured and commercialised in
other Member States under the name of ‘limpiador con
lejı´a’ (cleaning product containing bleach) or similar, with
an active chlorine content of less than 35 grams per litre,
the Kingdom of Spain has failed to fulfil its obligations
under Article 28 of the EC Treaty; and

— Order the Kingdom of Spain to pay the costs.

(3) order the Council of the European Union to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

The Council adopted Directive 2001/44/EC on the basis of
Articles 93 and 94 EC, rather than on the basis of Article 99
EC, as proposed by the Commission, deeming the measure to
concern fiscal provisions.

The Commission considers that the object of the legislation in
question is the completion of the internal market and that it
does not constitute a set of measures harmonising tax pro-
visions. The correct legal base is, therefore, Article 95 EC.

The Commission accordingly submits that the directive has
been adopted on an incorrect legal basis and should be
annulled.

(1) OJ L 175, 28.6.2001, p. 17.

Action brought on 19 September 2001 by the Com-
the
mission of

the European Communities against

Kingdom of Spain

(Case C-358/01)

(2001/C 303/23)

The provisions of law in force in Spain, as interpreted and
applied by the Spanish authorities, contain restrictions which
apply without distinction to domestic products and imported
products, with regard to the naming and labelling of the
product in question [‘limpiador con lejı´a’ (cleaning product
containing bleach)]. Although the objective of consumer
protection may justify national measures which hinder intra-
Community trade, such measures must be necessary and
proportionate to the achievement of that objective.

The Commission rejects the argument put forward by the
Spanish authorities that it is essential for the protection of
Spanish consumers because, in the view of those authorities,
the word ‘bleach’ is indissociable from a product with the
disinfecting power associated with that level of active chlorine.
First, it is not possible, and thus disproportionate, to require
that an end product (bleach cleaners) composed of various
ingredients (including bleach) should present the same disinfec-
tant characteristics as a single one of those ingredients (bleach).
Secondly, the Commission considers that consumer protection
may be achieved by means other than by allowing only certain
marketing names, such as by the affixing of appropriate
labelling. Moreover, the Commission would draw attention to
Council Directive 88/379/EEC (1) 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 and Com-
mission Recommendation 89/542/EEC (2) of 13 September
1989 for the labelling of detergents and cleaning products.
The application of the aforementioned provisions allows the
consumer to be informed about
the composition of the
product which he is about to purchase.

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 Sep-
tember 2001 by the Commission of the European Communi-
ties, represented by Gregorio Valero Jordana, of the Com-
missions Legal Service, acting as Agent, with an address for
service at the office of Luis Escobar Guerrero, also of the Legal
Service, Wagner Centre, Luxembourg.

(1) OJ L 187, 16.7.1988, p. 14.
(2) OJ L 291, 10.10.1989, p. 55.