Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council laying down rules on nominal quantities for pre-packed products, repealing Council Directives 75/106/EEC and 80/232/EEC, and amending Council Directive 76/211/EEC (COM(2004) 708 final — 2004/0248 (COD))
Date: 2005-04-06
Institutions: European Economic and Social Committee
Subjects: EU law - national law, consumer information, consumer protection, deregulation, intra-EU trade, pre-packaging, single market

C 255/36

EN

Official Journal of the European Union

14.10.2005

Opinion of the European Economic and Social Committee on the Proposal for a Directive of the
European Parliament and of the Council laying down rules on nominal quantities for pre-packed
products, repealing Council Directives 75/106/EEC and 80/232/EEC, and amending Council Direc-
tive 76/211/EEC

(COM(2004) 708 final — 2004/0248 (COD))

(2005/C 255/06)

On 20 December 2004, the Council decided to consult the European Economic and Social Committee,
under Article 95 of the Treaty establishing the European Community, on the abovementioned communica-
tion.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the
Committee's work on this subject, adopted its opinion on 16 March 2005. The Rapporteur was Ms Sharma.

At its 416th plenary session (meeting of 6 April 2005), the European Economic and Social Committee
adopted the following opinion by 104 votes to 1, with 5 abstentions.

1. Introduction

1.1
The first Community legislation for ranges of sizes for
pre-packaged products (1) dates from 1975. It includes regu-
lation for both metrological requirements (2) and ranges of sizes
for liquids. Twenty years later, in the framework of the SLIM-IV
exercise (Simpler Legislation for the Internal Market), a team,
comprising members designated by Member States and repre-
sentatives of
identified by the Commission,
advised on pack sizes legislation (3):

stakeholders

this body of

‘given their complexity (some 40 targeted products, complexity of
certain ranges of values, etc.) the evolution of consumer patterns
and preferences over the interim period and reservation as to the
appropriateness of maintaining this type of legislation. Moreover,
successive amendments of the Directives and an enlargement of
the scope of the 1975 pre-packaging directive have made the
application of
legislation problematic……. The
application of the Directives has proved to be difficult, notably as
a result of the variety of rules and practices applying to ranges:
certain ranges were made mandatory (e.g. wine) whilst others
remained optional. Moreover, Member States retained the right to
fix ranges at national level because of the optional character of
Community rules. The variety of rules led to the compartmentali-
sation into different national markets within the European Com-
munity. In addition, the arrival of new packaging formats and
new products and their classification in the existing ranges system
tended to exacerbate an already confused situation.’

2. Background

2.1
In the 1960s, with the start of the European Com-
munity, different national rules on nominal quantities (4) of pre-

(1) Pre-pack: a pack for distribution to the final consumer.
(2) Metrological requirements concern the control of

the quantity
contained in a pre-packed product in order to ensure that consu-
mers indeed get the quantity that is indicated on the package.

(3) COM(2000) 56 final, pp 9-11 and 21-22
(4) The nominal quantity (nominal weight or nominal volume) of the
contents of a prepackage is the weight or volume indicated on the
i.e. the quantity of product which the prepackage is
prepackage,
deemed to contain. The actual contents of the prepackage are the
quantity (weight or volume) of product which it in fact contains.
(Council Directive 76/211/EEC; OJ L 46, 21/02/1976)

packaged products (pack/bottle sizes) were seen as a major
barrier for the free movement of goods between the Member
States. Hence, these sizes were harmonised by means of Com-
munity rules.

At the same time, there was a concern not to impose
2.2
such new Community rules on companies that worked only on
the national market and did not intend to export to other
Member States. Harmonising regulation was therefore of an
‘optional nature’: Member States adopted the Community rules,
but were allowed to maintain existing national rules for their
national markets. Only products conforming to the Community
rules would benefit from free circulation.

However,

for some products (e.g. wine, spirits) total
2.3
harmonisation was
introduced. Community sizes became
mandatory for all operators in these product areas and all
national sizes were abolished.

2.4
Over the past decades, huge changes have occurred in
packaging — demographic changes, households have decreased
in numbers, consumption of individual portions has increased
and more wealth and consumer sophistication has led to
increased demands for an enormous variety of packages and
products. Additionally, super- and hypermarkets have grown to
important outlets to consumers, and through
be the most
consumer demands for change,
industry is pressurised to
become increasingly innovative and competitive in a global
market.

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2.5
Elements that used to be covered by the prepackaged
sizes legislation have now been consolidated in new legal
instruments of consumer protection. This consumer protection
legislation is designed to prohibit unfair business-to-consumer
practices and has developed, in the main, a coherent and suffi-
cient system of information to consumers by means of labelling
and price per unit comparisons and hence the current prepack-
aged sizes legislation is being seen as counter productive.

Under the framework of the SLIM-IV exercise, members
2.6
designated by Member States and representatives of stake-
holders identified by the Commission were requested to review
and advise on pack sizes legislation. This need for review was
subsequently reinforced when the European Court ruled in the
Cidrerie-Ruwet case (5) that the ‘Cassis de Dijon jurisprudence’
applied, stating that Member States must accept on their
market products legally produced and marketed in another
Member State unless there are overriding requirements of a
public nature. The Court suggested that this would hardly be
the case for pack sizes.

2.7
Recommendations from the review produced a working
document on which between 8 November 2002 and 31
January 2003, the Enterprise DG held a public Internet consul-
tation in 11 languages with consumers, producers and retailers.
An impact assessment was subsequently produced and a new
directive laying down rules on nominal quantities for pre-
packed products, repealing Council Directives 75/106/EEC (6)
and
Council Directive
76/211/EEC (8) has been established.

80/232/EEC (7),

amending

and

3. Objectives

3.1
The new directive removes the regulation of sizes and
prevents Member States from imposing their own legislation
on their national markets that differs from the Community
rules. The only exceptions (excluding very small and bulk quan-
tities) are the Community rules which are now set for Wines
and Spirits, White Sugar, and Soluble Coffee. Aerosols are an
additional exception and will remain under the current legisla-
tion for consumer protection under the health and safety regu-
lations. However, aerosols will be regulated under a new direc-
tive currently under review,
following which they will be
removed from the nominal packaging directive.

3.2
The current document concerns only the legislation of
‘ranges of sizes/quantities’ and not the metrological require-
ments, which will be the subject of a later proposal.

3.3

The proposal aims to:

— promote competitiveness in line with enterprise policy by
encouraging entrepreneurship, product and process innova-
tion;

— facilitate access to markets by taking away potential obsta-

cles to competitiveness on the Internal Market;

2.8

The main instruments of consumer protection are:

— remove discrimination for national sizes from domestic
packers who are facing competition on the home market
from different sizes in which they are not allowed to pack;

Directive 2000/13 on labelling and presentation of foodstuffs
(Art 2), Directive 84/450/EEC on misleading advertising
(amended by Directive 97/55/EC to include provisions on
comparative advertising), will be amended by COM(2003) 356
final, of 18.6.2003: Proposal for a Directive of the EP and of
the Council concerning unfair business-to-consumer commer-
cial practices on the Internal market, Directive 98/6EC on
consumer protection on the indication of the prices of products
offered to consumers (price per kilo/litre):unit prices, which are
mandatory for all products in supermarkets.

(5) Case C-3/99, 12 October 2000, Cidrerie Ruwet SA v Cidre Stassen

SA and HP Bulmer Ltd.

(6) 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 pre-packaged liquids

(7) Council Directive 80/232/EEC of 15 January 1980 on the approxi-
mation of the laws of the Member States relating to the ranges of
nominal quantities and nominal capacities permitted for certain
prepackaged products

(8) Council Directive 76/211/EEC of 20 January 1976 on the approxi-
mation of the laws of the Member States relating to the making-up
by weight or by volume of certain pre-packaged products

— benefit small and medium sized enterprises –cost reduction
through the creation of economies of scale for production,
both for home consumption and for exports;

— continue the high level of consumer protection legislation
which prohibits unfair business-to-consumer practices;

— provide better choice for consumers as producers can
respond immediately to changes in consumer tastes and
demands, together with accommodating the needs of retai-
lers requirements of optimising shelf space;

— ensure a coherent and sufficient system of information to
consumers by means of labelling. The indication of prices
per kilo or litre allows consumers to quickly compare
products packed in different sizes. This approach is in line
with the European Court of Justice, which considers the
‘average consumer, reasonably well
informed and reason-
ably observant and circumspect’ as a reference.

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3.4
Current environmental regulation has no impact on
sizes, nor do sizes have an impact on environmental regulation.
Existing environmental regulation should remain applicable
and the proposal should not impede the full and proper imple-
mentation of environmental
law, notably the prevention of
waste requiring the minimisation of packaging.

3.5
To allow industry to adapt to deregulation, and taking
into consideration average investment cycles for packaging
equipment, a time limitation of 20 years has been allocated for
deregulation to take place.

4. Specific comments

4.1
Nominal pre packed quantities, where nominal refers to
the declaration of volume specified, and quantity to the actual
volume enclosed, are those determined only by the contents
quantity sizes of
the containers/packaging. The Committee
welcomes the imminent review of the metrological quantity
(control of contents enclosed) as a major priority for consumer
and European industry protection.

4.2
The EESC praises the Commission for its public consul-
tation and dialogue with stakeholders and notes that it has
taken account of various sectors, including wines and spirits,
sugar, coffee. The need to create greater competitiveness and
innovation for European industry is essential for growth and
the SLIM- IV exercise aids this priority.

4.2.1
The CEPS (European Spirits Organisation) has made
separate comment to the Commission and highlights further,
consumer protection issues, unit pricing and the potential
abolition in 20 year time of mandatory spirits legislation,
rightly pointing out that the legislation concerning the latter
should be reviewed prior to the 20 year time frame.

4.3
Reference should be clearly made within the directive to
a maximum volume capacity of mineral water of 10 litres.
the
Beyond this volume there is evidence to suggest
quality of mineral water could begin to deteriorate and may
present a health risk to consumers.

that

The new directive allows for greater potential for inno-
research and development opportunities

4.4
vation, market
creating wider choice and variety for consumers.

Brussels, 6 April 2005

4.5
However, note should be taken that unit pricing does
not appear to be universal across Europe and often appears in
small print on shelf labelling. The unit pricing font size declara-
tion is set at national level and in many cases is still not clear
for consumers. This will not ease the problems for blind, poor
sighted,
illiterate or non-native speaking citizens, particularly
those who are accustomed to buying the same size standard
product.

4.6
The consumer organisations have pointed out that some
consumers can be confused by excessive variations in packa-
ging sizing and by packaging that may not qualify as deceptive
but still gives the impression of greater contents. Clear and
legible packaging labelling, including the ‘on shelf unit pricing’
and pack size, together with continued monitoring of deceptive
packaging legislation, will overcome
issue. Greater
emphasis should also be placed on immediate action where
consumer protection legislation is breached or absent. These
issues need to be more clearly emphasised in the directive, and
further considered under the metrological review.

this

4.7
There is a strong fear from consumer organisations that
free sizing will allow for price increases to be imposed on
products more easily under the guise of new packaging sizes,
in a similar way to the introduction of the Euro (Eurozone) and
the change to metric sizing (UK). The Committee would there-
fore request that, as part of the internal monitoring procedures,
product size changes are referenced to any unit product price
changes when statistical data is collected.

4.8 Whilst the directive is not impacted by current environ-
mental
is probable that with an increase in
smaller sizes the volumes of packaging will increase, resulting
in greater amounts of packaging waste.

legislation,

it

4.9
It is imperative that the aims of the Packaging/Packaging
Waste directive (PPW) are achieved, regardless of whether sizes
are regulated or not. This message must be repeated to all
Member States and industry, together with a clear communica-
tion to consumers to demand less packaging from the retailers.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND