Common Position (EC) No 34/2006 of 4 December 2006 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council 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
Date: 2006-12-04
Institutions: Council of the European Union
Subjects: free movement of goods, market approval, marketing standard, packaging, preparation for market

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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 EURO-
PEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, 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)

(2)

(3)

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 prepack-
aged 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 quanti-
ties.

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.

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

(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.

prohibition is designed to meet an overriding require-
ment 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)

(5)

(6)

(7)

(8)

adopted

after Directives
notably Directive

Consumer protection is facilitated by directives which
75/106/EEC and
were
80/232/EEC,
the
98/6/EC
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).

of

indicated that,

interested stakeholders,

An impact assessment, including a wide consultation of
all
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.

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

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.

However,
in certain sectors such deregulation could
result in disproportionately heavy extra costs, especially
those
for small and medium sized enterprises. For
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 consu-
mers.

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

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(9)

(10)

(11)

(12)

(13)

(14)

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

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

In order to increase protection for consumers, in particu-
lar 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.

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 (1). Directive 76/211/EEC
should therefore be amended to include in its scope the
products currently covered by Directive 75/106/EEC.

In accordance with point 34 of the Interinstitutional
Agreement on better law-making (2), Member States are
encouraged to draw up, for themselves and in the inter-
ests 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.

Since the objectives of this Directive cannot be suffi-
ciently 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
Directive 76/211/EEC.

and prepackages,

as defined in Article 2 of

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
… (*).

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

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 capa-
city 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 dispen-
sers (3), products which are sold in aerosol dispensers need not
be marked with the nominal weight of their contents.

(1) 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).

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

(*) 60 months after the date of entry into force of this Directive.
(**) 72 months after the date of entry into force of this Directive.
(3) 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).

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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 indivi-
dual 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 indivi-
dual 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

the words ‘with the
In Article 1 of Directive 76/211/EEC,
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

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

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

The Commission shall submit a report on the application
1.
and effects of this Directive to the European Parliament, the
Council and the European Economic and Social Committee by
… (***) 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 … (**) 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 … (**).

Article 11

Addressees

This Directive is addressed to the Member States.

They shall apply those measures from … (**).

Done at Brussels,

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.

For the European Parliament

The President

…

For the Council

The President

…

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

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

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ANNEX

RANGE OF NOMINAL QUANTITIES OF CONTENTS OF PREPACKAGES

1. Products sold by volume (quantity in ml)

Still wine

Yellow wine

Sparkling wine

Liqueur wine

Aromatised wine

Spirit drinks

2. Product definitions

Still wine

Yellow wine

Sparkling wine

Liqueur wine

Aromatised wine

On the interval from 100 ml to 1 500 ml only the following 8 nominal quantities:
ml: 100 — 187— 250 — 375 — 500 — 750 — 1 000 — 1 500

On the interval from 100 ml to 1 500 ml only the following nominal quantity:
ml: 620

On the interval from 125 ml to 1 500 ml only the following 5 nominal quantities:
ml: 125 — 200 — 375 — 750 — 1 500

On the interval from 100 ml to 1 500 ml only the following 7 nominal quantities:
ml: 100— 200 — 375 — 500 — 750 — 1 000 — 1 500

On the interval from 100 ml to 1 500 ml only the following 7 nominal quantities:
ml: 100 — 200 — 375 — 500 — 750 — 1 000 — 1 500

On the interval from 100 ml to 2 000 ml only the following 9 nominal quantities:
ml: 100 — 200 — 350 — 500 — 700 — 1 000 — 1 500 — 1 750 — 2 000

Wine as defined in Article 1(2)(b) of Council Regulation (EC) No 1493/1999 of 17 May
1999 on the common organisation of the market in wine (1) (Common Customs Tariff (CCT)
heading: CN code ex 2204).

Wine as defined in Article 1(2)(b) of Regulation (EC) No 1493/1999 (CCT heading: CN code
ex 2204) with the designation of origin:
‘L'Etoile’ and ‘Château-
‘Côtes du Jura’,
Chalon’
in bottles as defined in Annex I, point 3 of Commission Regulation (EC) No
753/2002 of 29 April 2002 laying down certain rules for applying Council Regulation (EC)
No 1493/1999 as regards the description, designation, presentation and protection of certain
wine sector products (2)

‘Arbois’,

Wine as defined in Article 1(2)(b) and in Annex I, points 15, 16, 17 and 18 of Regulation
(EC) No 1493/1999 (CCT subheading: 2204 10)

Wine as defined in Article 1(2)(b) and in Annex I, point 14 of Regulation (EC) No
1493/1999 (CCT subheadings: 2204 21 — 2204 29)

Aromatised wine as defined in Article 2(1)(a) of Council Regulation (EEC) No 1601/91 of 10
June 1991 laying down general rules on the definition, description and presentation of
aromatised wines, aromatised wine-based drinks and aromatised wine-product cocktails (3)
(CCT heading: 2205)

Spirit drinks

Spirit drinks as defined in Article 1(2) of Council Regulation (EEC) No l576/89 of
29 May 1989 laying down general rules on the definition, description and presentation of
spirit drinks (4) (CCT heading: 2208)

(1) OJ L 179, 14.7.1999 p. 1. Regulation as last amended by Regulation (EC) No 2165/2005 (OJ L 345, 28.12.2005, p. 1).
(2) OJ L 118, 4.5.2002 p. 1. Regulation as last amended by Regulation (EC) No 1507/2006 (OJ L 280, 12.10.2006, p. 9).
(3) OJ L 149, 14.6.1991 p. 1. Regulation as last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the

Council (OJ L 284, 31.10.2003, p. 1).

(4) OJ L 160, 12.6.1989 p. 1. Regulation as last amended by Regulation (EC) No 1882/2003.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 2 December 2004, the Commission forwarded to the Council and to the European Parliament a
proposal (1) 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 based on Article 95 of the Treaty.

1. The Economic and Social Committee adopted its opinion on 6 April 2005 (2)

2. The European Parliament's first reading opinion was adopted on 2 February 2006 (3).

3. The Commission adopted its amended proposal on 4 April 2006.

4. On 26 April 2006 the Commission presented its amended proposal. (4)

5. On 25 September 2006, the Council (Competitiveness) reached a political agreement on a compro-

mise text with a view to adopting its common position.

6. On 4 December 2006, the Council adopted its Common Position, pursuant to Article 251 of the

EC Treaty.

II. OBJECTIVES

The proposed Directive aims to repeal Directives 75/106/EEC and 80/232/EEC, to abolish nominal
quantities of pack sizes for most sectors, to maintain obligatory nominal quantities for a very limited
number of sectors and to include them in a single legislative instrument. The main thrust of the
proposed Directive is to deregulate, as a wide consultation of the stakeholders has shown that most
arguments are in favour of liberalising nominal quantities.

III. COMMON POSITION

The common position adopted by the Council reflects partially the opinion of the European Parliament
at first reading. Some of Parliament's amendments were already incorporated in the Commission's
amended proposal.

A number of Parliament's amendments have been reflected either in full or in part in the common
position.

All modifications to the Commission's amended proposal introduced by the Council in its common
position have been accepted by the Commission.

Neither the Council nor the Commission could, however, accept the European Parliament amendments
to harmonise sizes in sectors where this is currently not the case, namely milk, butter, coffee, pasta,
rice and brown sugar.

Detailed analysis of the Common Position

The Council has accepted in full the amendments 1,2, 4, 5, 8, 10 to 12, 14 and in principle the
amendments 3, 6, 7, 13, 16, though slightly reworded.

The Council does not consider that the sectors of milk, butter, coffee, pasta, rice and brown sugar, that
currently do not have harmonised mandatory sizes, require an EC range of nominal quantities.

(1) OJ …
(2) OJ …
(3) OJ …
(4) OJ …

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The Council has introduced, in Article 2 (2), a transitional period of five years after the entry into force
of the Directive, during which time the currently existing national sizes can be maintained for domestic
production of milk, butter, coffee, dried pasta and rice as well as a period of six years for white sugar.

IV. CONCLUSION

The Council considers that its common position is well in line with the original objectives of the
proposed Directive.