CELEX: 61994CC0085
Language: en
Date: 1995-06-15
Title: Opinion of Mr Advocate General Cosmas delivered on 15 June 1995. # Groupement des Producteurs, Importateurs et Agents Généraux d'Eaux Minérales Etrangères, VZW (Piageme) and others v Peeters NV. # Reference for a preliminary ruling: Hof van Beroep Brussel - Belgium. # Consumer protection - Labelling of mineral waters - Language. # Case C-85/94.

OPINION OF ADVOCATE GENERAL
      COSMAS
      delivered on 15 June 1995 (
            *1
         )
      
               1. 
            
            
               The Court has been asked for the second rime in the same case to interpret Article 30 of the EC Treaty and Article 14 of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (
                     1
                  ) (‘Directive 79/112’).
            
         I — Facts and procedure
      
               2.
            
            
               I shall refer only briefly to the facts, given that they are set out in the Report for the Hearing in Case C-369/89 Piageme and Others. (
                     2
                  )
            
         
               3.
            
            
               The plaintiffs in the main proceedings, the Piageme group and the SGGSEMF, Evian, Apollinaris and Vittel companies, which import and distribute various French mineral waters in Belgium, brought proceedings in the Rechtbank van Koophandel, Louvain, claiming that the defendant, Peeters, which markets mineral waters in the Flemishspeaking region, was infringing Belgian legislation since the bottles which it offered for sale were labelled either in French or in German whereas in that region, under Belgian legislation, the labelling had to be in Dutch.
               In fact, under Article 10 of the Royal Degree of 2 October 1980, replaced by Article 11 of the Royal Decree of 13 November 1986, ‘The labelling required under Article 2 as well as that provided for by specific rules must at least appear in the language or languages of the linguistic region where the foodstuffs are offered for sale.’ The defendant contended that that provision was contrary to Community law, in particular to Article 30 of the Treaty and Article 14 of Directive 79/112.
            
         
               4.
            
            
               By order of 5 December 1989, the national court stayed the proceedings and referred a question to the Court asking whether ‘Article 10 of the Royal Decree of 2 October 1980, now Article 11 of the Royal Decree of 13 November 1986, [was] contrary to Article 30 of the EEC Treaty and to Article 14 of Council Directive 79/112/EEC of 18 December 1978’.
            
         
               5.
            
            
               The Court gave its reply to the question in a judgment of 18 June 1991. (
                     3
                  ) In that judgment the Court altered the question that had been referred to it.
               Thus the Court determined that the Belgian Court was, in substance, seeking to establish whether Article 30 of the EEC Treaty and Article 14 of Directive 79/112 precluded a Member State from requiring by legislation the use of the language of the linguistic region in which the foodstuffs were marketed and preventing the possible use of another language easily understood by purchasers, or any derogation in cases where the purchaser was informed by other means.
            
         
               6.
            
            
               The reply given by the Court to the reformulated question as set out above was that Articles 30 of the EEC Treaty and 14 of Directive 79/112 ‘preclude a national law from requiring the exclusive use of a specific language for the labelling of foodstuffs, without allowing for the possibility of using another language easily understood by purchasers or of ensuring that the purchaser is informed by other measures’.
            
         
               7.
            
            
               Meanwhile, on 15 February 1990, the plaintiffs in the main proceedings appealed against the above order for reference by the Rechtbank van Koophandel, Louvain, to the Hof van Beroep, Brussels. In their appeal the parties in question challenged the submission of a preliminary reference to the Court of Justice of the European Communities. When the above-cited ruling of the Court was handed down, the appellant companies claimed that the Court's reply to the reformulated question did not lead with certainty to the conclusion that the provision in question conflicted with Community law, in particular since, contrary to what the Court appeared to have assumed in the said judgment, the Belgian legislature nowhere required the exclusive use of the language or languages of the area in which the product was offered for sale. The appellants claimed in consequence that even if the provision in question were held incompatible with the Community provisions, the labelling on the products at issue was not given in a language easily understood by purchasers and the respondent had not indicated what other measures it had taken to ensure that purchasers were informed.
            
         II — Questions referred for a preliminary ruling
      
               8.
            
            
               In the above circumstances, by a decision of 24 February 1994 the Hof van Beroep, Brussels, submitted a further three supplementary questions for a preliminary ruling to the Court which in substance seek clarification of the reply given by the Court to the previous preliminary reference in its judgment of 18 June 1991. The new questions are the following: (
                     4
                  )
               
                        ‘1.
                     
                     
                        Do Article 30 of the EEC Treaty and Article 14 of Council Directive 79/112/EEC in conjunction with the provisions of Articles 128 and 129a of the EEC Treaty as amended by the Treaty on European Union prevent Member States, with regard to the use of a language easily understood by consumers, from requiring the use of a language which is that most widely spoken in the area in which the product is offered for sale, if at the same time the use of a different language is not excluded?
                     
                  
                        2.
                     
                     
                        In order to determine whether information on a label satisfies the requirement in Article 14 of Directive 79/112/EEC of the use of “a language easily understood” must regard be had exclusively to all the particulars supplied on the outer packing taken together or may account also be taken of circumstances from which it is reasonable to conclude that the consumers may be considered to be familiar with the product, as for example in the case of widespread distribution of the product or wide-ranging advertising campaigns?
                     
                  
                        3.
                     
                     
                        May the “other measures ... taken to ensure that the purchaser is informed” provided for in Article 14 of the abovementioned directive thus be taken to mean that they can and must relate solely to the comprehensibility of the particulars on a label on a particular specimen of a product, or may they also relate to the entire specific context in which a product is offered for sale, provided that the information required by Articles 3 and 4(2) of Directive 79/112/EEC is given in full in a manner easily understood by the consumer?’
                     
                  
         
               9.
            
            
               The first of the three questions raises afresh the question whether Articles 30 of the EEC Treaty and 14 of Directive 79/112/EEC prohibit provisions similar to Article 11 of the Belgian Royal Decree at issue. The Hof van Beroep, Brussels, considers on that point that the judgment of 18 June 1991 does not answer precisely the question submitted by the first instance court, since it rules that Articles 30 of the Treaty and 14 of the Directive prohibit national provisions which require the exclusive use of a language but does not, however, explain whether those articles should be interpreted as meaning that they also prohibit national provisions, such as that at issue in this case, which require use of the language of a region but do not exclude the use of other languages. In other words, it is asked whether in substance, in the case in question, within the meaning of the above provisions, the national legislature may lay down the obligatory, but not exclusive, use in the labelling of products of the official language of the region where the products are marketed when consumers in that region easily understand another or other language(s).
               As the grounds of the judgment referring questions to the Court show, the second question seeks a definition of the term ‘a language easily understood’ by the purchaser.
               The third question seeks elucidation as to the criteria to be taken into account by the national court in a specific case in order to ascertain the meaning of the term ‘other measures ... taken to ensure that the purchaser is informed’ which, under Article 14 of the Directive, are to inform purchasers as effectively as the labelling in a language easily understood by them.
            
         III — Legislative framework and case-law
      
               10.
            
            
               Article 14 of Council Directive 79/112 provides that:
               ‘Member States shall refrain from laying down requirements more detailed than those already contained in Articles 3 to 11 concerning the manner in which the particulars provided for in Article 3 and Article 4(2) are to be shown.
               The Member States shall, however, ensure that the sale of foodstuffs within their own territories is prohibited if the particulars provided for in Article 3 and Article 4(2) do not appear in a language easily understood by purchasers, unless other measures have been taken to ensure that the purchaser is informed. This provision shall not prevent such particulars from being indicated in various languages.’
            
         
               11.
            
            
               As the Court emphasized in the judgment in Case C-369/89, that provision must be interpreted in a manner that does not fail to take into account the aims of the directive which, as follows from the first three recitals in its preamble, seeks in particular to eliminate the differences which exist between national provisions and hinder the free movement of goods. (
                     5
                  )
               It should also be stressed that Article 14 may not, in view moreover of the aims of the directive, be interpreted in a manner which would lead to a restriction of the rights which individuals derive directly from Article 30 of the Treaty. Consequently, the reply to the question referred for a preliminary ruling must be based on the case-law of the Court on that latter article.
            
         
               12.
            
            
               The Court has held that Article 30 of the Treaty prohibits obstacles to the free movement of goods which result from restrictive rules concerning the conditions which must be satisfied by those goods (such as conditions concerning names, form, dimensions, weight, composition, presentation, labelling and packaging). Those rules are prohibited, even if they are applied without distinction to all products, if their application is not justified on grounds of general interest which take precedence over the requirements of free movement of goods.
               Whenever there is such justification, the rule in question must, in every case, be proportionate to the aim pursued. Thus it is permissible to apply restrictive rules which are justified as essential in order to fulfil mandatory requirements, subject to the condition that the rules consist of measures which are proportionate to the aim pursued and that that aim may not be achieved by other means which are less restrictive of intra-Community trade. (
                     6
                  )
            
         
               13.
            
            
               Among the grounds of general interest which may justify restrictions on free movement is included consumer protection. (
                     7
                  )
               In that connection it should be pointed out that after the entry into force of the Treaty on European Union, the strengthening of consumer protection is now one of the areas of the Community's activities listed in Article 3 of the EC Treaty (see in particular Article 3(s) of the Treaty). Article 129a, which the Maastricht Treaty placed in Part Three of the EC Treaty concerning Community policies, provides that the Community ‘shall contribute to the attainment of a high level of consumer protection’.
               That protection entails principally the obligation to provide information to consumers so that they can proceed to choose the product which they intend to buy in full knowledge of its properties and characteristics. It is clear of course that the information must be given so that consumers can understand its content. The requirement of such protection has particular significance as far as foodstuffs are concerned, since any failure to inform consumers may put their health at risk.
            
         
               14.
            
            
               In its judgment in Case C-362/88 GBINNOBM (
                     8
                  ) the Court had the opportunity to confirm the close link between consumer protection and the provision of information to consumers and to state that the latter is considered one of the principal requirements of Community law.
               The overriding significance of that requirement is also emphasized by the Directive itself, which states in the sixth recital in its preamble that ‘the prime consideration for any rules on the labelling of foodstuffs should be the need to inform and protect the consumer’.
            
         
               15.
            
            
               It is apparent that, as regards the provision of information to the consumer, special significance is attached to the use of certain descriptions and particulars on the product and in particular the language in which those descriptions and particulars are given. They must be formulated in a language that the consumers are presumed to understand. It cannot, however, be doubted that the requirement that descriptions and particulars should be given in a certain way, such as, for instance, in the language or languages of the Member State in which the product is marketed, although not excluding completely the importation of products originating from other Member States, nevertheless constitutes an obstacle to intra-Community trade inasmuch as it renders their sale more difficult, especially in the case of parallel imports. In fact products from other Member States would have to carry different labels, a factor which would entail additional costs as far as their packaging and presentation are concerned. (
                     9
                  ) Consequendy, such a requirement should be regarded as incompatible with Article 30 of the Treaty unless justified on grounds of the general interest concerning consumer protection. The Court took the opportunity of stating on this point that there is no longer any need for such protection justifying the compulsory affixing of certain particulars if the details given on the original label of the product are informative in character and give particulars of the same value as those provided for in the legislation of the importing State that are comprehensible to the consumers of that State. (
                     10
                  )
            
         
               16.
            
            
               Consequently, in interpreting the Directive and in particular Article 14 thereof, account must be taken of those two requirements, namely to ensure that correct information is given and consumers sufficiently protected and, at the same time, that the movement of goods is not impeded. In that connection, it should be noted that Article 15 provides that the Member States may not prohibit trade in foodstuffs which comply with the rules laid down in the Directive by the application of non-harmonized national provisions governing the labelling and presentation of foodstuffs.
            
         IV — Answers to the questions referred for a preliminary ruling
      
               17.
            
            
               Consequently, in accordance with the foregoing, to answer the questions referred to the Court necessitates balancing, on the one hand, the interest in achieving the aim pursued by the national provision at issue, namely the provision of information to and the protection of consumers, against, on the other hand, the interest in ensuring free movement of goods. That is also required, moreover, by the principle of proportionality.
            
         
               18.
            
            
               On the first question, the Court has, essentially, already given its reply in its judgment of 18 June 1991 in Case C-369/89 Piageme. In that judgment the Court emphasized that Article 14 is confined merely to requiring the use of a language easily understood by purchasers, providing at the same time that the importation of foodstuffs into the territory of a Member State may be permitted, even if the appropriate labelling is not given in a language easily understood, provided that ‘the purchaser is informed by other measures’. In other words, the Court held that the imposition of an obligation more stringent than that provided for in Article 14 such as, for example, the imposition of the exclusive use of the language of the region in which the product is marketed and failure to allow for the possibility of ensuring that consumers are informed by other means, exceeds the requirements of Article 14. Furthermore, the Court added that the obligation to use the particular language of the region exclusively constitutes a measure having an effect equivalent to a quantitative restriction on imports, which is prohibited by Article 30 of the Treaty.
            
         
               19.
            
            
               I consider that that finding is not affected by the fact that the particular national provision is confined to imposing the use of the language of the region without, however, excluding the parallel use of other languages. It is certain that the use of the language of the State or the region within which the products are offered for sale constitutes an appropriate means of information and accordingly of consumer protection. That language is the language which appears as the language most easily understood by purchasers and enables them to understand easily the labelling carried by the products.
            
         
               20.
            
            
               In its Resolution on the consumer protection and public health requirements to be taken into account in the completion of the internal market, adopted in 1992, the European Parliament declared, inter alia, that ‘consumers will enjoy proper protection only if all information is always available in their own language’. (
                     11
                  )
               That holds true, however, principally for countries and regions where only one language is used. In such circumstances, and subject to the use of other possible means of informing the purchaser, there is a need to provide information regarding the product in the language of the country or region where it is offered for sale which is, in that case, by inference, also the only language understood by consumers. Thus the prohibition against offering goods for sale which do not carry labelling in that language may be regarded as compatible with Article 30 of the Treaty and Article 14 of the directive.
            
         
               21.
            
            
               That does not, however, apply to regions where purchasers easily understand more than the one language such as, for instance, countries which are traditionally multilingual. In such a situation the formulation of particulars in one of those languages on the labelling of the product suffices.
            
         
               22.
            
            
               On that point it should be emphasized that Article 14(2) of Directive 79/112 does not seek to impose the use of one particular language. Its aim is to avoid difficulties in understanding the content of the labelling carried by the product on the part of consumers, so as to ensure that the consumer is fully and correctly informed. That goal is achieved when the particulars on the product are given in one of the several languages that are easily understood in the region.
            
         
               23.
            
            
               The obligation to give those particulars in one of those languages which may be described as the official language of the region, even if it is not excluded that the particulars in question be given in parallel in another or other language(s) easily understood in the region, goes beyond the requirements of the Directive. Such a measure would create unjustifiable obstacles to the free movement of goods, especially of goods from other Community countries or regions where one of the other languages of the region in question is spoken and used. Such a measure would in substance result in a prohibition against marketing products carrying labelling in another language easily understood by the purchasing public. Such a result could not, of course, be justified on grounds of consumer protection and would accordingly be contrary to both Article 30 of the EC Treaty and Article 14 of Directive 79/112.
            
         
               24.
            
            
               Consequendy, the appropriate answer to the first question raised by the national court is that Article 30 of the EC Treaty and Article 14 of Directive 79/112/EEC prohibit national legislation from requiring the use of a particular language for the labelling of foodstuffs, even if that legislation does not exclude the use at the same time of other languages that are also easily understood by the purchasing public.
            
         
               25.
            
            
               The second question seeks to ascertain the meaning of ‘a language easily understood by purchasers’.
            
         
               26.
            
            
               It should be noted at the outset that, apart from Directive 79/112, language requirements in connection with the obligation to provide consumers with information on or relating to certain products are met with in other Community legislation. In certain cases the Community text will enumerate in all the official languages the descriptions of or the information to be included on specific products. That method was followed in Commission Directive 91/321/EEC of 14 May 1991 on infant formulae and follow-on formulae, (
                     12
                  ) which gives, in Article 7, in all the official Community languages the names under which the specific products must be sold.
               Other Community rules provide that the information may or must be given in the official language(s) of the country in which the product is marketed. That is the case of:
               
                        —
                     
                     
                        Council Directive 88/378/EEC of 3 May 1988 on the approximation of the laws of the Member States concerning the safety of toys, (
                              13
                           ) and
                     
                  
                        —
                     
                     
                        Council Directive 92/27/EEC of 31 March 1992 on the labelling of medicinal products for human use and on package leaflets. (
                              14
                           )
                     
                  
         
               27.
            
            
               In the case of Directive 79/112, the Community legislature, balancing the requirements of free movement against those of concern for consumer protection, did not adopt the usual criterion of the official language of the State or region in which the products are placed on the market, but the substantive criterion of a language easilyunderstood by the consumer.
            
         
               28.
            
            
               I consider that a language which enables the consumer to understand directly the exact meaning of the details given on the product without any risk of misunderstanding the substantive content of the labelling must be regarded as such a language. The language, or possibly languages, of the State or region in which foodstuffs are placed on the market is in reality the language which ensures a proper understanding of the labelling by the consumer. The Court so found, moreover, in its judgment cited above, Meyhui, in which it stressed that ‘The fact that consumers in a Member State in which the products are marketed are to be informed in the language or languages of that country is therefore an appropriate means of protection. In this regard it should be held that the hypothesis referred to by the national court that another language may be easily comprehensible to the purchaser is of only marginal importance’ (paragraph 19).
            
         
               29.
            
            
               It is not, however, excluded that certain specific terms and expressions, even though they are in a foreign language, can in fact be easily understood, because of the consumer's familiarity with them. In such a case, the terms and expressions in question must be regarded as within the meaning of a ‘language easily understood’, for what is of interest under Article 14 of Directive 79/112 is not the use of a particular language, but the comprehensibility of the actual content of the labelling.
            
         
               30.
            
            
               Conversely, I do not consider that the phrase covers cases where it is possible for the purchaser to understand the content of the labelling by indirect means such as, for example, comparison with other packaging for the same product or from advertising slogans which are widely disseminated. Such indirect means of understanding the particulars given on foodstuffs does not ensure sufficient protection to the consumer in so far as misunderstanding on the part of the purchaser cannot be excluded because of the inadequate nature of the information.
            
         
               31.
            
            
               The third question concerns the meaning of ‘measures ... to ensure that the purchaser is informed’. The relevant sentence in Article 14(2) is formulated generally (‘unless other measures have been taken to ensure that the purchaser is informed’) so as not to restrict the means that may be employed to ensure that the purchaser is informed. Article 14 does not specify what such other measures might be.
            
         
               32.
            
            
               In view of the aim of that provision in the Directive, I believe that the other measures by which the purchaser may be informed to which the provision refers relate to means of information which are closely linked to the specific product and which ensure that at the crucial point when it is sold consumers are fully and correctly informed by means that can be directly understood by them. Effective protection of the consumer requires in fact that consumers should be fully aware of the properties and characteristics of a product at the point of purchase and that presupposes that they can understand directly the exact content of the information offered. That is the case, for example, when instead of words and expressions, the label on the product carries representations, diagrams or symbols that are easy to understand and are suitable for ensuring that the purchaser has sufficient information.
            
         
               33.
            
            
               At all events, it must be emphasized that it is for the national court to carry out the necessary assessment of the facts in order to decide in each specific case whether the particulars given on the product are formulated in a language easily understood by consumers and whether the other means of information chosen ensure in reality that clear, full and correct information is given at the time of purchase.
            
         V — Conclusion
      
               34.
            
            
               In view of the foregoing, I suggest that the Court reply to the questions referred by the national court as follows:
               
                        (1)
                     
                     
                        Article 30 of the EC Treaty and Article 14 of Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer must be interpreted as prohibiting national legislation from requiring the use of a particular language for the labelling of foodstuffs, even if that legislation does not exclude particulars being given at the same time on the foodstuffs in other languages also easily understood by the purchasing public.
                     
                  
                        (2)
                     
                     
                        Within the meaning of Article 14(2) of Directive 79/112/EEC the labelling on foodstuffs in one language and other means of informing consumers presuppose that the use of that language or of the other means of information allows the purchasing public to understand directly, without any risk of misunderstanding, the exact content of the particulars given on the foodstuffs, thus ensuring that the purchaser is fully and correctly informed at the time of purchase.
                     
                  
                        (3)
                     
                     
                        It is for the national court to carry out the necessary assessment of the facts in order to decide in each specific case whether the particulars given on the product are formulated in a language easily understood by consumers and whether the other means of information chosen ensure in reality that clear, full and correct information is given at the time of purchase.
                     
                  
         (
            *1
         )	Original language: Greek.
      (
            1
         )	OJ 1979 L 33, p. 1.
      (
            2
         )	[1991] ECR I-2971, at page 2972.
      (
            3
         )	Case C-369/89 Piagenze and Others [1991] ECR I-2971.
      (
            4
         )	OJ 1994 C 120, p. 14. It should be noted that the original Dutch version of the order for reference refers to a Directive 78/112/EEC, but it is clear that Directive 79/112/EEC is meant.
      (
            5
         )	Paragraph 15 of the judgment
      (
            6
         )	Sec inter alia the judgments in Case C-315/92 Verband Sozialer Wettbewerb [1994] ECR I-317 at paragraph 13; Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097, at paragraph 15; Case C-238/89 Pall [1990] ECR I-4827, at paragraphs 11 and 12; and Case 120/78 Rewe Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649.
      (
            7
         )	See Case 120/78 Rewe Zentral and Case C-238/89 PaU, cited above.
      (
            8
         )	[1990] ECR I-667.
      (
            9
         )	See, amongst the recent case-law, the judgment in Case C-51/93 Meyhui [1994] ECR I-3879.
      (
            10
         )	See in particular the judgments in Case 220/81 Robertson [1982] ECR 2349, at paragraphs 11, 12 and 13, and Case 27/80 Fietje [1980] ECR 3839, at paragraphs 10, 11 and 12.
      (
            11
         )	OJ 1992 C 94, p. 217, 22nd recital in the preamble.
      (
            12
         )	OJ 1991 L 175, p. 35.
      (
            13
         )	OJ 1988 L 187, p. 1. Article 11(5) of the Directive lays down that: ‘Annex IV sets out the warnings and indications of precautions to be taken during use that have to be given for certain toys. Member Sutes may require that these warnings and precautions, or some of them, together with the informadon specified in paragraph 4, be given in thenown national language or languages when the toys are placed on the market,’
      (
            14
         )	OJ 1992 L 113, p. 8. Article 8 of the Directive lavs down that: ‘The package leaflet must be written in clear and understandable terms for the patient and be clearly legible in the official language or languages of the Member Sute where the medicinal product is placed on the market. This provision does not prevent the package leaflet being printed in several languages, provided that the same information is given in all the languages used.’