CELEX: 61985CC0004
Language: en
Date: 1987-05-21
Title: Opinion of Mr Advocate General Darmon delivered on 21 May 1987. # Commission of the European Communities v Hellenic Republic. # Removal from the register. # Case 4/85.

OPINION OF MR ADVOCATE GENERAL DARMON
      delivered on 21 May 1987 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      I — Context of the dispute
      
               1.
            
            
               In this action the Commission of the European Communities seeks a declaration that, by adopting Articles 50, 65, 71 and 72 of Greek Regulation No 72/77 on the control of markets (hereinafter referred to as ‘the Greek regulation’), as amended in 1982, the Hellenic Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty and Council Directive 71/307/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to textile names (
                     1
                  )(hereinafter: ‘the Directive’).
            
         
               2.
            
            
               The Commission initially raised four objections. However, the amendments made to the contested Greek regulation in 1985 induced the Commission to withdraw one of its two objections to Article 65 (namely the prohibition in some circumstances on the marketing of cotton thread imported from other Member States). The Court must therefore rule only on the three remaining heads of complaint, referring only to the provisions cited in the reasoned opinion and in the originating application, and disregarding the amendments subsequently made by the defendant State to the provisions still at issue. Since it necessarily precedes the action before the Court,
               ‘the function of the reasoned opinion (under Article 169) is to define the subject-matter of the dispute.’ (
                     2
                  )
               The Commission may, of course, withdraw certain objections in the course of the proceedings. However, if it does not do so in spite of intervening amendments to the national legislation in dispute, the Court may not rule on matters other than those originally brought up, which are the only matters under discussion. (
                     3
                  )
            
         
               3.
            
            
               Still with a view to limiting the scope of the dispute, it should be observed that, despite the doubts expressed by the Hellenic Republic, Article 50 of the Greek regulation was duly referred to both in the reasoned opinion and in the application to the Court. The reasoned opinion deals separately with Article 50, a general provision, and with Articles 65, 70 and 71, relating ‘more particularly to the textile products’ (
                     4
                  ) governed by the directive. Similarly, the application refers expressly to the article in question.
            
         
               4.
            
            
               With regard to Article 72, the Commission took into account the draft amendment to Article 71, to which it regards Article 72 as ancillary, and stated in its reply that it reserved the right to reconsider Article 72 in the light of those new factors. At the hearing, its representative, pointing out that the amendment to Article 71 eliminated most but not all of the arguments against Article 72, stated that the Commission did not withdraw its claim in that respect. The last submission therefore continues to cover Article 71, principally, and Article 72 in so far as it relates to it.
            
         
               5.
            
            
               It is therefore necessary to determine whether, and to what extent:
               
                        (i)
                     
                     
                        Article 50 of the Greek regulation, as amended in 1982, is contrary to Article 30 of the EEC Treaty; and
                     
                  
                        (ii)
                     
                     
                        Article 65, again as amended in 1982 and only in so far as it requires labelling in Greek of the outer packaging of thread and yarn intended for sale to undertakings, and Articles 71 and 72 of the Greek regulation, as adopted in 1977, are contrary either to Article 30 of the EEC Treaty or to the directive.
                     
                  
         II — Article 50 of the Greek regulation
      
               6.
            
            
               In its amended version of 13 August 1982, applicable from 1 January 1983, Article 50 of the Greek regulation provides that the packaging of imported goods of any kind must display clearly and legibly, in Greek, the name and forename or company name of the representative, importer or packer, the address of their head office, the type of product contained, its exact net weight or volume, the country of production and, where appropriate, the remark ‘Packaged in Greece’. Article 50 specifies that it does not apply to imported products governed by special labelling provisions. It further provides that the representative, importer or packer is responsible for affixing the above information. Lastly, on 14 January 1983 all the customs authorities were instructed that ‘products which do not comply with the [abovementioned] provisions... cannot be cleared through customs’.
            
         
               7.
            
            
               The Commission is correct in its view that, inasmuch as they require further handling, with additional costs for the trader, of a product imported in a state in which it could legally be marketed in the Member State of production, the Greek provisions constitute measures having an equivalent effect to quantitative restrictions on imports within the meaning of Article 30 of the EEC Treaty as interpreted in the Dassonvilie judgment. (
                     5
                  ) The Commission rightly observed that the well-known wording of the fifth paragraph of that judgment, (
                     6
                  ) regularly repeated in subsequent judgments of the Court, has retained its broad scope and extends to measures which apply without distinction to domestic or imported products.
            
         
               8.
            
            
               In any event, the defence put forward by the Hellenic Republic was concerned less with countering the Commission's views than with justifying Article 50 in terms of the need to ensure the protection of the end consumer. It relied on that purpose in its reply to the reasoned opinion, and went on: ‘Article 50, as amended most recently by [Greek] Regulation No 52/83 on the control of markets, provides that the information required on the packaging of imported products of every kind relates to goods intended for sale to the end consumer’. This is no doubt what caused the Hellenic Republic to claim in its rejoinder that ‘the article deals with the obligations of the retailer and not those of the importer’, and that ‘there is nothing to prevent the products covered by this article from being imported without the information being displayed’. Whilst that may be true of Article 50 in its present form, which in any event is not before the Court, it is not so of the version at issue in these proceedings.
            
         
               9.
            
            
               Beginning with its judgment in the Cassis de Dijon case of 1979, (
                     7
                  ) the Court has elaborated a principle known in legal literature (
                     8
                  ) as the ‘rule of reason’, which serves to qualify the basic rule established by the Dassonvilie judgment. It enables certain national provisions to be distinguished from measures having equivalent effect when they are designed to meet imperative requirements of a general nature, ‘relating inter alia to consumer protection’. (
                     9
                  ) Three conditions must be fulfilled before it can apply:
               
                        (i)
                     
                     
                        the national measures must apply equally to national and imported products;
                     
                  
                        (ii)
                     
                     
                        there must be no common legislation on the marketing of the products in question; and
                     
                  
                        (iii)
                     
                     
                        the measures must be necessary and proportionate to the goal pursued.
                     
                  
         
               10.
            
            
               It is hard to perceive how the protection of the Greek consumer calls for the information set out in Article 50 (as formulated in 1982) to be displayed on the packaging of the imported goods as soon as they enter Greek territory. The question whether the information displayed — or certain items of it — should, in the interests of the consumer, be drawn to his notice by the retailer need not be considered in the context of these proceedings. It must therefore be concluded that Article 50 of the Greek regulation is contrary to the provisions of Article 30 of the EEC Treaty.
            
         III — Article 65 of the Greek regulation
      
               11.
            
            
               Having relinquished its objection to the prohibition of the marketing of cotton thread which does not meet certain conditions regarding its presentation, the Commission confines itself to challenging the provisions of Article 65 of the Greek regulation, requiring importers, craftsmen, manufacturers and packers to label in Greek thread and yarn intended for sale to the Greek weaving and knitwear industries.
            
         
               12.
            
            
               As the Commission argued, that requirement is contrary to certain provisions of the Directive (based on Article 100 of the EEC Treaty), Article 1 of which provides as follows :
               ‘Textile products may be marketed within the Community, either before or during their industrial processing or at any of the distribution stages, only where such products comply with the provisions of this directive.’
            
         
               13.
            
            
               By demanding labelling in all cases, Article 65 ignores the obligation imposed on Member States by Article 8 (1) of the Directive to allow businesses to replace labelling ‘by accompanying commercial documents when the [textile] products are not being offered for sale to the end consumer’. Whilst it is true that the Directive does not define the term ‘end consumer’, that must necessarily be the person who purchases the textile product for his personal, domestic or professional use without in principle intending to resell it either as it stands or after processing. That definition excludes not only importers, manufacturers and wholesalers, but also craftsmen.
            
         
               14.
            
            
               By compelling those traders to label goods in Greek before they are offered for sale to the end consumer — that is, the potential user of the product — Article 65 exceeds the limits set by Article 8 (2) (c) of the Directive, according to which:
               ‘Member States may require that, when textile products are offered for sale or are sold to the end consumer in their territory, their national languages should also be used for the labelling and marking required by this article.’
            
         
               15.
            
            
               By demanding the inclusion of information not required by the Directive, concerning the name or composition of the products — in particular the type and rating of the thread — Article 65 contravenes Article 14 (1) of the Directive, which provides as follows:
               ‘No Member State may, for reasons connected with names or composition specifications, prohibit or impede the placing on the market of textile products which satisfy the provisions of this Directive’,
               subject to the standstill clause contained in Article 14 (2):
               ‘The provisions of this Directive shall not preclude the application of the provisions in force in each Member State on the protection of industrial and commercial property, on indications of provenance, marks of origin and the prevention of unfair competition’.
               That clause was not, however, pleaded by the Hellenic Republic in support of the disputed measure.
            
         
               16.
            
            
               The other items of information for which the Directive makes no provision, such as the name of the undertaking, the town in which it has its head office and the provenance of the products, do not, in so far as they do not affect the name or composition of the goods, fall within the ambit of the Directive. As in the case of Article 50, inasmuch as the obligation to display the information precedes the stage at which the goods are offered to the end consumer it is not justified for the purposes of Article 30 of the Treaty.
            
         
               17.
            
            
               Indeed, the Hellenic Republic does not actually deny the alleged contravention but confines itself in its defence and its rejoinder to pleading the new version of Article 65 as amended subsequently to the reasoned opinion, and for that reason extraneous to these proceedings.
            
         
               18.
            
            
               It must therefore be concluded that in its previous version, referred to both by the reasoned opinion and by the application to the Court, Article 65 of the Greek regulation was contrary to Article 30 of the EEC Treaty and to the abovementioned provisions of the Directive.
            
         IV — Articles 71 and 72 of the Greek regulation
      
               19.
            
            
               The Commission takes the view that, inasmuch as they require the use of textile names other than those set out in the Directive, Articles 71 and 72 of the Greek regulation are in breach of that Directive, irrespective of how the textiles are marked — whether it be a card label affixed to the goods or a notice displayed on business premises. The Commission adds that the articles also infringe the prohibition contained in Article 30 of the EEC Treaty, by reason of the additional costs which they entail for businesses, including foreign manufacturers. Lastly, the Commission maintains that the disputed provisions cannot be justified by the need to protect the end consumer,
               
                        (a)
                     
                     
                        
                           rattorte temporis, in so far as they apply to the wholesale stage, or
                     
                  
                        (b)
                     
                     
                        
                           rattorte materiae, in so far as Article 72, at the retail stage, requires the number of the purchase invoice and the origin or provenance of the goods to be shown.
                     
                  
         
               20.
            
            
               In answering that criticism the Hellenic Republic relied mainly on the ‘new provisions’ of Article 71 as amended subsequently to the reasoned opinion, which are therefore extraneous to these proceedings. Turning to Article 72, the Hellenic Republic claims that the inclusion of the number of the purchase invoice is the only way for the consumer to check the nature of the raw material, and that Article 14 (2) of the Directive permits indications of the origin or provenance of the goods. Although the standstill clause under Article 14 (2) may legitimately be pleaded in the circumstances (regard being had to the date of accession of the Hellenic Republic), there are other grounds — rightly put forward by the Commission — for holding that Article 71, in the version at issue in this action, and Article 72 are contrary to the provisions of Article 30 of the EEC Treaty and of Articles 8 (1) and (2) (c) and 14 (1) of the Directive.
            
         V — Conclusion
      
               21.
            
            
               Accordingly, I propose:
               
                        (1)
                     
                     
                        that the Court should hold that:
                        
                                 (a)
                              
                              
                                 by providing, in Article 50 of the regulation on the control of markets (as amended in 1982), that the importation of products of all kinds is subject to the display on their packaging of various items of information in Greek even if those products could legally be marketed in the Member State of production, the Hellenic Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty; and
                              
                           
                                 (b)
                              
                              
                                 by requiring certain businesses:
                                 
                                          (i)
                                       
                                       
                                          for the wholesale trading of thread and yarn intended for the manufacture of textiles or knitwear, to label goods in Greek, and
                                       
                                    
                                          (ii)
                                       
                                       
                                          for the wholesale and retail trading of textile products, to affix card labels displaying various items of information some of which are not required by Council Directive 71/307/EEC of 26 July 1971 on the approximation of the laws of the Member States relating to textile names,
                                       
                                    the Hellenic Republic has failed to fulfil its obligations under that Directive, in particular Articles 8 (1) and (2) (c) and 14 thereof, and under Article 30 of the EEC Treaty.
                              
                           
                  
                        (2)
                     
                     
                        I further propose that the Court should order the defendant State to pay the costs.
                     
                  
         (
            *1
         )	Translated from the French.
      (
            1
         )	Official Journal, English Special Edition 1971 (II), p. 694.
      (
            2
         )	Judgment of 27 May 1981 in Joined Cases 142 and 143/80 Amministrazione delle Finanze dello Stato v Essevi and Salengo [1981] ECR 1413, at paragraph 15.
      (
            3
         )	See the judgment of 10 March 1970 in Case 7/69 Commission v Italy [1970] ECR 111.
      (
            4
         )	Emphasis added.
      (
            5
         )	Judgment of 11 July 1974 in Case 8/74 [1974] ECR 837.
      (
            6
         )	
      (
            7
         )	Judgment of 20 February 1979 in Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649; see also judgment of 10 November 1982 in Case 261/81 Rau v De Smedt [1982] ECR 3961 and, most recently, the judgments of 12 March 1987 in Case 178/84 Commission v Federal Republic of Germany [1987] ECR... and Case 176/84 Commission v Hellenic Republic [1987] ECR 1227, 1193.
      (
            8
         )	See, for example, Timmermans in the anthology Thirty Years of Community Law, at p. 267.
      (
            9
         )	Case 261/81 Rau, cited above, at paragraph 12.