CELEX: C2001/303/23
Language: en
Date: 2001-10-27 00:00:00
Title: Case C-358/01: Action brought on 19 September 2001 by the Commission of the European Communities against the Kingdom of Spain

C 303/14               EN                    Official Journal of the European Communities                                     27.10.2001
Communities, represented by Richard Lyal, acting as agent,              The applicant claims that the Court should:
with an address for service in Luxembourg.
                                                                        —     Declare that, by refusing access to the Spanish market to
The Applicant claims that the Court should:                                   products lawfully manufactured and commercialised in
                                                                              other Member States under the name of ‘limpiador con
(1) declare that Council Directive 2001/44/EC of 15 June                      lejı́a’ (cleaning product containing bleach) or similar, with
      2001 (1) amending Directive 76/308/EEC on mutual                        an active chlorine content of less than 35 grams per litre,
      assistance for the recovery of claims resulting from                    the Kingdom of Spain has failed to fulfil its obligations
      operations forming part of the system of financing the                  under Article 28 of the EC Treaty; and
      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           —     Order the Kingdom of Spain to pay the costs.
      void;
(2) maintain the effects of the directive until the entry into
      force of a directive adopted on the correct legal basic;
(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 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
The Council adopted Directive 2001/44/EC on the basis of                products, with regard to the naming and labelling of the
Articles 93 and 94 EC, rather than on the basis of Article 99           product in question [‘limpiador con lejı́a’ (cleaning product
EC, as proposed by the Commission, deeming the measure to               containing bleach)]. Although the objective of consumer
concern fiscal provisions.                                              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 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 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 Commission accordingly submits that the directive has
                                                                        the word ‘bleach’ is indissociable from a product with the
been adopted on an incorrect legal basis and should be
                                                                        disinfecting power associated with that level of active chlorine.
annulled.
                                                                        First, it is not possible, and thus disproportionate, to require
                                                                        that an end product (bleach cleaners) composed of various
(1) OJ L 175, 28.6.2001, p. 17.                                         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
Action brought on 19 September 2001 by the Com-                         provisions of the Member States relating to the classification,
mission of the European Communities against the                         packaging and labelling of dangerous preparations and Com-
                        Kingdom of Spain                                mission Recommendation 89/542/EEC (2) of 13 September
                                                                        1989 for the labelling of detergents and cleaning products.
                         (Case C-358/01)                                The application of the aforementioned provisions allows the
                                                                        consumer to be informed about the composition of the
                         (2001/C 303/23)                                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-             (1) OJ L 187, 16.7.1988, p. 14.
tember 2001 by the Commission of the European Communi-                  (2) OJ L 291, 10.10.1989, p. 55.
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.