Commission of the European Communities v Kingdom of Spain.
Date: 2003-11-06
26. It is settled case-law that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with its obligations under Community law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (see, in particular, Case C-439/99  Commission  v  Italy  [2002] ECR I-305, paragraph 10, and Case C-228/00  Commission  v  Germany  [2003] ECR I-4139, paragraph 25).
27. The letter of formal notice from the Commission to the Member State concerned and the reasoned opinion issued by the Commission delimit the subject-matter of the proceedings, so that it cannot thereafter be extended.  Consequently, the reasoned opinion and the proceedings brought by the Commission must be based on the same complaints as those set out in the letter of formal notice initiating the pre-litigation procedure (Case C-191/95  Commission  v  Germany  [1998] ECR I-5449, paragraph 55).
28. However, that requirement cannot be carried so far as to mean that in every case the statement of complaints in the letter of formal notice, the operative part of the reasoned opinion and the form of order sought in the application must be exactly the same, provided that the subject-matter of the proceedings has not been extended or altered but simply limited (see, to that effect, Case C-191/95  Commission  v  Germany  cited above, paragraph 56).
29. The Court has also held that, although the reasoned opinion must contain a coherent and detailed statement of the reasons which led the Commission to conclude that the State in question has failed to fulfil one of its obligations under the Treaty, the letter of formal notice cannot be subject to such strict requirements of precision, since it cannot, of necessity, contain anything more than an initial brief summary of the complaints. There is therefore nothing to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in the letter of formal notice (Case C-279/94  Commission  v  Italy  [1997] ECR I-4743, paragraph 15).
44. It is settled case-law that Article 28 EC prohibits obstacles to the free movement of goods, in the absence of harmonisation of national laws, which are the consequence of applying to goods coming from other Member States, where they are lawfully manufactured and marketed, rules that lay down requirements to be met by those goods (such as those relating to their name, form, size, weight, composition, presentation, labelling and packaging), even if those rules apply to national and imported products alike (Case C-14/00  Commission  v  Italy  [2003] ECR I-513, paragraph 69, and the case-law cited therein).
53. The Court has held that the   " reference consumer"  is an average consumer who is reasonably well informed and reasonably observant and circumspect (see, with regard to foodstuffs, Case C-210/96  Gut Springenheide and Tusky  [1998] ECR I-4657, paragraph 31).  That test, based on the principle of proportionality, also applies in the context of the marketing of cosmetic products where a mistake as to the product ' s characteristics cannot pose any risk to public health (Case C-220/98  Estée Lauder  [2000] ECR I-117, paragraph 28, and Case C-99/01  Linhart and Biffl  [2002] ECR I-9375, paragraph 31).