Schutzverband der Spirituosen-Industrie eV v Diageo Deutschland GmbH.
Date: 2007-10-04
12. Article 5(1) of Directive 75/106 prohibits Member States from adopting, in regard to prepackages satisfying the directive’s requirements, measures restricting their marketing for reasons concerning their volume or the determination of that volume (Case C‑3/99 Ruwet  [2000] ECR I‑8749, paragraph 42).
17. According to settled case-law, the need for a uniform interpretation of the provisions of Community law makes it impossible for the text of a provision to be considered in isolation, but requires, on the contrary, that it be interpreted and applied in the light of the versions existing in the other official languages (Case 26/69 Stauder  [1969] ECR 419, paragraph 3; Case 55/87 Moksel Import und Export  [1988] ECR 3845, paragraph 15; and Case C‑296/95 EMU Tabac and Others  [1998] ECR I‑1605, paragraph 36; and Case C‑63/06 Profisa  [2007] ECR I‑0000, paragraph 13).
18. Where there is divergence between the various language versions of a Community text, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part (Case 30/77 Bouchereau  [1977] ECR 1999, paragraph 14; Case C‑482/98 Italy  v Commission  [2000] ECR I‑10861, paragraph 49; and Case C‑1/02 Borgmann  [2004] ECR I‑3219, paragraph 25; and Profisa , paragraph 14).
19. In that regard, it should be borne in mind that Directive 75/106 was adopted on the basis of Article 100 of the EEC Treaty (then Article 100 of the EC Treaty, now Article 94 EC) for the purpose of approximating the laws, regulations and administrative provisions of the Member States that have a direct effect on the establishment or functioning of the common market ( Ruwet , paragraph 40).
20. It is clear from the first recital in the preamble to the Directive that the latter was intended to overcome the obstacles to the free movement of certain prepackaged liquid foodstuffs resulting from the existence, in most Member States, of mandatory regulations that differ from one Member State to another. According to the fourth recital in its preamble, that directive was also designed to improve the protection of consumers against the risks of confusion ( Ruwet , paragraph 41).
21. Moreover, it must be pointed out that Council Directive 88/316/EEC of 7 June 1988, amending Directive 75/106 (OJ 1988 L 143, p. 26), which introduced into Directive 75/106 the provision at issue in the main proceedings, is based on Article 100a of the EEC Treaty (then Article 100a of the EC Treaty, now, after amendment, Article 95 EC), and that it is intended to improve the conditions for the establishment and functioning of the internal market (Case C‑376/98 Germany  v Parliament and Council  [2000] ECR I‑8419, paragraph 83).
22. It is also necessary to point out that, according to settled case‑law, where it is necessary to interpret a provision of secondary Community law, preference should as far as possible be given to the interpretation which renders the provision consistent with the EC Treaty and the general principles of Community law (Case 218/82 Commission  v Council  [1993] ECR 4063, paragraph 15; Joined Cases 201/85 and 202/85 Klensch and Others  [1986] ECR 3477, paragraph 21, Case C‑314/89 Rauh  [1991] ECR I‑1647, paragraph 17; Case C‑98/91 Herbrink  [1994] ECR I‑223, paragraph 9; and Borgmann , paragraph 30).
23. In that respect, concerning Directive 75/106, the Court has already held that, in principle, Article 28 EC of the Treaty must be construed as precluding a Member State 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 ( Ruwet , paragraph 57).
25. Consequently, in so far as the prepackages are legally produced and marketed at least in those two Member States, Article 28 EC precludes the prohibition of their marketing in other Member States, unless such a prohibition is justified by an overriding requirement, 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 (see, to that effect, Ruwet , paragraphs 50 and 57).
27. In that regard, whilst it is true that that directive, in t he fourth recital in the preamble thereto, seeks to avoid the risk that consumers will be misled by nominal volumes which are too close to one another, such a risk may be considered to be excluded, taking as the reference point the average consumer, reasonably well informed and reasonably observant and circumspect (Case C‑220/98 Estée Lauder  [2000] ECR I‑117, paragraph 30, and Ruwet , paragraph 53).
28. Article 4(1) of Directive 75/106 lays down, in respect of prepackages covered by that directive, the obligation to indicate on the labelling the net quantity of liquid contained in the packaging, expressed in units of volume (litre, centilitre or millilitre, as appropriate), in order to avoid, in the mind of the reference consumer, any confusion between the two volumes and to enable that consumer to take account of the ascertained difference in volume when comparing the prices of the same liquid presented in two different types of packaging ( Ruwet , paragraph 54).
30. Finally, it is necessary to take into account the obligation, arising from Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ 1998 L 80, p. 27), to indicate the unit price, irrespective of the nominal value of the prepackage ( Ruwet , paragraph 56).