Case C-457/05

Schutzverband der Spirituosen-Industrie eV

v

Diageo Deutschland GmbH

(Reference for a preliminary ruling from the Landgericht Wiesbaden)

(Free movement of goods – Directive 75/106/EEC – Approximation of the laws of the Member States – Liquids in prepackages – Making‑up by volume –Article 5(3)(b) and (d) – Baileys Minis – Marketing in prepackages with a nominal volume of 0.071 litre)

Opinion of Advocate General Mazák delivered on 14 June 2007 

Judgment of the Court (Fourth Chamber), 4 October 2007 

Summary of the Judgment

1.     Approximation of laws – Prepackaging of liquids – Directive 75/106

(Art. 28 EC; Council Directive 75/106, as amended by the Act of Accession of 2003, Art. 5(3)(b) and (d) and Annex III, section 4)

2.     Free movement of goods – Quantitative restrictions – Measures having equivalent effect

(Art. 28 EC; Council Directive 75/106, as amended by the Act of Accession of 2003, Art. 5(3)(b) and (d) and Annex III, section 4)

1.     Having regard to the general scheme and purpose of Directive 75/106 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids and to the principle of the free movement of goods guaranteed by Article 28 EC, Article 5(3)(d) of that directive must be interpreted as meaning that prepackages with a nominal volume of 0.071 litre, which contain one of the products listed in section 4 of the same directive, and which are lawfully manufactured and marketed in Ireland or the United Kingdom, may also be marketed in all the other EC Member States.

A contrary interpretation cannot be justified by an overriding requirement relating to consumer protection.

Whilst it is true that, according to the fourth recital of its preamble, Directive 75/106 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.

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, 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.

In that regard, a nominal volume such as 0.071 litre, situated between the nominal volumes of 0.05 litre and 0.10 litre, included in the Community range of nominal volumes allowed for the products listed in Annex III, section 4, of Directive 75/106, represents in respect of each of those two nominal volumes a difference greater than 0.01 litre which is sufficient to avoid any confusion in the mind of the reference consumer.

Finally, it is necessary to take into account the obligation, arising from Directive 98/6 on consumer protection in the indication of the prices of products offered to consumers, to indicate the unit price, irrespective of the nominal value of the prepackage.

(see paras 27-31, operative part 1)

2.     The general scheme and purpose of Directive 75/106 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids and the principle of the free movement of goods preclude the prohibition on marketing the products listed in section 4 of Annex III to the directive in prepackages of a nominal volume of 0.071 litre from Member States other than Ireland and the United Kingdom, as a consequence of the final sentence of the second paragraph of Article 5(3)(b) of that directive, read in conjunction with Article 5(3)(d) thereof.

As, in accordance with those provisions, the prepackages can be marketed only from those two Member States, such a prohibition is liable to hinder intra‑Community trade because it could result in making their manufacture and marketing by producers established in other Member States more difficult or more onerous, dissuading them from marketing them in such prepackages.

That prohibition on marketing cannot be justified since it manifestly contradicts one of the objectives pursued by Directive 75/106 itself, namely the free movement of prepackages containing liquids referred to in Annex III to that directive, and since the risk of consumers being misled is excluded.

In so far as the possibility, provided for in Article 5(3)(d) of Directive 75/106, of marketing prepackages of a nominal volume of 0.071 litre exclusively from Ireland and the United Kingdom is accorded permanently, it cannot be justified by the objective pursued by that provision, since it goes beyond what is necessary in order to attain the objective, namely, as is clear from the sixth recital in the preamble to Directive 75/106, to allow those two Member States to adapt to the difficulties presented by too swift a change in the means of determining quantity laid down by their national legislation and the organisation of new systems of control as well as the adoption of a new measurement system.

Therefore, the final sentence of the second paragraph of Article 5(3)(b) of Directive 75/106, read in conjunction with Article 5(3)(d) thereof, is invalid in so far as it excludes the nominal volume of 0.071 litre from the harmonised Community range of nominal volumes appearing in column I of section 4 of Annex III to that directive.

(see paras 32-33, 35-37, 39, operative part 2)

JUDGMENT OF THE COURT (Fourth Chamber)

4 October 2007 (*)

(Free movement of goods – Directive 75/106/EEC – Approximation of the laws of the Member States – Liquids in prepackages – Making‑up by volume –Article 5(3)(b) and (d) – Baileys Minis – Marketing in prepackages with a nominal volume of 0.071 litre)

In Case C‑457/05,

REFERENCE for a preliminary ruling under Article 234 EC, by the Landgericht Wiesbaden (Germany), made by decision of 23 November 2005, received at the Court on 27 December 2005, in the proceedings

Schutzverband der Spirituosen-Industrie eV

v

Diageo Deutschland GmbH,

THE COURT (Fourth Chamber),

composed of K. Lenaerts, President of the Chamber, M. Juhász, R. Silva de Lapuerta (Rapporteur), J. Malenovský and T. von Danwitz, Judges,

Advocate General: J. Mazák,

Registrar: M.‑A. Gaudissart, Head of Unit,

having regard to the written procedure and further to the hearing on 15 March 2007,

after considering the observations submitted on behalf of:

–       Schutzverband der Spirituosen-Industrie eV, by C. Eggers and H.‑G. Kamann, Rechtsanwälte,

–       Diageo Deutschland GmbH, by V. Bansch, Rechtsanwältin,

–       the Belgian Government, by A. Hubert, acting as Agent,

–       the Greek Government, by M. Apessos, I. Bakopoulos, S. Spyropoulos and N. Dafniou, acting as Agents,

–       the French Government, by R. Loosli‑Surrans, acting as Agent,

–       the Council of the European Union, by C. Giorgi Fort, G. Curmi and J.‑P. Hix, acting as Agents,

–       the Commission of the European Communities, by D. Lawunmi and B. Schima, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 14 June 2007,

gives the following

Judgment

1       This reference for a preliminary ruling concerns the interpretation of the final sentence of the second paragraph of Article 5(3)(b) of Council Directive 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids (OJ 1974 L 42, p. 1), as amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33, ‘Directive 75/106’), read in conjunction with Article 5(3)(d) and section 4 of Annex III to that directive.

2       The reference was made in the context of proceedings between Schutzverband der Spirituosen-Industrie eV (‘Schutzverband’) and Diageo Deutschland GmbH (‘Diageo’) concerning the marketing in German of a drink called ‘Baileys’ in prepackages with a nominal volume of 0.071 litre.

 Legal context

3       The first, fourth and sixth recitals in the preamble to Directive 75/106 state:

‘… in most of the Member States the conditions of presentation for sale of liquids in prepackages are the subject of mandatory regulations which differ from one Member State to another, thereby hindering trade in such prepackages; … such provisions must therefore be approximated;

…

… it is necessary to reduce as far as possible the number of volumes of contents that are too close to others of the same product and which consequently are liable to mislead the consumer; … however, in view of the extremely high stocks of prepackages in the Community such a reduction can only be undertaken gradually;

…

‘… since too quick a change in the means of determining quantity laid down by their national legislation and the organization of new systems of control as well as the adoption of a new measurement system would present difficulties for certain Member States, a transitional period should be provided for these Member States; … such provision should not, however, further inhibit intra-Community trade in the products concerned and should not prejudice implementation of the Directive in the other Member States.’

4       Article 5 of the directive is worded as follows:

‘1.      Member States may not refuse, prohibit or restrict the placing on the market of prepackages which satisfy the requirements of this Directive on grounds related to the determination of their volumes, the methods by which they have been checked or the nominal volumes where these are set out in Annex III, column I.

…

3.

b)      Prepackages containing the products listed in Annex III, section 1(a) and (b) may only be marketed after 31 December 1988 if they have the nominal volumes set out in Annex III, column I.

Packages containing the products listed in Annex III 2(a) may be marketed after 31 December 1990 only if they have the nominal volumes set out in column I of that annex. Those prepackages which appear in Annex III, section 4, may be marketed after 31 December 1991 only if they have the nominal volumes set out in the said column I.

c)      …

d)      Without prejudice to subparagraph (b), products listed in Annex III, section 4, and having the volume of 0.071 litre may be marketed in Ireland and the United Kingdom.

         …’

5       Column I of Annex III to Directive 75/106, which establishes the nominal volumes definitively allowed, provides, in respect of the products set out in section 4 of that annex, for the following nominal volumes expressed in litres: 0.02 – 0.03 – 0.04 – 0.05 – 0.10 – 0.20 – 0.35 – 0.50 – 0.70 – 1 – 1.125 – 1.5 – 2 – 2.5 – 3 – 4.5 – 5 – 10.

 The dispute in the main proceedings and the question referred for a preliminary ruling

6       Schutzverband is an incorporated association whose purpose is to monitor and ensure compliance with the legislation in force in the German spirits sector.

7       Diageo is the German subsidiary of Diageo North America Inc., a drinks manufacturer. In Germany it markets, in particular, beer, whisky, gin and vodka under a variety of brand names.

8       Since October 2004, Diageo has marketed the beverage ‘Baileys’ in Germany, in prepackages with a nominal volume of 0.071 litre, called ‘Baileys Minis’, manufactured and bottled in Ireland.

9       The parties to the main proceedings are in dispute as to whether the sale of the product in those prepackages is permissible in Germany.

10     It was against that background that the Landgericht Wiesbaden (Wiesbaden District Court) (Germany) decided to stay the proceedings and to refer the following questions:

‘(1)      Is the second sentence of the second subparagraph of Article 5(3)(b), in conjunction with Article 5(3)(d) and in conjunction with Annex III, section 4, of Directive 75/106/EEC to be construed as meaning that products in bottle packaging with a volume of 0.071 litre, which are lawfully manufactured and/or marketed in Great Britain or Ireland, may also be marketed in all the other EC Member States?

(2)      If Question 1 should be answered in the negative: is the second sentence of the second subparagraph of Article 5(3)(b), in conjunction with Article 5(3)(d) and in conjunction with Annex III, section 4, of Directive 75/106/EEC compatible with the principle of free movement of goods under Articles 28 EC and 30 EC?’

 The questions referred for a preliminary ruling

11     By its questions, which it is appropriate to examine together, the national court asks essentially whether, on a proper construction of the final sentence of the second paragraph of Article 5(3)(b) read in conjunction with Article 5(3)(d) of Directive 75/106 and section 4 of Annex III to that directive, in the light of the principle of free movement of goods referred to in Article 28 EC, prepackages with a nominal volume of 0.071 litre which contain one of the products listed in section 4 and which are lawfully manufactured and marketed in Ireland or the United Kingdom may also be marketed in the other EC Member States.

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).

13     The final sentence of the second subparagraph of Article 5(3)(b) prohibits the marketing, after 31 December 1991, of prepackages containing products which appear in section 4 of Annex III to Directive 75/106 which have nominal volumes other than those set out in the column I of that annex.

14     Article 5(3)(d) provides an exception to that prohibition on marketing.

15     However, a comparative examination of the different language versions of that provision offers no clear indication of the precise scope of the exception for which that provision provides.

16     It is clear from an examination of certain language versions of Article 5(3)(d) of Directive 75/106 that the products set out in section 4 of Annex III to that directive, having the volume of 0.071 litre in Ireland and the United Kingdom, may be marketed, whilst, according to other language versions of the same provision, products having the volume of 0.071 litre may be marketed in Ireland and the United Kingdom.

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).

24     There can be no doubt that, under Article 5(3)(d) of Directive 75/106, the marketing of prepackages containing the products listed in section 4 of Annex III to that directive and having the volume of 0.071 litre, at least in Ireland and in the United Kingdom, complies with that directive.

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).

26     Schutzverband and the Belgian Government submit that the prohibition on marketing provided for by the final sentence of the second paragraph of Article 5(3)(b) of Directive 75/106 is justified by an overriding requirement relating to consumer protection.

27     In that regard, whilst it is true that that directive, in the 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).

29     In that regard, it is important to note that, in the range of nominal volumes which it provides in column I of Annex III for products listed in section 4 thereof, Directive 75/106 itself allows nominal volumes (0.02 litre, 0.03 litre, 0.04 litre and 0.05 litre) with a minimum difference between them of only 0.01 litre to coexist. It must, therefore, be considered that a nominal volume such as 0.071 litre, situated between the nominal volumes of 0.05 litre and 0.10 litre, included in the Community range of nominal volumes allowed for the products, represents in respect of each of those two nominal volumes a difference greater than 0.01 litre which is sufficient to avoid any confusion in the mind of the consumer of reference.

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).

31     It follows from the foregoing considerations that, having regard to the general scheme and purpose of Directive 75/106 and the principle of the free movement of goods guaranteed by Article 28 EC, Article 5(3)(d) of the Directive must be interpreted as meaning that prepackages with a nominal volume of 0.071 litre, which contain one of the products listed in section 4 of the same directive, and which are lawfully manufactured and marketed in Ireland or the United Kingdom, may also be marketed in all the other EC Member States.

32     In addition, the general scheme and purpose of Directive 75/106 and the principle of the free movement of goods precludes the prohibition on marketing the products listed in section 4 of Annex III to the directive in prepackages of a nominal volume of 0.071 litre from Member States other than Ireland and the United Kingdom, as a consequence of the final sentence of the second paragraph of Article 5(3)(b) of that directive, read in conjunction with Article 5(3)(d) thereof.

33     As, in accordance with those provisions, the prepackages can be marketed only from those two Member States, such a prohibition is liable to hinder intra‑Community trade because it could result in making their manufacture and marketing by producers established in other Member States more difficult or more onerous, dissuading them from marketing them in such prepackages.

34     Thus, for a producer established in a Member State other than Ireland or the United Kingdom to be able to market the prepackages at issue, it would be obliged to export those prepackages to those two Member States or to manufacture them there before reimporting to its own Member State.

35     That prohibition on marketing cannot be justified since it manifestly contradicts one of the objectives pursued by Directive 75/106 itself, namely the free movement of prepackages containing liquids referred to in Annex III to that directive. With regard to the risk of a consumer being misled, this must be discounted for the reasons set out at paragraphs 27 to 30 of the present judgment.

36     The possibility, provided for in Article 5(3)(d) of Directive 75/106, of marketing prepackages of a nominal volume of 0.071 litre exclusively from Ireland and the United Kingdom cannot be justified by the objective pursued by that provision.

37     In so far as it is accorded permanently, such a possibility goes beyond what is necessary in order to attain the objective, namely, as is clear from the sixth recital in the preamble to Directive 75/106, to allow those two Member States to adapt to the difficulties presented by too swift a change in the means of determining quantity laid down by their national legislation and the organization of new systems of control as well as the adoption of a new measurement system.

38     It must also be stated that, according to the same recital, in order to deal with these difficulties, a transitional period should be provided for these Member States which should not, however, further inhibit intra-Community trade in the products concerned and should not prejudice the implementation of Directive 75/106.

39     It follows that the final sentence of the second paragraph of Article 5(3)(b) of Directive 75/106, read in conjunction with Article 5(3)(d) thereof is invalid in so far as it excludes the nominal volume of 0.071 litre from the harmonised Community range of nominal volumes appearing in column I of section 4 of Annex III to that directive.

40     Having regard to all the foregoing, the answer to the questions submitted must be:

–       On a proper construction of Article 5(3)(b) of Directive 75/106, prepackages with a nominal volume of 0.071 litre which contain one of the products listed in section 4 of Annex III to that directive and which are lawfully manufactured and marketed in Ireland or the United Kingdom may also be marketed in the other EC Member States, and that

–       the final sentence of the second paragraph of Article 5(3)(b) of Directive 75/106, read in conjunction with Article 5(3)(d) thereof, is invalid in so far as it excludes the nominal volume of 0.071 litre from the harmonised Community range of nominal volumes appearing in column I of section 4 of Annex III to that directive.

 Costs

41     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

On a proper construction of Article 5(3)(b) of Council Directive 75/106/EEC of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids, as amended by the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, prepackages with a nominal volume of 0.071 litre which contain one of the products listed in section 4 of Annex III to that directive and which are lawfully manufactured and marketed in Ireland or the United Kingdom may also be marketed in the other EC Member States.

The final sentence of the second paragraph of Article 5(3)(b) of Directive 75/106, as amended by that act, read in conjunction with Article 5(3)(d) thereof is invalid in so far as it excludes the nominal volume of 0.071 litre from the harmonised Community range of nominal volumes appearing in column I of section 4 of Annex III to that directive.

[Signatures]

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* Language of the case: German.