Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 6 June 2024 (1)

Case C‑88/23

Parfümerie Akzente GmbH

v

KTF Organisation AB

(Request for a preliminary ruling from the Svea Hovrätt, Patent- och marknadsöverdomstolen (Svea Court of Appeal, Patent and Commercial Court of Appeal, Stockholm, Sweden))

(Reference for a preliminary ruling – Electronic commerce – Prohibition on restricting the freedom to provide information society services from another Member State – National legislation providing that national provisions do not apply to a service provider established in another Member State and providing information society services)

I.      Introduction

1.        The Court has already had several opportunities to consider the ‘country of origin’ principle laid down in Article 3 of Directive 2000/31/EC. (2) According to that principle, information society services are, in principle and as regards the requirements falling within the coordinated field, within the meaning of Article 2(h) of that directive, subject to the legal system of the Member State in which the provider of those services is established (the Member State of origin). In accordance with Article 3(2) of that directive, subject to the derogations provided for in Article 3(4) thereof, another Member State in which the customers targeted by the information society services are located (the Member State of destination) may not restrict the freedom to provide such services.

2.        Accordingly, the concept which lies at the heart of the mechanism established in Article 3 of Directive 2000/31 is that of the coordinated field. The present case provides the Court with an opportunity to define the scope of that concept in the context of the online marketing, by means of an information society service from another Member State, of goods which do not comply with the requirements laid down by a Member State of destination. In that connection, the particular feature of this case is that those requirements implement the option conferred by EU law on Member States in matters relating to the marketing, in their territory, of the products concerned.

II.    Legal framework

A.      European Union law

1.      Directive 2000/31

3.        Article 1 of Directive 2000/31, entitled ‘Objective and scope’, provides:

‘1.      This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.

2.      This Directive approximates, to the extent necessary for the achievement of the objective set out in paragraph 1, certain national provisions on information society services relating to the internal market, the establishment of service providers, commercial communications, electronic contracts, the liability of intermediaries, codes of conduct, out-of-court dispute settlements, court actions and cooperation between Member States.

3.      This Directive complements Community law applicable to information society services without prejudice to the level of protection for, in particular, public health and consumer interests, as established by Community acts and national legislation implementing them in so far as this does not restrict the freedom to provide information society services.

4.      This Directive does not establish additional rules on private international law nor does it deal with the jurisdiction of Courts.

…’

4.        Article 2 of that directive, entitled ‘Definitions’, provides:

‘For the purpose of this Directive, the following terms shall bear the following meanings:

…

(h)      “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them.

(i)      The coordinated field concerns requirements with which the service provider has to comply in respect of:

–        the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,

–        the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider.

(ii)      The coordinated field does not cover requirements such as:

–        requirements applicable to goods as such,

–        requirements applicable to the delivery of goods,

–        requirements applicable to services not provided by electronic means.’

5.        Article 3 of that directive, entitled ‘Internal market’, is worded as follows:

‘1.      Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.

2.      Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.

…’

6.        Article 6 of that directive, entitled ‘Information to be provided’, which is contained in the section concerning commercial communications, provides:

‘In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

(a)      the commercial communication shall be clearly identifiable as such;

…’

2.      Directive 2005/29/EC

7.        Article 3 of Directive 2005/29/EC, (3) entitled ‘Scope’, provides in paragraph 4 thereof:

‘In the case of conflict between the provisions of this Directive and other Community rules regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those specific aspects.’

8.        Article 11 of that directive, entitled ‘Enforcement’, provides in the first subparagraph of paragraph 1 thereof:

‘Member States shall ensure that adequate and effective means exist to combat unfair commercial practices in order to enforce compliance with the provisions of this Directive in the interest of consumers.’

3.      Directive 75/324/EEC

9.        Article 8(1) of Directive 75/324/EEC (4) provides that ‘each aerosol dispenser or, where particulars cannot be put on the aerosol dispenser due to its small dimensions (maximum capacity of 150 ml or less) a label attached thereto must bear the … particulars [specified by that directive] in visible, legible and indelible characters …’.

10.      According to Article 8(2) of that directive, ‘Member States may make the marketing of aerosol dispensers in their territory conditional on the use of their national language or languages for the wording on the label’.

4.      Regulation (EC) No 1223/2009

11.      Article 19 of Regulation (EC) No 1223/2009, (5) entitled ‘Labelling’, provides, in paragraph 1 thereof, that ‘cosmetic products shall be made available on the market only where the container and packaging of cosmetic products bear the … information [specified in that regulation] in indelible, easily legible and visible lettering …’. Such information must include ‘particular precautions to be observed in use, and at least those listed in Annexes III to VI and any special precautionary information on cosmetic products for professional use’.

12.      Article 19(5) of that regulation states that ‘the language of the information [required by that regulation] shall be determined by the law of the Member States in which the product is made available to the end user’.

B.      Swedish law

1.      The Law on electronic commerce

13.      The Lagen (2002:562) om elektronisk handel och andra informationssamhällets tjänster (Law (2002:562) on electronic commerce and other information society services, ‘the Law on electronic commerce’), which transposes Directive 2000/31, provides, in Paragraph 3 thereof:

‘A service provider established in a State of the [European Economic Area (EEA)] other than Sweden shall be entitled to supply information society services to recipients in Sweden, notwithstanding the Swedish rules falling within the coordinated field.

A court or other authority may nonetheless, according to the law, [subject to conditions corresponding to those set out in Article 3(4) of Directive 2000/31,] adopt a measure restricting free movement in respect of such a service …’.

14.      Under Paragraph 5 of that law, within the coordinated field, Swedish law is to apply to information society services supplied by service providers established in Sweden, including where the services are intended, in whole or in part, for recipients established in a different State of the EEA.

2.      The Law on commercial practices

15.      The Marknadsföringslagen (2008:486) (Law (2008:486) on commercial practices, ‘the Law on commercial practices’), which transposes Directive 2005/29, applies, in accordance with Paragraph 2 thereof, in particular where a trader promotes the sale of goods as part of his or her business activity.

16.      According to Paragraph 3 of that law, the concept of ‘commercial practice’ includes advertising and any other measure intended, in the course of the trader’s economic activity, to promote the sale of goods and access to them, including any act or omission, or any other measure or conduct of the trader before, during or after the sale or delivery of goods to consumers or traders.

17.      Under Paragraph 5 of that law, ‘all commercial practice shall be consistent with fair commercial practices’.

18.      Paragraph 6 of that law is worded as follows:

‘Any commercial practice contrary to fair commercial practices within the meaning of Paragraph 5 shall be regarded as unfair if it impairs or is likely to impair the recipient’s ability to make an informed commercial decision.’

19.      Paragraph 8 of the Law on commercial practices provides:

‘Any misleading commercial practice within the meaning of Paragraphs 9, 10 or 12 to 17 shall be regarded as unfair if it impairs or is likely to impair the recipient’s ability to make an informed commercial decision. The misleading commercial practices referred to in points 1 to 23 of Annex I to [Directive 2005/29] shall always be regarded as unfair.’

20.      Paragraph 10 of that law provides:

‘The commercial practices of a trader may not make use of inaccurate claims or other statements that are misleading in relation to the trader’s own or someone else’s business activity.

The first subparagraph shall apply especially in respect of statements relating to:

…

2.      the product’s origin, use and risks, such as effects on health and the environment,

…

4.      the price of the product, the factors used to calculate the price, the existence of a specific price advantage and the arrangements for payment,

5.      the qualifications, market position, commitments, trade marks, trade names, distinguishing marks and other rights of the trader or of other traders,

6.      the awards and distinctions conferred on the trader,

…

Nor may a trader omit material information when marketing his or her commercial activity or that of another. “Misleading omission” shall also mean the communication of material information in an unclear, unintelligible, ambiguous or untimely manner.’

21.      Paragraph 23 of that law provides that a trader whose commercial practices are unfair may be prohibited from continuing that promotion or any other similar activity.

3.      The Decree on cosmetic products

22.      The Förordning (2013:413) om kosmetiska produkter (Decree (2013:413) on cosmetic products, ‘the Decree on cosmetic products’) provides, in the first subparagraph of Paragraph 4 thereof, that, where a cosmetic product is made available to the end user on the Swedish market, the information required, inter alia, under Article 19(1)(d) of Regulation No 1223/2009, must be in Swedish.

4.      Civil Protection Authority rules on aerosol dispensers

23.      According to Paragraph 3 of the myndigheten för samhällsskydd och beredskaps föreskrifter om aerosolbehållare (MSBFS 2018:1) (Civil Protection Authority rules on aerosol dispensers (MSBFS 2018:1)), any aerosol dispensers placed on the market must comply with the requirements arising from those rules and the annex thereto.

24.      Paragraph 4 of those rules provides that, without prejudice to the application of Regulation (EC) No 1272/2008, (6) each aerosol dispenser must bear in legible and indelible characters, in Swedish, the name and address or trade mark of the person marketing the aerosol dispenser, the symbol ‘3’ (inverted epsilon), markings enabling the filling batch to be identified, the details referred to in point 2.2 of the annex and the nominal volume of the contents.

III. The facts in the dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

25.      Parfümerie Akzente is a German company which, via its website parfumdreams.se markets and sells hair care products and other cosmetic products intended for the Swedish market and Swedish customers.

26.      The company KTF provides services to a trade association for undertakings which import, produce and market cosmetic products and hygiene products.

27.      In February 2022, KTF brought an action against Parfümerie Akzente before the Patent- och marknadsdomstolen (Patent and Commercial Court, Sweden) with a view to prohibiting Parfümerie Akzente, on pain of financial penalty, from engaging in unfair practices consisting, first, in using certain specific promotional claims in the marketing of cosmetic products and hair care products, secondly, in marketing certain cosmetic products contained in aerosol dispensers which are not labelled in Swedish, in breach of the Swedish rules transposing Directive 75/324 and, thirdly, in marketing certain cosmetic products which are not labelled in Swedish, in breach, in particular, of Article 19(1)(d) of, and Annex III to, Regulation No 1223/2009.

28.      Before that court, KTF claimed that the marketing practices complained of were unfair and therefore had to be prohibited.

29.      KTF stated that the marketing and selling of the products in question targeted the Swedish market and that the marketing practices had had an impact in Sweden. According to KTF, the Swedish provisions transposing Directive 2000/31, which relies on the country of origin principle, are subordinate to the Swedish provisions transposing Directive 2005/29, with the result that the ‘country of effect principle’, which is generally applicable in commercial practices law, takes precedence over the country of origin principle.

30.      In any event, Directive 2005/29 brings about complete harmonisation, with the result that the Swedish rules governing commercial practices cannot be regarded as being stricter than the equivalent German rules.

31.      Without admitting that it infringed the Swedish provisions on commercial practices, Parfümerie Akzente acknowledged that the marketing and selling of the products in question were indeed aimed at Sweden and that it had not labelled its products in Swedish although they should have been labelled in the manner claimed by KTF. However, Parfümerie Akzente submits that Directive 2000/31 precludes the provider of an information society service from being subject to rules stricter than those of the Member State in which it is established. It argues that the country of origin principle requires, in the present case, the application of German law on commercial practices, even though that law is less strict than Swedish law.

32.      By judgment of 24 September 2021, the court of first instance upheld KTF’s claims. It considered that the marketing practice in question constituted an unfair practice and, consequently, on the basis of the Swedish rules governing commercial practices, prohibited Parfümerie Akzente from making use of that practice.

33.      First of all, the court of first instance examined the applicability of Swedish law on commercial practices to the promotional claims at issue, published on Parfümerie Akzente’s website. It noted that Parfümerie Akzente was a service provider established in Germany and that the online sales of the products concerned constituted an information society service. That court also considered that the promotional claims at issue formed part of that service and that the requirements to which they were subject fell within the coordinated field within the meaning of Directive 2000/31. Accordingly, that court held that Parfümerie Akzente was entitled to supply its information society service to recipients in Sweden without being prevented from doing so by Swedish rules falling within the coordinated field.

34.      The court of first instance then examined Directive 2005/29. It noted that that directive provides for full harmonisation, with the result that its provisions should be given the same meaning and scope throughout the European Union. Moreover, in so far as Parfümerie Akzente has not stated that Swedish law on commercial practices was more restrictive than German law and the contested promotional claims had an impact in Sweden, there was nothing to prevent the application of Swedish rules governing commercial practices.

35.      However, with respect to the marketing of mislabelled products, the court of first instance did not carry out a similar examination of the applicability of the Swedish rules.

36.      Parfümerie Akzente appealed against that judgment to the Svea Hovrätt, Patent- och marknadsöverdomstolen (Svea Court of Appeal, Patent and Commercial Court of Appeal, Stockholm, Sweden), the referring court.

37.      Before the referring court, KTF stated that Parfümerie Akzente had undertaken several marketing activities for mislabelled products, that is to say their marketing on its website and their sale and delivery. In the present case, the purpose of KTF’s action is to challenge the contested marketing methods by relying on commercial practices law.

38.      In the course of proceedings before the referring court, questions arose as regards, first, the implementation in Sweden of Directive 2000/31 and its compatibility with EU law and, secondly, the scope of the coordinated field.

39.      It was in those circumstances that the Svea Hovrätt, Patent- och marknadsöverdomstolen (Svea Court of Appeal, Patent and Commercial Court of Appeal, Stockholm), by decision of 13 February 2023, received at the Court on 15 February 2023, decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Must Article 3(2) of [Directive 2000/31], having regard to EU law in general and its effective implementation, be interpreted as precluding national legislation which entails the non-application of national rules within the coordinated field, including national rules which implement [Directive 2005/29], if the supplier of the service is established and supplies information society services from another Member State and there are no requirements to apply any exception flowing from those national provisions which implement Article 3(4) of [Directive 2000/31]?

(2)      Does the coordinated field cover, under [Directive 2000/31], the marketing on the seller’s website and the online sales of a product alleged to be labelled in breach of the requirements applicable to such goods in the purchasing consumer’s Member State?

(3)      If the answer to the second question is in the affirmative, are such requirements as apply to the delivery and the products themselves also excluded from the coordinated field, in accordance with Article 2(h)(ii) of [Directive 2000/31], where the delivery of the goods themselves constitutes a necessary step in the marketing and online sales, or is the delivery of the goods themselves to be deemed to constitute an element that is ancillary to and inseparable from the marketing and online sales?

(4)      What weight, if any, does the fact that the requirements applicable to the goods themselves flow from national provisions which implement and supplement sector-specific EU legislation, including Article 8(2) of [Directive 75/324] and Article 19(5) of [Regulation No 1223/2009], and which mean that the requirements applicable to the goods must be fulfilled in order for it to be possible for the goods to be released onto the market or supplied to end consumers in the Member State have in the consideration of the second and third questions?’

40.      Written observations were submitted by the parties to the main proceedings, the Italian and Swedish Governments and the European Commission. KTF, the Swedish and French Governments and the Commission were represented at the hearing on 13 March 2024.

IV.    Analysis

A.      Scope of the questions referred

41.      I note at the outset that the questions referred for a preliminary ruling presuppose that the marketing of the products in question by Parfümerie Akzente on its website constitutes an ‘information society service’, within the meaning of Directive 2000/31, and that that company must therefore be regarded as a provider of such services. Since that classification appears to be warranted in the light of the present reference for a preliminary ruling and is not disputed by the interested parties, I start from the premiss that the service provided by Parfümerie Akzente, generally speaking, falls within the concept of ‘information society services’.

42.      As a further preliminary point, I note that the referring court has submitted four questions to the Court for a preliminary ruling concerning two aspects intrinsically linked to the rules on marketing and online sales within the European Union.

43.      The first question referred concerns the discretion available to a Member State of destination to apply, to a service provider established in another Member State, its own provisions falling within the coordinated field, within the meaning of Article 2(h) of Directive 2000/31, while the second to fourth questions concern the scope of that field. In those circumstances, I consider it appropriate to begin my analysis of the questions referred by examining the questions which focus on the concept of the coordinated field, that is to say, the second, third and fourth questions.

B.      The second, third and fourth questions referred

1.      The scope of the second, third and fourth questions referred

44.      In the main proceedings, KTF alleges that Parfümerie Akzente, first, used certain promotional claims in the marketing of the products concerned and, secondly, marketed certain products which were not labelled in accordance with the Swedish rules. Although the order for reference does not provide details of those promotional claims, it seems that they were statements of a general nature. (7) The second to fourth questions referred are not raised in relation to the promotional claims at issue. They are, however, linked to the referring court’s doubts concerning the marketing of allegedly mislabelled products.

45.      More specifically, by its second to fourth questions, which I propose to examine together, the referring court seeks to ascertain, in essence, whether Article 2(h) of Directive 2000/31 must be interpreted as meaning that the coordinated field, within the meaning of that provision, covers a prohibition on the marketing and online sales of a product allegedly labelled in breach of the requirements which are applicable to the product as such in the Member State in whose territory the consumers targeted by those online marketing measures are located and which are laid down by that Member State in accordance with Article 8(2) of Directive 75/324 and Article 19(5) of Regulation No 1223/2009.

46.      It is true that the wording of the second question referred may suggest that the referring court is seeking to ascertain whether marketing and online sales fall within the coordinated field also where they relate to a product allegedly labelled in breach of the requirements applicable to the product as such.

47.      In that regard, I note that, technically speaking, the coordinated field does not cover activities carried out online but covers the requirements applicable to such activities. As is clear from Article 2(h) of Directive 2000/31, the coordinated field covers the requirements applicable to information society service providers and to such services.

48.      In those circumstances and to state the obvious, ‘the coordinated field’, within the meaning of Article 2(h) of Directive 2000/31, includes, inter alia, requirements relating to ‘the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider’. However, that provision excludes from the coordinated field, inter alia, ‘requirements applicable to goods as such, [those] applicable to the delivery of goods [and those] applicable to services not provided by electronic means’.

49.      Accordingly, a superficial examination of the questions referred would mean that it would be necessary to answer to the effect that requirements relating to the marketing and to the online sales of the products concerned fall within the coordinated field, whereas requirements relating to those products as such and to their delivery do not. The referring court, while intuitively aware that this conclusion must be drawn, nevertheless invites the Court to examine this conclusion in the light of the specific features of the present case.

50.      In the order for reference, the referring court explains that the second question concerns ‘whether the coordinated field under Directive 2000/31 covers requirements for the marketing and online sales of a product which is alleged not to meet the requirements applicable to the product itself’. However, as is apparent from the order for reference, the third question is raised in the event that, according to the answer to the second question, ‘the coordinated field [covers] the requirements concerning marketing and online sales’, with the result that it is ‘legal … to market and sell goods online to the consumer’.

51.      However, there is no clear definition in the order for reference of the ‘requirements relating to marketing and online sales’ whose applicability to the provider of information society services is at issue in the present case. It is therefore necessary to determine how the referring court understands those requirements.

52.      There is nothing in the order for reference to indicate that the criticism levelled at Parfümerie Akzente is confined to the fact that that company did not include on its website all the particulars and details which, according to Directive 75/324 and Regulation No 1223/2009, should normally appear on the product label.

53.      That said, in order to provide helpful guidance as to interpretation, I shall examine whether Directive 75/324 and Regulation No 1223/2009 require that the particulars and details which they lay down should also be used in the context of the marketing and online sales of the products in question. Although this issue does not arise in the case of traditional sales, since consumers generally have access to the product which they are buying, it is a different matter in the context of online activity.

2.      Labelling requirements under EU law

54.      First, Article 8(2) of Directive 75/324 allows Member States to make ‘the marketing’ of aerosol dispensers ‘in their territory’ conditional on the use of their national language for the wording on the label.

55.      In that regard, it is clear from a reading of Article 8(1) of Directive 75/324 that that provision concerns the particulars and details which must appear on the product or, where appropriate, on a label attached thereto. Moreover, the purpose of that directive is to harmonise the requirements relating to the technical specifications of aerosol dispensers in order to facilitate trade within the European Union (8) and, as may be inferred from the content of the information required by Article 8, read in the light of point 2.2 of the annex to that directive, (9) to ensure the safety of the users of the products concerned. However, there is nothing to suggest that those particulars and details are required in order to allow a consumer to make an informed choice, since the promotional aspect of the marketing of aerosol dispensers is not governed by that directive.

56.      Accordingly, in my view, Directive 75/324 does not require that the requisite particulars also be used in commercial practices relating to the marketing and sale of aerosol dispensers online.

57.      Secondly, under Article 19(1) and (5) of Regulation No 1223/2009, ‘the language of [certain] information [required by that regulation for a cosmetic product to be made available on the market] shall be determined by the law of the Member States in which the product is made available to the end user’.

58.      In that regard, the concept of ‘making available on the market’ is defined in Article 2(1)(g) of Regulation No 1223/2009 as ‘any supply of a cosmetic product for distribution, consumption or use on the Community market in the course of a commercial activity, whether in return for payment or free of charge’. (10)

59.      It is true that that concept is sufficiently broad to cover commercial practices linked to the sale of such products. (11) However, the EU legislature did not intend to establish, in Regulation No 1223/2009, a detailed and comprehensive framework for the wording of the information required in the context of the marketing of cosmetic products online.

60.      Regulation No 1223/2009 has as its objective an exhaustive harmonisation of the rules in force in the European Union which is aimed at establishing an internal market for cosmetic products while, at the same time, ensuring a high level of protection for human health. (12) In that connection, the information required by Article 19(5) of that regulation must be in a language determined by the Member State in which the product is supplied to the end user, that is to say either a consumer or professional using the cosmetic product. (13) Accordingly, the sole purpose of the particulars and details is to ensure the safety of cosmetic products during use. However, those particulars and details are not required in order to allow a consumer to make an informed choice of product. Indeed, the ultimate consumer is not necessarily the person who purchased the cosmetic products. (14)

61.      In the same vein, the labelling requirements set out in Article 19 of Regulation No 1223/2009 cannot be confused with the requirements concerning claims relating to cosmetic products, set out in Article 20 of that regulation, (15) since the latter apply to any text-based communication relating to those products, (16) including communications enabling consumers to be informed when choosing a product. (17)

62.      Accordingly, the labelling requirements laid down in Directive 75/324 and Regulation No 1223/2009 are intended to protect users of the products concerned and, as such, perform their function in the context of the use of such products. Those requirements are therefore concerned with the very essence of the safety of the products in question. By contrast, the particulars and details required by those two instruments of EU law do not concern the marketing of those products and are not intended to enable a consumer to make an informed decision concerning the purchase of a specific product. Consequently, they do not have to be used in connection with the marketing and online sales of the products concerned.

3.      The prohibition on marketing products which do not comply with safety requirements

63.      Since I have rejected the interpretation that the particulars and details required by Directive 75/324 and Regulation No 1223/2009 must be used also in the context of marketing and online sales, the referring court’s reference to ‘requirements for the marketing and online sales of a product which is alleged not to meet the requirements applicable to the product itself’ must be understood as meaning that the referring court has doubts as to whether Parfümerie Akzente can be prohibited from marketing and selling online products which are not labelled in Swedish.

64.      On the one hand, the court of first instance upheld KTF’s claim seeking to prohibit the marketing of the allegedly mislabelled products which, according to that company, cannot lawfully be marketed or sold to end users in Sweden. Moreover, Parfümerie Akzente acknowledged that it had marketed and sold the products concerned, that those products should have been labelled in the manner claimed by KTF and that their labels were not in Swedish. By its appeal before the referring court, Parfümerie Akzente appears to be challenging the applicability of the Swedish rules, in particular to the marketing and online sales of those products in that Member State.

65.      Accordingly, the requirements concerning marketing and online sales, mentioned by the referring court, amount to a prohibition on the marketing and selling of products labelled in breach of the safety rules applicable to products placed on the market on Swedish territory or supplied to end consumers in Sweden.

4.      The prohibition in question and the coordinated field

66.      Article 8(2) of Directive 75/324 allows the Member State of marketing to require that an aerosol dispenser be labelled entirely in the national language or languages of that Member State. Similarly, the information referred to in Article 19(5) of Regulation No 1223/2009 must be accessible in the language determined by the Member State in which the cosmetic product is made available to the end user.

67.      Article 4 of Directive 75/324 and Article 9 of Regulation No 1223/2009 provide, in almost identical terms, that the Member States may not, for reasons related to the requirements laid down in those instruments of EU law, refuse, prohibit or restrict the marketing in their territory of a product which complies with the requirements of those instruments. However, the present case concerns products which do not comply with the language rules determined by the Kingdom of Sweden in accordance with Article 8(2) of that directive and Article 19(5) of that regulation. The question which arises is whether that Member State may prohibit the marketing and online sales of such products to consumers in that Member State.

68.      First of all, such a prohibition, by a Member State of destination, on marketing and online sales conflicts with the mechanism established in Article 3 of Directive 2000/31. According to Article 1(3) of that directive, the directive applies to information society services without prejudice to the level of protection for, in particular, public health and consumer interests, as established by EU acts and national legislation implementing them in so far as this does not restrict the freedom to provide such services. Accordingly, the mechanism established in Article 3 of that directive takes precedence over protective rules which restrict the movement of online services.

69.      That said, the free movement of information society services is governed by Article 3(2) of Directive 2000/31. Under that provision, Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide such services from another Member State. The prohibition in question concerns the marketing and online sales of products which do not comply with the requirements relating to goods as such. That prohibition relates, par excellence, to reasons which do not fall within the coordinated field and is intended to ensure the effectiveness of those requirements.

70.      As an extension to that reasoning, as is apparent from Article 2(h)(i) of Directive 2000/31, the coordinated field comprises requirements with which information society service providers must comply in order, from the perspective of the Member State concerned, for the pursuit of an activity relating to that service to be lawful. The irregularity of the marketing in question is not concerned with a marketing method or a specific aspect of that marketing, but results directly and solely from the fact that the marketed products do not comply with the safety rules applicable to the products under the legislation of the Member State of destination.

71.      Moreover, the interpretation that the prohibition on the online marketing of products which do not comply with product safety rules does not fall within the coordinated field is also supported by the guidance contained in the judgment in Ker-Optika, (18) in which the Court examined internet sales of contact lenses in the light of Directive 2000/31.

72.      In that judgment, the Court noted that, in relation to such sales, several features can be identified, namely, inter alia, first, the act of selling per se which consists in the making of a contractual offer online and the conclusion of a contract by electronic means, secondly, the delivery of the product sold and, thirdly and optionally, a pre-requisite for the sale or delivery, such as the obtaining of medical advice by the customer. (19)

73.      Having made that distinction, the Court held, on the one hand, that the coordinated field covers national provisions which prohibit, in particular, the online offer and the conclusion of the contract by electronic means. (20) On the other hand, the Court held, unreservedly, that, ‘according to the precise wording of Article 2(h)(ii) of Directive 2001/31, the coordinated field does not cover requirements applicable to the supply of goods in respect of which a contract has been concluded by electronic means’ and that, consequently, the national rules which relate to the conditions under which goods sold via the internet may be supplied within the territory of a Member State fall outside the scope of that directive. (21) Next, the Court held that, in so far as the national legislation prohibiting ‘the selling of contact lenses via the internet [concerned] a selling arrangement characterised by the delivery of such lenses to the customer’s home’, that legislation had to be examined not in the light of that directive but with regard to the Treaty. (22)

74.      Accordingly, first, a prohibition on the online marketing of products which do not comply with the requirements applicable to goods as such cannot be regarded as falling within the coordinated field. Secondly, Article 3(2) of Directive 2000/31 does not prevent a Member State of destination from prohibiting the marketing and online sales of such products.

75.      In those circumstances, it remains to be examined whether, as presupposed by the third question as formulated by the referring court, that conclusion is called into question by the guidance to be derived from the judgment in A (Advertising and sale of medicinal products online), (23) in so far as it is apparent from that judgment that certain activities which are inseparable from, and ancillary to, online activities fall within the coordinated field.

5.      Labelling as an element that is inseparable from, and ancillary to, marketing and online sales

76.      The referring court considers that, in the case of online sales where the sales by the service provider are made entirely to consumers in another Member State, in which that service provider is not established, delivery of the product necessarily forms part of the service and could therefore constitute an element that is inseparable from, and ancillary to, that service. In those circumstances, delivery of the goods themselves is an essential condition of online sales. That line of reasoning, inspired by the judgment in A (Advertising and sale of medicinal products online), is tantamount to considering that requirements relating to delivery or to the product as such fall, like requirements relating to the online activity, within the coordinated field. In practice, Parfümerie Akzente would therefore be permitted to supply, to consumers in Sweden, cosmetic products labelled in accordance with the law of the Member State in which that undertaking is established.

77.      I am not convinced by that reasoning. To follow the logic underlying the third question would be tantamount to considering that, from the point of view of Directive 2000/31, the delivery of any product sold online also constitutes an element that is necessary to, and inseparable from, the information society service.

78.      The guidance contained in the judgment in A (Advertising and sale of medicinal products online) does not support that reasoning either. In that judgment, the Court had to determine whether a multi-channel advertising campaign, carried out using both electronic and physical media, fell entirely within the coordinated field.

79.      In that regard, the Court held, first of all, that ‘such advertising is intended, as a whole and irrespective of the process by which it is actually carried out, to attract potential consumers to [the] website [of the information society service provider in question] and to promote the sale of its products online’, (24) which is its main economic activity. (25) Next, the Court noted that it would be artificial to consider the part of the advertising carried out online as falling within the coordinated field and to exclude from that field the part of the advertising carried out by means of physical media. (26) Finally, it referred to the wording of Article 2(h)(i) of Directive 2000/31, which provides that, inter alia, requirements applicable to advertising fall within the coordinated field. (27)

80.      In the light of those considerations, the Court held that the advertising at issue constituted an element that is ancillary to, and inseparable from, the online sales service and, as such, fell, in its entirety, within the ‘coordinated field’, within the meaning of Directive 2000/31. (28)

81.      However, that case-law cannot be applied to the present case.

82.      In the first place, the labelling of products is not, within the meaning of the judgment in A (Advertising and sale of medicinal products online), ancillary to the marketing and online sales of those products, since it serves not to market those products to consumers, but to provide them with information about the product’s use and how it is to be used, in order to safeguard the objective of ensuring a high level of protection of human health. (29)

83.      In the second place, while Article 2(h)(i) of Directive 2000/31 leaves some scope to support the view that requirements relating to advertising fall within the coordinated field, Article 2(h)(ii) of that directive excludes from that field, in the final analysis, requirements applicable to goods as such. That interpretation is supported by recital 21 of that directive, which states that the coordinated field does not concern Member States’ legal requirements relating to goods such as, inter alia, safety standards or labelling obligations.

84.      In the third place, as I have observed, (30) the interpretation according to which labelling obligations are excluded from the coordinated field despite their link to the online activity is supported by the guidance in the judgment in Ker-Optika. (31) It is true that, in that judgment, the Court focused on the requirements applicable to the delivery of goods sold online, whereas the present case concerns the requirements applicable to goods as such. However, Directive 2000/31 treats those two types of requirements in the same way.

85.      In that regard, it is nevertheless possible to identify a characteristic of the requirements applicable to goods as such which, from the standpoint of their link with marketing and online sales, distinguishes them from the requirements applicable to delivery. No element of the delivery directly arises in the context of marketing and online sales, whereas certain elements of a label may be reproduced in the context of the online marketing of the products concerned. The arguments of the Italian and French Governments reflect the view that this is a characteristic of labelling requirements.

86.      However, as I have already observed, there is no indication that the criticism levelled at Parfümerie Akzente is limited to the fact that that company did not include on its website all the particulars and details which, according to Directive 75/324 and Regulation No 1223/2009, should normally appear on the product label. (32) In any event, the information required by those two instruments of EU law need not necessarily be used in the context of the marketing and online sales of the products concerned. (33)

87.      In the fourth place, and lastly, the interpretation that requirements relating to goods as such are excluded from the coordinated field notwithstanding their link with the online activity (which implies that the provider of an information society service cannot rely on the country of origin principle in order to avoid being bound by those requirements) cannot be called into question by the fact that a Swedish consumer, unaware of such requirements in force in his or her Member State, may travel to another Member State and purchase there products labelled in a language which that consumer does not understand. Such a very specific situation does not correspond to the situation where a service provider established in another Member State sells products in Sweden. (34) Consequently, the fact that, within the European Union, a consumer may travel to obtain a product which complies with local requirements does not call into question the distributive application within the European Union of the requirements provided for by the Member States concerned and applicable to products as such, thus creating a sort of regulatory mosaic. According to the logic of the mechanism established in Article 3 of Directive 2000/31, each Member State may impose such requirements on its territory.

88.      In the light of all those considerations, the answer to the second, third and fourth questions referred should be that Article 2(h) of Directive 2000/31 must be interpreted as meaning that the coordinated field, within the meaning of that provision, does not cover a prohibition on the marketing and online sales of a product labelled in breach of the requirements which are applicable to the product as such in the Member State in whose territory the consumers targeted by those online marketing measures are located and which are laid down by that Member State in accordance with Article 8(2) of Directive 75/324 and Article 19(5) of Regulation No 1223/2009.

89.      For the sake of completeness, I would note that, although that prohibition does not fall within the coordinated field within the meaning of Directive 2000/31, it must nonetheless be consistent with the other relevant provisions of EU law. However, the questions raised by the referring court are confined to whether that prohibition falls within the coordinated field. There is therefore no need to consider whether that prohibition complies with EU law.

C.      The first question referred

90.      By its first question, the referring court seeks to ascertain, in essence, whether Article 3(2) of Directive 2000/31 precludes a Member State, when transposing that provision into national law, from laying down a principle that, subject to the derogations provided for in Article 3(4) of that directive, national rules which fall within the coordinated field, within the meaning of Article 2(h) of that directive, do not apply either to an information society service provider established in another Member State or to the service which it provides.

91.      This question seems to have been raised in the event that the Court answers the second, third and fourth questions referred to the effect that the prohibition on the marketing and online sales of allegedly mislabelled products falls within the coordinated field.

92.      In that regard, as is apparent from my analysis of those three questions, neither the labelling requirements for the products in question in the main proceedings nor the prohibition on the marketing and online sales of a product labelled in breach of those requirements falls within the coordinated field within the meaning of Directive 2000/31. Accordingly, my answer to those questions should be sufficient to dispel the referring court’s doubts. There is therefore no need to answer the first question referred.

93.      For the sake of completeness, it should be noted that this question may be understood as arising not from KTF’s argument concerning the marketing of the allegedly mislabelled products, but from its argument that Parfümerie Akzente used certain general promotional claims on its website. (35)

94.      In that regard, I note that the court of first instance did not examine in detail whether the Swedish rules on unfair commercial practices apply to the marketing of allegedly mislabelled products. That court did, however, seek to ascertain whether those rules apply to promotional claims of a general nature and held, in essence, that they do. (36)

95.      In those circumstances, it cannot be ruled out that the referring court considers that the Swedish provision transposing Article 3(2) of Directive 2000/31 precludes the application of the Swedish rules on unfair commercial practices to those promotional claims and, for that reason, questions whether that transposing provision is compatible with EU law.

96.      However, even if it were assumed that the reading of the first question which I have just set out reflects the doubts of the referring court, such a question is not clearly set out in the order for reference and, in any event, remains largely hypothetical and abstract.

97.      Although the question referred concerns Article 3(2) of Directive 2000/31, the referring court fails to identify any possible restriction on the free movement of information society services which that provision of EU law seeks to guarantee.

98.      In that context, moreover, according to that reading of the first question, the case in the main proceedings concerns whether, in order for the provider of an information society service from another Member State to be subject to a penalty, the rules on unfair commercial practices laid down by the Member State of destination must apply to that service. However, Article 3(2) of Directive 2000/31 determines, rather, the circumstances in which the rules of that first Member State cannot apply to such a service.

99.      Lastly, the referring court suggests that, if the Swedish rules are not applicable, conduct constituting an unfair commercial practice could not be penalised in proceedings before the Swedish courts. Nor could those courts apply the rules on unfair commercial practices of the Member State of origin. (37) However, the referring court does not raise any question relating to the territorial scope of Directive 2005/29 and the provisions transposing that directive and, consequently, does not provide the Court with an opportunity to consider the premiss which may form the basis of the doubts which would have to be resolved in order for that court to be able to rule on the dispute before it.

V.      Conclusion

100. In the light of all the foregoing considerations, I propose that the Court answer to the questions referred by the Svea Hovrätt, Patent- och marknadsöverdomstolen (Svea Court of Appeal, Patent and Commercial Court of Appeal, Stockholm, Sweden) as follows:

Article 2(h) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’),

must be interpreted as meaning that the coordinated field, within the meaning of that provision, does not cover a prohibition on the marketing and online sales of a product labelled in breach of the requirements which are applicable to the product as such in the Member State in whose territory the consumers targeted by those online marketing measures are located and which are laid down by that Member State in accordance with Article 8(2) of Council Directive 75/324/EEC of 20 May 1975 on the approximation of the laws of the Member States relating to aerosol dispensers and Article 19(5) of Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products.

1      Original language: French.

2      Directive of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).

3      Directive of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).

4      Council Directive of 20 May 1975 on the approximation of the laws of the Member States relating to aerosol dispensers (OJ 1975 L 147, p. 40).

5      Regulation of the European Parliament and of the Council of 30 November 2009 on cosmetic products (OJ 2009 L 342, p. 59).

6      Regulation of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ 2008 L 353, p. 1).

7      The promotional claims at issue in KTF’s action are reproduced in Parfümerie Akzente’s observations and in those of the Commission. It is clear from those observations that the claims do not relate to specific products but to the fact, for example, that Parfümerie Akzente is an ‘accredited online retailer’ which sells ‘flawless and safe original products’ or ‘products manufactured by members of the German trade association of cosmetics distributors’.

8      See the first recital of Directive 75/324.

9      According to point 2.2 of that annex, each aerosol dispenser or its packaging is to be marked clearly and legibly with information on the flammability characteristics of an aerosol dispenser.

10      Emphasis added.

11      See, by way of analogy, judgment of 19 January 2023, CIHEF and Others (C‑147/21, EU:C:2023:31), concerning other EU legislation which defines, in terms almost identical to those of Regulation No 1223/2009, making available on the market as any supply of a biocidal product or of a treated article for distribution or use in the course of a commercial activity, whether in return for payment or free of charge. That judgment concerned national provisions prohibiting certain commercial practices such as discounts, price reductions, rebates, the differentiation of general and special sales conditions, and the gift of free units or any equivalent practices.

12      See judgment of 15 September 2022, Fédération des entreprises de la beauté (C‑4/21, EU:C:2022:681, paragraph 33).

13      See Article 2(1)(f) of Regulation No 1223/2009.

14      See, to that effect, in the context of foodstuffs, judgment of 12 October 1995, Piageme and Others (C‑85/94, EU:C:1995:312, paragraphs 23 to 25).

15      See, to that effect, judgment of 17 December 2020, A.M. (Labelling of cosmetic products) (C‑667/19, EU:C:2020:1039, paragraph 33).

16      Article 20(1) of Regulation No 1223/2009 is worded as follows: ‘In the labelling, making available on the market and advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have.’

17      See point 6 of the annex to Commission Regulation (EU) No 655/2013 of 10 July 2013 laying down common criteria for the justification of claims used in relation to cosmetic products (OJ 2013 L 190, p. 31). It is true that, in the judgment of 17 December 2020, A.M. (Labelling of cosmetic products) (C‑667/19, EU:C:2020:1039, paragraph 32), the Court held that the particulars referred to in Article 19(1)(f) of Regulation No 1223/2009 must give consumers access to fuller information about the product’s use and how it is to be used and, therefore, enable consumers ‘to be fully informed when choosing the product’. However, the Court then linked that information on the product’s use to ensuring that consumers are not misled and to use of the product in an appropriate way in order to safeguard the objective of ensuring a high level of protection of human health.

18      Judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725).

19      Judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraph 22).

20      Judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraph 28).

21      Judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraphs 29 to 31).

22      Judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725, paragraphs 45 and 46).

23      Judgment of 1 October 2020 (C‑649/18, ‘the judgment in A (Advertising and sale of medicinal products online)’, EU:C:2020:764).

24      Judgment in A (Advertising and sale of medicinal products online) (paragraph 55).

25      Judgment in A (Advertising and sale of medicinal products online) (paragraph 56).

26      Judgment in A (Advertising and sale of medicinal products online) (paragraph 57).

27      Judgment in A (Advertising and sale of medicinal products online) (paragraph 58).

28      Judgment in A (Advertising and sale of medicinal products online) (paragraph 59).

29      See point 62 of this Opinion.

30      See points 71 to 73 of this Opinion.

31      Judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725).

32      See point 52 of this Opinion.

33      See point 62 of this Opinion.

34      See, to that effect, judgment of 8 July 2021, Pharma Expressz (C‑178/20, EU:C:2021:551, paragraph 49).

35      See, as regards those two sets of claims at issue in the main proceedings, point 44 of this Opinion.

36      See points 33 to 35 of this Opinion.

37      The referring court states that the transposing provision at issue in the main proceedings implies that persons who consider themselves to have been harmed by certain online commercial practices are required to apply to the courts and other authorities of the Member State of origin.