Opinion of Mr Advocate General Gulmann
Mr President,
Members of the Court,
1. The Landgericht Berlin has referred to the Court for a preliminary ruling a question on the interpretation of Article 30 of the EEC Treaty. That question has arisen in proceedings between a German association which has standing to bring legal proceedings with a view to securing the enforcement of the German Law against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb) (UWG) and the French and German subsidiaries of the United States company Estée Lauder.
2. The following facts emerge from the order making the reference:
3. It was against that background that the Landgericht Berlin referred the following question for a preliminary ruling:
4. Paragraph 3 of the UWG provides that Injunction proceedings may be brought against anyone who, in the course of trade and for purposes of competition, provides misleading information on, in particular, ..., with a view to securing an end to the dissemination of the information in question.
5. The plaintiff in the main proceedings argues that marketing of the products under the name Clinique would be contrary to those two provisions in so far as that name could mislead consumers into thinking that the products had medicinal effects. It points out that in German there is a similarity in sound between the words Clinique and Klinik and that the word Klinik in German unquestionably means a hospital.
6. It may be noted that the provisions relied on by the plaintiff in the main proceedings are general clauses, which means that the specific content of the provisions has to be determined by case-law. On the basis of the UWG, which dates from 1909, there has arisen in Germany within the parameters of the general clauses contained in Paragraphs 1 and 3 of the UWG, in an interplay between case-law and legal writing, a closely woven fabric of intersecting case situations which at least to some extent provide consumers, undertakings and society on the whole with legal certainty and leads to foreseeability in matters relating to competition.
7. It is undoubtedly correct that judicial decisions in Germany have — in contrast to the position in most of the other Member States — contributed to the imposition of a relatively strict standard with regard to what constitutes misleading information and that this can be said to have secured a relatively high level of protection for the interests of consumers and others which the legislation is designed to protect. This applies not least in the context of information which may be regarded as unjustifiably attributing medicinal properties to products.
8. The question referred concerns the interpretation of Article 30 of the EEC Treaty on the prohibition of restrictions on intra-Community trade and the significance of that provision for the application to a specific case of the prohibition of misleading information laid down in the German legislation.
9. While the Court cannot, in proceedings for a preliminary ruling, take a position on how a national court should decide a particular case, it can provide that court with all appropriate material on the interpretation of Community law to enable it to determine, when giving its decision, whether the national provisions are compatible with Community law.
10. It is relevant to the decision in this case that the Council has adopted directives requiring Member States to introduce rules prohibiting misleading advertising.
11. The German Government has pointed out that the provisions of those two directives have been implemented in German law by way of, inter alia, the above rules on misleading information, and that any prohibition under the German rules will be consistent with the directives. It argues in that connection that the question referred to the Court must be answered on the basis of the directives inasmuch as measures consistent with the directives cannot a priori infringe Article 30 of the EEC Treaty unless the Community rules in question are themselves at variance with Article 30.
12. That view, in my opinion, is incorrect. It oversimplifies the problem and fails to take proper account of the nature of the Community obligations which the two directives impose on Member States. Those obligations are couched in very general terms and require national legal systems to protect consumers and others against misleading information within specified areas. Thus, the directive on misleading advertising lays down only relatively vague criteria as to what constitutes misleading advertising. Moreover, the directive does not prevent Member States from imposing more stringent provisions. It is also important that the obligations under the directive should be interpreted in accordance with the requirements which flow from the Treaty rules on the free movement of goods.
13. The national court was in my opinion correct to ask the Court to interpret Article 30 of the EEC Treaty.
14. The reply to the question in the reference must therefore be based on the established case-law of the Court with regard to that provision to the effect that:
15. The order making the reference is based on the assumption, which in any event is undeniable, that a ban on the marketing in Germany of the cosmetic products in question under the name Clinique will in fact be restrictive of intra-Community trade.
16. It must also be assumed that if the ban is imposed, this will constitute an obstacle to intra-Community trade stemming from the application of national rules which apply to domestic and imported products without distinction.
17. As we know, the Court has also held that obstacles to trade can be justified on the grounds set out in Article 36 of the EEC Treaty or in the Court's case-law only if common rules have not been laid down at Community level in the areas in question.
18. It might well be argued that the cosmetics directive, Article 6 (2) of which requires all Member States to ensure that consumers are not misled and Article 7 (1) of which requires Member States not to prohibit or restrict the marketing of products which comply with the requirements of the directive, has precisely the objective of harmonizing national requirements with regard to cosmetic products and therefore contains such common rules as, according to the Court's case-law, preclude measures in restraint of trade from being regarded as justified. No such argument, however, is set out in any of the observations submitted to the Court. Nor, in my opinion, can it properly be argued that the fact that the products are lawfully marketed in other Member States under the name Clinique means that in Germany too they must be regarded as satisfying the requirement set out in Article 6 (2) of the directive that products must not be attributed with characteristics which they do not possess. This follows already from the fact that there may exist in this field linguistic, cultural and social differences between the Member States which have the result that a name which is not misleading in one Member State may well be misleading in another.
19. The Community rules in this case do not therefore in my opinion preclude the possibility of justification. However, the significance of those provisions (and this is the real thrust of the abovementioned arguments of the German Government) is that they show that great importance is attached to the desire to protect consumers and others against misleading information in connection with the marketing of goods and services, not least where medicinal properties are attributed to products which do not have them.
20. There has never been any doubt in the Court's case-law that the desire to protect consumers and traders against unfair or misleading conduct on the part of undertakings marketing goods is one of the imperative requirements which can justify obstacles to the free movement of goods.
21. A further requirement under the consistent case-law of the Court, however, is that application of the relevant national provisions must be essential to consumer protection, that it must be proportionate to the objective pursued and that that objective cannot be achieved by measures which are less restrictive of trade.
22. The Commission has argued that it is not necessary to prohibit the use of the name Clinique for the purposes of consumer protection and fair trading. In support of that argument, it has put forward the following points:
23. I can see the cogency of the Commission's argument based essentially on the view that there is not, on an overall assessment, a real risk that individuals will be misled and that it is therefore not imperative to prohibit the marketing of goods under the name Clinique.
24. It is none the less my view that it would be wrong to answer the question in the terms suggested by the Commission, to the effect that Article 30 must be interpreted as meaning that the imposition of a ban under Paragraph3 of the UWG on the intended marketing would be incompatible with that article.
25. In the first place, such a reply to the question referred would overstep the boundaries of what in a case such as this is the Court's task and what is the task of the national court in connection with the application of Community law to the case in hand (see point 9 above).
26. It is therefore in my opinion not possible in this case to state from the outset that a ban on the proposed marketing of the products would be unnecessary within the meaning of Article 30 to attain the level of protection intended under German law if the market research survey envisaged by the national court were to show that the specified percentage of German consumers would be misled as to the characteristics of the products in question.
27. A specific ban would also, in my opinion, not be contrary to the directive on misleading advertising. One reason is simply that the directive does not prevent the Member States from imposing a more stringent level of protection than that laid down in the directive. But I also do not consider that such a result would in principle be contrary to any of the specific minimum requirements which the directive imposes on the legislation of Member States.
28. That does not, however, rule out the possibility that requirements may be derived from Community law for the application by the German courts of the prohibitions in the two national provisions on misleading information.
Conclusion
29. On the basis of the above considerations, I propose that the Court reply to the question referred in the following terms:
1 Original language: Danish.
2 The plaintiff in the main proceedings refers in its written observations to the definition of the word Klinik in the Brockhaus Encyclopedia, 17th edition, and claims that in German the word Klinik is understood as referring to cither a public or private hospital; the word Krankenhaus is normally used to refer to ordinary hospitals, whereas Klinik generally refers to a university hospital, that is to say, a hospital of a particularly high standard.
3 Dr H. Piper, President of the Bundesgerichtshof, Zu den Auswirkungen des EG-Binnenmarktes auf das deutsche Recht gegen den unlauteren Wettbewerb, Wettbewerb m Recht und Praxis, 11/92, p. 685.
4 The German Government has given an account of this case-law in its observations (sec Part III of its observations).
5 OJ 1984 L 250, p. 17.
6 OJ 1976 L 262, p. 169.
7 The Court also dismissed a (at least in some respects) similar argument by the German Government in its judgment in Case C-238/89 Pall Corp. v P. ]. Dahlbausen [1990] ECR I-4827, which concerned the legality of a ban imposed under Paragraph 3 of the UWG on the marketing of products bearing the symbol (R) next to the trade mark. The Court dismissed the German arguments based on the directive on misleading advertising by stating that since the prohibition at issue nas been found not to be justified by imperative requirements relating to consumer protection or fair trading, it can also find no basis in the aforementioned directive. That directive confines itself to a partial harmonization of the national laws on misleading advertising by establishing, firstly, minimum objective criteria for determining whether advertising is misleading, and, secondly, minimum requirements for the means of affording protection against such advertising. The Court's judgment in Case C-373/90 Complaint against X [1992] ECR I-131, which concerned the legality of advertisements for cars introduced into France by way of parallel imports, cannot be cited in support of the German Government's argument, even though the Court concentrated its reply to the question referred in that case on an interpretation of the directive on misleading advertising. The Court took the view that the question whether the disputed sales practice was consistent with the relevant Community rules was to be understood as a question on the interpretation of the directive on misleading advertising.
8 Judgment in Case C-238/89 Pall Corp. cited above, paragraphs 11 and 12.
9 See the Court's judgment in Case 120/78 Rewe-Zentral v Bundesmonopolverwaltimg für Branntwein [1979] ECR649 and most recently its judgment of 18 May 1993 in Case C-126/91 Schutzverband gegen Unwesen in der Wirtschaft v Yves Rocher, at paragraph 12, which concerns rules in the UWG on comparative advertising.
10 It is appropriate in this connection to refer to Article 2 of Council Directive 79/112/EEC on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (OJ 1979 L 33, p. 1), which provides that products which arc not medicinal products must not under Community law give the impression that they are medicinal products. Article 2 (1) (b) of the directive provides that the labelling and methods of packaging used must not attribute to any foodstuff the property of preventing, treating or curing a human disease, or refer to such properties. I agree with the German Government in its argument that a similar rule must be read into Article 6 (2) of the cosmetics directive.
11 See, most recently, paragraph 12 of the judgment in Case C-126/91 Yves Rocher, cited above in footnote 8.
12 See, for example, the judgment in Case 188/84 Commission v France [1986] ECR 419 (woodworking machines), paragraph 15.
13 See the written observations of the defendants, p. 9, section II (3) (b).
14 As already pointed out in footnote 6, the Court has interpreted the directive in its judgment in Case C-373/90 Complaint against X [1992] ECR I-131. So far as I can see, the interpretation given there is of only limited relevance to the present case.