Opinion of Mr Advocate General Gulmann delivered on 29 September 1993

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.