A.M. (Etiquetage des produits cosmetiques) (Approximation of laws - Cosmetic products - Protection of human health - Opinion) [2020] EUECJ C-667/19

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(Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Regional Court in Warsaw, Poland))

(Reference for a preliminary ruling — Approximation of laws — Cosmetic products — Regulation (EC) No 1223/2009 — Article 19 — Consumer information — Labelling — Information that must appear on the container and packaging — Function of the cosmetic product — Protection of human health — Information that may appear on an enclosed or attached leaflet, label, tape, tag or card — Labelling in a foreign language — Cosmetic product packaging which contains a reference to a product catalogue drafted in the language of the consumer)

1. This reference for a preliminary ruling seeks an interpretation of Article 19 of Regulation (EC) No 1223/2009 (2) on the labelling of cosmetic products.

– what is meant by ‘function of the product’ as an item of information which must compulsorily appear on the container and packaging of a cosmetic made available on the market; and

– whether certain items of consumer information, also compulsory, may appear only in a manufacturer’s catalogue which is not always included with the cosmetic product purchased.

3. To date, the Court has had occasion to rule (3) on other articles of Regulation No 1223/2009 but not, unless I am mistaken, on the specific requirements of Article 19(1) and (2).

4. However, Regulation No 1223/2009 recast the directives which had previously regulated this field. (4) The case-law on the labelling rules that were contained in those directives (5) provides some useful pointers as to the reply to be given to this request for a preliminary ruling.

‘This Regulation establishes rules to be complied with by any cosmetic product made available on the market, in order to ensure the functioning of the internal market and a high level of protection of human health’.

a) “cosmetic product” means any substance or preparation intended for placing in contact with the various external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or principally to cleaning them, perfuming them or protecting them in order to keep them in good condition, change their appearance or correct body odours.

‘A cosmetic product made available on the market shall be safe for human health when used under normal or reasonably foreseeable conditions of use, taking account, in particular, of the following:

‘1. Without prejudice to other provisions in this Article, cosmetic products shall be made available on the market only where the container and packaging of cosmetic products bear the following information in indelible, easily legible and visible lettering:

d) 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;

f) the function of the cosmetic product, unless it is clear from its presentation;

g) a list of ingredients. This information may be indicated on the packaging alone. The list shall be preceded by the term “ingredients”.

2. Where it is impossible for practical reasons to label the information mentioned in points (d) and (g) of paragraph 1 as provided, the following applies:

– the information shall be mentioned on an enclosed or attached leaflet, label, tape, tag or card;

– unless impracticable, this information shall be referred to by abbreviated information or the symbol given in point 1 of Annex VII, which must appear on the container or packaging for the information referred in point (d) of paragraph 1 and on packaging for the information referred in point (g) of paragraph 1.

5. The language of the information mentioned in points (b), (c), (d) and (f) of paragraph 1 and in paragraphs (2), (3) and (4) shall be determined by the law of the Member States in which the product is made available to the end user.

‘1. 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.

B. Polish law. Ustawa o kosmetykach z dnia 30 marca 2001 r. (Law on cosmetic products of 30 March 2001)

– The individual packaging of a cosmetic product must be visibly and legibly labelled by a method which ensures that the labelling cannot be easily removed (paragraph 1).

– According to paragraph 2, the labelling of the individual packaging of a cosmetic product, as it appears on the container and on the individual outer packaging, must, as a rule, include, inter alia, the following information:

– The particular precautions for use of the cosmetic product, where this is intended to be used in a professional context in accordance with its intended purpose, as well as other necessary precautions;

– The function of the cosmetic product, where this is not clear from its presentation;

– A list of ingredients defined in accordance with the descriptions of the International Nomenclature of Cosmetic Ingredients (INCI), preceded by the term ‘ingredients’, detailing the form in which they are expressed according to their concentration and type.

– Indications relating to the list of ingredients may appear only on the individual outer packaging of the cosmetic product (paragraph 4).

– Where, owing to the size or shape of the packaging, the indications relating to the particular precautions for use of the product and the list of ingredients cannot be included on the individual outer packaging, these may appear on a leaflet, label, tape or card enclosed with the product. In such cases, the container or individual outer packaging must bear an abbreviated formulation or graphic symbol indicating that the information in question is enclosed with the product (paragraph 6).

– If, owing to the size or shape of the packaging, the indications relating to the list of ingredients cannot be included in a leaflet, label, tape or card enclosed with the product, these must be displayed on the container itself or in a place at the location where the cosmetic product is offered for sale that is accessible to the purchaser (paragraph 7).

12. A.M., who is the owner of a beauty salon, has a business relationship with E.M., which distributes cosmetic products manufactured by a company based in the United States.

13. In the course of that business relationship, E.M. provided A.M. with training in those products, including on matters relating to their labelling. (6)

14. Further to that training, on 28 and 29 January 2016, A.M. purchased from E.M. 40 units of retail sales leaflets, 10 catalogues and various products (creams, facial masks and powders). (7)

15. The packaging of the cosmetics purchased bore details of the responsible entity, the original name of the product, its ingredients, expiry date and serial number, and a graphic symbol (‘hand with a book’) referring to the catalogue.

16. A.M. applied to the Sąd Rejonowy dla m. st. Warszawy w Warszawie (District Court for the Capital City of Warsaw in Warsaw, Poland) to have the contract of sale terminated on the ground that the items sold were defective. She claimed that the packaging did not contain information in Polish on the function of the product, which made it impossible to identify what the product was and what its effects were, and that these details were not readily apparent from the presentation. This constituted an infringement of the rules applicable in Poland to the trade in cosmetics, which are the same as those laid down in Article 19 of Regulation No 1223/2009.

17. In objecting to the application, E.M. maintained that the products had been labelled in accordance with the national provisions in force, since they displayed a symbol (‘a hand with a book’) referring to a catalogue supplied with each cosmetic. That catalogue provided, in Polish, a full presentation of the products and their functions, set out their contraindications, explained how to use them and listed their ingredients. Article 19 of Regulation No 1223/19 had therefore been complied with.

18. The Sąd Rejonowy dla m. st. Warszawy w Warszawie (District Court for the Capital City of Warsaw in Warsaw) dismissed the application, pursuant to the articles of the Polish Civil Code (8) relating to warranties against defects in goods. (9)

19. A.M. appealed against that judgment to the Sąd Okręgowy w Warszawie (Regional Court in Warsaw, Poland). She argued that the court of first instance had incorrectly assessed the evidence relating to the information provided and pointed out the fact that the packaging did not contain any indication in Polish of the function of the cosmetics. The reference to the catalogue (for which there was a charge) was insufficient given that it was not impossible for that information to be displayed on each of the products.

20. The court called upon to dispose of the appeal asks, first, about the scope of Article 19(1)(f) in conjunction with Article 2(1)(a) of Regulation No 1223/2009. Its uncertainties have to do with the degree of precision of the labelling that must appear on the containers and packaging of cosmetics, the function of such products and the obligation to include information on the function of imported cosmetics in the language of the consumer.

21. In the second place, it asks about the interpretation of Article 19(2) of Regulation No 1223/2009 in conjunction with recital 46 thereof. In particular, it seeks an assurance as to whether a graphic symbol may be used, in accordance with point 1 of Annex VII, in order to comply with the requirements governing certain items of information that must appear on the container and packaging of cosmetic products, and whether it is sufficient for that information to be contained in catalogues produced by the manufacturer which are not provided with the product itself.

22. It is on that basis that the Sąd Okręgowy w Warszawie (Regional Court in Warsaw, Poland) has referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) In so far as it provides that the container and packaging of cosmetic products should bear in indelible, easily legible and visible lettering information as to the function of the cosmetic product, unless it is clear from its presentation, should Article 19(1)(f) of Regulation (EC) No 1223/2009 […] be interpreted as referring to the essential functions of cosmetic products within the meaning of Article 2(1)(a) of the Regulation, that is, cleaning (keeping clean), nurturing and protecting (keeping in good condition), perfuming and beautifying (changing appearance), or should more detailed functions be stated, enabling the properties of the cosmetic product in question to be determined?

(2) Should Article 19(2) and recital 46 of Regulation (EC) No 1223/2009 […] be interpreted as meaning that the information referred to in Article 19(1)(d), (g) and (f), namely, precautions, ingredients and functions, may be stated in a company’s catalogue which also includes other products, by placing the symbol set out in point 1 of Annex VII on the packaging?’

23. The order for reference for a preliminary ruling was registered at the Court of Justice on 1 September 2019.

24. Written observations have been lodged by A.M., the Governments of Belgium, Denmark, Greece, Lithuania, the Netherlands and Poland, and the European Commission. It was not considered necessary to hold a hearing.

25. The issue is whether Article 19(1)(f) of Regulation No 1223/2009 must be interpreted as meaning that the reference in that provision to the ‘function’ of cosmetic products, which must be displayed on the containers (10) or packaging (11) thereof:

– imposes an obligation only to indicate, by way of function, one of the purposes mentioned in Article 2(1)(a) of that regulation; (12) or

– requires the specification of more detailed functions so as to enable the consumer to identify the basic characteristics or properties specific to each product.

1. The function of the product and the purposes listed in the definition of ‘cosmetic product’

26. In accordance with Article 19(1)(f) of Regulation No 1223/2009, cosmetic products ‘shall be made available on the market only where the container and packaging of cosmetic products bear the following information in indelible, easily legible and visible lettering: […] the function of the cosmetic product, unless it is clear from its presentation’. (13)

27. That provision does not define the expression ‘function of the product’ and neither does Article 2 of Regulation No 1223/2009. In explaining the meaning of ‘cosmetic product’, Article 2(1)(a) refers in general terms to its ‘purpose’.

28. Purpose is one of the elements which case-law uses to delimit the concept of ‘cosmetic product’. The Court of Justice has unpicked the meaning of that term by selecting ‘three cumulative criteria: (i) the nature of the product in question (substance or mixture); (ii) the part of the human body with which it is intended to be placed in contact; and (iii) the purpose of its use’. (14)

29. The lack of a precise definition of the concept of ‘function of the product’ prompts the referring court to suggest an equivalence between ‘purpose of the product’ and ‘function of the product’. (15)

30. However, since the wording of Article 19(1)(f) of Regulation No 1223/2009 is inconclusive, we must look beyond the literal meaning of that concept and consider its context and the objectives of the legislation of which it forms part. (16)

31. In Regulation No 1223/2009, Article 19 is located at the start of Chapter VI, devoted to ‘consumer information’, and brings together the rules on labelling which all cosmetics made freely available on the market in the European Union must comply with in order to ensure that persons buying them have the information they need.

32. A combined reading of Article 1 of Regulation No 1223/2009 and recitals 3 and 4 thereof shows that, like the previous legislation, that regulation 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 and, at the same time, ensuring a high level of protection for human health. (17)

33. The protection of human health is the subject of Article 3 of Regulation No 1223/2009. The first paragraph [points (a) and (b)] thereof deal with the presentation and labelling of a cosmetic product in the context of safety for human health.

34. There is therefore a link between the objective of guaranteeing that those products are safe to use and the requirements relating to their presentation and labelling.

35. Article 19 of Regulation No 1223/2009 must be understood from that dual perspective. The rules on the packaging and labelling of cosmetic products:

– help to enable them to be made freely available on the market in the European Union by making it easier for consumers to make their purchasing decisions in a market characterised by a wide range of products and alternatives to choose from;

– serve at the same time to protect individuals’ health, which may be put at risk by insufficient or misleading information on the characteristics of a cosmetic placed on the market. (18)

36. Article 2(1)(a) of Regulation No 1223/2009 pursues a different objective when it refers to the (general) purposes of cosmetics. It does so in order to set out the limits of cosmetic products vis-à-vis other products of varying degrees of similarity (medicinal products, medical devices) which do not fall within its scope. Recital 6 is explicit in this regard. (19)

37. The Commission, with which I concur in this respect, notes in its observations that the examples given in recital 7 of Regulation No 1223/2009 (20) serve to sketch out the concept of cosmetic products and to differentiate them from other products which are not of this nature.

38. The purposes listed in Article 2(1)(a) of Regulation No 1223/2009 are not therefore to be regarded as being identical to the ‘function of the product’ as dealt with in Article 19(1)(f) of the same regulation. Those articles each pursue their own objectives, which are not the same.

39. That proposition is borne out, in my opinion, by an analysis of the origin of Article 19(1)(f) of Regulation No 1223/2009.

40. The initial wording of Directive 76/768 did not provide for an obligation to indicate the function of a cosmetic product either on its packaging or on its containers. The requirement was introduced for the first time in Directive 93/35, which added to Article 6(1) of Directive 76/768 a point (f), which laid down an obligation to specify on the container and the packaging of a cosmetic product the function of that product, unless this was clear from its presentation.

41. The explanatory memorandum to Directive 93/35 explains that ‘greater transparency is needed […] if better information is to be provided to the consumer […] [and] such transparency should be achieved by indication of a product’s function’.

42. Consequently, the aim behind the legislative innovation was concerned not with what defines a product as a cosmetic (this having been based from the outset on its purposes) but with the detailed information to be provided to consumers. (21)

43. From another point of view, it should be determined whether the ‘function of the product’ within the meaning of Article 19(1)(f) of Regulation No 1223/2009 could be aligned with the ‘product claims’ dealt with in Article 20 of that regulation. (22)

44. In accordance with the second paragraph of Article 20 of Regulation No 1223/2009, the Commission was to adopt ‘a list of common criteria for claims which may be used in respect of cosmetic products, in accordance with the regulatory procedure with scrutiny referred to in Article 32(3) of this Regulation, taking into account the provisions of Directive 2005/29/EC’.

45. Such claims now have rules of their own in Regulation (EU) No 655/2013. (23) According to recital 2 thereof, ‘product claims of cosmetic products serve mainly to inform end users about the characteristics and qualities of the products. Those claims are essential ways of differentiating between products. They also contribute to stimulating innovation and fostering competition’.

– It governs not only labelling but also the marketing and advertising of cosmetics.

– It is not confined to text alone but applies also to names, trade marks, pictures or any other sign, figurative or not.

– When prohibiting the attribution to cosmetic products of ‘characteristics or functions’ which they do not have, it uses the term ‘functions’ in the plural.

47. Since the ‘claims’ provided for in Article 20 provide a larger amount of information (‘characteristics or functions’), they are not necessarily identical to the ‘function of the product’ (in the singular) referred to in Article 19(1)(f) of Regulation No 1223/2009.

48. To my mind, what Article 19(1)(f) of Regulation No 1223/2009 seeks to ensure is that the container and the packaging specify the most characteristic ‘function’ of the product, which is to say that which enables the consumer to know at first sight exactly what the product is intended to do, without being harmful to his health.

49. That interpretation is supported by the fact that the description of the function of the cosmetic product may be omitted where ‘it is clear from its presentation’. Obviously, if the consumer knows what the product’s characteristic function is from its presentation alone, then there is no longer any need for that function to be specified on the product container or packaging. (24)

50. Understood in this way, the ‘function’ of a product would come midway between its mere purposes under Article 2(1)(a) of Regulation No 1223/2009 and the more extensive claims under Article 20 thereof:

– It cannot be reduced to expressing whether the product cleans, perfumes, changes the appearance of the body, protects it or keeps it in good condition, or corrects body odours, because those generic purposes of cosmetic products, which distinguish them from other products of varying degrees of similarity, are of minimal informative value to the consumer.

– It does not need to specify all of the characteristics and qualities (claims) of the cosmetic, since their inclusion on the container and the packaging would be excessive from the point of view of the product’s functionality.

51. To set out the ‘function of the product’, within the meaning of Article 19(1)(f) of the Regulation, on its container or packaging is, as I have said, to describe the key characteristic or characteristics enabling the consumer to know what that product is primarily used for. From a broad range of cosmetics, the customer will thus be able to choose, on a fully informed basis, the one that best meets his needs, without being misled and in such a way that his choice will not have adverse effects on his health.

52. Article 19 of the Regulation, as I have already said, requires that the labelling carry a large number of items of information in indelible, easily legible and visible lettering (paragraph 1). It nonetheless recognises that, because of their complexity, some of those items [those provided for in paragraph 1(d) and (g), which have to do with particular precautions to be observed in use and the list of ingredients] may be indicated by other means (paragraph 2).

53. It is significant that the indication of the product’s ‘function’ is not one of the items of information exempt from having to appear on the container and the packaging themselves. (25) Their inclusion on the container and the packaging is compulsory (other than in the situation mentioned above) in any event.

54. The wide variety of cosmetic products falling within the scope of Regulation No 1223/2009 makes it impossible to prescribe a priori how the product’s function is to be indicated on the container and the packaging. Each manufacturer is free to choose the method of providing that information that is best suited to its commercial strategy.

55. It is my view, however, that, in specifying the ‘function’ of the product on the container and packaging, manufacturers must seek to ensure, for practical reasons and in order to attain the objective pursued by Article 19 of Regulation No 1223/2009, that its description is simple, so that the consumer will easily know on sight what the nature of the product is.

56. It is also important to take into account the expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect. (26) The perception of such a consumer assumes ‘normal or reasonably foreseeable conditions of use’, as Article 13 of Regulation No 1223/2009 states in reference to marketing in a manner safe for human health.

57. The characteristics and properties of each product will, on every occasion, be decisive in ensuring that the user is sure of exactly what he is buying. While it is, exceptionally, permissible for containers and packaging not to indicate the function of the product where this is clear from its presentation, (27) in all other cases, the specification of that information is, as I have said, compulsory.

58. In short, everything will depend on the extent of the manufacturer’s ability to condense the characteristic function of the product into a few words, so that people buying it are not liable to be confused and will not put their health at risk by applying (or even ingesting) a cosmetic the nature of which they know nothing about.

59. I would add that Article 19(5) of Regulation No 1223/2009 deals with the language used on labelling. Its objective is to ensure that consumers in the Member State in which the product is marketed receive comprehensible information on its function.

60. It is true that linguistic requirements and the resultant need to adapt the information put on the container and the packaging become ‘an obstacle to intra-Community trade’. That obstacle is, however, ‘justified by the public interest objective of protecting public health’. (28)

61. The ‘function of the product’ must therefore appear on the container and the packaging, in the language prescribed by the legislation of the Member State in which the product is marketed, irrespective of the costs and difficulties associated with translation or the relabelling of imported cosmetics.

62. As I have said again and again, Article 19(1) of Regulation No 1223/2009 provides that the items of information to which it refers (29) must, as a matter of principle, appear on the container and the packaging.

63. In keeping with recital 46, (30) Article 19(2) nonetheless allows information relating to ingredients and certain particular precautions to be observed in use [paragraph 1(d) and (g)], to appear, by way of exception, (31) somewhere other than on the container and the packaging.

64. In those two situations, (32) the information in question must be mentioned on a ‘leaflet, label, tape, tag or card [enclosed in or attached to the product]’. (33)

65. The precondition for the application of that exception is that ‘it is impossible for practical reasons to label the information mentioned in points (d) and (g)’. Where this is the case, that provision allows such information to be included on one of the other media, which I have just listed. (34)

66. In the case in the main proceedings, it is for the referring court, after establishing the facts, which it is itself best placed to assess, to determine whether the inclusion of items of information in a catalogue written in Polish complies with the aforementioned rules.

67. I agree with the governments which have intervened in these proceedings, and with A.M. and the Commission, that all of the evidence indicates that that catalogue does not satisfy the requirements of Article 19(2) of Regulation No 1223/2009.

69. In the first place, the Court has held that the ‘practical impossibility’ [of complying with the labelling rules] derives from an insurmountable technical difficulty associated, for example, with the size of the container or the packaging. (35) The national court describes the difficulties in this case, on the other hand, as being ones that arise from the fact that the cosmetics are imported, are of a financial and organisational nature and have to do with the translation of information and relabelling operations.

70. Additional proof that that impossibility does not exist is the fact, noted by the Danish Government, that the required information was duly marked on the packaging and the container, but in English and not in Polish, according to the order for reference.

71. In the second place, even if it is assumed (quod non) that that practical impossibility is present here, the catalogue in question is described as an item which is provided separately and, for that reason, could not even be regarded as a document ‘enclosed [in] or attached’ to the product sold. (36)

72. In the third place, the catalogue appears to contain a description of the products from the range offered by the manufacturer and is not therefore exclusively associated with any particular one of them. In those circumstances, a consumer consulting it might be at risk of making an erroneous choice as a result of confusing one product with another.

73. In short, although it is for the referring court to rule on the relevant matters of fact, I take the view that, in the circumstances of this dispute, the reference to the ‘company catalogue’ does not comply with Article 19(2) of Regulation No 1223/2009.

74. In the light of the foregoing, I propose that the answer to the questions referred for a preliminary ruling by the Sąd Okręgowy w Warszawie (Regional Court in Warsaw, Poland) should be as follows:

‘(1) Article 19(1)(f) of Regulation (EC) No 1223/2009 of the European Parliament and of the Council of 30 November 2009 on cosmetic products must be interpreted as meaning that the ‘function of the product’ is not synonymous with the purposes mentioned in the definition contained in Article 2(1)(a) of that regulation. The description of that function on the container and the packaging must express the key characteristic or characteristics of the product, so as to enable the consumer to know at first sight what it is primarily intended or to be used for.

(2) Article 19(2) of Regulation No 1223/2009 must be interpreted as meaning that it is not possible to provide the information mentioned in paragraph 1(d), (g) and (f) of that article, relating to precautions to be observed in use, the function of the product and the list of ingredients, in a company catalogue which is supplied independently of the cosmetic product sold and also includes other products, and to mark on the packaging only the symbol provided for in point 1 of Annex VII to the Regulation.’

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

3 Judgments of 3 September 2015, Colena (C‑321/14, EU:C:2015:540), concerning the classification of contact lenses as cosmetic products; of 21 September 2016, European Federation for Cosmetic Ingredients (C‑592/14, EU:C:2016:703), concerning ingredients in those products which have been the subject of animal testing; and of 12 April 2018, Fédération des entreprises de la beauté (C‑13/17, EU:C:2018:246), concerning the classification of the persons who evaluate such products.

4 Namely, Council Directive 76/768/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to cosmetic products (OJ 1976 L 262, p. 169), as amended by Council Directive 93/35/EEC of 14 June 1993 amending for the sixth time Directive 76/768 (OJ 1993 L 151, p. 32).

5 Among others, the judgments of 28 January 1999, Unilever (C‑77/97, EU:C:1999:30); of 13 January 2000, Estée Lauder (C‑220/98, EU:C:2000:8); of 13 September 2001, Schwarzkopf (C‑169/99, ‘the judgment in Schwarzkopf’, EU:C:2001:439); and of 24 October 2002, Linhart and Biffl (C‑99/01, EU:C:2002:618).

6 A.M. was shown how all the products worked by means of documentation written in Polish and leaflets for use in connection with the retail sale of each product. She received the training documents and was told that each cosmetic had printed upon it a ‘hand with a book’ symbol referring to a separate company catalogue written in Polish (the products were from the US), there being no Polish translation of the text on the labels.

8 Law of 23 April 1964 on the Civil Code, as amended (ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny) (Dz.U. de 2018, poz. 1025).

9 In its judgment, it held that, the applicant having acknowledged that the two parties had dealt with each other previously, her argument that she was unaware that the goods were not labelled in Polish until she received them was not credible.

10 ‘Containers’ usually consist of glass bottles, acrylic or aluminium jars, plastic tubes, sprays, aerosols, hand dispensers and other utensils of varying degrees of similarity in which cosmetic products are stored so that they can be kept stable over time without degradation.

11 The ‘packaging’ of a cosmetic refers to the outer wrapping (a box or other similar item) within which the container or the product itself is placed. The judgment of 12 July 2011, L’Oréal and Others (C‑324/09, EU:C:2011:474, paragraph 82), uses the term ‘[outer] packaging’. Advocate General Jääskinen, in his Opinion in that case (C‑324/19, EU:C:2010:757, points 72 and 74), also spoke of ‘outer packaging’.

12 Those purposes are, in relation to the external parts of the human body or the teeth and the mucous membranes of the oral cavity, to: ‘clean[…] them, perfume[e] them, chang[e] their appearance, protect[…] them, keep[…] them in good condition or correct[…] body odours’.

13 There is a disparity between the various language versions here. While the French, English and Portuguese versions, for example, include the adverb ‘clearly’ [or adjective ‘clear’] (sauf si cela ressort clairement de sa présentation; unless it is clear from its presentation; salvo se esta decorrer claramente da respectiva apresentação), the Spanish, Italian and German versions do not (salvo se risulta dalla sua presentazione; sofern dieser sich nicht aus der Aufmachung dessen ergibt). I do not consider these discrepancies to be relevant to this case, however.

14 Judgment of 3 September 2015, Colena (C‑321/14, EU:C:2015:540, paragraph 19).

15 Only the Polish Government supports that proposition, by stating that the function of the product is synonymous with one of the purposes listed in Article 2(1)(a) of Regulation No 1223/2009.

16 Judgment of 10 July 2014, D. and G. (C‑358/13 and C‑181/14, EU:C:2014:2060, paragraph 32), and the case-law cited.

17 Judgments in Schwarzkopf, paragraphs 27 and 28; and of 24 January 2008, Roby Profumi (C‑257/06, EU:C:2008:35, paragraphs 16 and 17). In relation to Regulation No 1223/2009, judgment of 12 April 2018, Fédération des entreprises de la beauté (C‑13/17, EU:C:2018:246, paragraphs 23 to 25 and the case-law cited).

18 Judgment of 2 February 1994, Verband Sozialer Wettbewerb (C‑315/92, EU:C:1994:34, paragraph 15).

19 ‘This Regulation relates only to cosmetic products and not to medicinal products, medical devices or biocidal products. The delimitation follows in particular from the detailed definition of cosmetic products, which refers both to their areas of application and to the purposes of their use’.

20 ‘Cosmetic products may include creams, emulsions, lotions, gels and oils for the skin, face masks, tinted bases (liquids, pastes, powders), make-up powders, after-bath powders, hygienic powders, toilet soaps, deodorant soaps, perfumes, toilet waters and eau de Cologne, bath and shower preparations (salts, foams, oils, gels), depilatories, deodorants and anti-perspirants, hair colorants, products for waving, straightening and fixing hair, hair-setting products, hair-cleansing products (lotions, powders, shampoos), hair-conditioning products (lotions, creams, oils), hairdressing products (lotions, lacquers, brilliantines), shaving products (creams, foams, lotions), make-up and products removing make-up, products intended for application to the lips, products for care of the teeth and the mouth, products for nail care and make-up, products for external intimate hygiene, sunbathing products, products for tanning without sun, skin-whitening products and anti-wrinkle products’.

21 In interpreting Article 6(1) of Directive 76/768, the Court pointed the ‘function of the product’ in this direction, associating it with the conditions of its use [judgment of 12 July 2011, L’Oréal and Others (C‑324/09, EU:C:2011:474, paragraph 76)].

22 Although the referring court does not cite it, this is the article in which Regulation No 1223/2009 provides the options to which that court refers in its order. The Commission addresses them in its observations.

23 Commission Regulation 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).

24 This may be the case with certain forms of particularly simple or unmistakably shaped cosmetics. In its observations (paragraph 25), Denmark mentions lipsticks as an example.

25 If it only appeared on the packaging and not on the container, then, when the container is thrown away, the consumer would no longer be able to ascertain the product’s function, which would entail risks in relation to the product’s further use.

26 Judgments of 13 January 2000, Estée Lauder (C‑220/98, EU:C:2000:8, paragraph 27); and of 24 October 2002, Linhart and Biffl (C‑99/01, EU:C:2002:618, paragraph 31).

28 Judgment in Schwarzkopf, paragraph 39. In paragraph 40, the Court explains that ‘the information which producers or distributors of cosmetic products covered by the amended Directive 76/768 are obliged to put on the product’s container and packaging, save where it can be effectively conveyed by the use of pictogrammes or signs other than words, will be of no practical use unless it is given in a language which can be understood by the persons for whom it is intended’.

29 These include the identity of the person responsible for marketing, the composition of the product (content and list of ingredients), advice on how to use the product (function and particular precautions to be observed in use) or keep it (date of minimum durability) and the batch number of manufacture or the reference number for identifying the product (this may, in special circumstances, appear on the packaging alone).

30 According to this recital, there must be an ‘indication of the ingredients used in a cosmetic product on its packaging. Where for practical reasons it is impossible to indicate the ingredients on the packaging, such information should be enclosed so that the consumer has access to this information’.

31 Such exceptions must, by definition, be construed strictly (judgment in Schwarzkopf, paragraph 31).

32 Article 19(3) of Regulation No 1223/2009 creates an exception to an exception in respect of ingredients, in the case where, for practical reasons, it is not even possible to use the option provided for in paragraph 2. In those circumstances, the information may appear ‘on a notice in immediate proximity to the container in which the cosmetic product is exposed for sale’. The referring court’s uncertainties do not relate to the specification of ingredients but are confined to whether, in the case in the main proceedings, a catalogue may act as a ‘leaflet, label, tape, tag or card [enclosed in or attached to the product]’.

33 Once again, there are linguistic discrepancies in the wording of the provision. Thus, the French, German, Italian and Portuguese versions refer to the ‘product’, whereas the Spanish and English versions do not, although it is understood.

34 The consumer is alerted to the fact that there is a ‘reference to enclosed or attached information’ by the printing of the symbol of a hand pointing to an open book (see Annex VII, to which Article 19(2) of Regulation No 1223/2009 refers).

35 This arises in ‘… cases where it would be objectively possible to provide the prescribed warnings in full but only at the price of using characters so small that they would be almost illegible and where full warnings, printed in legible characters, would cover almost all the product so that the producer could no longer put the product’s name and other relevant information on the product in a useful way’ (judgment in Schwarzkopf, paragraphs 32 and 33).

36 It appears from the order for reference that the catalogue had to be consulted at the point of sale or bought separately. As the Italian Government states, it is doubtful whether the number of catalogues purchased (10), according to that order, would be enough for one to be supplied with every product unit.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> A.M. (Etiquetage des produits cosmetiques) (Approximation of laws - Cosmetic products - Protection of human health - Opinion) [2020] EUECJ C-667/19_O (09 July 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/C66719_O.html Cite as: [2020] EUECJ C-667/19_O, ECLI:EU:C:2020:554, EU:C:2020:554

Court of Justice of the European Communities (including Court of First Instance Decisions)