OPINION OF ADVOCATE GENERAL
CAMPOS SÁNCHEZ-BORDONA
delivered on 9 July 2020 (1)
Case C‑667/19
A.M.
v
E.M.
(Request for a preliminary ruling from the Sąd Okręgowy w Warszawie (Regional Court, 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.
2. There are, in particular, two matters in issue:
– 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.
I. Legal framework
A. EU law. Regulation No 1223/2009
5. Article 1 (‘Scope and objective’) provides:
‘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’.
6. Article 2(1) (‘Definitions’) reads:
‘For the purposes of this Regulation, the following definitions shall apply:
(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.
…’
7. Article 3 (‘Safety’) provides:
‘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:
(a) presentation …;
(b) labelling;
…’
8. Article 19 (‘Labelling’) states:
‘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.
…’
9. Article 20 (‘Product claims’) provides:
‘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.
…’
10. Annex VII (‘Symbols used on packaging/container’) states:
‘1. Reference to enclosed or attached information:
…’
B. Polish law. Ustawa o kosmetykach z dnia 30 marca 2001 r. (Law on cosmetic products of 30 March 2001)
11. The various paragraphs of Article 6 contain the following provisions:
– 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).
II. Facts and questions referred
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 1223/2009 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, 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, Warsaw) 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?’
III. Procedure before the Court of Justice
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.
IV. Assessment
A. First question referred
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)
2. ‘Function of the product’ and ‘product claims’
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’.
46. Article 20(1) of Regulation No 1223/2009 has a very extensive scope:
– 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.
3. Function of the product
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.
B. Second question referred
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.
68. That assessment is supported by several arguments.
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.
V. Conclusion
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, 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.