Parfumerie Akzente (Electronic commerce - Information society services - Online promotion and sale of cosmetic products - Judgment) [2024] EUECJ C-88/23 (19 September 2024)

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( Reference for a preliminary ruling – Electronic commerce – Information society services – Directive 2000/31/EC – Coordinated field – Article 2(h) – Online promotion and sale of cosmetic products – Exclusion from the coordinated field of labelling obligations applicable to products promoted and sold by an information society service provider – Directive 75/324/EEC – Article 8(2) – Regulation (EC) No 1223/2009 – Article 19(5) – Option for the Member State of destination to enforce use of a language of its choice )

REQUEST for a preliminary ruling under Article 267 TFEU from the Svea hovrätt, Patent- och marknadsöverdomstolen (Svea Court of Appeal, Patent and Commercial Court of Appeal, Stockholm, Sweden), made by decision of 13 February 2023, received at the Court on 15 February 2023, in the proceedings

composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Third Chamber, N. Piçarra, N. Jääskinen and M. Gavalec (Rapporteur), Judges,

having regard to the written procedure and further to the hearing on 13 March 2024,

– Parfümerie Akzente GmbH, by P. Järvengren Gerner and T. Kronhöffer, advokater,

– the European Commission, by P.-J. Loewenthal, U. Małecka, N. Ruiz García and A. Sävje, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 6 June 2024,

1 This request for a preliminary ruling concerns the interpretation of Article 2(h)(ii) and Article 3(2) and (4) 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’) (OJ 2000 L 178, p. 1), 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 (OJ 1975 L 147, p. 40), as amended by Commission Directive (EU) 2016/2037 of 21 November 2016 (OJ 2016 L 314, p. 11) (‘Directive 75/324’), 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 (OJ 2009 L 342, p. 59).

2 The request has been made in proceedings between KTF Organisation AB (‘KTF’) and Parfümerie Akzente GmbH with a view, in particular, to prohibiting the latter from marketing in Sweden cosmetic products that are not labelled in the Swedish language.

‘(11) This Directive is without prejudice to the level of protection for, in particular, public health and consumer interests, as established by Community acts; amongst others, Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [(OJ 1993 L 95, p. 29)] and Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts [(OJ 1997 L 144, p. 19)] form a vital element for protecting consumers in contractual matters; those Directives also apply in their entirety to information society services; that same Community acquis, which is fully applicable to information society services, also embraces in particular Council Directive 84/450/EEC of 10 September 1984 [relating to the approximation of the laws, regulations and administrative provisions of the Member States] concerning misleading and comparative advertising [(OJ 1984 L 250, p. 17), as amended by Directive 97/55/EC of [the] European Parliament and of the Council of 6 October 1997 (OJ 1997 L 290, p. 18)]. … [T]his Directive should be without prejudice to … directives on the protection of public health; this Directive complements information requirements established by the abovementioned Directives and in particular Directive [97/7].

(21) … [T]he coordinated field covers only requirements relating to on-line activities such as on-line information, on-line advertising, on-line shopping, on-line contracting and does not concern Member States’ legal requirements relating to goods such as safety standards, labelling obligations, or liability for goods, or Member States’ requirements relating to the delivery or the transport of goods, including the distribution of medicinal products; …

(24) In the context of this Directive, notwithstanding the rule on the control at source of information society services, it is legitimate under the conditions established in this Directive for Member States to take measures to restrict the free movement of information society services.’

4 Article 1 of Directive 2000/31, entitled ‘Objective and scope’, provides, in paragraph 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.’

‘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;

‘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.

4. Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled:

‘1. Without prejudice to Regulation (EC) No 1272/2008 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)], 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 following particulars in visible, legible and indelible characters:

(a) the name and address or trade mark of the person responsible for marketing the aerosol dispenser,

(b) the symbol “3” (inverted epsilon) certifying conformity with the requirements of this Directive,

2. 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.’

8 The annex to Directive 75/324 provides, in point 2.2. thereof, entitled ‘Labelling’:

‘Without prejudice to Regulation … No 1272/2008, each aerosol dispenser must visibly bear the following legible and indelible marking:

(d) where the aerosol dispenser is a consumer product, the precautionary statement P102 provided for in Part 1, Table 6.1 of Annex IV to Regulation … No 1272/2008;

(e) any additional operating precautions which alert consumers to the specific dangers of the product; if the aerosol dispenser is accompanied by separate instructions for use, the latter must also reflect such operating precautions.’

‘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:

The provision of warnings shall not exempt persons defined in Articles 2 and 4 from compliance with the other requirements laid down in this Regulation.’

‘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:

(c) the date until which the cosmetic product, stored under appropriate conditions, will continue to fulfil its initial function and, in particular, will remain in conformity with Article 3 (“date of minimum durability”).

(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;

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.

11 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, however, according to the law, adopt a measure restricting free movement in respect of such a service if necessary to protect

Such a measure must target a specific service, which undermines or is likely to seriously undermine one of those protected interests. The measure shall be proportionate to the interest to be protected.’

12 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 the Kingdom of Sweden, including where those services are intended, in whole or in part, for recipients established in a different State of the EEA.

The dispute in the main proceedings and the questions referred for a preliminary ruling

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

14 The company KTF is a trade association for undertakings which import, produce and market cosmetic and hygiene products to which it provides a wide variety of services. In February 2020, that association brought an action against Parfümerie Akzente before the Patent- och marknadsdomstolen (Patent and Commercial Court, Sweden) with a view to prohibiting the latter, subject to a financial penalty, from engaging in unfair practices consisting, first, in using 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 legislation transposing Directive 75/324, and, thirdly, in marketing certain cosmetic products, in particular those for bleaching and dyeing hair, which are not labelled in Swedish either, in breach, inter alia, of Article 19(1)(d) of, and Annex III to, Regulation No 1223/2009.

15 However, Parfümerie Akzente, which acknowledges that it promoted and sold products that were not labelled in Swedish, submits that Directive 2000/31 precludes an information society service provider from being subject to rules that are stricter than those of the State in which it is established.

16 By judgment of 24 September 2021, the Patent- och marknadsdomstolen (Patent and Commercial Court) found that the contested promotional practices constituted an unfair practice and, consequently, pursuant to the Swedish rules on commercial practices, prohibited Parfümerie Akzente from making use of them.

17 However, that court noted that Parfümerie Akzente had not stated the reasons why the Swedish legislation on commercial practices was more restrictive than Directive 2005/29/EC 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), or German substantive law.

18 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), which is the referring court.

19 In the first place, that court recalls in particular that it follows from Article 3(2) of Directive 2000/31 that that directive prohibits Member States from restricting, for reasons falling within the coordinated field, the freedom to provide information society services from another Member State. It also follows from the judgment of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685, paragraphs 53 to 68), that Member States must ensure that the provider of such services is not, unless expressly permitted by Article 3(4) of that directive, made subject to stricter requirements than those provided for by the substantive law in the Member State in which that provider is established.

20 With regard to service providers established outside Sweden, the first subparagraph of Paragraph 3 of the Law on electronic commerce, which transposes Article 3(2) of Directive 2000/31, deviates from the latter provision. Thus, the first subparagraph of Paragraph 3 of that law does not mention, first, that the Swedish rules falling within the coordinated field cannot restrict the free movement of information society services from another Member State and, secondly, that the Swedish rules can be applied as long as they are not stricter than those provided for by the substantive law of the Member State in which the service provider is established.

21 Admittedly, if the first subparagraph of Paragraph 3 of the Law on electronic commerce were to be interpreted as meaning that a foreign operator may freely offer its services for sale in Sweden, without Swedish rules preventing it, such an implementation of Article 3(2) of Directive 2000/31 would be consistent with the judgment of 25 October 2011, eDate Advertising and Others (C‑509/09 and C‑161/10, EU:C:2011:685).

22 Such an interpretation would, however, affect the implementation of Directive 2005/29, in so far as it would imply not applying the Swedish rules transposing the latter directive to the service provider established in another Member State from which it provides information society services. Furthermore, the competitors of such a service provider or consumer associations which consider themselves harmed by certain online commercial practices would have to turn to the courts and other authorities of the State where that service provider is established in order to assert their rights in another language than theirs and by applying the substantive law of another Member State. Such a prospect would affect the objective of ensuring a high common level of consumer protection, pursued by Directive 2005/29.

23 In the second place, the referring court stresses that it follows from Article 2(h) of Directive 2000/31, read in conjunction with recital 21 thereof, that the coordinated field does not cover Member States’ requirements relating to goods, such as standards on safety, labelling, delivery and the transport of those goods. The national rules relating to the conditions under which a product sold online may be delivered in the territory of a Member State therefore fall outside the scope of that directive.

24 However, neither Directive 2000/31 nor the Court’s case-law specify the rules to be applied where the online promotion and sale concern products allegedly labelled in a manner that does not comply with the requirements applicable to those goods as such in the Member State of the consumer who purchases them. The question therefore arises whether the coordinated field, within the meaning of Directive 2000/31, covers requirements relating to the online promotion and sale of a product which allegedly does not meet the requirements applicable to the product as such.

25 The referring court observes that, while the requirements imposed for the delivery and for the product as such must be excluded from the coordinated field under Article 2(h)(ii) of Directive 2000/31, as interpreted in the judgment of 2 December 2010, Ker-Optika (C‑108/09, EU:C:2010:725), the judgment of 1 October 2020, A (Advertising and sale of medicinal products online) (C‑649/18, EU:C:2020:764, paragraphs 54 to 59), suggests, however, that an inseparable and ancillary element of the online sales service may fall within the coordinated field, even if that element, considered in isolation, falls outside the scope of that directive.

26 Furthermore, in the case of online sales exclusively intended for consumers in another Member State in which the service provider is not established, if the coordinated field were to cover the requirements applicable to online promotion and sale, but not those relating to delivery or to the product as such, the different stages of the marketing of that product could be subject to the rules of different Member States. The objective of Directive 2000/31, which is to remove legal uncertainty and promote free movement, in particular as regards online sales, would then be disregarded.

27 Lastly, the referring court notes that the provisions of other EU legislation, such as Article 8(2) of Directive 75/324 and Article 19(5) of Regulation No 1223/2009, lay down conditions which a product must satisfy in order to be placed on the market or supplied to end users in their Member State.

28 In those circumstances, the Svea hovrätt, Patent- och marknadsöverdomstolen (Svea Court of Appeal, Patent and Commercial Court of Appeal, Stockholm) decided to stay the 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 Question 2 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 Questions 2 and 3?’

29 By its second to fourth questions, which should be examined at the outset and together, the referring court asks, in essence, whether the second indent of Article 2(h)(i) of Directive 2000/31 must be interpreted as meaning that the concept of ‘coordinated field’ includes the requirements concerning the labelling of products promoted and sold on the website of an information society service provider, and which are imposed by the Member State in whose territory the consumers targeted by those online marketing measures are located, on the ground that those requirements, which arise from the implementation of sectoral EU rules to which the placing on the market or supply to end users of those products is subject, constitute an element that is ancillary to and inseparable from the online promotion and sale of those products.

30 As is apparent from recital 24 of Directive 2000/31, that directive is based on the rule on the control at source of information society services. It follows, first, that under Article 3(1) of that directive, ‘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.’ Secondly, under Article 3(2), ‘Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.’ Article 3(4), however, allows Member States, under certain conditions, to ‘take measures to derogate from paragraph 2 in respect of a given information society service’.

31 Under the first part of Article 2(h) of that directive, the ‘coordinated field’ means the ‘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’.

32 The second indent of Article 2(h)(i) of Directive 2000/31 states that the ‘coordinated field’ includes, in particular, requirements relating to the pursuit of the activity of an information society service, such as those regarding the quality or content of the service, including those applicable to advertising. However, under the first indent of Article 2(h)(ii) of that directive, requirements applicable to goods as such are excluded from that field.

33 In that regard, it is important to note that a product’s labelling, like its packaging, shape or composition, constitutes a requirement applicable to goods as such (see, to that effect, judgments of 24 November 1993, Keck and Mithouard, C‑267/91 and C‑268/91, EU:C:1993:905, paragraph 15, and of 6 July 1995, Mars, C‑470/93, EU:C:1995:224, paragraph 12). Likewise, recital 21 of Directive 2000/31, in the light of which the first indent of Article 2(h)(ii) thereof must be interpreted, classifies labelling obligations among the requirements applicable to goods. Accordingly, labelling obligations are excluded from the scope of the coordinated field.

34 That interpretation cannot be called into question by the judgment of 1 October 2020, A (Advertising and sale of medicinal products online) (C‑649/18, EU:C:2020:764, paragraph 59), by which the Court held that advertising carried out by means of both electronic and physical media ‘constitute[d] 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 [that] directive’.

35 Unlike the situation examined by the Court in paragraphs 55 to 59 of that judgment, under the first indent of Article 2(h)(ii) of Directive 2000/31, as clarified by recital 21 thereof, the EU legislature expressly intended, as was emphasised in paragraph 33 of the present judgment, to exclude from the coordinated field the requirements applicable to goods as such, which include labelling obligations.

36 Therefore, unless the express intention of the EU legislature is contravened, the labelling obligations applicable to products promoted and sold online cannot be considered to fall within the coordinated field.

37 It follows from the above that an information society service provider is subject, first, to Directive 2000/31, as regards in particular the requirements relating to online advertising, and, secondly, to the provisions of EU law which give concrete form to the labelling obligations of the products which it offers for sale on its website.

38 That interpretation ensures consumer protection since each Member State concerned is able to ensure directly compliance within its territory with the rules governing product labelling.

39 In that regard, it should also be noted that, as follows from Article 1(3) of Directive 2000/31, read in the light of recital 11 thereof, that directive is without prejudice to the level of protection for, in particular, public health and consumer interests, as established by EU acts, which must be applied, in their entirety, to information society services.

40 Since the requirements applicable to goods as such, in particular those relating to their labelling, are excluded from the coordinated field within the meaning of Article 2(h) of Directive 2000/31, they must be sought, in the context of the dispute in the main proceedings, in Directive 75/324 and Regulation No 1223/2009.

41 Those two acts of secondary legislation allow Member States to impose, within their territory, compliance with a given language. It is apparent from Article 8(2) of Directive 75/324 that ‘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’. Article 19(5) of Regulation No 1223/2009 provides that the language of the information mentioned, in particular in points (c), (d) and (f) of Article 19(1) of that regulation, namely the date of minimum durability, the special precautions for use and the function of the cosmetic product, is to ‘be determined by the law of the Member States in which the product is made available to the end user’.

42 As the Court has already held in relation to Article 19(5) of Regulation No 1223/2009, the protection of human health cannot be comprehensively ensured unless consumers are fully informed about and understand, in particular, the information about the function of the cosmetic product concerned and the particular precautions to be observed in use. The information which producers or distributors of the cosmetic products covered by that regulation 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 provided in a language which can be understood by the persons for whom it is intended (judgment of 17 December 2020, A.M. (Labelling of cosmetic products), C‑667/19, EU:C:2020:1039, paragraph 47).

43 Article 8(2) of Directive 75/324 requires Member States which exercise the option laid down in that provision to ensure that the entire label of an aerosol dispenser is written in the relevant national language(s). By contrast, with regard to cosmetic products, only 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.

44 However, the information society service provider may, if it so wishes, also ensure the translation, into the consumer’s language, of information the translation of which is not made mandatory by that provision (see, by analogy, judgment of 3 June 1999, Colim, C‑33/97, EU:C:1999:274, paragraph 42).

45 In those circumstances, it must be held that Article 2(h) of Directive 2000/31 must be interpreted as meaning that the concept of ‘coordinated field’ does not include requirements concerning the labelling of products promoted and sold on the website of an information society service provider and which are imposed by the Member State in whose territory the consumers targeted by those online marketing measures are located.

46 In view of the answer given to the second to fourth questions, there is no longer any need to answer the first question, since it is based on the premiss that the Swedish regulations relating to the labelling of aerosol dispensers and cosmetic products fall within the coordinated field, within the meaning of Article 2(h) of Directive 2000/31.

47 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

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 concept of ‘coordinated field’ does not include requirements concerning the labelling of products promoted and sold on the website of an information society service provider imposed by the Member State in whose territory the consumers targeted by those online marketing measures are located.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Parfumerie Akzente (Electronic commerce - Information society services - Online promotion and sale of cosmetic products - Judgment) [2024] EUECJ C-88/23 (19 September 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C8823.html Cite as: [2024] EUECJ C-88/23, ECLI:EU:C:2024:765, EU:C:2024:765

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