Unione Nazionale Industria Conciaria (UNIC) and Unione Nazionale dei Consumatori di Prodotti in Pelle, Materie Concianti, Accessori e Componenti (Uni.co.pel) v FS Retail and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2015:270
• Docket Number: C-95/14
• Date: 23 April 2015
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 23 April 2015 ( 1 )

Case C‑95/14

Unione nazionale industria conciaria (UNIC)

Unione Nazionale dei Consumatori di Prodotti in Pelle, Materie Concianti, Accessori e Componenti (UNI.CO.PEL)

v

FS Retail

Luna srl

Gatsby srl

(Request for a preliminary ruling from the Tribunale di Milano (Italy))

‛Labelling obligation indicating the origin of goods — National legislation requiring the country of origin to be shown on the label relating to products manufactured abroad using the Italian words ‘cuoio’, ‘pelle’ or ‘pelliccia’ — Failure to comply with the obligation to observe a standstill period in relation to a national measure notified under Directive 98/34/EC — Unenforceability of a technical regulation in a dispute between individuals — Free circulation of goods — Article 34 TFEU — Measures having equivalent effect — Interpretation of Directive 94/11/EC’

1. The Italian authorities introduced an obligation to affix a label indicating the country of origin to leather obtained from processes (such as tanning ( 2 )) carried out in foreign countries where the Italian terms ‘cuoio’ (leather), ‘pelle’ (fine leather) or ‘pelliccia’ (fur) (or their derivatives or synonyms) are then used on leather goods, in particular footwear, produced from such leather. Two organisations have instituted proceedings before the Tribunale di Milano (Milan District Court) seeking to prevent economic operators in Italy from marketing footwear which does not comply with those labelling requirements. In this request for a preliminary ruling, the Court is asked whether such a labelling rule is contrary to Articles 34 to 36 TFEU concerning the free circulation of goods and/or to Directive 94/11/EC ( 3 ) (‘the Footwear Labelling Directive’) and/or the Modernised Customs Code. ( 4 ) However, another important issue, not raised explicitly by the referring court, is whether the provisions of Directive 98/34/EC ( 5 ) might already render the national labelling rule unenforceable.

EU law

Treaty on the Functioning of the European Union

2. Article 34 TFEU prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States. Article 35 makes similar provision in relation to exports. Article 36 provides that Member States may place proportionate restrictions on the movement of goods if justified on certain permissible grounds. ( 6 )

The Customs Code

3. Article 36 of the Modernised Customs Code ( 7 ) is amongst the provisions laying down rules to determine the non-preferential origin of goods for the purposes of applying the Common Customs Tariff, measures (other than tariff measures) established by Community provisions governing specific fields relating to trade in goods, or other Community measures relating to the origin of goods. ( 8 ) Under Article 36 goods wholly obtained in a single country or territory are regarded as having their origin in that country or territory. ( 9 ) Goods the production of which involved more than one country or territory are deemed to originate in the country or territory where they underwent their last substantial transformation. ( 10 )

4. In its order for reference the Tribunale di Milano mentions Article 60 of Regulation (EU) No 952/2013. ( 11 ) Article 60(1) is expressed in the same terms as Article 36(1) of Regulation No 450/2008. Article 60(2) states: ‘[g]oods the production of which involves more than one country or territory shall be deemed to originate in the country or territory where they underwent their last, substantial, economically-justified processing or working, in an undertaking equipped for that purpose, resulting in the manufacture of a new product or representing an important stage of manufacture’. However, at the material time that provision was not yet in force. ( 12 ) I shall therefore treat the request for a preliminary ruling as referring to Article 36 of Regulation No 450/2008. ( 13 )

The Footwear Labelling Directive

5. This directive was introduced to address problems affecting intra-Community trade in footwear products. Member States had differing labelling requirements that led to increased costs to economic operators and impeded free circulation. ( 14 ) It was considered that those problems could most effectively be resolved by taking action at EU level. The legislator therefore introduced a harmonising measure setting out only those requirements that were considered indispensable for the free circulation of footwear. ( 15 )

6. The Footwear Labelling Directive renders the directive applicable to the labelling of the materials used in the main components of footwear for sale to the consumer and defines ‘footwear’ as ‘articles with applied soles designed to protect or cover the foot …’ (Article 1(1)). ( 16 ) The label must convey information relating to the three parts of the footwear concerned as defined in Annex I, ( 17 ) namely the upper, the lining and sock and the outer sole (Article 1(2)). The composition of the footwear must be indicated on the basis either of the pictograms or the written indications for materials stipulated in Annex I. ( 18 ) That information must also meet the labelling requirements in Article 4.

7. Pursuant to Article 2(1), Member States must take all necessary measures to ensure that all footwear placed on the market meets the labelling requirements of the Footwear Labelling Directive without prejudice to other relevant provisions of EU law.

8. Article 3 states: ‘Without prejudice to other relevant Community provisions, Member States shall not prohibit or impede the placing on the market of footwear which complies with the labelling requirements of this Directive, by the application of unharmonised national provisions governing the labelling of certain types of footwear or of footwear in general.’

9. The labelling requirements specified in Article 4(1) are as follows: ‘… information on the material, determined in accordance with Annex I, which constitutes at least 80% of the surface area of the upper, and the lining and sock, of the footwear, and at least 80% of the volume of the outer sole. If no one material accounts for at least 80%, information should be given on the two main materials used in the composition of the footwear.’ Article 4(2) specifies that the information must be conveyed on the footwear by means of ‘either pictograms or written indications in at least the language or languages which may be determined by the Member State of consumption in accordance with the Treaty, as defined and illustrated in Annex I’. Member States must ensure that consumers are adequately informed as to the meaning of the pictograms, but such measures must not create barriers to trade. Labelling must be affixed to at least one article of footwear in each pair; it must be visible, securely attached to the footwear in question and accessible; and it must not be possible for the labelling to mislead the consumer (Article 4(3) and (4)).

10. Article 5 provides: ‘Additional textual information, affixed, should the need arise, to the labelling may accompany the information required under this Directive. However, Member States may not prohibit or impede the placing on the market of footwear conforming to the requirements of this Directive, in accordance with Article 3.’

Directive 98/34

11. The aim of Directive 98/34 is to help to avoid the creation of new barriers to trade within the internal market. It introduces a mechanism for transparency and preventive control by requiring Member States to notify technical regulations in draft form before adoption and then, generally, to observe a standstill period of at least three months (see point 14 below) before adopting the regulation concerned, in order to allow other Member States and the Commission an opportunity to raise any concerns about potential barriers to trade. ( 19 )

12. The following definitions in Article 1 are relevant: ‘1. “product”, any industrially manufactured product and any agricultural product … … 3. “technical specification”, a specification contained in a document which lays down the characteristics required of a product such as levels of quality … including the requirements applicable to the product as regards … packaging, marking or labelling ... … 11. “technical regulation”, technical specifications … the observance of which is compulsory, de jure or de facto … prohibiting the manufacture, importation, marketing or use of a product ... …’

13. Pursuant to Article 8, Member States must immediately communicate to the Commission any draft technical regulation which they wish to adopt. They must also provide the Commission with a statement of the grounds which make the enactment of such a technical regulation necessary, where these have not already been made clear in the draft. The Commission must then immediately notify the other Member States of the draft and all the documents which have been forwarded to it. Article 8(2) provides that the Commission and the Member States may make comments to the notifying Member State. That State must take any such comments into account as far as possible in the subsequent preparation of the technical regulation. Under Article 8(3) Member States must communicate the definitive text of a technical regulation to the Commission without delay.

14. Article 9(1) states that the adoption of a draft technical regulation notified under Article 8(1) must be postponed for three months (‘the standstill period’). That period is extended to six months if the Commission or another Member State issues a detailed opinion to the effect that the...