EEC [SEC(2004) 1298] - Main contents

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dossier	COM(2004)708 - Rules on nominal quantities for pre-packed products, repealing Council Directives 75/106/EEC and 80/232/EEC, and amending ...
source	COM(2004)708
date	25-10-2004

Following a wide consultation of stakeholders and an impact assessment, the Commission proposes to repeal Directives 75/106/EEC and 80/232/EEC to abolish nominal quantities of pack sizes for most sectors and in order to maintain obligatory nominal quantities for a very limited number of sectors and to include them in a single piece of legislation.
1.Background

1.1.Existing legislation

In the 1960s different national rules on nominal quantities of pre-packed products (pack/bottle sizes) were a major barrier for free movement of goods between the Member States.

There was then a need to harmonise these sizes. At the same time, there was a concern not to impose such new Community rules on companies that worked only on the national market and did not intend to export to other Member States. Harmonizing regulation was therefore of an “optional nature”: Member States must adopt the Community rules, but are allowed to maintain existing national rules for the national market. Only products conforming to the Community rules would benefit from free circulation.

However, for some products (e.g. wine, spirits….) total harmonisation was introduced: Community sizes are mandatory for all operators in the sense of being exclusive, i.e. all national sizes are abolished.

The first Community legislation for ranges of sizes for pre-packed products dates from 1975. It includes regulation for both metrological requirements and ranges of sizes for liquids. The legislation is summarised in the table below.

	Liquids for human consumption	Other liquids and non liquids
Metrological requirements	Directive 75/106 Annexes 1 & 2	Directive 76/211 ¹
Ranges of sizes /quantities	Directive 75/106 ²Annex 3	Directive 80/232 ³

Table 1. Summary of legislation
In its answer on the SLIM conclusions, the Commission indicated that it would

1. Table 1. Summary of legislation

This proposal concerns only the legislation of “ranges of sizes/quantities” and not the metrological requirements, which will be the subject of a later proposal.

1.2.The need for review

In the framework of the SLIM-IV exercise (Simpler Legislation for the Internal Market), a team, comprising members designated by Member States and representatives of stakeholders identified by the Commission, the Council and independent experts, advised on pack sizes legislation^⁴:

“given their complexity (some 40 targeted products, complexity of certain ranges of values, etc.) the evolution of consumer patterns and preferences over the interim period and reservation as to the appropriateness of maintaining this type of legislation. Moreover, successive amendments of the Directives and an enlargement of the scope of the 1975 pre-packaging directive have made the application of this body of legislation problematic……..

The application of the Directives has proved to be difficult, notably as a result of the variety of rules and practices applying to ranges: certain ranges were made mandatory (e.g. wine) whilst others remained optional. Moreover, Member States retained the right to fix ranges at national level because of the optional character of Community rules. The variety of rules led to the compartmentalisation into different national market within the European Community.

In addition, the arrival of new packaging formats and new products and their classification in the existing ranges system tended to exacerbate an already confused situation”.

2. In its answer on the SLIM conclusions, the Commission indicated that it would

“carefully review the various recommendations in the team’s report and, where appropriate, propose the necessary measures in close cooperation with Member States and other concerned parties”.

This need for review was subsequently reinforced when the European Court ruled in the Cidrerie-Ruwet case that ‘Cassis de Dijon jurisprudence’ also applies to national pack sizes, i.e. Member States must accept on their market products legally produced and marketed in another Member State^⁵ unless there are overriding requirements of a public nature. The Court suggested that this would hardly be the case for pack sizes.

1.3.Impact Assessment of Policy Alternatives

As part of the policy on better regulation^⁶ the Commission implemented an impact assessment of policy alternatives^⁷, which showed free sizes to be the most favourable option as it allows full competition for industry and freedom of choice for consumers without compromising the environmental aims of the Community. Deregulation is justified in the light of the increased transparency offered by Community consumer legislation requiring the indication of unit pricing and prohibiting misleading practices and advertising. Furthermore, it has become clear from the Cidrerie-Ruwet ruling that national legislation increases confusion on the internal market, while fixed sizes limit the flexibility to adapt products to new consumer needs, which is the established market practice in most sectors.

However, it also appeared that there might be sectors for which regulation on the basis of total harmonisation should be maintained. Further research^⁸ indicated that fixed sizes allow to offset disproportional buyer pressure from large distributors, like supermarkets, on small and medium sized enterprises that would otherwise have to incur excessive costs, notably in sectors with structural low demand growth that are accustomed to fixed sizes. Mandatory ranges thus could be justified on this basis for the sectors where the Community regulator had already fixed harmonised mandatory sizes: i.e. wine, spirits, soluble coffee and white sugar. No compelling evidence was found to extend fixed Community sizes to sectors other than these.
2.Aims and objectives of the proposal

2.1.Deregulation and Simplification

It is proposed, for the reasons set out above, to repeal all existing pack sizes currently under optional harmonisation in Directives 75/106/EEC and 80/232/EEC, and to maintain only in very specific sectors some of the existing regulation based on total harmonisation (i.e. excluding national rules). Consequently, the proposal introduces total harmonization, thereby prohibiting Member States from legislating pack sizes, except those regulated in EC legislation.

The mandatory sizes are maintained for those sectors that currently have mandatory regulation or have commitments from the Commission^⁹ to reinstate previously mandatory sizes.

However, in the light of experience, where fixed sizes are maintained, the following modifications should be introduced:

1. The definition used for sectors currently covered may have to be revised to remain coherent with legislative developments in the field of agriculture: addition of aromatised and liqueur wines, now included in the regulations on wine^¹⁰

2. Where a few sizes account for most sales to consumers, there is no reason to fix sizes that are sold exclusively for professional use and “mini” sizes (e.g. 3, 4, 5cl for spirits). Only sizes sold to consumers within a limited interval should be fixed, while the sizes outside that interval should become free.

As no views were received from the knitting yarns sector, which currently has fixed sizes, the Commission does not propose to maintain mandatory sizes for this sector.

Furthermore, the Commission proposes to maintain the current provisions on pack sizes of products put up in aerosols contained in Directive 75/324/EEC. However, in contrast to regulation of pack sizes, which aims to protect legitimate economic interests, aerosols sizes and filling levels are dictated by assurance of safety and will consequently in the future be included in a revised Council Directive 75/324/EEC on the approximation of the laws of the Member States relating to aerosol dispensers.

In order to promote transparency all nominal quantities for pre-packed products should be included in a single legislative text. This requires repealing Directive 80/232/EEC and Directive 75/106/EEC, as the nominal quantities will be included in the proposed Directive. As the metrological requirements for liquid products currently set out in Directive 75/106/EEC are the same as those in Directive 76/211/EEC they will be covered by this Directive, which is amended to widen its scope in order to include these products.

2.2.Limitation in Time

The mandatory nominal quantities maintained are essentially derogations from the general policy based on the impact assessment to deregulate nominal quantities and should therefore be limited in time. A limitation of 20 years reflects the average investment cycle for the packaging equipment and will allow the concerned sectors to adapt to deregulation.

2.3.Form of the Act

The current legislation on pack sizes is in the form of Directives. For reasons of formal and legal coherence the legislation amending and repealing this existing legislation should be a Directive as well. When transposing the Directive Member States will be obliged to revisit their legislation on pack sizes.

2.4.Legal Basis

The legal basis for the proposed Directive is Article 95, EC Treaty.
3.Coherence with Community Principles

3.1.Proportionality

The objective is to deregulate pack sizes with the exception for those sectors for which at Community level mandatory sizes have been set or have been politically agreed between Commission and the European Parliament^¹¹ This objective is corroborated by consumer and consumer organization feedback throughout the consultation process and by the impact assessment, which showed the need to offset disproportionate buyer pressure in these particular sectors. The only means to achieve this objective are mandatory sizes for these sectors on Community level. The proposal is restricted to those sizes and intervals in which products are most sold to consumers.

3.2.Subsidiarity

Where the need for fixed sizes has been established, only fixed sizes at Community level can ensure the free movement of goods. In the light of the Cidrerie-Ruwet case law it is indeed highly unlikely that national ranges can be imposed on products legally marketed in another Member States.
4.Coherence with Community Policies

4.1.Enterprise policy

Liberalisation of sizes promotes competitiveness because it encourages entrepreneurship and innovation and facilitates access to markets^¹². Deregulation takes away potential obstacles to competitiveness on the Internal Market. The fixed sizes maintained are to the benefit of small and medium sized enterprises.

4.2.Consumer Policy

Consumer protection aspects have been addressed in different pieces of Community legislation^¹³ which have come into existence since the prepackaging legislation. This consumer protection legislation prohibits unfair business-to-consumer practices and develops a coherent and sufficient system of information to consumers by means of labelling. The indication of prices per kilo or litre allows consumers to quickly compare products packed in different sizes and is in line with the approach of the European Court of Justice, which considers the “average consumer, reasonably well informed and reasonably observant and circumspect” as a reference^¹⁴.

4.3.Environmental Policy

Environmental regulation has no impact on sizes, nor do sizes have an impact on environmental regulation. Existing environmental regulation remains applicable and sizes do not impede the full and proper implementation of environmental law, notably the prevention of waste requiring the minimisation of packaging.^¹⁵
5.Reference to the Work Programme

The presentation of this proposal to Council and the European Parliament is mentioned in the Commission work programme of 2003 (p 27, item 2003/ENTR/33).
6.Relevance for the EEA

This proposal is covered by the Agreement on the European Economic Area.
7.External Consultation

Between 8 November 2002 and 31 January 2003, the Enterprise DG held a public Internet consultation in 11 languages with consumers, producers and retailers, following the Commission's consultation standards^¹⁶. The parties were asked to give their views on maintaining existing pre-packaging legislation on fixed sizes or allowing free pack sizes. A comprehensive Commission staff working paper set out the key issues^¹⁷ and a report summarised the main findings of the consultation^¹⁸.

A Eurobarometer survey in October 2001^¹⁹ asked consumers in the EU about their general experience with packaged and bottled products sold in shops and supermarkets. The survey showed that most consumers welcome standard sizes, but also want more choice. Where sizes are standardised, consumers would like to see a sufficient range of options available in stores to enable them to select the size they require.

Consumer organisations in the 25 Member States and the European consumer federations were asked for their views on the basis of the documents on the general impact assessment and the impacts on the sectors asking for exemptions. Eight organisations (from 6 Member States) responded and all but one, are in favour of free sizes in general and accept maintaining limited short ranges^²⁰.

The UK’s Royal National Institute for the Blind represents the interests of 2 million visually impaired persons in the UK. It is in favour of mandatory fixed sizes, because it gives transparency, which is especially relevant for the visually impaired, for whom labelling information is often inaccessible and who find it hard to read unit pricing information. It can accept the range of sizes to be limited to the most sold sizes in the sectors that are included in this proposal.

The interests of people with diabetes were represented on an individual basis. Diabetes is on the rise and affects over 5% of the population, a large number of whom must inject a fixed dose of insulin for each quantity of carbohydrates consumed. Free sizes allow adapting packaging to sizes that are easy to use by people with diabetes and in this proposal all sectors relevant to diabetes are left with free sizes^²¹.

The overall response by industry has been positive. Industry is in favour of free sizes, without any EU or national legislation, because it allows to quickly adapt sizes to new consumer demands, to easily innovate and to reap full economies of scale on the Internal Market. Mandatory Community sizes reduce returns and force extra investments, because industry would need to change from their current practices. Where this proposal maintains fixed Community sizes, the relevant sectors have expressed full support.

Not all sectors have expressed a view (e.g. knitting yarns). Some sectors may not have been able to establish an EU-wide view, e.g. dairy products, in the absence of which agreement on harmonised sizes might be extremely difficult. Where current practices on the market provide satisfying results these can be maintained as, under the proposal, Member States are not allowed to restrict placing on the market for reasons related to sizes.

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Contents

1.

Table 1. Summary of legislation

2.

In its answer on the SLIM conclusions, the Commission indicated that it would