C-435/25

Provisional text OPINION OF ADVOCATE GENERAL NORKUS delivered on 9 July 2026 (1) Case C‑435/25 Verband Sozialer Wettbewerb eV v GUT GEKAUFT Reformhäuser GmbH, interveners: M.E.G. Gottlieb Diaderman-Haus GmbH & Co. KG, Korea Ginseng Vertriebs GmbH (KGV) (Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany)) ( Reference for a preliminary ruling – Approximation of legislation – Regulation (EC) No 1223/2009 – Cosmetic products – Obligations of distributors – Scope – Prohibition of misleading claims – Unfair commercial practices – Directive 2005/29/EC – Scope – Distributor of a cosmetic product using a misleading advertising claim of the manufacturer ) I.      Introduction 1.        May a distributor of a cosmetic product who reproduces, without alteration, the advertising claims transmitted by the manufacturer of that product for the purpose of disseminating those claims, be held responsible for their non-conformity with the provisions of Regulation (EC) No 1223/2009 on cosmetic products? (2) 2.        That is the question which the Court will be required to answer in the present case, which will lead it to interpret both the provisions of that regulation and the relationship between those provisions and the provisions of Directive 2005/29/CE concerning unfair business-to-consumer commercial practices in the internal market. (3) II.    Legal framework A.      European Union law 1.      Regulation No 1223/2009 3.        Recitals 4, 11, 13 and 51 of Regulation No 1223/2009 state: ‘(4)      This Regulation comprehensively harmonises the rules in the [European Union] in order to achieve an internal market for cosmetic products while ensuring a high level of protection of human health. … (11)      In order to establish clear responsibilities, each cosmetic product should be linked to a responsible person established within the [European Union]. … (13)      It is necessary to determine under which conditions a distributor is to be considered as the responsible person. … (51)      The consumer should be protected from misleading claims concerning efficacy and other characteristics of cosmetic products. In particular Directive [2005/29] is applicable. …’ 4.        In accordance with Article 2 of that regulation, entitled ‘Definitions’: ‘1.      For the purposes of this Regulation, the following definitions shall apply: … (d)      “manufacturer” means any natural or legal person who manufactures a cosmetic product or has such a product designed or manufactured, and markets that cosmetic product under his name or trademark; (e)      “distributor” means any natural or legal person in the supply chain, other than the manufacturer or the importer, who makes a cosmetic product available on the [EU] market; …’ 5.        Article 4 of that regulation, entitled ‘Responsible person’, provides: ‘… 3.      For a cosmetic product manufactured within the [European Union], and not subsequently exported and imported back into the [European Union], the manufacturer established within the [European Union] shall be the responsible person. … 6.      The distributor shall be the responsible person where he places a cosmetic product on the market under his name or trademark or modifies a product already placed on the market in such a way that compliance with the applicable requirements may be affected. …’ 6.        Article 5 of that regulation, entitled ‘Obligations of responsible persons’, provides: ‘1.      Responsible persons shall ensure compliance with … Articles 20 … …’ 7.        Article 6 of Regulation No 1223/2009, entitled ‘Obligations of distributors’, provides: ‘1.      In the context of their activities, when making a cosmetic product available on the market, distributors shall act with due care in relation to applicable requirements. 2.      Before making a cosmetic product available on the market distributors shall verify that: –        the labelling information provided for in Article 19(1)(a), (e) and (g) and Article 19(3) and (4) is present, –        the language requirements provided for in Article 19(5) are fulfilled, –        the date of minimum durability specified, where applicable under Article 19(1), has not passed. 3.      Where distributors consider or have reason to believe that: –        a cosmetic product is not in conformity with the requirements laid down in this Regulation, they shall not make the product available on the market until it has been brought into conformity with the applicable requirements, … 4.      Distributors shall ensure that, while a product is under their responsibility, storage or transport conditions do not jeopardise its compliance with the requirements set out in this Regulation. …’ 8.        Under Article 20 of that regulation, entitled ‘Product claims’: ‘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. …’ 2.      Directive 2005/29 9.        Recitals 7, 10 and 14 of Directive 2005/29 state: ‘(7)      This Directive addresses commercial practices directly related to influencing consumers’ transactional decisions in relation to products. … … (10)      It is necessary to ensure that the relationship between this Directive and existing [EU] law is coherent, particularly where detailed provisions on unfair commercial practices apply to specific sectors. … This Directive accordingly applies only in so far as there are no specific [EU] law provisions regulating specific aspects of unfair commercial practices, such as information requirements and rules on the way the information is presented to the consumer. It provides protection for consumers where there is no specific sectoral legislation at [EU] level and prohibits traders from creating a false impression of the nature of products. … This Directive consequently complements the Community acquis, which is applicable to commercial practices harming consumers’ economic interests. … (14)      It is desirable that misleading commercial practices cover those practices, including misleading advertising, which by deceiving the consumer prevent him from making an informed and thus efficient choice. … This Directive should be without prejudice to existing [EU] law which expressly affords Member States the choice between several regulatory options for the protection of consumers in the field of commercial practices. …’ 10.      Article 2 of that directive, entitled ‘Definitions’, provides: ‘For the purposes of this Directive: … (d)      “business-to-consumer commercial practices” (hereinafter also referred to as commercial practices) means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers; …’ 11.      Article 3 of that directive, entitled ‘Scope’, states: ‘1.      This Directive shall apply to unfair business-to-consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product. … 4.      In the case of conflict between the provisions of this Directive and other [EU] rules regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those specific aspects. …’ 12.      Article 5 of that directive, entitled ‘Prohibition of unfair commercial practices’, provides: ‘1.      Unfair commercial practices shall be prohibited. … 4.      In particular, commercial practices shall be unfair which: (a)      are misleading as set out in Articles 6 and 7, …’ 13.      Article 6 of Directive 2005/29, entitled ‘Misleading actions’, provides: ‘1.      A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise: … (b)      the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product; …’ B.      German law 14.      According to Paragraph 3(1) of the Gesetz gegen den unlauteren Wettbewerb (Law against Unfair Competition) of 3 July 2004, in the version published on 3 March 2010 (BGBl. 2010 I, p. 254), as last amended by the Law of 6 May 2024 (BGBl. 2024 I, No 149) (‘the UWG’), which prohibits unfair commercial practices, unfair commercial practices are illegal. 15.      Under Paragraph 3a of the UWG, entitled ‘Breach of the law’, an act of unfair competition is committed where a person infringes a statutory provision which is intended, in particular, to regulate market conduct in the interest of operators, provided that the breach is capable of significantly harming the interests of consumers, other market operators or competitors. 16.      In accordance with Paragraph 3(1), Paragraph 5(1) and point 1 of Paragraph 5(2) of the UWG, which transpose Article 5(1), Article 5(4)(a) and Article 6(1)(b) of Directive 2005/29, the advertising material of a distributor containing misleading information about the benefits of a product constitutes a per se illegal unfair commercial practice on the part of the distributor, even if he or she has simply reproduced the manufacturer’s advertising material. 17.      In accordance with the second option in the first sentence of Paragraph 8(1) of the UWG, a person who engages in an illegal unfair commercial practice within the meaning of Paragraph 3 of that law may be ordered to cease that practice where there is a risk that it may be repeated. III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court 18.      GUT GEKAUFT Reformhäuser GmbH (‘GUT GEKAUFT’) operates a shop specialising in the sale of health food and natural products. 19.      In its November 2020 advertising leaflet, it promoted a face cream, claiming that the ginseng extract in that product had certain beneficial effects. 20.      It is apparent from the order for reference that the manufacturer of that cosmetic product transmitted that advertising claim, which also appears on the packaging of the product in question, to GUT GEKAUFT and that the manufacturer also approved the advertising statement prior to its publication. 21.      Taking the view that the effectiveness of the ginseng extract in external use has not been scientifically proved, the Verband Sozialer Wettbewerb eV (‘the VSW’) maintains that the advertising claim in question infringes Article 20(1) of Regulation No 1223/2009 and is therefore unfair. 22.      After unsuccessfully serving formal notice on 17 November 2020, the VSW brought a cease and desist action against GUT GEKAUFT, seeking, in particular, an order prohibiting such advertising, before the Landgericht Düsseldorf (Regional Court, Düsseldorf, Germany), which upheld the action. 23.      The Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), on appeal, varied the judgment delivered at first instance and dismissed the VSW’s action, on the ground that GUT GEKAUFT was not liable for the infringement of Article 20(1) of Regulation No 1223/2009. As GUT GEKAUFT had reproduced without alteration the advertising claim of the manufacturer and used it in its own advertising, the manufacturer was the responsible person for the purpose of that regulation and GUT GEKAUFT was not required to ensure that the requirements of that provision were complied with. 24.      By its appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice, Germany), the referring court, the VSW claims that the judgment delivered at first instance should be reinstated. 25.      The referring court proceeds from the premiss that the promotion of the product in question by means of the contested claim infringes Article 20(1) of Regulation No 1223/2009. 26.      It is uncertain, in the first place, whether GUT GEKAUFT must answer, under Article 6(1) and the first subparagraph of Article 6(3) of Regulation No 1223/2009, as distributor of the products in question, for such an infringement of Article 20(1) of that regulation, since that company used a misleading advertising message made available by the manufacturer, without verifying it, in its advertising leaflet intended for the marketing of the face cream. 27.      In that regard, the referring court asks whether the obligations of the distributor arising under Article 6(1) and the first subparagraph of Article 6(3) of that regulation also include the obligations relating to the promotion of the products arising under Article 20(1) of that regulation and whether such a distributor must account for the advertising message which does not comply with the latter provision, which would mean that the distributer is required to verify the advertising message reproduced, without alteration, of the manufacturer and to verify that the product marketed does in fact have the functions that are being promoted. 28.      In the second place, the referring court asks whether, if the distributor was not accountable, pursuant to Article 6(1) and the first subparagraph of Article 6(3) of Regulation No 1223/2009, for the advertising of a cosmetic product that infringes Article 20(1) of that regulation, that distributor must nonetheless be held responsible for such misleading advertising under the rules applicable to unfair commercial practices laid down in Directive 2005/29. 29.      It considers in that regard that the harmonising provisions of that regulation exhaustively regulate the responsibility of the distributor of a cosmetic product. Thus, Article 4(6) and Article 6 of Regulation No 1223/2009, as a lex specialis, cannot, under the conflict rule laid down in Article 3(4) of Directive 2005/29, be neutralised by recourse to the general principles of competition law, in the event of a conflict with those provisions, in respect of an unfair commercial practice of the distributor. 30.      The position might be different, in the referring court’s view, if the responsibility of the distributor of a cosmetic product were not exhaustively regulated by Regulation No 1223/2009, which would not cover, in particular, a case in which the distributor merely reproduces the distributor’s message in its advertising without altering it. 31.      The success of the appeal on a point of law thus depends on the interpretation of Article 6(1) and the first subparagraph of Article 6(3) of Regulation No 1223/2009 and of Article 3(4) of Directive 2005/29. 32.      In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1)      Does a distributor who is not a responsible person within the meaning of Article 4(6) of Regulation [No 1223/2009], in accordance with Article 6(1) and the first subparagraph of Article 6(3) of that regulation, have reason to believe that advertising by a manufacturer is not in conformity with the requirements laid down in Article 20(1) of that regulation when it uses that advertising made available to it by the manufacturer for its own commercial purposes without examining whether the functions of the cosmetic product to which the advertising relates are adequately substantiated? Or [is it] solely under certain conditions – and if so, which? – referred to in Article 6(1) and the first subparagraph of Article 6(3) of Regulation [No 1223/2009 that the distributor may] have reason to believe that the advertising provided by the manufacturer which it uses is not in conformity with the requirements of Article 20(1) of that regulation and to examine whether the functions of the cosmetic product [to] which the advertising [relates] are adequately substantiated? (2)      Do the provisions of Article 4(6) and Article 6(1) and the first subparagraph of Article 6(3) of Regulation [No 1223/2009], in accordance with Article 3(4) of Directive [2005/29], preclude advertising by a distributor [containing] a misleading statement taken over from the manufacturer concerning the functions of a cosmetic product being regarded as an unfair commercial practice within the meaning of Article 5(1) and (4)(a) and Article 6(1)(b) of Directive [2005/29]?’ 33.      Written submissions were presented by GUT GEKAUFT, the Greek Government and the European Commission. 34.      Those parties presented oral argument at the hearing on 29 April 2026. IV.    Analysis A.      The first question 35.      By its first question, the referring court asks, in essence, whether Article 6(1) and the first subparagraph of Article 6(3) and Article 20(1) of Regulation No 1223/2009 must be interpreted as meaning that a distributor who makes a cosmetic product available on the market under the manufacturer’s name or trade mark, without modifying it, is required to verify that that product has the functions attributed to it in the advertising claims that appear in the distributor’s advertising leaflets, when those claims were made available to the distributor by the manufacturer of the product, also appear on the product packaging and are so reproduced by that distributor. 36.      On the one hand, Article 6(1) and the first subparagraph of Article 6(3) of Regulation No 1223/2009 set out a number of obligations placed on distributors of cosmetic products. On the other hand, Article 20(1) of that regulation provides, in particular, that in the advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs are not to be used to imply that those products have characteristics or functions which they do not have. The referring court observes in that regard that that is the case of the advertising at issue in the main proceedings. 37.      The question therefore arises as to whom that prohibition applies and, more particularly, whether the distributor is under an obligation to ensure that that provision is complied with when it merely reproduces the manufacturer’s advertising claims without altering them. 1.      Determining the person responsible for compliance with Article 20(1) of Regulation No 1223/2009 38.      Regulation No 1223/2009 is intended, in accordance with Article 1 thereof, to ‘[establish] 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’. 39.      To that end, Regulation No 1223/2009 provides that for each cosmetic product a responsible person is to be designated and that, for each cosmetic product placed on the market, that responsible person is to ensure compliance with the relevant obligations set out in that regulation. (4) In addition, it follows unequivocally from Article 5 of that regulation that the responsible persons are to ensure compliance with Article 20 of that regulation. 40.      Article 4(3) of Regulation No 1223/2009 designates the manufacturer established within the European Union as the responsible person for a cosmetic product manufactured within the European Union and not subsequently exported and imported back into the Union. The distributor is to be regarded as the responsible person only where he or she places a cosmetic product on the market under his or her name or trade mark or modifies a product already placed on the market in such a way that compliance with the applicable requirements may be affected. (5) As the referring court points out, that is not the case in the main proceedings. 41.      Thus, in a situation such as that at issue in the main proceedings where the distributor reproduces without alteration the manufacturer’s advertising claims relating to the product placed on the market, it is indeed the manufacturer, not the distributor, that must be regarded as the responsible person on whom the prohibition on attributing, in the advertising of the cosmetic products, properties which those products do not have is imposed. 2.      The scope of the obligations of the distributor 42.      The question arises, however, whether it is nonetheless precluded that the prohibition on attributing to cosmetic products, in advertisements, properties which they do not have is also imposed on the distributor. Although he or she is not the responsible person, the distributor makes a cosmetic product available on the market under the manufacturer’s name or trade mark, without modifying it, and reproduces the manufacturer’s advertising claims and is therefore bound by an obligation to verify the truth of those claims. 43.      As the parties submit in their written observations, Article 6 of Regulation No 1223/2009 establishes a range of obligations on the part of distributors and it is therefore necessary to determine whether those obligations include the obligation to ensure compliance with Article 20(1) of that regulation. 44.      In order to answer that question, in accordance with settled case-law, I shall interpret those provisions in a way that takes into account their wording and the context in which they are set and the obligations pursued by the legislation of which they form part. (6) (a)    Literal interpretation 45.      First of all, I note that under Article 6(1) of Regulation No 1223/2009, distributors, in the context of their activities, when making a cosmetic product available on the market, are required to ‘act with due care in relation to applicable requirements’. Furthermore, Article 6(3) of that regulation provides that where distributors consider or have reason to believe that a cosmetic product is not in conformity with the requirements laid down in that regulation, they are not to make the product available on the market until it has been brought into conformity with the applicable requirements. 46.      Those two provisions apply to the dissemination, by the distributor, of advertising relating to a cosmetic product. The advertising of a cosmetic product which the distributor places on the market should be considered to come within the context of his or her activities, in so far as it constitutes an ordinary activity for a distributor. Furthermore, the requirements relating to Article 20(1) of Regulation No 1223/2009 are certainly part of the ‘applicable requirements’ to which the provisions relating to the obligations of distributors refer. 47.      Nonetheless, as the Commission maintains, the wording of Article 6 of Regulation No 1223/2009 does not impose any general obligation on distributors to verify whether the manufacturer’s advertising claims attribute to the product in question properties which it has. 48.      On the contrary, Article 6(3) of Regulation No 1223/2009 expressly confines that obligation to situations in which distributors consider or have reason to believe that products are not in conformity with the requirements laid down in that regulation. As Advocate General Spielmann stated in his Opinion in Durr Dental (7) in an analogous situation, (8) and as the Court subsequently held, (9) it follows from the wording of that provision that the distributor is not required to ensure that the manufacturer’s advertising claims which he or she reproduces on his or her own account are in conformity with Article 20(1) of that regulation, and therefore to verify those claims, unless he or she is aware of a problem in connection with the conformity of those products with that provision. (10) 49.      Likewise, Article 6(2) of Regulation No 1223/2009 lays down an obligation for distributors to carry out certain verifications before making a cosmetic product available on the market. Those verifications are exhaustively listed and relate to precise characteristics of the product (labelling, language requirements and the date of durability of the product). They constitute technical information which is readily verifiable. They do not in any way concern the accuracy of the manufacturer’s advertising claims, the verification of which assumes a certain level of research and expertise on the part of the distributor, which he or she does not necessarily have. (11) 50.      It is therefore only where there are specific circumstances capable of leading the distributor to consider or to have reason to believe that the advertising claim is inaccurate that he or she should be required to verify such claims in order to ensure that the product placed on the market is in conformity with the requirements of Article 20(1) of Regulation No 1223/2009. 51.      Such an interpretation is in my view corroborated by the contextual and teleological interpretations of those provisions. (b)    Contextual interpretation 52.      As Advocate General Spielmann had observed in his Opinion in Dürr Dental (C‑10/24, EU:C:2025:697), it may be pertinent to refer to the ‘Blue Guide’ on the implementation of EU product rules 2022 (12) in order to determine the scope of the obligations of distributors. Although that instrument is not legally binding, it provides useful information for the interpretation of the relevant provisions of EU law (13) and thus constitutes a guidance document. 53.      The Blue Guide thus states that due care refers to ‘the level of judgment, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances’. (14) The scope of a distributor’s obligation to act with due care, as provided for in Article 6(1) of Regulation No 1223/2009, is therefore measured, as the Commission asserts, by reference to what may be reasonably expected of a distributor in particular circumstances. 54.      Thus, as Advocate General Spielmann considered in his Opinion in Dürr Dental, I am of the view that the obligation to act with due care laid down in Article 6(1) of Regulation No 1223/2009, read in the light of Article 6(3) of that regulation, means that distributers are required to exercise a certain amount of due care before placing a cosmetic product on the market. 55.      In other words, the obligation placed on distributors is different in nature from that borne by the responsible person. Distributers are not required to actively research whether a cosmetic product complies with the requirements of Regulation No 1223/2009 and therefore, at the same time, whether an advertising claim is in compliance with Article 20(1) of that regulation. Nonetheless, they cannot fail to have regard to whether certain advertising claims do not comply with that provision where the specific circumstances of the case cause them to consider or have reason to believe that those claims are inaccurate. 56.      Such an interpretation therefore seems to me to be consistent with the clear division of responsibilities established by Regulation No 1223/2009. It is thus always for the responsible person to ensure that the products are in conformity with the requirements of that regulation and therefore to ensure that the advertising claims do not run counter to Article 20(1) thereof. Such responsibility is not borne by the distributor, for whom the only requirement is to act with due care when making a cosmetic product available on the market, so that cosmetic products which, depending on the circumstances of the case, the distributor considers or has reason to believe are not in conformity with the applicable provisions are not made available on the market. (c)    Teleological interpretation 57.      To my mind, the objectives referred to by Regulation No 1223/2009 confirm the interpretation of Article 6(1) and (3) thereof as meaning that it is only where there are specific circumstances capable of causing the distributor to consider or have reason to believe that the advertising claims are inaccurate that the distributor should be required to verify them in order to ensure that the product made available on the market is in conformity with the requirements of Article 20(1) of that regulation. 58.      Article 1 of Regulation No 1223/2009 sets out the two objectives of that regulation: to ensure the functioning of the internal market and to ensure a high level of protection of human health. 59.      The clear division of responsibilities between the different operators, and therefore between manufacturers and distributors, seems to me to be capable of fulfilling not only the objective of protecting public health but also the objective of ensuring the proper functioning of the internal market. As GUT GEKAUFT and the Commission maintain, it would be illogical if distributors were systematically held responsible, alongside manufacturers, for ensuring that advertising claims are in conformity with the requirements of Regulation No 1223/2009. 60.      Manufacturers are best placed to ensure the conformity of their cosmetic products because of their knowledge of those products and therefore to ensure that the advertising claims which they transmit to distributors correspond to the properties of the product, in such a way as to provide consumers with precise information about their effects. 61.      Furthermore, the effort required by a systematic obligation to verify the conformity of the advertising claims taken over from the manufacturers would be disproportionate, both for small distributors, who do not have the necessary means, and for large distributors, who sell a significant number of products. In addition, that would result in the same verification taking place, in parallel, on countless occasions, when the manufacturer has already carried out the necessary verification. 62.      However, although the objective of protecting human health requires that only the manufacturers are systematically held responsible for ensuring conformity with Article 20(1) of Regulation No 1223/2009, it also requires distributors who reproduce the manufacturer’s advertising claims to be accountable, to a lesser degree, and depending on the actual circumstances, for ensuring the conformity of those claims with the requirements of that regulation. To my mind, it would run counter to that objective if a distributor were permitted to place a cosmetic product on the market, reproducing the misleading advertising claims of the manufacturer, even though, owing to the actual circumstances, he or she considered or had reason to believe that they were not in conformity with that provision. 63.      In those circumstances, I am of the view that Article 6(1) and (3) of Regulation No 1223/2009, read in conjunction with Article 20(1) of that regulation, must be interpreted as meaning that a distributor who makes a cosmetic product available on the market under the manufacturer’s name or trade mark, without modifying it, is required to verify that that product has the functions attributed to it in the advertising claims that appear in the distributor’s advertising leaflets, even though those claims were made available to the distributor by the manufacturer of the product, also appear on the product packaging and are so reproduced by the distributor, when, owing to actual circumstances, the distributor considers or has reason to believe that those claims are not in conformity with the requirements of Regulation No 1223/2009. 64.      In order to provide an answer that will be of use to the referring court, it is also appropriate to make clear which circumstances should be considered capable of leading the distributor to consider or have reason to believe that the advertising claims transmitted by the manufacturer are not in conformity and therefore capable of triggering the distributor’s verification obligation. 3.      The triggering of the verification obligation of the distributor 65.      Under Article 6(1) and (3) of Regulation No 1223/2009, a distributor is required to verify the truth of the advertising claims only where he or she considers or has reason to believe that they are not in conformity with Article 20(1) of that regulation. As I emphasised in point 49 of this Opinion, following the lead set by Advocate General Spielmann, that assumes that the distributor is aware of a problem in relation to the conformity of the advertising in question with Article 20(1) of that regulation. 66.      Neither the wording nor the context of Article 6(3) of Regulation No 1223/2009 specifies the level of awareness expected of a distributor that might trigger his or her obligation to verify the conformity of the advertising claims which he or she takes over from the manufacturer. The wording of that provision indicates only that the distributor must ‘consider or have reason to believe’ that those claims are not in conformity in order to be required to carry out that verification. 67.      It is true that those words tend to evoke a subjective element on the part of the distributor. However, the reference to the need for the distributor to ‘consider or have reason to believe’ that advertising claims are not in conformity, as in the present case, with the requirements of Regulation No 1223/2009 means above all, in my view, that the distributor is required to verify their conformity both where he or she has actual knowledge of the lack of conformity (where he or she ‘considers’) and where it seems obvious that a reasonably attentive distributor could not fail to be aware of it (‘has reason’ to believe it). 68.      It seems obvious to me that the – essentially subjective – awareness, on the part of the distributor, of non-conformity with the requirements of Regulation No 1223/2009, is always the consequence of the presence of objective elements. Thus, to my mind, the distributor’s obligation to verify conformity is dependent on the existence of specific indicia capable of causing the distributor to consider or to have reason to believe that the advertising claims transmitted by the manufacturer are inaccurate. 69.      In that regard, first of all, the Blue Guide again provides some guidance. As regards the distributor’s obligation to act with due care, the Blue Guide states that the distributor ‘should be able to identify products that are clearly not in compliance’. (15) Although the distributor is not required to actively seek to ascertain whether the advertising claims transmitted by the manufacturer are in conformity with Article 20(1) of Regulation No 1223/2009, it seems to me that he or she should nonetheless be required to carry out those verifications where it is manifestly apparent that that might not be the case. (16) 70.      Thus, fanciful or undeniably implausible statements about the properties of a cosmetic product should, in my view, cause the distributor to verify whether the claims which he or she takes over from the manufacturer comply with the requirements of Article 20(1) of Regulation No 1223/2009. 71.      Next, to my mind a distributor should be required to verify the truth of the advertising claims which he or she reproduces from the manufacturer where there is tangible evidence that the product in question does not have the properties claimed. That should be the case, in particular, where a significant number of consumers inform the distributor, after they have used the cosmetic product in question, that it does not have the effect claimed. 72.      Last, the question arises whether, in a situation such as that at issue in the main proceedings, formal notice given to the distributor to cease disseminating the misleading advertising claims is a factor capable of causing the distributor to consider or to have reason to believe that those claims are inaccurate. 73.      In my view, that should be the case, provided that the formal notice sets out the reasons why the advertising claims reproduced by the distributor should be considered not to be in conformity with Article 20(1) of Regulation No 1223/2009 (17) and that, in addition, those reasons do not appear, prima facie, to be wholly unfounded. In such a situation, it is brought to the distributor’s attention that the advertising claims may be incompatible with the requirements of that regulation, which the distributor cannot validly ignore since the formal notice gives rise, in a distributor bound by an obligation to act with due care, to doubt as to their conformity. 74.      In any event, it will be for the referring court, in the light of all the relevant circumstances of the case, to determine whether the distributor was faced with evidence capable of causing him or her to consider or to have reason to believe that the advertising claims from the manufacturer, which he or she reproduces without alteration, are not in conformity with the provisions of Regulation No 1223/2009. B.      The second question 75.      By its second question, the referring court asks, in essence, whether Article 3(4) of Directive 2005/29 must be interpreted as meaning that Article 6(1) and the first subparagraph of Article 6(3) of Regulation No 1223/2009 preclude the advertising of a cosmetic product marketed by the distributor which is reproduced without alteration from the manufacturer and which contains misleading claims about the properties of a component of that product, must be regarded as an unfair commercial practice, within the meaning of Article 5(1) and (4)(a) and Article 6(1)(b) of that directive. 76.      In other words, the referring court asks, in essence, whether Article 4(6) and Article 6(1) and the first subparagraph of Article 6(3) of Regulation No 1223/2009, which regulate the obligations of distributors of cosmetic products, preclude, as a lex specialis, the application to distributors of the provisions of Directive 2005/29 relating to the prohibition of misleading commercial practices. 77.      Directive 2005/29 is intended to establish uniform rules on unfair business-to-consumer commercial practices in order to contribute to the proper functioning of the internal market and to achieve a high level of consumer protection. (18) 78.      Thus, that directive establishes a single general prohibition of those unfair commercial practices distorting consumers’ economic behaviour. (19) It is characterised by a wide application, with the notion of ‘commercial practices’ being defined by means of a particularly broad formulation, and the practices covered by it needing to be commercial in nature, that is to say, originating from traders, and directly connected with the promotion, sale or supply of their products to consumers. (20) 79.      In those circumstances, the fact that a distributor makes claims, in an advertising leaflet, about the properties of a cosmetic product undoubtedly constitutes a commercial practice for the purposes of Directive 2005/29. It follows, moreover, that that directive lays down an obligation for distributors not to engage in a misleading commercial practice which is not conditional on their having to ‘consider’ or ‘have reason to believe’ that the advertising claims disseminated are misleading, like that provided for in Article 6(1) and (3) of Regulation No 1223/2009. 80.      In other words, the fact that a distributor reproduces without alteration the advertising claims from the manufacturer might, where those claims attribute to the products properties which they do not have, be covered by the prohibition of misleading commercial practices as provided for in Article 6(1)(b) of Directive 2005/29, even though the conditions laid down in Article 6(1) and (3) of Regulation No 1223/2009 are not fulfilled. 81.      It therefore falls to be determined whether those provisions of Directive 2005/29 and Regulation No 1223/2009 may be applied in parallel. 82.      In that regard, Article 3(3) of Directive 2005/29 provides that that directive is without prejudice to EU provisions relating to the health and safety aspects of products, while Article 3(4) of that directive lays down an ‘exclusion clause’, (21) which provides that ‘in the case of conflict between the provisions of this Directive and other [EU] rules regulating specific aspects of unfair commercial practices, the latter shall prevail and apply to those specific aspects’. (22) As the Court has held in a similar context, those specific aspects of unfair commercial practices will fall exclusively within the scope of Regulation No 1223/2009 only when two conditions are satisfied: (i) that regulation must regulate specific aspects of the unfair commercial practices, and (ii) there must be a conflict between that regulation and the provisions of Directive 2005/29, those specific aspects relating exclusively to the provisions of that regulation. (23) 83.      In my view, as the Commission maintains, not only does Regulation No 1223/2009 concern the health and safety aspects of products, but its provisions on the obligations of the distributor are also rules that regulate specific aspects of the unfair commercial practices. More specifically, Article 6(1) and (3), and Article 20(1), of that regulation set out the scope of the obligations that bind distributors in relation to the advertising of cosmetic products and must therefore be regarded, as such, as a special rule by comparison with the general rules relating to unfair commercial practices contained in Directive 2005/29. 84.      It therefore remains to be established whether, in accordance with Article 3(4) of Directive 2005/29, there is a conflict between those provisions, such that Regulation No 1223/2009 should prevail. 85.      According to the Court’s case-law, a conflict within the meaning of Article 3(4) of Directive 2005/29 may be presumed only where the relationship between the provisions in question goes beyond a mere disparity or simple difference, showing a divergence which cannot be overcome by a unifying formula enabling both situations to exist alongside each other without their having to be distorted. (24) Such a conflict therefore exists only where provisions other than those of Directive 2005/29 which regulate specific aspects of unfair commercial practices impose on traders, in such a way as to leave them no margin for discretion, obligations which are incompatible with those laid down in that directive. (25) 86.      I note that the purpose of Directive 2005/29 is to achieve a high level of consumer protection and, to that end, to ensure that unfair commercial practices are effectively combated in the interest of consumers. (26) Article 6(1) of that directive is specifically intended to ensure appropriate consumer protection as regards the information conveyed to them by the advertising of a product. Likewise, the purpose of Regulation No 1223/2009 is to ensure a high level of protection of human health by, inter alia, preventing consumers from being misled by the information on cosmetic products provided to them. (27) 87.      As the Commission submits in its written observations, Directive 2005/29 and Regulation No 1223/2009 therefore pursue a common obligation, which consists in ensuring a high level of consumer protection against misleading information. 88.      Nonetheless, in my view such a statement does not seem sufficient to systematically preclude the existence of a conflict between the obligations placed on distributors relating to advertising claims in connection with a cosmetic product on the basis of Directive 2005/29, on the one hand, and Regulation No 1223/2009, on the other. 89.      To my mind, the obligations imposed on distributors in relation to advertising by Regulation No 1223/2009, on the one hand, and Directive 2005/29, on the other, specifically imply a divergence which cannot be overcome by a unifying formula and their application in parallel would result in Article 6(1) and (3) and Article 20(1) of that regulation being deprived of their practical effect when the distributor has acted in accordance with those provisions. 90.      As may be seen from my analysis of the first question, Regulation No 1223/2009 precisely defines the obligations of distributors in relation to advertising and establishes that they are to be held responsible for the dissemination of advertising contrary to Article 20(1) of that regulation only where they consider or have reason to believe that the advertising claims taken over from the manufacturer are not in conformity. (28) That being so, the legislature chose to limit the scope of the obligations of distributors in that respect, by distinguishing them from the obligations of manufacturers, who are primarily responsible for the infringements of Article 20(1) of that regulation. 91.      The provisions of Directive 2005/29, on the other hand, impose an unconditional prohibition on the use by distributors of misleading advertising taken over from the manufacturer. 92.      In other words, owing to the different scope of the obligations of distributors laid down in Regulation No 1223/2009 and in Directive 2005/29, the practice of a distributor might, where that regulation and that directive are applied in parallel, be held to be contrary to the provisions of that directive even though it is in conformity with the provisions of that regulation. 93.      Such a concomitant application would necessarily have the consequence that the delimitation of the obligations of distributors intended by the legislature, as set out in Regulation No 1223/2009, would be deprived of its practical effect and be neutralised, even though that regulation regulates specific aspects of unfair commercial practices. 94.      Thus, I am of the view that where a distributor who reproduces the advertising claims of a manufacture acts in accordance with the requirements of Regulation No 1223/2009, there is a conflict between, on the one hand, Article 6(1) and (3) and Article 20(1) of that regulation and, on the other hand, the provisions of Directive 2005/29. It is clear from Article 3(4) of that directive that in such a situation the rules of that regulation are to prevail. 95.      That applies a fortiori since it follows from recital 4 of Regulation No 1223/2009 that that regulation comprehensively harmonises the rules in force in the European Union and since the Court has repeatedly held that it follows from a reading of the provisions of that regulation, in particular Article 1, read in the light of recitals 3 and 4, that that regulation has as its objective the comprehensive harmonisation of the rules in force in the European Union which is aimed at establishing an internal market for cosmetic products while ensuring a high level of protection for human health. (29) 96.      The position is different, however, where the distributor, who reproduces the advertising claims of the manufacturer without verifying them, acts in breach of the requirements of Article 6(1) and (3) of Regulation No 1223/2009 in so far as, depending on the actual circumstances of the case, he or she considers, or has reason to believe, that they are not in conformity with Article 20(1) of that regulation. 97.      Article 6(1)(b) of Directive 2005/29 prohibits misleading conduct on the part of economic operators in relation to advertising, which necessarily includes the practices referred to in Article 20(1) of Regulation No 1223/2009, compliance with which the distributor may be required to verify pursuant to Article 6(1) and (3) of that regulation. Thus, the practice of a distributor which is contrary to Article 6(1) and (3) of that regulation is in my view also contrary to Article 6(1)(b) of that directive. In other words, as the Commission maintained at the hearing, the reproduction by the distributor of the advertising claims of the manufacturer without verification may constitute an infringement of the provisions of that regulation and at the same time of the provisions of that directive. 98.      In such a situation, the condition relating to the existence of conflict between the provisions of Directive 2005/29 and the provisions of Regulation No 1223/2009 is not fulfilled and that directive and that regulation may therefore in my view be applied in parallel. 99.      That is also the case where the distributor of a cosmetic product engages in a practice that is contrary to the provisions of Directive 2005/29 but is not covered by Regulation No 1223/2009. In fact, while it is common ground that that regulation comprehensively harmonises the rules in force in the European Union relating to cosmetic products, the scope of that harmonisation covers only the conduct of economic operators that is targeted by that regulation. In other words, the provisions of that regulation do not exhaust the obligations of distributors that do not fall within its scope and may be imposed on the basis of other instruments of EU law. 100. Accordingly, Article 3(4) of Directive 2005/29 should be interpreted as meaning that: –        it precludes the practice of a distributor who disseminates advertising of a cosmetic product which is reproduced without alteration from the manufacturer and which is in conformity with Article 6(1) and (3) and Article 20(1) of Regulation No 1223/2009 being classified as an ‘unfair commercial practice’ within the meaning of Article 5(1) and (4)(a) and Article 6(1)(b) of that directive, and –        it does not preclude the practice of a distributor who disseminates advertising of a cosmetic product reproduced without alteration from the manufacturer in breach of his or her obligations under Article 6(1) and (3) and Article 20(1) of that regulation being classified as an ‘unfair commercial practice’ within the meaning of Article 5(1) and (4)(a) and Article 6(1)(b) of that directive. V.      Conclusion 101. In the light of the foregoing considerations, I propose that the Court of Justice should answer the questions for a preliminary ruling referred by the Bundesgerichtshof (Federal Court of Justice, Germany), as follows: (1)      Article 6(1) and (3) and Article 20(1) 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 a distributor who makes a cosmetic product available on the market under the name or trade mark of the manufacturer, without modifying it, is required to verify that that product has the functions attributed to it in the advertising claims that appear in the distributor’s advertising leaflets, where those claims were made available to the distributor by the manufacturer of the product, also appear on the product packaging and are taken over as such by that distributor, when, owing to actual circumstances, the distributor considers or has reason to believe that those claims do not comply with the requirements of Regulation No 1223/2009, which it is for the referring court to verify. (2)      Article 3(4) of 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 (‘the Unfair Commercial Practices Directive’) must be interpreted as meaning that –        it precludes the practice of a distributor who disseminates advertising of a cosmetic product which is reproduced without alteration from the manufacturer and which is in conformity with Article 6(1) and (3) and Article 20(1) of Regulation No 1223/2009 being classified as an unfair commercial practice within the meaning of Article 5(1) and (4)(a) and Article 6(1)(b) of Directive 2005/29, and –        it does not preclude the practice of a distributor who disseminates advertising of a cosmetic product reproduced without alteration from the manufacturer in breach of his or her obligations under Article 6(1) and (3) and Article 20(1) of that regulation being classified as an ‘unfair commercial practice’ within the meaning of Article 5(1) and (4)(a) and Article 6(1)(b) of that directive. 1      Original language: French. 2      Regulation of the European Parliament and of the Council of 30 November 2009 (OJ 2009 L 342, p. 59). 3      Directive of the European Parliament and of the Council of 11 May 2005 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 (‘the Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22). 4      Article 4(1) of Regulation No 1223/2009. 5      Article 4(6) of Regulation No 1223/2009. 6      Judgments of 17 November 1983, Merck (292/82, EU:C:1983:335, paragraph 12); of 22 December 2022, Sambre & Biesme and Commune de Farciennes (C‑383/21 and C‑384/21, EU:C:2022:1022, paragraph 54); of 15 January 2026, AVR-Afvalverwerking (C‑692/23, EU:C:2026:4, paragraph 37), and Ambito territoriale di caccia Ancona 2 (C‑615/24, EU:C:2026:10, paragraph 23). 7      C‑10/24, EU:C:2025:697. 8      In that case, the Court was required to determine the scope of the distributor’s obligations under Article 14(2) of Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017 on medical devices, amending Directive 2001/83/EC, Regulation (EC) No 178/2002 and Regulation (EC) No 1223/2009 and repealing Council Directives 90/385/EEC and 93/42/EEC (OJ 2017 L 117, p. 1), which provides that ‘where a distributor considers or has reason to believe that a device is not in conformity with the requirements of this Regulation, it shall not make the device available on the market until it has been brought into conformity’. In particular, it had to be determined whether a distributor is required to verify whether a device which he or she makes available on the market must be considered to be a medical device where the manufacturer has classified it as coming within the scope of the Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006 on machinery, and amending Directive 95/16/EC (OJ 2006 L 157, p. 24) and not within the scope of Regulation 2017/745. 9      Judgment of 4 June 2026, Dürr Dental (C‑10/24, EU:C:2026:443, paragraph 34). 10      Opinion of Advocate General Spielmann in Dürr Dental (C‑10/24, EU:C:2025:697, point 53). 11      See, in that regard, points 61 and 62 of this Opinion. 12      Commission notice (OJ 2022 C 247, p. 1; ‘the Blue Guide’). 13      Judgment of 13 March 2025, Cassella-medicine and MCM Klosterfrau (C‑589/23, EU:C:2025:173, paragraph 40). 14      The Blue Guide, p. 41. 15      The Blue Guide, Annex 5, p. 151. 16      That is also apparent from the case-law of the Court in Dürr Dental, concerning the classification of a product by the manufacturer, where it held that ‘infringement of the obligation to act with due care may be found only where the classification error is clear’. See judgment of 4 June 2026, Dürr Dental (C‑10/24, EU:C:2026:443, paragraph 39). 17      On that point, see judgment of 4 June 2026, Dürr Dental (C‑10/24, EU:C:2026:443, paragraph 70). 18      Judgments of 26 October 2016, Canal Digital Danmark (C‑611/14, EU:C:2016:800, paragraph 25), and of 25 July 2018, Dyson (C‑632/16, EU:C:2018:599, paragraph 28). 19      Recital 11 of Directive 2005/29. 20      Judgment of 25 July 2018, Dyson (C‑632/16, EU:C:2018:599, paragraph 30). 21      Judgment of 24 February 2022, A and Others (‘Unit-linked’ assurance contracts) (C‑143/20 and C‑213/20, EU:C:2022:118, paragraph 136). 22      Article 3(4) of Directive 2005/29. 23      See, by analogy, judgment of 30 April 2026, Lidl Italia (Unfair commercial practices concerning food) (C‑301/25, ‘the judgment in Lidl Italia’, EU:C:2026:357, paragraph 28). 24      The judgment in Lidl Italia (paragraph 33), and judgment of 13 September 2018, Wind Tre and Vodafone Italia (C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 60). 25      The judgment in Lidl Italia (paragraph 33), and judgment of 13 September 2018, Wind Tre and Vodafone Italia (C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 61). 26      The judgment in Lidl Italia (paragraph 34), and judgment of 30 January 2025, Trenitalia (C‑510/23, EU:C:2025:41, paragraph 33). 27      See, to that effect, the judgment in Lidl Italia (paragraph 35). 28      Unless the distributor may be regarded as the ‘responsible person’ on the basis of Article 4(6) of Regulation No 1223/2009. On that point, see point 41 of this Opinion. 29      Judgments of 17 December 2020, A.M. (Labelling of cosmetic products) (C‑667/19, EU:C:2020:1039, paragraph 27), and of 15 September 2022, Fédération des entreprises de la beauté (C‑4/21, EU:C:2022:681, paragraphs 33, 53, 61 and 66).