Provisional text
JUDGMENT OF THE COURT (Eighth Chamber)
5 November 2026 (*)
( Reference for a preliminary ruling – Classification, packaging and labelling of substances and mixtures – Regulation (EC) No 1272/2008 – First subparagraph of Article 35(2) – Packaging containing a hazardous substance or mixture – Liquid laundry detergents – Packaging containing foodstuffs – Similarity between types of packaging – Assessment criteria – Risk of confusion with a liquid foodstuff – Relevant market – Scope of the term ‘consumers’ – Vulnerable persons – Required level of risk of consumer deception – Taking into account the hazard category and the specific risk associated with exposure to hazardous substances or mixtures – Free movement of substances and mixtures – Protection of human health and the free movement of chemicals )
In Case C‑395/25,
REQUEST for a preliminary ruling under Article 267 TFEU from the Svea hovrätt, Mark- och miljööverdomstolen (Svea Court of Appeal, Land and Environment Court of Appeal, Stockholm, Sweden), made by decision of 11 June 2025, received at the Court on 13 June 2025, in the proceedings
Orkla Care AB
v
Kemikalieinspektionen,
THE COURT (Eighth Chamber),
composed of N. Fenger (Rapporteur), President of the Chamber, S. Rodin and O. Spineanu Matei, Judges,
Advocate General: M. Szpunar,
Registrar: V. Di Bucci,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– Orkla Care AB, by F. Sjövall and T. Strömshed, advokater, and M. Borgcrantz and T. Edwinson, jurister,
– the German Government, by J. Möller and R. Kanitz, acting as Agents,
– the French Government, by J.-L. Carré, P. Chansou and B. Travard, acting as Agents,
– the European Commission, by P. Carlin and J. Jokubauskaitė, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 18 June 2026,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 35(2) of 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), as amended by Commission Regulation (EU) No 1297/2014 of 5 December 2014 (OJ 2014 L 350, p. 1), and by Regulation (EU) 2024/2865 of the European Parliament and of the Council of 23 October 2024 (OJ L, 2024/2865) (‘the CLP Regulation’).
2 The request has been made in proceedings between Orkla Care AB (‘Orkla’), a company incorporated under Swedish law, and the Kemikalieinspektionen (Swedish Chemicals Agency) (‘KEMI’), concerning the latter’s decision to prohibit the placing on the market of certain chemicals.
Legal context
European Union law
Regulation No 648/2004
3 Article 2 of Regulation (EC) No 648/2004 of the European Parliament and of the Council of 31 March 2004 on detergents (OJ 2004 L 104, p. 1), as amended by Regulation (EU) No 259/2012 of the European Parliament and of the Council of 14 March 2012 (OJ 2012 L 94, p. 16) (‘Regulation No 648/2004’), provides in paragraph 1a as follows:
‘For the purposes of this Regulation the following definitions apply:
…
1a “consumer laundry detergent” means a detergent for laundry placed on the market for use by non-professionals, …’
The CLP Regulation
4 Recitals 1 and 2 of the CLP Regulation state:
‘(1) This Regulation should ensure a high level of protection of human health and the environment as well as the free movement of chemical substances, mixtures and certain specific articles, while enhancing competitiveness and innovation.
(2) The efficient functioning of the internal market for substances, mixtures and those articles can be achieved only if the requirements applicable to them do not differ significantly between Member States’.
5 Under the heading ‘Purpose and scope’, Article 1 of that regulation provides:
‘1. The purpose of this Regulation is to ensure a high level of protection of human health and the environment as well as the free movement of substances, mixtures … by:
(a) harmonising the criteria for classification of substances and mixtures, and the rules on labelling and packaging for hazardous substances and mixtures;
…’
6 Article 2 of that regulation, entitled ‘Definitions’, provides as follows:
‘For the purposes of this Regulation the following definitions apply:
1. “hazard class” means the nature of the physical, health or environmental hazard;
2. “hazard category” means the division of criteria within each hazard class, specifying hazard severity;
…
18. “placing on the market” means supplying or making available, whether in return for payment or free of charge, to a third party. Import shall be deemed to be placing on the market;
…’
7 Article 3 of that regulation, entitled ‘Hazardous substances and mixtures and the specification of hazard classes’, states:
‘A substance or a mixture fulfilling the criteria relating to physical hazards, health hazards or environmental hazards, laid down in Parts 2 to 5 of Annex I is hazardous and shall be classified in relation to the respective hazard classes provided for in that Annex.
…’
8 Article 4 of the CLP Regulation, entitled ‘General obligations to classify, label and package’, provides in paragraphs 4 and 10:
‘4. Where a substance or mixture is classified as hazardous, suppliers shall ensure that the substance or mixture is labelled and packaged in accordance with Titles III and IV, before placing it on the market.
…
10. Substances and mixtures shall not be placed on the market unless they comply with this Regulation.’
9 Article 9(5) of that regulation provides:
‘When evaluating the available information for the purposes of classification, the manufacturers, importers and downstream users shall consider the forms or physical states in which the substance or mixture is placed on the market and in which it can reasonably be expected to be used.’
10 Articles 17 to 22 of that regulation set out the information that must appear on the label affixed to a substance or mixture classified as hazardous and contained in a package.
11 Under Article 35 of that regulation, entitled ‘Packaging’:
‘1. Packaging containing hazardous substances or mixtures shall satisfy the following requirements:
…
(c) the packaging and fastenings shall be strong and solid throughout to ensure that they will not loosen and will safely meet the normal stresses and strains of handling;
…
2 Packaging containing a hazardous substance or a mixture supplied to the general public shall not have either a shape or design likely to attract or arouse the active curiosity of children or to mislead consumers, or have a similar presentation or a design used for foodstuff or animal feeding stuff or medicinal or cosmetic products, which would mislead consumers.
…
Where the packaging contains a substance or mixture which meets the requirements in section 3.2.1 of Annex II it shall bear a tactile warning of danger in accordance with section 3.2.2 of Annex II.
Where a liquid consumer laundry detergent, as defined in Article 2(1a) of Regulation [No 648/2004], is contained in a soluble packaging for single use, the additional requirements of section 3.3 of Annex II shall apply.
…’
12 Article 43 of the CLP Regulation provides:
‘Member States shall appoint the competent authority or competent authorities responsible for proposals for harmonised classification and labelling and the authorities responsible for the enforcement of the obligations set out in this Regulation.
…’
13 Under Article 46(1) of that regulation:
‘Member States shall take all necessary measures, including maintaining a system of official controls, to ensure that substances and mixtures are not placed on the market, unless they have been classified, labelled, notified and packaged in accordance with this Regulation.’
14 Points 3.3, 3.3.1.1 and 3.3.2 of Annex I to that regulation, entitled ‘Classification and labelling requirements for hazardous substances and mixtures’, state:
‘3.3. Serious eye damage/eye irritation
…
3.3.1.1. …
Eye irritation means the production of changes in the eye, which are fully reversible, occurring after the exposure of the eye to a substance or mixture.
…
3.3.2. Classification criteria for substances
Substances are allocated to one of the categories within this hazard class, Category 1 (serious eye damage) or Category 2 (eye irritation), as follows:
…
(b) Category 2 (eye irritation):
substances that have the potential to induce reversible eye irritation (see Table 3.3.2).
…’
15 Point 3.3 of Annex II to that regulation, entitled ‘Liquid consumer laundry detergents in soluble packaging for single use’, provides as follows:
‘…
3.3.2. The outer packaging shall:
…
(iv) without prejudice to the requirements of section 3.1, be fitted with a closure that:
…
(b) maintains its functionality under conditions of repeated opening and closing for the entire life span of the outer packaging.’
Regulation (EU) 2019/1020
16 Article 2 of Regulation (EU) 2019/1020 of the European Parliament and of the Council of 20 June 2019 on market surveillance and compliance of products and amending Directive 2004/42/EC and Regulations (EC) No 765/2008 and (EU) No 305/2011 (OJ 2019 L 169, p. 1), entitled ‘Scope’, provides in paragraph 1:
‘This Regulation shall apply to products that are subject to the [European] Union harmonisation legislation listed in Annex I …, in so far as there are no specific provisions with the same objective in the Union harmonisation legislation, which regulate in a more specific manner particular aspects of market surveillance and enforcement.’
17 Annex I to Regulation 2019/1020, entitled ‘List of Union harmonisation legislation’, sets out the Union acts that fall within the scope of the Union harmonisation legislation referred to in Article 2 of that Regulation. Among those acts is, at point 25 of that annex, the CLP Regulation.
Swedish law
18 Pursuant to Paragraph 9 of Chapter 26 of the miljöbalken (1998:808) (Environmental Code (1998:808)), of 11 June 1998 (SFS 1998, No 808), KEMI has the power to issue the orders and prohibitions necessary to ensure compliance with Regulation 2019/1020.
19 Under Paragraphs 19 and 21 of Chapter 2 of the miljötillsynsförordningen (2011:13) [Environmental Monitoring Regulation (2011:13)], KEMI is the market surveillance authority which, pursuant to Article 16 of Regulation 2019/1020, takes appropriate measures where a product falling within the scope of Union harmonisation legislation, which is used in accordance with its intended purpose or under reasonably foreseeable circumstances and which is correctly installed and maintained, is likely to compromise the health or safety of users, or does not comply with the applicable Union harmonisation legislation. In such a case, KEMI is without delay to instruct the relevant economic operator to take appropriate and proportionate corrective measures to remedy the non-compliance or eliminate the risk within the time limit it sets.
The dispute in the main proceedings and the questions referred for a preliminary ruling
20 Orkla, a company incorporated under Swedish law, markets chemical products such as liquid laundry detergents.
21 It is apparent from the order for reference and the images set out in the annex thereto that the packaging for those products is made of coloured cardboard, in the shape of an elongated carton, with a folded lid on which a screw cap is fitted on one side of the fold.
22 After being alerted by consumers that that packaging bore similarities to that used for foodstuffs and was likely to mislead consumers, KEMI invited Orkla to submit its comments on that matter and on the compliance of the packaging in question with the requirements of Article 35(2) of the CLP Regulation.
23 Orkla disputed the existence of any such similarity and argued that the packaging of the products in question did not comply with those requirements. It argued that the packaging in question features depictions of textiles and not of items likely to be mistaken for foodstuffs; that the packaging provides sufficient safety guarantees, given that a seal must be removed before the products can be used and that it bears a warning that the contents must not be ingested; that the products in question are merely irritating to the eyes and pose no danger if ingested; and that the choice of cardboard was motivated by environmental considerations.
24 KEMI considered that the presentation of the packaging of the products at issue in the main proceedings – namely, both its shape and its appearance, in combination with its colouring and the label affixed to it, together with the indication that the product is vegan – was likely to mislead consumers, given that those products could be mistaken for foodstuffs. It therefore considered that that packaging did not meet the requirements of the first subparagraph of Article 35(2) of the CLP Regulation and decided to prohibit the placing on the market of nine products, namely liquid laundry detergents contained in that type of packaging.
25 Orkla brought an action before the Mark- och miljödomstolen i Nacka (Land and Environment Court, Nacka, Sweden). That court held that, having regard to the appearance, size and closure mechanism of the packaging of the products at issue in the main proceedings, in conjunction with their colouring and presentation, that packaging could be mistaken for that used to package foodstuffs, in particular milk, yoghurt, fruit juice and other liquid foods, and, as a result, attract and encourage children’s curiosity. Consequently, that court held that KEMI’s decision was in accordance with EU law and, in particular, with the CLP Regulation, and dismissed Orkla’s appeal. It nevertheless amended that decision as regards its date of effect, setting it at three months after its judgment became final.
26 Orkla lodged an appeal against that judgment with the Svea hovrätt, Mark- och miljööverdomstolen (Svea Court of Appeal, Land and Environment Court of Appeal, Stockholm, Sweden), which is the referring court.
27 That court has doubts as to whether the packaging of the products in question, which are substances or mixtures classified as hazardous under the CLP Regulation, complies with the requirements of Article 35(2) of that regulation.
28 In that regard, the referring court asks, in the first place, what criteria should be applied when assessing, in accordance with Article 35(2) of the CLP Regulation, the similarity between the presentation or appearance of packaging containing a hazardous substance or mixture and that used for foodstuffs. That court therefore asks whether the features intended to distinguish such packaging from that of foodstuffs may be removed when the product is first used, or whether they must remain on the packaging intact and permanently.
29 In the second place, it considers the relevant market for the purposes of assessing such similarity under that provision.
30 In the third place, that court is considering how the term ‘consumers’ should be interpreted within the meaning of that provision and, more specifically, whether it is necessary to include vulnerable persons within that category.
31 In the fourth place, it has doubts as to the level of likelihood of confusion on the part of consumers that would be required under that provision, and as to the relevance, in that regard, of the existence of established cases of confusion.
32 In the fifth and last place, the referring court seeks to ascertain whether, for the purposes of assessing whether packaging containing a hazardous substance or mixture complies with the requirements laid down in Article 35(2) of the CLP Regulation, the category of danger to which the consumer is exposed in the event of confusion and the specific risk associated with exposure to that substance or mixture are decisive.
33 In those circumstances, the Svea hovrätt, Mark- och miljööverdomstolen (Svea Court of Appeal, Land and Environment Court of Appeal, Stockholm), decided to stay proceedings and refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) On the basis of which detailed criteria must the assessment under Article 35(2) of the CLP Regulation be made as to whether packaging has a similar presentation or design to that used, for example, for foodstuffs? Must measures to distinguish packaging from, for example, food packaging, be permanent throughout the life cycle of the packaging or may they be designed to be torn off?
(2) Must the assessment of whether packaging has a similar presentation or design to that, for example, for foodstuffs, be made on the basis of the food packaging on the market on which the product is placed or the market on which it is supplied to the public, and must the assessment then be made solely on the basis of the national market, the entire EU market, or parts thereof?
(3) How should the term “consumer” be interpreted and applied in Article 35(2) of the CLP Regulation? Does it relate to the average consumer or must vulnerable or disadvantaged consumer groups, such as visually impaired persons, persons with other disabilities and children, also be included in the notion of consumer? If so, how must their specific needs be taken into account?
(4) What must be the level of likelihood of the consumer being misled into believing that the packaging contains foodstuff? Is it sufficient for there to be a theoretical or insignificant likelihood or must the likelihood be real? Is it relevant to take into account in that assessment whether confusion with foodstuffs has actually occurred, where such information is available?
(5) Must the hazard category and the specific risk of the substance or mixture be taken into account when applying Article 35(2) of the CLP Regulation? Must that article be interpreted as applying to packaging containing a hazardous substance or mixture and having a similar presentation or a design used for foodstuffs, where, as in this case, the contents of the packaging are not hazardous to ingest but are hazardous only in the case of other types of exposure, such as the mixture being capable of causing reversible eye irritation?’
Consideration of the questions referred
The first question
34 By its first question, the referring court asks, in essence, first, whether the criteria to be applied in assessing whether packaging containing a hazardous substance or mixture supplied to the general public has a presentation or appearance similar to that used for foodstuffs, within the meaning of the first subparagraph of Article 35(2) of the CLP Regulation. Secondly, it asks whether that provision must be interpreted as meaning that, for the purposes of that assessment, account must be taken, as a decisive factor, the presence of safety features affixed to packaging containing a hazardous substance or mixture, designed to distinguish it from packaging containing foodstuffs, even if those features do not remain intact throughout the entire lifespan of the packaging containing such a substance or mixture.
35 As a preliminary point, it should be noted that, according to Article 3(1) of the CLP Regulation, a substance or mixture which meets the criteria relating to physical hazards, health hazards or environmental hazards, as set out in Parts 2 to 5 of Annex I to that regulation, is hazardous and is classified as such in one of the hazard classes provided for in Annex I.
36 It is undisputed that the packaging of the products at issue in the main proceedings contains a substance or mixture which meets the criteria for a health hazard set out in point 3.3 of Annex I to that regulation, entitled ‘Serious eye damage/eye irritation’, and which is classified in hazard category 2, known as ‘eye irritation’, in accordance with point 3.3.2(b) of that Annex I.
37 Where a substance or mixture is classified as hazardous, Article 4(4) of the CLP Regulation requires suppliers to ensure that that substance or mixture is labelled and packaged in accordance with the provisions of Titles III and IV before it is placed on the market.
38 In that regard, Article 35 of the CLP Regulation, which forms part of Title IV of that regulation, sets out the requirements to be met by packaging containing such substances or mixtures.
39 In particular, the first subparagraph of Article 35(2) of that regulation is intended to prevent consumers from using a dangerous product in a manner other than that for which it was designed. Under that provision, packaging containing a hazardous substance or mixture supplied to the general public must not have a shape or design likely to attract or encourage children’s active curiosity or to mislead consumers, nor must it have a presentation or design similar to that used for foodstuffs, animal feed, medicinal products or cosmetics, which would mislead consumers.
40 The questions referred by the referring court relate, more specifically, to the second scenario referred to in the first subparagraph of Article 35(2) of the CLP Regulation, namely that the presentation or appearance of packaging containing a hazardous substance or mixture must not be similar to that used, in particular, for foodstuffs.
41 In the first place, with regard to the criteria on the basis of which it is necessary to determine whether there is a similarity between the presentation and appearance of packaging containing a dangerous substance or mixture and that used for foodstuffs, it should be noted, from the outset, that the wording of Article 35(2) of that regulation does not explicitly refer to such criteria.
42 Nevertheless, the EU legislature, by referring in that wording to broad concepts such as the ‘presentation’ of packaging or its ‘aesthetics’ – separated by the conjunction ‘or’ – intended to take into account all the perceptible characteristics of the packaging of a dangerous substance or mixture.
43 Consequently, in order to assess whether packaging containing a hazardous substance or mixture supplied to the general public has a presentation or appearance similar to that used for foodstuffs, which would mislead consumers within the meaning of the first subparagraph of Article 35(2) of the CLP Regulation, account must be taken of its overall appearance.
44 In particular, such similarity must be taken into account where, in view of the overall impression created by the packaging containing a dangerous substance or mixture, that packaging resembles that of a foodstuff and is likely to be confused with it on account of objective characteristics such as, in particular, its shape, size, volume, design, colour, labelling, materials of composition, texture, smell or a combination of some or all of those elements, which usually enable the general public to identify foodstuffs.
45 Furthermore, given the wide variety of packaging containing hazardous substances or mixtures, the assessment of whether a given package complies with the requirements of the first subparagraph of Article 35(2) of the CLP Regulation must be carried out on a case-by-case basis.
46 In the context of that assessment, account must be taken of the purpose of the CLP Regulation, which, as provided for in Article 1(1) thereof and set out in recital 1 thereof, is aimed, inter alia, at ensuring a high level of protection of human health and the environment. In view of that objective, the packaging requirements arising from the first subparagraph of Article 35(2) of that regulation must therefore be assessed in the light of their ability to ensure a high level of protection of consumers’ health.
47 In the second place, as regards the questions referred by the referring court concerning the taking into account, when assessing the similarity between packaging containing a dangerous substance or mixture and that containing a foodstuff, of safety devices affixed to the former packaging, even if those devices are not permanent, in that they do not remain intact throughout the entire lifespan of the packaging containing such a substance or mixture, that court states that, in this case, the issue concerns the presence of a label covering the cap on the packaging, which is intended to be removed upon first use of that substance or mixture.
48 As the wording of Article 35(2) of the CLP Regulation does not provide any specific guidance in that regard, it is necessary to examine the context in which that provision is set out, as well as the objective pursued by the EU legislature.
49 In that regard, Article 9(5) of that regulation provides that, when assessing the available information for the purposes of classification, manufacturers, importers and downstream users are to take into account the physical forms or states in which the substance or mixture is placed on the market and in which it can reasonably be expected ‘to be used’.
50 Furthermore, Article 35(1)(c) of that regulation stipulates that packaging containing dangerous substances or mixtures must, in particular, meet the requirement that all components of the packaging and closures are strong and robust, so as to prevent any loosening and to withstand safely the stresses and effects normally encountered during handling.
51 Furthermore, with regard to liquid laundry detergents intended for consumers and packaged in soluble, single-use packaging, it follows from point 3.3.2 of Annex II to the CLP Regulation that such packaging must retain its functionality under conditions of repeated opening and closing for ‘the entire life span of the outer packaging’.
52 It follows from those provisions that a safety device which covers and seals the cap fitted to a container holding a dangerous product must remain in place for the entire lifespan of that container. In the present case, as the products in question are liquid laundry detergents, for which the safety device consists of a label, it should be noted that, as that type of product is used regularly and is therefore present in households over the long term, the purpose of that label does not cease to exist after the product has been used for the first time.
53 That interpretation is supported by the objective of ensuring a high level of protection of human health, which is pursued by the CLP Regulation. As the Advocate General noted, in essence, in paragraph 41 of his Opinion, the CLP Regulation aims to protect not only the purchaser of a hazardous substance or mixture at the time of the purchase decision, but also any potential user of such a substance or mixture, and that applies throughout the lifespan of the product in question, since the risk of confusion between that product and foodstuffs may exist both at the time of purchase and during the subsequent use of that product.
54 As regards the presence of a warning on the packaging stating, in this case, that the hazardous substance or mixture contained therein must not be ingested – to which reference is also made in the documents submitted to the Court – it should be noted that, as is apparent from Articles 17 to 22 of the CLP Regulation, packaging containing a hazardous substance or mixture must necessarily bear such information and be designed in such a way that it cannot be damaged or that its contents cannot be lost. Those requirements apply in addition to those set out in the second part of the first subparagraph of Article 35(2) of that regulation. Furthermore, statements and warnings indicating that the hazardous product in question must not be ingested do not necessarily counteract the immediate visual impact on consumers of the presentation or appearance of the packaging containing a hazardous substance or mixture which, given its similarity to that used for foodstuffs, is likely to be mistaken for packaging containing such foodstuffs.
55 In this case, such an additional safety feature, just like the presence of a label covering the cap on the packaging – which seals the opening and must be torn off when the substance or mixture is used for the first time – in so far as they do not necessarily alter the overall impression created by that packaging, cannot, in themselves, be sufficient to rule out the possibility that the consumer might be misled into confusing that packaging with, in particular, that of foodstuffs, in breach of the first subparagraph of Article 35(2) of the CLP Regulation.
56 In view of the foregoing, the answer to the first question is that the first subparagraph of Article 35(2) of the CLP Regulation must be interpreted as meaning that the assessment of whether packaging containing a hazardous substance or mixture supplied to the general public has a presentation or appearance similar to that used, in particular, for foodstuffs, which would mislead consumers, within the meaning of that provision:
– must be carried out on a case-by-case basis, taking into account the overall appearance of the packaging and, in particular, its objective characteristics, such as, amongst others, its shape, size, volume, design, colour, labelling, materials used, texture, smell or a combination of some or all of those elements;
– does not imply that the presence of safety features affixed to packaging containing a hazardous substance or mixture, intended to distinguish it from packaging containing foodstuffs, is to be taken into account as a determining factor, where such features do not remain intact throughout the entire lifespan of the packaging containing such a substance or mixture.
The second question
57 By its second question, the referring court asks, in essence, whether the first subparagraph of Article 35(2) of the CPL Regulation must be interpreted as meaning that, for the purposes of assessing the similarity between the presentation or appearance of packaging containing a hazardous substance or mixture supplied to the general public and that used for foodstuffs, account should be taken solely of the market in the Member State concerned or of the markets in other Member States where that substance or mixture is marketed.
58 That court states that KEMI is competent to carry out market surveillance only in respect of product packaging placed on the Swedish market, and expresses doubts as to the meaning of the phrase ‘supplied to the general public’ in that provision.
59 In accordance with settled case-law, in order to interpret a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, to that effect, judgment of 17 April 2018, Egenberger, C‑414/16, EU:C:2018:257, paragraph 44 and the case-law cited).
60 First of all, as regards the wording of the first subparagraph of Article 35(2) of the CPL Regulation, it follows that the packaging containing a dangerous substance or mixture to which that provision refers is that supplied to the ‘general public’. That simple statement, without further clarification, does not in itself make it possible to determine what the relevant market is for the purposes of assessing compliance with the requirements laid down in that provision.
61 As regards, next, the context in which the first subparagraph of Article 35(2) of that regulation is set, it should be noted that, as is apparent from Article 43 of that regulation, it entrusts the enforcement and supervision of the rules laid down therein to the Member States through their competent authorities, which are responsible, in particular, for implementing the obligations set out in that regulation. Those national authorities are responsible for ensuring the effectiveness of market surveillance, by ensuring that products comply with the applicable Union harmonisation legislation and by safeguarding, within their territory, the public interest covered by that legislation.
62 Under Article 46(1) of the CLP Regulation, Member States must take all necessary measures, including the implementation of a system of official controls, to ensure that substances and mixtures are not placed on the market unless they have been classified, labelled, notified and packaged in accordance with the provisions of that regulation. Paragraph 1a of Article 46 refers, for the purposes of paragraph 1 thereof, to Regulation 2019/1020, which applies, in accordance with Article 2 of, and point 25 of Annex I to, that regulation, to products falling within the scope of the CLP Regulation.
63 It is important to note that Article 3(4) of Regulation 2019/1020 defines a market surveillance authority as an authority designated by a Member State responsible for carrying out market surveillance ‘in the territory of that Member State’. Furthermore, under Article 11(1)(a) of Regulation 2019/1020, market surveillance authorities carry out their activities with a view to ensuring the effective market surveillance of products made available both online and offline ‘within their territory’ in respect of products subject to Union harmonisation legislation.
64 Accordingly, having regard to the provisions referred to in paragraphs 61 to 63 of this judgment, it must be held that, when assessing whether packaging containing a hazardous substance or mixture complies with the requirements of the first subparagraph of Article 35(2) of the CLP Regulation, the supervisory authority of a Member State must take into account the fact that such packaging resembles a product that is well-known and recognised in that State. Moreover, the specific assessment by the competent national authorities of the risk of misleading consumers, within the meaning of that provision, necessarily involves taking into account the perception of the packaging by those consumers. That assessment must be carried out in relation to the public actually exposed to the product at issue on the national market where it is made available to that public.
65 Such an interpretation is, moreover, supported by Article 11(9) of Regulation 2019/1020, from which it follows that, without prejudice to the Union’s safeguard procedures provided for by the applicable Union harmonisation legislation, the presumption of non-conformity of products arising from a decision to that effect by a market surveillance authority of a Member State – which is binding on the authorities of the other Member States – may be rebutted by a decision of one of those authorities reaching a contrary conclusion following an investigation conducted by it.
66 That power granted to national authorities to reach a different conclusion as to the non-conformity of a given product, on the basis of a possible difference in assessment, is based on the EU legislature’s recognition that, even in the context of full harmonisation of labelling and packaging rules, the perception of that product and the assessment of a likelihood of confusion in the minds of the public may not be the same throughout the Union. Such a power is based on the need to take into account factors such as, in this case, the customary presentation of certain products, specific to a given national market, as well as the perception of those products by consumers in that market.
67 It should also be noted that an interpretation of the first subparagraph of Article 35(2) of the CLP Regulation to the effect that that provision implies that national authorities assessing the similarity between products may not take the national market as their reference market, but are obliged to take into account that of other Member States, or even of all Member States, would be difficult to reconcile with one of the objectives of that regulation, which is to ensure a high level of protection of human health. The mere finding that there is a similarity between the presentation or appearance of packaging containing a hazardous substance or mixture and that used for foodstuffs in a Member State should be sufficient to enable the competent national authorities to take the necessary decisions to protect human health, as the risk of confusion must be assessed in relation to the public actually exposed to the product in question.
68 Finally, the interpretation of the first subparagraph of Article 35(2) of the CLP Regulation, as set out in paragraph 64 of this judgment, is not contrary to the objective pursued by that regulation of ensuring a uniform framework governing the requirements applicable to substances and mixtures with a view to ensuring, in particular, their free movement within the Union, as set out in Article 1(1)(a) of that regulation, read in the light of recital 2 of that regulation.
69 That objective is achieved by a uniform determination of the criteria for assessing the similarity between the presentation or appearance of packaging containing dangerous substances or mixtures and that used for foodstuffs throughout the territory of the Union and, as the Advocate General also observed, in essence, in point 52 of his Opinion, is not called into question by the fact that, when assessing that similarity, the market of a Member State may constitute the reference market.
70 Furthermore, the interpretation of the first subparagraph of Article 35(2) of the CLP Regulation, as set out in paragraph 64 of this judgment, does not, either, undermine the other objective of that regulation, which, as is apparent from Article 1(1) thereof and as set out in recital 1, is to ensure the free movement of chemical substances. In that regard, with reference to Council Directive 87/357/EEC of 25 June 1987 on the approximation of the laws of the Member States concerning products which, appearing to be other than they are, endanger the health or safety of consumers (OJ 1987 L 192, p. 49), the purpose of which was similar to that of the CLP Regulation and whose dual objective was to ensure adequate and equivalent protection of consumers in all Member States and to remove obstacles to the functioning of the internal market, the Court held that that directive applied to an indefinite number of products possessing certain characteristics, in respect of which it must be determined, on a case-by-case basis and ‘on the basis of each Member State’, whether they may present the risks referred to in that directive (judgment of 2 June 2022, Get Fresh Cosmetics, C‑122/21, EU:C:2022:421, paragraph 39).
71 In view of the foregoing considerations, the answer to the second question is that the first subparagraph of Article 35(2) of the CPL Regulation must be interpreted as meaning that, for the purposes of assessing the similarity between the presentation or appearance of packaging containing a hazardous substance or mixture and that used for foodstuffs, in accordance with the harmonised rules on the labelling and packaging of hazardous substances and mixtures, the competent authorities of a Member State may take into account factors specific to the national market on which the product in question is placed on the market, without it being necessary to examine whether that presentation or appearance would also be regarded as misleading in other Member States within whose territory that product is placed on the market.
The third question
72 By its third question, the referring court asks, in essence, whether the first subparagraph of Article 35(2) of the CLP Regulation must be interpreted as meaning that the term ‘consumers’, within the meaning of that provision, refers only to the average consumer who is reasonably well-informed and reasonably observant and circumspect, or whether it also includes children and vulnerable persons who may have particular difficulty in perceiving or assessing the appearance of packaging containing a hazardous substance or mixture. If that concept were to be understood as covering such persons, that court questions how their specific needs should be taken into account.
73 As regards, in the first place, the questions referred by the referring court concerning the scope of the term ‘consumers’ within the meaning of the CLP Regulation, and, in particular, the first subparagraph of Article 35(2) of that regulation, neither the regulation itself nor the wording of that provision – which refers to that term on two occasions – specifies its scope.
74 However, it should be noted, first, that, in the context of the CLP Regulation, and in particular the first subparagraph of Article 35(2) thereof, the EU legislature has not qualified the term ‘consumers’ with the adjective ‘average’, as is the case in other acts of secondary EU law, particularly in the field of consumer protection.
75 Secondly, the wording of that provision refers to packaging containing a dangerous substance or mixture supplied ‘to the general public’ and not to a specialist audience. As the European Commission argued in its written observations, such a reference means that all categories of consumers, including vulnerable persons, who may reasonably be expected to purchase or use products such as those at issue in the main proceedings, the packaging of which contains a hazardous substance or mixture, should be taken into account when assessing whether the packaging of such products complies with the requirements of that provision.
76 In that regard, as the Advocate General noted in point 67 of his Opinion, it is apparent from the European Chemicals Agency’s (ECHA) guidance on labelling and packaging in accordance with Regulation No 1272/2008, which, although not legally binding, may provide useful guidance for the interpretation of the relevant provisions of EU law (see, by analogy, judgment of 13 March 2025, Cassella-med and MCM Klosterfrau, C‑589/23, EU:C:2025:173, paragraph 40 and the case-law cited), that products are intended ‘for the general public’ where, for example, they are on sale or on promotion at a retailer or in a point of sale to which the general public has free access, or where they are sold online, the definition of that concept being set out in the section of that guide devoted, in particular, to products accessible to children.
77 Thirdly, it should also be noted that the wording of the first subparagraph of Article 35(2) of the CLP Regulation refers not only to ‘consumers’ but also to ‘children’. However, the specific reference to children cannot lead to the conclusion that they are not covered by the term ‘consumers’. As the Advocate General also observed in point 75 of his Opinion, that reference must be interpreted as merely expressing the intention of the EU legislature to emphasise the importance of taking particular account of the interests of children.
78 Those findings support an interpretation of the first subparagraph of Article 35(2) of that regulation, according to which the EU legislature did not intend to limit the scope of the term ‘consumers’ to the average consumer who is reasonably well-informed, reasonably observant and circumspect, who purchases a product whose packaging contains a dangerous substance or mixture and who, depending in particular on the characteristics of the point of sale or the location of that product within that point of sale, may be misled, but has adopted a broad interpretation of that concept, encompassing all individuals likely to use the product at a later stage following its purchase, including children and vulnerable persons, who may reasonably be regarded as being, by virtue of their vulnerability, particularly exposed to the risk of confusion.
79 That is all the more true given that the risk of confusion is heightened where vulnerable persons are concerned, as some of them are likely to be more easily attracted and misled by the appearance of the packaging. The Court has already held, in relation to products which, by not appearing to be what they are, endanger the health or safety of consumers, that the assessment of the likelihood that a dangerous substance or mixture may be mistaken for a foodstuff must take into account the vulnerability associated with the categories of persons and consumers likely to be faced with products with the appearance of foodstuffs, including in particular children (see, by analogy, judgment of 2 June 2022, Get Fresh Cosmetics, C‑122/21, EU:C:2022:421, paragraph 43).
80 The broad interpretation of the term ‘consumers’ that emerges from the wording of the first subparagraph of Article 35(2) of the CLP Regulation is supported by the context of that provision, which is characterised by an emphasis on the protection of consumers and, in particular, children.
81 Thus, Article 2(1a) of Regulation No 648/2004, to which the fourth subparagraph of Article 35(2) of the CLP Regulation refers, concerning ‘liquid consumer laundry detergents’, refers to detergents placed on the market for use by ‘non-professionals’, thereby adopting a broad interpretation of the term ‘consumers’.
82 The third subparagraph of Article 35(2) of the CLP Regulation provides that certain packaging must bear a tactile warning of danger, which supports the interpretation that the term ‘consumers’ includes vulnerable persons, given that tactile warnings are specifically intended for people with visual impairments.
83 The objective of protecting a high level of human health, as set out in Article 1(1) of the CLP Regulation, also supports the interpretation that the requirements of that regulation were not designed to protect solely an average consumer who is reasonably well-informed and reasonably observant and circumspect. A broad interpretation of the term ‘consumers’ is all the more necessary in the case of substances or mixtures which, as in the present case, have been classified as hazardous within the meaning of that regulation, given the potential adverse consequences for the health of such persons in the event of confusion between such substances or mixtures and foodstuffs.
84 In the second place, in the event that the term ‘consumers’, referred to in the first subparagraph of Article 35(2) of the CLP Regulation, is to be understood as including vulnerable persons, the referring court also raises the question of the specific needs of such persons and how those needs should be taken into account.
85 In that regard, it should be noted from the outset that the assessment of whether the presentation or appearance of packaging containing a dangerous substance or mixture is similar to that used for foodstuffs must be carried out by means of an assessment which takes account of the specific needs of vulnerable persons.
86 In particular, account must be taken of the limited ability of some people to access the information on the packaging and to identify dangerous products or to perceive certain characteristics of that packaging, which increases the likelihood of a risk of confusion on their part due to the similarity between the presentation and appearance of packaging containing a dangerous substance or mixture and that used for foodstuffs. Depending on the type of vulnerability in question, certain characteristics of packaging – such as, for example, the shape and texture perceptible to the touch, or the smell – may prove more decisive than others in identifying the product for a particular group of people. The overall appearance of the packaging also plays a particular role, as it must not be reminiscent of foodstuffs.
87 With regard, in particular, to children, the competent national authorities must assess whether the characteristics of packaging containing a hazardous substance or mixture – such as, in particular, those referred to in paragraph 44 of this judgment, namely the shape, size, volume, colour, smell, the materials from which the packaging is made, or a combination of some or all of those elements – are such as to mislead children by suggesting that the product is edible, such as, in this case, a drink.
88 In this case, it is for the competent national authorities to ascertain, by means of an overall assessment, whether, having regard to the guidance set out in paragraphs 85 to 87 of this judgment, the presentation or appearance of packaging containing a dangerous substance or mixture – including its elongated brick-like shape, the use of cardboard as the material from which it is made, as well as the combination of colours used and the information appearing thereon – evoke in the minds of consumers those used for a foodstuff, such as, in this case, a drink, in breach of the first subparagraph of Article 35(2) of the CLP Regulation.
89 In the light of the foregoing considerations, the answer to the third question is that the first subparagraph of Article 35(2) of the CLP Regulation must be interpreted as meaning that the term ‘consumers’, within the meaning of that provision, refers both to the average consumer who is reasonably well-informed and reasonably observant and circumspect, and to children and vulnerable persons who may have particular difficulty in perceiving or assessing the appearance of packaging containing a hazardous substance or mixture. When assessing the similarity between the presentation or appearance of packaging containing a hazardous substance or mixture and that used for foodstuffs, within the meaning of that provision – by means of an assessment of the general appearance of that packaging – account must be taken of the ability of such persons to perceive the characteristics of that packaging.
The fourth question
90 By its fourth question, the referring court asks, in essence, whether the first subparagraph of Article 35(2) of the CLP Regulation must be interpreted as meaning that characterising a risk of misleading consumers as non-negligible is sufficient to conclude that the requirements laid down in that provision are not met and that, for the purposes of assessing such a risk, the fact that confusion has already arisen between packaging containing a hazardous substance or mixture and that containing a foodstuff is decisive.
91 That court observes, in essence, that certain language versions of the first subparagraph of Article 35(2) of that regulation might suggest that there is a difference in the level of risk required by the two scenarios referred to in that provision, namely that concerning the possibility that a form or design might attract or encourage the active curiosity of children or mislead consumers, and that concerning the similarity of the presentation or design of the packaging in question which might mislead consumers. According to that court, it cannot be ruled out that the second scenario requires a higher level of risk than the first. It thus refers, in particular, to the English-language version (‘likely … to mislead consumers, or have a similar presentation or a design used for foodstuff …, which would mislead consumers’), the French-language version (‘susceptible … d’induire les consommateurs en erreur, ni une présentation ou une esthétique similaire à celles qui sont utilisées pour les denrées alimentaires, … qui tromperait les consommateurs’) and the Swedish-language version (‘en form eller formgivning som kan … vilseleda konsumenterna eller ha ett utförande eller en formgivning som liknar dem som används för livsmedel … som skulle vilseleda konsumenterna’).
92 However, it should be noted that the wording of the first subparagraph of Article 35(2) of the CLP Regulation varies between the different language versions. Thus, language versions other than those cited by the referring court, such as the Italian-language version (‘o sia tale da indurre i consumatori in errore, né hanno una presentazione o un disegno …, atti a indurre i consumatori in errore’) or the Romanian-language version (‘care să inducă în eroare consumatorii şi, de asemenea, trebuie să nu aibă o prezentare similară sau un aspect utilizat(ă) pentru produsele alimentare sau pentru hrana pentru animale sau pentru produsele cosmetice ori medicinale, care să inducă în eroare consumatorii’), use a single expression to describe the packaging’s capacity to mislead the consumer.
93 In that regard, it should be noted that, beyond those semantic differences, the various language versions of the first subparagraph of Article 35(2) of the CLP Regulation all refer to the requirement that packaging containing a hazardous substance or mixture supplied to the general public must not be such as to create a risk of confusion in the mind of the consumer.
94 As is apparent from paragraph 44 of this judgment, the existence of such a risk must be established following an analysis of the similarity between packaging containing a dangerous substance or mixture and that containing a foodstuff, based on objective characteristics such as, in particular, its shape, size, volume, design, colour, labelling, the materials from which it is made, its texture and its smell, without it being necessary to establish a risk threshold on the basis of which the first subparagraph of Article 35(2) of the CLP Regulation would or would not apply.
95 Furthermore, given the objective of the CLP Regulation to ensure a high level of protection of human health, the first subparagraph of Article 35(2) of that regulation, which is intended to prevent confusion between a given package containing a hazardous substance or mixture and one containing foodstuffs, cannot be interpreted as requiring a high level of risk of consumer deception, but, as the Advocate General also noted in point 99 of his Opinion, that the risk must be non-negligible.
96 As regards the referring court’s questions on the relevance, in the context of that risk assessment, of a proven precedent of confusion between a given package containing a hazardous substance or mixture and one containing foodstuffs, it must be held that the first subparagraph of Article 35(2) of the CLP Regulation does not make compliance with the requirements it lays down conditional upon proof of the existence of proven cases of consumer deception.
97 Whilst the existence of such a precedent may constitute an indication that there is a risk of misleading consumers, the wording of the first subparagraph of Article 35(2) of that regulation does not allow for the conclusion that national supervisory authorities are required to demonstrate, on the basis of the available information, that confusion with packaging containing foodstuffs has actually occurred, or that the absence of such evidence must necessarily lead those authorities to conclude that no such risk exists. Moreover, an interpretation of that provision which required proof of actual cases of confusion would run counter to the CLP Regulation’s objective of ensuring a high level of protection of human health.
98 In that regard, the Court has already held, in relation to Directive 87/357 – the purpose of which was similar to that of the CLP Regulation – that the competent national authorities were not required to demonstrate, by means of objective and substantiated data, that consumers would mistake the products covered by that directive for foodstuffs and that the resulting risks of personal injury were established (judgment of 2 June 2022, Get Fresh Cosmetics, C‑122/21, EU:C:2022:421, paragraph 44).
99 It follows that the answer to the fourth question is that the first subparagraph of Article 35(2) of the CLP Regulation must be interpreted as meaning that the fact that the risk of misleading consumers is characterised as non-negligible is sufficient to conclude that the requirements laid down in that provision are not met, without proof of a previous instance of actual confusion between a given package containing a hazardous substance or mixture and one containing a foodstuff being decisive in that regard.
The fifth question
100 By its fifth question, the referring court asks, in essence, whether the first subparagraph of Article 35(2) of the CLP Regulation is to be interpreted as meaning that, for the purposes of assessing whether the packaging of a hazardous substance or mixture complies with the requirements laid down in that provision, the decisive factors are the hazard class or category to which that substance or mixture belongs or the specific risk associated with it, and, if so, that provision applies to packaging containing a hazardous substance or mixture and having a presentation or appearance similar to that used for foodstuffs, where the contents do not present a hazard if ingested.
101 That court asks the Court of Justice whether the competent national authority’s assessment of compliance with the requirements laid down in the first subparagraph of Article 35(2) of that regulation is always the same, regardless of the hazard category into which the product in question is classified. In particular, given that that provision prohibits packaging containing a dangerous substance or mixture from having a presentation or appearance similar to that used for foodstuffs, the referring court asks whether the fact that the risk posed in the event of confusion between such packaging is, in this case, that of temporary eye irritation upon contact with the eyes, rather than a risk in the event of ingestion of that substance or mixture, is relevant for the purposes of that assessment. Given that the packaging at issue in the main proceedings does not resemble that of a product intended to come into contact with the eyes, any confusion with that of foodstuffs would be irrelevant to the question of whether the consumer is likely to be exposed to such irritation.
102 As already noted in paragraph 36 of this judgment, it is apparent from the order for reference that the contents of the packaging at issue in the main proceedings fall, in accordance with point 3.3 of Annex I to the CLP Regulation, within the hazard class entitled ‘serious eye damage/eye irritation’ and, pursuant to point 3.3.2 of that annex, within category 2 of that hazard class, known as ‘eye irritation’, relating to substances which may cause reversible eye irritation.
103 Furthermore, the referring court appears to be proceeding on the assumption that the contents of those packages do not pose a danger if swallowed. Whilst Orkla also maintains that the products at issue in the main proceedings are not dangerous if swallowed, it nevertheless acknowledges, in its written observations, that they contain surfactants which may cause temporary nausea and vomiting.
104 In the first place, it is important to note that whilst certain provisions of the CLP Regulation relate only to specific hazard categories associated with certain substances or mixtures, other provisions of that regulation – in particular the first subparagraph of Article 35(2) – are of a general nature and apply equally to all hazardous substances and mixtures.
105 In so far as the first subparagraph of Article 35(2) of the CLP Regulation applies to packaging containing a hazardous substance or mixture supplied to the general public and having a form or appearance similar to that used, in particular, for foodstuffs, the wording of that provision does not require the hazard class and category of the dangerous substance or mixture in question, or the specific risk associated with them, to be taken into account as a decisive factor.
106 The criteria for assessing, on the one hand, the similarity between the presentation or appearance of packaging containing a dangerous substance or mixture and that used for foodstuffs and, on the other hand, the risk of deception, as set out in that provision, are the same regardless of the nature of the danger posed by the substance or mixture in question.
107 Consequently, where a substance or mixture has been classified as hazardous in accordance with the requirements of Article 3(1) of the CLP Regulation, that substance or mixture must, pursuant to Article 4(4) of that regulation, comply with the requirements set out in the first subparagraph of Article 35(2) thereof. The classification of that substance or mixture in relation to the relevant hazard is therefore irrelevant once it has been classified as hazardous.
108 A reference for a preliminary ruling has been made concerning, inter alia, the interpretation of Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ, English Special Edition 1967, p.234), the Court has already referred to the distinction between the assessment of the hazard posed by substances and that of the risk they present. It has, in fact, held that the classification and labelling of substances laid down by that directive are based on the provision of information on the hazards associated with the intrinsic properties of the substances, and that the hazard assessment constitutes the first stage of the risk assessment process, which is a more precise concept. Having emphasised that that distinction between hazards and risks has been retained in the CLP Regulation, the Court has held that an assessment of the hazards associated with the intrinsic properties of substances must not be restricted by specific circumstances of use, as is the case with a risk assessment, and may be validly carried out irrespective of the place of use of the substance, the route by which contact with the substance might occur, such as by ingestion, inhalation or dermal absorption, and any levels of exposure to the substance (see, to that effect, judgments of 21 July 2011, Nickel Institute, C‑14/10, EU:C:2011:503, paragraphs 81 and 82, and of 21 July 2011, Etimine, C‑15/10, EU:C:2011:504, paragraphs 74 and 75).
109 Consequently, Article 35(2) of the CLP Regulation applies to packaging containing a hazardous substance or mixture and having a presentation or appearance similar to that used for foodstuffs, even in the event – assuming that were proven – that the contents do not pose a hazard if ingested.
110 In the second place, as regards the need to take account of the specific risk that may arise in the event of confusion between products, in a situation where the chemical in question poses a risk only in the event of contact with the eyes and not in the event of ingestion, it is important to note that the first subparagraph of Article 35(2) of the CLP Regulation, whilst governing, inter alia, possible confusion with a foodstuff, does not make the prohibition it provides for conditional upon the existence of a hazard in the event of ingestion of the substance or mixture in question, but is intended, in general, to prevent any hazardous exposure to chemicals that might result from such confusion.
111 Given the objective of ensuring a high level of protection of human health pursued by the CLP Regulation, as recalled in paragraph 46 of this judgment, the protection afforded by the first subparagraph of Article 35(2) of that regulation applies to any type of adverse effect resulting from a consumer’s exposure to a dangerous product, including eye irritation.
112 In the light of the foregoing, the answer to the fifth question is that the first subparagraph of Article 35(2) of the CLP Regulation must be interpreted as meaning that, for the purposes of assessing whether the packaging of a hazardous substance or mixture complies with the requirements laid down in that provision, neither the hazard class or category to which that substance or mixture belongs nor the specific risk associated with it is decisive.
Costs
113 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.
On those grounds, the Court (Eighth Chamber) hereby rules:
1. The first subparagraph of Article 35(2) of 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, as amended by Commission Regulation (EU) No 1297/2014 of 5 December 2014 and by Regulation (EU) 2024/2865 of the European Parliament and of the Council of 23 October 2024,
must be interpreted as meaning that the assessment of whether packaging containing a dangerous substance or mixture supplied to the general public has a presentation or appearance similar to that used, in particular, for foodstuffs, which would mislead consumers within the meaning of that provision,
– must be carried out on a case-by-case basis, taking into account the overall appearance of the packaging and, in particular, its objective characteristics, such as, amongst others, its shape, size, volume, design, colour, labelling, materials used, texture, smell, or a combination of some or all of those elements;
– does not imply that the presence of safety features affixed to packaging containing a hazardous substance or mixture, intended to distinguish it from packaging containing foodstuffs, is to be taken into account as a determining factor, where such features do not remain intact throughout the entire lifespan of the packaging containing such a substance or mixture.
2. The first subparagraph of Article 35(2) of Regulation No 1272/2008, as amended by Regulation No 1297/2014 and by Regulation 2024/2865,
must be interpreted as meaning that, for the purposes of assessing the similarity between the presentation or appearance of packaging containing a hazardous substance or mixture and that used for foodstuffs, in accordance with the harmonised rules on the labelling and packaging of hazardous substances and mixtures, the competent authorities of a Member State may take into account factors specific to the national market on which the product in question is placed on the market, without it being necessary to examine whether that presentation or appearance would also be regarded as misleading in other Member States within whose territory that product is placed on the market.
3. The first subparagraph of Article 35(2) of Regulation No 1272/2008, as amended by Regulation No 1297/2014 and by Regulation 2024/2865,
must be interpreted as meaning that the term ‘consumers’, within the meaning of that provision, refers both to the average consumer who is reasonably well-informed and reasonably observant and circumspect, and to children and vulnerable persons who may have particular difficulty in perceiving or assessing the appearance of packaging containing a hazardous substance or mixture.
When assessing the similarity between the presentation or appearance of packaging containing a hazardous substance or mixture and that used for foodstuffs, within the meaning of that provision – by means of an assessment of the general appearance of that packaging – account must be taken of the ability of those persons to perceive the characteristics of that packaging.
4. The first subparagraph of Article 35(2) of Regulation No 1272/2008, as amended by Regulation No 1297/2014 and Regulation 2024/2865,
must be interpreted as meaning that the fact that the risk of misleading consumers is characterised as non-negligible is sufficient to conclude that the requirements laid down in that provision are not met, without proof of a previous instance of actual confusion between a given package containing a hazardous substance or mixture and one containing a foodstuff being decisive in that regard.
5. The first subparagraph of Article 35(2) of Regulation No 1272/2008, as amended by Regulation No 1297/2014 and Regulation 2024/2865,
must be interpreted as meaning that, for the purposes of assessing whether the packaging of a hazardous substance or mixture complies with the requirements laid down in that provision, neither the hazard class or category to which that substance or mixture belongs nor the specific risk associated with it is decisive.
[Signatures]