# C_2011072EN.01000202.xml

| 5.3.2011 | EN | Official Journal of the European Union | C 72/2 |
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5.3.2011

EN

Official Journal of the European Union

C 72/2

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Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 23 November 2010 — Deutsches Weintor eG v Land Rheinland-Pfalz

(Case C-544/10)

2011/C 72/03

Language of the case: German

Referring court

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Parties to the main proceedings

Applicant: Deutsches Weintor eG

Applicant:

Defendant: Land Rheinland-Pfalz

Defendant:

Questions referred

Questions referred

| 1. | Does the reference to health in a claim within the meaning of the first sentence of Article 4(3) in conjunction with Article 2(2)(5) or Article 10(3) of Regulation (EC) No 1924/2006 (1) of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, as last amended by Commission Regulation (EU) No 116/2010 (2) of 9 February 2010 (‘the Regulation’), require a beneficial nutritional or physiological effect aimed at a sustained improvement of physical condition, or is a temporary effect, limited in particular to the time taken by the intake and digestion of the food, sufficient? |
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1.

Does the reference to health in a claim within the meaning of the first sentence of Article 4(3) in conjunction with Article 2(2)(5) or Article 10(3) of Regulation (EC) No 1924/2006 (1) of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, as last amended by Commission Regulation (EU) No 116/2010 (2) of 9 February 2010 (‘the Regulation’), require a beneficial nutritional or physiological effect aimed at a sustained improvement of physical condition, or is a temporary effect, limited in particular to the time taken by the intake and digestion of the food, sufficient?

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| 2. | If the assertion of a temporary beneficial effect may in itself be a reference to health:
  In order for it to be assumed that such an effect is due to the absence or reduced content of a substance within the meaning of Article 5(1)(a) and recital 15 in the preamble to the Regulation, is it sufficient merely to assert in the claim that an effect generally derived from foods of this kind and frequently perceived as being adverse is limited in a particular case? |
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2.

If the assertion of a temporary beneficial effect may in itself be a reference to health:

In order for it to be assumed that such an effect is due to the absence or reduced content of a substance within the meaning of Article 5(1)(a) and recital 15 in the preamble to the Regulation, is it sufficient merely to assert in the claim that an effect generally derived from foods of this kind and frequently perceived as being adverse is limited in a particular case?

| 3. | If the answer to Question 2 is in the affirmative:
  Is it compatible with the first subparagraph of Article 6(1) of the Treaty on European Union, as amended on 13 December 2007, in conjunction with Article 15(1) (freedom to choose an occupation) and Article 16 (freedom to conduct a business) of the Charter of Fundamental Rights of the European Union, as amended on 12 December 2007, (3) for a producer or marketer of wine to be prohibited, without exception, from making in its advertising a health claim of the kind at issue here, even if that claim is correct? |
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3.

If the answer to Question 2 is in the affirmative:

Is it compatible with the first subparagraph of Article 6(1) of the Treaty on European Union, as amended on 13 December 2007, in conjunction with Article 15(1) (freedom to choose an occupation) and Article 16 (freedom to conduct a business) of the Charter of Fundamental Rights of the European Union, as amended on 12 December 2007, (3) for a producer or marketer of wine to be prohibited, without exception, from making in its advertising a health claim of the kind at issue here, even if that claim is correct?

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(1)  OJ 2004 L 404, p. 9.

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(2)  OJ 2010 L 37, p. 16.

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(3)  OJ 2007 C 303, p. 1.

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