# C_2005257EN.01000501.xml

| 15.10.2005 | EN | Official Journal of the European Union | C 257/5 |
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15.10.2005

EN

Official Journal of the European Union

C 257/5

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Action brought on 19 August 2005 by the Commission of the European Communities against the Federal Republic of Germany

(Case C-319/05)

(2005/C 257/09)

Language of the case: German

An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 19 August 2005 by the Commission of the European Communities, represented by Bruno Stromsky and Bernhard Schima, acting as Agents, with an address for service in Luxembourg.

The Commission of the European Communities claims that the Court should:

| 1. | declare that, by classifying a garlic preparation in capsule form, which does not fall under the definition of a medicinal product by virtue of its designation, as a medicinal product, the Federal Republic of Germany has failed to fulfil its obligations under Articles 28 and 30 EC; |
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1.

declare that, by classifying a garlic preparation in capsule form, which does not fall under the definition of a medicinal product by virtue of its designation, as a medicinal product, the Federal Republic of Germany has failed to fulfil its obligations under Articles 28 and 30 EC;

| 2. | order the Federal Republic of Germany to pay the costs. |
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2.

order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

By its action, the Commission challenges the classification by the German authorities of a garlic preparation in capsule form as a medicinal product.

The Commission takes the view that the product is not a medicinal product. Garlic is a widely available foodstuff. The sale of garlic is not to be restricted on grounds of health protection. The product is not a medicinal product by virtue of its designation, because it is not indicated or recommended for treating or preventing illnesses and, furthermore, it is not typically presented as a medicinal product.

In addition, it is not a medicinal product by virtue of its function. The mildly preventive effect of garlic against atherosclerosis does not lend the product any medicinal characteristic. In the first place, such an effect can be produced by the consumption of garlic foodstuffs in various forms. Secondly, other foodstuffs, such as for example various types of fish, can guard against atherosclerosis. Thirdly, various foodstuffs which are entirely general in nature reduce the risk of various illnesses (tomatoes, broccoli, cocoa etc). The Commission takes the view that this health-beneficial effect cannot result in such foodstuffs being termed medicinal products.

Likewise, the risks involved in consuming garlic in certain situations do not justify the product at issue being classified as a medicinal product. Those risks can be dealt with by less restrictive measures.

The product at issue is therefore not a medicinal product within the meaning of Community law. Therefore the fact that it is classified as a medicinal product in Germany constitutes a barrier to the free movement of goods. It is not clear how that barrier can be justified on the grounds of protection of public health.

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