# C_2005019EN.01000102.xml

| 22.1.2005 | EN | Official Journal of the European Union | C 19/1 |
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22.1.2005

EN

Official Journal of the European Union

C 19/1

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Third Chamber)

of 2 December 2004

in Case C-41/02: Commission of the European Communities v Kingdom of the Netherlands (1)

1

(Failure of a Member State to fulfil obligations - Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) - Foodstuffs to which vitamins or mineral salts have been added - National legislation making their marketing subject to there being a nutritional need - Measures having equivalent effect - Justification - Public health - Proportionality)

(2005/C 19/02)

Language of the case: Dutch

In Case C-41/02: action under Article 226 EC for failure to fulfil obligations, brought on 13 February 2002, Commission of the European Communities (Agents: H. van Lier and H.M.H. Speyart) against Kingdom of the Netherlands (Agents: H.G. Sevenster and S. Terstal) – the Court (Third Chamber), composed of: A. Rosas, President of the Chamber, A. Borg Barthet, J.-P. Puissochet, J. Malenovský (Rapporteur) and U. Lõhmus, Judges; M. Poiares Maduro, Advocate General; H. von Holstein, Deputy Registrar, for the Registrar, has given a judgment on 2 December 2004 in which it:

| 1. | Declares that, by applying an administrative practice under which foodstuffs for everyday consumption fortified with vitamin A (in the form of retinoids), vitamin D, folic acid, selenium, copper or zinc which are lawfully produced or marketed in other Member States may be marketed in the Netherlands, when they are neither substitution products nor reconstituted foodstuffs within the meaning of Article 1(1)(c) and (d) of the Warenwetbesluit Toevoeging micro-voedingsstoffen aan levensmiddelen (Decree implementing the Warenwet, on the addition of micronutrients to foodstuffs) of 24 May 1996 only if that enrichment meets a nutritional need in the Netherlands population and, in addition, without ascertaining whether those fortified foodstuffs might be a substitute for foodstuffs already marketed for which the addition of those nutrients is mandatory, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC); |
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1.

Declares that, by applying an administrative practice under which foodstuffs for everyday consumption fortified with vitamin A (in the form of retinoids), vitamin D, folic acid, selenium, copper or zinc which are lawfully produced or marketed in other Member States may be marketed in the Netherlands, when they are neither substitution products nor reconstituted foodstuffs within the meaning of Article 1(1)(c) and (d) of the Warenwetbesluit Toevoeging micro-voedingsstoffen aan levensmiddelen (Decree implementing the Warenwet, on the addition of micronutrients to foodstuffs) of 24 May 1996 only if that enrichment meets a nutritional need in the Netherlands population and, in addition, without ascertaining whether those fortified foodstuffs might be a substitute for foodstuffs already marketed for which the addition of those nutrients is mandatory, the Kingdom of the Netherlands has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC);

| 2. | Orders the Kingdom of the Netherlands to pay the costs. |
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2.

Orders the Kingdom of the Netherlands to pay the costs.

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(1)  OJ C 109 of 4.5.2002.

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