Opinion of the Advocate General — ECLI:EU:C:2016:474
Date: 2016-06-22
Language of the case: German
Subject matter: Agriculture and Fisheries;Foodstuffs;Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - decision unnecessary
Origin: Germany

Summary — Judgment of the Court (Third Chamber), 23 November 2016 1. Approximation of laws — Nutritional and health claims concerning foodstuffs — Regulation No 1924/2006 — Transitional measures — Marketing of products bearing a trade mark or brand name existing before 1 January 2005 — Application to products marketed as a medicinal product and then as a foodstuff after that date (European Parliament and Council Regulation No 1924/2006, as amended by Regulation No 107/2008, Art. 28(2)) 2. Approximation of laws — Nutritional and health claims concerning foodstuffs — Regulation No 1924/2006 — Scope — Medicinal product — Not included (European Parliament and Council Regulations No 178/2002, Art. 2 and No 1924/2006, and amended by Regulation No 107/2008, Art. 2(1)(a)) 1. Article 28(2), first sentence, of Regulation No 1924/2006 on nutrition and health claims made on foods, as amended by Regulation No 107/2008, must be interpreted as meaning that that provision applies in the situation in which a foodstuff bearing a trade mark or brand name was, before 1 January 2005, marketed as a medicinal product and then, although having the same physical characteristics and bearing the same trade mark or brand name, as a foodstuff after that date. Article 28(2) of Regulation No 1924/2006 refers to products bearing a trade mark or brand name which must be regarded as nutrition or health claims within the meaning of that regulation. In that connection, ‘products’, within the meaning of that provision, must be understood as referring to ‘foodstuffs’ for the purposes of Regulation No 1924/2006. In those circumstances, Article 28(2) of Regulation No 1924/2006 must be understood as referring only to foodstuffs bearing a trade mark or brand name which must be considered a nutrition or health claim within the meaning of that regulation. However, that provision is applicable only to products bearing a trade mark or brand name ‘existing’ before 1 January 2005. Having regard to the wording of that provision, ‘existing’ must be understood as meaning that those products had, already before that date, the same substantive characteristics and bore the same trade mark or brand name. (see paras 31, 37, 39, 46-48, operative part) 2. According to Article 2 of Regulation No 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, to which Article 2(1)(a) of Regulation No 1924/2006 on nutrition and health claims made on foods, as amended by Regulation No 107/2008, refers for the definition of ‘food’, that definition does not cover ‘medicinal products’. Therefore, if the remedies at issue in the main proceedings were ‘medicinal products’, they could not fall within the scope of Regulation No 1924/2006. (see paras 41, 43)