Case C-193/01 P: Appeal brought on 7 May 2001 by Athanasios Pitsiorlas against the order made on 14 February 2001 by the First Chamber of the Court of First Instance of the European Communities in Case T-3/00 between (1) Athanasios Pitsiorlas and (2) the Council of the European Union and the European Central Bank
Date: 2001-07-14
Institutions: Court of Justice
Subjects: European Central Bank, General Court (EU), abuse of power, action for annulment (EU), infringement of EU law, right to information

14.7.2001

EN

Official Journal of the European Communities

C 200/51

The Commission of the European Communities asks the Court

— to declare, pursuant to Article 226 EC, that, by applying
an administrative practice whereby enriched foodstuffs
which are lawfully marketed and produced in other
Member States may be marketed in Denmark only if
there is a documented need for enrichment of food
substances in the Danish population, the Kingdom of
Denmark has
its obligations under
Article 28 EC;

failed to fulfil

— order the Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

The administrative practice followed by the Danish authorities
on the basis of Paragraph 3 of the Foodstuffs Law indisputably
constitutes an obstacle to trade contrary to Article 28 of the
Treaty, in that foodstuffs which are lawfully sold in other
Member States cannot be marketed in Denmark. That obstacle
to trade cannot, in the Commission’s view, be justified on the
ground of public health (see Article 30 of the Treaty).

General considerations as to desirable food composition for
the population cannot lawfully ground restrictions on trade.
Reliance on Article 30 of the Treaty presupposes that the
Member State can produce evidence in each individual case
that the obstacle to trade is necessary to protect public health.

The Commission recognises that where there are no harmo-
nised rules, it is basically for the Member States to determine
the level of protection which they consider necessary with
respect to public health. The discretion of the Member States
to determine the level of protection must, however, comply
with the principle of proportionality and the measures must
be necessary to attain the aim sought. The Member States’
assessment of the risk to public health must be determined
on the basis of concrete scientific evidence. The Danish
administrative practice is based on the Codex Alimentarius,
which lays down general guidelines on the addition of vitamins
to foodstuffs. The guidelines do not give an independent
scientific basis for introducing a prohibition on enrichment of
food substances with vitamins.

Appeal brought on 7 May 2001 by Athanasios Pitsiorlas
against the order made on 14 February 2001 by the First
Chamber of the Court of First Instance of the European
Communities in Case T-3/00 between (1) Athanasios
Pitsiorlas and (2) the Council of the European Union and
the European Central Bank

(Case C-193/01 P)

(2001/C 200/92)

An appeal against the order made on 14 February 2001 by the
First Chamber of the Court of First Instance of the European
Communities in Case T-3/00 between (1) Athanasios Pitsiorlas
and (2) the Council of the European Union and the European
Central Bank was brought before the Court of Justice of
the European Communities on 7 May 2001 by Athanasios
Pitsiorlas, represented by Dimitrios Papafilippou, of the Thessa-
loniki Bar.

The appellant claims that the Court should:

— hold the appeal admissible and well founded;

— set aside the order under appeal made by the Court of
First Instance on 14 February 2001 in Case T-3/00;

— uphold in their entirety the claims put forward at first
instance or, in the alternative, refer the case back to the
Court of First Instance;

— order the Council to pay costs at first instance and on

appeal.

Grounds of appeal

1.

Infringement of Article 114(3) of the Rules of Procedure
of the Court of First Instance;

2.

Infringement of the principle of equality of arms;

3. Misinterpretation of the Council decision;

4.

5.

Incorrect finding, selective and consequently defective
consideration of the facts resulting in infringement of
Article 42 of the Statute of the Court of Justice;

Failure to apply the case-law concerning excusable error
or, entirely in the alternative, an excessively strict appli-
cation of that case-law.