Case C-192/01: Action brought on 4 May 2001 by the Commission of the European Communities against the Kingdom of Denmark
Date: 2001-07-14
Institutions: Court of Justice
Subjects: Denmark, European Commission, action for failure to fulfil an obligation, food additive, foodstuffs legislation, trade restriction

C 200/50

EN

Official Journal of the European Communities

14.7.2001

tungssenat Salzburg (Independent Administrative Chamber for
Salzburg) of 25 April 2001 which was received at the Court
Registry on 30 April 2001, for a preliminary ruling in the
case of Francisco Javier Gonzales Moreno on the following
questions:

1.

Do Articles 28 and 30 EC, Council Directive 76/768/EEC
of 27 July 1976 (1) on the approximation of the laws of
the Member States relating to cosmetic products, as
amended by Council Directive 88/667/EEC of 21 Decem-
ber 1988 (2) and Council Directive 93/35/EEC of 14 June
1993 (3), in particular Article 6(3) thereof, together with
Council Directive 84/450/EEC of 10 September 1984 (4)
relating to the approximation of the laws, regulations
and administrative provisions of
the Member States
concerning misleading advertising, in particular Articles 4
and 7 thereof, preclude national legislation which pro-
hibits,
in connection with the marketing of cosmetic
products, references to medical opinions, by the use, in
particular, of the description ‘ophthalmologically tested’?

2. Do Articles 28 and 30 EC, Council Directive 76/768/EEC
of 27 July 1976 on the approximation of the laws of the
Member States relating to cosmetic products, as amended
by Council Directive 88/667/EEC of 21 December 1988
and Council Directive 93/35/EEC of 14 June 1993, in
particular Article 6(3) thereof, and Council Directive
84/450/EEC of 10 September 1984 on the approxi-
mation of the laws, regulations and administrative pro-
visions of
the Member States concerning misleading
advertising, in particular Articles 4 and 7 thereof, preclude
national legislation which permits the use of references
falling within the terms of Question 1 only after prior
authorisation by the competent Federal Minister?

(1) OJ 1976 L 262, p. 169.
(2) OJ 1988 L 382, p. 46.
(3) OJ 1993 L 151 p. 32.
(4) OJ 1984 L 250, p. 17.

European Communities in case T-193/99 between Wm.
Wrigley Jr. Company and Office for Harmonization in the
Internal Market (Trade Marks and Designs), was brought before
the Court of Justice of the European Communities on 20 April
2001 by Office for Harmonization in the Internal Market
(Trade Marks and Designs), represented by Virginia Melgar and
Susanna Laitinen, acting as Agents.

The Appellant claims that the Court should:

— annul the judgment;

— order the respondent to pay the costs of the proceedings

before the Court of First Instance and before this Court.

Pleas in law and main arguments

The Office for Harmonization in the Internal Market (Trade
Marks and Designs) submits that:

— The Court of First Instance erred in law in interpreting
Article 7(1)(c) CTMR to require that a term must be
‘exclusively descriptive’
is to be excluded from
it
registration as a Community trade mark under that
provision and in holding that the term ‘Doublemint’ is
thus not excluded from registration.

if

— The reasoning used to support the reversal of the refusal
of the term ‘Doublemint’ is contradictory, founded on an
artificial analysis, and fails to regard commercial reality
and the context in which the mark is to be used, which
amounts to a reversible error of law because it constitutes
a manifest error of appreciation.

(1) OJ C 333, 20.11.1999, p. 27.

Appeal brought on 20 April 2001 by Office for Harmo-
nization in the Internal Market (Trade Marks and Designs)
against the judgment delivered on 31 January 2001 by the
Second Chamber of the Court of First Instance of the
European Communities in case T-193/99 (1) between Wm.
Wrigley Jr. Company and Office for Harmonization in the
Internal Market (Trade Marks and Designs)

(Case C-191/01 P)

(2001/C 200/90)

An appeal against the judgment delivered on 31 January 2001
by the Second Chamber of the Court of First Instance of the

Action brought on 4 May 2001 by the Commission of the
European Communities against the Kingdom of Denmark

(Case C-192/01)

(2001/C 200/91)

An action against the Kingdom of Denmark was brought
before the Court of Justice on 4 May 2001 by the Commission
of the European Communities, represented by Hans Christian
Støvlbæk, with an address for service in Luxembourg.

14.7.2001

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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.