Case C-464/01: Reference for a preliminary ruling by the Oberster Gerichthof by order of 8 November 2001 in the case of Johann Gruber against Bay Wa Aktiengesellschaft
Date: 2002-03-02
Institutions: Court of Justice
Subjects: advertising, consumer, consumer protection, contract, distance selling, interpretation of the law

C 56/4

EN

Official Journal of the European Communities

2.3.2002

The applicant claims that the Court should:

(1) declare that, by introducing, by means of Paragraphs 8(1)
and 9(2) of the Verpackungsverordnung 1998, a system
for the re-use of packaging for products which are
required, under Directive 80/777/EEC, to be bottled at
source, the Federal Republic of Germany has infringed its
obligations under Article 5 of European Parliament and
Council Directive 94/62/EC (1) of 20 December 1994 on
packaging and packaging waste,
in conjunction with
Article 28 EC, and Article 3 in conjunction with point
2(d) of Annex II to Council Directive 80/777/EEC (2) of
15 July 1980 on the approximation of the laws of the
Member States relating to the exploitation and marketing
of natural mineral waters;

(2) order the Federal Republic of Germany to pay the costs.

The argument that the measures in issue serve environmental
purposes is not enough to justify them, since they are
disproportionate. This is because, where the journey to be
travelled is greater than a certain distance, the burden imposed
on the environment outweighs the ecological advantages
connected with the use of refillable containers. For the
purposes of the present proceedings, it is immaterial what
distance actually represents that threshold in respect of mineral
water, since the German rules apply, quite irrespective of any
transportation distance, to all mineral waters to be bottled at
source, and thus also cover cases in which that distance is
considerable.

(1) OJ L 365, 31.12.1994, p. 10.
(2) OJ L 229, 30.8.1980, p. 1.

Pleas in law and main arguments

Reference for a preliminary ruling by the Oberster
Gerichthof by order of 8 November 2001 in the case of
Johann Gruber against Bay Wa Aktiengesellschaft

The rules laid down in Paragraphs 8(1) and 9(2) of the
Verpackungsverordnung (Packaging Order) 1998 are incom-
patible, as regards natural mineral waters to be bottled at
source, with Article 5 of the packaging directive and Article 28
EC, since they result in an impairment of trade which cannot
be justified on grounds of environmental protection. The
interaction of the German legislation is such that it is in the
interests of producers of mineral waters in other Member
States who wish to market their products in Germany to use
refillable containers if they wish to avoid the obligation to
collect a deposit in respect of the packaging distributed by
them and to retain the possibility of participating in general
return systems. Although that legislation undeniably favours
the use of refillable containers rather than non-reusable ones,
national measures to promote the use of refillable containers
are only in accordance with Article 5 of Directive 94/62/EC if,
at the same time, they meet the requirements of Article 28 EC.
The German rules in the present case, however, constitute a
measure the effect of which is equivalent to a quantitative
restriction within the meaning of Article 28 EC. The German
measures operate to make the distribution of natural mineral
waters from other Member States more difficult and/or more
expensive. It is true that German producers must also, as the
case may be, transport empty refillable containers over long
distances; but, where bottling takes place outside Germany,
the distance between the bottling plant and the place of
consumption in Germany is in most cases significantly greater
than when bottling and consumption both take place within
Germany. The possibility, for foreign mineral water producers,
of participating in a system of standardised re-usable packaging
would result in additional conversion costs for those producers
whilst, at best, reducing the need for the return transportation
of empty refillable containers.

(Case C-464/01)

(2002/C 56/08)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberste Gerichtshof
(Supreme court of Austria) of 8 November 2001, which was
received at the Court Registry on 4 December 2001, for a
preliminary ruling in the case of Johann Gruber against Bay
Wa Aktiengesellschaft, on the following questions:

1. Where the purposes of a contract are partly private, does
the status of ‘consumer’ for the purposes of Article 13 of
the Convention depend on which of the private and the
trade or professional purposes is predominant, and what
criteria are to be applied in determining which of the
private and the trade or professional purposes predomi-
nates?

2. Does the determination of the purpose depend solely on
the circumstances which could be objectively ascertained
by the other party to the contract with the consumer?

3.

In case of doubt, is a contract which may be attributed
both to private and to trade or professional activity to be
regarded as a consumer contract?

2.3.2002

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Official Journal of the European Communities

C 56/5

4.

5.

Is the conclusion of a contract preceded by advertising
within the meaning of Article 13(3)(a) of the Convention
where the other party to the subsequent contract with
the consumer advertised his products by brochure in the
Contracting State of the consumer but did not advertise
the products the consumer subsequently bought in it?

Is there a consumer contract within the meaning of
Article 13 of the Convention where the seller makes an
offer by telephone from his own State to the buyer who
lives in a different State, and the offer is not accepted but
the buyer subsequently buys the product thus offered in
response to a written offer?

6. Does the consumer take the steps necessary for the
conclusion of the contract in his own State within the
meaning of Article 13(3)(b) of the Convention where an
offer is made to him in the State of his contracting
partner and he accepts that offer by telephone from his
own State?

Reference for a preliminary ruling by the Amtsgericht
Frankenthal (Pfalz), by order of that court of 11 October
2001, in criminal proceedings against Felix Kapper

(Case C-476/01)

(2002/C 56/09)

Reference has been made to the Court of Justice of the
European Communities by order of the Amtsgericht (District
Court) Frankenthal (Pfalz) of 11 October 2001, received at the
Court Registry on 7 December 2001, for a preliminary ruling
in the criminal proceedings against Felix Kapper, on the
following question:

Does Article 1(2) of Council Directive 91/439/EEC (1) of
29 July 1991 on driving licences preclude a Member State
from refusing to recognise a driving licence where, according
to its investigations, another Member State issued that licence
although the holder of the licence did not have his normal
residence there, and in appropriate cases is actual effect to be
given to that provision in that regard?

(1) OJ L 237, 1991, p. 1.

Reference for a preliminary ruling by the Verwaltungsge-
richt Stuttgart by order of 20 November 2001 in the case
of Georgios Orfanopoulos, Natasha Orfanopoulos, Melina
Orfanopoulos and Sofia Orfanopoulos against Land Ba-
den-Württemberg

(Case C-482/01)

(2002/C 56/10)

Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht
Stuttgart (Finance Court Stuttgart) of 20 November 2001,
received at the Court Registry on 13 December 2001, for a
preliminary ruling in the case of Georgios Orfanopoulos,
Natasha Orfanopoulos, Melina Orfanopoulos and Sofia Orfa-
nopoulos against Land Baden-Württemberg on the following
questions:

1.

Is a restriction on the freedom of movement of a foreign
EU national with many year’s residence in a host State,
ordered on account of a criminal offence under the
Betäubungsmittelgesetz (Law on Narcotics), in conformity
with European Law in terms of Article 39(3) EC on
grounds of public policy, public security or public health,
where, on account of his personal conduct, there is a
justified expectation that he will also commit future
criminal offences and where the spouse of the EU national
and his children cannot reasonably be expected to live in
his State of origin?

2. Does Article 9(1) of Council Directive 64/221/EEC(1) of
25 February 1964 preclude national legislation which no
longer provides for objection proceedings in which an
examination of expediency is also carried out in relation
to a decision of an administrative authority to expel the
holder of a residence permit from the national territory, if
a special body which is independent of the administrative
authority adopting the decision has not been established?

(1) OJ L 56, p. 850.

Action brought on 17 December 2001 by the Commission
of the European Communities against the Kingdom of
Sweden

(Case C-490/01)

(2002/C 56/11)

An action against
the Kingdom of Sweden was brought
before the Court of Justice of the European Communities on
17 December 2001 by the Commission of the European
Communities, represented by M. Wolfcarius and C. Tufvesson,
acting as Agents, with an address for service in Luxembourg.