Case C-40/02: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat im Land Niederösterreich, Aussenstelle Mistelbach by order of that Court of 29 January 2002 in the case of an appeal by Margareta Scherndl
Date: 2002-05-04
Institutions: Court of Justice
Subjects: consumer information, foodstuff, foodstuffs legislation, interpretation of the law, labelling, nutrition

4.5.2002

EN

Official Journal of the European Communities

C 109/25

Reference for a preliminary ruling by the Bundesverwal-
tungsgericht by order of that Court of 24 October 2001
in the case of OMEGA Spielhallen- und Automatenaufstel-
lungs-GmbH against Oberbürgermeisterin der Bundes-
stadt Bonn

1. Does a procedure to constitute a liability limitation fund
pursuant to an application by a shipowner under the
Brussels Convention of 10 October 1957 constitute
proceedings within the meaning of Article 21 of the
1968 Brussels Convention (1) where it is evident from the
application, where the relevant names are stated, who
might be affected thereby as a potential injured party?

(Case C-36/02)

(2002/C 109/40)

Reference has been made to the Court of Justice of the
European Communities by order of the Bundesverwaltungsge-
richt (Federal Administrative Court) of 24 October 2001,
received at the Court Registry on 12 February 2002, for a
preliminary ruling in the case of OMEGA Spielhallen- und
Automatenaufstellungs-GmbH against Oberbürgermeisterin
der Bundesstadt Bonn on the following question:

Is it compatible with the provisions on freedom to provide
services and the free movement of goods contained in the
Treaty establishing the European Community for a particular
commercial activity — in this case the operation of a so-
called ‘laserdrome’ involving simulated killing action — to be
prohibited under national law because it offends against the
values enshrined in the Basic (Constitutional) Law?

Reference for a preliminary ruling by the Højesterets
Anke- og Kæremålsudvalg by order of 8 February 2002 in
the case of Mærsk Olie & Gas A/S against M. de Haan en
W. de Boer, in the person of its owners Martinus de Haan
and Willem de Boer

(Case C-39/02)

(2002/C 109/41)

2.

3.

4.

Is an order to constitute a liability limitation fund under
the Netherlands procedural rules in force in 1986 a
judgment within the meaning of Article 25 of the 1968
Brussels Convention?

Can a limitation fund which was constituted on 27 May
1987 by a Netherlands court pursuant to Netherlands
procedural rules then in force without prior service on an
affected creditor now be denied recognition in another
Member State in relation to the creditor concerned
pursuant to Article 27(2) of the 1968 Brussels Conven-
tion?

If Question 3 is answered in the affirmative, is the creditor
concerned deprived of its right to rely on Article 27(2) by
virtue of
in the Member State which
constituted the limitation fund it raised the matter
of jurisdiction before a higher court without having
previously objected to default of service?

the fact

that

(1) 27 September 1968 on jurisdiction and the enforcement of
judgments in civil and commercial matters (OJ L 204, 1975,
p. 28) modified by the Convention of 26 May 1989 on the
accession of the Kingdom of Spain and the Portuguese Republic
with the adjustments made to them by the Convention on the
accession of the Kingdom of Denmark, of Ireland and of the
United Kingdom of Great Britain and Northern Ireland and the
adjustments made to them by the Convention on the accession of
the Hellenic Republic (OJ L 285, 1989, p. 1).

Reference for a preliminary ruling by the Unabhängiger
Verwaltungssenat im Land Niederösterreich, Aussenstelle
Mistelbach by order of that Court of 29 January 2002 in
the case of an appeal by Margareta Scherndl

(Case C-40/02)

(2002/C 109/42)

Reference has been made to the Court of Justice of the
European Communities by order of the Højesterets Anke- og
Kæremålsudvalg (Appeals and Objections Committee of the
Supreme Court) of 8 February 2002, received at the Court
Registry on 13 February 2002, for a preliminary ruling in the
case of Mærsk Olie & Gas A/S against M. de Haan en W. de
Boer, in the person of its owners Martinus de Haan and Willem
de Boer on the following questions:

Reference has been made to the Court of Justice of the
European Communities by order of the Unabhängiger Verwal-
tungssenat im Land Niederösterreich, Aussenstelle Mistelbach
the Court Registry on
of 29 January 2002, received at
14 February 2002, for a preliminary ruling in the case of an
appeal by Margareta Scherndl on the following questions:

C 109/26

EN

Official Journal of the European Communities

4.5.2002

1.

In the case of indications of vitamin content, it is possible
to speak of an ‘average value’ within the meaning
of Article 1(k) of Council Directive 90/496/EEC of
24 September 1990 on nutrition labelling for foodstuffs
(OJ 1990 L 276, p. 40, as amended in OJ 1991 L 140;
‘the nutrition labelling directive’) where the figure given,
based on the manufacturer’s analysis of the food within
the meaning of Article 6(8)(a) of that directive, is the
value which the product has at the end of the minimum
conservation period?

2. Does the definition of average value under Article 6(8) of
the nutrition labelling directive leave a free choice in
relation to the reference date and the size of permissible
deviations?

3.

Is the nutrition labelling directive, in so far as it contains
indications of the nutritional value based on vitamin
content, to be disapplied on the ground that:

(a)

is

it
too vague in relation to the definition
(Article 1(k) of the nutrition labelling directive) and
calculation (Article 6(8) of that directive) of average
value, or because of the lack of reference dates or
information as to permitted deviations; or

(b)

it contains provisions that are disproportionate to
the objective sought?

Action brought on 14 February 2002 by the Commission
of the European Communities against the Kingdom of the
Netherlands

(Case C-41/02)

(2002/C 109/43)

applying derogations in such a way as to take no account
of the substitutive nature of enriched food or drink
products, with the consequence that such products
enriched with Vitamin A (in the form of retinoYden),
vitamin D, folic acid, selenium, copper or zinc, cannot be
marketed in the Netherlands since they are not substitute
products or reconstituted food or drink products within
the abovementioned decree on the
the meaning of
addition of micro-foodstuffs to food, unless the addition
in question presents no risk to public health and at the
same time meets an actual need in connection with food.

2. Order the Kingdom of the Netherlands to pay the costs.

Pleas in law and main arguments

The system at issue concerns food in general and is therefore
not affected by Directive 89/398/EEC (1). Nor may the ingredi-
ents prohibited by that system be regarded as technically
defined additives (Directives 89/107/EEC, 94/36/EC, and
95/2/EC) (2). European Parliament and Council Directive
No 95/2/EC on food additives other than colours and sweet-
eners (OJ 1995 L 61, p. 1, as amended) and European
Parliament and Council Directive No 94/36/EC on colours for
use in foodstuffs (OJ 1994 L 237, p. 13) The matters at issue
in the present case fall therefore to be determined solely in
accordance with Articles 30 and 36 of the EC Treaty, as they
applied at the time of expiry of the most recent deadline
contained in the reasoned opinions in the present Treaty —
infringement proceedings (21 February 1999).

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
14 February 2002 by the Commission of
the European
Communities, represented by H. Van Lier and H.M.H. Speyart,
acting as Agents.

The applicant claims that the Court should:

1. Declare that the Kingdom of the Netherlands has failed
to fulfil its obligations under Articles 30 and 36 of the
EC Treaty, first, by enacting and applying Article 10(1) of
the Decree on Preparation and Processing of Foodstuffs
and, subsequently, also Articles 2(1) and 5 of the Decree
on the addition of micro-foodstuffs to food, and by

The system at issue, under which certain enriched food and
drink products are banned unless a derogation is obtained
from the Minister of Food plainly constitutes a measure having
equivalent effect under Article 30 of the EC Treaty. The
requirements that ‘an actual food requirement must be met’ and
that there be ‘no risk to public health’ entail an infringement of
the scheme of Articles 30 and 36 of the EC Treaty since the
result of those requirements is to impose on the person
applying for a derogation a disproportionate burden of proof
in regard to the possible danger to public health which means
in practice that the derogations at issue in this case are never
granted. Moreover, the systematically applied requirement of
the existence of an actual food-related requirement reinforces
existing national dietary patterns which in itself constitutes
a disguised and therefore unlawful restriction on the free
movement of goods. Nor does the Netherlands policy take