Case C-41/02: Action brought on 14 February 2002 by the Commission of the European Communities against the Kingdom of the Netherlands
Date: 2002-05-04
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for failure to fulfil an obligation, consumer protection, food additive, human nutrition, public health

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

4.5.2002

EN

Official Journal of the European Communities

C 109/27

account of the substitutive nature of certain food and drink
products (such as, in particular, breakfast cereals enriched with
vitamin D).

Reference for a preliminary ruling by the Landgericht
Stuttgart by order of that Court of 8 February 2002 in the
case of Landesbausparkasse Baden-Württemberg against
Elisabeth Huttenlocher

(1) Council Directive 89/398 on the approximation of the laws of
the Member States relating to foodstuffs intended for particular
nutritional uses (OJ 1989 L 186, p. 27, as amended).

(2) Council Directive 89/107/EEC on the approximation of the laws
of the Member States concerning food additives authorised for
use in foodstuffs intended for human consumption (OJ 1989
L 40, p. 27, as amended).

Reference for a preliminary ruling by the Ålands För-
valtningsdomstol by judgment of that Court of 5 February
2002 in the proceedings, brought by Diana Elisabeth
Lindman

(Case C-42/02)

(2002/C 109/44)

Reference has been made to the Court of Justice of the
European Communities by judgment of
the Ålands För-
valtningsdomstol (Administrative Court, Åland, Finland) of
5 February 2002, received at the Court Registry on 15 February
2002, for a preliminary ruling in the proceeding, brought by
Diana Elisabeth Lindman on the following question:

Does Article 49 of the Treaty establishing the European
Communities preclude a Member State from applying rules
under which lottery winnings from lotteries held in other
Member States are included in the taxable income of the
winner on assessment to income tax, whereas lottery winnings
from lotteries held in the Member State in question are exempt
from tax.

(Case C-43/02)

(2002/C 109/45)

Reference has been made to the Court of Justice of the
European Communities by order of the Landgericht Stuttgart
(Regional Court, Stuttgart) of 11 February 2002, received at
the Court Registry on 15 February 2002, for a preliminary
ruling in the case of Landesbausparkasse Baden-Württemberg
against Elisabeth Huttenlocher on the following question:

Is the second part of Article 2 of Directive 85/577/EEC(1) to
be interpreted as meaning that a close dependant (in this case
an unmarried partner) is also acting ‘in the name or on behalf
of a trader’ where that person as a consumer takes out a loan
with a trader, the trader makes the loan subject to a security
(assumption of
liability), makes the requisite form
available to that person and the borrower presents the form
for signature to his close dependant in the residence which
they share?

joint

(1) OJ L 372 of 31.12.1985, p. 31.

Reference for a preliminary ruling by the Vantaan Kärä-
jäoikeus by order of that Court of 1 February 2002 in the
case of Fixtures Marketing Ltd against Oy Veikkaus Ab

(Case C-46/02)

(2002/C 109/46)

Reference has been made to the Court of Justice of the
European Communities by order of the Vantaan Käräjäoikeus
(District Court, Vantaa) of 1 February 2002, received at the
Court Registry on 18 February 2002, for a preliminary ruling
in the case of Fixtures Marketing Ltd against Oy Veikkaus Ab
on the following questions:

1) May the requirement in Article 7(1) of the directive (1) for
a link between the investment and the making of the
database be interpreted in the sense that the ‘obtaining’
referred to in Article 7(1) and the investment directed at
it refers,
in the present case, to investment which is
directed at the determination of the dates of the matches
and the match pairings themselves and, when the criteria
for granting protection are appraised, does the drawing
up of the fixture list include investment which is not
relevant?