Case C-497/03: Action brought on 24 November 2003 by the Commission of the European Communities against the Republic of Austria
Date: 2004-01-24
Institutions: Court of Justice
Subjects: Austria, European Commission, action for failure to fulfil an obligation, distance selling, food supplement

C 21/24

EN

Official Journal of the European Union

24.1.2004

The Commission of the European Communities claims that
the Court should:

Pleas in law and main arguments

1. Declare that, by failing to adopt and the laws, regulations
and administrative provisions necessary to comply with
Commission Directive 2001/59/EC of 6 August 2001
adapting to technical progress for the 28th time Council
Directive 67/548/EEC on the approximation of the laws,
regulations and administrative provisions relating to
the classification, packaging and labelling of dangerous
substances (1) and, in any event, by not communicating
them to the Commission, the French Republic has failed
to fulfil its obligations under that directive; and

2. Order the French Republic to pay the costs.

Pleas in law and main arguments

The prohibition on the sale of food supplements by mail order,
laid down in Paragraph 50(2) of the Gewerbeordnung, is a
measure having equivalent effect to a quantitative restriction
on imports. It constitutes a greater obstacle to the sale of
products from other Member States than to that of domestic
products. Such a prohibition on sales by mail order makes it
necessary for traders from other Member States to establish a
place of business in Austria or attract sales partners there
whereas Austrian traders in any case already have a fixed place
of business in Austria, which can be advantageous to them in
marketing the food supplements manufactured by them.
Austrian traders have the advantage of being able to use areas
of the manufacturing premises or the premises on which their
place of business is situated as a sales outlet also. This
may represent a considerable cost advantage over foreign
manufacturers as a result of the expenditure saved.

The time-limit for transposition of the directive expired on
30 July 2002.

(1) OJ L 225 of 21 August 2001, p. 1.

The aims of the protection of consumers against health risks
and misrepresentation, which are put forward in order to
justify such a prohibition, may be achieved by more lenient
means which restrict the free movement of goods to a lesser
degree. The Austrian measure is thus a disproportionate
restriction on the free movement of goods.

Action brought on 24 November 2003 by the Com-
mission of the European Communities against the Repub-
lic of Austria

(Case C-497/03)

(2004/C 21/44)

Reference for a preliminary ruling by the VAT and Duties
Tribunals, London Tribunal Centre, by order of that court
dated 10 June 2003, in the case of 1) Kingscrest Associates
Ltd, 2) Montecello Ltd (trading together as Kingscrest
Residential Care Homes) against Commissioners of Cus-
toms and Excise

An action against
the Republic of Austria was brought
before the Court of Justice of the European Communities on
24 November 2003 by the Commission of the European
Communities, represented by J. C. Schieferer and B. Schima,
with an address for service in Luxembourg.

(Case C-498/03)

(2004/C 21/45)

The applicant claims that the Court should:

1.

hold that, by imposing in Paragraph 50(2) of the Gewer-
beordnung a prohibition on the sale of food supplements
by mail order, the Republic of Austria has failed to fulfil
its obligations under Article 28 EC;

2.

order the Republic of Austria to pay the costs.

Reference has been made to the Court of Justice of the
European Communities by an order of the VAT and Duties
Tribunals, London Tribunal Centre, dated 10 June 2003, which
was received at the Court Registry on 26 November 2003, for
a preliminary ruling in the case of 1) Kingscrest Associates Ltd,
2) Montecello Ltd (trading together as Kingscrest Residential
Care Homes) and Commissioners of Customs and Excise on
the following questions: