Judgment of the Court (Third Chamber) of 2 December 2004 in Case C-41/02: Commission of the European Communities v Kingdom of the Netherlands (Failure of a Member State to fulfil obligations — Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) — Foodstuffs to which vitamins or mineral salts have been added — National legislation making their marketing subject to there being a nutritional need — Measures having equivalent effect — Justification — Public health — Proportionality)
Date: 2005-01-22
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for failure to fulfil an obligation, consumer protection, food additive, human nutrition, public health

22.1.2005

EN

Official Journal of the European Union

C 19/1

I

(Information)

COURT OF JUSTICE

COURT OF JUSTICE

JUDGMENT OF THE COURT

2. Orders Mr van den Berg to pay the costs.

(Second Chamber)

of 28 October 2004

(1) OJ C 227 of 11.8.2001.

in Case C-164/01 P G. van den Berg v Council of the Euro-
pean Union and Commission of the European Commu-
nities (1)

(Action for damages — Non-contractual liability — Milk —
Additional levy — Reference quantity — Producers having
entered into a non-marketing undertaking — SLOM produ-
cers — Change of holding — Refusal to grant a special refer-
ence quantity)

(2005/C 19/01)

(Language of the case: Dutch)

residing in Dalfsen (Netherlands)

In Case C-164/01 P: appeal under Article 49 of the EC Statute
of the Court of Justice brought on 13 April 2001 by G. van
(avocat: E.H.
den Berg,
Pijnacker Hordijk), the other parties to the procedure being the
Council of the European Union (Agent: A.-M. Colaert) and the
Commission of the European Communities (Agent: T. van Rijn)
– the Court (Second Chamber), composed of: C.W.A. Timmer-
manns, President of
J.-P. Puissochet and N.
Colneric (Rapporteur), Judges; C. Stix-Hackl, Advocate General;
R. Grass, Registrar, gave a judgment on 28 October 2004, in
which it:

the Chamber,

1. Dismisses the appeal;

JUDGMENT OF THE COURT

(Third Chamber)

of 2 December 2004

in Case C-41/02: Commission of the European Commu-
nities v Kingdom of the Netherlands (1)

(Failure of a Member State to fulfil obligations — Articles
30 and 36 of the EC Treaty (now, after amendment, Articles
28 EC and 30 EC) — Foodstuffs to which vitamins or
mineral salts have been added — National legislation making
their marketing subject to there being a nutritional need —
Measures having equivalent effect — Justification — Public
health — Proportionality)

(2005/C 19/02)

(Language of the case: Dutch)

In Case C-41/02: action under Article 226 EC for failure to
fulfil obligations, brought on 13 February 2002, Commission
of the European Communities (Agents: H. van Lier and H.M.H.
Speyart) against Kingdom of the Netherlands (Agents: H.G.
Sevenster and S. Terstal) – the Court
(Third Chamber),
composed of: A. Rosas, President of the Chamber, A. Borg
J. Malenovský (Rapporteur) and U.
Barthet,
Lõhmus, Judges; M. Poiares Maduro, Advocate General; H. von
Holstein, Deputy Registrar, for the Registrar, has given a judg-
ment on 2 December 2004 in which it:

J.-P. Puissochet,

C 19/2

EN

Official Journal of the European Union

22.1.2005

1. Declares that, by applying an administrative practice under which
foodstuffs for everyday consumption fortified with vitamin A (in
the form of retinoids), vitamin D, folic acid, selenium, copper or
zinc which are lawfully produced or marketed in other Member
States may be marketed in the Netherlands, when they are neither
substitution products nor
reconstituted foodstuffs within the
meaning of Article 1(1)(c) and (d) of the Warenwetbesluit Toevoe-
ging micro-voedingsstoffen aan levensmiddelen (Decree imple-
menting the Warenwet, on the addition of micronutrients to food-
stuffs) of 24 May 1996 only if that enrichment meets a nutri-
tional need in the Netherlands population and,
in addition,
without ascertaining whether those fortified foodstuffs might be a
substitute for foodstuffs already marketed for which the addition of
those nutrients is mandatory, the Kingdom of the Netherlands has
failed to fulfil its obligations under Article 30 of the EC Treaty
(now, after amendment, Article 28 EC);

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

(1) OJ C 109 of 4.5.2002.

JUDGMENT OF THE COURT

(First Chamber)

of 11 November 2004

in Case C-372/02 (reference for a preliminary ruling from
the Bundessozialgericht): Roberto Adanez-Vega v Bunde-
sanstalt für Arbeit (1)

(Regulation (EEC) No 1408/71 — Determination of the
applicable legislation — Unemployment benefits — Condi-
tions governing aggregation of periods of
insurance or
employment — National measure not taking into account a
period of compulsory military service completed in another
Member State)

(2005/C 19/03)

(Language of the case: German)

A. Rosas and S. von Bahr,
Jacobs, Advocate
General; R. Grass, Registrar, has given a judgment on 11
November 2004, in which it has ruled:

Judges; F.G.

social

security schemes

families moving within the Community,

1. Article 13(2)(f) of Regulation No 1408/71 of the Council of 14
to
June 1971 on the application of
employed persons, to self-employed persons and to members of
their
in the version
updated by Council Regulation (EEC) No 2001/83 of 2 June
1983, as amended by Council Regulation (EEC) No 2195/91 of
25 June 1991, must be interpreted as meaning that a person
residing in a Member State and unemployed there after performing
his compulsory military service in another Member State is subject
to the legislation of the Member State of residence.

Article 71(1)(b)(ii) of Regulation No 1408/71, as amended,
must be interpreted as meaning that it
is a special provision
concerning the determination of the legislation applicable in regard
to unemployment benefits with the result that if the conditions
determining its application are met the applicable legislation is
that provided for in that provision.

It is for the referring court to determine whether in the main
proceedings
conditions governing application of Article
71(1)(b)(ii) are met.

the

If in the main proceedings the conditions governing the application
of Article 71(1)(b)(ii) of Regulation No 1408/71, as amended,
are satisfied, the legislation applicable to a person residing in a
Member State and unemployed there after performing his compul-
sory military service in another Member State would, under that
provision, also be the legislation of the Member State of residence.

2. A period of compulsory military service in another Member State
constitutes a ‘[period of employment] completed as an employed
person under the legislation of [that] other Member State’ for the
purposes of Article 67(1) of Regulation No 1408/71,
in the
version updated by Regulation No 2001/83, as amended by
Regulation No 2195/91, where, first, it is so defined or recog-
nised by the legislation of that other Member State or treated as
such and regarded by that legislation as a period equivalent to a
period of employment and where, second, the person concerned
was insured within the meaning of Article 1(a) of Regulation No
1408/71 during his military service.

In Case C-372/02: reference for a preliminary ruling under
Article 234 EC from the Bundessozialgericht (Germany), made
by decision of 15 August 2002, received at the Court on 16
October 2002, in the proceedings between Roberto Adanez-
Vega and Bundesanstalt für Arbeit – the Court (First Chamber),
composed of: P. Jann (Rapporteur), President of the Chamber,

The condition that ‘the person concerned should have completed
lastly … periods of insurance … in accordance with the provisions
of the legislation under which the benefits are claimed’ for the
purposes of Article 67(3) of Regulation No 1408/71, as
amended, precludes the obligation to aggregate periods of employ-
ment only where a period of insurance was completed in another
Member State after the last period of insurance completed under
the legislation under which the benefits are claimed.