Case C-366/08: Reference for a preliminary ruling from the Oberlandesgericht München (Germany) lodged on 11 August 2008 — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Adolf Darbo AG
Date: 2008-08-11
Institutions: Court of Justice
Subjects: dyestuff, food additive, fruit product, interpretation of the law, product designation, sweetener

C 272/12

EN

Official Journal of the European Union

25.10.2008

Pleas in law and main arguments

inadmissible on the following grounds:

The Court of First Instance declared the action for annulment
brought by the appellant against the decision of the Commis-
sion, which refused to grant the appellant access to certain
documents relating to Contract LIEN 97-2011 concerning the
co-financing of a medical aid programme organised in Kazakh-
stan,
the action for
annulment was brought against a decision which merely
confirms a previous decision not contested within the time-limit
for initiating proceedings, and even if the contested decision
were not merely confirmatory, it could also not be considered
to be a decision against which, for the purposes of Regulation
No 1049/2001, an action for annulment can be brought.

The judgment contains both serious errors of law and of fact.

First, as regards classifying the contested decision, the Court of
First Instance failed to take into consideration that the notice
which the Commission had sent to the appellant earlier by way
of a response to a confirmatory application within the meaning
of Article 7(2) of Regulation No 1049/2001 should have been
regarded as invalid, since it had not been written by the Secre-
tary General of the Commission and did not provide grounds or
instructions on legally recognised rights. Since, as a conse-
quence, the reply had no legal effect, it would not have been
possible to bring an action for annulment against it. Therefore,
only the contested decision — in other words, the Commis-
sion's reply to the appellant's new application — can be consid-
ered to be a final notice, which,
in contrast to the position
taken by the Court of First Instance, was actually sent following
the situation by the
a fresh and complete examination of
Commission. Consequently,
contested decision cannot
the
‘simply be confirmatory’, since a measure that has no legal effect
cannot be confirmed. However, regrettably, the Court of First
the earlier
Instance failed to examine the legal validity of
Commission notice, which led to the wrong classification of the
contested decision of the Commission.

Second, the Court of First Instance's claim that the contested
decision constitutes a reply to an initial application within the
meaning of Regulation No 1049/2001 and could,
for that
reason, not be considered to be a decision against which an
action for annulment can be brought, is based on a wrong inter-
pretation of Article 7(2) of Regulation No 1049/2001. The
Court of First Instance overlooked that it is possible, but not
obligatory under that regulation to make a confirmatory appli-
cation. Taking that into consideration, and in the light of the
Commission's hostile attitude throughout the entire preparatory
phase, the appellant was no longer under an obligation to make
a confirmatory application. In the course of the proceedings,
the appellant requested that a reference to the nature of the
regulation be added to the minutes of the hearing, since those
minutes were incomplete in this respect. By refusing that
request to make a correction to the minutes of the hearing, the
Court of First Instance also committed a procedural error.

Reference for a preliminary ruling from the Oberlandes-
gericht München (Germany) lodged on 11 August 2008 —
Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v
Adolf Darbo AG

(Case C-366/08)

(2008/C 272/21)

Language of the case: German

Referring court

Oberlandesgericht München

Parties to the main proceedings

Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

Defendant: Adolf Darbo AG

Questions referred

1. Is the term low-sugar jams in Part A of Annex III to European
Parliament and Council Directive 95/2/EC of 20 February
1995 on food additives other than colours and sweeteners (1)
to be interpreted as also covering jams named extra jam?

2. If the answer to Question 1 is affirmative:

a) How is the term low-sugar jams in Part A of Annex III to

Directive 95/2/EC to be interpreted otherwise?

b) In particular is it to be interpreted as also covering jams
named extra jam with a soluble dry matter content of
58 %?

3. If the answers to Questions 1 and 2(b) are affirmative:

Is the second paragraph of Part II of Annex I to Council
Directive 2001/113/EC of 20 December 2001 relating to
jellies and marmalades and sweetened chestnut
fruit jams,
purée intended for human consumption (2) to be interpreted
as meaning that the name extra jam can be authorised also in
respect of jams which have a soluble dry matter content of
less than 60 % where in the case of such jams no less strict
requirements are imposed on the name jam?

(1) OJ 1995 L 61, p. 1.
(2) OJ 2002 L 10, p. 67.