Case C-446/08: Reference for a preliminary ruling from the Conseil d'Etat (France) lodged on 9 October 2008 — Société Solgar Vitamin's France, Valorimer SARL, Christian Fenioux, L'Arbre de Vie SARL, Société Source Claire, Nord Plantes EURL, Société RCS Distribution, Société Ponroy Santé — Intervener: Syndicat de la Diététique et des Compléments Alimentaires v Ministre de l'Économie, des Finances et de l'Emploi, Ministre de la Santé, de la Jeunesse et des Sports, Ministre de l'Agriculture et de la Pêche
Date: 2008-10-09
Institutions: Court of Justice
Subjects: France, consumer protection, food additive, food supplement, interpretation of the law, labelling, marketing standard, mineral compound, vitamin, water supply

C 327/16

EN

Official Journal of the European Union

20.12.2008

— Annul Article 5(1) of Council Regulation 1954/2003 in so
far as it does not maintain the exclusion of access of
Spanish vessels to the waters of the Azores for fishing of
tuna or tuna-like species;

Seventh, that the Court of First Instance erred in law by failing
to consider the factors relied upon by the appellant cumulatively
as well as separately.

— Refer the case back to the Court of First Instance if the
Court of Justice does not consider that the state of the
proceedings is such as to enable it to give final judgment;
and

— Order the Council of the European Union to pay the costs
incurred by the Autonomous Region of the Azores (Região
Autónoma dos Açores) in respect of both the proceedings at
first instance and the present appeal.

Pleas in law and main arguments

(1) Council Regulation (EC) No 1954/2003 of 4 November 2003 on the
management of the fishing effort relating to certain Community
fishing
and modifying Regulation (EC)
No 2847/93 and repealing Regulations (EC) No 685/95 and (EC)
No 2027/95 (OJ L 289, p. 1).

and resources

areas

(2) Council Regulation (EC) No 2347/2002 of 16 December 2002
establishing specific acess requirements and associated conditions
applicable to fishing for deep-sea stocks (OJ L 351, p. 6).

(3) Council Regulation (EC) No 685/95 of 27 March 1995 on the
management of the fishing effort relating to certain Community
fishing areas and resources (OJ L 71, p. 5).

(4) Council Regulation (EC) No 2027/95 of 15 June 1995 establishing a
system for the management of fishing effort relating to certain Com-
munity fishing areas and resources (OJ L 199, p. 1).

The appellant relies on seven grounds to support its appeal
against the above mentioned Court of First Instance judgment.

First, that the Court of First Instance erred in law by finding that
the protection afforded to the appellant under Article 299(2) EC
is not sufficient to establish that the appellant is individually
concerned by the contested provisions.

Reference for a preliminary ruling from the Conseil d'Etat
(France)
lodged on 9 October 2008 — Société Solgar
Vitamin's France, Valorimer SARL, Christian Fenioux,
L'Arbre de Vie SARL, Société Source Claire, Nord Plantes
EURL, Société RCS Distribution, Société Ponroy Santé —
Intervener: Syndicat de la Diététique et des Compléments
Alimentaires v Ministre de l'Économie, des Finances et de
l'Emploi, Ministre de la Santé, de la Jeunesse et des Sports,
Ministre de l'Agriculture et de la Pêche

(Case C-446/08)

(2008/C 327/27)

Language of the case: French

Second, that the Court of First Instance wrongly concluded that
only Member States, and not regional authorities, have the right
to defend the general interest of their territory.

Third, that the Court of First Instance erred in law by failing to
distinguish environmental from economic considerations.

Fourth, that the Court of First Instance erred in law by finding
that the contested provisions would not entail harmful effects
for the fish stocks and for the marine environment in the
Azores and, concequently, for the survival of the fishing sector
in the region.

Referring court

Conseil d'Etat

Fifth, that the Court of First Instance erred in law by finding
that the effect of the contested provisions on the appellant's
legislative and executive powers did not make the appellant indi-
vidually concerned by the provisions.

Parties to the main proceedings

Applicants: Société Solgar Vitamin's France, Valorimer SARL,
Christian Fenioux, L'Arbre de Vie SARL, Société Source Claire,
Nord Plantes EURL, Société RCS Distribution, Société Ponroy
Santé

Sixth, that the Court of First Instance erred in law by finding
that the appellant's application was not admissible by virtue of
the lack of other effective judicial remedies available to the
appellant.

Defendants: Ministre de l'Économie, des Finances et de l'Emploi,
Ministre de la Santé, de la Jeunesse et des Sports, Ministre de
l'Agriculture et de la Pêche

20.12.2008

EN

Official Journal of the European Union

C 327/17

Questions referred

Reference for a preliminary ruling from the Svea hovrätt
(Sweden) lodged on 13 October 2008 — Otto Sjöberg v
Åklagaren

(1) Must Directive 2002/46/EC of 10 June 2002 (1), and in par-
ticular Articles 5(4) and 11(2) thereof, be interpreted as
meaning that, although in principle it is for the Commission
to determine the maximum amounts of vitamins and
minerals present in food supplements, the Member States
remain competent to adopt legislation in this field so long
as the Commission has not adopted the necessary Com-
munity measure?

(2) If that question is answered in the affirmative:

(a) If the Member States are required, in order to set those
maximum amounts, to comply with the provisions of
Articles 28 EC and 30 EC, must they also be guided by
the
criteria laid down in Article 5 of Directive
2002/46/EC, including the requirement for a risk assess-
ment based on generally accepted scientific data, in an
area in which there is still relative uncertainty?

fluoride,

(b) May a Member State set maximum levels when it is
to calculate
impossible, as in the case of
precisely the intake of vitamins and minerals from other
dietary sources, mains water
for each
consumer group and on a territory-by-territory basis?
May it in that case set a zero level where risks are
known to exist, without resorting to the safety proce-
dure
in Article 12 of Directive
2002/46/EC?

in particular,

provided

for

(c) When setting maximum levels,

if

it

is possible to
take into account differences in the degrees of sensitivity
of different consumer groups, as provided for
in
Article 5(1)(a) of Directive 2002/46/EC, can a Member
State also take into account the fact that a measure
addressed solely to sections of the population who are
particularly exposed to risk, appropriate labelling for
example, might dissuade that group from using a
nutrient that would be beneficial to it in small amounts?
Might taking into account that difference in sensitivity
result in the application to the entire population of the
maximum level appropriate for sensitive sections of the
population, in particular children?

(d) To what extent may maximum levels be set in the case
where no safe limits have been laid down because there
is no established danger to health? More generally, to
the
what extent and in what circumstances might
weighting of criteria to be taken into account lead to
the setting of maximum levels that are significantly
lower than the safe limits accepted for those nutrients?

(1) Directive 2002/46/EC of

the
Council of 10 June 2002 on the approximation of the laws of the
Member States relating to food supplements (OJ L 183, 12.7.2002,
p. 51).

the European Parliament and of

(Case C-447/08)

(2008/C 327/28)

Language of the case: Swedish

Referring court

Svea hovrätt

Parties to the main proceedings

Applicant: Otto Sjöberg

Defendant: Åklagaren

Questions referred

1. May discrimination on grounds of nationality be accepted,
under some circumstances, on national gaming and lottery
markets on the basis of overriding reasons in the general
interest?

2. If there are a number of objectives pursued by the restrictive
policy adopted on a national gaming and lottery market and
one of them is the financing of social activities, can the latter
then be said to be an incidental beneficial consequence of
the restrictive policy? If this question is answered in the
negative, can the restrictive policy pursued still be acceptable
if the objective of financing social activities cannot be said to
be the principal objective of the restrictive policy?

3. Can the State rely on overriding reasons in the general
interest as justification for a restrictive gaming policy if State-
the
controlled companies market gaming and lotteries,
revenue from which accrues to the State, and one of several
objectives of that marketing is the financing of social activ-
ities? If this question is answered in the negative, can the
restrictive policy pursued still be acceptable if the financing
of social activities is not found to be the principal objective
of the marketing?

4. Can a total prohibition on the marketing of gaming and
lotteries organised in another Member State by a gaming
company established there and supervised by that Member
State's authorities be proportionate to the objective of
controlling and supervising gaming activity, when at
the
same time there are no restrictions on the marketing of
gaming and lotteries organised by gaming companies estab-
lished in the Member State which pursues the restrictive
policy? What is the answer to the question if the objective of
such an arrangement is to limit gaming?