Case C-447/08: Reference for a preliminary ruling from the Svea hovrätt (Sweden) lodged on 13 October 2008 — Otto Sjöberg v Åklagaren
Date: 2008-10-13
Institutions: Court of Justice
Subjects: Sweden, anti-discriminatory measure, discrimination on the basis of nationality, financing, gaming, interpretation of the law, market approval, marketing standard, trade regulations

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?

C 327/18

EN

Official Journal of the European Union

20.12.2008

advertisements

in newspapers, without

5. Is a gaming operator who has been granted a licence to
operate certain gaming activities in a State and is supervised
by the competent authority in that State entitled to market
its gaming products in other Member States through, for
example,
first
applying for a licence from those States' competent authori-
ties? If this question is answered in the affirmative, does this
mean that a Member State's rules which are based on the
imposition of criminal penalties on the promotion of partici-
pation in lotteries organised abroad constitute an obstacle to
the freedom of establishment and the freedom to provide
services which can never be accepted on the basis of over-
riding reasons in the general interest? Is it of any significance
for the answer to the first question whether the Member
State where the gaming operator is established invokes the
same overriding reasons in the general interest as the State
where the operator wishes to market its gaming activities?

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?

advertisements

in newspapers, without

5. Is a gaming operator who has been granted a licence to
operate certain gaming activities in a State and is supervised
by the competent authority in that State entitled to market
its gaming products in other Member States through, for
example,
first
applying for a licence from those States' competent authori-
ties? If this question is answered in the affirmative, does this
mean that a Member State's rules which are based on the
imposition of criminal penalties on the promotion of partici-
pation in lotteries organised abroad constitute an obstacle to
the freedom of establishment and the freedom to provide
services which can never be accepted on the basis of over-
riding reasons in the general interest? Is it of any significance
for the answer to the first question whether the Member
State where the gaming operator is established invokes the
same overriding reasons in the general interest as the State
where the operator wishes to market its gaming activities?

(Greece)

Reference for a preliminary ruling from the Simvoulio tis
Epikratias
lodged on 17 October 2008 —
Panagiotis I. Karanikolas, Valsamis Daravanis, Georgios
Kouvoukliotis, Panagiotis Dolou, Dimitrios Z. Parisis,
Konstantinos Emmanouil, Ioannis Anasoglou, Pantelis A.
Ioannis A. Zaragkoulias,
Beis, Dimitrios Khatziandreou,
Triantafillos K. Mavrogiannis, Sotirios T. Liotakis, Vasilios
Karampasis, Dimitrios Melissidis, Ioannis V. Kleovoulos,
Dimitrios I. Patsakos, Theodoros Fournarakis, Dimitrios K.
and Sinetairismos Paraktion Alieon
Dimitrakopoulos
Kavalas v Ipourgos Agrotikis Anaptixis kai Trofimon and
Nomarkhiaki Aftodiikisi Dramas — Kavalas — Xanthis

(Case C-453/08)

(2008/C 327/30)

Language of the case: Greek

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

(Case C-448/08)

(2008/C 327/29)

Language of the case: Swedish

Referring court

Svea hovrätt

Parties to the main proceedings

Applicant: Anders Gerdin

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-
controlled companies market gaming and lotteries,
the
revenue from which accrues to the State, and one of several

Referring court

Simvoulio tis Epikratias