Case C-383/07: Judgment of the Court (Second Chamber) of 15 January 2009 (reference for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof — Germany) — M-K Europa GmbH & Co. KG v Stadt Regensburg (Reference for a preliminary ruling — Regulation (EC) No 258/97 — Article 1(1) to (3) — Novel foods and novel food ingredients)
Date: 2009-01-15
Institutions: Court of Justice
Subjects: food consumption, food safety, foodstuff, foodstuffs legislation, human nutrition, interpretation of the law

7.3.2009

EN

Official Journal of the European Union

C 55/3

Judgment of the Court (Second Chamber) of 15 January
2009 (reference
a preliminary ruling from the
Bayerischer Verwaltungsgerichtshof — Germany) —
M-K Europa GmbH & Co. KG v Stadt Regensburg

for

requirement relating to human consumption to a significant degree
within the European Community, within the meaning
of
Article 1(2) of that regulation, is not sufficient for that regulation
not to apply to that product.

(Case C-383/07) (1)

(Reference for a preliminary ruling — Regulation (EC)
No 258/97 — Article 1(1) to (3) — Novel foods and novel
food ingredients)

4. Experience regarding the safety of a food product existing exclusively
the product
outside Europe is not
food products ‘having a
concerned falls within the category of
history of safe food use’ within the meaning of Article 1(2)(e) of
Regulation No 258/97.

to establish that

sufficient

(2009/C 55/03)

Language of the case: German

5. It is not incumbent upon an undertaking to initiate the procedure

laid down in Article 13 of Regulation No 258/97.

(1) OJ C 283, 24.11.2007.

Referring court

Bayerischer Verwaltungsgerichtshof

Parties to the main proceedings

Applicant: M-K Europa GmbH & Co. KG

Defendant: Stadt Regensburg

Joined party: Landesanwaltschaft Bayern

Re:

Reference for a preliminary ruling — Bayerischer Verwaltungs-
gerichtshof — Interpretation of Article 1(2)(d) and (e) and (3) of
Regulation (EC) No 258/97 of the European Parliament and of
the Council of 27 January 1997 concerning novel foods and
novel food ingredients (OJ 1997 L 43, p. 1) — Novel character
of a food marketed in a limited geographical area of the Com-
munity (San Marino) shortly before the entry into force of the
regulation when the food is manufactured from ingredients the
habitual human consumption of which is disputed or can be
established only by reference to a non-member country (Japan)
— Obligation to subject a food to a control

Judgment of the Court (First Chamber) of 15 January 2009
(reference for a preliminary ruling from the Oberster
Patent- und Markensenat — Austria) — Silberquelle GmbH
v Maselli Strickmode GmbH

(Case C-495/07) (1)

(Trade marks — Directive 89/104/EEC — Articles 10 and 12
— Revocation — Concept of ‘genuine use’ of a mark —
Affixing the mark to promotional items — Distribution of
such items free of charge to the purchasers of goods sold by
the mark's proprietor)

(2009/C 55/04)

Language of the case: German

Operative part of the judgment

Oberster Patent- und Markensenat

Referring court

1. Importation of a food product into San Marino before the entry
into force of Regulation (EC) No 258/97 of
the European
Parliament and of the Council of 27 January 1997 concerning
novel foods and novel food ingredients is not a relevant factor for
assessing whether that product meets the requirement relating to
human consumption to a significant degree within the European
Community within the meaning of Article 1(2) of that regulation.

requirement

2. The fact that all the individual ingredients of a food product meet
the
laid down in Article 1(2) of Regulation
No 258/97, or have a safe history, cannot be regarded as sufficient
for that regulation not to apply to the food product concerned. In
order to decide whether that food product should be classified as a
novel
food within the meaning of Regulation No 258/97, the
competent national authority must proceed on a case-by-case basis,
taking into account all the characteristics of the food product and
of the production process.

3. The fact that all of the algae contained in a food product within
the meaning of Article 1(2)(d) of Regulation No 258/97 meet the

Parties to the main proceedings

Applicant: Silberquelle GmbH

Defendant: Maselli Strickmode GmbH

Re:

Reference for a preliminary ruling — Oberster Patent- und
Markensenat — Interpretation of Articles 10(1) and 12(1) of
the First Council Directive 89/104/EEC of 21 December 1988
to approximate the laws of the Member States relating to trade
marks (OJ 1989 L 40, p. 1) — Revocation of the rights of the
proprietor of the trade mark — Concept of genuine use of the
trade mark — Goods (non-alcoholic drink) being given out as
free gifts on the occasion of the sale of other goods (textiles)