CELEX: C2001/200/92
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-193/01 P: Appeal brought on 7 May 2001 by Athanasios Pitsiorlas against the order made on 14 February 2001 by the First Chamber of the Court of First Instance of the European Communities in Case T-3/00 between (1) Athanasios Pitsiorlas and (2) the Council of the European Union and the European Central Bank

14.7.2001              EN                    Official Journal of the European Communities                                        C 200/51
The Commission of the European Communities asks the Court               Appeal brought on 7 May 2001 by Athanasios Pitsiorlas
                                                                        against the order made on 14 February 2001 by the First
                                                                        Chamber of the Court of First Instance of the European
—     to declare, pursuant to Article 226 EC, that, by applying         Communities in Case T-3/00 between (1) Athanasios
      an administrative practice whereby enriched foodstuffs            Pitsiorlas and (2) the Council of the European Union and
      which are lawfully marketed and produced in other                                   the European Central Bank
      Member States may be marketed in Denmark only if
      there is a documented need for enrichment of food
      substances in the Danish population, the Kingdom of                                       (Case C-193/01 P)
      Denmark has failed to fulfil its obligations under
      Article 28 EC;
                                                                                                 (2001/C 200/92)
—     order the Kingdom of Denmark to pay the costs.
                                                                        An appeal against the order made on 14 February 2001 by the
                                                                        First Chamber of the Court of First Instance of the European
                                                                        Communities in Case T-3/00 between (1) Athanasios Pitsiorlas
                                                                        and (2) the Council of the European Union and the European
                                                                        Central Bank was brought before the Court of Justice of
                                                                        the European Communities on 7 May 2001 by Athanasios
Pleas in law and main arguments                                         Pitsiorlas, represented by Dimitrios Papafilippou, of the Thessa-
                                                                        loniki Bar.
The administrative practice followed by the Danish authorities          The appellant claims that the Court should:
on the basis of Paragraph 3 of the Foodstuffs Law indisputably
constitutes an obstacle to trade contrary to Article 28 of the          —     hold the appeal admissible and well founded;
Treaty, in that foodstuffs which are lawfully sold in other
Member States cannot be marketed in Denmark. That obstacle
to trade cannot, in the Commission’s view, be justified on the          —     set aside the order under appeal made by the Court of
ground of public health (see Article 30 of the Treaty).                       First Instance on 14 February 2001 in Case T-3/00;
                                                                        —     uphold in their entirety the claims put forward at first
                                                                              instance or, in the alternative, refer the case back to the
                                                                              Court of First Instance;
General considerations as to desirable food composition for
the population cannot lawfully ground restrictions on trade.
Reliance on Article 30 of the Treaty presupposes that the               —     order the Council to pay costs at first instance and on
Member State can produce evidence in each individual case                     appeal.
that the obstacle to trade is necessary to protect public health.
                                                                        Grounds of appeal
The Commission recognises that where there are no harmo-
nised rules, it is basically for the Member States to determine         1.    Infringement of Article 114(3) of the Rules of Procedure
the level of protection which they consider necessary with                    of the Court of First Instance;
respect to public health. The discretion of the Member States
to determine the level of protection must, however, comply
with the principle of proportionality and the measures must             2.    Infringement of the principle of equality of arms;
be necessary to attain the aim sought. The Member States’
assessment of the risk to public health must be determined              3.    Misinterpretation of the Council decision;
on the basis of concrete scientific evidence. The Danish
administrative practice is based on the Codex Alimentarius,             4.    Incorrect finding, selective and consequently defective
which lays down general guidelines on the addition of vitamins                consideration of the facts resulting in infringement of
to foodstuffs. The guidelines do not give an independent                      Article 42 of the Statute of the Court of Justice;
scientific basis for introducing a prohibition on enrichment of
food substances with vitamins.
                                                                        5.    Failure to apply the case-law concerning excusable error
                                                                              or, entirely in the alternative, an excessively strict appli-
                                                                              cation of that case-law.