CELEX: 62005CC0319
Language: en
Date: 2007-06-21
Title: Opinion of Advocate General Trstenjak delivered on 21 June 2007. # Commission of the European Communities v Federal Republic of Germany. # Failure of a Member State to fulfil its obligations - Article 28 EC and Article 30 EC - Directive 2001/83/EC - Garlic preparation in capsule form - Preparation legally marketed as a food supplement in a number of Member States - Preparation classified as a medicinal product in the Member State of importation - Definition of ‘medicinal product’ - Obstacle - Justification - Public health - Proportionality. # Case C-319/05.

OPINION OF ADVOCATE GENERAL
      TRSTENJAK
      delivered on 21 June 2007 1(1)
      
      Case C‑319/05
      Commission of the European Communities
      v
      Federal Republic of Germany
      (Failure of a Member State to fulfil obligations – Article 226 EC – Free movement of goods – Measures having equivalent effect – Directive 2001/83/EC – Meaning of the term ‘medicinal product’ – National administrative practice according to which a garlic preparation in capsule form is classified as a medicinal product)I –  Introduction
      1.     The present case is based on an action for failure to fulfil obligations brought by the Commission pursuant to Article 226 EC
         against the Federal Republic of Germany, by which it asks the Court of Justice to declare that by classifying as a medicinal
         product a garlic preparation in capsule form which does not fall under the definition of a medicinal product by presentation
         under Article 1(2) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community
         code relating to medicinal products for human use, (2) the Federal Republic of Germany has failed to fulfil its obligations under Articles 28 and 30 EC.
      
      2.      The dispute thus hinges on whether the garlic preparation in question falls under that definition or whether it is to be
         regarded as a food supplement within the meaning of Article 2(a) of Directive 2002/46/EC of the European Parliament and of
         the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements. (3)
      
      II –  Legal framework
      1.      Primary Community law
      3.     Article 28 EC prohibits quantitative restrictions on imports between Member States and all measures having equivalent effect.
      4.     Under Article 30 EC, prohibitions or restrictions on imports are permitted where they are justified on grounds of public security
         and the protection of health and life of humans, provided they neither constitute a means of arbitrary discrimination or a
         disguised restriction on trade between Member States.
      
      2.      Directive 2001/83/EC 
      5.     Recitals 2 to 5 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community
         code relating to medicinal products for human use state:
      
      ‘(2)      The essential aim of any rules governing the production, distribution and use of medicinal products must be to safeguard public
         health.
      
      (3)      However, this objective must be attained by means which will not hinder the development of the pharmaceutical industry or
         trade in medicinal products within the Community.
      
      (4)      Trade in medicinal products within the Community is hindered by disparities between certain national provisions, in particular
         between provisions relating to medicinal products (excluding substances or combinations of substances which are foods, animal
         feeding-stuffs or toilet preparations), and such disparities directly affect the functioning of the internal market.
      
      (5)      Such hindrances must accordingly be removed; whereas this entails approximation of the relevant provisions.’
      6.     Under Article 1(2) of Directive 2001/83/EC, medicinal products means:
      ‘Any substance or combination of substances presented for treating or preventing disease in human beings.
      Any substance or combination of substances which may be administered to human beings with a view to making a medical diagnosis
         or to restoring, correcting or modifying physiological functions in human beings is likewise considered a medicinal product.’
      
      7.     Article 6(1) of that directive provides:
      ‘No medicinal product may be placed on the market of a Member State unless a marketing authorisation has been issued by the
         competent authorities of that Member State in accordance with this Directive or an authorisation has been granted in accordance
         with Regulation (EEC) No 2309/93.’
      
      3.      Directive 2002/46/EC 
      8.     Under Article 2(a) of Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation
         of the laws of the Member States relating to food supplements, food supplements are:
      
      ‘foodstuffs the purpose of which is to supplement the normal diet and which are concentrated sources of nutrients or other
         substances with a nutritional or physiological effect, alone or in combination, marketed in dose form, namely forms such as
         capsules, pastilles, tablets, pills and other similar forms, sachets of powder, ampoules of liquids, drop dispensing bottles,
         and other similar forms of liquids and powders designed to be taken in measured small unit quantities’.
      
      III –  Pre-litigation procedure 
      9.     The Commission took action following a complaint lodged by an undertaking whose application pursuant to Paragraph 47a of the
         Law on foodstuffs and consumer products (Lebensmittel- und Bedarfsgegenständegesetz; the ‘LMBG’) for the adoption of a decision
         of general application on the importation and marketing of a garlic preparation in capsule form was refused by the Federal
         Ministry of Health on the ground that the product was not a foodstuff, but a medicinal product.
      
      10.   The product in question is marketed under the designation ‘Knoblauch-Extrakt-Pulver-Kapsel’ (‘garlic extract powder capsule’)
         or ‘Knoblauch-Zwiebel-Pulver’ (‘garlic bulb powder’). According to the information available to the Court, it is an extract
         obtained using ethanol, which is cultivated on a medium (lactose) for the technological purpose of spray drying. The product
         is composed of carbohydrates, proteins and fats, as well as trace elements and vitamins. 
      
      11.   After a lengthy informal exchange, on 24 July 2001 the Commission sent a letter of formal notice to the Federal Republic of
         Germany in which it concluded that the classification of garlic bulb powder in capsule form as a medicinal product on grounds
         such as those chosen in the case of the complaint is incompatible with the principles of the free movement of goods under
         Article 28 EC and Article 30 EC and the relevant case-law. The German Government replied to the letter of formal notice on
         5 October 2001.
      
      12.   In its reasoned opinion of 19 December 2002, the Commission called on the Federal Republic of Germany to put an end to the
         administrative practice according to which products which consist of dried powdered garlic and which are clearly not labelled
         or presented as medicinal products are treated as medicinal products.
      
      13.   The Federal Government replied by letter of 14 March 2003. It reported that the classification of the product in question
         as a medicinal product had been re-examined and had to be maintained.
      
      IV –  Proceedings before the Court of Justice and forms of order sought by the parties
      14.   In its application, which was lodged at the Court Registry on 19 August 2005, the Commission claims that the Court should
         declare that by classifying as a medicinal product a garlic preparation in capsule form which does not fall under the definition
         of a medicinal product by presentation under Article 1(2) of Directive 2001/83, the Federal Republic of Germany has failed
         to fulfil its obligations under Articles 28 and 30 EC. It also claims that the Court should order the Federal Republic of
         Germany to pay the costs. 
      
      15.   In its defence, lodged on 11 November 2005, the German Government claims that the Court should dismiss the action as unfounded
         and order the Commission to pay the costs.
      
      16.   The written phase of the proceedings concluded following submission of the reply on 3 February 2006 and the rejoinder on 7 April
         2006.
      
      17.   At the hearing, held on 19 April 2007, the representatives of the Commission and of the Federal Republic of Germany confirmed
         their respective positions. 
      
      V –  Submissions of the parties
      18.   The Commission points out, first of all, that, in addition to protecting human health, the Community rules on medicinal products are intended
         to safeguard free movement of goods, with the result that the interpretation of the rules contained in the directive in general
         and of the term ‘medicinal product’ in particular cannot result in obstacles to the free movement of goods which are entirely
         disproportionate to the pursued aim of protecting health.
      
      19.   As regards the question of classification as a medicinal product by function, in addition to the pharmacological effects of
         the product in question, consideration must also be given to the methods for use, the extent of dissemination, awareness among
         consumers and the risks that might be associated with usage.
      
      20.   With regard to pharmacological effects, the Commission does not dispute that the product in question may serve to prevent
         arteriosclerosis, although the same effect could be achieved simply by taking four grams of raw garlic each day. If a product
         which is claimed to be a medicinal product does nothing more than a conventional foodstuff, this shows that its pharmacological
         properties are not sufficient for it to be accepted as a medicinal product. According to the Commission, a product that has
         no further effects does not go far enough to be a medicinal product by function.
      
      21.   The product could at most be a food supplement within the meaning of Article 2(a) of Directive 2002/46, that is to say a foodstuff
         which contains substances with a nutritional or physiological effect, alone or in combination, marketed in dose form. Nevertheless,
         the attempt to deny that the products in question are foodstuffs certainly does not justify their classification as medicinal
         products.
      
      22.   With regard to the classification of a product as a medicinal product by presentation, this question must be clarified on
         a case-by-case basis, having regard to the specific characteristics of the product. A product may be regarded as a medicinal
         product by presentation if its form and the manner in which it is packaged render it sufficiently similar to a medicinal product
         and, in particular, if on its packing and the information provided with it reference is made to research by pharmaceutical
         laboratories or to methods or substances developed by medical practitioners or even to testimonials from medical practitioners
         commending the qualities of the product in question. A statement that a product is not a medicinal product is persuasive evidence,
         but it is not in itself conclusive.
      
      23.   In the present case, the product is not presented or recommended for treating or preventing disease either on the label, on
         the information printed on the packaging, or in any other way. The external packaging of the product cannot be regarded as
         typical of medicinal products. The capsule form is the only specific characteristic of the product that relates to medicinal
         products. However, this external form alone cannot be a decisive indicator. In other respects too, there is nothing in the
         present case to suggest that the product is a medicinal product by presentation. Consumers know exactly what is contained
         in the capsules, namely garlic, which they know as a foodstuff. They can also see that the product does not make reference
         to any therapeutic effect.
      
      24.   Lastly, whilst Member States cannot be prevented, in their national law, from making a product which is not a medicinal product
         within the meaning of Directive 2001/83 subject to the rules applying to medicinal products, the measures to safeguard public
         health must be proportionate. In the present case, however, the German authorities have not shown that the prohibition on
         marketing the product in question as a food supplement and the obligation to obtain a marketing authorisation for medicinal
         products are actually necessary for the protection of the health of the population.
      
      25.   The German Government claims that Community law provides that the regime governing medicinal products takes priority over the provisions on foodstuffs
         and food supplements. According to the case-law of the Court of Justice, the priority accorded to the regime governing medicinal
         products follows from Article 2, third paragraph, (d) of Regulation No 178/2002 and from Article 1(2) of Directive 2002/46,
         which both exempt medicinal products from the scope of the rules on foodstuffs and on food supplements. (4) That interpretation is confirmed by Directive 2004/27/EC, by which a revised Article 2 was inserted into Directive 2001/83,
         under paragraph 2 of which, in cases of doubt, where a product is also covered by other Community legislation – such as the
         rules governing foodstuffs – the provisions of the directive on medicinal products apply.
      
      26.   It then takes the view that the garlic preparation in question is a medicinal product by function, primarily because it has
         pharmacological properties to which considerable importance is attached. The product in the present case has therapeutic effects
         which prevent pathological changes in the human body and in particular prevent arteriosclerosis. In support of its view, the
         German Government relies on various reports and scientific articles.
      
      27.   With regard to the Commission’s argument that the effects of the preparation on arteriosclerosis are limited, the Federal
         Government states that neither the directive on medicinal products nor the case-law of the Court of Justice indicates a ‘materiality
         threshold’ beyond which a specific level of pharmacological effects has to be proven. If, then, the pharmacological effectiveness
         is taken to exist, it is irrelevant whether there is a slight or material reduction in the risk of arteriosclerosis.
      
      28.   Classification as a medicinal product cannot depend on the origin of the substances and the Court has ruled that in certain
         large doses vitamins may be classified as medicinal products. (5) The fact that vitamins also occur in many foodstuffs thus does not prevent their classification as medicinal products. The
         same must apply to garlic and to allicin, the active substance contained in it. It is therefore ultimately irrelevant whether
         or not an active substance with pharmacological properties also occurs in a foodstuff.
      
      29.   The preparation at issue also has pharmacological properties because it could cause health risks if taken. The fact that the
         consumption of certain other foodstuffs may also have negative effects on health nevertheless cannot call into question their
         status as medicinal products. Above all, however, the pharmacological and therapeutic effects play a crucial role.
      
      30.   With regard to the methods for use, the German Government claims that the fact that the product in question is offered for
         sale in capsule form essentially suggests that it is a functional medicinal product. The Federal Government states that a
         product may be regarded as a medicinal product by presentation if its form and the manner in which it is packaged render it
         sufficiently similar to a medicinal product. In the present case the capsule form used suggests that it is intended to be
         marketed as a medicinal product even if the external form alone cannot be a decisive indicator for classification as a medicinal
         product.
      
      31.   Furthermore, there are numerous medicinal products with active substances such as garlic bulb powder on the market in Germany
         which are packaged in exactly the same way as the preparation at issue in the main proceedings. The fact that they are all
         classified as medicinal products suggests that, according to the established view and consumer expectations, the comparable
         product at issue is also a medicinal product by presentation.
      
      32.   The German Government also infers from the Court’s case-law that in deciding on the classification of the product the national
         authorities have a broad discretion. (6) The Commission has not satisfied the burden of proof on it and cannot show that the exercise of discretion by the German
         authority, according to which the preparation is to be classified as a medicinal product, has been defective.
      
      33.   In the alternative, the Federal Republic of Germany claims, in the event that the Court takes the view that free movement
         of goods is applicable and considers the classification decision to be a restriction, that the decision was justified in order
         to protect an overriding public interest, namely to safeguard public health.
      
      VI –  Legal assessment
      1.      Introductory remarks
      a)      Harmonisation as a result of a balancing act by the legislature
      34.   The term ‘medicinal product’ does not appear in the EC Treaty. Nevertheless, the law governing medicinal products is governed
         and regulated to a considerable extent by Community law. EC law on medicinal products – like Community law on foodstuffs –
         was developed on the basis of the rules governing the free movement of goods. Medicinal products are included among the goods
         which form part of trade between Member States. However, they are products which, because of fundamental health dangers, require
         extraordinary precautions to be taken to guarantee the safety of the population. (7)
      
      35.   These measures are taken by the Member States, according to the modern view, as part of the State duty to protect health in
         pursuance of a fundamental State duty to provide protection. However, as long as and in so far as there are different national
         views on the necessary degree of protection and the appropriate methods for providing the level of safety, such rules are
         barriers to trade and thus almost classic cases of measures having equivalent effect to quantitative restrictions on imports
         within the meaning of Article 28 EC. (8) Under Article 30 EC they are justified only if they serve actual grounds of protection of health and are proportionate.
      
      36.   However, the harmonisation of the law on medicinal products at Community level is intended to remove precisely those justified
         barriers to trade with a view to establishing a single market as an area without internal borders. That aim is served by the
         secondary legislation, based first on Article 94 EC, then on Article 95 EC, to approximate national law on medicinal products,
         whereby, initially, terms such as medicinal product were defined for the purposes of Community law, the necessary material
         safety standards were approximated, and measures were taken in relation to the labelling of medicinal products and the facilitation
         and guaranteeing of the mutual recognition of national measures in the field of the law on medicinal products. A qualitatively
         new step was taken with the establishment of the uniform Community authorisation procedure. (9)
      
      37.   Harmonisation is carried out above all by means of directives which, according to the objective of Community law on medicinal
         products, essentially seek to safeguard public health. (10) However, this objective must be attained by means which will not hinder the development of the pharmaceutical industry or
         trade in medicinal products within the Community. (11) The objectives of protection of health and free movement of goods are therefore both to be attained and must therefore be
         balanced. (12) Accordingly, harmonising directive 2001/83 should be regarded as the result of a balancing act by the legislature involving
         two Community objectives.
      
      b)      The meaning of the term ‘medicinal product’ under Community law
      38.   The Community legislature is free, within the limits laid down by the Treaty, to determine the extent of harmonisation. Full
         harmonisation of certain areas of the law on medicinal products therefore does not leave any room for separate national measures.
         With full harmonisation, the definition of ‘medicinal product’ in Article 1(2) of Directive 2001/83 is to be regarded as exhaustive,
         with the result that in describing products as ‘medicinal products’ the Member States are bound by that definition. (13) The competent national administrative authorities are therefore forbidden to bring products within the definition of medicinal
         products if, on the basis of objective criteria, they are not such products. (14)
      
      39.   If, however, the adoption of a decision of general application on the importation and marketing of a product is refused on
         the ground that it constitutes a medicinal product, even though the elements of the definition of medicinal product under
         Community law are not satisfied, that official action must be regarded as a failure to comply with the prescribed definition
         and thus an infringement of Community law in so far as that official action is based on an administrative practice. (15) Such an infringement inevitably gives rise to national liability on the part of the Member State in question.
      
      40.   In the present case, the Commission’s complaint is directed against an administrative practice on the part of the German authorities
         whereby products which consist of dried powdered garlic are treated as medicinal products.
      
      41.   The definition of ‘medicinal product’ under Directive 2001/83, just like the old definition in Directive 65/65/EEC, consists
         of two parts. A substance is a medicinal product if it is presented for treating or preventing disease in human beings (definition
         ‘by presentation’). It is also to be regarded as a medicinal product if it may be administered to human beings with a view
         to making a medical diagnosis or to restoring, correcting or modifying physiological functions in human beings (definition
         ‘by function’). A product is a medicinal product under Community law if it comes within one or other of those two definitions.
      
      42.   It should be noted in this connection that I expressly concur with the restrictive interpretation of the term ‘medicinal product’
         under Directive 2001/83 advocated by Advocate General Geelhoed in his Opinion in HLH Warenvertrieb and Orthica. (16)
      
      43.   As Advocate General Geelhoed rightly argues in point 36 of his Opinion in HLH Warenvertrieb and Orthica, there are three objections to too broad an interpretation and application of the definition of medicinal product. First
         of all, the concept of ‘medicinal product’ would cease to have any differentiating effect if it were to include products whose
         properties and action did not justify their being classified as such. This would harm rather than serve the interests of human
         health. Secondly, it could result in the specific Community regulations for certain categories of food – containing provisions
         relating to the particular risks of the products – losing their regulatory object, like, in this case, Directive 2002/46 on
         food supplements. Thirdly, a ‘stealthy’ extension of the scope of Directive 2001/83 to include extraneous products would be
         detrimental to the free movement of goods. 
      
      44.   Indications of a more restrictive interpretation of the term ‘medicinal product’ can be seen in the case-law. On the one hand,
         there is agreement that the legislation for medicinal products must be more stringent than for foodstuffs because particular
         dangers may be associated with their use. (17) On the other hand, the Court requires, for a product to be classified as a medicinal product, that there must be sufficient
         certainty that products which are claimed to have an effect as a medicinal product actually have that effect. (18) Logically, the existence of both the particular dangers and the effect as a medicinal product must be examined using information
         based on sound scientific research.
      
      45.   In my opinion, these considerations must be taken into account in the legal examination of the question, which is relevant
         to the present action for failure to fulfil obligations, whether the contested garlic preparation satisfies the criteria for
         classification of a product as a medicinal product, i.e. whether the classification made by the Federal Ministry of Health
         is consistent with Community law.
      
      46.   With regard to the possible limits of the judicial review of decisions of national authorities by the Court of Justice, it
         must be pointed out that under Community law the authorities concerned must enjoy a wide measure of discretion in performing
         duties which call for technical and scientific analyses. The Court concluded from this fact that the decision-making freedom
         of national authorities is subject only to a limited judicial review. In particular, the Community judicature may not substitute
         its assessment of the facts for that made by the authority in question. At the same time, however, the Court stressed that
         it had the tasks of examining the accuracy of the findings of fact and law made by that authority. (19) As a result, it is entirely within the power of the Community Courts, in an action for failure to fulfil obligations like
         the present case, to examine whether the elements of the definition of the term ‘medicinal product’ are satisfied in the individual
         case. It must therefore be examined below whether the garlic preparation at issue is a medicinal product within the meaning
         of the first subparagraph of Article 1(2) of Directive 2001/83.
      
      47.   Let me point out, moreover, that, as the Court has consistently held in proceedings under Article 226 EC, it is for the Commission
         to prove an alleged infringement of Community law. (20) In this case, therefore, it is primarily for the Commission to demonstrate and establish that the German Government misapplied
         Directive 2001/83, notwithstanding the discretion conferred on it, by wrongly treating the garlic preparation in question
         as a medicinal product. Of course, this does not preclude the Member State concerned from having to cooperate in the production
         of evidence by plausibly demonstrating, as the Court has stated in its case-law, on the basis of the results of international
         scientific research, that a given product is a medicinal product for the purposes of Directive 2001/83. (21) If the Commission wishes to contest the data furnished by the Member State, it must do so on the basis of equally reliable
         data. 
      
      2.      Medicinal product by presentation 
      48.   According to the case-law of the Court of Justice, the criterion of ‘presentation’ is designed to catch not only medicinal
         products having a genuine therapeutic or medical effect but also those which are not sufficiently effective or do not have
         the effect which consumers would be entitled to expect from the way in which they are presented. (22) This part of the definition of the term ‘medicinal product’ under Community law covers both ‘genuine’ medicinal products
         and preparations which do not have any pharmaceutical active substance and thus, from an objective perspective, cannot have
         any medical effect. As a result, according to case-law, the consumer is intended to be protected ‘not only from harmful or
         toxic medicinal products, but also from a variety of products used instead of the proper remedies’. (23) For that reason, the notion of the ‘presentation’ of a product has thus far been given a broad interpretation. 
      
      49.   It must be assumed that a product is presented for treating or preventing disease within the meaning of Directive 2001/83
         not only when it is expressly ‘presented’ or ‘recommended’ as such, possibly by means of labels, leaflets or oral representation,
         but also whenever any averagely well-informed consumer gains the impression, which, provided it is definite, may even result
         from implication, that the product in question should, having regard to its presentation, have the properties in question. (24) Reference must therefore be had to the intended use designated by the manufacturer, which is apparent to the consumer. (25)
      
      50.   According to the papers in the case, the contested product manufactured by Piddimax is a garlic extract powder which is sold
         in capsule form, each capsule containing the equivalent of 7.4 g of fresh, raw garlic. It is clear from the label, which was
         submitted with the application for the adoption of a decision of general application, that one capsule contains 370 mg of
         highly concentrated allicin-containing garlic extract powder.
      
      51.   I must concur with the Commission’s view that, apart from the capsule form in which the garlic preparation is marketed, there
         is nothing to suggest that it should be classified as a medicinal product by presentation. It should be borne in mind that,
         according to the case-law, the external form, such as a tablet, pill or capsule, may serve as strong evidence of the seller’s
         or manufacturer’s intention to market that product as a medicinal product. Such evidence cannot, however, be the sole or conclusive
         evidence, since otherwise certain food products which are traditionally presented in a similar form to pharmaceutical products
         would also be covered. (26) In fact, at present the capsule form has probably lost importance for possible classification as a medicinal product, especially
         since many food supplements as well as many dietetic foodstuffs are offered for sale in capsule, gelatine and tablet form,
         just like medicinal products. (27) Simply making reference to the marketing form would not take sufficient account of the fact that, for example, elements which
         were previously typical of medicinal products have become established on the market in food supplements in the interests of
         customer orientation and for reasons of expediency. (28) In addition, it is undoubtedly often essential for reasons of quality and practicability to offer food supplements for sale
         packaged in capsule form. It must therefore be assumed that an averagely well-informed consumer has now accepted the fact
         that this form is no longer specifically for medicinal products. The marketing of the contested garlic preparation in capsule
         form does not therefore automatically allow it to be classified as a medicinal product.
      
      52.   Furthermore, the fact that a ‘dosage’ and not a ‘portion of the product recommended for daily consumption’, as referred to
         in Article 6(3)(b) of Directive 2002/46, is indicated on the packaging cannot make the contested garlic preparation a medicinal
         product either. As the Commission rightly argues, that directive mentions elsewhere ‘dose form’ and ‘recommended daily dose’,
         which suggests that the terms ‘dosage’ and ‘portion of the product recommended for daily consumption’ essentially describe
         the same thing. Irrespective of terminological differences, a dosage cannot be the crucial factor in distinguishing between
         medicinal products and foodstuffs, as an appropriate maximum limit may prove to be necessary for the protection of health
         even in the case of certain foodstuffs which are not to be regarded as medicinal products.
      
      53.   Consequently, the contested garlic preparation does not satisfy the definition of the term ‘medicinal product’ by presentation
         under the first subparagraph of Article 1(2) of Directive 2001/83. Neither is the manner in which it is packaged typical of
         medicinal products, nor can the conclusion be drawn, on the basis of particular characteristics or indications from the manufacturer,
         that the manufacturer had the intention of marketing the garlic preparation as a medicinal product. 
      
      54.   The two parts of the definition of the term ‘medicinal products’ under Community law cannot, however, be viewed as rigorously
         distinct. As the Court stated in van Bennekom, (29) a substance which is endowed with properties ‘for treating or preventing disease in human beings or animals’ within the meaning
         of the first part of the Community definition, but which is not ‘presented’ as such, falls within the scope of the second
         part of the Community definition of a medicinal product.
      
      3.      Medicinal product by function 
      55.   The definition of a medicinal product by function laid down in the second subparagraph of Article 1(2) of Directive 2001/83
         is to be understood as encompassing only substances or combinations of substances which may be administered to human beings
         with a view to modifying physiological effects. That definition of the term ‘medicinal product’ covers products which, actually
         or according to their claimed effects, can affect the body in such a way that they modify considerably the way in which it
         functions. (30)
      
      56.   In its case-law, the Court has mentioned the following criteria which may be used to determine whether a product falls under
         this part of the definition: its composition, its pharmacological properties – to the extent to which they can be established
         in the present state of scientific knowledge – the manner in which it is used, the extent of its distribution, its familiarity
         to consumers and the risks which its use may entail. (31) However, the Court has left open how those characteristics are to be assessed and has not yet provided any definition of
         ‘pharmacological properties’, except for stating that those properties include the ‘effect on health in general’. (32)
      
      57.   In my opinion, the criterion of the pharmacological properties (33) is of crucial importance because it is an objective characteristic which can be established only on a case-by-case basis
         by means of a thorough technical/scientific examination. The need for a clear definition of pharmacological properties is
         particularly evident in cases like the present one, which concern the classification of products which, in addition to their
         status as foodstuffs, are recognised as having health-promoting effects. 
      
      58.   As Advocate General Tesauro rightly stated in Delattre, (34) the wording ‘restoring, correcting or modifying physiological functions’ contained in the second subparagraph of Article 1(2)
         of Directive 2001/83 is formulated in broad terms in order to extend to those products which, although without doubt inherently
         able to affect physiological functions, have an essentially nutritional purpose. I have already argued elsewhere that such
         an interpretation ultimately promotes neither the protection of health nor the free movement of goods. (35) Nor can that be the intention of the Community legislature. Concurring with the proposals made by Advocate Generals Geelhoed (36) and Tesauro, (37) I therefore take the view that the concept of a medicinal product by function must be interpreted restrictively. (38) Accordingly, the definition should cover only products with scientifically identifiable pharmacological properties. It should
         not be sufficient for the product merely to have physiological and nutritional effects. Rather, I consider that it must either
         be intended to prevent or treat disease, have relevant health risks or secondary effects which are detrimental to health,
         or have an excessive effect on physical functions. (39)
      
      59.   The German Government essentially justifies the classification of the product as a medicinal product by reason of its high
         allicin content which, according to its own information, has a two to four times higher concentration of active substances
         than the scientifically recommended daily dose. It argues that for that very reason the product is not a substance which should
         be treated in the same way as the foodstuff garlic, but rather a highly concentrated garlic extract obtained using ethanol
         which is cultivated on a medium (lactose). It sees evidence of pharmacological properties first of all in garlic’s effects
         in lowering blood pressure and lipid levels, which makes the preparation a suitable means for preventing general hardening
         of the arteries (general arteriosclerosis).
      
      60.   At this point, I believe that it should be pointed out that the legal assessment to be conducted by the Court must not be
         restricted to the health-promoting effect which garlic has as a foodstuff in the present state of scientific knowledge. Many
         products which are clearly foodstuffs according to the established view may also objectively serve therapeutic purposes. (40) On the basis of the restrictive interpretation of the definition of ‘medicinal product’ advocated here, the question must
         be asked whether the contested product in itself offers any additional benefit compared with garlic in its natural form.
      
      61.   On this question I tend to concur with the view taken by the Commission that the product in question in the present case is
         not a medicinal product. The literature on which the German Government relies in its defence explains the effect of the foodstuff
         garlic, which can be achieved through consumption of that foodstuff, but also by taking garlic preparations in the form of
         capsules, powders or solutions. (41) On closer examination the contested preparation proves to be nothing more than a concentrate of the natural active substance
         allicin, whose physiological effects can simply be achieved by taking a larger amount of the foodstuff garlic. 
      
      62.   Whilst it is recognised that the use of garlic has a positive effect on the human body, its effect should not be regarded
         as any greater or different from that of other vegetable or animal products which are taken as part of the daily diet. As
         the Commission argues in its application, that effect can also be achieved by using other foodstuffs and by adopting a certain
         diet. For example, sea fish such as salmon, tuna, herring and sardines contain omega-3 fatty acids, which also reduce the
         risk of arteriosclerosis. In addition, vitamin C, vitamin E and the mineral selenium are important and can all be taken as
         part of normal foodstuffs, but also as food supplements.
      
      63.   I do not believe that the arguments put forward by Federal Government are conclusive enough to take the view that the product
         should be classified as a medicinal product ‘by function’ since the effects of such a preparation are not such as to prevent
         the risk of arteriosclerosis entirely. As can be seen from the letter from the German Government of 14 March 2003, which is
         Annex 4 to the application, apart from the active substance allicin the contested preparation does not contain any substances
         that could be classified as vitamins, minerals or other substances with a nutritional or physiological effect. (42)
      
      64.   In any case, any effect of a foodstuff in reducing risks or promoting health must not automatically lead to classification
         as a medicinal product, otherwise the Member States would be free to impede trade specifically in those valuable foodstuffs
         and thus withhold them from consumers. It is clear that such a consequence is directly contrary to the objectives of free
         movement of goods.
      
      65.   It is equally difficult to understand the German Government’s reference to the risks associated with the use of garlic. In
         so far as it refers to reports of spontaneous and post-operative bleeding, to possible interactions with the HIV medication
         Saquinavir and with certain medicinal products which stem blood clotting, the objection must be raised that the risks concerned
         are associated with taking garlic in general and are not to be attributed specifically to the preparation. As the Commission
         rightly notes, it is not unusual for an individual’s state of health possibly to require a certain diet to be observed, such
         as eating food that is low in salt or avoiding alcoholic drinks. Since those secondary effects occur very rarely and only
         where there is a certain inherited or situation-specific susceptibility, they should not really be regarded as relevant health
         risks or secondary effects which are detrimental to health within the meaning of the case-law. In addition, a possible health
         risk is just one of many factors which the competent national authorities have to take into account in classifying a product
         as a medicinal product ‘by function’. (43)
      
      66.   The German Government’s argument that an established view has been formed with regard to highly concentrated garlic preparations
         must also be rejected. That view fails to recognise that under Community law, to determine whether a product should be classified
         as a medicinal product, the national authorities must work on a case-by-case basis. (44) The blanket reference to an established view with regard to garlic products in general, for which no further evidence is
         given, does not relieve it of that duty. Furthermore, the Court has already held that consumers’ conceptions are likely to
         evolve in the course of the establishment of the internal market. (45) National rules must not result in certain consumer habits becoming entrenched in a way that would run counter to the establishment
         of the internal market.
      
      67.   All in all, therefore, the product does not fall within the definition of the term ‘medicinal product’ under Community law
         in accordance with Article 1(2) of Directive 2001/83.
      
      68.   Since the contested garlic preparation does not satisfy any of the legal definitions of ‘medicinal product’ contained in Article 1(2)
         of Directive 2001/83 and does not therefore fall within the scope ratione materiae of that provision, it is not necessary
         to comment on whether and to what extent the regime governing medicinal products takes priority over the rules on foodstuffs
         and food supplements. (46) The submissions made by the Federal Government in that regard must therefore be rejected as irrelevant in this case.
      
      4.      Applicability of the Treaty provisions on the free movement of goods 
      69.    The product could at most be a food supplement within the meaning of Article 2(a) of Directive 2002/46, that is to say a
         foodstuff the purpose of which is to supplement the normal diet and which is a concentrated source of nutrients or other substances
         with a nutritional or physiological effect, alone or in combination, marketed in dose form. However, the garlic preparation
         in question is not composed of the nutrients listed in Article 2(b) of Directive 2002/46 (vitamins and minerals) and is not
         therefore covered by the scope ratione materiae of that rule.
      
      70.   Under the eighth recital of Directive 2002/46, the Member States may, until such specific Community rules are adopted and
         without prejudice to the provisions of the Treaty, apply national rules concerning nutrients or other substances with nutritional
         or physiological effect used as ingredients of food supplements, for which no specific Community rules have been adopted.
      
      71.   In the absence of harmonisation in that sector, the Treaty provisions concerning free movement of goods therefore form the
         basis for assessing the compatibility of the classification of the product as a medicinal product by the German authorities.
      
      5.      Unjustified restriction of the free movement of goods
      72.   Under Article 28 EC, quantitative restrictions on imports and all measures having equivalent effect are prohibited between
         Member States. Measures having equivalent effect to a quantitative restriction are all rules and measures enacted by Member
         States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade. (47)
      
      73.   The decision of 8 June 2000, by which the contested garlic product was refused authorisation as a food supplement in connection
         with the application under Paragraph 47a of the LMBG, is a national measure within the meaning of Article 28 EC. According
         to the grounds of the decision, the garlic product marketed lawfully in another Member State is regarded as a medicinal product
         in the Federal Republic of Germany. It may not therefore be marketed in Germany as a foodstuff or food supplement, but would
         have to be authorised as a medicinal product. That requirement is capable of impairing intra-Community trade in the product
         in question. It therefore constitutes a prohibited measure having equivalent effect.
      
      74.   The Court has stated that in default of harmonisation and to the extent that uncertainties continue to exist in the current
         state of scientific research, Member States may, in certain conditions, restrict on the basis of Article 30 EC the marketing
         of foodstuffs lawfully marketed in another Member State on grounds of the protection of the health and life of humans. (48) However, the measures taken by the Member States in relation to that product in order to safeguard public health must be
         proportionate. (49)
      
      75.   It is for the national authorities which invoke protection of public health to show in each case, in the light of national
         nutritional habits and in the light of the results of international scientific research, that their rules are necessary to
         give effective protection to the interests referred to in that provision and, in particular, that the marketing of the products
         in question poses a real risk to public health. (50) The burden of justification is heavier for the Member State in question, the higher the legal and factual requirements for
         marketing a product. It should be pointed out in this connection that the issue of a marketing authorisation under Article 8
         of Directive 2001/83 is subject to strict requirements. (51)
      
      76.   Under these circumstances, the prohibition on marketing the product in question as a foodstuff and the obligation to obtain
         a marketing authorisation for medicinal products are regarded as proportionate only if they are actually necessary for the
         protection of the health of the population.
      
      77.   The German Government takes the view that the restriction of free movement of goods is in any case justified in order to protect
         an overriding public interest, namely to safeguard public health. In this respect it refers to its submissions on the health
         risks stemming from the preparation. (52)
      
      78.   As has already been explained, those arguments clearly relate to the effects of the foodstuff garlic, whilst they fail entirely
         to examine the contested preparation on a case-by-case basis. For example, the German Government does not clearly distinguish
         between the physiological effects resulting from the consumption of large quantities of garlic and from taking garlic preparations.
         In the letter from the German Government of 5 October 2001 to the Commission, reference is made to the foodstuff and the product
         to some extent indiscriminately, for example in connection with possible secondary effects such as gastrointestinal complaints,
         allergic reactions and slight lowering of blood pressure. 
      
      79.   However, Article 30 EC may be relied on only if there actually exists a danger to the interest to which the Member State in
         question refers. (53) According to case-law, even if a situation of danger does not have to have been proven beyond scientific doubt, a substantiated
         and comprehensible case must be made in this regard. (54) Against the background of the high justification requirements which the Community legislature and the Court has imposed on
         the Member States, the mere blanket reference by the German Government to possible health risks which may arise from the consumption
         of garlic under very specific living conditions cannot be sufficient to justify such a drastic measure as the refusal of market
         access. 
      
      80.   The German Government has not therefore shown that the issue of a marketing authorisation for the garlic preparation in question
         as a medicinal product was necessary to safeguard public health, especially since warnings for those who suffer allergies
         or those who have an inherited or situation-specific susceptibility to certain diseases are perfectly conceivable as a less
         onerous measure than a general marketing prohibition. (55)
      
      81.   To apply the requirements governing authorisation as a medicinal product to the contested garlic preparation therefore constitutes
         an unjustified restriction on the free movement of goods.
      
      VII –  Costs
      82.   Under Article 69(2) of the Rules of Procedure, in treaty infringement proceedings the unsuccessful party is to be ordered
         to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs
         and the Federal Republic of Germany has been unsuccessful, it must be ordered to pay the costs.
      
      VIII –  Conclusion
      83.   On the basis of the foregoing considerations, I propose that the Court:
      (1)      declare that by classifying as a medicinal product a garlic preparation in capsule form which does not fall under the definition
         of a medicinal product by presentation under Article 1(2) of Directive 2001/83/EC of the European Parliament and of the Council
         of 6 November 2001 on the Community code relating to medicinal products for human use, the Federal Republic of Germany has
         failed to fulfil its obligations under Articles 28 and 30 EC.
      
      (2)      order the Federal Republic of Germany to pay the costs.
      1 –	Original language: German.
      
      2 –	OJ 2001 L 311, p. 67.
      
      3 –	OJ 2002 L 183, p. 51.
      
      4 –	Joined Cases C‑211/03, C‑299/03 and C‑316/03 to C‑318/03 HLH Warenvertrieb and Orthica [2005] ECR I‑5141, paragraph 43.
      
      5 –	Case C‑387/99 Commission v Germany [2004] ECR I‑3751, paragraph 56, and Case 227/82 van Bennekom [1983] ECR 3883, paragraph 27.
      
      6 –	HLH Warenvertrieb and Orthica (cited in footnote 4 above, paragraph 43).
      
      7 –	Clement, C., ‘La notion de médicament en droit communautaire de la santé’, Les petites affiches, 1995, No 12, p. 20, states that medicinal products are not ordinary goods since they are used to combat diseases, pains
         and other complaints. At the same time, however, he points out the risks associated with taking medicinal products by drawing
         attention to the widely held view that ‘the more effective a medicinal product is, the more harmful it is’.
      
      8 –	Streinz/Ritter, J., in: Dauses, M. (ed.), Handbuch des EU-Wirtschaftsrechts, C. V., paragraph 2; Winter, B., Die Verwirklichung des Binnenmarktes für Arzneimittel, Berlin 2004, p. 77; Cadeau, E./Richeux, J.-Y., ‘Le juge communautaire et le médicament: libre circulation des marchandises
         et protection de la santé publique’, Les petites affiches, 1996, No 7, p. 9, regard national rules and administrative practices that are liable to hinder trade in pharmaceutical products
         between Member States as measures having equivalent effect to quantitative restrictions on imports within the meaning of Article 28 EC.
      
      9 –	A medicinal product is given access to the market only if it has undergone the specified authorisation procedure and the
         competent authority has granted authorisation for the marketing of the medicinal product. Authorisation of a medicinal product
         is necessary in order to guarantee the safety of consumers dealing with medicinal products and to protect them against ineffective
         and harmful medicinal products. Nevertheless, the guarantee of a high level of protection in dealings with medicinal products
         must be attained by means which will hinder trade in pharmaceutical products within the Community as little as possible. Differences
         between the national authorisation rules have a direct effect on the establishment and functioning of the internal market.
         For these reasons, the creation of uniform Community authorisation procedures was an important concern for the Community.
         There are now three possible ways a medicinal product can be authorised in the European Union: the central authorisation which
         applies throughout the Union, the decentralised authorisation for several Member States, and a purely national authorisation,
         although the material authorisation criteria for all procedures are the same: authorisation of a medicinal product is refused
         if the examination of the authorisation documents reveals that the medicinal product does not have the indicated composition
         in terms of kind and quantity, if the therapeutic effectiveness is absent or insufficiently substantiated, or if the medicinal
         product is harmful when used as directed (see Winter, B., loc. cit. (footnote 8), p. 77-94).
      
      10 –	Second recital in the preamble to Directive 2001/83/EC.
      
      11 –	Third recital in the preamble to Directive 2001/83/EC.
      
      12 –	In Case C‑83/92 Pierrel [1993] ECR I‑6419, paragraph 7, the Court observed that, in Community law, proprietary medicinal products are the subject
         of a series of highly detailed harmonisation directives aiming at the gradual attainment of the free movement of these products
         in the Community, while at the same time safeguarding public health. Along similar lines, see also Cadeau, E./Richeux, J.‑Y.,
         loc. cit. (footnote 8), p. 4. According to Fraguas Gadea, L., ‘La libre circulación de medicamentos’, Noticias de la Unión Europea, 2000, No 184, p. 57, and Petit, Y., ‘La notion de médicament en droit communautaire’, Revue de droit sanitaire et social, 1992, 28th year, No 4, p. 572, the Community legislature has pushed forward with harmonisation in order to strike a fair
         balance between the requirements of public health and free movement of goods. In the view of the authors, free movement of
         goods could also be described in a broader sense as a project to build a common European market in medicinal products.
      
      13 –	See Opinion of Advocate General Geelhoed in HLH Warenvertrieb and Orthica (judgment cited in footnote 4, point 34).
      
      14 –	Ibid., point 54.
      
      15 – 	HLH Warenvertrieb and Orthica (cited above in footnote 4, paragraph 42). The Court has held that for an administrative practice to constitute a measure
         prohibited under Article 30 EC that practice must show a certain degree of consistency and generality. See Case 21/84 Commission v France [1985] ECR 1355, paragraphs 13 and 15, Case C‑187/96 Commission v Greece [1998] ECR I‑1095, paragraph 23, and Case C‑185/96 Commission v Greece [1998] ECR I‑6601, paragraph 35.
      
      16 –	See Opinion of Advocate General Geelhoed in HLH Warenvertrieb and Orthica (judgment cited in footnote 4, point 35).
      
      17 –	Case C‑219/91 Ter Voort [1992] ECR I‑5485, paragraph 19, Case C‑60/89 Monteil and Samanni [1991] ECR I‑1547, paragraph 16, and Case C‑369/88 Delattre [1991] ECR I‑1487, paragraph 21.
      
      18 –	Case C‑112/89 Upjohn I [1991] ECR I‑1703, paragraph 23. According to Doepner, U./Hüttebräuker, A., ‘Abgrenzung Arzneimittel/Lebensmittel – die aktuelle
         gemeinschaftsrechtliche Statusbestimmung durch den EuGH’, Wettbewerb in Recht und Praxis, 2005, Vol. 10, p. 1199, there are a number of decisions which highlight the fact that previously the Court has in some cases
         clearly opposed efforts made by the Member States to advocate an extension of the national regime for medicinal products to
         ambivalent products. By way of an example the authors mention the judgment in Case C‑387/99 Commission v Germany [2004] ECR I‑3751, paragraphs 56-57, in which the Court made clear that in accordance with settled case-law, to determine
         whether a certain product should be classified as a medicinal product, the national authorities must work on a case-by-case
         basis, having regard to all of its characteristics. In particular the authorities must ascertain that it is intended to restore,
         correct or modify physiological functions and that it may thus have an effect on health in general.
      
      19 –	In its judgment in Case C‑120/97 Upjohn II [1999] ECR I‑223, paragraph 34, the Court held, with reference to the case-law cited therein, that where a Community authority
         is called upon, in the performance of its duties, to make complex assessments, it enjoys a wide measure of discretion, the
         exercise of which is subject to limited judicial review in the course of which the Community judicature may not substitute
         its assessment of the facts for the assessment made by the authority concerned. Thus, in such cases, the Community judicature
         must restrict itself to examining the accuracy of the findings of fact and law made by the authority concerned and to verifying,
         in particular, that the action taken by the authority is not vitiated by a manifest error or misuse of powers and that it
         clearly did not exceed the bounds of its discretion.
      
      20 –	Opinion of Advocate General van Gerven in Case C‑290/90 Commission v Germany [1992] ECR I‑3317, point 5, and the judgments in Case 97/81 Commission v Netherlands [1982] ECR 1819, paragraph 6, Case 323/87 Commission v Italy [1989] ECR 2275, paragraph 19, and Case 290/87 Commission v Netherlands [1989] ECR 3083, paragraph 11. See also in this sense Case C‑290/90 Commission v Germany [1992] ECR I‑3317, paragraph 20, and Case C‑24/00 Commission v France [2004] ECR I‑1277, paragraph 72.
      
      21 –	Delattre (cited in footnote 17 above, paragraph 32)
      
      22 –	Upjohn I (cited in footnote 18 above, paragraph 16) van Bennekom (cited in footnote 5 above, paragraph 17). The Upjohn I case concerned Minoxidil, which had been developed in the early 1960s as a medicinal product for the treatment of arterial
         hypertension and on account of its secondary effects was marketed under a different name as a treatment for natural baldness.
         The national referring court had to decide whether that product was a medicinal product or a cosmetic product. The van Bennekom case concerned highly concentrated vitamin preparations which were presented as medicinal products (in the form of tablets,
         pills and capsules).
      
      23 –	Upjohn I (cited in footnote 18 above, paragraph 16) and Case 227/82 van Bennekom (cited in footnote 5 above, paragraph 17).
      
      24 –	van Bennekom (cited in footnote 5 above, paragraph 18) and Monteil and Samanni (cited above in footnote 17, paragraph 23).
      
      25 –	Köhler, H., ‘Die Abkehr vom Anscheinsarzneimittel – Neue Ansätze zur Abgrenzung von Arzneimittel und Lebensmittel’, Zeitschrift für das gesamte Lebensmittelrecht, 1999, Vol. 5, p. 609.
      
      26 –	van Bennekom (cited in footnote 5 above, paragraph 19).
      
      27 –	By judgment of 10 January 1995 (file reference I ZR 209/92), the Bundesgerichtshof (Federal Court of Justice) ruled – contrary
         to the view taken by the lower court – that a garlic preparation marketed in capsule form, even though it was presented for
         cooking and seasoning, had to be classified not as a foodstuff, but as a medicinal product. The grounds cited for the Bundesgerichtshof’s
         decision were, first of all, the effect of the active substance contained in garlic in lowering blood pressure and cholesterol
         and, secondly, the form, which was typical of medicinal products (gelatine capsules, blister strips). That ruling has met
         with criticism in specialist literature. For example, Köhler, H., loc. cit. (footnote 25), p. 606, pointed out that many food
         supplements as well as many dietetic foodstuffs are offered for sale in capsule, gelatine and tablet form, just like medicinal
         products, with the result that consumers have now accepted that that form is not specifically for medicinal products. Köhler, H., ’Die
         neuen europäischen Begriffe und Grundsätze des Lebensmittelrechts’, Gewerblicher Rechtsschutz und Urheberrecht, 2002, Vol. 10, p. 852, takes the view that the capsule form is irrelevant since the van Bennekom judgment, or at least it is now. Consequently, the garlic preparation would not be classified as a medicinal product in his
         view.
      
      28 –	See Klein, A., ‘Nahrungsergänzung oder Arzneimittel?’, Neue Juristische Wochenschrift, 1998, Vol. 12, p. 793. The author criticises the use of outmoded definition criteria by the Bundesgerichtshof in the abovementioned
         judgment. In his view, in any decision the courts must take account of any changes of circumstances which may have occurred
         on the market, such as the marketing of products and the expectations of consumers. As evidence of this need he cites the
         example of vitamin preparations, which were used from an early stage as food supplements and are particularly popular among
         consumers, and which have helped to create a situation where a product is not necessarily regarded as a medicinal product
         if it has been made in the same way as medicinal products once were. He considers that the classification of a garlic preparation
         as a medicinal product on the basis of its marketing form as capsules alone is not compatible with the factual situation,
         especially since it is essential for reasons of quality and practicability to offer food supplements for sale packaged in
         capsule form. Hagenmeyer, M., ‘Die Nahrungsergänzung – ein Lebensmittel in der Grauzone’, Zeitschrift für das gesamte Lebensmittelrecht, 1998, Vol. 3, p. 367, refers, with regard to the typically medicinal forms formerly offered, that the view is still encountered
         that preparations in capsule form are generally medicinal products. However, the view is beginning to become established that
         the capsule form taken by a product – above all as gelatine capsules in blister strips – tablets, powders etc. must be irrelevant
         to its status as a food supplement.
      
      29 –	van Bennekom (cited in footnote 5 above, paragraph 22) and Upjohn I (cited in footnote 18 above, paragraph 18). 
      
      30 –	Upjohn I (cited in footnote 18 above, paragraph 18).
      
      31 –	van Bennekom (cited in footnote 5 above, paragraph 29), Monteil and Samanni (cited in footnote 17 above, paragraph 29), Upjohn I (cited in footnote 18 above, paragraph 23), Case C‑290/90 Commission v Germany (cited in footnote 20 above, paragraph 17), and Case C‑387/99 Commission v Germany (cited in footnote 5 above, paragraph 57).
      
      32 –	Upjohn I (cited in footnote 18 above, paragraphs 17 and 22) and Case C‑387/99 Commission v Germany (cited in footnote 5 above, paragraph 58). Upjohn I concerned the classification of a hair growth aid as a medicinal product or a cosmetic product. The Court made clear that
         the definition of medicinal product does not serve to include substances such as certain cosmetics which, while having an
         effect on the human body, do not significantly affect the metabolism and thus do not strictly modify the way in which it functions.
         In Commission v Germany the Court ruled that classification as a medicinal product of a vitamin preparation which is based solely on the recommended
         daily amount of the vitamin it contains, namely the amount which potentially covers the requirements for that vitamin of all
         persons in good health in the population group under consideration, does not fully satisfy the requirement for a classification
         on the basis of the pharmacological properties of each vitamin preparation.
      
      33 –	Originally developed by the Court with a view to the classification of products as functional medicinal products, the notion
         of ‘pharmacological action’ is incorporated into the definition of functional medicinal product alongside the notions of ‘immunological’
         and ‘metabolic’ action by amending Directive 2004/27/EC and has thus become a definitional element expressly laid down by
         law.
      
      34 –	Opinion of Advocate General Tesauro in Delattre (judgment cited in footnote 17 above, point 9). Petit, Y., loc. cit. (footnote 12), p. 573, also points out that that definition
         is so broadly formulated that, on the basis of its wording, it can be equally applicable to medicinal products, foodstuffs
         or cosmetics.
      
      35 –	See point 43. 
      
      36 –	See Opinion of Advocate General Geelhoed in HLH Warenvertrieb and Orthica (judgment cited in footnote 4, point 35).
      
      37 –	Opinion of Advocate General Tesauro in Delattre (judgment cited in footnote 17 above, point 9). In that Opinion, Advocate General Tesauro stated that that definition cannot
         be interpreted so as to extend to those products which, although without doubt inherently able to affect physiological functions,
         have an essentially nutritional purpose. Otherwise, salt, for example, which, in the absence of other products, is used by
         sportsmen to prevent or cure cramp, would have to be classified as a medicinal product. 
      
      38 –	The restrictive interpretation concerns the unwritten definitional element of ‘pharmacological properties’ developed by
         the Court of Justice. Doepner, U./Hüttebräuker, A., loc. cit. (footnote 18), p. 1201 to 1203, complain that there has not
         yet been a substantive definition or a clarification of the criterion created by the Court itself. A definition of the substance
         and the scope of this concept either by the Court or by the Community legislature is needed because it is an essential definitional
         criterion. They fear that a uniform assessment of ambivalent products (products in the grey area between foodstuffs and medicinal
         products) could lead the national authorities generally to accept products as medicinal products, which would not really be
         appropriate for many of the products concerned and would not be necessary under Community law or make sense in terms of health
         or domestic economic policy. The call made by the authors for clarification of the definition of functional medicinal product
         therefore essentially amounts to a restrictive interpretation of the legal definition contained in the second subparagraph
         of Article 1(2) of Directive 2001/83. Clement, C., loc. cit. (footnote 7), p. 19, 22, criticises the absence of more reliable
         assessment criteria and the broad formulation of the term ‘medicinal product’. He also advocates a restrictive interpretation
         by the courts.
      
      39 –	Using the definition adopted by Köhler, H., loc. cit. (footnote 26), p. 849.
      
      40 –	See also Köhler, H., loc. cit. (footnote 27), p. 850, who classifies among foodstuffs which serve therapeutic purposes
         herbal teas and other medicinal herbs, including grated carrots to combat intestinal parasites or garlic to prevent arteriosclerosis.
         He believes that it is absurd to classify them as medicinal products because of their therapeutic function alone.
      
      41 –	Breithaupt-Grögler, K./Ling, M./Boudoulas, H./Belz, G., ‘Protective Effect of Chronic Garlic Intake on Elastic Properties
         of Aorta in the Elderly’, Circulation, 1997, p. 2654; Koscielny, J./Klüßendorf, D./Latza, R./Schmitt, R./Radtke, H./Siegel, G./Kiesewetter, H., ‘The antiatherosclerotic
         effect of Allium sativum, Atherosclerosis, 1999, p. 237’.
      
      42 –	According to the papers in the case, the contested product contains between 0.95 and 1.05 per cent natural allicin. Chemically,
         the product is composed of carbohydrates, proteins and fats, as well as trace elements and vitamins, which could not, according
         to the German Government, in themselves be classified as vitamins, minerals or other substances with a nutritional or physiological
         effect.
      
      43 –	See Case C‑150/00 Commission v Austria [2004] ECR I‑3887, paragraph 65, Case C‑387/99 Commission v Germany (cited in footnote 31 above, paragraph 57) and HLH Warenvertrieb and Orthica (cited in footnote 4 above, paragraph 53), according to which a risk to public health is only one aspect of the product which
         must be taken into consideration by the competent national authorities.
      
      44 –	Case 227/82 van Bennekom (cited in footnote 5 above, paragraph 40) and HLH Warenvertrieb and Orthica (cited in footnote 4, paragraphs 30 and 51).
      
      45 –	Case 178/84 Commission v Germany [1987] ECR 1227, paragraph 32.
      
      46 –	Nor is it necessary to comment on the ‘rule of doubt’ introduced into Article 2(2) of Directive 2001/83 only later by amending
         Directive 2004/27/EC (OJ 2004 L 136, p. 34), according to which, in cases of doubt, where, taking into account all its characteristics,
         a product may fall within the definition of a ‘medicinal product’ and within the definition of a product covered by other
         Community legislation the provisions of that directive shall apply. Klaus, B., ‘Leitfaden zur Abgrenzung von Lebensmitteln
         und Arzneimitteln in der Rechtspraxis aller EU-Mitgliedstaaten auf Grundlage der gemeinschaftsrechtlich harmonisierten Begriffsbestimmungen’,
         Zeitschrift für das gesamte Lebensmittelrecht, 2004, Vol. 5, p. 574, points out that cases of doubt in distinguishing medicinal products from other categories of product,
         including foodstuffs, might not be properly resolved even using such a ‘rule of doubt’, as provided for in the current version
         of Article 2(2) of Directive 2001/83. There is a danger that by applying that clause it might be accepted prematurely that
         a substance or product is subject to the rules governing medicinal products. However, this would lead to very inappropriate
         results particularly with regard to the distinction with foodstuffs since, because of the broad scope of the definition of
         ‘medicinal product’, foodstuffs would theoretically be covered by that definition in many cases. Because of the uncertainties
         inherent in the ‘rule of doubt’, the way is opened for national interpretations which ultimately decide when classification
         doubts exist. In the author’s view, preference should have been given to the approach originally taken by the European Parliament,
         where the distinction problem was facilitated by a clear wording of the legal definitions.
      
      47 –	Case 8/74 Dassonville [1974] ECR 837, paragraph 5, and Case 120/78 Rewe-Zentral (‘Cassis de Dijon’) [1979] ECR 649, paragraph 14. The establishment and maintenance of free movement of goods within the Community requires not
         only the removal of customs barriers, but also the elimination of all other restrictions on trade. For that reason, alongside
         quantitative restrictions, Articles 28 and 29 EC also prohibit measures having equivalent effect. These are ‘all trading rules
         enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community
         trade’. In the view of Oppermann, T., Europarecht, 3rd edition, Munich 2005, p. 416, this broad ‘Dassonville formula’ makes clear that it is sufficient for the national measure
         to be capable of impeding trade and no actual fall in imports has to be proven. Nor is there any need for an intention to
         restrict trade or for the restriction to be appreciable.
      
      48 –	See HLH Warenvertrieb and Orthica (cited in footnote 4 above, paragraph 42) and Case C‑192/01 Commission v Denmark [2003] ECR I‑9693, paragraph 68. Both judgments develop earlier case-law under which reliance on Article 30 EC is not possible
         from the outset where the Community itself has laid down definitive Community legislation to protect the legal interests in
         question, for example by a directive or regulation. See, for example, Case 5/77 Denkavit [1977] ECR 1555 paragraphs 33/35. Cadeau, E./Richeux, J.‑Y., loc. cit. (footnote 8), p. 8, also point out that recourse to
         Article 30 EC in Community law on medicinal products is possible only in cases of incomplete harmonisation.
      
      49 –	Case 72/83 Campus Oil [1984] ECR 2727, paragraph 37.
      
      50 –	Case C‑387/99 Commission v Germany (cited in footnote 5 above, paragraph 72).
      
      51 –	In Case C‑387/99 Commission v Germany (cited in footnote 5 above, paragraphs 74 to 76), the Court stated, with regard to the requirements for authorisation of
         vitamin preparations as medicinal products under Article 4 of Directive 65/65, which are essentially the same as those under
         Article 8 of Directive 2001/83, that the issue of marketing authorisation for medicinal products is subject to particularly
         strict requirements. In order to obtain a marketing authorisation, the person responsible for placing the product on the market
         is to attach various particulars and documents, including qualitative and quantitative particulars of all the constituents
         of the medicinal product, a brief description of the method of preparation, therapeutic indications, contra-indications and
         side-effects, posology, pharmaceutical form, method and route of administration and expected shelf life, description of control
         methods employed by the manufacturer, results of physico-chemical, biological or microbiological tests, pharmacological and
         toxicological tests, and clinical trials. Moreover, the person responsible for placing the product on the market is to provide
         proof that the manufacturer is authorised in his own country to produce medicinal products.
      
      52 –	See point 65.
      
      53 –	Epiney, A., Kommentar des Vertrages über die Europäische Union und des Vertrages zur Gründung der Europäischen Gemeinschaft (edited by Christian Calliess/Matthias Ruffert), Neuwied 1999, Article 30, paragraph 23; Cadeau, E./Richeux, J.‑Y., loc. cit. (footnote 8),
         p. 9, 10, therefore take the view that a Member State cannot rely successfully on the justification of safeguarding public
         health if the danger in question is only potential and not real.
      
      54–	See Case C‑17/93 van der Veldt [1994] ECR I‑3537, paragraph 17, according to which the fact that there is a risk to consumers is sufficient to make legislation
         of the kind at issue compatible with the requirements of Article 30 EC. However, the risk must be measured, not according
         to the yardstick of general conjecture, but on the basis of relevant scientific research.
      
      55 –	Account is taken of those requirements in Directive 2000/13/EC of the European Parliament and of the Council of 20 March
         2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs
         (OJ 2000 L 109, p. 29). It provides inter alia for certain product information to be indicated, such as the list of ingredients,
         the quantity of certain ingredients or categories of ingredients, and any special storage conditions or conditions of use.
         According to the eighth recital in the preamble to the directive, detailed labelling, in particular giving the exact nature
         and characteristics of the product which enables the consumer to make his choice in full knowledge of the facts, is the most
         appropriate since it creates fewest obstacles to free trade.