CELEX: C2004/021/44
Language: en
Date: 2004-01-24 00:00:00
Title: Case C-497/03: Action brought on 24 November 2003 by the Commission of the European Communities against the Republic of Austria

C 21/24                  EN                        Official Journal of the European Union                                       24.1.2004
The Commission of the European Communities claims that                     Pleas in law and main arguments
the Court should:
1.    Declare that, by failing to adopt and the laws, regulations
                                                                           The prohibition on the sale of food supplements by mail order,
      and administrative provisions necessary to comply with
                                                                           laid down in Paragraph 50(2) of the Gewerbeordnung, is a
      Commission Directive 2001/59/EC of 6 August 2001
                                                                           measure having equivalent effect to a quantitative restriction
      adapting to technical progress for the 28th time Council
                                                                           on imports. It constitutes a greater obstacle to the sale of
      Directive 67/548/EEC on the approximation of the laws,
                                                                           products from other Member States than to that of domestic
      regulations and administrative provisions relating to
                                                                           products. Such a prohibition on sales by mail order makes it
      the classification, packaging and labelling of dangerous
                                                                           necessary for traders from other Member States to establish a
      substances (1) and, in any event, by not communicating
                                                                           place of business in Austria or attract sales partners there
      them to the Commission, the French Republic has failed
                                                                           whereas Austrian traders in any case already have a fixed place
      to fulfil its obligations under that directive; and
                                                                           of business in Austria, which can be advantageous to them in
                                                                           marketing the food supplements manufactured by them.
2.    Order the French Republic to pay the costs.                          Austrian traders have the advantage of being able to use areas
                                                                           of the manufacturing premises or the premises on which their
                                                                           place of business is situated as a sales outlet also. This
                                                                           may represent a considerable cost advantage over foreign
                                                                           manufacturers as a result of the expenditure saved.
Pleas in law and main arguments
The time-limit for transposition of the directive expired on               The aims of the protection of consumers against health risks
30 July 2002.                                                              and misrepresentation, which are put forward in order to
                                                                           justify such a prohibition, may be achieved by more lenient
                                                                           means which restrict the free movement of goods to a lesser
(1) OJ L 225 of 21 August 2001, p. 1.                                      degree. The Austrian measure is thus a disproportionate
                                                                           restriction on the free movement of goods.
Action brought on 24 November 2003 by the Com-
mission of the European Communities against the Repub-
                             lic of Austria
                                                                           Reference for a preliminary ruling by the VAT and Duties
                                                                           Tribunals, London Tribunal Centre, by order of that court
                           (Case C-497/03)                                 dated 10 June 2003, in the case of 1) Kingscrest Associates
                                                                           Ltd, 2) Montecello Ltd (trading together as Kingscrest
                                                                           Residential Care Homes) against Commissioners of Cus-
                            (2004/C 21/44)                                                         toms and Excise
                                                                                                   (Case C-498/03)
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities on
24 November 2003 by the Commission of the European                                                  (2004/C 21/45)
Communities, represented by J. C. Schieferer and B. Schima,
with an address for service in Luxembourg.
The applicant claims that the Court should:
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by an order of the VAT and Duties
1.    hold that, by imposing in Paragraph 50(2) of the Gewer-              Tribunals, London Tribunal Centre, dated 10 June 2003, which
      beordnung a prohibition on the sale of food supplements              was received at the Court Registry on 26 November 2003, for
      by mail order, the Republic of Austria has failed to fulfil          a preliminary ruling in the case of 1) Kingscrest Associates Ltd,
      its obligations under Article 28 EC;                                 2) Montecello Ltd (trading together as Kingscrest Residential
                                                                           Care Homes) and Commissioners of Customs and Excise on
2.    order the Republic of Austria to pay the costs.                      the following questions: