CELEX: C2002/109/42
Language: en
Date: 2002-05-04 00:00:00
Title: Case C-40/02: Reference for a preliminary ruling by the Unabhängiger Verwaltungssenat im Land Niederösterreich, Aussenstelle Mistelbach by order of that Court of 29 January 2002 in the case of an appeal by Margareta Scherndl

4.5.2002              EN                   Official Journal of the European Communities                                        C 109/25
Reference for a preliminary ruling by the Bundesverwal-               1.    Does a procedure to constitute a liability limitation fund
tungsgericht by order of that Court of 24 October 2001                      pursuant to an application by a shipowner under the
in the case of OMEGA Spielhallen- und Automatenaufstel-                     Brussels Convention of 10 October 1957 constitute
lungs-GmbH against Oberbürgermeisterin der Bundes-                          proceedings within the meaning of Article 21 of the
                           stadt Bonn                                       1968 Brussels Convention (1) where it is evident from the
                                                                            application, where the relevant names are stated, who
                                                                            might be affected thereby as a potential injured party?
                         (Case C-36/02)
                                                                      2.    Is an order to constitute a liability limitation fund under
                                                                            the Netherlands procedural rules in force in 1986 a
                        (2002/C 109/40)                                     judgment within the meaning of Article 25 of the 1968
                                                                            Brussels Convention?
                                                                      3.    Can a limitation fund which was constituted on 27 May
                                                                            1987 by a Netherlands court pursuant to Netherlands
Reference has been made to the Court of Justice of the                      procedural rules then in force without prior service on an
European Communities by order of the Bundesverwaltungsge-                   affected creditor now be denied recognition in another
richt (Federal Administrative Court) of 24 October 2001,                    Member State in relation to the creditor concerned
received at the Court Registry on 12 February 2002, for a                   pursuant to Article 27(2) of the 1968 Brussels Conven-
preliminary ruling in the case of OMEGA Spielhallen- und                    tion?
Automatenaufstellungs-GmbH against Oberbürgermeisterin
der Bundesstadt Bonn on the following question:                       4.    If Question 3 is answered in the affirmative, is the creditor
                                                                            concerned deprived of its right to rely on Article 27(2) by
Is it compatible with the provisions on freedom to provide                  virtue of the fact that in the Member State which
services and the free movement of goods contained in the                    constituted the limitation fund it raised the matter
Treaty establishing the European Community for a particular                 of jurisdiction before a higher court without having
commercial activity — in this case the operation of a so-                   previously objected to default of service?
called ‘laserdrome’ involving simulated killing action — to be
prohibited under national law because it offends against the
values enshrined in the Basic (Constitutional) Law?                   (1) 27 September 1968 on jurisdiction and the enforcement of
                                                                          judgments in civil and commercial matters (OJ L 204, 1975,
                                                                          p. 28) modified by the Convention of 26 May 1989 on the
                                                                          accession of the Kingdom of Spain and the Portuguese Republic
                                                                          with the adjustments made to them by the Convention on the
                                                                          accession of the Kingdom of Denmark, of Ireland and of the
                                                                          United Kingdom of Great Britain and Northern Ireland and the
                                                                          adjustments made to them by the Convention on the accession of
                                                                          the Hellenic Republic (OJ L 285, 1989, p. 1).
Reference for a preliminary ruling by the Højesterets
Anke- og Kæremålsudvalg by order of 8 February 2002 in
the case of Mærsk Olie & Gas A/S against M. de Haan en
W. de Boer, in the person of its owners Martinus de Haan
                     and Willem de Boer
                                                                      Reference for a preliminary ruling by the Unabhängiger
                                                                      Verwaltungssenat im Land Niederösterreich, Aussenstelle
                         (Case C-39/02)                               Mistelbach by order of that Court of 29 January 2002 in
                                                                               the case of an appeal by Margareta Scherndl
                        (2002/C 109/41)                                                         (Case C-40/02)
                                                                                               (2002/C 109/42)
Reference has been made to the Court of Justice of the
European Communities by order of the Højesterets Anke- og
Kæremålsudvalg (Appeals and Objections Committee of the               Reference has been made to the Court of Justice of the
Supreme Court) of 8 February 2002, received at the Court              European Communities by order of the Unabhängiger Verwal-
Registry on 13 February 2002, for a preliminary ruling in the         tungssenat im Land Niederösterreich, Aussenstelle Mistelbach
case of Mærsk Olie & Gas A/S against M. de Haan en W. de              of 29 January 2002, received at the Court Registry on
Boer, in the person of its owners Martinus de Haan and Willem         14 February 2002, for a preliminary ruling in the case of an
de Boer on the following questions:                                   appeal by Margareta Scherndl on the following questions:
 ---pagebreak--- C 109/26               EN                    Official Journal of the European Communities                                         4.5.2002
1.   In the case of indications of vitamin content, it is possible            applying derogations in such a way as to take no account
     to speak of an ‘average value’ within the meaning                        of the substitutive nature of enriched food or drink
     of Article 1(k) of Council Directive 90/496/EEC of                       products, with the consequence that such products
     24 September 1990 on nutrition labelling for foodstuffs                  enriched with Vitamin A (in the form of retinoYden),
     (OJ 1990 L 276, p. 40, as amended in OJ 1991 L 140;                      vitamin D, folic acid, selenium, copper or zinc, cannot be
     ‘the nutrition labelling directive’) where the figure given,             marketed in the Netherlands since they are not substitute
     based on the manufacturer’s analysis of the food within                  products or reconstituted food or drink products within
     the meaning of Article 6(8)(a) of that directive, is the                 the meaning of the abovementioned decree on the
     value which the product has at the end of the minimum                    addition of micro-foodstuffs to food, unless the addition
     conservation period?                                                     in question presents no risk to public health and at the
                                                                              same time meets an actual need in connection with food.
2.   Does the definition of average value under Article 6(8) of
     the nutrition labelling directive leave a free choice in
     relation to the reference date and the size of permissible
     deviations?                                                        2.    Order the Kingdom of the Netherlands to pay the costs.
3.   Is the nutrition labelling directive, in so far as it contains
     indications of the nutritional value based on vitamin
     content, to be disapplied on the ground that:
     (a)   it is too vague in relation to the definition
           (Article 1(k) of the nutrition labelling directive) and
           calculation (Article 6(8) of that directive) of average      Pleas in law and main arguments
           value, or because of the lack of reference dates or
           information as to permitted deviations; or
     (b) it contains provisions that are disproportionate to
           the objective sought?
                                                                        The system at issue concerns food in general and is therefore
                                                                        not affected by Directive 89/398/EEC (1). Nor may the ingredi-
                                                                        ents prohibited by that system be regarded as technically
                                                                        defined additives (Directives 89/107/EEC, 94/36/EC, and
                                                                        95/2/EC) (2). European Parliament and Council Directive
                                                                        No 95/2/EC on food additives other than colours and sweet-
                                                                        eners (OJ 1995 L 61, p. 1, as amended) and European
                                                                        Parliament and Council Directive No 94/36/EC on colours for
                                                                        use in foodstuffs (OJ 1994 L 237, p. 13) The matters at issue
Action brought on 14 February 2002 by the Commission                    in the present case fall therefore to be determined solely in
of the European Communities against the Kingdom of the                  accordance with Articles 30 and 36 of the EC Treaty, as they
                           Netherlands                                  applied at the time of expiry of the most recent deadline
                                                                        contained in the reasoned opinions in the present Treaty —
                          (Case C-41/02)                                infringement proceedings (21 February 1999).
                         (2002/C 109/43)
                                                                        The system at issue, under which certain enriched food and
An action against the Kingdom of the Netherlands was brought            drink products are banned unless a derogation is obtained
before the Court of Justice of the European Communities on              from the Minister of Food plainly constitutes a measure having
14 February 2002 by the Commission of the European                      equivalent effect under Article 30 of the EC Treaty. The
Communities, represented by H. Van Lier and H.M.H. Speyart,             requirements that ‘an actual food requirement must be met’ and
acting as Agents.                                                       that there be ‘no risk to public health’ entail an infringement of
                                                                        the scheme of Articles 30 and 36 of the EC Treaty since the
                                                                        result of those requirements is to impose on the person
The applicant claims that the Court should:
                                                                        applying for a derogation a disproportionate burden of proof
                                                                        in regard to the possible danger to public health which means
1.   Declare that the Kingdom of the Netherlands has failed             in practice that the derogations at issue in this case are never
     to fulfil its obligations under Articles 30 and 36 of the          granted. Moreover, the systematically applied requirement of
     EC Treaty, first, by enacting and applying Article 10(1) of        the existence of an actual food-related requirement reinforces
     the Decree on Preparation and Processing of Foodstuffs             existing national dietary patterns which in itself constitutes
     and, subsequently, also Articles 2(1) and 5 of the Decree          a disguised and therefore unlawful restriction on the free
     on the addition of micro-foodstuffs to food, and by                movement of goods. Nor does the Netherlands policy take