CELEX: C2001/200/91
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-192/01: Action brought on 4 May 2001 by the Commission of the European Communities against the Kingdom of Denmark

C 200/50               EN                     Official Journal of the European Communities                                     14.7.2001
tungssenat Salzburg (Independent Administrative Chamber for              European Communities in case T-193/99 between Wm.
Salzburg) of 25 April 2001 which was received at the Court               Wrigley Jr. Company and Office for Harmonization in the
Registry on 30 April 2001, for a preliminary ruling in the               Internal Market (Trade Marks and Designs), was brought before
case of Francisco Javier Gonzales Moreno on the following                the Court of Justice of the European Communities on 20 April
questions:                                                               2001 by Office for Harmonization in the Internal Market
                                                                         (Trade Marks and Designs), represented by Virginia Melgar and
1.     Do Articles 28 and 30 EC, Council Directive 76/768/EEC            Susanna Laitinen, acting as Agents.
      of 27 July 1976 (1) on the approximation of the laws of
      the Member States relating to cosmetic products, as
      amended by Council Directive 88/667/EEC of 21 Decem-               The Appellant claims that the Court should:
      ber 1988 (2) and Council Directive 93/35/EEC of 14 June
      1993 (3), in particular Article 6(3) thereof, together with        —     annul the judgment;
      Council Directive 84/450/EEC of 10 September 1984 (4)
      relating to the approximation of the laws, regulations             —     order the respondent to pay the costs of the proceedings
      and administrative provisions of the Member States                       before the Court of First Instance and before this Court.
      concerning misleading advertising, in particular Articles 4
      and 7 thereof, preclude national legislation which pro-
      hibits, in connection with the marketing of cosmetic
      products, references to medical opinions, by the use, in           Pleas in law and main arguments
      particular, of the description ‘ophthalmologically tested’?
2.    Do Articles 28 and 30 EC, Council Directive 76/768/EEC             The Office for Harmonization in the Internal Market (Trade
      of 27 July 1976 on the approximation of the laws of the            Marks and Designs) submits that:
      Member States relating to cosmetic products, as amended
      by Council Directive 88/667/EEC of 21 December 1988                —     The Court of First Instance erred in law in interpreting
      and Council Directive 93/35/EEC of 14 June 1993, in                      Article 7(1)(c) CTMR to require that a term must be
      particular Article 6(3) thereof, and Council Directive                   ‘exclusively descriptive’ if it is to be excluded from
      84/450/EEC of 10 September 1984 on the approxi-                          registration as a Community trade mark under that
      mation of the laws, regulations and administrative pro-                  provision and in holding that the term ‘Doublemint’ is
      visions of the Member States concerning misleading                       thus not excluded from registration.
      advertising, in particular Articles 4 and 7 thereof, preclude
      national legislation which permits the use of references
                                                                         —     The reasoning used to support the reversal of the refusal
      falling within the terms of Question 1 only after prior
                                                                               of the term ‘Doublemint’ is contradictory, founded on an
      authorisation by the competent Federal Minister?
                                                                               artificial analysis, and fails to regard commercial reality
                                                                               and the context in which the mark is to be used, which
                                                                               amounts to a reversible error of law because it constitutes
( 1) OJ 1976 L 262, p. 169.                                                    a manifest error of appreciation.
( 2) OJ 1988 L 382, p. 46.
( 3) OJ 1993 L 151 p. 32.
( 4) OJ 1984 L 250, p. 17.
                                                                         (1) OJ C 333, 20.11.1999, p. 27.
Appeal brought on 20 April 2001 by Office for Harmo-
nization in the Internal Market (Trade Marks and Designs)
against the judgment delivered on 31 January 2001 by the                 Action brought on 4 May 2001 by the Commission of the
Second Chamber of the Court of First Instance of the                     European Communities against the Kingdom of Denmark
European Communities in case T-193/99 (1) between Wm.
Wrigley Jr. Company and Office for Harmonization in the
          Internal Market (Trade Marks and Designs)                                                (Case C-192/01)
                        (Case C-191/01 P)                                                          (2001/C 200/91)
                         (2001/C 200/90)
                                                                         An action against the Kingdom of Denmark was brought
                                                                         before the Court of Justice on 4 May 2001 by the Commission
An appeal against the judgment delivered on 31 January 2001              of the European Communities, represented by Hans Christian
by the Second Chamber of the Court of First Instance of the              Støvlbæk, with an address for service in Luxembourg.
 ---pagebreak--- 14.7.2001              EN                    Official Journal of the European Communities                                        C 200/51
The Commission of the European Communities asks the Court               Appeal brought on 7 May 2001 by Athanasios Pitsiorlas
                                                                        against the order made on 14 February 2001 by the First
                                                                        Chamber of the Court of First Instance of the European
—     to declare, pursuant to Article 226 EC, that, by applying         Communities in Case T-3/00 between (1) Athanasios
      an administrative practice whereby enriched foodstuffs            Pitsiorlas and (2) the Council of the European Union and
      which are lawfully marketed and produced in other                                   the European Central Bank
      Member States may be marketed in Denmark only if
      there is a documented need for enrichment of food
      substances in the Danish population, the Kingdom of                                       (Case C-193/01 P)
      Denmark has failed to fulfil its obligations under
      Article 28 EC;
                                                                                                 (2001/C 200/92)
—     order the Kingdom of Denmark to pay the costs.
                                                                        An appeal against the order made on 14 February 2001 by the
                                                                        First Chamber of the Court of First Instance of the European
                                                                        Communities in Case T-3/00 between (1) Athanasios Pitsiorlas
                                                                        and (2) the Council of the European Union and the European
                                                                        Central Bank was brought before the Court of Justice of
                                                                        the European Communities on 7 May 2001 by Athanasios
Pleas in law and main arguments                                         Pitsiorlas, represented by Dimitrios Papafilippou, of the Thessa-
                                                                        loniki Bar.
The administrative practice followed by the Danish authorities          The appellant claims that the Court should:
on the basis of Paragraph 3 of the Foodstuffs Law indisputably
constitutes an obstacle to trade contrary to Article 28 of the          —     hold the appeal admissible and well founded;
Treaty, in that foodstuffs which are lawfully sold in other
Member States cannot be marketed in Denmark. That obstacle
to trade cannot, in the Commission’s view, be justified on the          —     set aside the order under appeal made by the Court of
ground of public health (see Article 30 of the Treaty).                       First Instance on 14 February 2001 in Case T-3/00;
                                                                        —     uphold in their entirety the claims put forward at first
                                                                              instance or, in the alternative, refer the case back to the
                                                                              Court of First Instance;
General considerations as to desirable food composition for
the population cannot lawfully ground restrictions on trade.
Reliance on Article 30 of the Treaty presupposes that the               —     order the Council to pay costs at first instance and on
Member State can produce evidence in each individual case                     appeal.
that the obstacle to trade is necessary to protect public health.
                                                                        Grounds of appeal
The Commission recognises that where there are no harmo-
nised rules, it is basically for the Member States to determine         1.    Infringement of Article 114(3) of the Rules of Procedure
the level of protection which they consider necessary with                    of the Court of First Instance;
respect to public health. The discretion of the Member States
to determine the level of protection must, however, comply
with the principle of proportionality and the measures must             2.    Infringement of the principle of equality of arms;
be necessary to attain the aim sought. The Member States’
assessment of the risk to public health must be determined              3.    Misinterpretation of the Council decision;
on the basis of concrete scientific evidence. The Danish
administrative practice is based on the Codex Alimentarius,             4.    Incorrect finding, selective and consequently defective
which lays down general guidelines on the addition of vitamins                consideration of the facts resulting in infringement of
to foodstuffs. The guidelines do not give an independent                      Article 42 of the Statute of the Court of Justice;
scientific basis for introducing a prohibition on enrichment of
food substances with vitamins.
                                                                        5.    Failure to apply the case-law concerning excusable error
                                                                              or, entirely in the alternative, an excessively strict appli-
                                                                              cation of that case-law.