CELEX: C2002/109/43
Language: en
Date: 2002-05-04 00:00:00
Title: Case C-41/02: Action brought on 14 February 2002 by the Commission of the European Communities against the Kingdom of the Netherlands

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
 ---pagebreak--- 4.5.2002                EN                      Official Journal of the European Communities                                     C 109/27
account of the substitutive nature of certain food and drink               Reference for a preliminary ruling by the Landgericht
products (such as, in particular, breakfast cereals enriched with          Stuttgart by order of that Court of 8 February 2002 in the
vitamin D).                                                                case of Landesbausparkasse Baden-Württemberg against
                                                                                               Elisabeth Huttenlocher
                                                                                                    (Case C-43/02)
(1) Council Directive 89/398 on the approximation of the laws of
    the Member States relating to foodstuffs intended for particular
    nutritional uses (OJ 1989 L 186, p. 27, as amended).                                           (2002/C 109/45)
(2) Council Directive 89/107/EEC on the approximation of the laws
    of the Member States concerning food additives authorised for
    use in foodstuffs intended for human consumption (OJ 1989
    L 40, p. 27, as amended).                                              Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Landgericht Stuttgart
                                                                           (Regional Court, Stuttgart) of 11 February 2002, received at
                                                                           the Court Registry on 15 February 2002, for a preliminary
                                                                           ruling in the case of Landesbausparkasse Baden-Württemberg
                                                                           against Elisabeth Huttenlocher on the following question:
                                                                           Is the second part of Article 2 of Directive 85/577/EEC(1) to
                                                                           be interpreted as meaning that a close dependant (in this case
                                                                           an unmarried partner) is also acting ‘in the name or on behalf
                                                                           of a trader’ where that person as a consumer takes out a loan
                                                                           with a trader, the trader makes the loan subject to a security
                                                                           (assumption of joint liability), makes the requisite form
                                                                           available to that person and the borrower presents the form
                                                                           for signature to his close dependant in the residence which
Reference for a preliminary ruling by the Ålands För-                      they share?
valtningsdomstol by judgment of that Court of 5 February
2002 in the proceedings, brought by Diana Elisabeth
                              Lindman                                      (1) OJ L 372 of 31.12.1985, p. 31.
                           (Case C-42/02)
                                                                           Reference for a preliminary ruling by the Vantaan Kärä-
                          (2002/C 109/44)                                  jäoikeus by order of that Court of 1 February 2002 in the
                                                                             case of Fixtures Marketing Ltd against Oy Veikkaus Ab
                                                                                                    (Case C-46/02)
                                                                                                   (2002/C 109/46)
Reference has been made to the Court of Justice of the
European Communities by judgment of the Ålands För-
valtningsdomstol (Administrative Court, Åland, Finland) of
5 February 2002, received at the Court Registry on 15 February             Reference has been made to the Court of Justice of the
2002, for a preliminary ruling in the proceeding, brought by               European Communities by order of the Vantaan Käräjäoikeus
Diana Elisabeth Lindman on the following question:                         (District Court, Vantaa) of 1 February 2002, received at the
                                                                           Court Registry on 18 February 2002, for a preliminary ruling
                                                                           in the case of Fixtures Marketing Ltd against Oy Veikkaus Ab
Does Article 49 of the Treaty establishing the European                    on the following questions:
Communities preclude a Member State from applying rules
under which lottery winnings from lotteries held in other                  1)    May the requirement in Article 7(1) of the directive (1) for
Member States are included in the taxable income of the                          a link between the investment and the making of the
winner on assessment to income tax, whereas lottery winnings                     database be interpreted in the sense that the ‘obtaining’
from lotteries held in the Member State in question are exempt                   referred to in Article 7(1) and the investment directed at
from tax.                                                                        it refers, in the present case, to investment which is
                                                                                 directed at the determination of the dates of the matches
                                                                                 and the match pairings themselves and, when the criteria
                                                                                 for granting protection are appraised, does the drawing
                                                                                 up of the fixture list include investment which is not
                                                                                 relevant?