CELEX: C2000/211/26
Language: en
Date: 2000-07-22 00:00:00
Title: Case C-221/00: Action brought on 31 May 2000 by the Commission of the European Communities against the Republic of Austria

22.7.2000              EN                     Official Journal of the European Communities                                       C 211/15
Reference for a preliminary ruling from the Regeringsrätt-                   consumption, and by making the authorisation of health-
en, by order of that Court of 3 May 2000 in the case of                      related information subject to a prior approval procedure
         Arbetsmarknadsstyrelsen v Petra Rydergård                           (Paragraph 9(3) LMG), the Republic of Austria has
                                                                             infringed its obligations under Articles 2(1)(b) and 15(1)
                          (Case C-215/00)                                    and (2) of Directive 79/112 (1) and under Article 28 EC
                                                                             (formerly Article 30 of the EC Treaty);
                         (2000/C 211/25)                                 2. order the defendant to pay the costs.
Reference has been made to the Court of Justice of the                   Pleas in law and main arguments
European Communities by order of the Regeringsrätten
(Supreme Administrative Court) of 3 May 2000, which was                  — As to the prohibition of health-related
received at the Court Registry on 31 May 2000, for a                         information              on       foodstuffs          (Para-
preliminary ruling in the case of Arbetsmarknadsstyrelsen v                  graph 9(1) LMG)
Petra Rydergård on the following questions:                                  The rules laid down in Paragraph 9(1)(a) to (c) of the LMG
                                                                             do not, in terms of their interpretation and application,
1. Can a person who is in the same situation as Petra
                                                                             permit foodstuffs intended for general consumption to
     Rydergård be regarded as having been available to the
                                                                             provide any health-related information (for example, indi-
     employment services, within the meaning of Article 69(1)
                                                                             cations of physiological or pharmacological effects,
     of Council Regulation (EEC) No 1408/71 (1), for the days
                                                                             especially those which preserve youthfulness, retard the
     in a period of unemployment on which she has been
                                                                             ageing process, aid slimming or preserve health). Such
     prevented from pursuing gainful employment because she
                                                                             rules limit the scope of application of Article 2(1)(b) of
     has been caring for a sick child and does the assessment
                                                                             Directive 79/112/EEC. They may only be applied if they
     depend on the content of the national legislation?
                                                                             are justified on one of the grounds specified in Article 15(2)
                                                                             (protection of public health, consumer protection, preven-
2. Does Article 69(1) require that a person seeking work
                                                                             tion of unfair competition). A Member State is not entitled,
     must have been available to the employment services
                                                                             however, to exercise its right so as to cement existing
     for an uninterrupted period of four weeks immediately
                                                                             consumer habits with a view to preserving an advantage
     preceding his departure to another Member State?
                                                                             acquired by a domestic industry engaged in meeting the
                                                                             consumer demand, when other measures are available to
(1) of 14 June 1971 on the application of social security schemes to         protect consumers against the risk of being misled. In
    employed persons, to self-employed persons and to members of             the Commission’s view, a rule generally prohibiting the
    their families moving within the Community (OJ English Special           provision of health-related information on foodstuffs is
    Edition 1971 (11), p. 416).                                              not necessary, provided that such information is not liable
                                                                             to mislead, and is therefore not justified under Article 15(2)
                                                                             of Directive 79/112.
                                                                         — As to the procedure requiring the grant
                                                                             of prior approval for the provision of
                                                                             health-related information on food-
                                                                             stuffs (Paragraph 9(3) LMG)
Action brought on 31 May 2000 by the Commission
of the European Communities against the Republic of                          The requirement laid down by Paragraph 9(3) LMG, where-
                              Austria                                        by approval must be obtained even for the provision of
                                                                             truthful and non-misleading information — as insisted
                          (Case C-221/00)                                    upon by the Austrian Government — constitutes a
                                                                             measure having equivalent effect within the meaning of
                                                                             Article 28 EC (formerly Article 30 of the EC Treaty). The
                         (2000/C 211/26)
                                                                             rules in issue have the effect of preventing products bearing
                                                                             health-related information which are legally manufactured
An action against the Republic of Austria was brought before                 and/or sold in another Member State from being placed
the Court of Justice of the European Communities on 31 May                   directly on the market in Austria. Since the Commission
2000 by the Commission of the European Communities,                          considers that the general prohibition precluding the
represented by Josef Christian Schieferer, of its Legal Service,             provision of health-related information on foodstuffs is
with an address for service in Luxembourg at the office of                   not justified on grounds of consumer protection, it follows
Carlos Gómez de la Cruz, of the Legal Service of the European               that the same conclusion likewise applies with regard
Commission, Wagner Centre C 254, Kirchberg.                                  to the prior approval procedure connected with that
                                                                             prohibition. Moreover, consumer protection can be
The applicant claims that the Court should:                                  ensured by measures having a less restrictive effect on the
                                                                             free movement of goods, for example by the carrying out
1. declare that, by interpreting and applying Paragraph 9(1)                 of appropriate controls on the market.
     of the Lebensmittelgesetz (the Austrian Law on foodstuffs,
     hereinafter ‘the LMG’) on the basis that it prohibits,              (1) OJ 1979 L 33, p. 1.
     generally and absolutely, the provision of any health-
     related information on foodstuffs intended for general