CELEX: C2002/056/08
Language: en
Date: 2002-03-02 00:00:00
Title: Case C-464/01: Reference for a preliminary ruling by the Oberster Gerichthof by order of 8 November 2001 in the case of Johann Gruber against Bay Wa Aktiengesellschaft

C 56/4                 EN                   Official Journal of the European Communities                                       2.3.2002
The applicant claims that the Court should:                            The argument that the measures in issue serve environmental
                                                                       purposes is not enough to justify them, since they are
                                                                       disproportionate. This is because, where the journey to be
                                                                       travelled is greater than a certain distance, the burden imposed
(1) declare that, by introducing, by means of Paragraphs 8(1)
                                                                       on the environment outweighs the ecological advantages
       and 9(2) of the Verpackungsverordnung 1998, a system
                                                                       connected with the use of refillable containers. For the
       for the re-use of packaging for products which are
                                                                       purposes of the present proceedings, it is immaterial what
       required, under Directive 80/777/EEC, to be bottled at
                                                                       distance actually represents that threshold in respect of mineral
       source, the Federal Republic of Germany has infringed its
                                                                       water, since the German rules apply, quite irrespective of any
       obligations under Article 5 of European Parliament and
                                                                       transportation distance, to all mineral waters to be bottled at
       Council Directive 94/62/EC (1) of 20 December 1994 on
                                                                       source, and thus also cover cases in which that distance is
       packaging and packaging waste, in conjunction with
                                                                       considerable.
       Article 28 EC, and Article 3 in conjunction with point
       2(d) of Annex II to Council Directive 80/777/EEC (2) of
       15 July 1980 on the approximation of the laws of the
       Member States relating to the exploitation and marketing        (1) OJ L 365, 31.12.1994, p. 10.
       of natural mineral waters;                                      (2) OJ L 229, 30.8.1980, p. 1.
(2) order the Federal Republic of Germany to pay the costs.
Pleas in law and main arguments                                        Reference for a preliminary ruling by the Oberster
                                                                       Gerichthof by order of 8 November 2001 in the case of
                                                                            Johann Gruber against Bay Wa Aktiengesellschaft
The rules laid down in Paragraphs 8(1) and 9(2) of the                                         (Case C-464/01)
Verpackungsverordnung (Packaging Order) 1998 are incom-
patible, as regards natural mineral waters to be bottled at
source, with Article 5 of the packaging directive and Article 28
                                                                                                (2002/C 56/08)
EC, since they result in an impairment of trade which cannot
be justified on grounds of environmental protection. The
interaction of the German legislation is such that it is in the
interests of producers of mineral waters in other Member
States who wish to market their products in Germany to use
refillable containers if they wish to avoid the obligation to          Reference has been made to the Court of Justice of the
collect a deposit in respect of the packaging distributed by           European Communities by order of the Oberste Gerichtshof
them and to retain the possibility of participating in general         (Supreme court of Austria) of 8 November 2001, which was
return systems. Although that legislation undeniably favours           received at the Court Registry on 4 December 2001, for a
the use of refillable containers rather than non-reusable ones,        preliminary ruling in the case of Johann Gruber against Bay
national measures to promote the use of refillable containers          Wa Aktiengesellschaft, on the following questions:
are only in accordance with Article 5 of Directive 94/62/EC if,
at the same time, they meet the requirements of Article 28 EC.
The German rules in the present case, however, constitute a            1.    Where the purposes of a contract are partly private, does
measure the effect of which is equivalent to a quantitative                  the status of ‘consumer’ for the purposes of Article 13 of
restriction within the meaning of Article 28 EC. The German                  the Convention depend on which of the private and the
measures operate to make the distribution of natural mineral                 trade or professional purposes is predominant, and what
waters from other Member States more difficult and/or more                   criteria are to be applied in determining which of the
expensive. It is true that German producers must also, as the                private and the trade or professional purposes predomi-
case may be, transport empty refillable containers over long                 nates?
distances; but, where bottling takes place outside Germany,
the distance between the bottling plant and the place of               2.    Does the determination of the purpose depend solely on
consumption in Germany is in most cases significantly greater                the circumstances which could be objectively ascertained
than when bottling and consumption both take place within                    by the other party to the contract with the consumer?
Germany. The possibility, for foreign mineral water producers,
of participating in a system of standardised re-usable packaging
would result in additional conversion costs for those producers        3.    In case of doubt, is a contract which may be attributed
whilst, at best, reducing the need for the return transportation             both to private and to trade or professional activity to be
of empty refillable containers.                                              regarded as a consumer contract?
 ---pagebreak--- 2.3.2002                EN                    Official Journal of the European Communities                                        C 56/5
4.    Is the conclusion of a contract preceded by advertising            Reference for a preliminary ruling by the Verwaltungsge-
      within the meaning of Article 13(3)(a) of the Convention           richt Stuttgart by order of 20 November 2001 in the case
      where the other party to the subsequent contract with              of Georgios Orfanopoulos, Natasha Orfanopoulos, Melina
      the consumer advertised his products by brochure in the            Orfanopoulos and Sofia Orfanopoulos against Land Ba-
      Contracting State of the consumer but did not advertise                                   den-Württemberg
      the products the consumer subsequently bought in it?
                                                                                                 (Case C-482/01)
5.    Is there a consumer contract within the meaning of
      Article 13 of the Convention where the seller makes an                                      (2002/C 56/10)
      offer by telephone from his own State to the buyer who
      lives in a different State, and the offer is not accepted but
      the buyer subsequently buys the product thus offered in
                                                                         Reference has been made to the Court of Justice of the
      response to a written offer?
                                                                         European Communities by order of the Verwaltungsgericht
                                                                         Stuttgart (Finance Court Stuttgart) of 20 November 2001,
6.    Does the consumer take the steps necessary for the                 received at the Court Registry on 13 December 2001, for a
      conclusion of the contract in his own State within the             preliminary ruling in the case of Georgios Orfanopoulos,
      meaning of Article 13(3)(b) of the Convention where an             Natasha Orfanopoulos, Melina Orfanopoulos and Sofia Orfa-
      offer is made to him in the State of his contracting               nopoulos against Land Baden-Württemberg on the following
      partner and he accepts that offer by telephone from his            questions:
      own State?
                                                                         1.   Is a restriction on the freedom of movement of a foreign
                                                                              EU national with many year’s residence in a host State,
                                                                              ordered on account of a criminal offence under the
                                                                              Betäubungsmittelgesetz (Law on Narcotics), in conformity
                                                                              with European Law in terms of Article 39(3) EC on
                                                                              grounds of public policy, public security or public health,
                                                                              where, on account of his personal conduct, there is a
                                                                              justified expectation that he will also commit future
                                                                              criminal offences and where the spouse of the EU national
Reference for a preliminary ruling by the Amtsgericht                         and his children cannot reasonably be expected to live in
Frankenthal (Pfalz), by order of that court of 11 October                     his State of origin?
    2001, in criminal proceedings against Felix Kapper
                                                                         2.   Does Article 9(1) of Council Directive 64/221/EEC(1) of
                                                                              25 February 1964 preclude national legislation which no
                          (Case C-476/01)                                     longer provides for objection proceedings in which an
                                                                              examination of expediency is also carried out in relation
                                                                              to a decision of an administrative authority to expel the
                           (2002/C 56/09)                                     holder of a residence permit from the national territory, if
                                                                              a special body which is independent of the administrative
                                                                              authority adopting the decision has not been established?
Reference has been made to the Court of Justice of the                   (1) OJ L 56, p. 850.
European Communities by order of the Amtsgericht (District
Court) Frankenthal (Pfalz) of 11 October 2001, received at the
Court Registry on 7 December 2001, for a preliminary ruling
in the criminal proceedings against Felix Kapper, on the
following question:
                                                                         Action brought on 17 December 2001 by the Commission
Does Article 1(2) of Council Directive 91/439/EEC (1) of                 of the European Communities against the Kingdom of
29 July 1991 on driving licences preclude a Member State                                             Sweden
from refusing to recognise a driving licence where, according
to its investigations, another Member State issued that licence                                  (Case C-490/01)
although the holder of the licence did not have his normal
residence there, and in appropriate cases is actual effect to be                                  (2002/C 56/11)
given to that provision in that regard?
                                                                         An action against the Kingdom of Sweden was brought
(1) OJ L 237, 1991, p. 1.                                                before the Court of Justice of the European Communities on
                                                                         17 December 2001 by the Commission of the European
                                                                         Communities, represented by M. Wolfcarius and C. Tufvesson,
                                                                         acting as Agents, with an address for service in Luxembourg.