Luxembourg, 16/11/2007 (Agence Europe) - In a ruling published on 15 November, the European Court of Justice takes the view that garlic capsules may not be considered medicines. The German law which requires these capsules to carry an authorisation in order to be sold as a drug therefore constitutes an illegal obstacle to the free movement of goods (case C-319/05). The German authorities have refused to authorise the imports and sales of “garlic extract powder gel capsules” on the grounds that they are not a foodstuff, but a medicine. Taking the view that this classification is unjustified for the health protection reasons invoked, the Commission has brought proceedings for failure to fulfil an obligation against Germany before the Court of Justice, for creating an obstacle to the free movement of goods, in infringement of article 28 of the EC Treaty.
The Court recognises that certain differences between the Member States in the qualification of products are inevitable during this harmonisation period. However, a “medicine” must answer the Community definition of this notion, either in its presentation or by its function. On presentation: the Court reveals that although medicines are often produced in gel capsule form, gel capsules do not necessarily constitute medicines. On function: the Court notes that a medicine must have the capacity to prevent or cure, and that beneficial effects to health in general, such as those of garlic, fail to fulfil the requirements for these capsules to be classed as “medicines”. The preventive action of garlic against arteriosclerosis is only proven in certain situations. Furthermore, there is no major distinction between the effects of the gel capsules and the effects of consuming garlic in its natural state.
Germany had also invoked article 13 of the EC Treaty, which allows the free movement of goods to be restricted in order to safeguard public health. The Court overturned this argument, principally because the consumption of garlic represents a danger only in certain highly specific cases, but also because the restrictions in question constitute an excessive measure to counter this danger. The Court takes the view that it would have been more reasonable to call for an indication of the risk to be included on the label. (C.D.)