Judgment of the Court (Fourth Chamber) of 10 September 2009 (reference for a preliminary ruling from the Oberlandesgericht München — Germany) — Zentrale zur Bekämpfung unlauteren Wettbewerbs eV v Adolf Darbo AG

(Case C-366/08) (1)

(Harmonisation of laws - Directive 95/2/EC - Part A of Annex III - Directive 2001/113/EC - Second paragraph of Part II of Annex I - Extra jam with a soluble dry matter content of 58 % and containing potassium sorbate (E 202) as a preservative - Term ‘low sugar jam’)

2009/C 267/39

Language of the case: German

Referring court

Oberlandesgericht München

Parties to the main proceedings

Applicant: Zentrale zur Bekämpfung unlauteren Wettbewerbs eV

Defendant: Adolf Darbo AG

Re:

Reference for a preliminary ruling — Oberlandesgericht München — Interpretation of Part A of Annex III to European Parliament and Council Directive 95/2/EC of 20 February 1995 on food additives other than colours and sweeteners (OJ 1995 L 61, p. 1) and the second paragraph of Part II of Annex I to Council Directive 2001/113/EC of 20 December 2001 relating to fruit jams, jellies and marmalades and sweetened chestnut purée intended for human consumption (OJ 2002 L 10, p. 67) — Ability to market, under the name ‘extra jam’, jam with a soluble dry matter content of 58 % and containing potassium sorbate (E 202) as a preservative — Term ‘low-sugar jam’.

Operative part of the judgment

The term ‘low-sugar jams’ in Part A of Annex III to European Parliament and Council Directive 95/2/EC of 20 February 1995 on food additives other than colours and sweeteners, as amended by Directive 98/72/EC of the European Parliament and of the Council of 15 October 1998, covers jams described as ‘jam’ and ‘extra jam’ which have a sugar content appreciably lower than the reference value of 60 %. Products described as ‘extra jam’ which have a sugar content of 58 % cannot be considered to be low sugar within the meaning of that provision.

(1)  OJ C 272, 25.10.2008.