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URÍA & MENÉNDEZ |
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The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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TMTTELECOMMUNICATIONSSubstitution of the 1003 number by 11818 as the number to obtain telephonic information on subscribers’ numbers within the context of the Universal Service, but the new number must not be used to render added value servicesOn April 4, 2003, the 1003 number shall disappear as the short number used by Telefónica to render the services of telephonic information on subscribers’ numbers and will be replaced by number 11818. With regard to this new number, the CMT decided, by means of its decision of February 6, 2003, that certain added value services (such as completing calls) should not be rendered using the short number 11818, assigned to render the service of telephonic information on subscribers’ numbers within the context of the Universal Service. (More information) CMT’s response to ANIEL’s query on different issues related to the installation of base stations for mobile telephony services and fixed telephony services on wireless networksThe CMT responded to the query of the Association of Electronic and Telecommunications Industries (“ANIEL”) regarding the powers of local governments to establish certain compulsory limitations on operators, regarding the installation and exploitation of base stations for mobile telephony services and fixed telephony services on wireless networks. (More information) New causes for rejecting applications for carrier pre-selectionThe CMT made the cancellation, amendment or addition of causes for rejecting applications for carrier pre-selection possible, in addition to those causes established in Annex II of Order 1/2001. Two new causes for rejection were added. (More information) AUDIO-VISUALPublic request for tenders summoned for the adjudication of a concession for the performance of cable broadcasting public service in the territory of Castilla-La Mancha. (More information) INDUSTRIAL PROPERTYWider scope of protection for trade marks with a reputationThe European Court of Justice has acknowledged that Member States are entitled to afford specific protection to trade marks with a reputation against the risk of third parties lessening or taking unfair advantage of their repute or distinctive character, when an identical or similar sign is used in respect of identical or similar products or services. (More information) INTELLECTUAL PROPERTYTelevisions in hotel rooms: new change of criteria of the Supreme Court regarding the concept of communication to the publicIn a judgement of January 31, 2003, the Spanish Supreme Court held that the televising of works in hotel rooms is an act of communication to the public, contradicting the opinion it had previously laid down in a judgement of September 2002. (More information) Publishing of photographs in a newspaper after the expiry of the collaboration agreement with the photographerThe publishing of unpublished photographs (which the Court considers “mere photographs” and not photographic works) after the expiry of a per unit collaboration agreement requires the authorisation of the photographer (judgement of the Supreme Court of December 31, 2002). (More information) Producer’s rights regarding the cable retransmission of programmes broadcasted by a different entityThe cable retransmission by an entity of programmes broadcasted by a different entity requires the authorisation not only of the latter, but also of the producer of the audiovisual recording or phonogram (judgement of the Supreme Court of December 2, 2002). (More information) Artistic Producer’s rightsIn its judgement of November 26, 2002, the Supreme Court denies any intellectual property rights over phonograms to artistic producers, exclusively on the grounds of the distinction between the role of the artistic producer and the producer of the phonogram. Community initiatives against piracyThere have been several initiatives at EU level for the reinforcement of the protection of industrial and intellectual property rights: a proposal for a Council Regulation concerning customs action against goods suspected of infringing such rights, and a proposal for a Directive on procedures related to industrial and intellectual property rights. (More information) The concept of "equitable remuneration" of artists and producers of phonograms under EU lawThe European Court of Justice held that the concept of "equitable remuneration" of artists and producers of phonograms (provided in article 8.2 of Directive 92/100/EEC) falls within the scope of Community law. However, each Member State is allowed to determine the criteria for assessing such equitable remuneration (judgement of February, 6 2003). (More information) PHARMACEUTICAL LAWAmendments to the Medicines Act introduced by the Law on Tax, Administrative and Social MeasuresThe Law on Tax, Administrative and Social Measures for the year 2003 amends the Medicines Act with respect to clinical trials and levies on services and activities related to medicines. (More information) FOOD LAW Animal health regulations: applicable rules and requirements on Community or imported products of animal originDirective 2002/99 harmonises health rules governing the trade with products of animal origin, Establishing general rules for the protection of animal health as well as veterinary certifications and checks on the same. (More information) Water quality criteriaThe Spanish Council of Ministers has passed a Royal Decree containing the health requirements applicable to waters for human consumption. (More information) A general prohibition of all health-related information on the labelling and presentation of foodstuffs does not conform to EC LawIn two judgements of January 23, 2003, the European Court of Justice held that a national legislation which lays down a general prohibition, subject to prior authorisation, of all health-related information on the labelling and presentation of foodstuff, is contrary to EC Law. (More information) Specific regulations on foodstuffs (More information)
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Decision of the CMT of February 6, 2003
On April 4, 2003, the 1003 number will disappear as the short number used by Telefónica de España (“Telefónica”) to provide the service of telephonic information on subscribers’ numbers (the “Service”) and will be replaced by 11818. With regard to this new number, the Spanish Commission for the Telecommunications Market (“CMT”), by means of its decision of February 6, 2003, decided that certain added value services (such as completing calls) must not be rendered using the short number 11818, assigned for the provision of the Service within the context of the Universal Service.
The Ministerial Order of March 26, 2002 (the “Order”) liberalized the Service. As a consequence thereof, there are currently different operators authorized to render the Service, who have been assigned the relevant short numbers with the format 118AB. In particular, by virtue of its decision of November 7, 2002, the CMT assigned the following numbers to Telefónica:
(i) 11818, which Telefónica must use to render the Service within the context of the Universal Service, at an affordable price;
(ii) 11822 to render the Service on a national level; and
(iii) 11825 to render the Service on an international level.
This decision was appealed before the CMT by one of the authorized operators. The appeal was partially endorsed by the CMT, who considered that the fact that Telefónica rendered added value services, such as the call completion, using the number assigned to render the Service in the context of the Universal Service (which is accessible by any user from any place in Spain), could afford Telefónica a competitive advantage and constitute a barrier for operators to enter this market.
In view of the above, the CMT decided to maintain the numbers assigned to Telefónica, but it shall only render added value services using the numbers 11822 and 11825. Therefore, these added value services must not be rendered using the number 11818 assigned to render the Service in the context of the Universal Service.
Decision of the CMT of January 24, 2003
By virtue of its decision of January 24, 2003, the CMT responded to ANIEL’s query regarding the powers of municipal corporations to establish certain compulsory limitations for operators on the installation and exploitation of base stations for mobile telephony services and fixed telephony services on wireless networks.
The most important issues analysed by the CMT are:
(i) Powers of Municipal Corporations to establish mandatory conditions for the installation of wireless networks:
Municipal Corporations have the legal power to impose these conditions if necessary to protect public interests within their jurisdiction, such as environment or compliance with urban plans. However, the exercise of this power is limited by the right of the operators, recognised by the General Telecommunications Act (“LGTel”), to deploy the facilities that are necessary to render telecommunication services in a free competition regime. Therefore, Local Councils shall impose limitations on the installation of networks if these limitations are necessary to protect a public interest within the Corporation’s jurisdiction, and are proportionate to the need to protect that specific public interest. If these limitations are imposed without observing the proportionality principle, special or exclusive rights could be created in favour of certain operators and, as a consequence thereof, a basic principle of the telecommunications regulatory framework would have been infringed.
(ii) Powers of Municipal Corporations to establish exposure limits upon radio electric emissions:
Taking into account that the LGTel establishes that the management, administration and control of radio electric emissions in the public domain are within the jurisdiction of the State, the CMT deems that the participation of Municipal Corporations in the establishment of protective measures against radio electric emissions is excluded. As a consequence, the only limitations that can be imposed are those established in the national regulations on this matter, set forth in the Royal Decree 1066/2001 of September 28.
(iii) Obligation of operators to submit plans for network deployment to Municipal Corporations:
The CMT mentioned that the fact that Municipal Corporations demand a plan for network deployment from operators, setting out the location of their facilities and the coverage of the service, shall not be regarded as a disproportionate measure provided that it constitutes an effective method for Local Governments to obtain the required balance between the operators’ needs and the Council’s need to protect the environment and ensure appropriate urban planning.
(iv) Enforcement and scope of certain clauses contained in municipal Orders that force operators to adapt their base stations to the best technology available at any time:
The CMT concluded that a general provision in this regard would not be compatible with the principle of technology neutrality, which is fundamental for the telecommunications regulatory framework, and could not be justified by the need to protect a specific public interest except if the base station needed to be adapted to ensure its compatibility with the environment. This issue, however, should be analyzed taking into account the particular circumstances of each specific case.
(v) Power of Municipal Corporations to require civil liability insurance:
Taking into account that according to the Insurance Agreements Act, it is within the jurisdiction of the Spanish Government to establish those activities that can only be performed with civil liability insurance, and that the Government has not declared that the installation of base stations is one of those activities, the CMT concluded that Municipal Corporations are not entitled to demand that operators take out civil liability insurance.
(vi) Obligation of the operators to share infrastructures:
The CMT stated that infrastructure sharing is a mechanism established in order to avoid each of the authorized operators exercising its right of occupation of public territory in such a way as to harm the relevant public interests, such as environment and adequate urban planning. This mechanism shall be reinforced upon the implementation of the Framework Directive on electronic communication services.
(vii) Powers of Municipal Corporations to create the so called “Telecommunications Commissions”:
Taking into account that Municipal Corporations have the right of self-organization in the exercise of their powers, they may create such Commissions provided that they are not assigned powers related to telecommunications, which are within the exclusive jurisdiction of the State.
CMT’s Order 1/2003 of January 24, 2003 on the review of the causes for rejecting carrier pre-selection (published in the Spanish Official Gazette of February 14, 2003)
Order 1/2003 (the “Order”) makes the elimination, amendment or addition of causes for rejecting applications for carrier pre-selection possible, in addition to those causes established in Annex II of Order 1/2001 of June 21. This will be possible when necessary in view of the evolution of the technique or of the conditions for rendering the services. In this case, the information submitted by the operators to the CMT related to pre-selection of carriers must be adapted to include the recently introduced amendments.
Likewise, the Order adds two new causes for rejecting applications for carrier pre-selection:
(i) the application for carrier pre-selection in relation to lines associated with non-geographic numbering or geographic numbering that has not been assigned to the access operator (Telefónica); and
(ii) the application for carrier pre-selection of lines associated with CENTREX numbering.
The Ministry of Science and Technology has summoned a public request for tenders in order to provide the territory of Castilla-La Mancha with a second cable broadcasting operator. The tender will be governed by the administrative basis and technical specifications imposed by Ministerial Order of February 4, 2003, published in the Spanish Official Gazette (B.O.E.) of February 7, 2003.
May 7, 2003 is the deadline for submitting the tenders. Addressees of the tender offer are Public Limited Liability Companies (“Sociedad Anónima”) established in any Member State of the European Union, or in any Member State of the European Economic Area, with a minimum share capital of Euros 6,010,121.04, among other requirements.
Judgement of the European Court of Justice, of January 9, 2003, Davidoff & Cie SA and Zino Davidoff SA v. Gofkid Ltd, Case C-292/00.
In the context of a preliminary ruling submitted by the Bundesgerichtshof, the European Court of Justice has interpreted in its judgement of January 9, 2003, the protection afforded to trademarks with a reputation by the First Council Directive on Trade Marks, taking into account the principle of specialisation.
The preliminary ruling dealt with the interpretation of Article 5.2 of First Council Directive on Trade Marks (which states that any Member State may afford protection to trade marks with a reputation against any sign which is identical or similar to the said trade mark, in relation to goods or services which are not similar to those for which the trade mark is registered, and where the use of that sign without due cause takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark). In particular, the preliminary ruling addressed the issue of whether the protection provided by that article is applicable not only in relation to different goods or services, but also to identical or similar goods or services - taking into account that, whilst Article 5.1.a) affords absolute protection for identical signs in relation to identical or similar goods or services, Article 5.1.b) includes the requirement of a risk of confusion only in relation to similar signs or similar goods or services-. The preliminary ruling is therefore of interest mainly in those cases where, although there is a similarity between the goods or services, there are also several circumstances which avoid the risk of confusion.
The Court of justice remarked that Article 5.2 of the Directive must not be interpreted solely on the basis of its wording, but also in the light of the overall scheme and objectives of the system of which it is a part. In this regard, the Court has ruled that the said article cannot be given an interpretation which would lead to trademarks with a reputation having less protection where a sign is used for identical or similar goods or services than where a sign is used for non-similar goods or services. Protection must be at least as extensive in the first case as in the second.
The Court concluded that the owner of a trade mark with a reputation that cannot obtain protection under Article 5.1 against the use of a sign for identical or similar goods or services (because despite the risk of use of the sign without due cause, or detriment to the distinctive nature or repute of the trade mark, there are other circumstances which make confusion unlikely) may obtain protection under Article 5.2 of the First Council Directive on Trade Marks. Therefore, Member States are entitled to provide specific protection for registered trade marks with a reputation in cases where a later mark or sign, which is identical to or similar to the registered mark, is intended to be used or is used for goods or services identical or similar to those covered by the registered trademark.
Judgement of the Supreme Court (Civil Chamber) of January 31, 2003
The Supreme Court examined an appeal in cassation which originated from a claim brought by several collecting societies (in particular, by authors’ and producers of phonograms’ collecting societies) against a hotel chain for carrying out unauthorised acts of communication to the public in hotel rooms.
In this case, the Supreme Court returned to the criteria established in 1996, ruling that the placing of televisions for the use of guests in hotel rooms is an act of communication to the public, after having established the opposite four months ago, in a judgement of September 24, 2002 (which has now been annulled).
This time, the Supreme Court acknowledged that the comparison made by the Constitutional Court equating domiciles and hotel rooms (upon which the judgement of September 24, 2002 was based) only applies to criminal law.
Therefore, this comparison does not mean that, from the point of view of intellectual property, there can not be deemed to be an act of communication to the public, since, in words of the Supreme Court, “the benefit obtained by the hotel chain through the rendering of this personalized service (the placing of televisions in the rooms) justifies the award of the rights demanded in these proceedings”.
Judgement of the Supreme Court (Civil Chamber) of December 31, 2002
In this judgement, the Supreme Court examined the legal regime of per unit agreements with photographers. By this contractual relationship, the photographer commits himself to take pictures of events determined by the newspaper publisher (who provides him with the photographic material), as well as other events, and receives a fixed amount for each picture that is eventually accepted and published by the newspaper publisher.
In the present case, after the expiry of one of such agreements, the newspaper publisher published several photographs which had not been published at expiry date, and which had not been accepted or paid for. Several of those photographs were published without mentioning the name of the photographer.
The Supreme Court deemed that the photographs subject to these proceedings were mere photographs, which were accessory to the articles, and which only required ordinary technical abilities. Consequently they could not be considered photographic works but mere photographs only protected by article 118 of the Revised Text of the Spanish Intellectual Property Law.
In this context the act of publishing the photographs without acceptance or payment was in breach of said article, neither the reproduction nor distribution of the photographs having been authorised by the photographer.
However, as the photographs are not considered photographic works, the author has no moral rights over them, and, therefore, publishing the photographs without mentioning the name of the photographer does not infringe his moral rights.
Judgement of the Supreme Court (Civil Chamber) of December 2, 2002
The audiovisual producers’ collecting society filed a claim demanding an injunction to prevent the cable retransmission of television programmes in a communications network until it had granted the relevant authorisation. The entity retransmitting the programmes by cable had been authorised by the broadcasting entity.
Taking into account the difference between broadcasting acts and acts of retransmission, as well as the difference between the rights of the broadcasting entities and the rights of the producers of the audiovisual recording, the Supreme Court ruled that the cable retransmission by an entity of programmes broadcasted by a different entity requires, not only the authorisation of the broadcaster, but also of the producer of the audiovisual recording or phonogram.
Proposal for a Council Regulation concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (COM/2003/0020 final)
Proposal for a Directive of the European Parliament and of the Council on measures and procedures to ensure the enforcement of intellectual property rights (COM/2003 provisional text of January 27, 2003)
In order to face the growing phenomenon of piracy, the following initiatives at EU level have been adopted in order to combat more effectively the infringement of industrial and intellectual property rights:
(a) Proposal for a Council Regulation concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights.
This proposal is designed to replace Council Regulation 3295/94, but at the same time maintain its basic principles. Some of the principal changes introduced by this proposal with respect to the previous Regulation are the following: (i) it widens the scope of application of the Regulation to more rights (plant varieties, designations of origin and geographical indications); (ii) it seeks to provide for an improved and more complete information exchange between Customs and right-holders; (iii) it sets forth mechanisms to avoid possible abuses by right holders, but at the same time abolishes fees and guarantees for the use of services provided in the Regulation; (iv) the scope of the ex officio procedure is extended.
(b) Proposal for a Directive of the European Parliament and Council on measures and procedures to ensure the enforcement of intellectual property rights.
This proposal aims to harmonise several aspects, mainly procedural, of the protection of intellectual and industrial property rights, taking into account that the disparities amongst national laws hamper the proper functioning of the Internal Market.
In this sense, the proposal requires Member States to establish the necessary and proportional measures and procedures to ensure respect for such rights and to prevent infringers from drawing economic profit from infractions. These measures shall not be unnecessarily complicated or entail unreasonable time-limits or unwarranted delays.
The proposal also contains several provisions related to, among others, authorship presumption, evidence, provisional and precautionary measures, measures following a substantive judgement, quantification of damages, protection offered by criminal law, and protection of technical devices (without prejudice to the protection of technological measures provided by laws on copyright and related rights).
Judgement of the European Court of Justice (Sixth Chamber), of February 6, 2003, case C-245/00, Stichting Ter Exploitatie Van Naburige Rechten (NOS) v. Nederlandse Omroep Stichting (NOS)
The European Court of Justice examined in this judgement certain preliminary rulings regarding the notion of the "equitable remuneration" of artists and producers of phonograms provided for in article 8.2 of Directive 92/100/EEC.
Although the Court acknowledges that the concept of “equitable remuneration” falls within the scope of Community law, a broad margin is granted to Member States when assessing the equitable remuneration, as it is for them to determine within their own territory what criteria should be used to ensure that this concept is respected, within the limits imposed by Community law.
This way, the method for determining the said remuneration should allow for a balance to be achieved between the right to receive remuneration for music broadcasting of artists and producers of phonograms, and the right of third parties to broadcast said phonograms under reasonable conditions.
The Court opined that a method allowing right holders and users to freely negotiate the amount of the remuneration, and, failing an agreement, to entrust that task to the national court, is consistent with Community law. Such method “makes it possible to establish a general framework for the various choices made by the Member States for the purpose of calculating the amount of equitable remuneration”.
Law 53/2002, of December 30, 2002, on Tax, Administrative and Social Measures for the year 2003, published in the Spanish Official Gazette (B.O.E.) of December 31, 2002
In connection with pharmaceutical law, the Law on Tax, Administrative and Social Measures for the year 2003 amends the Medicines Act with respect to (i) levies for the services and activities rendered in connection with medicines, establishing new levies (Article 117) and a new exemption (Article 115); and (ii) the regulation of clinical trials (Articles 8, 38, 59, 60, 62, 63 and 65).
As regards clinical trials, the Law on Tax, Administrative and Social Measures partially implements Directive 2001/20/EC of the European Parliament and of the Council, of April 4, 2001, on the approximation of the laws, regulations and administrative provisions of the Member States relating to the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use; therefore, it is envisaged that Royal Decree 561/1993, of April 16, on clinical trials will be amended accordingly.
On one hand, the concept of “Product in the clinic investigation stage” is replaced by “investigational medicinal product”, as defined in Directive 2001/20/EC (“a pharmaceutical form of an active substance or placebo being tested or used as a reference in a clinical trial, including products already with a marketing authorisation but used or assembled (formulated or packaged) in a way different from the authorised form, or when used for an unauthorised indication, or when used to gain further information about the authorised form”.
On the other hand, Directive 2001/20/EC introduces a new definition of clinical trials, which expressly excludes from its scope the “non-interventional trials": studies where the medicinal product is prescribed in the usual manner in accordance with usual health practices.
The new regulation imposes the requirement that informed consent be expressed in writing (the former regulations requested that informed consent be given, preferably, in writing). Oral consent is accepted only to the extent that the individual is unable to write, provided that a witness is present.
Finally, the new regulation provides that the principal investigator must report all serious adverse events to the sponsor, who is responsible for submitting those adverse effects to the Health Authorities and to the Ethics Committee for Clinical Research.
Council Directive 2002/99/EC of December 16, 2002, laying down the animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption.
This Directive harmonises health rules governing intra-community trade with products of animal origin, as well as those imported from third countries, and guarantees the uniform and transparent application of these rules throughout the EC.
The rules related to production, processing and distribution of products of animal origin throughout the Community impose general health requirements, in line with the former regulations (Directives 89/662/EC, 72/462/EEC and 97/78/EC). Likewise, the said rules require that veterinary certifications and tests be conducted on these products.
As regards products of animal origin imported from other countries, the Directive establishes a principle of equivalence, in the sense that products from third countries shall only be introduced in the CE if they comply with the requirements set out in this Directive or afford equivalent health guarantees. This requirement is reinforced by the obligation to carry out an assessment on the health conditions of the third countries in question. In this regard, the Directive foresees the creation of directories of third countries or part of the same, from which imports of certain animal products are allowed, upon the prior health audit carried out by Commission experts.
Judgment of the Court (Sixth Chamber) of January 23, 2003. Commission of the European Communities v Republic of Austria (Case C-221/00)
In its judgements of January 23, 2003, the Court of Justice analyses the compatibility of the Federal Law of the Austrian Republic on Trade in Foodstuffs (“LMG”) with Council Directive 79/112/EEC of December 18, 1978, on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs.
Article 2.1 of Directive 79/112/ECC prohibits labelling methods that, by nature, may mislead purchasers, or attribute to foodstuffs properties of preventing, treating or curing human diseases. On the other hand, Article 15 of Directive 79/112/EEC provides that Member States may not forbid trade in foodstuffs that comply with the rules set out in this Directive by applying non-harmonised national provisions governing the labelling and presentation of certain foodstuffs, except for reasons of protection of public health and prevention of fraud.
On this basis, Article 9 of the LMG provides that the Austrian Federal Minister for Health and the Environment shall authorise in advance any health-related information on the labelling of foodstuffs.
In the context of these preliminary rulings, the Court of Justice stated that, whilst the LMG not only precludes all statements relating to human diseases, but also the placing of any statements related to health, Directive 79/112/EEC prohibits statements related to human diseases, regardless of whether they may mislead the purchaser, as well as fraudulent presentations. The Court found that the provisions of Article 9 of the LMG entail that any products that include health-related statements may not be freely marketed in Austria, even if they do not mislead the purchaser.
The Court asserted that the protection of the consumers’ health cannot justify a system as restrictive of the free movement of goods as that which results from the LMG, provided that less restrictive measures exist for the prevention of such residual risks to health. Accordingly, the Court reached the conclusion that a national legislation which lays down a general prohibition, subject to prior authorisation, of all health-related information on the labelling or presentation of foodstuffs, is contrary to Directive 79/112/EEC.
Royal Decree 140/2003, of February 7, on quality and health criteria applicable to waters intended for human consumption, published in the Spanish Official Gazette (B.O.E.) on February 21, 2003
Further to the requirements established by Council Directive 98/83, of November 3, 1998, on the quality of water intended for human consumption, this Royal Decree provides the health criteria applicable to water.
The scope of this Royal Decree includes any water intended for domestic use and consumption (excluding bottled water) and water used in the food industry that are in contact with foodstuffs or with devices used for their production.
The Royal Decree sets out the criteria to ensure that water intended for human consumption and the appliances used for its distribution are healthy, clean and of good quality. In the case of water used in a food-production undertaking, the quality requirements set out herein shall be complied with at the where water is used in the premises. Likewise, the Royal Decree also provides that employees who are involved in the supply of water and who are in direct contact with water intended for human consumption, must comply with the requirements set out in the rules applicable to foodstuffs handling personnel.
Among the recently enacted provisions on foodstuffs, the following regulations are of special interest:
- Commission Directive 2003/14/EC, of February 10, 2003, amending Directive 91/321/EEC on infant formulae and follow-on formulae.
- Commission Directive 2003/13/EC, of February 10, 2003, amending Directive 96/5/EC on processed cereal-based foods and baby foods for infants and young children.
- Royal Decree 179/2003, of February 14, 2003, approving the Spanish Quality Standard for Yogurts.