Under Paragraph 3(1) of the Gesetz gegen den unlauteren Wettbewerb (Law on Unfair Competition), in the version applicable to the dispute in the main proceedings (BGBl. 2010 I, p. 254, ‘the UWG’): ‘Unfair commercial practices shall be unlawful if they are likely to have a perceptible adverse effect on the interests of competitors, consumers or other market participants.’

Paragraph 4 of the UWG provides: ‘Other unfair commercial practices A person shall be regarded as acting unfairly in particular where he …

11.infringes a statutory provision that is also intended to regulate market behaviour in the interests of market participants.’

Paragraph 8(1), first part of sentence, of the UWG provides: ‘Where a person engages in an unlawful commercial practice under Paragraphs 3 or 7, an action may be brought against that person to eliminate that practice and, where there is a risk of recurrence, for an injunction requiring him to desist.’

By its third question, which it is appropriate to answer first, the referring court asks essentially whether the first sentence of Article 28(2) of Regulation No 1924/2006 must be interpreted as meaning that that provision applies in the situation in which a product bearing a trade mark or brand name was marketed as a medicinal product before 1 January 2005 and subsequently, although having the same characteristics and bearing the same trade mark or brand name, is marketed as a food stuff after that date.

According to Article 28(2) of Regulation No 1924/2006, products bearing trade marks or brand names existing before 1 January 2005 which do not comply with that regulation may continue to be marketed until 19 January 2022, after which time the provisions of that regulation will apply.

That provision is thus a transitional measure derogating from Article 1(3) of Regulation 1924/2006, according to which a trade mark, brand name or fancy name appearing in the labelling, presentation or advertising of a food which may be construed as a nutrition or health claim may be used without undergoing the authorisation procedures provided for in this regulation, provided that it is accompanied by a related nutrition or health claim in that labelling, presentation or advertising which complies with the provisions of the regulation.

In that connection, it must be recalled that Article 28(2) of Regulation No 1924/2006 refers to products bearing a trade mark or brand name which must be regarded as nutrition or health claims within the meaning of that regulation (see, to that effect, judgment of 18 July 2013, Green — Swan Pharmaceuticals CR, C‑299/12, EU:C:2013:501, paragraph 36).

In the present case, it is clear from the order for reference that, before 1 January 2005, Nelsons were already selling the remedies at issue in the main proceedings as medicinal products using the European Union mark RESCUE, which was then registered for medicinal products. In 2007, Nelsons also registered RESCUE as a European Union mark for foodstuffs.

By a judgment delivered in 2008, as mentioned in paragraph 18 of this judgment, a German court held that Bach flower remedies are not medicinal products but are foodstuffs.

As a result of that judgment, Nelsons began marketing the remedies at issue in the main proceedings in Germany as foodstuffs, although that was not accompanied by any change to them. Consequently, as the referring court observed, as compared with the situation existing on the day taken into consideration in Article 28(2) of Regulation No 1924/2006, that is the day before 1 January 2005, only the legal classification of the remedies at issue in the main proceedings had changed.

Furthermore, in its decision, the referring court states that it considers that ‘RESCUE TROPFEN’ and ‘RESCUE NIGHT SPRAY’ are health claims, within the meaning of Article 2(2)(5) of Regulation No 1924/2006, and that RESCUE constitutes a trade mark or brand name within the meaning of Article 28(2) thereof.

Therefore, the question which arises is whether remedies such as those at issue in the main proceedings, which were marketed before 1 January 2005 as medicinal products and, subsequent to that date, as foodstuffs are ‘products’ within the meaning of Article 28(2) of that regulation.

In that connection, it must be observed that ‘products’, within the meaning of that provision, must be understood as referring to ‘foodstuffs’ for the purposes of Regulation No 1924/2006.

First, that regulation, as its title states, concerns nutritional and health claims made on foods. Second, it is clear, in particular, from recital 1 and Article 5(1)(b)(i) of that regulation, that the latter does not expressly distinguish between ‘foodstuffs’ and ‘products’, the two words being used interchangeably.

In those circumstances, Article 28(2) of Regulation No 1924/2006 must be understood as referring only to foodstuffs bearing a trade mark or brand name which must be considered a nutrition or health claim within the meaning of that regulation (see, to that effect, judgment of 18 July 2013, Green — Swan Pharmaceuticals CR, C‑299/12, EU:C:2013:501, paragraph 37).

In the present case, according to Ayonnax and Bachblütentreff, the Greek Government and the European Commission, since the remedies at issue in the main proceedings were marketed as medicinal products before 1 January 2005, and not as food, they cannot fall within the scope of Article 28(2) of Regulation No 1924/2006.

In that connection, it must be observed that, according to Article 2 of Regulation No 178/2002, to which Article 2(1)(a) of Regulation No 1924/2006 refers for the definition of ‘food’, that definition does not cover ‘medicinal products’.

Thus, the remedies at issue in the main proceedings, the composition of which has not been changed, cannot be or have been, both, ‘foodstuffs’ and ‘medicinal products’.

Therefore, as the Advocate General noted in point 87 of his Opinion, if the remedies at issue in the main proceedings were ‘medicinal products’, they could not fall within the scope of Regulation No 1924/2006.

However, it is clear from the order for reference that the Court is asked about a different situation, in which those remedies are presented as having been objectively ‘foodstuffs’ within the meaning of that regulation, both during the relevant period with regard to Article 28(2) of that regulation, that is before 1 January 2005, and now.

In that case, as is clear from paragraph 39 of the present judgment, the remedies at issue in the main proceedings must be classified as ‘products’ within the meaning of Article 28(2) of Regulation No 1924/2006.

That provision is applicable only to products bearing a trade mark or brand name ‘existing’ before 1 January 2005.

Having regard to the wording of that provision, ‘existing’ must be understood as meaning that those products had, already before that date, to have the same substantive characteristics and bear the same trade mark or brand name. It is clear from the order for reference that such is the case in the main proceedings.

Taking account of the foregoing considerations, the answer to the third question is that Article 28(2), first sentence, of Regulation No 1924/2006 must be interpreted as meaning that that provision applies in the situation in which a foodstuff bearing a trade mark or brand name was, before 1 January 2005, marketed as a medicinal product and then, while having the same physical characteristics and bearing the same trade mark or brand name, as a foodstuff prior to that date.

Having regard to the answer to the third question, and given the nature of the main proceedings, which seek to immediately put an end to Nelsons’ commercial practices as far as concerns the remedies at issue in the main proceedings, there is no need to answer the first and second questions.