# Arrêt de la Cour

1..
: Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions – Purpose

2..
: Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions – Application of the principle of the right to be heard – Not applicable

3..
: Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions – Distinction between national provision existing prior to the harmonisation measure and those introduced subsequently – Conditions for the application of Article 95(4) EC – Obligation for the Member State seeking derogation to provide new scientific evidence – No such obligation – Conditions for the application for Article 95(5) EC – Obligation for the Member State seeking derogation to establish the need to introduce new national provisions on grounds of
  a problem specific to that Member State

4..
: Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions – Application to maintain existing national provisions – Possibility for a Member State seeking derogation to base its application on an assessment of the risk to public health different
  from that made by the Community legislature – Obligation to establish a level of health protection higher than that in the Community harmonisation measure – Obligation to comply with the principle of proportionality

5..
: Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions – Application to maintain existing national provisions – Assessment as regards the conditions laid down in Article 95(4) and (6) EC

1.
:

2.
:

3.
:

4.
:

5.
:

«(Approximation of laws – Directive 95/2/EC – Use of sulphites, nitrites and nitrates as food additives – Protection of health – Stricter national provisions – Conditions of application of Article 95(4) EC – Principle of the right to be heard)»

| | Opinion of Advocate General Tizzano delivered on 30 May 2002 |
| --- | --- |

| | Judgment of the Court, 20 March 2003 |
| --- | --- |

Summary of the Judgment

1..
  Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions – Purpose (Art. 95(1), (4), (6) and (7) EC)

2..
  Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions – Application of the principle of the right to be heard – Not applicable (Art. 95(4) and (6), second and third subparas)

3..
  Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions – Distinction between national provision existing prior to the harmonisation measure and those introduced subsequently – Conditions for the application of Article 95(4) EC – Obligation for the Member State seeking derogation to provide new scientific evidence – No such obligation – Conditions for the application for Article 95(5) EC – Obligation for the Member State seeking derogation to establish the need to introduce new national provisions on grounds of
  a problem specific to that Member State
  (Arts 30 EC and 95(4) and (5) EC)

4..
  Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions – Application to maintain existing national provisions – Possibility for a Member State seeking derogation to base its application on an assessment of the risk to public health different
  from that made by the Community legislature – Obligation to establish a level of health protection higher than that in the Community harmonisation measure – Obligation to comply with the principle of proportionality
  (Art. 95(4) and (7) EC)

5..
  Approximation of laws – Article 95 EC – Approval procedure for derogating national provisions – Application to maintain existing national provisions – Assessment as regards the conditions laid down in Article 95(4) and (6) EC (Art. 95(4) and (6) EC)

JUDGMENT OF THE COURT20 March 2003 (1)

JUDGMENT OF THE COURT20 March 2003 (1)

((Approximation of laws – Directive 95/2/EC – Use of sulphites, nitrites and nitrates as food additives – Protection of health – Stricter national provisions – Conditions of application of Article 95(4) EC – Principle of the right to be heard))

applicant,

interveners,

v

defendant,

gives the following

| Foodstuff | Maximum level (mg/kg or mg/l as appropriate), expressed as SO
  2 |
| --- | --- |
| Burger meat with a minimum vegetable and/or cereal content of 4% | 450 |
| Breakfast sausages | 450 |
| Longaniza fresca and
  butifarra fresca | 450 |
| Dried salted fish of the Gadidae species | 200 |
| Crustaceans and cephalopods:Crustaceans,
  penaeidae solencerides, aristeidae family: | 150
  (1) 150
  (1) 200
  (1) 300
  (1) 50
  (1) |
| Dry biscuit | 50 |
| Starches (excluding starches for weaning foods, follow-on formulae and infant formulae) | 50 |
| Sago | 30 |
| Pearl barley | 30 |
| Dehydrated granulated potatoes | 400 |
| Cereal- and potato-based snacks | 50 |
| Peeled potatoes | 50 |
| Processed potates (including frozen and deep-frozen potatoes) | 100 |
| Potato dough | 100 |
| White vegetables, dried | 400 |
| White vegetables, processed (including frozen and deep-frozen white vegetables) | 50 |
| Dried ginger | 150 |
| Dried tomatoes | 200 |
| Horseradish pulp | 800 |
| Onion, garlic and shallot pulp | 300 |
| Vegetables and fruits in vinegar, oil or brine (except olives and golden peppers in brine) | 100 |
| Golden peppers in brine | 500 |
| Processed mushrooms (including frozen mushrooms) | 50 |
| Dried mushrooms | 100 |
| Dried fruits: | 2 0001 000600500 |
| Dried coconut | 50 |
| Candied, crystallized or glacé fruit, vegetables, angelica and citrus peel | 100 |
| Jam, jelly and marmalade as defined in Directive 79/693/EEC (except extra jam and extra jelly) and other similar fruit spreads,
  including low-calorie products | 50 |
| Jams ,
  jellies and
  marmalades made with sulphited fruit | 100 |
| Fruit-based pie fillings | 100 |
| Citrus-juice-based seasonings | 200 |
| Concentrated grape juice for home wine-making | 2 000 |
| Mostarda di frutta | 100 |
| Jellying fruit extract, liquid pectin for sale to the final consumer | 800 |
| Bottled whiteheart cherries, rehydrated dried fruit and lychees | 100 |
| Bottled, sliced lemon | 250 |
| Sugars as defined in Directive 73/437/EEC, except glucose syrup, whether or not dehydrated | 15 |
| Glucose syrup, whether or not dehydrated | 20 |
| Treacle and molasses | 70 |
| Other sugars | 40 |
| Toppings (syrup for pancakes, flavoured syrups for milkshakes and ice cream; similar products) | 40 |
| Orange, grapefruit, apple and pineapple juice for bulk dispensing in catering establishments | 50 |
| Lime and lemon juice | 350 |
| Concentrates based on fruit juice and containing not less than 2.5% barley (
  barley water ) | 350 |
| Other concentrates based on fruit juice or comminuted fruit;
  capilé groselha | 250 |
| Non-alcoholic flavoured drinks containing fruit juice | 20 (carry-over from concentrates only) |
| Non-alcoholic flavoured drinks containing at least 235 g/l glucose syrup | 50 |
| Grape juice, unfermented, for sacramental use | 70 |
| Glucose-syrup-based confectionary | 50 (carry-over from the glucose syrup only) |
| Beer including low-alcohol and alcohol-free beer | 20 |
| Beer with a second fermentation in the cask | 50 |
| Wines | In accordance with Council Regulations (EEC) No 822/87, (EEC) No 4252/88, (EEC) No 2332/92 and (EEC) No 1873/84 and their
  implementing regulations... |
| Alcohol-free wine | 200 |
| Made wine | 260 |
| Cider, perry, fruit wine, sparkling fruit wine (including alcohol-free products) | 200 |
| Mead | 200 |
| Fermentation vinegar | 170 |
| Mustard, excluding Dijon mustard | 250 |
| Dijon mustard | 500 |
| Gelatin | 50 |
| Vegetable- and cereal-protein-based meat, fish and crustacean analogues | 200 |

| Foodstuff | Indicative ingoing amount (mg/kg) | Residual amount (mg/kg) |
| --- | --- | --- |
| Non-heat-treated, cured, dried meat products | 150
  (2) | 50
  (3) |
| Other cured meat productsCanned meat products Foie gras, foie gras entier, blocs de foie gras | 150
  (2) | 100
  (3) |
| Cured bacon | 175
  (3) |

| Foodstuff | Indicative ingoing amount (mg/kg) | Residual amount (mg/kg) |
| --- | --- | --- |
| Cured meat productsCanned meat products | 300 | 250
  (4) |
| Hard, semi-hard and semi-soft cheeseDairy-based cheese analogue | 50
  (4) |
| Pickled herring and sprat | 200
  (5) |

─
:

─
:

| Foodstuff | Maximum amount added (mg/kg or mg/l, as appropriate), expressed as SO
  2 |
| --- | --- |
| Garlic pulp | 300 |
| Horseradish pulp | 600 |
| Apricots | 1 000
  (6) |
| Granulated potatoes | 100 |
| Jams, jellies, marmalades and chestnut purée (covered by Directive 79/693/EEC) | 50
  (6) |
| Other jams | 50
  (6) |
| Glucose-syrup-based confectionary | 50
  (6) |
| Dry biscuits | 150 |
| Deep-water fresh lobster | 30 |
| Frozen crustaceans | 30 |
| Cooked crustaceans | 30 |
| Sugar products (covered by Directive 73/437/EEC) | 15
  (6) |
| Glucose syrup | 20
  (6) |
| Vinegar with an acid content of 8% | 100 |
| Lime juice | 100 |
| Lemon juice | 350 |
| Flavoured drinks based on concentrated fruit juice | 20
  (6) |
| Beer | 20 |
| Cider and perry | 50 |
| Fruit wine | 300 |

| Foodstuff | Amount added
  (7) (mg/kg) |
| --- | --- |
| Non-heat-treated meat-based products derived from whole pieces of meat, including slices of products | 60 |
| Bacon of the Wiltshire type and related cuts, including saltcured ham | 150 |
| Heat-treated meat-based products derived from whole pieces of meat, including slices of products | 60 |
| Rullepølse (rolled meat sausage) | 100 |
| Entirely preserved or semi-preserved heat-treated meat-based products derived from whole pieces of meat, including slices
  of products | 150 |
| Non-heat-treated meat-based products derived from minced meat | 60 |
| Fermented Danish salami | 100 |
| Entirely preserved or semi-preserved non-heat-treated meat-based products derived from minced meat | 150 |
| Heat-treated meat-based products derived from minced meat | 60 |
| Meatballs or liver paté | 0 |
| Entirely preserved or semi-preserved heat-treated meat-based products derived from minced meat | 150 |

| Foodstuff | Quantity added (8) (mg/kg) |
| --- | --- |
| Bacon of the Wiltshire type and related cuts, including saltcured ham | 300 |

On those grounds,

Rodríguez Iglesias

Puissochet

Wathelet

Schintgen

Gulmann

Edward

La Pergola

Jann

Skouris

Macken

Colneric

von Bahr

Cunha Rodrigues

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

---

1 –

  Language of the case: Danish.

1 –
: Language of the case: Danish.