Opinion of the Advocate General — ECLI:EU:C:2004:520
Date: 2004-09-14
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Action for failure to fulfil obligations - successful
Origin: Netherlands

Summary of the Judgment Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation systematically making the marketing of foodstuffs to which vitamins or mineral salts have been added subject to there being a nutritional need in the population – Not permissible – Justification – Protection of public health – None – Infringement of the principle of proportionality (EC Treaty, Arts 30 and 36 (now, after amendment, Arts 28 EC and 30 EC)) A Member State which applies an administrative practice under which foodstuffs for everyday consumption fortified with vitamin A (in the form of retinoids), vitamin D, folic acid, selenium, copper or zinc which are lawfully produced or marketed in other Member States may be marketed on its territory, when they are neither substitution products nor reconstituted foodstuffs within the meaning of the national legislation, only if that enrichment meets a nutritional need in the population of that Member State and, in addition, without ascertaining whether those fortified foodstuffs might be a substitute for foodstuffs already marketed for which the addition of those nutrients is mandatory, fails to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC). Community law does not preclude legislation of a Member State prohibiting in accordance with the precautionary principle, save for prior authorisation, the marketing of foodstuffs when nutrients other than those whose addition is lawful under that legislation have been added thereto, because it is for the Member States, in the absence of harmonisation and to the extent that uncertainties continue to exist in the current state of scientific research, to decide on their intended level of protection of human health and life; that discretion must, however, be exercised in accordance with the principle of proportionality. Furthermore, it is for the national authorities to show in each case, in the light of national nutritional habits and in the light of the results of international scientific research, that their rules are necessary to safeguard public health and, in particular, that the marketing of the products in question poses a real risk for public health. In those circumstances, the systematic prohibition on the marketing of fortified foodstuffs, as it results from the administrative practice in the Member State concerned, does not enable Community law to be observed in regard to the identification and assessment of a real risk for public health, which requires a detailed assessment, case by case, of the effects which the addition of the minerals and vitamins in question could entail. (see paras 42, 44, 46-47, 63, 70, operative part)