Opinion of the Advocate General — ECLI:EU:C:2001:360
Date: 2001-06-26
Language of the case: French
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: France

summary, the Court accepts that Member States have the right to determine the standard of protection which they wish to ensure in the areas in which harmonisation has not occurred, which means necessarily that they may consider that there is a risk where other Member States do not or are not concerned even to analyse the effect of a given substance. 131. It also means that a Member State is not required to prove with complete certainty the existence of a serious risk. It is sufficient that it sets out specific plausible arguments to show that the protection of public health or consumer protection are in fact put at risk. I consider that the French Republic has accomplished that task and that the Commission has not put forward sufficient evidence to prove otherwise. 132. Therefore, I have reached the conclusion that the Commission's third plea, that the French authorities have impeded the marketing of the above foodstuffs in France without establishing that they would pose a danger to health, must be dismissed. Costs 133. It follows from the foregoing arguments that, in my opinion, notwithstanding the fact that the French Republic has been unsuccessful on one of its three heads of claim, the Commission has been unsuccessful in its main submissions. Therefore, I suggest that on the basis of Article 69(3) of the Rules of Procedure each party should be ordered to pay its own costs. IV - Conclusion 134. I propose that the Court should: - find that the French Republic has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC) by not having provided for a procedure which is readily accessible, can be completed within a reasonable time and is capable of being challenged before the courts, if it leads to a refusal, for the purpose of having an additive entered on the list provided for by national legislation, which is necessary for marketing in France general foodstuffs and foodstuffs intended for special nutritional purposes, which are lawfully manufactured and/or marketed in other Member States of the European Community and which contain those substances; - dismiss the remainder of the action; - order each party to pay its own costs. 1: - Original language: English. 2: - OJ 1989 L 186, p. 27, the author's italics. 3: - OJ 1989 L 40, p. 27. 4: - Italicised in the original text. 5: - OJ 1991 L 175, p. 35. 6: - [1971] ECR 1003, paragraph 13. 7: - Case 120/78 Rewe-Zentral [1979] ECR 649. 8: - Case C-184/96 [1998] ECR I-6197, (the Foie gras case). 9: - See paragraph 7 of the judgment. 10: - The author's italics. 11: - The author's italics. 12: - The author's italics. 13: - Paragraph 25. 14: - The author's italics. 15: - C-344/90 [1992] ECR I-4719. 16: - Paragraph 9. 17: - Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 102. 18: - Case C-107/97 [2000] ECR I-3367, paragraph 51. 19: - The author's italics. 20: - Paragraph 8. 21: - Case C-400/96 Harpegnies [1998] ECR I-5121, paragraph 33. 22: - Harpegnies, paragraph 34. 23: - Case 227/82 [1983] ECR 3883, paragraphs 36 to 38. 24: - The author's italics. 25: - Paragraph 10.