Opinion of Mr Advocate General Sir Gordon Slynn delivered on 18 September 1986. - Commission of the European Communities v Hellenic Republic. - Failure of a State to fulfil its obligatios - Law on beer. - Case 176/84.



European Court reports 1987 Page 01193



Opinion of the Advocate-General

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My Lords,

In this case the Commission asks the Court to declare that by prohibiting the importation of beer legally produced and marketed in other Member States, but not in conformity with the provisions of national law, the Hellenic Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty .

The relevant provisions of Greek law relied on are in summary these :

( a ) Greek Law No 2963/1922 provides in Article 3 that beer can only be manufactured in Greece after special governmental authorization and that "( 2 ) beer manufactured in the country must be manufactured exclusively from malt and hops and fulfil the following conditions ". A minimum initial density of the wort before fermentation and a minimum degree of fermentation is prescribed for beers intended for domestic consumption and for export . The manufacture of beer not fulfilling the conditions laid down "as well as the addition to beer or during its fabrication of malt extracts, glycerine, glycyrrhizin, glucose or sugar, dextrin or other starches or substances in substitution for barley malt, as well as the addition of alcohol, are forbidden" ( Article 3(4 )).

Between 1945 and 1980, Emergency Law No 205 of 19 March 1945 made it possible for authorization to be given for substances other than barley malt to be used, though it is said that authorization was not in fact given . That Law was in any event repealed from 1 January 1981 by Law No 1402/1983 of 18 November 1983 .

( b ) The Food and Drink Code of 1971

( i ) Article 3(8 ) prohibits the marketing of foodstuffs containing inorganic or organic substances alien to the foodstuff and the presence of which is not justified by the nature and composition of the foodstuff, or residues of such substances resulting from permitted methods of treatment, if the amount of the residue exceeds that resulting from a proper application of such treatment and if they are liable to present a public health risk;

( ii ) Article 29(4 ) states that "save where expressly provided for in the provisions of this Code relating to a particular foodstuff, no additive referred to in this chapter may be added to foodstuffs without the authorization of the Chemistry Commission; the use of additives otherwise than in accordance with these provisions shall be regarded as an act endangering public health and treated accordingly ".

Though this is not on the face of it an absolute ban on additives, it is accepted by the Greek Government that no authorizations had been given or are likely to be given for additives to be used in beer . Whether it does cover beer may also be arguable but it has been treated in this case as doing so .

( iii ) By Article 144(4 ) "Beer must be brewed and marketed in accordance with the provisions and requirements laid down by the special legislation relating to beer ". This is said by the Greek Government to refer to Law No 2963/1922 .

( c ) Penal provisions

Article 8 of a Decree-Law of 29 December 1923 provided for penalties and imprisonment of a person who manufactured beer from products other than malt and hops exclusively or who used in that manufacture a substance prohibited by law . Other penal sanctions in relation to the manufacture of beer are to be found in the Code of Legislation on Taxes and Alcohol ( Royal Decree of 14 February 1939 ).

These all relate to domestic production but Circular No 24408/4369 dated 6 December 1980 from the Greek Minister for Finance states inter alia that Article 7(1 ) of the Food and Drink Code provides that imported foodstuffs must fulfil the conditions and provisions of Greek legislation and therefore imported beer must comply with Law No 2963/1922 . The importation of beer is to be allowed only if the importer concerned provides a certificate from a foreign public authority to the effect that the imported beer was made exclusively from barley malt and had a minimum initial density of the wort before fermentation of 11.50 and a minimum degree of fermentation of 45 . It also states that products not fulfilling these requirements shall not be allowed for domestic consumption under the appellation of beer and the word "beer" may not appear on the wrapping whether in Greek or in a foreign language .

The Commission contends, and the Greek Government accepts, that the effect of the Greek legislation is that beer lawfully and traditionally made in other Member States from cereals other than barley, and containing additives, cannot be imported into Greece and cannot be sold as "beer ". The Commission' s case is that these rules constitute measures having equivalent effect to quantitative restrictions contrary to Article 30 which cannot be justified as mandatory requirements within the meaning of the Court' s judgment in Case 120/78 Cassis de Dijon (( 1979 )) ECR 649, paragraph 8, or under Article 36 of the Treaty; nor can they be justified as falling within the discretion of Member States to regulate importation pending the harmonization or approximation of national laws by the Community . The rules adopted constitute, it is said in any event, an arbitrary discrimination or a disguised restriction on trade within the meaning of Article 36 of the EEC Treaty .

The Greek Government' s answer is that these provisions are justified as being necessary to protect public health, the Community directives not covering all relevant aspects of the matter . The use of additives is not necessary since beer from barley malt can be made without them, nor is it justified in the light of the uncertainty about the cumulative and interactive effects of the use of additives so that they cannot be shown to be harmless to health . It is argued that there is no reason why all the Member States should adopt the lowest standard of health protection observed in other Member States in the Community . It is said that these rules are also necessary to prevent confusion, the Community not yet requiring labelling, and to protect the consumer' s health, Greek beer being more wholesome and better than beer brewed from other cereals using additives . Finally, it is said that restrictions are justified to ensure effective fiscal supervision since in Greece, since 1887, tax is levied on the original raw material, barley malt, and not on the finished product .

At the hearing, the Greek Government argued that the Ministerial Circular No 24408/4369 had no legal force . In my opinion it is immaterial for present purposes whether it does or does not . If it has legal force then it clearly contains a ban on imports of beer brewed otherwise than in accordance with Greek domestic legislation . If it does not have legal force then it cannot be denied that it is a statement of the law as understood to be laid down by the Greek Food and Drink Code and Law No 2963/1922 and as applied . On either interpretation, the Greek law as applied constitutes an obstacle to imports of beer from other Member States where that beer is not brewed in accordance with Greek national provisions .

It is clear that the fact that the national rules at issue apply both to domestic and to imported beers does not preclude the application of Article 30 ( Case 193/80 Commission v Italy (( 1981 )) ECR 3019 at paragraphs 19 and 20 ). Conversely, it is also clear that restrictions relating to the production and marketing of alcoholic beverages may be recognized as being necessary to satisfy the mandatory requirements of the kind recognized in Cassis de Dijon at paragraph 8 .

The argument advanced as to the allegedly better or preferred taste of beer made from barley malt in Greece is not a justification for such restrictions .

The object of the common market is that goods should move freely from one Member State to another and thus give consumers in each Member State the choice between products from all the Member States . It is up to the consumer to choose whether or not he likes beer imported from other Member States, either because of its quality or because of its price . It is not for the Member State concerned to prevent him from having that choice .

As regards protection of the consumer, I do not consider that the Greek Government has made out a real probability that Greek consumers are likely to be misled or deceived by beer being sold in their country which has been brewed in other Member States according to methods different from those laid down in the 1922 Law . Even if there were such a possibility, the Greek beer consumer can be sufficiently protected by adequate labelling of the product : Case 27/80 Fietje (( 1980 )) ECR 3839 and Case 182/84 Miro, judgment of 26 November 1985 . It is possible to give the consumer of beer sufficient information to enable him to distinguish imported beer not made in compliance with the Greek legislation from the domestic product . When beer is packaged for retail sale the consumer can be adequately informed of what he is buying by the label on the bottle or package . Where beer is sold by the glass, notices in the place of consumption can also provide the consumer with adequate information, particularly as beer is commonly offered for sale and ordered by the name of a specific make or type . Accordingly, I do not consider that the Greek Government has made out a justification for the restriction laid down in its legislation on grounds of the protection of the consumer .

As to the effectiveness of fiscal supervision, it appears that Greek tax on beer is based on the barley malt content, that is to say on an ingredient of the beer, rather than on the volume or the alcohol content and it is said that this cannot be done for imported beers . For historical reasons, this method may have been and indeed still may be convenient for taxing domestically produced beers, but convenience does not per se justify a breach of the EEC Treaty . If other methods of fiscal supervision are available which do not lead to an infringement of Community law, one of those methods should be adopted so long as it is not disproportionately onerous or inefficient . It is common knowledge that excise duties based on volume or alcohol content are adopted and, it seems, work efficiently in several other Member States . The Greek Government has not made out a justification for the import restriction in the present case on grounds of the effectiveness of fiscal supervision . This does not mean that in the result imported beers will have an advantage over domestic beers as seems to be suggested . It is perfectly possible to adopt a system of taxation which treats domestic and imported beers alike .

Finally, reliance is placed on the need to protect public health under Article 36 or pursuant to the judgment of the Court in Cassis de Dijon . I have dealt with the arguments under this head in my Opinion in Case 178/84 Commission v Germany and can accordingly deal with the position more briefly here .

There is a consistent line of case-law of this Court to the effect that, in so far as uncertainties persist in the present state of scientific research, it is for the Member States, in the absence of Community-wide harmonization, to decide what degree of protection of health and life of humans they intend to ensure, having regard however to the requirements of the free movement of goods within the Community : see for example Case 272/80 Frans-Nederlandse Maatschappij voor Biologische Producten (( 1981 )) ECR 3277 at p . 3290, paragraph 12; Case 174/82 Sandoz (( 1983 )) ECR 2445 at p . 2463, paragraph 16; and Case 227/82 Van Bennekom (( 1983 )) ECR 3883 at p . 3905, paragraph 37 . However, such prohibitions or restrictions on imports from other Member States on the ground of public health must not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States . In a series of cases the Court has made it clear that the principle of proportionality which underlies the last sentence of Article 36 requires that the power of the Member States to prohibit imports of the products in question from other Member States should be restricted to what is necessary to attain the legitimate aim of protecting health : Case 124/81 Commission v United Kingdom (( 1983 )) ECR 203 at p . 240, paragraph 33; Case 174/82 Sandoz, paragraph 18; Case 227/82 Van Bennekom, paragraph 39; Case 247/84 Motte, judgment of 10 December 1985, paragraph 23, and Case 304/84 Muller, judgment of 6 May 1986, paragraph 23 . National measures are justified only if it is established that they are necessary in order to protect public health and that that objective cannot be attained by means which are less restrictive of trade within the Community : Case 155/82 Commission v Belgium (( 1983 )) ECR 531 at p . 543, paragraph 12; and Case 247/81 Commission v Germany (( 1984 )) ECR 1111 at p . 1120, paragraph 7 .

It is for the national authorities to demonstrate in each case that their rules are necessary to give effective protection and, in particular, to show that the marketing of the product in question creates a serious risk to public health and, if relevant, that the addition of the agents in question does not answer a real need : Case 227/82 Van Bennekom, paragraph 40; and Case 304/84 Muller, paragraph 25 . Thus, in the present case, the burden is on the Greek Government not merely to make out a prima facie case that the import restriction is justified on grounds of health protection but to show that its national provisions do not go beyond what is necessary to achieve the objective of protecting health . The burden is not - as the Greek Government has sought to argue - on the Commission to prove that beers brewed in other Member States are absolutely harmless or even that the additives which they may contain are essential for technological reasons .

As regards the basic raw materials, malt and hops, the Greek Government has not made out a case that other raw materials are in themselves dangerous . It has said that where beer is brewed from cereals other than malted cereals, then enzymes have to be used . It accepts, however, that enzymes may be acceptable if they come from wholesome raw materials and are prepared in accordance with good industrial practice . It has thus not argued for a total ban on the use of enzymes in brewing beer, but has only gone as far as contending that their use should be subject to certain standards . It confirmed this position at the hearing, when its agent said that the Greek Government does not allege that enzymes are harmful in a general way . On this basis the total ban on the use of enzymes in brewing beer ( which it is accepted is imposed by the Greek legislation ) cannot be justified . There is no real evidence to show that the particular enzymes used are potentially harmful .

In my opinion, it has not been shown either how malt extracts, dextrose or sugar, dextrine or other starches, substitutes for barley malt or alcohol can be shown to be sufficiently toxic to justify the ban in Article 3(4 ) of Law No 2963/1922 on grounds of public health . Again there is no evidence or really any allegation that these are, or are potentially, harmful .

As regards glycerine and glycyrrhizin, which are the other products the addition of which in beer is banned by Article 3(4 ), the Greek Government has made no specific allegation and provided no specific evidence of their toxicity . The expert report drawn up for the Commission by C . E . Dalgliesh and J . Gry, and annexed to the application in this case, does not consider glycerine at all . It says that glycyrrhizin is a sweetening agent which is rarely used and in the United Kingdom, for example, is prohibited because it gives a false impression of "body" and "strength" to the beer ( a point which in my opinion goes to fair trading rather than to health protection ). The report also states that it is used only for some very special beer types and only in the Benelux countries, and that it is not accepted as a food additive in all EEC countries and is currently being evaluated by the Scientific Committee for Food of the EEC . That does not in itself establish the Greek Government' s case even if there is a question to be examined . On the evidence in this case it does not seem to me that the Court should rule affirmatively that the restriction on either glycerine or glycyrrhizin has been shown to be justified . Accordingly I consider that the Greek Government has failed to justify the prohibition of any of the products mentioned under Article 3(4 ) of the 1922 Law .

As to the general ban on additives which it is accepted is contained in Article 29(4 ) of the Food and Drink Code, despite doubts expressed as to its interpretation, the Greek Government has adduced a series of arguments which mainly concern uncertainties about safe overall levels for the ingestion of additives and about their possible interaction with other substances . None of them specifies any particular product which is said to be toxic or dangerous or even a serious risk for health . However, the Court' s case-law, in my view, establishes that the Member State must proceed on a case-by-case basis to establish whether a particular product constitutes a risk for public health in its country, taking into account national dietary habits and with due regard to the results of international scientific research . Thus what the Court said about pesticides in Case 94/83 Heijn (( 1984 )) ECR 3263 does not necessarily apply to enzymes or food additives . There is no evidence to the effect that the Greek Government has carried out such an investigation in the present case . The risks alleged are of a general nature and indeed are so tenuous that a total ban on all additives, such as that contained in Article 29(4 ) of the Code, is out of proportion to what is necessary to attain the aim of protecting public health as it appears in Article 36 of the EEC Treaty . To my mind, a prima facie justification on grounds of health protection for such measures has not been made out; if the contrary view were taken, the measure falls under the second sentence of Article 36 as being "a means of arbitrary discrimination or a disguised restriction on trade between Member States ".

In the result I consider that the Greek Government has not made out a justification on grounds of the protection of public health for the general ban on additives contained in Article 29(4 ) of its Food and Drink Code, in so far as that provision may operate to prevent imports into Greece of beer lawfully produced and marketed in other Member States .

Accordingly, in my view, the Commission is entitled to a declaration that by prohibiting the importation of beer legally produced and marketed in other Member States, but not in conformity with the provisions of its national law, the Hellenic Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty . I consider that the Hellenic Republic should pay the costs .