Keywords

Summary



Keywords

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1 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES HAVING EQUIVALENT EFFECT - MARKETING OF PRODUCTS - DISPARITIES BETWEEN NATIONAL LAWS - BARRIERS TO INTRA-COMMUNITY TRADE - PERMISSIBILITY - CONDITIONS AND LIMITS

( EEC TREATY, ART . 30 )

2 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES HAVING EQUIVALENT EFFECT - TAXATION OF A PRODUCT ON THE BASIS OF THE QUANTITIES OF A PARTICULAR RAW MATERIAL USED IN ITS MANUFACTURE - PROHIBITION OF THE IMPORTATION OF THAT PRODUCT WHERE IT IS MANUFACTURED WITHOUT THAT RAW MATERIAL - JUSTIFICATION - EFFECTIVENESS OF FISCAL SUPERVISION - NOT PERMISSIBLE

( EEC TREATY, ART . 30 )

3 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES HAVING EQUIVALENT EFFECT - PROHIBITION OF THE IMPORTATION OF A PRODUCT NOT CORRESPONDING TO CONSUMERS' EXPECTATIONS AS REGARDS ITS COMPOSITION - JUSTIFICATION - NONE

( EEC TREATY, ART . 30 )

4 . FREE MOVEMENT OF GOODS - DEROGATIONS - PROTECTION OF PUBLIC HEALTH - RULES ON THE USE OF FOOD ADDITIVES - JUSTIFICATION - CONDITIONS AND LIMITS

( EEC TREATY, ARTS 30 AND 36 )

Summary

1 . IN THE ABSENCE OF COMMON RULES RELATING TO THE MARKETING OF THE PRODUCTS CONCERNED, OBSTACLES TO FREE MOVEMENT WITHIN THE COMMUNITY RESULTING FROM DISPARITIES BETWEEN THE NATIONAL LAWS MUST BE ACCEPTED IN SO FAR AS SUCH RULES, APPLICABLE TO DOMESTIC AND TO IMPORTED PRODUCTS WITHOUT DISTINCTION, MAY BE RECOGNIZED AS BEING NECESSARY IN ORDER TO SATISFY MANDATORY REQUIREMENTS RELATING INTER ALIA TO CONSUMER PROTECTION . IT IS ALSO NECESSARY FOR SUCH RULES TO BE PROPORTIONATE TO THE AIM IN VIEW . IF A MEMBER STATE HAS A CHOICE BETWEEN VARIOUS MEASURES TO ATTAIN THE SAME OBJECTIVE IT SHOULD CHOOSE THE MEANS WHICH LEAST RESTRICTS THE FREE MOVEMENT OF GOODS .

2 . A MEMBER STATE WHICH SUBJECTS A PRODUCT TO EXCISE DUTY WHICH IS CALCULATED ON THE BASIS OF THE QUANTITIES OF A PARTICULAR RAW MATERIAL USED IN ITS MANUFACTURE IS NOT ENTITLED TO USE ITS SYSTEM OF TAXATION TO PROHIBIT THE IMPORTATION OF THAT PRODUCT MANUFACTURED IN ANOTHER MEMBER STATE WITHOUT THAT RAW MATERIAL . IF IT WISHES TO PREVENT THE IMPORTED PRODUCT FROM ENJOYING A TAX ADVANTAGE OVER THE DOMESTIC PRODUCT, IT MERELY HAS TO ADOPT A SYSTEM OF TAXATION BASED DIRECTLY ON THE QUANTITY OF FINISHED PRODUCT .

3 . EVEN WHERE CONSUMERS IN A MEMBER STATE EXPECT A PARTICULAR PRODUCT TO BE MADE ONLY FROM PARTICULAR RAW MATERIALS, THE REQUIREMENTS OF CONSUMER PROTECTION CANNOT JUSTIFY THE PROHIBITION OF THE IMPORTATION OF THAT PRODUCT WHERE IT IS MANUFACTURED IN ANOTHER MEMBER STATE FROM OTHER RAW MATERIALS . SUCH A PROHIBITION WOULD BE OUT OF PROPORTION WITH THE AIM PURSUED, SINCE IT COULD BE REPLACED BY A SYSTEM OF INFORMATION MAKING IT COMPULSORY TO INDICATE THE NATURE OF THE RAW MATERIALS USED .

4 . IN VIEW OF THE UNCERTAINTIES AT THE PRESENT STATE OF SCIENTIFIC RESEARCH WITH REGARD TO FOOD ADDITIVES AND OF THE ABSENCE OF HARMONIZATION OF NATIONAL LAW, ARTICLES 30 AND 36 OF THE TREATY DO NOT PREVENT NATIONAL LEGISLATION FROM RESTRICTING THE CONSUMPTION OF ADDITIVES BY SUBJECTING THEIR USE TO PRIOR AUTHORIZATION GRANTED BY A MEASURE OF GENERAL APPLICATION FOR SPECIFIC ADDITIVES, IN RESPECT OF ALL PRODUCTS, FOR CERTAIN PRODUCTS ONLY OR FOR CERTAIN USES .

HOWEVER, IN APPLYING SUCH LEGISLATION TO IMPORTED PRODUCTS CONTAINING ADDITIVES WHICH ARE AUTHORIZED IN THE MEMBER STATE OF PRODUCTION BUT PROHIBITED IN THE MEMBER STATE OF IMPORTATION, THE NATIONAL AUTHORITIES MUST, IN VIEW OF THE PRINCIPLE OF PROPORTIONALITY UNDERLYING THE LAST SENTENCE OF ARTICLE 36 OF THE TREATY, RESTRICT THEMSELVES TO WHAT IS ACTUALLY NECESSARY TO SECURE THE PROTECTION OF PUBLIC HEALTH . ACCORDINGLY THE USE OF A SPECIFIC ADDITIVE WHICH IS AUTHORIZED IN ANOTHER MEMBER STATE MUST BE AUTHORIZED IN THE CASE OF A PRODUCT IMPORTED FROM THAT MEMBER STATE WHERE, IN VIEW, ON THE ONE HAND, OF THE FINDINGS OF INTERNATIONAL SCIENTIFIC RESEARCH, AND IN PARTICULAR OF THE WORK OF THE COMMUNITY' S SCIENTIFIC COMMITTEE FOR FOOD, THE CODEX ALIMENTARIUS COMMITTEE OF THE FAO AND THE WORLD HEALTH ORGANIZATION, AND, ON THE OTHER HAND, OF THE EATING HABITS PREVAILING IN THE IMPORTING MEMBER STATE, THE ADDITIVE IN QUESTION DOES NOT PRESENT A RISK TO PUBLIC HEALTH AND MEETS A REAL NEED, ESPECIALLY A TECHNICAL ONE . THE CONCEPT OF TECHNOLOGICAL NEED MUST BE ASSESSED IN THE LIGHT OF THE RAW MATERIALS UTILIZED AND BEARING IN MIND THE ASSESSMENT MADE BY THE AUTHORITIES OF THE MEMBER STATE WHERE THE PRODUCT WAS MANUFACTURED AND THE FINDINGS OF INTERNATIONAL SCIENTIFIC RESEARCH . BY VIRTUE OF THE PRINCIPLE OF PROPORTIONALITY, TRADERS MUST ALSO BE ABLE TO APPLY, UNDER A PROCEDURE WHICH IS EASILY ACCESSIBLE TO THEM AND CAN BE CONCLUDED WITHIN A REASONABLE TIME, FOR THE USE OF SPECIFIC ADDITIVES TO BE AUTHORIZED BY A MEASURE OF GENERAL APPLICATION .

IT MUST BE OPEN TO TRADERS TO CHALLENGE BEFORE THE COURTS AN UNJUSTIFIED FAILURE TO GRANT AUTHORIZATION . WITHOUT PREJUDICE TO THE RIGHT OF THE COMPETENT NATIONAL AUTHORITIES OF THE IMPORTING MEMBER STATE TO ASK TRADERS TO PRUDUCE THE INFORMATION IN THEIR POSSESSION WHICH MAY BE USEFUL FOR THE PURPOSE OF ASSESSING THE FACTS, IT IS FOR THOSE AUTHORITIES TO DEMONSTRATE THAT THE PROHIBITION IS JUSTIFIED ON GROUNDS RELATING TO THE PROTECTION OF THE HEALTH OF ITS POPULATION .