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 - LEGISLATION RESTRICTING A GENERIC DESIGNATION TO PRODUCTS MANUFACTURED IN ACCORDANCE WITH NATIONAL RULES - JUSTIFICATION - NONE

( EEC TREATY, ART . 30 )

3 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES HAVING EQUIVALENT EFFECT - SYSTEM OF MANDATORY CONSUMER INFORMATION FOR CONSUMERS SHOWING A PREFERENCE FOR PRODUCTS MADE FROM PARTICULAR RAW MATERIALS - PERMISSIBILITY - CONDITIONS

( 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 IS NOT ENTITLED - ON THE GROUNDS OF THE REQUIREMENTS OF CONSUMER PROTECTION - TO RESTRICT THE USE OF A DESIGNATION TO PRODUCTS SATISFYING THE REQUIREMENTS OF ITS NATIONAL LEGISLATION . FIRSTLY, CONSUMERS' CONCEPTIONS ARE LIKELY TO VARY FROM ONE MEMBER STATE TO ANOTHER AND TO EVOLVE IN THE COURSE OF TIME WITHIN A MEMBER STATE, AND HENCE THE LEGISLATION OF THAT STATE MUST NOT CRYSTALLIZE GIVEN CONSUMER HABITS SO AS TO CONSOLIDATE AN ADVANTAGE ACQUIRED BY NATIONAL INDUSTRIES CONCERNED TO COMPLY WITH THEM, AND, SECONDLY, A GENERIC DESIGNATION MAY NOT BE RESTRICTED TO PRODUCTS MANUFACTURED IN ACCORDANCE WITH THE RULES IN FORCE IN THAT MEMBER STATE .

3 . WHERE CONSUMERS IN A MEMBER STATE ATTRIBUTE SPECIFIC QUALITIES TO A PRODUCT MANUFACTURED FROM PARTICULAR RAW MATERIALS, IT IS LEGITIMATE FOR THE MEMBER STATE IN QUESTION TO SEEK TO GIVE CONSUMERS THE INFORMATION WHICH WILL ENABLE THEM TO MAKE THEIR CHOICE IN THE LIGHT OF THAT CONSIDERATION . BUT THE MEANS USED TO THAT END MUST NOT PREVENT THE IMPORTATION OF PRODUCTS WHICH HAVE BEEN LEGALLY MANUFACTURED AND MARKETED IN OTHER MEMBER STATES . WHILST A SYSTEM OF MANDATORY INFORMATION IS PERMISSIBLE, IT MUST NOT ENTAIL NEGATIVE ASSESSMENTS FOR IMPORTED PRODUCTS MANUFACTURED IN ACCORDANCE WITH PROCESSES OTHER THAN THOSE IN USE IN THE IMPORTING MEMBER STATE .

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 PRODUCE 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 .