4.

The Commission and, of course, the defendant in the main proceedings take the opposing view, namely that the contested provisions are unlawful. The Commission's argument is wellconstructed. Thus the Commission concedes that the Belgian legislation is in conformity with the Directive of 23 October 1962 (the two additives are not prohibited in every case and the use of substances contained in the list annexed to that directive is permitted for lumpfish roe). However, it maintains that the legislation is contrary to the scheme of Articles 30 to 36 of the EEC Treaty. In support of that proposition it refers in the first place to the letter which it- drafted following the judgment of 20 February 1979 (Case 120/78 Rewe v Bundesmonopolverwaltung får Branntwein ‚Cassis de Dijon’ [1979] ECR 649), and subsequently sent to the Member States. It is stated in that communication that technical and commercial rules, in particular those covering the composition, designation, presentation and packaging of products must under no circumstances impede the marketing in a Member State of ‘any product lawfully produced and marketed’ in another Member State. Clearly rules such as the Belgian provisions in question does not comply with that requirement. It follows that the prohibition laid down in Article 30 must apply unless such provisions are justified by one of the grounds set out in Article 36 or by one of the mandatory requirements defined in the judgment in the ‘Cassis de Dijon’ case. The Commission then considers the approach adopted by the Court in its judgments in Grunert, Kugelmann, Eyssen and Sandoz, to which I have already referred, and in its judgments of 30 November 1983 in Case 227/82 van Bennekom ([1983] ECR 3883, and of 19 September 1984 in Case 94/83 Heijn [1984] EĆR 3263. As is well-known those cases all concerned national rules regarding additives for foodstuffs which could be regarded as measures having an effect equivalent to quantitative restrictions but which the various governments sought to justify by reference to the need to protect public health. According to the Commission, those decisions lay down the following criteria: (a) The use of colourants has not yet been regulated by Community law. The Member States must therefore adopt national rules governing the use of such products in view of their harmfulness. (b) However, national rules may not conflict with the principles regarding the free movement of goods and in particular with the principle of proportionality (see last sentence of Article 36). The prohibition on the use of a particular substance cannot therefore be enforced where its use is compatible with the protection of public health and corresponds to a genuine technical or nutritional need, (c) It is for the national authorities which rely on Article 36 to justify measures restricting trade to prove in each case that such measures are necessary to protect effectively the interests referred to in that provision and in particular public health, (d) Because of the uncertainties which exist in the scientific field as to the degree of harmfulness of colourants, on the one hand, and the different eating habits existing within the Community, on the other, even measures which are different to those adopted for the same substances in another Member State may be lawful under Article 36. The Commission assesses the contested provisions on the basis of those considerations. As I have stated it considers that, notwithstanding their conformity with the 1962 directive, the extension of the procedure for authorization to products lawfully manufactured and marketed in another Member State conflicts with the scheme of Articles 30 to 36. That may be inferred from the Court's decisions which prohibit a State from impeding the importation of a product to which a colourant has been added when: (a) the substance in question appears in the list annexed to the Directive of 23 October 1962; (b) the addition of the colourant has been authorized in the State of origin; and (c) the colouring of the product satisfies a technological or nutritional need. Indeed, on importation, cochineal red and indigotin have already passed two inspections. In the first place, before they were included on the Community list, their harmfulness was assessed in the light of international scientific knowledge and, in particular, research carried out by the Scientific Committee for Food on the amounts of additives which may be ingested daily without endangering health. Secondly, the risks arising from the use of the two substances were assessed by the State of origin in the course of the procedure of authorization for the use of the product. In addition, in the case of lumpfish roe, colouring undeniably corresponds to a technological need. In the Commission's view it follows that rules such as those in force in Belgium constitute measures having an effect equivalent to quantitative restrictions and fall under the prohibition provided for in Article 30. It may be objected that, since, with regard to colourants only a small degree of harmonization has been achieved, Member States can restrict the freedom of movement of goods by relying on the derogation provided for in Article 36. However, the Commission denies that that is the case in this instance. In its view the contested provisions do not satisfy the criteria which the Court has extracted from that provision, since they have the effect of impeding the importation of products to which colourants have been added ‘a priori’; in other words no evidence of the danger that their importation represents for public health is provided. On the other hand, the governments' reference to the decisions in Eyssen, Sandoz and van Bennekom are not relevant. The additives in those cases (niacin and vitamins) were not included in the Community list, whilst the case before the Court concerns two substances which appear in the Annex to the 1962 directive. In any event there is a breach of the principle of proportionality inasmuch as the extension of the authorization procedure to imported products seems excessive in relation to the objective pursued by the legislature. The same result could perfectly well be attained by requiring the importer who intends to market the product prepared with a colourant to inform the authorities of that fact. Indeed such a rule would permit those authorities to determine in the light of the eating habits and the presence on the market of foodstuffs containing the same additive, whether the importation of the product might lead consumers to ingest more than the acceptable daily intake. In any case such a procedure would be considerably less restrictive of trade. Mr Motte considers that the incompatibility of the Belgian provisions with Community law is clear from two further factors: (a) the conflict between the Royal Decree of 27 July 1978 and Article 32 of the EEC Treaty, which requires the Member States to refrain from making more restrictive measures existing at the date of the entry into force of the Treaty; and (b) the fact that it is impossible to regard the assessments carried out by the Belgian public health authorities concerning the necessity, value or suitability of the use of the additives as measures for the protection of public health justified under Article 36.