7.

The problem in this case, therefore, lies in ascertaining whether the contested rules can be justified in the light of the first sentence of Article 36, and in particular, whether they are proportionate to the requirement of health protection. In the first place, the possibility that residues of maleic hydrazide may not be present in foodstuffs treated with that substance, as the Commission has argued, must be ruled out. In reply to a question put to it by the Court, the Commission itself stated that for each combination of pesticide and foodstuff a lower limit is set for the purposes of analysis, which is defined as the minimum concentration of residue which can be identified, by a standard method of analysis, as being present in the product with a satisfactory degree of accuracy; the level of pesticide residues is regarded as zero where it falls below that limit. With regard to the level of maleic hydrazide residues in onion, the Commission stated that the limit is at present 1 mg per kg. Tests carried out in various countries have shown that, even after several months, the level of maleic hydrazide residues present in onions is in excess of the limit laid down. The Commission therefore comes to the conclusion that it is unlikely that onions treated with maleic hydrazide in accordance with accepted agricultural practice and marketed as fresh onions contain no residues of that pesticide in excess of the specified limit. Moroeover, I would point out that, in view of the present state of international scientific knowledge, doubts persist as to whether the pesticide under consideration is dangerous and, more particularly, as to the permissible level of residues of that pesticide in foodstuffs. It is true that, according to the studies hitherto carried out, the residue of maleic hydrazide present in onions treated with sodium or potassium salts is 10 mg. per kg. (Opinion of 12 July 1984 of the Scientific Committee on Pesticides), whilst the maximum quantity that maybe ingested daily is 0 to 1 mg per kg (1984 Report of the Joint Committee of FAO/WHO experts). However, as the German Government emphasizes on the basis of paragraph 13 of the Court's judgment in the Kaasfabriek Eyssen case and paragraph 19 of its judgment in the Sandoz case, those findings do not constitute a comprehensive and final assessment of that substance, in particular because the adoption of a maximum quantity that may be ingested daily does not mean that the consumption of minimal quantities is entirely harmless. That quantity has been calculated on the basis of experiments carried out on animals, the results of which are not automat5ically transferable to man. Furthermore, the maximum daily quantity permitted is based on an examination of the substance carried out in isolation. The effect of maleic hydrazide in conjunction with other substances present in foodstuffs, and in the environment, cannot be accurately assessed. Nor can it besaid that the contested system contravenes the principle of proportionality inasmuch as it fails to provide for the possibility of a review to take account of scientific progress. In that regard I would point out that: (a) as a matter of law the system allows for exceptions to the prohibition by means of administrative authorization (Article 6 of the Order of 20 July 1956) and (b) as a matter of fact, as the French Government has stated in reply to a question from the Court, the French Committee responsible for determining the toxic effects of pesticides used in agriculture delivered a favourable opinion on maleic hydrazide on 17 September 1985 and the competent authorities are at present considering the possibility of authorizing its use. The Commission's assertion is therefore without foundation. France's conduct appears to be in keeping with the obligation, imposed by the Court in its judgments in Heijn and Motte (paragraphs 18 and 20 respectively), to subject the assessment of the risks involved to a continuous review on the basis of the results achieved by international research institutions.