The provisions of Directive 2002/46/EC of the European Parliament and of the Council of 10 June 2002 on the approximation of the laws of the Member States relating to food supplements and those of the TFEU relating to the free movement of goods must be interpreted as precluding legislation of a Member State, such as that at issue in the main proceedings, which does not provide for a procedure for the placing on the market of that Member State of food supplements whose content in nutrients exceeds the maximum daily doses set by that legislation and which are lawfully manufactured or marketed in another Member State.

The prohibition on measures having an effect equivalent to restrictions set out in Article 34 TFEU covers all commercial rules enacted by the Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Union trade (see, inter alia, judgments of 11 July 1974, Dassonville, 8/74, EU:C:1974:82, paragraph 74; of 5 March 2009, Commission v Spain, C‑88/07, EU:C:2009:123, paragraph 82, and of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 74). The legislation at issue in the main proceedings creates a barrier to trade within the European Union, since a food supplement whose nutrient content exceeds the maximum limits set by that legislation cannot be marketed in France, even if that food supplement is lawfully manufactured or marketed in another Member State. That legislation therefore constitutes a measure having an effect equivalent to a quantitative restriction for the purposes of Article 34 TFEU.

According to the Court’s case-law, rules of a Member State which prohibit the marketing, in that State, of foodstuffs whose content in nutrients exceeds the maximum amount set by those rules, such foodstuffs being lawfully manufactured and/or marketed in the another Member State, can be justified, as a measure having equivalent effect to a quantitative restriction within the meaning of Article 34 TFEU, in so far as they comply with the requirements of Article 36 TFEU, as interpreted by the Court (see, to that effect, judgment of 5 February 2004, Greenham and Abel, C‑95/01, EU:C:2004:71, paragraph 34).

First, such rules must make provision for a procedure enabling economic operators to obtain the authorisation to market food supplements including nutrients in doses exceeding those authorised. The procedure must be one which is readily accessible and can be completed within a reasonable time, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts (see, to that effect, judgments of 5 February 2004, Commission v France, C‑24/00, EU:C:2004:70, paragraph 26; of 5 February 2004, Greenham and Abel, C‑95/01, EU:C:2004:71, paragraph 35, and of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 81). Secondly, an application to obtain the authorisation to market those supplements may be refused by the competent national authorities only if those supplements pose a genuine risk to public health (see, to that effect, judgments of 5 February 2004, Commission v France, C‑24/00, EU:C:2004:70, paragraph 27; of 5 February 2004, Greenham and Abel, C‑95/01, EU:C:2004:71, paragraph 36, and of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 82).

Consequently, in so far as the legislation at issue in the main proceedings prohibits the marketing of food supplements whose content in nutrients exceeds the upper limits set by that legislation without providing for any procedure for the placing on the market of that type of food supplement, and that even if they are lawfully manufactured or marketed in another Member State, that legislation does not comply with the requirement referred to in paragraph 22 of the present judgment and cannot, therefore, be justified under Article 36 TFEU.

(see paras 18-23, 27, 28, operative part 1)