5.

The Court has consistently held that, in the absence of harmonization of national legislation, it is for the Member States to decide what degree of protection they intend to assure to secure protection of the life and health of humans. ( 6 ) However, in so deciding they must take account of requirements relating to the free movement of goods within the Community. As far as the use of additives in foodstuffs is concerned, a field in which there has as yet been only partial harmonization, ( 7 ) the Court has elucidated that important restriction inter alia in the judgment in Case 304/84 Ministère Public v Muller. ( 8 ) The relevance of the grounds set out by the Court justifies lengthy quotation: ‘20 It is necessary to point out first of all that the parties are agreed that, although the substances referred to in Directive 74/329 are not harmful in themselves, their consumption beyond a certain level may create a risk to human health. That is moreover confirmed by the fact that the Community legislature has proposed that the foodstuffs to which the substances may be added and the maximum acceptable intakes should be determined during a second stage in the approximation of national laws. It appears from the documents before the Court that in the present state of scientific research there is uncertainty as to the critical thresholds of harmfulness since such thresholds vary according to the quantities of additives absorbed with all the food eaten and thus depend to a large extent on eating habits in the various Member States. 21 As the Court has held, inter alia in its judgment of 14 July 1983 in Case 147/82 Sandoz [1983] ECR 2445 and of 10 January 1985 in Case 247/84 Motte in such circumstances it is for the Member States, in the absence of harmonization, to decide what degree of protection of the health and life of humans they intend to assure in the light of the specific eating habits of their own population, having regard, however, to the requirements of the free movement of goods within the Community. 22 It must be observed that in Directive 74/329, as in the other basic directives on food additives, conceived along similar lines, great prudence is shown in regard to the potential harmfulness of such substances, the underlying principle being that the uncontrolled consumption of additives with food should be restricted as far as possible. That principle, which must be regarded as meeting a legitimate aim of health policy, is applied in such a way that only additives for which there is a real need, particularly of a technological or economic nature, are allowed in foodstuffs for humans. 23 It follows that, as it stands at present, Community law does not prevent a Member State from prohibiting the marketing of foodstuffs from other Member States to which such substances have been added. However, the principle of proportionality which underlies the last sentence of Article 36 of the Treaty requires that any such prohibition be restricted to what is necessary to attain the legitimate aim of protecting health. Consequently, authorizations to market such products should be granted when they are compatible with that aim. 24 It is for the Member States to consider, in the context of factual assessments which they must undertake in that regard, whether the marketing of foodstuffs containing additives may present a risk to public health and whether there is a real need for the additives in the particular foodstuffs. In applying those criteria they must take account of the results of international scientific research and in particular of the work of the Community's Scientific Committee for Food viewed in the light of the eating habits prevailing in the importing Member State. 25 It is for the competent national authorities to demonstrate in each case that their rules are necessary to give effective protection to the interests referred to in Article 36 of the Treaty and, in particular, to show that the marketing of the product in question creates a risk to public health and, as the case may be, that the addition of the substances in question does not meet a real need.’