COMMUNITY AND IN PARTICULAR ARTICLE 36 OF THE TREATY .
2 THAT QUESTION WAS RAISED IN THE COURSE OF CRIMINAL PROCEEDINGS INSTITUTED AGAINST LEON MOTTE FOR HAVING IMPORTED INTO BELGIUM POTTED BLACK AND RED LUMPFISH ROE , COLOURED BY THE ADDITION OF INDIGOTIN AND COCHINEAL A RED RESPECTIVELY , SUBSTANCES WHICH WERE NOT AUTHORIZED UNDER THE BELGIAN RULES FOR THAT TYPE OF FOODSTUFF .
3 THE COUR D ' APPEL FOUND THAT THE PRODUCT IN QUESTION HAD BEEN IMPORTED FROM THE FEDERAL REPUBLIC OF GERMANY , WHERE THE TWO COLOURANTS WERE AUTHORIZED FOR THE PREPARATION OF POTTED FISH ROE , AND THAT THE SAME COLOURANTS WERE ALSO AUTHORIZED IN BELGIUM FOR USE IN A NUMBER OF OTHER FOODSTUFFS . THE COUR D ' APPEL THEN CONSIDERED THE POSSIBILITY THAT THE BELGIAN RULES MIGHT CONSTITUTE A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES WITHIN THE MEANING OF THE LAST SENTENCE OF ARTICLE 36 OF THE EEC TREATY . IT TOOK THE VIEW THAT A QUESTION OF PRINCIPLE WAS INVOLVED REQUIRING THE INTERPRETATION OF PROVISIONS OF THE TREATY AND THEREFORE REFERRED THE FOLLOWING QUESTION TO THE COURT FOR A PRELIMINARY RULING :
' IS THE PROHIBITION ON THE USE OF INDIGOTIN AND COCHINEAL A RED COLOURANT IN THE PREPARATION OF NON-SMOKED FISH ROE , LAID DOWN BY THE ROYAL DECREE OF 27 JULY 1978 , A MEASURE EQUIVALENT IN EFFECT TO A QUANTITATIVE RESTRICTION ON THE FREE MOVEMENT OF GOODS?
'
4 IT APPEARS FROM THE PAPERS BEFORE THE COURT THAT THE ROYAL DECREE IN QUESTION ( MONITEUR BELGE ( BELGIAN OFFICIAL GAZETTE ) OF 20 OCTOBER 1978 , P . 12523 ) ESTABLISHES THE LIST OF AUTHORIZED ADDITIVES FOR FOODSTUFFS AND THAT IT WAS ADOPTED PURSUANT TO THE LAW OF 24 JANUARY 1977 ON CONSUMER HEALTH PROTECTION IN RELATION TO FOODSTUFFS AND OTHER PRODUCTS ( MONITEUR BELGE OF 8 APRIL 1977 , P . 4501 ). THAT LAW MAKES IT A CRIMINAL OFFENCE TO PARTICIPATE IN THE PRODUCTION OR MARKETING OF FOODSTUFFS WHICH DO NOT CONFORM TO THE RULES WHICH IT LAYS DOWN AND PROVIDES THAT THE LIST OF THE ADDITIVES WHICH MAY BE USED IN FOODSTUFFS IS TO BE PRESCRIBED BY THE KING . ACCORDING TO ARTICLE 4 ( 2 ) OF THE LAW , ANY APPLICATION TO HAVE AN ADDITIVE ENTERED ON THAT LIST IS TO BE SUBMITTED TO THE CONSEIL SUPERIEUR D ' HYGIENE ( PUBLIC HEALTH BOARD ), WHICH ISSUES AN OPINION ON THE HARMFULNESS OF THE ADDITIVE , THE DEGREE OF THE HUMAN ORGANISM ' S TOLERANCE OF IT , AND THE NECESSITY , VALUE AND SUITABILITY OF ITS USE .
5 IN ACCORDANCE WITH THOSE PROVISIONS , THE ROYAL DECREE OF 27 JULY 1978 AUTHORIZES THE ADDITION OF THE COLOURANTS AT ISSUE TO CERTAIN FOODSTUFFS NOT INCLUDING NON-SMOKED FISH ROE . AT THE SAME TIME IT AUTHORIZES THE ADDITION TO SUCH FISH ROE OF CERTAIN OTHER COLOURANTS . THE DECREE DOES NOT AUTHORIZE THE ADDITION OF THE COLORANTS IN QUESTION TO NON-SMOKED FISH ROE .