FOREGOING THAT BY APPLYING THE RULES ON DESIGNATION IN ARTICLE 10 OF THE BIERSTEUERGESETZ TO BEERS IMPORTED FROM OTHER MEMBER STATES WHICH WERE MANUFACTURED AND MARKETED LAWFULLY IN THOSE STATES THE FEDERAL REPUBLIC OF GERMANY HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 30 OF THE EEC TREATY .
THE ABSOLUTE BAN ON THE MARKETING OF BEERS CONTAINING ADDITIVES
38 IN THE COMMISSION' S OPINION THE ABSOLUTE BAN ON THE MARKETING OF BEERS CONTAINING ADDITIVES CANNOT BE JUSTIFIED ON PUBLIC-HEALTH GROUNDS . IT MAINTAINS THAT THE OTHER MEMBER STATES CONTROL VERY STRICTLY THE UTILIZATION OF ADDITIVES IN FOODSTUFFS AND DO NOT AUTHORIZE THE USE OF ANY GIVEN ADDITIVE UNTIL THOROUGH TESTS HAVE ESTABLISHED THAT IT IS HARMLESS . IN THE COMMISSION' S VIEW, THERE SHOULD BE A PRESUMPTION THAT BEERS MANUFACTURED IN OTHER MEMBER STATES WHICH CONTAIN ADDITIVES AUTHORIZED THERE REPRESENT NO DANGER TO PUBLIC HEALTH . THE COMMISSION ARGUES THAT IF THE FEDERAL REPUBLIC OF GERMANY WISHES TO OPPOSE THE IMPORTATION OF SUCH BEERS THEN IT BEARS THE ONUS OF PROVING THAT SUCH BEERS ARE A DANGER TO PUBLIC HEALTH . THE COMMISSION CONSIDERS THAT IN THIS CASE THAT BURDEN OF PROOF HAS NOT BEEN DISCHARGED . IN ANY EVENT, THE RULES ON ADDITIVES APPLYING TO BEER IN THE FEDERAL REPUBLIC OF GERMANY ARE DISPROPORTIONATE IN SO FAR AS THEY COMPLETELY PRECLUDE THE USE OF ADDITIVES WHEREAS THE RULES FOR OTHER BEVERAGES, SUCH AS SOFT DRINKS, ARE MUCH MORE FLEXIBLE .
39 FOR ITS PART, THE GERMAN GOVERNMENT CONSIDERS THAT IN VIEW OF THE DANGERS RESULTING FROM THE UTILIZATION OF ADDITIVES WHOSE LONG-TERM EFFECTS ARE NOT YET KNOWN AND IN PARTICULAR OF THE RISKS RESULTING FROM THE ACCUMULATION OF ADDITIVES IN THE ORGANISM AND THEIR INTERACTION WITH OTHER SUBSTANCES, SUCH AS ALCOHOL, IT IS NECESSARY TO MINIMIZE THE QUANTITY OF ADDITIVES INGESTED . SINCE BEER IS A FOODSTUFF OF WHICH LARGE QUANTITIES ARE CONSUMED IN GERMANY, THE GERMAN GOVERNMENT CONSIDERS THAT IT IS PARTICULARLY DESIRABLE TO PROHIBIT THE USE OF ANY ADDITIVE IN ITS MANUFACTURE, ESPECIALLY IN SO FAR AS THE USE OF ADDITIVES IS NOT TECHNOLOGICALLY NECESSARY AND CAN BE AVOIDED IF ONLY THE INGREDIENTS LAID DOWN IN THE BIERSTEUERGESETZ ARE USED . IN THOSE CIRCUMSTANCES, THE GERMAN RULES ON ADDITIVES IN BEER ARE FULLY JUSTIFIED BY THE NEED TO SAFEGUARD PUBLIC HEALTH AND DO NOT INFRINGE THE PRINCIPLE OF PROPORTIONALITY .
40 IT IS NOT CONTESTED THAT THE PROHIBITION ON THE MARKETING OF BEERS CONTAINING ADDITIVES CONSTITUTES A BARRIER TO THE IMPORTATION FROM OTHER MEMBER STATES OF BEERS CONTAINING ADDITIVES AUTHORIZED IN THOSE STATES, AND IS TO THAT EXTENT COVERED BY ARTICLE 30 OF THE EEC TREATY . HOWEVER, IT MUST BE ASCERTAINED WHETHER IT IS POSSIBLE TO JUSTIFY THAT PROHIBITION UNDER ARTICLE 36 OF THE TREATY ON GROUNDS OF THE PROTECTION OF HUMAN HEALTH .
41 THE COURT HAS CONSISTENTLY HELD ( IN PARTICULAR IN THE JUDGMENT OF 14 JULY 1983 IN CASE 174/82 SANDOZ BV (( 1983 )) ECR 2445 ) THAT "IN SO FAR