IT APPEARS FROM THE OBSERVATIONS SUBMITTED TO THE COURT BY THE BELGIAN GOVERNMENT THAT AT THE TIME NO REQUEST TO HAVE THAT COMBINATION ENTERED ON THE POSITIVE LIST OF ADDITIVES HAD BEEN MADE AND THAT AS A RESULT , THE BELGIAN AUTHORITIES HAD NOT HAD OCCASION TO DECIDE AS TO ITS INCLUSION ON THE LIST .
6 CONSEQUENTLY , THE COUR D ' APPEL ' S QUESTION SHOULD BE CONSTRUED AS SEEKING TO ESTABLISH NOT WHETHER THE COMMUNITY RULES MUST BE INTERPRETED AS PRECLUDING THE PROHIBITION OF THE USE OF INDIGOTIN AND COCHINEAL A RED IN THE PREPARATION OF NON-SMOKED FISH ROE , BUT WHETHER THOSE RULES MUST BE REGARDED AS PRECLUDING THE ADOPTION OF A NATIONAL LAW WHICH , EVEN FOR FOODSTUFFS IMPORTED FROM ANOTHER MEMBER STATE IN WHICH THEY ARE LAWFULLY MARKETED , REQUIRES THAT THE USE OF THE COLORANT IN QUESTION FOR THAT TYPE OF FOODSTUFF BE INCLUDED ON A NATIONAL POSITIVE LIST AND THAT ANY APPLICATION TO HAVE THAT USE INCLUDED ON THAT LIST MUST BE REFERRED TO A COMMITTEE OF EXPERTS IN ORDER TO OBTAIN 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 .
7 THE ACCUSED IN THE MAIN PROCEEDINGS , THE GOVERNMENTS OF BELGIUM , DENMARK , THE FEDERAL REPUBLIC OF GERMANY AND THE NETHERLANDS , AND THE COMMISSION HAVE SUBMITTED OBSERVATIONS TO THE COURT .
8 THE ACCUSED IN THE MAIN PROCEEDINGS CLAIMS THAT A RULE OF THAT KIND CONSTITUTES A MEASURE EQUIVALENT IN EFFECT TO A QUANTITATIVE RESTRICTION ON IMPORTS WITHIN THE MEANING OF THE PROVISIONS OF THE TREATY REGARDING THE FREE MOVEMENT OF GOODS . WHERE , AS IS THE CASE OF THE BELGIAN RULE IN QUESTION , IT WAS INTRODUCED AFTER THE ENTRY INTO FORCE OF THE EEC TREATY , IT IS CONTRARY TO THE FIRST PARAGRAPH OF ARTICLE 32 OF THAT TREATY , ACCORDING TO WHICH IN THEIR TRADE WITH ONE ANOTHER MEMBER STATES ARE TO REFRAIN FROM MAKING MORE RESTRICTIVE EXISTING QUOTAS AND MEASURES HAVING EQUIVALENT EFFECT . A MEASURE WHICH ESTABLISHES A GENERAL PROHIBITION FROM WHICH DEROGATION IS POSSIBLE ONLY AFTER AN ASSESSMENT NOT ONLY OF THE HARMFULNESS OF THE ADDITIVE BUT ALSO THE NECESSITY , VALUE AND SUITABILITY OF ITS USE IN THE FOODSTUFF IN QUESTION CANNOT BE JUSTIFIED UNDER ARTICLE 36 OF THE TREATY .
9 THE BELGIAN GOVERNMENT STRESSES THAT A NATIONAL RULE SUCH AS THAT IN QUESTION IS IN CONFORMITY WITH THE COUNCIL DIRECTIVE OF 23 OCTOBER 1962 ON THE APPROXIMATION OF THE RULES OF THE MEMBER STATES CONCERNING THE COLOURING MATTERS AUTHORIZED FOR USE IN FOODSTUFFS INTENDED FOR HUMAN CONSUMPTION ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1959-1962 , P . 279 ). ACCORDING TO ITS ARTICLE 5 THAT DIRECTIVE DOES NOT AFFECT NATIONAL RULES SPECIFYING WHICH FOODSTUFFS MAY BE COLOURED BY MEANS OF THE COLOURING MATTERS LISTED IN THE POSITIVE LISTS WHICH ARE ANNEXED TO THE DIRECTIVE .