Commission of the European Communities v Federal Republic of Germany.
Date: 1987-03-12
22 IN THE FIRST PLACE, THE COMMISSION IDENTIFIED THE SUBSTANCE OF THE INFRINGEMENT FROM THE OUTSET IN SO FAR AS FROM THE BEGINNING OF THE PRE-LITIGATION PROCEDURE IT CHALLENGED THE PROHIBITION ON MARKETING BEER IMPORTED INTO THE FEDERAL REPUBLIC OF GERMANY FROM OTHER MEMBER STATES WHICH IS NOT BREWED IN ACCORDANCE WITH THE RULES IN FORCE IN THE FEDERAL REPUBLIC OF GERMANY . IT REFERRED TO ARTICLE 9 OF THE BIERSTEUERGESETZ ONLY IN ORDER TO SPECIFY THOSE RULES MORE PRECISELY . AS THE GERMAN GOVERNMENT STATED, THE SCOPE OF ARTICLE 9 IS NOT RESTRICTED TO RAW MATERIALS BUT ALSO COVERS ADDITIVES . BESIDES, THE ARGUMENTS DEVELOPED BY THE COMMISSION DURING THE PRE-LITIGATION PROCEDURE TO THE EFFECT THAT AN ABSOLUTE BAN ON ADDITIVES IS INAPPROPRIATE SHOW THAT IT INTENDED ITS ACTION TO COVER THAT PROHIBITION .
27 ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT ( ABOVE ALL, THE JUDGMENT OF 11 JULY 1974 IN CASE 8/74 PROCUREUR DU ROI V DASSONVILLE (( 1974 )) ECR 837 ) THE PROHIBITION OF MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS UNDER ARTICLE 30 OF THE EEC TREATY COVERS "ALL TRADING RULES ENACTED BY MEMBER STATES WHICH ARE CAPABLE OF HINDERING, DIRECTLY OR INDIRECTLY, ACTUALLY OR POTENTIALLY, INTRA-COMMUNITY TRADE ".
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 AS THERE ARE UNCERTAINTIES AT THE PRESENT STATE OF SCIENTIFIC RESEARCH 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, HAVING REGARD HOWEVER TO THE REQUIREMENTS OF THE FREE MOVEMENT OF GOODS WITHIN THE COMMUNITY ".
46 IT SHOULD BE POINTED OUT THAT IT MUST BE OPEN TO TRADERS TO CHALLENGE BEFORE THE COURTS AN UNJUSTIFIED FAILURE TO GRANT AUTHORIZATION . WITHOUT PREJUDICE TO THE RIGHT OF THE COMPETENT NATIONAL AUTHORITIES OF THE IMPORTING MEMBER STATE TO ASK TRADERS TO PRODUCE THE INFORMATION IN THEIR POSSESSION WHICH MAY BE USEFUL FOR THE PURPOSE OF ASSESSING THE FACTS, IT IS FOR THOSE AUTHORITIES TO DEMONSTRATE, AS THE COURT HELD IN ITS JUDGMENT OF 6 MAY 1986 IN THE MULLER CASE, CITED ABOVE, THAT THE PROHIBITION IS JUSTIFIED ON GROUNDS RELATING TO THE PROTECTION OF THE HEALTH OF ITS POPULATION .
51 IT MUST BE EMPHASIZED THAT MERE REFERENCE TO THE FACT THAT BEER CAN BE MANUFACTURED WITHOUT ADDITIVES IF IT IS MADE FROM ONLY THE RAW MATERIALS PRESCRIBED IN THE FEDERAL REPUBLIC OF GERMANY DOES NOT SUFFICE TO PRECLUDE THE POSSIBILITY THAT SOME ADDITIVES MAY MEET A TECHNOLOGICAL NEED . SUCH AN INTERPRETATION OF THE CONCEPT OF TECHNOLOGICAL NEED, WHICH RESULTS IN FAVOURING NATIONAL PRODUCTION METHODS, CONSTITUTES A DISGUISED MEANS OF RESTRICTING TRADE BETWEEN MEMBER STATES .
52 THE CONCEPT OF TECHNOLOGICAL NEED MUST BE ASSESSED IN THE LIGHT OF THE RAW MATERIALS UTILIZED AND BEARING IN MIND THE ASSESSMENT MADE BY THE AUTHORITIES OF THE MEMBER STATE WHERE THE PRODUCT WAS LAWFULLY MANUFACTURED AND MARKETED . ACCOUNT MUST ALSO BE TAKEN OF THE FINDINGS OF INTERNATIONAL SCIENTIFIC RESEARCH AND IN PARTICULAR THE WORK OF THE COMMUNITY' S SCIENTIFIC COMMITTEE FOR FOOD, THE CODEX ALIMENTARIUS COMMITTEE OF THE FAO AND THE WORLD HEALTH ORGANIZATION .