EC Commission v. Kingdom of Denmark (C-192/01)

• Author: Keller & Heckman LLP
• Position: Abogados

MEMORANDUM

TO : Clients and Interested Parties

DATE : October 3, 2003

RE : European Court of Justice – Case Law Brief

EC Commission v. Kingdom of Denmark (C-192/01) of the 23^rd September 2003

The ECJ has delivered its judgment in plenary session on 23 September 2003 in an action launched by the EC Commission against Denmark challenging the compatibility under Article 28 of the EC Treaty of its ban on marketing fortified foodstuffs unless a nutritional need is demonstrated. ¹

In its judgment, the ECJ confirmed the EFTA Court ruling of 5 April 2001 in case E-3/00 against Norway, i.e. that absence of nutritional need cannot by itself justify a ban and that each restriction on the marketing of imported fortified foods must be justified, on a case-by- case basis, by scientific evidence. The Court condemns Denmark for having failed to comply with these requirements of identification and assessment of the health risks, case-by-case, of the effects of the addition of nutrients to food. Regarding fortified foods, this precedent is important:

(i) pending harmonisation of fortified foods, in strengthening mutual recognition which so far proved to be ineffective; &

(ii) in the ongoing EU discussions for harmonisation of this sector.

Importantly also, the interest of this jurisprudence goes beyond the sector of fortified foods and this precedent could be potentially used in all areas where Member States put forward the protection of human health or the precautionary principle to establish national legislation or practice restricting the free movement of goods.

What was the case about? The Commission challenged Danish restrictive measures justified by absence of nutritional need

Danish legislation prohibits the marketing of foodstuffs with added vitamins and minerals unless a pre-market authorization is granted. In practice, the granting of such authorization is in particular subject to the demonstration that the addition of vitamins and minerals responds to a nutritional need in the Danish population. The EC Commission took legal action against Denmark on grounds that this administrative practice impedes the free movement of fortified foods while Danish authorities provided no scientific justification of a risk to human health. It particularly argued that “absence of need” is not a valid justification to restrict trade under Article 30 of the EC and that the fact that there is a specific risk associated with the ingestion of certain vitamins...