Commission of the European Communities v French Republic.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Macken
• ECLI: ECLI:EU:C:2004:70
• Date: 05 February 2004
• Docket Number: C-24/00
• Procedure Type: Recurso por incumplimiento – fundado

Case C-24/00


Commission of the European Communities
v
French Republic

«(Failure of a Member State to fulfil obligations – Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) – National legislation exhaustively listing the nutrients which may be added to foodstuffs – Measures having equivalent effect – Justification – Public health – Consumer protection – Proportionality)»

Opinion of Advocate General Mischo delivered on 26 June 2001

Judgment of the Court (Sixth Chamber), 5 February 2004

Summary of the Judgment

1..

Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation making the addition of nutrients to foodstuffs subject to authorisation – Not permissible in the absence of a simplified procedure

(EC Treaty, Art. 30 (now, after amendment, Art. 28 EC))

2..

Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation hindering the marketing of foodstuffs enriched with nutrients – Not permissible – Justification – Protection of public health – Not justified without establishing a real risk

(EC Treaty, Arts 30 and 36 (now, after amendment, Arts 28 EC and 30 EC))

1.

A Member State which does not provide for a simplified procedure for having included on the national list of authorised nutrients those added to foodstuffs for daily consumption and foodstuffs intended for particular nutritional uses which are lawfully manufactured and/or marketed in other Member States fails to fulfil its obligations under Article 30 of the Treaty (now, after amendment, Article 28 EC). The procedure must be one which is readily accessible and can be completed within a reasonable time, and, if it leads to a refusal, the decision of refusal must be open to challenge before the courts. see paras 26, 76, operative part

2.

A Member State which hinders the marketing on its territory of certain foodstuffs, such as food supplements and dietary products containing the substances L-tartrate and L-carnitine, and confectionery and drinks to which certain nutrients have been added, without establishing that the marketing of such foodstuffs entails a real risk for public health, fails to fulfil its obligations under Article 30 of the Treaty (now, after amendment, Article 28 EC). While Community law does not, in principle, preclude legislation of a Member State which prohibits, save with prior authorisation, possession with a view to sale or the putting on sale of foodstuffs intended for human consumption where nutrients other than those whose addition is lawful under the said legislation have been added thereto, since it is for the Member States, in the absence of harmonisation and to the extent that there is still uncertainty in the current state of scientific research, to decide on the level of protection of human health and life they wish to ensure, that discretion must nevertheless be exercised in compliance with the principle of proportionality. It is, furthermore, for the national authorities to show in each case, in the light of national nutritional habits and in the light of the results of international scientific research, that their rules are necessary to give effective protection to the interests referred to in Article 36 of the Treaty (now, after amendment, Article 30 EC) and, in particular, that the marketing of the products in question poses a real risk to public health. see paras 49, 51-53, 76, operative part

JUDGMENT OF THE COURT (Sixth Chamber)
5 February 2004 (1)

((Failure of a Member State to fulfil obligations – Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC) – National legislation exhaustively listing the nutrients which may be added to foodstuffs – Measure having equivalent effect – Justification – Public health – Consumer protection – Proportionality))

In Case C-24/00, Commission of the European Communities, represented by R.B. Wainwright and O. Couvert-Castéra, acting as Agents, with an address for service in Luxembourg,

applicant,

v

French Republic, represented initially by R. Abraham and R. Loosli-Surrans and subsequently by J.-F. Dobelle and R. Loosli-Surrans, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for a declaration that:

─

by failing to adopt legislation ensuring the free movement of foodstuffs for daily consumption and foodstuffs intended for particular nutritional uses, which are lawfully manufactured and/or marketed in other Member States but contain additives (such as vitamins, minerals and other ingredients) not provided for under French legislation;

─

by failing to provide for a simplified procedure for having a substance included on the national list of authorised additives, which is necessary if the above foodstuffs are to be marketed in France;

─

by hindering the marketing in France of the above foodstuffs without establishing that their marketing poses a risk to public health, the French Republic has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC),

THE COURT (Sixth Chamber),,

composed of: V. Skouris, acting for the President of the Sixth Chamber, C. Gulmann, J.N. Cunha Rodrigues, R. Schintgen and F. Macken (Rapporteur), Judges, Advocate General: J. Mischo,
Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 31 May 2001, at which the Commission was represented by R.B. Wainwright and J. Adda, acting as Agent, and the French Republic by R. Loosli-Surrans,

after hearing the Opinion of the Advocate General at the sitting on 26 June 2001,

gives the following

Judgment

1

By application lodged at the Court Registry on 27 January 2000, the Commission of the European Communities brought an action under Article 226 EC for a declaration that,

─

by failing to adopt legislation ensuring the free movement of foodstuffs for daily consumption and foodstuffs intended for particular nutritional uses which are lawfully manufactured and/or marketed in other Member States but contain additives (such as vitamins, minerals and other ingredients) not provided for under French legislation;

─

by failing to provide for a simplified procedure for having a substance included on the national list of authorised additives, which is necessary if the above foodstuffs are to be marketed in France;

─

by hindering the marketing in France of the above foodstuffs without establishing that their marketing poses a risk to public health, the French Republic has failed to fulfil its obligations under Article 30 of the EC Treaty (now, after amendment, Article 28 EC).

2

Additives is to be understood as meaning nutrients such as vitamins, minerals, amino acids and other nitrogenous compounds.

Legal background

Community legislation

3

It is common ground that on the date relevant to this action, that is, at the end of the period prescribed by the Commission's reasoned opinion of 26 October 1998, there were no provisions of Community legislation laying down the conditions under which nutrients such as vitamins and minerals could be added to foodstuffs for daily consumption.

4

As regards foodstuffs intended for particular nutritional uses, some are now covered by directives adopted by the Commission under Council Directive 89/398/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to foodstuffs intended for particular nutritional uses (OJ 1989 L 186, p. 27). National legislation

5

The French legislation applicable to the marketing of food supplements and foodstuffs for daily consumption fortified with vitamins, minerals and other nutrients such as amino acids is the Decree of 15 April 1912 laying down administrative regulations for implementing the Law of 1 August 1905 to prevent deception in the sale of goods and adulteration of foodstuffs relating to victuals and particularly meat, prepared meat products, fruit, vegetables, fish and preserved foods.

6

Article 1 of the Decree, as amended by Decree No 73-138 of 12 February 1973 (JORF of 15 February 1973, p. 1728), provides: It shall be an offence to possess with a view to sale, to put on sale or to sell any goods or foodstuffs intended for human consumption to which chemical products have been added other than those whose use has been declared lawful by orders made jointly by the Minister for Agriculture and Rural Development, the Minister for the Economy and Finance, the Minister for Industrial and Scientific Development and the Minister for Public Health, on the advice of the Conseil supérieur d'hygiène publique de France (French Public Health Authority the CSHPF) and the Académie nationale de médecine (National Academy of Medicine).

7

Article 1 of Decree No 91-827 of 29 August 1991 on foodstuffs intended for particular nutritional uses (JORF of 31 August 1991, p. 11424) provides: Foodstuffs are regarded as being intended for particular nutritional uses if, as a result of their particular composition or of a particular process in their manufacture, they are clearly different from foodstuffs for daily consumption, are suitable for the stated nutritional purpose and are marketed in such a way as to indicate that they fulfil that purpose.

8

Article 3 of the same decree reads as follows: Joint orders made by the ministers responsible for consumer affairs, agriculture and health after obtaining the opinion of the [CSHPF] shall determine:

(a)

The list and the conditions...