Judgments of the European Court of Justice in cases C-24/00 and C-95/01

The European Court of Justice (ECJ) has on February 5, 2004 issued its long awaited judgments in Cases C-24/00 Commission v French Republic (infringement procedure) and C-95/01 Public Ministry v John Greenham and Leonard Abel (preliminary ruling).

These cases concerned obstacles to the free movement of foodstuffs and food supplements with added nutrients that have been marketed in France without prior authorisation or in a quantity exceeding recommended daily allowances set down in France.

Within the infringement procedure (Case C-24/00), the Commission specifically alleged that French legislation failed to oblige competent authorities to establish in each case and for each product that the adopted prohibiting measures are necessary to protect public health.

In the other case (C-95/01), the question referred to the ECJ for a preliminary ruling concerned the interpretation under EU Law of such a legislation which does not in particular set a clear authorization procedure easily accessible to operators and does not allow for the processing of applications in a reasonable period of time.

These two judgements are in line with the landmark judgment of September 23, 2003, Commission v Kingdom of Denmark (case C-192/01) in which the Court clearly affirmed the principles and obligations with which Member States must comply and which have been recalled and applied to these specific cases. France has therefore no other choice but to comply with them, as stressed by the European Commission in its detailed opinions on the incompatibility with EU law of the two French draft regulations on food supplements.

In this recent case-law, the Court has once again recalled that although the Member States enjoy, in absence of harmonization and in case of persisting uncertainty in the current state of scientific research, broad discretion to establish the level of public health protection they wish to ensure and may, in this context, establish a prior authorisation procedure, they must however comply with certain conditions.

The Authorization Procedure

First, the authorization procedure established must be easily accessible for the operators and completed in a reasonable period of time (90 days); unfavourable decisions must be open to challenge before courts. Such a procedure must be laid down in a measure of general application, which is binding on the authorities. In this regard, the Court held in cases C-24/00 and C-95/01 that the French procedure does not...

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