Free Movement of Foodstuffs: Fundamental Recent Contributions by the European Court of Justice to the Principle of Mutual Recognition

• Author: Keller & Heckman
• Position: Abogados

The principle of mutual recognition has been developed since the Court of Justice's famous "Cassis de Dijon" and subsequent judgements. The principle of mutual recognition, that is based on Articles 28 and 30 of the EC Treaty means that, in any sectors which have not been subject to harmonisation measures at Community level or which are covered by minimal or optional harmonisation measures, which in the food sector covers essentially, the use of processing aids, the use of flavouring substances, the use of nutrition and health claims, the addition of vitamins and minerals to foodstuffs, the marketing of food supplements containing substances other than vitamins and minerals, and the levels of use for vitamins and minerals in food supplements, every Member State is obliged to accept on its territory products which are legally produced and marketed in another Community Member State. Member States may only challenge the application of the principle in cases where, in particular, public safety, health or the protection of the environment are at stake; in these cases, furthermore, any measures taken must be compatible with the principles of necessity and proportionality.

The principle means in practical terms that Member State s must allow the placing on their markets of any product lawfully manufactured and/or marketed in another Member State, unless a Member State has technical or scientific proof that the product constitutes a risk for human health, safety or the environment.

Coming soon after its landmark ruling of 23 September, 2003 in case C-192/01[1] (the Danish case) in which it clearly re-affirmed, in plenary, the principles and obligations which Member States have to respect when putting forward the protection of public health and/or the precautionary principle to establish national legislation or practices restricting the free movement of goods, the European Court of Justice (ECJ) has now, in its long awaited rulings in Cases C-24/00[2] and C-95/01[3] , recalled and applied those principles and obligations to the specific situation of the foodstuffs referred to it (the French cases).

Specifically, the ECJ has:

- Reaffirmed that although national pre-market authorization procedure are not in principle contrary to the EC Treaty, they must fulfil certain conditions to be compatible with the EC Treaty; [4]

- Ruled [5] that France failed to establish that the marketing of certain foodstuffs, such as food supplements and dietary products containing L-tartrate and L-carnitine, and confectionery drinks to which certain nutrients have been added, entails a real risk for public health and thus has failed to fulfil its obligations deriving from the EC Treaty;

- Referred back to the French courts[6] the task of appraising the compliance of the French requirements applied to food supplements containing the coenzyme Q10 or to which vitamins have been added in quantities exceeding the safety limits set by the French Scientific body or the recommended daily intake.

However, the impact of those recent rulings is fundamental and goes well beyond the specific products it ruled about.

First, it reinforces and makes clearer the rules for the day-to-day application of the principle of mutual recognition, notably as regards the conditions under which the Member States may put forward the...