European Commission v French Republic.

• Jurisdiction: European Union
• Celex Number: 62008CC0333
• ECLI: ECLI:EU:C:2009:523
• Court: Court of Justice (European Union)
• Date: 08 September 2009
• Procedure Type: Recours en constatation de manquement - fondé
• Docket Number: C-333/08

OPINION OF ADVOCATE GENERAL

MAZÁK

delivered on 8 September 2009¹(1)

Case C‑333/08

Commission of the European Communities

v

French Republic

(Free movement of goods – Quantitative restrictions on imports – Measures having equivalent effect – Prior authorisation scheme for processing aids and foodstuffs in the preparation of which such aids were used from other Member States – No justification and/or failure to comply with the principle of proportionality)

1. By its action, the Commission of the European Communities seeks a declaration that, by laying down, for processing aids and foodstuffs whose preparation involved the use of processing aids from other Member States where they are lawfully manufactured and/or marketed, a prior authorisation scheme not complying with the principle of proportionality, the French Republic has failed to fulfil its obligations under Article 28 EC.

I – Legal framework

A –Community law

2. Processing aids are not, as such, subject to horizontal harmonisation at Community level. Community law only harmonises certain categories of processing aids (2) and the use of processing aids in the manufacture of certain foodstuffs. (3)

3. National legislation on processing aids falls under food law and must therefore comply with the requirements under Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. (4) That regulation sets out, among the general principles of food law, the principle of risk analysis and the precautionary principle.

B –French legislation concerning processing aids

4. The legal regime on processing aids was established by 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, as amended by Decree No 73‑138 of 12 February 1973, and Decree No 99-242 of 26 March 1999 (‘the 1912 Decree’).

5. The 1912 Decree is based on the system of prior authorisation. That means that the marketing of goods and foodstuffs intended for human consumption is prohibited where chemical products (5) are added to them or where chemical products are used in their preparation. That prohibition does not apply to chemical products whose use has been declared lawful by the orders taken pursuant to the 1912 Decree.

6. A series of orders was adopted pursuant to the 1912 Decree. In general, those orders establish the authorised substance and the use and the foodstuff for which it is authorised. They lay down criteria on purity and other characteristics with which the processing aids must comply, and set, in addition to conditions for the use of the processing aid concerned in the manufacturing process, the maximum residual content of the processing aids used in the final foodstuff. Only four of those orders contain a mutual recognition clause.

7. The 1912 Decree was repealed by Decree No 2001-725 of 31 July 2001 on processing aids which may be used in the manufacture of foodstuffs intended for human consumption (‘the 2001 Decree’). However, that decree did not enter into force until 2 December 2006.

8. Article 1 of the 2001 Decree contains a definition of ‘processing aids’ and establishes the material scope of that decree. According to that definition, ‘processing aids’ means:

‘any substance not consumed as a food ingredient by itself, intentionally used in the processing of raw materials, foodstuffs or their ingredients, to fulfil a given technological purpose during treatment or processing and which may result in the unintentional but technically unavoidable presence of residues of the substance or its derivatives in the final product, provided that those residues do not present any health risk and do not have any technological effect on the finished product’.

9. The 2001 Decree is based, like the 1912 Decree, on the system of prior authorisation of processing aids. Article 2 of the 2001 Decree provides that the Ministers for Consumer Affairs, Agriculture, Health and Industry are to adopt an order which fixes, first, the list of processing aids whose use is authorised and, where appropriate, the conditions of their use and the permitted residues, secondly, the purity and identity criteria with which they must comply, and, thirdly, the rules on the substances used as support or dilution products.

10. Article 3 of the 2001 Decree concerns the possibility of amending the order provided for in Article 2 thereof. It is worded as follows:

‘Applications to amend or add to the provisions of the order referred to in Article 2 can be made by any natural or legal person. They are to be addressed to the Directorate General for Competition Policy, Consumer Affairs and Fraud Control (Direction générale de la concurrence, de la consommation et de la répression des fraudes), together with the file necessary for their investigation, with a view to their transmission to the French Food Safety Agency (Agence française de sécurité sanitaire des aliments; “AFFSA”).

An order of the Ministers for Consumer Affairs, Agriculture, Health, and Industry shall determine the rules concerning the preparation and content of files.

When the file is complete, the Directorate General for Competition Policy, Consumer Affairs and Fraud Control shall acknowledge receipt thereof and ensure its transmission to AFFSA. The Agency has a period of four months from receipt of the application to issue an opinion.

The Directorate General for Competition Policy, Consumer Affairs and Fraud Control shall notify the applicant of the opinion of AFFSA and the reasoned decision of the Minister based on that opinion. Such notification shall be made within one month following the adoption of the opinion.’

11. Article 6 of the 2001 Decree provides that it is prohibited to hold, exhibit for sale, offer for sale, sell, or distribute free of charge processing aids which do not meet the provisions of Article 2 of the 2001 Decree and foodstuffs intended for human consumption in the preparation of which processing aids have been used which do not meet the provisions of Article 2 of the 2001 Decree.

12. However, Article 6 of the 2001 Decree sets out a mutual recognition clause which is worded as follows:

‘However, those provisions shall not hinder the principle of the free movement:

(a) of the foodstuffs referred to in paragraph (1) of this article from other Member States of the European Community, or other contracting parties to the agreement on the European Economic Area, where those States have put in place a method for evaluating the risks presented by the use of processing aids, ensuring an equivalent level of safety to that guaranteed by this decree;

(b) of processing aids from other Member States of the European Community, or other contracting parties to the agreement on the European Economic Area, with purity criteria different from those set by the order referred to in Article 2, where those criteria have been fixed by one of those States, or have been subject to a favourable opinion of a competent body in one of those States, officially published.’

13. Pursuant to Article 7 thereof, the 2001 Decree entered into force only on the date on which the order referred to in Article 2 thereof was published. Since that order, namely the order relating to the use of processing aids in the manufacture of certain foodstuffs (‘the 2006 order’), was adopted on 19 October 2006 and published in the Journal officiel de la République française (Official Journal of the French Republic) on 2 December 2006, the 2001 Decree entered into force on 2 December 2006.

II – Pre-litigation procedure and forms of order sought

14. Considering that the French Republic had failed to fulfil its obligations under Article 28 EC by imposing a prior authorisation scheme on processing aids and foodstuffs, where their manufacturing process used processing aids, from other Member States where they were legally manufactured and/or marketed, and, in the alternative, by failing to establish, for the purpose of obtaining authorisations for the use of processing aids, a procedure which was sufficiently clear, easily accessible and transparent, and met the requirements of legal certainty, the Commission sent a letter of formal notice to the French Republic (6) on 18 October 2005 in accordance with Article 226 EC.

15. Not being...