CJEC, 5th chamber, December 10, 1985, No 247-84

THE COURT (fifth chamber)

1 By a judgment of 26 september 1984, which was received at the court on 16 october 1984, the Cour d'appel, brussels, referred to the court for a preliminary ruling under article 177 of the eec treaty a question on the interpretation of the provisions of the eec treaty concerning the free movement of goods within the community and in particular article 36 of the treaty.

2 That question was raised in the course of criminal proceedings instituted against leon Motte for having imported into belgium potted black and red lumpfish roe, coloured by the addition of indigotin and cochineal a red respectively, substances which were not authorized under the belgian rules for that type of foodstuff.

3 The Cour d'appel found that the product in question had been imported from the federal republic of germany, where the two colourants were authorized for the preparation of potted fish roe, and that the same colourants were also authorized in belgium for use in a number of other foodstuffs. The Cour d'appel then considered the possibility that the belgian rules might constitute a disguised restriction on trade between member states within the meaning of the last sentence of article 36 of the eec treaty. It took the view that a question of principle was involved requiring the interpretation of provisions of the treaty and therefore referred the following question to the court for a preliminary ruling:

'Is the prohibition on the use of indigotin and cochineal a red colourant in the preparation of non-smoked fish roe, laid down by the royal decree of 27 july 1978, a measure equivalent in effect to a quantitative restriction on the free movement of goods?'

4 It appears from the papers before the court that the royal decree in question (moniteur belge (belgian official gazette) of 20 october 1978, p. 12523) establishes the list of authorized additives for foodstuffs and that it was adopted pursuant to the law of 24 january 1977 on consumer health protection in relation to foodstuffs and other products (moniteur belge of 8 april 1977, p. 4501). That law makes it a criminal offence to participate in the production or marketing of foodstuffs which do not conform to the rules which it lays down and provides that the list of the additives which may be used in foodstuffs is to be prescribed by the king. According to article 4 (2) of the law, any application to have an additive entered on that list is to be submitted to the conseil superieur d ' hygiene (public health board), which issues an opinion on the harmfulness of the additive, the degree of the human organism ' s tolerance of it, and the necessity, value and suitability of its use.

5 In accordance with those provisions, the royal decree of 27 july 1978 authorizes the addition of the colourants at issue to certain foodstuffs not including non-smoked fish roe. At the same time it authorizes the addition to such fish roe of certain other colourants. The decree does not authorize the addition of the colorants in question to non-smoked fish roe. It appears from the observations submitted to the court by the belgian government that at the time no request to have that combination entered on the positive list of additives had been made and that as a result, the belgian authorities had not had occasion to decide as to its inclusion on the list.

6 Consequently, the Cour d'appel's question should be construed as seeking to establish not whether the community rules must be interpreted as precluding the prohibition of the use of indigotin and cochineal a red in the preparation of non-smoked fish roe, but whether those rules must be regarded as precluding the adoption of a national law which, even for foodstuffs imported from another member state in which they are lawfully marketed, requires that the use of the colorant in question for that type of foodstuff be included on a national positive list and that any application to have that use included on that list must be referred to a committee of experts in order to obtain an opinion on the harmfulness of the additive, the degree of the human organism ' s tolerance of it and the necessity, value and suitability of its use.

7 The accused in the main proceedings, the governments of belgium, denmark, the federal republic of germany and the netherlands, and the commission have submitted observations to the court.

8 The accused in the main proceedings claims that a rule of that kind constitutes a measure equivalent in effect to a quantitative restriction on imports within the meaning of the provisions of the treaty regarding the free movement of goods. Where, as is the case of the belgian rule in question, it was introduced after the entry into force of the eec treaty, it is contrary to the first paragraph of article 32 of that treaty, according to which in their trade with one another member states are to refrain from making more restrictive existing quotas and measures having equivalent effect. A measure which establishes a general prohibition from which derogation is possible only after an assessment not only of the harmfulness of the additive but also the necessity, value and suitability of its use in the foodstuff in question cannot be justified under article 36 of the treaty.

9 The belgian government stresses that a national rule such as that in question is in conformity with the council directive of 23 october 1962 on the approximation of the rules of the member states concerning the colouring matters authorized for use in foodstuffs intended for human consumption (official journal, english special edition 1959-1962, p. 279). According to its article 5 that directive does not affect national rules specifying which foodstuffs may be coloured by means of the colouring matters listed in the positive lists which are annexed to the directive. The two colorants in question do in fact appear on those lists.

10 Nor, in the belgian government ' s view, can there be any doubt as to the conformity of the belgian rules, which are moreover similar to the national rules in force in other member states, with articles 30 and 36 of the treaty. The belgian provisions quite simply represent the application of the universally recognized principle of positive lists which may be altered under a specific procedure. It is for the importer to initiate that procedure and only a refusal by the national authorities to enter the product in question on the list following such a procedure constitutes an obstacle to intra-community trade. Even such a refusal may be justified on the basis of article 36 unless it constitutes arbitrary discrimination or a disguised restriction.

11 The danish, german and the netherlands governments consider that a national rule of the type in question constitutes an impediment to intra-community trade which falls within the scope of article 30 of the treaty, but that it is justified under article 36. In view of the small degree of harmonization introduced by the community provisions regarding colouring additives, the protection of the health and life of humans requires that the decision concerning the use of a specific colourant in the preparation of a specific foodstuff must be left to the national authorities. Those authorities should in particular take into consideration the eating habits prevailing in the member state in question, the use of the same colourant in other foodstuffs which are widely consumed in that state and the use of other additives in the foodstuff in question.

12 The commission accepts that a rule such as that in question conforms to the abovementioned directive. It emphasizes however that that conformity in no way excludes the operation of article 30 of the treaty. As regards article 36, the commission points out that the two additives in question appear on a community positive list and that, furthermore, the scientific committee for food set up by commission decision 74-234-eec of 16 april 1974 (official journal 1974, l 136, p. 1) has provided figures for the acceptable daily intake (adi) of those additives. There is therefore no uncertainty regarding the degree of harmfulness of those colourants.

13 The commission therefore considers that the requirement of prior authorization in the importing member state for products which may be marketed lawfully in the exporting member state and which have thus already been examined in that state is no longer justified under article 36 of the treaty. It is sufficient to require the importer to provide information enabling the authorities of the importing member state to determine whether allowing the product in question to be imported is liable to create a serious risk of the acceptable daily intake indicated for the additives contained in the product being exceeded.

14 Having regard to all those arguments, the court would first stress that the question for a preliminary ruling concerns the interpretation of the treaty not that of the directive on colouring matters. In so far as that directive is concerned, therefore, it is sufficient to point out, as the parties in the proceedings before the court have done, that in its judgments of 12 june 1980 (case 88-79 grunert (1980) ecr 1827) and of 5 february 1981 (case 108-80 kugelmann (1981) ecr 433) the court held that similar directives concerning preservatives and anti-oxidants did not preclude the existence of national rules comparable to that in question in this case.

15 It should then be noted that the first paragraph of article 32 of the eec treaty is not relevant to the reply to be given to the Cour d'appel ' s question. The sole purpose of that provision was to prevent the member states from making more restrictive during the transitional period measures which had to be abolished by the end of that period at the latest. Since the expiry of the transitional period the abovementioned provision adds nothing to articles 30 and 36 of the treaty.

16 As regards those articles, the court has consistently held that, on the one hand, the existence of harmonizing directives does not exclude the operation of article 30 of the treaty and that, on the other, it is only when community directives make provision for the full harmonization of all the measures needed to ensure the protection of health and institute community procedures to monitor compliance therewith that recourse to article 36 ceases to be justified.

17 As the majority of the parties in the proceedings before the court have acknowledged, the application of a rule such as that in question to products imported from another member state where they are marketed lawfully is capable of impeding trade within the community. It therefore falls within the scope of article 30. It is thus necessary to consider whether it can be justified on the grounds of the protection of the health and life of humans within the meaning of article 36.

18 In that respect it should be noted that with regard to additives, and in particular colourants used in foodstuffs, only a small degree of community harmonization has been achieved and that harmonization reveals great prudence on the part of the community legislature regarding the potential harmfulness of such substances.

19 As the court held, inter alia in its judgment of 14 july 1983 (case 174-82 sandoz (1983) ecr 2445), in so far as there are uncertainties in the present state of scientific research, it is for the member states, in the absence of harmonization, to decide what degree of protection of the health and life of humans they intend to assure, having regard however to the requirements of the free movement of goods within the community.

20 Although, for those purposes, member states must take into account the results of international scientific research and, in particular, the work of the community ' s scientific committee for food, it must nevertheless be emphasized that the opinions of that committee do not have binding force. In addition, the fact that a figure for the acceptable daily intake of an additive is indicated shows that the use of that substance is liable to create a risk beyond a certain threshold and, like the authorization of the authorities of the exporting member state, fails to remove uncertainties arising from the differences between the eating habits in the different member states. The opinions of the committee cannot therefore abrogate the responsibility of national authorities for the protection of health in the absence of binding rules and effective supervisory measures at the community level.

21 It must be added that, in accordance with a joint approach adopted by the member states intended to limit as much as possible the use of additives, the question whether an additive may be used in the preparation of a specific foodstuff does not depend solely on the degree of harmfulness of the additive; the necessity of adding it to the foodstuff in question is also relevant. That problem was dealt with by the scientific committee for food in its report of 22 february 1980 which was the subject of the commission recommendation of 11 november 1980 addressed to the member states concerning tests relating to the safety evaluation of food additives (official journal 1980, l 320, p. 36). In that report the committee states that for an additive to be authorized it must be established that the use for which it is intended corresponds to a need which may be technological or economic or again, as far as flavouring and colouring matters are concerned, organoleptic or psychological.

22 It follows that community law as it now stands does not preclude the application, even to products imported from other member states, of a national authorization procedure for the marketing of coloured foodstuffs based on an assessment of the existence of a need to colour the foodstuff in question and a scientific evaluation of the risk which the colourant used may represent for human health.

23 Nevertheless the principle of proportionality which underlies the last sentence of article 36 of the treaty requires that the power of the member states to prohibit imports of the products in question from other member states should be restricted to what is necessary to attain the legitimate aim of protecting health and that, consequently, authorizations to market such products should be granted when they are compatible with that aim. On the basis of that consideration, in its judgment of 14 july 1983 (case 174-82 sandoz, cited above) the court has ruled that the marketing of foodstuffs to which vitamins have been added and which are imported from another member state in which they were lawfully marketed must be authorized when the addition of vitamins meets a real need.

24 It must therefore be concluded that although community law does not prohibit an importing member state from applying a rule of the type in question to coloured foodstuffs which are marketed lawfully in the exporting member state, it nevertheless imposes restrictions on the application of such a law. If the authorities of the importing member state find that there is a real need to colour a foodstuff of the type concerned, in the light of the eating habits of that state, they may not, without contravening the provisions of the treaty and in particular the last sentence of article 36 thereof, refuse authorization solely on the ground that the imported foodstuff contains colourant. Similarly in assessing the risk represented by the colourant actually used in the foodstuff, they must take into account the results of international scientific research and in particular the work of the community ' s scientific committee for food viewed in the light of the eating habits prevailing in the importing member state.

25 In reply to the question referred to the court by the Cour d'appel, brussels, it must therefore be stated that:

As community law now stands, the provisions of the eec treaty concerning the free movement of goods within the community do not preclude national provisions which require, in respect of foodstuffs to which a colourant has been added, even where such foodstuffs are imported from another member state in which they are lawfully marketed, that the use of that colourant for that type of foodstuff be entered on a national positive list and that any application for such an entry must be referred to a committee of experts in order to obtain an opinion on the harmfulness of the additive, the degree of the human organism ' s tolerance of it and the necessity, value and suitability of its use.

However, in applying such provisions to products imported from another member state in which they were lawfully marketed the national authorities must authorize the colouring of the foodstuff if, having regard to the eating habits prevailing in the importing member state, it corresponds to a real need, and in their appraisal of the general health risk which a colouring matter actually used may represent, those authorities must take into account the results of international scientific research, and in particular the work of the community ' s scientific committee for food.

Costs

26 The costs incurred by the governments of belgium, denmark, the federal republic of germany and the netherlands and by the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings before the national court, the decision on costs is a matter for that court.

On those grounds,

The court (fifth chamber)

In reply to the question submitted to it by the Cour d'appel, brussels, by judgment of 26 september 1984, hereby rules:

(1) As community law now stands, the provisions of the eec treaty concerning the free movement of goods within the community do not preclude national provisions which require, in respect of foodstuffs to which a colourant has been added, even where such foodstuffs are imported from another member state in which they are lawfully marketed, that the use of that colourant for that type of foodstuff be entered on a national positive list and that any application for such an entry must be referred to a committee of experts in order to obtain an opinion on the harmfulness of the additive, the degree of the human organism ' s tolerance of it and the necessity, value and suitability of its use.

(2) However, in applying such provisions to products imported from another member state in which they were lawfully marketed the national authorities must authorize the colouring of the foodstuff if, having regard to the eating habits prevailing in the importing member state, it corresponds to a real need, and in their appraisal of the general health risk which the colouring matter actually used may represent, those authorities must take into account the results of international scientific research, and in particular the work of the community ' s scientific committee for food.