CJEC, 1st chamber, February 5, 1981, No 53-80

1 By judgment of 13 December 1979, which was received at the Court on 7 February 1980, the gerechtshof Amsterdam referred to the Court of justice for a preliminary ruling under article 177 of the EEC treaty a question on the interpretation of the provisions of the treaty on the free movement of goods within the community, in particular articles 30, 34 and 36.

2 That question is raised in the course of criminal proceedings instituted by the Netherlands authorities against a Netherlands manufacturer which produces processed cheese both for sale on the domestic market and for export to other member states and which is charged with having held in stock for the purposes of sale in the district of Alkmaar certain quantities of processed cheese intended for sale and for human consumption containing an additive, namely nisin, which is not one authorized by the Netherlands law applicable in this case.

3 It appears from the papers in the case and from information given during the oral procedure that nisin is an antibiotic formed by certain types of lactic bacteria and occurs naturally in varying quantities in most varieties of cheese. It has the property of preserving the product for a longer period by retarding the process of deterioration due to the presence of butyric bacteria.

4 The provisions of national law with whose breach the manufacturer is charged are in particular those adopted pursuant to the law on goods (''warenwet'') of 28 December 1935, which empowers the government to adopt legislative measures for the purpose of prohibiting the marketing or importation of certain goods under conditions other than those prescribed.

5 Adopted in pursuance of that law, the general order (''algemeen besluit'') of 11 July 1949 provides, in article 10 bis (1) thereof, that antibiotics may be added to drinks and foodstuffs only where the competent minister has authorized their use. As far as processed cheese is concerned, the addition of nisin is not provided for in either the ''kaasbesluit'' (cheese order) of 7 November 1959 or the ''smeltkaasbesluit'' (processed cheese order) of 5 November 1959. Under article 8 (h) of the ''smeltkaasbesluit'', the presence in processed cheese of substances other than those expressly mentioned in article 1 thereof and those authorized by the ''kaasbesluit'' is prohibited.

6 However, by virtue of a government decision (''vrijstellingsbeschikking'') of 19 august 1965, last amended by decision of 14 may 1969, products intended for export are exempt form the prohibition resulting from those rules, including those laid down by the ''smeltkaasbesluit'' of 5 November 1959.

7 When prosecuted under the law on economic offences (''wet op de economische delicten'') of 22 June 1950 for a contravention of article 8 (h) of the ''smeltkaasbesluit'', the accused pleaded in particular that the quantities of nisin used in the present case did not present any danger to public health and that the addition of that substance to cheese was authorized in other member states. From that the accused thus deduced that the prohibition of the addition of nisin to processed cheese intended for the domestic market, which resulted from the provisions cited above, constituted a breach of the rules of the treaty regarding the free movement of goods in the community inasmuch as it amounted to a measure having an effect equivalent to a quantitative restriction within the meaning of articles 30 to 36 of the treaty.

8 In order to determine whether that submission was well-founded and thereby to decide the case, the gerechtshof Amsterdam referred the following question to the Court of justice:

''Must the requirements contained in the EEC treaty regarding the free movement of goods within the EEC, notwithstanding the provision in article 36 of the treaty regarding a prohibition which is justified on the grounds of the protection of health and the life of humans, be construed to the effect that a provision as contained in article 8 (h) of the "smeltkaasbesluit'' containing a prohibition on the presence of additives, including nisin, in processed cheese other than those which the order permits or for which an exemption is granted, is incompatible with those requirements in its entirety or at least as regards the prohibition of adding nisin to processed cheese in respect of both home-produced cheese spread and cheese spread imported into the Netherlands ; does it make any difference to the answer that as regards the addition of nisin to processed cheese such exemption is granted only for processed cheese which is clearly intended for export?

''

9 By that question, the national Court is asking essentially whether the provisions of the treaty relating to the free movement of goods within the community must, having regard to article 36 of the treaty, be construed as meaning that they preclude national rules prohibiting the addition of nisin to products such as processed cheese and whether such a prohibition is compatible with the treaty owing, in particular, to the fact that it applies only to products intended for sale on the domestic market and does not cover products intended for export to other member states.

10 Consideration of the papers in the case and the information provided during the oral procedure show that the addition of nisin to processed cheese is not the subject of uniform rules in all the member states. Whereas it is totally prohibited in domestic trade by certain member states, such as the Netherlands, it is permitted in other member states without restriction or subject to prescribed maximum levels.

11 In view of this disparity of rules it cannot be disputed that the prohibition by certain member states of the marketing on their territory of processed cheese containing added nisin is of such a nature as to affect imports of that product from other member states where, conversely, the addition of nisin is wholly or partially permitted and that it for that reason constitutes a measure having an effect equivalent to a quantitative restriction.

12 However, although articles 30 and 34 of the treaty prohibit any quantitative restriction or measure having equivalent effect in trade between member states, obstacles to intra-community trade resulting from the disparity of national laws relating to the marketing of products are nevertheless permitted by article 36 of the treaty in so far as the provisions underlying those obstacles are justified on grounds of inter alia ''the protection of health... of humans''. However, the exemption on the aforementioned grounds from the application of articles 30 and 34 of the treaty which is provided for by article 36 is permitted only on the express proviso, set out in the second sentence of article 36, that the prohibitions or restrictions concerned shall not constitute ''a means of arbitrary discrimination or a disguised restriction on trade between member states''.

13 There can be no dispute that the issue of the addition of preservatives to foodstuffs is embraced by the more general issue of health protection which calls for the adoption of national measures designed to regulate the use of such additives in the interest of the protection of human health. In the particular case of the addition of nisin to products intended for human consumption, such as processed cheese, it is indeed accepted that the increasingly widespread use of that substance, not only in milk but also in numerous preserved products, has revealed the need, both at national level in certain countries and at international level, to study the problem of the risk which the consumption of products containing the substance presents, or may present, to human health and has led certain international organizations, such as the food and agriculture organization of the united nations and the world health organization, to undertake research into the critical threshold for the intake of that additive. Although those studies have not as yet enabled absolutely certain conclusions to be drawn regarding the maximum quantity of nisin which a person may consume daily without serious risk to his health, this is essentially due to the fact that the assessment of the risk connected with the consumption of the additive depends upon several factors of a variable nature, including, in particular, the dietary habits of each country, and to the fact that the determination of the maximum quantity of nisin to be prescribed for each product must take account not only of the quantities of nisin added to a particular product, such as processed cheese, but also those quantities added to each of the other preserved products which are intended to satisfy those habits and in which the nisin content may vary in the case of similar products depending on their place of origin, the method of manufacture or the particular need in the market in question for a longer or shorter period of preservation.

14 The difficulties and uncertainties inherent in such an assessment may explain the lack of uniformity in the national laws of the member states regarding the use of this preservative and at the same time justify the limited scope which the prohibition of the use of the additive in a given product, such as processed cheese, has in certain member states, including the Netherlands, which prohibit its use in products intended for sale on the domestic market while permitting it in products intended for export to other member states where the requirements for the protection of human health are assessed differently according to dietary habits of their own population.

15 Whilst it is true that the obstacles to which the disparity of the national laws on the subject give rise in intra-community trade in the products concerned may be eliminated only by a uniform set of rules adopted at community level, such rules do not exist at the present stage of community law. Council directive 64-54-EEC of 5 November 1963 on the approximation of the laws of the member states concerning the preservatives authorized for foodstuffs intended for human consumption (official journal, English special edition 1963-1964, p.99) in fact merely provides in article 6 thereof that the directive ''shall not affect the provisions of national laws concerning:... (b) nisin' 'and thus by implication allows the member states to retain in relation to the matter in issue a discretionary power within the limits laid down by the general provisions of article 36 of the treaty.

16 From those considerations it follows that whilst it has the effect of hindering trade between member states in the product concerned, national legislation, such as that referred to by the national Court, prohibiting the use of nisin as a preservative in processed cheese intended for the domestic market is included amongst the measures which article 36 of the treaty permits member states to adopt on grounds of the protection of health of humans and for that reason it escapes the prohibitions resulting from articles 30 and 34 of the treaty. In view of the uncertainties prevailing in the various member states regarding the maximum level of nisin which must be prescribed in respect of each preserved product intended to satisfy the various dietary habits it does not appear that the prohibition laid down by such legislation in the case of processed cheese sold on the domestic market and excluding that intended for export to other member states, constitutes a ''means of arbitrary discrimination or a disguised restriction on trade between member states'' within the meaning of article 36 cited above.

17 For those reasons the answer which must be given to the question raised is that the provisions of the EEC treaty regarding the free movement of goods do not, at the present stage of community rules on preservatives in foodstuffs intended for human consumption, preclude national measures by a member state which, on the ground of the protection of health and in accordance with article 36 of the treaty, prohibit the addition of nisin to home-produced or imported processed cheese, even if they limit such a prohibition only to products intended for sale on the domestic market of that state.

The costs incurred by the government of the Netherlands, the government of the federal Republic of Germany and 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 pending before the national Court, the decision on costs is a matter for that Court.

On those grounds,

The Court (first chamber),

In answer to the questions submitted to it by the gerechtshof Amsterdam, hereby rules: