C-53/80
ECLI:EU:C:1981:35
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JUDGMENT OF 5. 2. 1981 — CASE 53/80
In Case 5 3 / 8 0
R E F E R E N C E to the C o u r t u n d e r Article 177 of the E E C T r e a t y by the Gerechtshof [Regional C o u r t of Appeal], Amsterdam, for a preliminary ruling in the proceedings pending before that court between
OFFICIER VAN JUSTÍTIE [Public P r o s e c u t o r ]
and
KONINKLIJKE KAASFABRIEK EYSSEN BV,
on the interpretation of the provisions of the E E C T r e a t y regarding the free movement of goods within the Community,
T H E C O U R T (First C h a m b e r ) ,
composed of: T . K o o p m a n s , President of Chamber, A. O'Keeffe and G. Bosco, Judges,
Advocate General: J.-P. Warner Registrar: A. V a n H o u t t e
gives the following
JUDGMENT
Facts and Issues
I — Facts a n d w r i t t e n p r o c e d u r e in Economic Matters], Alkmaar, on a charge of having held in stock certain quantities of cheese spread and rindless By a summons of 22 December 1977 cheese intended for sale for human Koninklijke Kaasfabriek Eyssen BV consumption, to which had been added (hereinafter referred to as “Eyssen”) nisin, a substance whose addition is not was ordered to appear before the authorized by the Netherlands law Economische Politierechter [Magistrate applicable in the matter.
OFFICIER VAN JUSTITIE v KAASFABRIEK EYSSEN
Nisin is an antibiotic formed by certain New drafts of the "Kaasbesluit" and the types of lactic bacteria and occurring "Smeltkaasbesluit" limiting the natural naturally in varying quantities in most occurrence of nisin to a certain degree of varieties of cheese which has the concentration are under preparation, but property of retarding the process of they have not yet gone beyond the first deterioration of cheese caused by the stages of the legislative procedure. presence of butyric bacteria.
The addition of nisin, it appears, may be of great importance in the preservation of cheese, particularly in the case of certain Finally, the possibility exists of a general varieties such as processed cheese, which derogation from the rules mentioned tend to deteriorate more rapidly than above. Products intended for export are others. exempted by regulation from the prohibition of the addition of nisin. That derogation does not apply to products intended for the domestic market. The addition of nisin to those products is The legal basis of the Netherlands law therefore prohibited and considered as on additives is to be found in the an offence under the law on economic "Warenwet" (Law on Goods) of 1935 offences. which enables the Crown to adopt by decree "Algemene Maatregelen van Bestuur" [general administrative regu- lations] in the interest of public health or By decision of 30 January 1978, the fair trading.
In pursuance of that Economische Politierechter referred the delegation of legislative power, the case to the Meervoudige Economische Crown made on 11 July 1949 an order Kamer [Economic Chamber] of the called the "Algemeen Besluit" containing Arrondissementsrechtbank [District general rules applicable to all foodstuffs Court] Alkmaar. That court decided to and drinks. Under Article 10 (1) of that dismiss all proceedings against Eyssen on order, antibiotics may be added to drinks the grounds that the limited quantities of and foodstuffs only where the minister nisin used by the accused did not present has authorized their use. Such author- any danger to public health and that the ization has never been given in the case prohibition on the use of nisin in the of nisin. In the absence of an author- Netherlands constituted a measure ization having general application, the having an effect equivalent to a use of an additive may be permitted by quantitative restriction within the orders, themselves made on the basis of meaning of Articles 30 and 34 of the the Warenwet, which are concerned with EEC Treaty, the addition of that specific foodstuffs or drinks. As far as substance to cheese being authorized in processed cheese is concerned, two other Member States. orders are applicable thereto: the "Kaasbesluit" [Cheese Order] and the "Smeltkaasbesluit" [Processed Cheese Order]. The "Smeltkaasbesluit" prohibits The Officier van Justitie [Public Pros- any additive to processed cheese other ecutor] for the District of Alkmaar than substances whose addition is lodged an appeal against that judgment expressly authorized or substances whose with the Gerechtshof [Regional Court of addition is permitted by the "Kaas- Appeal] Amsterdam, which by judgment besluit" for cheese in general. The of 13 December 1979 decided to refer addition of nisin is permitted neither by the following question to the Court of the "Smeltkaasbesluit" nor by the Justice of the European Communities for "Kaasbesluit". a preliminary ruling under Article 177 of the EEC Treaty:
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"Having regard to the following facts: prohibition on the presence of additives, including nisin, in processed cheese other than those which the order permits or A Netherlands producer of processed for which an exemption is granted, is cheese produces such cheese both for his incompatible with those requirements in home market and for export to other its entirety or at least as regards the EEC countries; and prohibition of adding nisin to processed cheese in respect of both home-produced cheese spread and cheese spread Adds an antibiotic, nisin, to the imported into the Netherlands; does it processed cheese which he produces, in make any difference to the answer that order to increase its keeping qualities; as regards the addition of nisin to and processed cheese such exemption is granted only for processed cheese which is clearly intended for export?" Nisin must be considered to be not absolutely but relatively (slightly) harmful to human health; and The judgment making the reference was lodged at the Court Registry on 7 February 1980. The producer adds nisin to processed cheese in a quantity which remains below that regarded as permissible by the Pursuant to Article 20 of the Protocol on recommendation of September 1976 by the Statute of the Court of Justice of the F A O / W H O committee of govern- the EEC, written observations were ment experts; submitted by the Government of the Netherlands, represented by F. Italianer, Secretary-General at the Ministry for However, such an additive is permitted Foreign Affairs, acting as Agent, by the in a number of EEC Member States, but Government of the Federal Republic of not in several others, and furthermore Germany, represented by M. Seidel, the Directive of the Council of the EEC Ministerial Adviser at the Federal of 5 November 1963 on the approxi- Ministry for the Economy, and J. mation of the laws of the Member States Sedemund, Rechtsanwalt, acting as concerning the preservatives authorized Agents, and by the Commission of the for use in foodstuffs intended for human European Communities, represented by consumption (Official Journal, English P. Kuyper, acting as Agent and P. Special Edition, 1963-1964, p. 99) gives Oliver, acting as Assistant, both members Member States the freedom to permit of its Legal Department. nisin as an additive or to prohibit it;
Upon hearing the report of the Judge- Must the requirements contained in the Rapporteur and the views of the EEC Treaty regarding the freedom of Advocate General, the Court decided to movement of goods within the EEC, open the oral procedure without any notwithstanding the provision in Article preparatory inquiry. 36 of the Treaty regarding a prohibition which is justified on the grounds of the protection of health and the life of By order of 2 July 1980 the Court humans, be construed to the effect that a decided to assign the case to the First provision as contained in Article 8 (h) of Chamber under Article 95 (1) and (2) of the "Smeltkaasbesluit" containing a the Rules of Procedure.
OFFICIER VAN JUSTITIE v KAASFABRIEK EYSSEN
II — Observations submitted According to the Government of the pursuant to Article 20 of Netherlands, the said provision does not the Protocol on the Statute have effects equivalent to those of a of the Court of Justice of quantitative restriction on exports since the EEC products intended for export are exempted from the rules of the Smeltkaasbesluit by virtue of a decision The Government of the Netherlands first of 19 August 1965, granting exemption, observes that although it is not possible which was last amended by a decision of to require an absolute guarantee of the 14 May 1979. Furthermore, since none innocuousness of a substance, which of the other Member States prescribes would in practice amount to the the addition to cheese of substances prohibition of any addition, it must which are not authorized in the nevertheless be reasonably certain that Netherlands, any impeding effect the additives to be used do not have consisting in the possible need for a adverse effects on public health. separate production line intended for export is also ruled out. Only rarely, if ever, is it possible to speak in absolute terms of the harm- fulness or the innocuousness of a The contested provision may on the substance. On the one hand, there is other hand represent a measure having scientific uncertainty regarding the an effect equivalent to a quantitative harmful nature of this or that product, restriction on imports. Indeed, the and, on the other hand, it must not be possibility must not be ruled out that forgotten that substances which are foreign producers’ opportunities to relatively harmless by nature can have import are directly or indirectly injurious consequences to health if taken restricted because they require author- in excess. Those reasons led the ization in order to sell their products, to Netherlands authorities to pursue a which a given substance has been added, restrictive policy so far as additions (of on the Netherlands market. all kinds) to foodstuffs are concerned.
Having given a general outline of the Whether or not that is so, the provision laws through which that policy has been in question may be justified, in the given expression, the Government of the opinion of the Netherlands Government, Netherlands broaches the question which on the basis of one of the interests the Gerechtshof Amsterdam referred to mentioned in Article 36 of the EEC the Court of Justice for a preliminary Treaty, in this case, “on grounds of the ruling in order to ascertain whether protection of health and life of humans, Article 8 (h) of the “Smeltkaasbesluit animals or plants”. (Warenwet)” is compatible with Article 30 et seq. of the EEC Treaty. Article 6 of Council Directive Having regard to the specific case which 64/54/EEC expressly leaves Member gives rise to this question, it is necessary States free to authorize or not to to consider both whether Article 8 cited authorize the addition of nisin to above represents a measure having an foodstuffs. The “Conserveermiddelen- effect equivalent to a quantitative besluit (Warenwet)”, that is to say, the restriction on exports and whether it Netherlands order on preservatives, does constitutes a measure having an effect not mention nisin as an authorized pres- equivalent to a quantitative restriction on ervative. The Netherlands authorities imports. adopted that attitude on the basis of the
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consideration that, according to experts, The Government of the Federal Republic the human body cannot absorb daily of Germany is of the opinion that the without danger a quantity of nisin answer which must be given to the first exceeding 33 000 international units part of the question referred to the [0.78 milligrams] per kilogram of body Court of Justice is that national rules weight. It is therefore necessary to such as those described in the judgment ensure that that quantity is not exceeded making the reference are reconcilable in all the food which a person consumes with the provisions of the Treaty on the daily. free movement of goods owing to the very fact that they satisfy the requirements of the protection of health and public policy and that neither their Furthermore, it should be recalled that aim nor their effect is to favour national the Netherlands legislature is not the production or that of the domestic only one to have taken such a decision, market of the Member State in question as is shown by the fact that, for example, and thereby prejudice the production or such a prohibition also exists in the trade of other Member States. Federal Republic of Germany.
The provision was not laid down in Indeed, on the basis of general order to hinder trade under the guise of considerations of a policy on health and the protection of public health, nor does food, it takes the view, that the first it involve arbitrary discrimination against sentence of Article 36 of the EEC Treaty persons of other Member States or must apply even where an additive between or amongst producers or constitutes only a potential danger to the importers. health of consumers.
A less radical form of intervention would not be effective. Rules whereby anything The product which is the subject of the which is not expressly prohibited or main proceedings, that is to say, nisin, restricted is to be regarded as authorized belongs to what are called "food would not be adequate owing to the additives". It has been observed that a continual development of new additives. large, simultaneous increase in the use of Equally, rules confined to a requirement food additives brings with it serious risks that the substances added must be to the health of consumers. It is indeed indicated on the packaging would be possible that even a substance which is totally insufficient. clearyl not harmful when considered in isolation may become dangerous owing to cumulative or combined effects when Finally, the prohibition is not absolute it is mixed with other chemical sub- but merely constitutes the basic rule of a stances and compounds. Moreover, it system of general and specific author- must not be forgotten that those risks are izations which allows flexibility in taking all the more serious because the account of the needs of producers and "combined effect" does not result only importers, at least to the extent to which from the additives and extraneous sub- public health permits. Furthermore, in stances added to a single product taken view of this the contested provision is in isolation but from all the compound consequently no more restrictive than and extraneous chemical substances public health requires. contained in all foodstuffs.
OFFICIER VAN JUSTITIE v KAASFABRIEK EYSSEN
Acknowledgement of the existence of product must be. Countries such as the such risks has led to the adoption at both Netherlands and the Federal Republic of national and international level of rules Germany, where the consumption of designed to curb the use of food cheese is very high, are therefore obliged additives in the interest of health to adopt standards relating to the use of protection. Those rules, in general, only nisin which are more stringent than those permit the use of additives which are adopted by countries where that food is necessary for technological reasons and consumed only to a lesser extent. Finally, which do not present a hazard to health. the use of nisin is not necessary for In nearly all countries whose laws on technical reasons because it is possible to food and health are highly developed produce perfectly good processed cheese that principle, which was also adopted by microbiological means without adding by the United Nations organizations nisin. concerned with food (FAO) and health (WHO), has led to the establishment of a system based on a general prohibition of additives coupled with "positive lists" on which substances appear which are Since nisin is therefore unnecessary and authorized owing to their technical may be harmful, the Federal Republic of necessity and innocuousness. Both the Germany has continued to prohibit the Netherlands rules in question and the use of the product. Community directives on additives are based on that system. The Community directives confer on Member States the right to restrict more severely the use of In the opinion of the Federal listed additives. Government there is no doubt that prohibitions of the use of additives, such as are laid down by national law and by Community law, are solely designed to ensure the protection of the health and At all events, the Directive of 5 life of consumers. Such measures do not November 1963 reserves the decision pursue any economic objective; in concerning the authorization of the use particular, they are not intended to of nisin to the Member States. ensure that national production or the domestic market of the Member State concerned has a particular advantage, thereby prejudicing the production or trade of other Member States, and they It is true that a document produced therefore satisfy the negative require- jointly by the FAO and the W H O , ments laid down by the second sentence which was mentioned by the Court of Article 36. making the reference, declares nisin to be acceptable up to certain maximum amounts. Nevertheless, that document is based on limited experiments and does not therefore provide proof that nisin is The "protection of health and life of harmless. In addition, it must be humans" takes precedence over the free remembered that the quantity of an movement of goods. It is clear that the additive which is acceptable in a product tests for judging that concept may differ cannot be determined absolutely. It is somewhat from one country to another clear that the greater the consumption of and from one period to another, the product the lower the permissible depending on technological develop- quantity of an additive added to the ment, climate, dietary habits and the
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degree of industrialization and ensuing other Member States and of any pollution of the environment. In this disguised restriction on trade between respect, the concept cited above is similar member States does not need to be to the concept of "public policy" which, proved since it is expressly acknowledged as appears from the case-law of the in the judgment making the reference. Court of Justice, Member States may define very liberally according to their national needs. For the sake of completeness, the Federal Government observes that, as has been shown, the restrictive effects of the The Federal Government's view that the Netherlands rules on the free movement determination of the limits within which of goods do not exceed "the effects a national legal system may ensure intrinsic to trade rules" and in particular protection of health requires the are not "out of proportion to their allowance of a suitable area of discretion purpose". Those rules are not therefore is in accordance with the case-law of the to be counted amongst the measures Court. hindering intra-Community trade such as are described by Commission Directive 70/50/EEC of 22 December 1969.
Indeed, the Court has confined itself to requiring that the national measures adopted in exercise of the powers Finally, the Federal Government points provided for by Article 36 must be out that the dispute which has given rise reasonable and intrinsically necessary to the present case is comparable in and must not constitute discrimination. essential respects with that which led to the reference for a preliminary ruling in Case 15/79, where the prohibition on the use of horse meat in the manufacture The system on which the national rules of sausages was also concerned, although are based conforms to the international in a wider sense, with the problem of the development of the law and also to the permissibility of certain ingredients of principles of the Community legislation products intended for human on food additives. It is therefore justified consumption. If the grounds of the and necessary within the meaning of the judgment in Case 15/79 are applied to case-law of the Court on Article 36. the present case, it may be observed that the Netherlands rules limiting the use of food additives do not have as their object the specific restriction of the pattern of Furthermore, that system is in imports and exports, but apply accordance with the principle of pro- objectively and without distinction and in portionality since its objective of particular are not directed towards preventing the use of unnecessary conferring a special advantage on additives in foodstuffs intended for national production, thereby prejudicing human consumption cannot be achieved the production or trade of other Member by measures which restrict intra- States. Community trade to a lesser extent.
On those grounds also it must be Finally, the absence of any discrimi- concluded that those rules are not nation against products coming from contrary to the provisions of the Treaty.
OFFICIER VAN JUSTITIE v KAASFABRIEK EYSSEN
With regard to the second part of the necessary for the protection of the public question, a reply is unnecessary. The health it must first be established whether Federal Government confines itself to the nisin is harmful. According to the observation that the fact that exemption Commission, that question must however from the prohibition of use of nisin may be decided by the national courts be granted for exports in no way brings themselves. In that event the burden of into question the compatibility of the proof rests on the person who asserts prohibition with Community law. Fur- that the restriction is justified on the thermore, those exemptions are intended ground of the protection of public to permit exports to countries whose health. requirements with regard to health policy are less strict and are therefore capable only of furthering intra-Community However, even if it were shown that the trade. national measures prohibiting the use of nisin where contrary to the EEC Treaty, Eyssen could nevertheless not rely on The Commission of the European that incompatibility. Communities first sets out the Netherlands legislation on additives and then examines the Community rules, in In fact, Eyssen is not affected by the particular Article 6 of Council Directive restrictions on imports since it does not 64/54/EEC on the approximation of the import (not is it affected by the laws of the Member States concerning restrictions on exports, since there is a the preservatives authorized for use in general exemption for products intended foodstuffs intended for human for export). consumption, which states that the Directive shall not affect provisions of national laws concerning nisin, and Nor may Eyssen claim "reserve discrimi- Article 22 of Regulation (EEC) No nation", if the prohibition of the 804/68 on the common organization of addition of nisin were regarded as inap- the market in milk and milk products, plicable, because it were contrary to the which confirms the prohibition of any Treaty, to imported products alone. quantitative restriction or measure According to the case-law of the Court, having equivalent effect between such discrimination in fact arises from Member States. the differences between the laws of the Member States and can only be eliminated by means of the approxi- Having thus described the legal position, mation of the laws within the meaning of the Commission considers the matter of Articles 100 and 101 of the Treaty. the answer which should be given to the question raised by the court making the reference. It points out that since nisin is Consequently, the Commission suggests authorized in several Member States, the that the following answer should be prohibition of the use of the product by given to the question raised by the court a Member State involves a restriction of making the reference: trade between Member States. Such restrictions are however not contrary to Community law where they prove "A national measure which prohibits the necessary in order to satisfy imperative addition of nisin to processed cheese is requirements, one of which is the contrary to Article 22 . of Regulation protection of public health. In order to (EEC) No 804/68 and to Article 30 of determine whether a prohibition of use is the EEC Treaty where it is established
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that nisin does not endanger human presented oral argument at the hearing health. It is for the national court to on 16 October 1980. decide that matter. A prohibition such as that referred to above is, however, not On that occasion Eyssen stated that the contrary to Community law and in prohibition of the addition of nisin to particular to Articles 30 and 34 of the cheese is incompatible with Article 30 of EEC Treaty in so far as it is restricted the EEC Treaty. It added that the to national production intended for exception embodied in Article 36 was national market". applicable only if the Netherlands Government showed that nisin, in the concentration established in the present III — Oral procedure case, constituted a danger to health. That exception, however, plays no part Eyssen, represented by R. A. A. Duk of in this case owing to the fact that, even the Bar of The Hague, the Government though it had been proved· that the of the Netherlands, represented by A. product was relatively harmless, the Bos, acting as Agent, assisted by Mr Van Netherlands Government is prepared to Der Heyde, in his capacity as an expert, authorize the addition of nisin only in the Government of the Federal Republic the case of technological necessity for its of Germany, represented by J. use. Consequently the prohibition in Sedemund, acting as Agent, assisted by question is undeniably contrary to the L. Gross, in his capacity as an expert, Treaty. and the Commission of the European Communities, represented by P. J. The Advocate General delivered his Kuyper, acting as Agent, assisted by A. opinion at the sitting on 27 November Kinch in his capacity as an expert, 1980.
Decisiosi
1 By judgment of 13 Decembe 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
OFFICIER VAN JUSTTIE v KAASFABRIEK EYSSEN
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 auth- orized 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 auth- orized in other Member States. From that the accused thus deduced that the
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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
OFFICIER VAN JUSTITIE v KAASFABRIEK EYSSEN
Netherlands, it is permitted in other Member States without restriction or subject to prescribed maximum levels.
1 1 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".
1 3 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 in- creasingly 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 organiz- ations, such as the Food and Agriculture Organization of the United Nations and the World Health Organization, to undertake research into the
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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.
1 4 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.
OFFICIER VAN JUSTTTIE v KAASFABRIEK EYSSEN
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 pre- scribed 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.
Costs
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.
OPINION OF MR WARNER — CASE 53/80
On those grounds,
T H E COURT (First Chamber),
in answer to the questions submitted to it by the Gerechtshof Amsterdam, hereby rules :
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 the said State.
Koopmans O'Keeffe Bosco
Delivered in open court in Luxembourg on 5 February 1981.
A. Van Houtte T. Koopmans Registrar President of the First Chamber
OPINION OF MR ADVOCATE GENERAL WARNER DELIVERED O N 27 NOVEMBER 1980
My Lords, the Gerechtshof of Amsterdam. It arises from the prosecution of a Dutch cheese manufacturer, · the Koninklijke Kaas- This case comes before the Court by way fabriek Eyssen BV (which I shall call of a reference for a preliminary ruling by "Eyssen"), for offences against Dutch