C-176/84

COMMISSION v GREECE

OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 18 September 1986

My Lords, for authorization to be given for substances other than barley malt to be used, though it is said that authorization was not in fact given. That law was in any event repealed In this case the Commission asks the Court from 1 January 1981 by Law No 1402/1983 to declare that by prohibiting the of 18 November 1983. importation of beer legally produced and marketed in other Member States, but not in conformity with the provisions of national law, the Hellenic Republic has (b) The Food and Drink Code of 1971 failed to fulfil its obligations under Article 30 of the EEC Treaty.

Between 1945 and 1980, Emergency Law Though this is not on the face of it an No 205 of 19 March 1945 made it possible absolute ban on additives, it is accepted by

OPINION OF SIR GORDON SLYNN — CASE 176/84

the Greek Government that no authori­ from barley malt and had a minimum initial zations had been given or are likely to be density of the wort before fermentation of given for additives to be used in beer. 11.50 and a minimum degree of fermen­ Whether it does cover beer may also be tation of 45. It also states that products not arguable but it has been treated in this case fulfilling these requirements shall not be as doing so. allowed for domestic consumption under the appellation of beer and the word 'beer' may not appear on the wrapping whether in Greek or in a foreign language.

These all relate to domestic production but Circular No 24408/4369 dated 6 December 1980 from the Greek Minister for Finance states inter alia that Article 7(1) of the Food The Greek Government's answer is that and Drink Code provides that imported these provisions are justified as being foodstuffs must fulfil the conditions and necessary to protect public health, the provisions of Greek legislation and Community directives not covering all therefore imported beer must comply with relevant aspects of the matter. The use of Law No 2963/1922. The importation of additives is not necessary since beer from beer is to be allowed only if the importer barley malt can be made without them, nor concerned provides a certificate from a is it justified in the light of the uncertainty foreign public authority to the effect that about the cumulative and interactive effects the imported beer was made exclusively of the use of additives so that they cannot

COMMISSION v GREECE

States. It is up to the consumer to choose whether or not he likes beer imported from other Member States, either because of its At the hearing, the Greek Government quality or because of its price. It is not for argued that the Ministerial Circular No the Member State concerned to prevent him 24408/4369 had no legal force. In my from having that choice. opinion it is immaterial for present purposes whether it does or does not. If it has legal force then it clearly contains a ban on imports of beer brewed otherwise than in As regards protection of the consumer, I do accordance with Greek domestic legislation. not consider that the Greek Government If it does not have legal force then it cannot has made out a real probability that Greek be denied that it is a statement of the law as consumers are likely to be misled or understood to be laid down by the Greek deceived by beer being sold in their country Food and Drink Code and Law No which has been brewed in other Member 2963/1922 and as applied.

It is possible to give the consumer of beer sufficient information to enable him to distinguish It is clear that the fact that the national imported beer not made in compliance with rules at issue apply both to domestic and to the Greek legislation from the domestic imported beers does not preclude the product. When beer is packaged for retail application of Article 30 (Case 193/80 sale the consumer can be adequately Commission v Italy [1981] ECR 3019 at informed of what he is buying by the label paragraphs 19 and 20). Conversely, it is also on the bottle or package. Where beer is sold clear that restrictions relating to the by the glass, notices in the place of production and marketing of alcoholic consumption can also provide the consumer beverages may be recognized as being with adequate information, particularly as necessary to satisfy the mandatory beer is commonly offered for sale and

As to the effectiveness of fiscal supervision, There is a consistent line of case-law of this it appears that Greek tax on beer is based Court to the effect that, in so far as uncer­ on the barley malt content, that is to say on tainties persist in the present state of an ingredient of the beer, rather than on the scientific research, it is for the Member volume or the alcohol content and it is said States, in the absence of Community-wide that this cannot be done for imported beers. harmonization, to decide what degree of For historical reasons, this method may protection of health and life of humans they have been and indeed still may be intend to ensure, having regard however to convenient for taxing domestically produced the requirements of the free movement of beers, but convenience does not per se goods within the Community: see for justify a breach of the EEC Treaty. If other example Case 272/80 Frans-Nederlandse methods of fiscal supervision are available Maatschappij voor Biologische Producten which do not lead to an infringement of [1981] ECR 3277 at p. 3290, paragraph 12; Community law, one of those methods Case 174/82 Sandoz [1983] ECR 2445 at should be adopted so long as it is not p. 2463, paragraph 16; and Case 227/82 disproportionately onerous or inefficient. It Van Bennekom [1983] ECR 3883 at is common knowledge that excise duties p. 3905, paragraph 37. However, such based on volume or alcohol content are prohibitions or restrictions on imports from adopted and, it seems, work efficiently in other Member States on the ground of several other Member States. The Greek public health must not constitute a means of Government has not made out a justifi­ arbitrary discrimination or a disguised cation for the import restriction in the restriction on trade between Member States. present case on grounds of the effectiveness In a series of cases the Court has made it of fiscal supervision. This does not mean clear that the principle of proportionality that in the result imported beers will have which underlies the last sentence of Article an advantage over domestic beers as seems 36 requires that the power of the Member to be suggested. It is perfectly possible to States to prohibit imports of the products in adopt a system of taxation which treats question from other Member States should domestic and imported beers alike. be restricted to what is necessary to attain the legitimate aim of protecting health : Case 124/81 Commission v United Kingdom [1983] ECR 203 at p. 240, paragraph 33; Case 174/82 Sandoz, paragraph 18; Case 227/82 Van Bennekom, paragraph 39; Case 247/84 Motte [1985] ECR 3898, paragraph Finally, reliance is placed on the need to 23, and Case 304/84 Muller [1986] ECR protect public health under Article 36 or 1511, paragraph 23. National measures are pursuant to the judgment of the Court in justified only if it is established that they are Cassis de Dijon. I have dealt with the necessary in order to protect public health

It is for the national authorities to demon­ strate in each case that their rules are necessary to give effective protection and, in In my opinion, it has not been shown either particular, to show that the marketing of the how malt extracts, dextrose or sugar, product in question creates a serious risk to dextrine or other starches, substitutes for public health and, if relevant, that the barley malt or alcohol can be shown to be addition of the agents in question does not sufficiently toxic to justify the ban in Article answer a real need: Case 227/82 Van 3(4) of Law No 2963/1922 on grounds of Bennekom, paragraph 40; and Case 304/84 public health. Again there is no evidence or Muller, paragraph 25. Thus, in the present really any allegation that these are, or are case, the burden is on the Greek potentially, harmful. Government not merely to make out a prima facie case that the import restriction is justified on grounds of health protection but to show that its national provisions do not go beyond what is necessary to achieve the As regards glycerine and glycyrrhizin, objective of protecting health. The burden is which are the other products the addition of not — as the Greek Government has sought which in beer is banned by Article 3(4), the to argue — on the Commission to prove Greek Government has made no specific that beers brewed in other Member States allegation and provided no specific evidence are absolutely harmless or even that the of their toxicity. The expert report drawn additives which they may contain are up for the Commission by C. E. Dalgliesh essential for technological reasons. and J. Gry, and annexed to the application in this case, does not consider glycerine at all. It says that glycyrrhizin is a sweetening agent which is rarely used and in the United Kingdom, for example, is prohibited As regards the basic raw materials, malt and because it gives a false impression of 'body' hops, the Greek Government has not made and 'strength' to the beer (a point which in out a case that other raw materials are in my opinion goes to fair trading rather than themselves dangerous. It has said that where to health protection). The report also states beer is brewed from cereals other than that it is used only for some very special malted cereals, then enzymes have to be beer types and only in the Benelux used. It accepts, however, that enzymes may countries, and that it is not accepted as a be acceptable if they come from wholesome food additive in all EEC countries and is raw materials and are prepared in currently being evaluated by the Scientific accordance with good industrial practice. It Committee for Food of the EEC. That does has thus not argued for a total ban on the not in itself establish the Greek use of enzymes in brewing beer, but has Government's case even if there is a only gone as far as contending that their use question to be examined. On the evidence in

this case it does not seem to me that the Court said about pesticides in Case 94/83 Court should rule affirmatively that the Heijn [1984] ECR 3263 does not necessarily restriction on either glycerine or apply to enzymes or food additives. There is glycyrrhizin has been shown to be justified. no evidence to the effect that the Greek Accordingly I consider that the Greek Government has carried out such an investi­ Government has failed to justify the gation in the present case. The risks alleged prohibition of any of the products are of a general nature and indeed are so mentioned under Article 3(4) of the 1922 tenuous that a total ban on all additives, Law. such as that contained in Article 29(4) of the Code, is out of proportion to what is As to the general ban on additives which it necessary to attain the aim of protecting is accepted is contained in Article 29(4) of public health as it appears in Article 36 of the Food and Drink Code, despite doubts the EEC Treaty. To my mind, a prima facie expressed as to its interpretation, the Greek justification on grounds of health protection Government has adduced a series of for such measures has not been made out; if arguments which mainly concern uncer­ the contrary view were taken, the measure tainties about safe overall levels for the falls under the second sentence of Article 36 ingestion of additives and about their as being 'a means of arbitrary discrimination possible interaction with other substances. or a disguised restriction on trade between None of them specifies any particular Member States'. product which is said to be toxic or dangerous or even a serious risk for health. In the result I consider that the Greek However, the Court's case-law, in my view, Government has not made out a justifi­ establishes that the Member State must cation on grounds of the protection of proceed on a case-by-case basis to establish public health for the general ban on whether a particular product constitutes a additives contained in Article 29(4) of its risk for public health in its country, taking Food and Drink Code, in so far as that into account national dietary habits and provision may operate to prevent imports with due regard to the results of interna­ into Greece of beer lawfully produced and tional scientific research. Thus what the marketed in other Member States.