C-178/84

In these proceedings the Commission asks the Court to declare that the Federal Republic of Germany has failed in its obli­ gations under Article 30 of the EEC Treaty In the preliminary correspondence and in by prohibiting the marketing of beer the reasoned opinion, as in the application lawfully produced and marketed in another to the Court, the only legislation mentioned Member State unless that beer complies by either the Commission or the Federal with Articles 9 and 10 of the German law Republic was the BSG. Both sides appear to relating to duty chargeable on beer (Bier- treat this as containing the effective steuergesetz, 'BSG'). prohibition. It was only for the first time in its defence on the basis of a long report by a legal expert that the Federal Republic contended that the Commission had missed the whole point and that the real prohibition on the importation and marketing of foreign beers sprang from the German law on food­ Leaving aside the question as to which legis­ stuffs, relating particularly to the exclusion lation brings it about, there is no doubt of additives, the Lebensmittel- und Bedarfs­ about the fact that most beers produced in gegenständegesetz (Law on Foodstuffs and all but one other Member State, Greece, Consumer Goods, 'LMBG') and not from cannot lawfully be imported and sold in the BSG. The Federal Republic's particular Germany as beer. It is only, in effect, if they criticism of the Commission's stance on this are produced specially to comply with point seems to me to be unjustified; if the German legislation that such beers can be real basis for the prohibition on foreign sold, as in proportionately small, even if beers derives from rules as to additives it is increasing, quantities they now are. For the no less remarkable that the LMBG was not Commission the issue is thus an important mentioned earlier by the Federal Republic. one in the context of the task of establishing a common market, and in particular of Article 30. The Federal Republic regards the defence of its admitted restrictions on such importation as no less important. It relies in this case on the need to protect the German consumer from confusion as to what he is However, the question remains as to the getting, and on the protection of health, ambit of these proceedings. On the face of which it is said might be at risk if the it the Commission is attacking only the German beer drinker were to drink beers prohibition on the sale of beers which do

not conform to Articles 9 and 10 of the Federal Republic, I shall consider both sets BSG; it does not make any claim in respect of legislative provisions. Despite the cases to of restrictions on such sale arising from which I have referred and my own reading other statutory provisions, nor does it make of the initial claim not to do so would a general allegation that beers from other almost inevitably lead to further proceedings Member States may not be imported into covering identical ground to that covered by the Federal Republic. In the light of many the issues raised by the Federal Republic previous decisions of the Court it can be itself in this case. said that the Commission was not entitled to do so because it had not raised the matter in the reasoned opinion (e.g. Case 45/64 Commission v Italy [1965] ECR 857 and Case 211/81 Commission v Denmark [1982] ECR 4547). Nor can the scope of proceedings as defined in the application be The BSG in force at the relevant time widened in pleadings subsequent to the provides by Article 9(1) and (2) under the application (Case 232/78 Commission v rubric 'Beer production' the basic rule that France [1979] ECR 2729, Case 124/81 (a) 'only barley malt, hops, yeast and water Commission v United Kingdom [1983] ECR may be used in the production of bottom- 203, paragraph 6). In Case 123/76 fermentation beer' (which is the light- Commission v Italy [1977] ECR 1449 at p. coloured lager type beer most commonly 1458, where, as here, it was the defendant made in the Federal Republic) and (b) that which tried to widen the scope of the issues, for top-fermented beer the same limitation the Court refused to allow it to do so. On applies save that the use of other malts and the basis of those decisions the alleged technically pure cane, beet or invert sugar, restriction in the BSG is the only restriction and glucose and colourants obtained from at issue in these proceedings. The fact that those sugars, is permitted. By Article 9(3) in the reply the Commission picked up the 'malt means all artificially germinated gauntlet thrown down in the defence does cereals'. not alter the position so as to widen the application. If that is the right approach the LMBG is only relevant if it can be shown that it is the LMBG and not the BSG which contains a restriction, in which case the Commission would fail on the claim relating to the BSG. There are exceptions to this basic rule; thus, e. g. hop powders may be used instead of hops, and 'substances which operate by mechanical means or by absorption and which are then eliminated, except for amounts which are technically unavoidable and negligible from the point of view of health, odour and flavour may be used as However, since the restrictions contained in fining agents for wort or beer' (Article both the BSG and in the LMBG have been 9(6)). Moreover, in the production of debated so fully without objection by either top-fermentation Einfachbier sweetening party, and in the eventuality that the Court agents may also be used subject to the is prepared to treat the Commission's claim Zusatzstoff-Zulassungsverordnung (Order in substance if not in form as applying authorizing the use of certain additives, generally to the restrictions adopted in the 'ZZulV') in force at the relevant time, which

permitted saccharin to be used. Moreover zum Biersteuergesetz). The expressions the basic rules can be relaxed in individual 'production of beer' and 'beer production' cases 'for the production of special beer and are to be construed in the broadest sense beer destined for export or scientific covering all parts of the manufacture and experiments' and they do not apply at all to treatment of beer both in the brewery itself breweries which produce beer purely for and elsewhere — at the premises of the consumption on their own premises. distributor, publican and the like — until the beer has been supplied to the consumer. Detailed provisions are laid down as to what kind of grains may be used for the It is clear that this provision in Article 9 malt, but there is not, as one would not applies only to beer produced in the Federal expect under implementing provisions, any

beer'. If sugar is used that must be indicated top-fermented beer made outside the in a way which is apparent to the consumer. Federal Republic from rice or maize cannot, by a combination of Articles 9(2), (3) and 10(1), be marketed in the Federal Republic under the designation 'beer'. Article 10 thus refers back to Article 9. The two have to be read together since what cannot be marketed as beer is any beverage which does not comply with Article 9.

to. There are thus strict limitations on what may be used in the Federal Republic for the production of beer for domestic sale, subject to the minor exceptions to which I have These basic rules are taken further by the referred; and equally strict limitations on implementing provisions of the Bier- what may be marketed as 'beer' whether steuergesetz (Durchführungsbestimmungen made in the Federal Republic or elsewhere.

On the face of it the BSG goes further than that. By saying that bottom-fermented beer may only be made from barley malt, hops, yeast and water, it excludes the use of any Article 10 does not prevent the importation other substances. Although the BSG does and sale as such of products containing not owe its origin to a desire to control other substances than those specified. It additives in the present sense (since it does, however, prevent their sale as 'beer'. derives from early Bavarian laws to control This means that drinks known as beer made brewing, such as the Reinheitsgebot (Purity in other Member States (a) from maize or Law) adopted in 1516, which subsequently rice, which are commonly used there to were extended to other parts of Germany, make beer, or (b) which contain additives and which it is said were, at any rate in and processing aids (even extraneous part, aimed at preserving wheat for use as enzymes which are needed for rice and bread) the words used seem wide enough to maize, though not barley, to start the mean that additives, which may affect the germination process which leads to the flavour or keeping qualities, or the colour production of the cereal malt) cannot be or the taste or the amount of foam on beer sold as 'beer' in the Federal Republic. The must not be used. Similarly, processing aids Federal Republic has sought to argue that which assist the malting, enzymes, yeast this is a 'relative rather than an absolute nutrients and fining agents to remove yeast ban' so that, apparently the argument runs, and protein particles suspended in the beer it does not fall within Article 30. This before sale to the public (other than those argument is in my view untenable. A falling within Article 9(6) of the BSG) may restriction on the use of a particular desig­ not be used even if they disappear in the nation is capable of being a measure having brewing process. equivalent effect to a quantitative restriction within the meaning of Article 30: Case 12/74 Commission v Germany [1975] ECR 181; Case 193/80 Commissions Italy [1981] ECR 3019; Case 27/80 Fietje [1980] ECR 3839 and Case 182/84 Miro [1985] ECR 3731. A product lawfully made and marketed in one Member State, or tradi­ tionally made there, may prima facie be sold in the other Member States under the name Thus by virtue of Article 10 any drink used in the Member State of manufacture. It which includes these, wherever it was made, is in particular incompatible with Article 30 may not be sold under the designation 'beer' of the EEC Treaty for national legislation in the Federal Republic. This is not only the to restrict a generic designation to one

national variety to the exclusion of varieties rules in question are not discriminatory produced in other Member States (Case because they apply to national and imported 12/74 and Case 193/80, supra). products alike. ... The answer to that argument must be that .. . even if the system established by the Italian legislation applies to national and imported products alike, its effects are still protective in nature. It has been drafted in such a way that it allows only wine-vinegar to enter Italy closing the frontier to all categories of vinegar of agri­ cultural origin. It therefore favours a typically national product and to the same The Federal Republic argued that 'beer' is extent puts various categories of natural not a generic term. That again is untenable. vinegars produced in the other Member The beverage 'resulting from the alcoholic States at a disadvantage'. It is said that the fermentation of an aqueous extract of cereal Court's judgment in the vinegar case does grains with the addition of hops' is known not apply since the real objection to the everywhere in the Community as 'beer'. If Italian legislation was that it made it support from a dictionary is needed, which impossible for Member States with no vines in my view it is not, it is to be found for to sell domestically produced vinegar in example in the New Hutchinson Twentieth Italy, whereas in this case all Member States Century Encyclopedia, namely 'Beer is can produce barley so that they can comply strictly a generic term'. The BSG itself with the German rules. That is a difference indeed is driven to describe the beverages in fact between the two cases, but it does made for export or for consumption on the not affect the principle. The German rule premises of the brewer, which need not precludes the import of beer made from necessarily comply with Article 9(1) and maize and rice for sale as beer in Member 9(2), as 'beer'. No other word would States where it is lawfully and traditionally obviously be appropriate. They are beer just so made and sold. as much as drinks made in compliance with Article 9(1) and (2) are beer. Subject to any other justification for the rule being shown, there is no valid reason why beer from other Member States should have to be marketed under made-up names.

to alter the characteristics of such foodstuffs 9(1) to (8) and (11) and Article 10(1) and or to give them specific properties or (2) of the BSG together with certain articles produce specific effects'. Article 11 prohibits of the implementing provisions of the BSG. the use of unauthorized additives in the This, however, has not been done. commercial production or processing of foodstuffs which are intended to be put into circulation and the commercialization of foodstuffs produced in breach of that Under the LMBG, authorizations have been prohibition. There are, however, excluded granted for the use of additives generally by from the prohibition (a) 'additives which are the ZZulV of 1977, as now replaced in eliminated from the foodstuff altogether or 1981, and regulations have been made to such an extent that they or their dealing with specific foodstuffs such as conversion products are present in the meat, fruit juice and fruit syrups and wine. product for sale to the consumer ... only as No such regulation has been made in technically unavoidable and technologically respect of beer. insignificant residues in amounts which are negligible from the point of view of health, odour and taste' and (b) enzymes.

The LMBG was adopted as part of the Law on the General Reform of Foodstuffs Provisions (Gesetz zur Gesamtreform des It must, however, still be considered Lebensmittelrechts). Under Chapter 4 of the whether the restriction contained in Article transitional and final provisions of that law 10 of the BSG is justified on the grounds of (BGBl 1974 I, p. 1963) the Federal Minister the protection of health of humans under is empowered to repeal, inter alia, Article Article 36 of the Treaty or under the

OPINION OF SIR GORDON SLYNN —CASE 178/84

I do not accept that argument. 'Beer' is a generic term which covers many different kinds of beer as is widely known. The Federal Republic's very insistence on the In the pre-litigation correspondence the special nature of its beer goes only to Federal Republic relied on mandatory underline the fact that other and different requirements relating to the protection of beers exist. These beers can be distin­ health to justify the restrictions in the BSG. guished, and the German beer consumer At the hearing it expressly abandoned any sufficiently protected, by adequate labelling. such contention. It was plainly right to do It seems to me to be a complete exag­ so. The absolute prohibition on the use of geration to say that a label on a beer bottle rice and maize cannot be justified on this cannot indicate with sufficient clarity that a ground, despite suggestions that rice is not beer is not ordinary German beer complying always properly washed and despite with the BSG; it may be a little more references to illnesses caused by the use of difficult if beer is sold by the glass but millet in the past. Nor, if it is correct to suitable notices at the place of purchase can read Article 9 as banning all additives and be given. It is indeed easier to do this in processing aids, including enzymes, can respect of beer than it is to do it in a such a blanket prohibition be justified when canteen in respect of the contents of some relevant additives are in any event prepared foods, since beer is commonly

COMMISSION v GERMANY

protection. Accordingly, I consider that the may be used, in what foodstuffs and in what Commission is entitled to the declaration it quantities. There has been in recent years an seeks in respect of the BSG. enormous increase in the number of such additives; governments should seek to reduce them. The better policy, widely accepted if not universally accepted, is that additives should not be used until shown to be harmless, rather than that they should be used unless shown to be harmful.

drinks, as is said to be not at all uncommon, 1 000 litres of beer a year, the quantity of additives likely to be ingested is very large, especially if such additives are also to be found in other foods. Moreover, account must be taken of other sources of pollution of the atmosphere, and of food, which may react with additives taken. In any event, additives, it is said, may be suppressed The Federal Republic does not suggest that unless they are technologically necessary in beers made in other Member States and the sense that they are 'indispensable to the containing additives are in themselves manufacturing process' of the product harmful to health. Nor does it say that the concerned. Here, because beer is made in particular additives used, taken in the quan

The Commission does not contend that, pending further harmonization, national legislation regulating the use of additives, which leads to goods produced in other Member States being excluded from a particular Member State, is necessarily a As a preliminary point both sides agree that breach of Article 30 of the Treaty. It the use of additives and processing aids can recognizes that additives which are suspect only be justified if they are technologically may be banned, that the number of necessary. The Commission, however, takes additives authorized in a particular Member a more liberal view than does the Federal State may need to be kept within Republic as to when additives can be said to controllable limits and that the 'spread of be technologically necessary. They do not additives' over various foodstuffs is a factor have to be indispensable to the manufac­ to be taken into account. Both in its reply turing process as such. Thus the mere fact and at the hearing, it accepted that it may that some beer can be made without be justified to ban certain additives either additives or processing aids does not mean totally or in certain products. that they are not technologically necessary for others. On this, in my view, the Commission is right. If beer cannot be made from cereals other than barley without additives or processing aids to provoke the germination process then such additives or aids are technologically necessary for that purpose. German beer must, apparently, be Its primary case is that this total ban on drunk within a short period of its being additives in beer is unjustified in the brewed; if the only way to make beer with a interests of protecting public health, and is longer shelf-life is to use preservatives, they wholly disproportionate; in the alternative it are, in my view, technologically necessary is a disguised restriction on trade between for that purpose. Preferences differ as to Member States. colour and flavour of beers; if additives are needed to achieve the desired taste and colour or amount of foam they are techno­ logically necessary for this purpose. That view is consistent with the 'General Prin­ ciples for the Use of Food Additives' adopted by the ninth session of the Codex Thus, so far as beer is concerned, the Alimentarius Committee (Annex 7(2a) to Commission accepts that a specific ban on the Commission's application). It thus seems

Thus in Case 174/82 Sandoz [1983] ECR 2445, which was concerned with vitamins, the Court considered at pp. 2462-4 that the Council directives dealing with colouring matters and preservatives and the compo­ sition and labelling of foods showed that the legislature accepted in principle that it was necessary to restrict the use of food additives to the substances specified 'whilst In a number of cases the Court has leaving the Member States a certain recognized that in the absence of discretion to adopt stricter rules'. The Community harmonization, Member States principle stated in Frans-Nederlandse Maat- may, in so far as uncertainties exist in the schappij applied to substances such as present state of scientific research, decide vitamins which are not as a general rule what degree of protection of health and life harmful in themselves, 'but may have special of humans is justified. But this is not an harmful effects solely if taken in excess as absolute discretion. Member States must be part of the general nutrition, the compo­ able, and the onus is on them, to justify the sition of which is unforeseeable and cannot restrictions adopted in the interests of be monitored. In view of the uncertainties protecting health and life. They must inherent in the scientific assessment, exercise their discretion having regard to the national rules prohibiting, without prior Treaty requirements of the free movement authorization, the marketing of foodstuffs of goods and must not adopt measures to which vitamins have been added are which are more restrictive than is necessary justified in principle within the meaning of to attain the legitimate aim of protecting Article 36 of the Treaty on grounds of the health. Such measures must thus satisfy the protection of public health'. That case has general principle of proportionality and in certain parallels with the present one. any event must not constitute a means of However, it is to be noted that the Court arbitrary discrimination or a disguised added: 'Nevertheless the principle of restriction on trade. In Case 272/80 Frans- proportionality which underlies the last Nederlandse Maatschappij voor Biologische sentence of Article 36 of the Treaty requires Producten [1981] ECR 3277 at p. 3290, that the power of the Member States to paragraph 12, the Court, there as elsewhere prohibit imports of the products in question recognizing the discretion vested in Member from other Member States should be States, stressed that the discretion was to be restricted to what is necessary to attain the

Such a test had been satisfied in the earlier Case 53/80 Officier van Justitie v Kaas- fabriek Eyssen [1981] ECR 409, where Again, in Case 94/83 Officer van Justitie v serious doubts as to the risk of the Heijn [1984] ECR 3263 at p. 3279, the consumption of products containing nisin Court proceeded on the basis that: 'It is not had led to investigations by the Food and disputed that pesticides constitute a major Agriculture Organization and the World risk to human and animal health'. Council Health Organization. The risk was not Directive 76/895 of 23 November 1976 simply in relation to cheese but in relation (Official Journal 1976, L 340, p. 26) to global quantities likely to be ingested confirmed this: 'Pesticides do not have only from all sources even though the studies had a favourable effect on plant production, not 'enabled absolutely certain conclusions since they are generally toxic substances or to be drawn regarding the maximum preparations with dangerous side effects' quantity of nisin which a person may (fifth recital). Hence, since quantities consume daily without serious risk to his absorbed could not be predicted and since health' (emphasis added). There was conditions vary from Member State to sufficient doubt about the substance to Member State, national restrictions could be justify different rules in the Member States, justified in the interests of protecting health. and, in the instant case, to justify the In both that judgment and in Case 54/85 prohibition of the addition of nisin to home- Ministère public v Mirepoix [1986] ECR produced or imported processed cheese. 1067, the Court stressed the importance of

reviewing restrictions adopted in the light of too far. It seems to me disproportionate to subsequent scientific research. seek to justify rules which exclude the whole of society from beer other than nationally produced beer because some additives may constitute a risk for a person who drinks in excess of 1 000 litres of beer a year or for an alcoholic already suffering from cirrhosis of the liver. Accepting that such persons may need protection there are other ways of achieving it, medical advice as to quantum and self-restraint to name only More recently, in Muller it was accepted two. that even if the substance at issue was not harmful in itself there was a threshold of absorption beyond which a risk arose, so that restrictions necessary to protect public health could be imposed nationally, taking account of local eating habits but also taking account of international scientific research, particularly that of the Community committees. In Case 247/84 Motte [1985] ECR 3887 the Court accepted, The question remains, however, whether the as it had done previously, that national Federal Republic's case for a blanket ban on authorities are not barred from requiring a additives in beer imported from other prior authorization for importation merely Member States measures up to the necessary because use of the product is authorized in tests. There is produced the evidence of the exporting State. Yet, it was held, scientific experts to support the Member States must authorize colouring government's case which insists on the matter if that corresponds to a real need in importance of restraining additives in the light of the eating habits in the respect of which safety cannot be importing Member State and of health risks guaranteed; it stresses the inherent dangers assessed in the light of current international of the interaction of one additive with scientific research and particularly of the others and the possible dangers to those relevant Community committees. who are allergic to such additives. This evidence taken overall is, however, by no means uncontested. The Commission's experts conclude that the theoretical risk in the Federal Republic is not substantially greater than that in Belgium, Denmark and Ireland where beer consumption is almost 80% as high as in Germany and where additives are accepted; the hypersensitivity risk is less than that suggested by the Thus, the factors which the Federal government's experts and can to some Republic points to are largely legitimate extent be avoided by adequate labelling. factors — the need to avoid excessive use of There is no greater risk of interaction additives, the risk of the interaction of one between additives than between other items additive with others and with alcohol, the of nutrition. Moreover, it is stressed that cumulative effect, the risk of allergy. I say scientific research into the effect of additives 'largely' because at times the argument goes is at least as extensive and perhaps more

extensive than that undertaken in regard to animals is an acceptable figure for human health risks from other food constituents. ingestion giving an adequate safety margin, particularly if the Commission is right in saying that ADIs do take account, even to some extent, of accumulation and of the interaction of various additives. The Commission recognizes that this ADI has to be examined in relation to all sources of ingestion and that a Member State may allocate the maximum quantity of each additive allowed in each foodstuff so as to ensure as far as possible that the ADI or other limits accepted where such ADIs do not exist at the international level, are not exceeded. That still does not in the Commission's view justify an absolute ban of all additives, especially when it is not At the end of the day, however, it seems to shown that likely dietary patterns will lead me that the case has to be judged not on to an excess. Even less is it so, in my generalities and broad statements of opinion, if, as is argued in relation to principle but on the concrete factual consumer protection, habits in the Federal material produced. The starting point is that Republic are so entrenched that there will none of the additives authorized for use in be consumer resistance to beer with other Member States is said to be harmful in additives so that the amount consumed will itself nor is it said that any beer brewed in be small or at least not predictably large. other Member States is in itself harmful, leaving aside the effect of alcohol. There is no real evidence that the additives in them­ selves have been shown to interact adversely or that they are subject to suspicion based on concrete evidence. Nor is there any convincing evidence to show that the quan­ tities of each additive likely to be ingested through imported beer is such that, taken with additives in other foods, a real risk to health is created by the acceptable daily intake (ADI) of each additive being exceeded. In my opinion, the Federal Republic dismisses too readily and without producing satisfactory reasons the system of The specific additives authorized for beer in ADIs accepted by the Commission and other Member States have been set out in a internationally in respect of some if not all schedule in answer to a question from the of the additives. It is plain that these ADIs Court. Of the 27 listed, all but 7 specific do not guarantee absolute safety, as the ones (and three cellulose derivatives forming Commission's witness accepted, since part of an eighth group) are authorized for humans are different from animals used in use in some foodstuffs in the Federal the laboratory tests and the ADIs do not Republic, but banned totally for beer. Thus: necessarily reflect varying local conditions item 1, ascorbates, used as antioxidants in or personal habits; yet it is difficult to reject the brewing of beer, are authorized in the scientific evidence that 1% of the 'no Germany for use in certain kinds of cheese, effect level' of ingestion for laboratory powdered milk and other food products;

item 3, a colouring agent, is authorized for I do not deal with these specific items, and use in puddings or sweets; item 9, tannic the evidence relating to them, in further acid, is authorized for fruit juices, jams and detail, partly because it is available to the wines; item 12, gum arabic, is allowed in Court in the schedule, and partly because it chewing gum, cheese preparations, mixed does not seem to me to be appropriate in dairy products, wine and other foodstuffs; this case for the Court to rule on specific item 14, carrageenan, is authorized for use additives. The case has not proceeded in in edible ices, cheese preparations and that way. The question is whether the mixed dairy products, fruit juices and wine; overall ban in the LMBG has been shown to item 21, saccharin, is authorized for a be justified for the protection of health. number of drinks including top-fermented Einfachbier, as a result of Article 9(11) of the BSG and the ZZulV despite the scientific reserve which is expressed about its use in other countries. All of these and others are excluded from beer, save as to saccharin in the limited way mentioned, though they can be used in other foodstuffs Obviously the protection of health by the and at least six individual items on that list control of additives is important and, in the may be used in wine-making. absence of Community rules, has to be dealt with by the Member States in the light of conditions prevailing in each State. To give any meaning at all to the free movement of goods, however, there must be some solid justification for restrictions adopted in respect of specific additives. The slogan 'everything can be banned in beer until it is Others on the list are apparently very little cleared and shown to be harmless both in used, such as item 5, calcium disodium itself and in relation to other substances EDTA (authorized in Denmark); item 8, ingested' in my view goes too far. Without ferrous sulphate (used in the Benelux some real ground for suspicion that is not a countries and said to be of no health valid exercise of the discretion which the concern). Court has recognized Member States to have. The onus is on the Federal Republic to show that the ban on each item used is justified rather than on the Commission to prove that each beer made in other Member States is totally harmless, or that the additives which they contain are indis­ There may well be others where there is pensable for technological reasons. ground for refusing their use in beer. Thus some doubt may exist as to glycyrrhizin (item 11), reductones (item 20), potassium bromate (item 4), unless as the Commission's experts Dalgliesh and Gry say, it is converted into bromide in the course of brewing, and gibberellic acid (item 10) as to which the parties are at issue and In this case it seems to me that there really which may well be largely eliminated in the has not been such an item-by-item exam­ brewing process in any event. ination, not least since no detailed subor-

dinate legislation has been made in respect applied in each Member State. What it of beer as it has been in respect of many means is that each additive must be looked other foodstuffs and wine. at, both separately and in combination, rather than an absolute block being imposed on an a priori, theoretical basis. Whether a restriction in the importing State can be justified in respect of specific additives on the ground of their potential harmfulness, or because it can be shown affirmatively that, combined with other foods, the ADI of a particular additive is likely to cause harm, is a different question which I do not On the evidence, accordingly, I do not consider falls to be dealt with in the present consider that the Federal Republic has made case. out on solid grounds the 'serious risk' or 'real danger' to public health which justifies this absolute restriction; the generalized arguments as to the need to limit additives do not, in my opinion, make out even a prima facie case, when as the Court has so often stressed, the restriction must be seen in the light of the principle of the free movement of goods. Moreover, although the Court has already said that the need for Even if there were a prima facie case for this Member States to cooperate in order to overall ban, which I do not consider that facilitate frontier checks, and to have regard there is, it seems to me that on the evidence to certificates of inspection from other as a whole, and not least the fact that no Member States does not prevent a Member effort has been made in subordinate legis­ State from laying down its own legislation lation to curb specific additives for good to protect public health (see e. g. Melkunie, reason, this ban is, and certainly has not paragraph 14), it seems to me that in been shown by the Federal Republic not to deciding whether such a blanket restriction be, a disguised restriction on trade or can really be necessary some regard must be arbitrary discrimination within the meaning had (a) to the standards accepted in other of Article 36. Member States, where substantial amounts of beer are traditionally consumed without any solid evidence of damage to health through the kind of additives there auth­ orized, and (b) to what is regarded as tolerable by the Community's committees on food and by other international health organizations. This does not mean that the say-so of the exporting State is final; it merely means that it should be taken into I do not accept the arguments based on account. Nor does it mean, as the Federal existing Council directives, that of 23 Republic argues in terrorem, that if an October 1962 on colouring matters (Official additive is used in one Member State it must Journal, English Special Edition 1959-62, be accepted everywhere so that the number p. 279); 64/54/EEC of 5 November 1963 of additives in the German diet would on preservatives (Official Journal, English extend to thousands or that the lowest Special Edition 1963-64, p. 99), standards in the Community must be 70/357/EEC of 13 July 1970 on antiox¬