C-42/90

BELLON

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 14 November 1990 *

Mr President, relevant Community law is essentially laid Members of the Court, down in Articles 30 and 36 of the EEC Treaty.

1. The defendant in the main proceedings is being prosecuted before the Tribunal de grande instance (Regional Court), 4. It is true that Council Directive Marseille, in his capacity as manager of a 64 / 54 / EEC , 1 to which the national court company which, in 1982, sold in France refers, includes sorbic acid among the pastry products from Italy of a type known preservatives whose use may be authorized as 'panettone' which contained sorbic acid, by Member States, and does not lay down a preservative whose use is permitted in any conditions for its use. But that authori­ Italy but not, for that type of product, in zation is not compulsory. The directive France. constitutes the first stage in the approxi­ mation of the relevant laws, of the Member States, and Article 1 merely prohibits Member States from authorizing the use of additives other than those listed in the 2. The national court therefore seeks a annex, without requiring them to authorize preliminary ruling on the following the use of all those which are listed there. question:

8. First of all, any such prohibition had to comply with Article 2(2) of the directive, as 12. The national measure in issue, a 3 amended by Directive 67/427/EEC, to prohibition on the marketing of a foodstuff, which both the defendant in the main clearly hinders the marketing of that proceedings and the Commission devote a foodstuff and therefore undoubtedly number of arguments. constitutes a measure having an effect equi­ valent to a quantitative restriction within the meaning of Article 30, which the Court has 5 interpreted as applying to any measure 9. That paragraph provides: capable of hindering, directly or indirectly, actually or potentially, intra-Community trade. 'However, the laws of a Member State may totally exclude the use of any of the preser­ vatives listed in the Annex only where there is no technological reason for using such preservative [in] foodstuffs produced and 13. The prohibition could therefore only be consumed in its own territory.' justified on grounds relating to the protection of public health, under Article 36 of the Treaty, recourse to which remains available in the light of the abovementioned 10. It is obvious that that article can have judgments. no relevance to the present case, since we are dealing with foodstuffs produced outside France. The national court has, moreover, pointed out that the applicable French legislation permits the use of sorbic 14. The Court, in its case-law, has never­ acid in certain cases. theless laid down specific conditions in that regard. Those conditions are listed, inter alia, in its judgment of 12 March 1987 in 6 Commission v Germany, the 'Beer' case, in 11. But Member States had also to comply which the following passages appear: with Articles 30 and 36 of the Treaty. The Court has consistently held that 4 — See, inter alia, the judgments in Case 247/84 Molle [1985] ECR 3887, paragraph 16 and in Case 304/84 /Mimiiére public v Muller [1986] ECR 1511, paragraph 14. 3 — Council Directive of 27 June 1967 on the use of certain 5 — See the judgment in Case 8/74 Procureur du Roi v preservatives for the surface treatment of citrus fruit and Dassonville [1974] ECR 837. on the control measures to be used for the qualitative and quantitative analysis of preservatives in and on citrus fruit 6 — Judgment in Case 178/84 Commission v Germany [1987] (OJ, English Special Edition 1967, p. 169). ECR 1227, at p. 1262.

'44 It must be borne in mind, in the first courts an unjustified failure to grant place, that in its judgments in the authorization .. . ' Sandoz, Motte and Muller cases, cited above, the Court inferred from the principle of proportionality underlying the last sentence of Article 36 of the Treaty that prohibitions on the marketing of products containing 15. As regards the application of those additives authorized in the Member conditions to the present case, I share, State of production but prohibited in essentially, the Commission's views. the Member State of importation must be restricted to what is actually necessary to secure the protection of public health. The Court also concluded that the use of a specific additive which is authorized in another Member State 16. The Commission states, first of all, that must be authorized in the case of a the amount of additive contained in the product imported from that Member product concerned does not exceed the State where, in view, on the one hand, limits laid down in Italian law. The product of the findings of international scientific is therefore one which is lawfully produced research, and in particular of the and marketed in a Member State. work of the Community's Scientific Committee for Food, the Codex alimen- tarius Committee of the Food and Agri- culture Organization of the United Nations (FAO) and the World Health Organization, and, on the other hand, 17. Furthermore, sorbic acid is included in of the eating habits prevailing in the the list of preservatives adopted by Directive importing Member State, the additive in 64 / 54 , with no particular conditions as to question does not present a risk to its use, precisely because it does not in public health and meets a real need, principle present a serious risk to human especially a technical one. health. Before the Community legislature includes an additive on such a list, research is carried out to detect any risks to human health presented by the substance 45 Secondly, it should be remembered that, concerned. A possible threat to health could as the Court held in its judgment of 6 only be established, therefore, by circum- May 1986 in the Muller case, cited stances peculiar to the Member State above, by virtue of the principle of concerned, such as the eating habits of its proportionality, traders must also be population. able to apply, under a procedure which is easily accessible to them and can be concluded within a reasonable time, for the use of specific additives to be auth- orized by a measure of general application. 18. It is clear from the Court's case-law that the burden of producing that proof in the context of the national authorization 7 procedure lies on the national authorities. 46 It should be pointed out that it must be open to traders to challenge before the 7 — See, for example, the judgment in Muller, cited above.

(iii) find that, since French legislation provides for the possibility of dero­ gations on a case-by-case basis and no 23. In paragraphs 44 to 46 of that same derogation has been granted by the judgment, cited above, the Court indicated public authorities either on their own the requirements arising out of Article 36 of initiative or on application by Mr the Treaty with regard to such products. In Bellon, the general rule should be each of those three paragraphs, the words applied and the defendant should be 'authorization' or 'authorized' is used. convicted?

24. It is therefore clear that, if there is no 21. I consider, subject to one reservation authorization to use sorbic acid in with which I shall deal below, that the third course is right. 8 — Sec footnote 6.

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BELLON

'panettoni', the French courts are entitled to on grounds relating to the protection of the apply the general prohibition laid down in health of its population.' French legislation and convict a defendant who has infringed that prohibition.

28. On the basis of all the foregoing considerations, I propose that the question raised should be answered as follows:

'Articles 30 to 36 of the EEC Treaty do not preclude a Member State from prohi­ biting the marketing of a foodstuff which has been imported from another Member State where it was lawfully produced and marketed and to which one of the substances listed in the annex to Council Directive 64 / 54 / EEC of 5 November 1963 has been added, provided that it is possible to submit an application for auth­ orization to market that type of foodstuff in the first Member State and that such application can be rejected only under a procedure which in every respect meets the criteria laid down by the Court in its judgment of 12 March 1987 in Case 178/84 Commission v Germany [1987] ECR 1227.'

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