Opinion of Mr Advocate General Mancini
Mr President,
Members of the Court,
1. In connection with criminal proceedings brought against a Belgian national who is accused of having imported foodstuffs prepared with unauthorized colourants the Cour d'appel [Court of Appeal], Brussels, has asked the Court to interpret the rules of the EEC Treaty on the free movement of goods and in particular the principle contained in the first sentence of Article 36, according to which prohibitions or restrictions on imports... justified on grounds of... the protection of health and life of humans... are permissible. The Court is asked to establish whether that principle applies to national rules imposing a general prohibition (although the authorities may make exceptions in individual cases) on the marketing of foodstuffs to which colourants have been added and which have been imported from other Member States in which they may lawfully be marketed.
2. For a full understanding of the dispute it is necessary to supply certain details regarding the rules which govern the use of additives for foodstuffs in Belgium and the Community rules on colourants.
3. In the proceedings before the Court written observations were presented by Mr Motte, the Governments of Belgium and the Netherlands and the Commission of the European Communities. The Governments of the Federal Republic of Germany and of Denmark intervened only in the oral procedure.
4. The Commission and, of course, the defendant in the main proceedings take the opposing view, namely that the contested provisions are unlawful.
5. Expressed in terms which are more appropriate for proceedings under Article 177, the question submitted by the Cour d'Appel concerns the conformity with Community law of a national provision which prohibits the marketing, without prior administrative authorization, of foodstuffs prepared with the addition of colourants included in the Community list of permitted additives and marketed in the Member State of origin. It is therefore necessary to supply the Cour d'Appel with the criteria which will enable it to determine whether the preventive control which is the purpose of the authorization procedure may lawfully be imposed also in respect of products which are imported and which have already undergone similar checks in the State of origin, or whether it is incompatible with the provisions of the Treaty and with the secondary legislation regarding the free movement of goods.
6. In the first place all the interveners, with the exception of the Belgian Government, consider that the provisions in question are contrary to Article 30 of the Treaty. On that point, moreover, there can be no doubt. It is clear that a general prohibition on the addition (without an ad hoc authorization) of certain colorants to a foodstuff make it impossible to import and to market a product prepared in that way (see the judgment in Sandoz, p. 12, paragraph 8 of the decision). Moreover, when that has been established and it has been concluded therefrom that rules such as those laid down in the Royal Decree of 27 July 1978 impede intra-Community trade, it is necessary to determine whether and within what limits Member States may introduce or retain such rules in their legal order. As has been seen the provisions which must be taken into consideration for that purpose are contained in the Council Directive of 23 October 1962 and Article 36 of the EEC Treaty.
7. The Commission's second argument is even more tenuous. It maintains that since the addition of colourants to lumpfish roe is authorized in the State of origin it cannot be made subject to a new authorization in the importing State. On the contrary the Court stated in Frans-Nederlandse Maatschappij — where the subject of the prohibition was a disinfectant to which toxic substances had been added — that a State is not prohibited from requiring (the product in question) to be subject to prior approval, even if (those products) have already been approved in another Member State (paragraph 16 of the decision). Equally important for the purposes of this case in my view is the rule which the Court laid down in Heijn that Member States may introduce rules in respect of foodstuffs containing additives in a way which may vary from one country to another according to climactic conditions, the normal diet of population and their state of health .... They may permit different levels (of the same product) in respect of different foodstuffs (paragraph 16 of the decision).
8. The third argument advanced by the Commission refers to the assertion that the colouring of lumpfish roe corresponds to a technological or nutritional need. In the Commission's view, a State which disregards that need by prohibiting the substances which can meet it is adopting a position contrary to the principles laid down by the Court. Once again I do not agree. A technological need for food additives exists only when their addition is indispensable during the different stages of the production process of the product (for example preservatives, emulsifiers and gelatin). The reasons for the colouring of the foodstuff in question here are substantially different. They are of an organoleptic nature or, if it is preferred, psychological, as is proved by the fact that fish roe free of colouring is available on the Community market for those consumers who take the most uncompromising attitude towards disguising the natural appearance of their food and who are most concerned with its purity. I therefore consider it excessive to define as technological or nutritional a need such as that of rendering lumpfish roe more appetizing by making them similar in appearance — although certainly not in taste — to more exalted delicacies such as caviar, salmon roe and carp roe.
9. Fourthly the Commission maintains that the provisions in question prohibit a priori the importation of products to which colourants have been added and that a priori means by releasing the importing Member State from its duty to state the reasons for which the introduction of such products constitutes a public health risk. It is easy to refute that proposition. In the provisions in question the prohibition is not absolute but constitutes the central rule in a flexible system under which applications from the producers and the importers may be accepted, at least when they are consistent with the requirements of the protection of public health. If they are found not to be consistent with those requirements, then clearly the authorities must provide proof.
10. Finally the Commission argues that the Belgian measure is not appropriate because it exceeds the aim pursued by the legislature and therefore infringes the principle of proportionality laid down by the Court with regard to public health in the judgments of Sandoz and van Bennekom (paragraphs 18 and 39 of the decisions respectively). Equally effective and less restrictive results could be obtained by requiring the importer to inform the appropriate authorities of his intention to release onto the market a product containing colourant, where the product in question has been lawfully manufactured and released for consumption in the State of origin.
11. None of the arguments advanced by the Commission stand up to even cursory inspection. The same may be said of the propositions put forward by Mr Motte. The reference which he makes to the standstill obligation (Article 32 of the Treaty) is without foundation because the exception provided for in Article 36 refers expressly to all the provisions of Articles 30 to 34. His second argument is no less inconsistent. The analyses which the Belgian public health authorities carry out to determine whether the use of the additives is necessary, useful or suitable, in Motte's view, bear no relation to the protection of public health. Even if that is the case Motte forgets that the body in question is also required to assess the harmfulness of the additive and the degree of tolerance of humans for it.
12. On the basis of all the foregoing considerations I propose that the Court should reply to the question submitted by the Eighth Criminal Chamber of the Cour d'appel, Brussels, by judgment of 26 September 1984 in the criminal proceedings against Léon Motte of Woluwé-Saint-Pierre as follows:
1 Translated from the Italian.