Opinion of Advocate General Van Gerven delivered on 24 March 1992

1 Original language: Dutch.

2 The label of the bottles of the beer at issue which are marketed in Italy bears the words: 36.15 Pêcheur — Bevanda alcolica a base di birra ed estratti vegetali. Under the Italian legislation, this beer may not be marketed as birra. In its observations, the Commission raises the question as to whether that prohibition is compatible with Council Directive 79/112/EEC of 18 December 1978. However, that question is not at issue in these proceedings.

3 See GURI No 234 of 17 September 1962. That law was amended by Law No 329 of 16 July 1974 (GURI No 211 of 12 August 1974) and by Law No 141 of 17 April 1989 (GURI No 96 of 26 April 1989). However, Article 4(l)(c) was not amended.

4 Sulphur dioxide (SO 2) is an additive (E 220) which is added to foodstuffs, in particular, but not exclusively, beer and wine, as a preservative.

5 Judgment in Case 14/86 Pretore dt Salò v X [1987] ECR 2545, paragraphs 6 and 7.

6 Judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5.

7 See the recent judgment in Case C-347/89 Freistaat Bayern v Eurim-Pharm [1991] ECR I-1747, paragraph 26.

8 It is not disputed that that is the case here. Council Directive 64/54/EEC of 5 November 1963 on the approximation of the taws of the Member States concerning the preservatives authorized for use in foodstuffs intended for human consumption (OJ, English Special Edition 1963-1964, p. 99) and Council Directive 89/107/EEC of 21 December 1988 on the approximation of the laws of the Member States concerning food additives authorized for use in foodstuffs intended for human consumption (OJ 1989 L 40, p. 27) authorize the use of sulphur dioxide as an additive, but do not specify the maximum quantities which may be used.

9 Case 304/84 Ministère Public v Muller and Others [1986] ECR 1511, paragraphs 20 to 25. See also, for example, the more recent judgment in Case C-42/90 Ministère Public v Bellon [1990] ECR I-4863, paragraphs 11 to 17.

10 Case 178/84 Commission v Germany [1987] ECR 1227, paragraphs 45, 46 and 47.

11 Reference is made in this connection to the opinions delivered by the Joint FAO/WHO Committee on Food Additives and the Community's Scientific Committee for Food. However, it should be observed that, according to the Commission, total intake of sulphur dioxide may not exceed 21 me/day for a person weighing 60 kg, whilst, according to the Netherlands Government, which relies on the same sources, the maximum daily dose is 40 mg.

12 The maxima authorized in those Member States are as follows: France: 100 mg/1; Spain: 30 mg/1; Italy and Denmark: 20 mg/1; Belgium, Netherlands and Luxembourg: 20 mg/1 for strong beers and 10 mg/1 for beers with a low alcohol content; Germany: 10 mg/1. In Greece the use of sulphur dioxide is completely prohibited.

13 As I have already mentioned in section 1 and in footnote 1, the beer in question could not be marketed in Italy as birra.

14 This is the case, for instance, in the Netherlands, as the representative of the Netherlands Government stated at the hearing.