Opinion of Advocate General
Mr President,
Members of the Court,
1. Brasserie Fischer SA, a company established at Schiltigheim in France, produces and sells a beer called 36.15 Pêcheur — La bière amoureuse in accordance with the applicable French legislation. That beer was imported into Italy by WAXOR Sri, which marketed it as an alcoholic beverage based on beer and plant extracts.
2. When a check was carried out in April 1990, the competent Italian authority found that the beer in question contained 36.8 mg/1 of sulphur dioxide, which is considerably in excess of the amount permitted under the Italian legislation. In the light of that finding, the Procuratore della Repubblica (State Prosecutor) attached to the Pretura Circondariale (District Magistrates' Court), Pordenone, brought criminal proceedings for fraud against Michel Debus, the legal representative of Brasserie Fischer SA, and ordered all the beer in question on sale in the district of Pordenone to be confiscated. A copy of the confiscation order was sent the State Prosecutors attached to the other district magistrates' courts for appropriate action. The State Prosecutor attached to the Pretura Circondariale, Vigevano, followed suit and ordered the beer in question in his district to be confiscated.
3. Before tackling these questions, it should be noted that the Commission calls in question the admissibility of the request for an interpretation made by the Pretura Circondariale, Vigevano, on the ground that, under Articles 12 and 16 of the Codice di Procedura Civile (Italian Code of Criminal Procedure), that court had no jurisdiction in the main proceedings.
4. As regards the national court's first question, I would first observe that the Italian legislation cited above unquestionably constitutes a measure having equivalent effect contrary to Article 30 of the EEC Treaty. That legislation, which prohibits the sale in Italy of beer with a sulphur dioxide content of over 20 mg/1, constitutes a trading rule capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.
5. The Court has consistently held that, in the absence of harmonization of national legislation, it is for the Member States to decide what degree of protection they intend to assure to secure protection of the life and health of humans. However, in so deciding they must take account of requirements relating to the free movement of goods within the Community. As far as the use of additives in foodstuffs is concerned, a field in which there has as yet been only partial harmonization, the Court has elucidated that important restriction inter alia in the judgment in Case 304/84 Ministère Public v Muller. The relevance of the grounds set out by the Court justifies lengthy quotation:
6. With regard to the procedure referred to in paragraph 23 of the judgment quoted above, the Court added the following clarification in the judgment in Case 178/84 Commission v Germany:
7. It is not challenged in these cases that excessive ingestion of sulphur dioxide as a result of the overall intake of food is harmful to human health. In view of the absence of Community legislation on the matter (see section 5, above, footnote 7), it is therefore for Italy — as is clearly recognized in the case-law cited above — to conduct a policy designed to maintain within safe limits the ingestion of sulphur dioxide resulting from the overall absorption of foodstuffs and to limit, pursuant to such a preventive health policy, the maximum sulphur dioxide content of beer. In accordance with the aforementioned case-law, Italy was entitled to prohibit any addition of sulphur dioxide to beer which did not meet a real need, in particular a technological or economic need.
8. The Italian Government observes in this connection that, in order to ensure protection of public health, most Member States restrict the use of sulphur dioxide in beer, and that the Italian legislation is not among the most restrictive. Germany, Belgium, the Netherlands, Luxembourg, Denmark and Greece apply an identical or even lower sulphur dioxide content, which shows, the Italian Government argues, that the Italian legislation is not disproportionate compared with the aim pursued, namely protection of public health, and that the addition of more than 20 mg/l of sulphur dioxide does not satisfy a technological or economic aim.
9. It is for the national court to determine whether the Italian legislation at issue infringes the principle of proportionality by prescribing for beer a much lower maximum sulphur dioxide content than that laid down for wine, despite the fact that in Italy, unlike in the Benelux countries, Denmark and Germany, much less beer is consumed than wine. In answering that question, the national court should take into account, on the one hand, the relative consumption of beer and wine compared with total food consumption in the Member State concerned and the real danger of each of those products for health by reason of the excessive ingestion of sulphur dioxide as a result of the total consumption of food. In addition, it should also take account of the differences between beer and wine as regards the technological or economic need to add the additive at issue to those products.
10. In any event, the Italian legislation appears to me to be at odds with the principle of proportionality in another respect in a way which is more manifest and hence easier to establish. As I have already mentioned, the Italian legislation does not make provision for a procedure whereby authorization can be obtained for marketing in Italy beer manufactured lawfully in another Member State whose sulphur dioxide content exceeds 20 mg/1.
11. I can deal briefly with the two other questions raised by the national court. A national court may not apply domestic legislation which is incompatible with Articles 30 and 36 of the Treaty, and is bound to take, within the limits of its jurisdiction, all measures capable of making the free movement of beer imported from other Member States possible in accordance with Articles 30 and 36 of the Treaty.
12. Having regard to the foregoing observations, I propose that the Court should answer the national court's questions as follows:
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.