Official Journal of the European Union

C 285/16

(Case C-333/08)

(2008/C 285/27)

Language of the case: French

Parties

Applicant: Commission of the European Communities (represented by: B. Stromsky, Agent)

Defendant: French Republic

Form of order sought

—declare that, by providing, in respect of technological adjuvants and foodstuffs in the preparation of which were used technological adjuvants originating from other Member States where they were lawfully manufactured and/or placed on the market, for a scheme of prior authorisation which does not comply with the principle of proportionality, the French Republic has failed to fulfil its obligations under Article 28 EC;

—order the French Republic to pay the costs.

Pleas in law and main arguments

By its action, the Commission complains of the restrictions on trade resulting from the French legislation relating to technological adjuvants. By introducing a system of prior authorisation for those products and for foodstuffs in the preparation of which were used technological adjuvants originating from other Member States where they were lawfully manufactured and/or placed on the market, that legislation makes the marketing of those foodstuffs and adjuvants more onerous and costly, thereby hindering intra-Community trade.

According to the Commission, a scheme of prior authorisation may, in certain circumstances, be justified on grounds of public health, but such a scheme would, in any event, have to satisfy the criterion of proportionality and comply with the conditions laid down in the case-law, including those set out in Case C-24/00 Commission v France [2004] ECR I-1277. In the present case, a number of those conditions are not satisfied, as the procedures provided for by that legislation are not easily accessible, expeditious and susceptible to challenge by way of legal proceedings in the event of authorisation being refused.