OPINION OF ADVOCATE GENERAL

delivered on 24 March 1992 (*1)

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’. (1)

Article 4(1 )(c) of Italian Law No 1354 of 16 August 1962 laying down hygiene rules for the manufacture and marketing of beer (2) provides that the sulphur dioxide content of beer (and of alcoholic beverages based on beer) may not exceed 20 mg/l. (3) That limit also applies to imported beers by virtue of the first paragraph of Article 19 of that law. The Italian legislation does not provide for a procedure for obtaining authorization to market in Italy beer containing more than 20 mg/1 of sulphur dioxide lawfully produced and marketed in another Member State.

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.

Michel Debus contested the confiscation orders before the Pretura Circondariale, Pordenone, and before the Pretura Circondariale, Vigevano, relying on the free movement of goods within the Community. In the course of those proceedings, the Pretura Circondariale, Pordenone, (Case C-13/91) and the Pretura Circondariale, Vigevano, (Case 113/91) by orders of 9 January 1991 and 25 March 1991, respectively, referred to the Court for a preliminary ruling the following identically-worded questions:

1.‘1. Are Articles 30 and 36 of the Treaty establishing the European Economic Community to be interpreted as meaning that the Italian provisions on health rules for the production and marketing of beer (Law No 1354 of 16 August 1962 and Law No 141 of 17 April 1989) are to be regarded as incompatible with those articles in so far as those rules permit the use of not more than 20 mg per litre of sulphur dioxide?

2.Are the Italian provisions to be disregarded by the criminal courts?

3.Must beer containing more than 20 mg per litre of sulphur dioxide be allowed to be in free circulation?’

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.

I consider it to be unnecessary to consider that objection, since it is not concerned with the question as to whether the Pretura Circondariale, Vigevano, is a court or tribunal within the meaning of Article 177 of the EEC Treaty, which was raised, for example, in Case 14/86, on which the Court ruled on 11 June 1987. (4) The only point at issue is whether the request for a preliminary ruling was made by a court having jurisdiction to hear the main proceedings under national procedural law. It is not for the Court of Justice to answer that question.

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 question is therefore whether that measure having equivalent effect can be justified on one of the grounds set out in Article 36 or whether, since the trading rule is not discriminatory, it can be justified by one the mandatory requirements recognized by the Court's case-law. In their observations to the Court, the Italian and the Netherlands Governments argue that the legislation at issue is justified on grounds relating to the protection of public health. The Italian Government considers in addition that the legislation can also be justified on the ground of consumer protection. I do not consider it necessary to consider that point as the Italian Government has not adduced any argument in support of its view and it is clear to my mind that, in so far as the legislation is motivated by concern to protect the consumer, it does not satisfy the requirement of proportionality laid down by the Court's case-law, since there are measures capable of ensuring consumer protection whilst being less restrictive of intra-Community trade, such as appropriate labelling.

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. (6) 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, (7) the Court has elucidated that important restriction inter alia in the judgment in Case 304/84 Ministère Public v Muller. (8) The relevance of the grounds set out by the Court justifies lengthy quotation:

20‘20 It is necessary to point out first of all that the parties are agreed that, although the substances referred to in Directive 74/329 are not harmful in themselves, their consumption beyond a certain level may create a risk to human health. That is moreover confirmed by the fact that the Community legislature has proposed that the foodstuffs to which the substances may be added and the maximum acceptable intakes should be determined during a second stage in the approximation of national laws. It appears from the documents before the Court that in the present state of scientific research there is uncertainty as to the critical thresholds of harmfulness since such thresholds vary according to the quantities of additives absorbed with all the food eaten and thus depend to a large extent on eating habits in the various Member States.

21As the Court has held, inter alia in its judgment of 14 July 1983 in Case 147/82 Sandoz [1983] ECR 2445 and of 10 January 1985 in Case 247/84 Motte in such circumstances it is for the Member States, in the absence of harmonization, to decide what degree of protection of the health and life of humans they intend to assure in the light of the specific eating habits of their own population, having regard, however, to the requirements of the free movement of goods within the Community.

It must be observed that in Directive 74/329, as in the other basic directives on food additives, conceived along similar lines, great prudence is shown in regard to the potential harmfulness of such substances, the underlying principle being that the uncontrolled consumption of additives with food should be restricted as far as possible. That principle, which must be regarded as meeting a legitimate aim of health policy, is applied in such a way that only additives for which there is a real need, particularly of a technological or economic nature, are allowed in foodstuffs for humans.

It follows that, as it stands at present, Community law does not prevent a Member State from prohibiting the marketing of foodstuffs from other Member States to which such substances have been added. However, the principle of proportionality which underlies the last sentence of Article 36 of the Treaty requires that any such prohibition be restricted to what is necessary to attain the legitimate aim of protecting health. Consequently, authorizations to market such products should be granted when they are compatible with that aim.

It is for the Member States to consider, in the context of factual assessments which they must undertake in that regard, whether the marketing of foodstuffs containing additives may present a risk to public health and whether there is a real need for the additives in the particular foodstuffs. In applying those criteria they must take account of the results of international scientific research and in particular of the work of the Community's Scientific Committee for Food viewed in the light of the eating habits prevailing in the importing Member State.

It is for the competent national authorities to demonstrate in each case that their rules are necessary to give effective protection to the interests referred to in Article 36 of the Treaty and, in particular, to show that the marketing of the product in question creates a risk to public health and, as the case may be, that the addition of the substances in question does not meet a real need.

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:

45Secondly, it should be remembered that, as the Court held in its judgment of 6 May 1986 in the Muller case, cited above, by virtue of the principle of proportionality, traders must also be 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 authorized by a measure of general application.

It should be pointed out that it must be open to traders to challenge before the courts an unjustified failure to grant authorization. Without prejudice to the right of the competent national authorities of the importing Member States to ask traders to produce the information in their possession which may be useful for the purpose of assessing the facts, it is for those authorities to demonstrate, as the Court held in its judgment of 6 May 1986 in the Muller case, cited above, that the prohibition is justified on grounds relating to the protection of the health of its population.

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.

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.

For its part, the Commission states that, under the Italian legislation, wine can contain ten times as much sulphur dioxide as beer — namely 200 mg/1 —, despite the fact that much more wine is drunk in Italy than beer. Michel Debus' representative added at the hearing that French champagnes and wines may have a sulphur dioxide content of 400 mg/1 and Italy has not placed any restrictions on the importation of those products.

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.

In the light of the eating habits prevailing in the Member State concerned, the great difference between the maximum sulphur dioxide content authorized for beer in Italy and that authorized for wine seems nevertheless to be strong evidence — unless there are clear technological differences justifying adding much more sulphur dioxide to wine — that the Italian legislation at issue should not be regarded as complying with the principle of proportionality. Should it not be expected that the legislation of a Member State in which relatively little beer, but much wine, is drunk, and in which sulphur dioxide in beer therefore constitutes a relatively slight danger to public health, should authorize a higher sulphur dioxide content for beer than for wine which exceeds that laid down by legislation in a Member State in which more beer is consumed than wine? I would point out again in this connection that, in accordance with the case-law cited above (see paragraph 25 of the judgment cited in section 5 and paragraph 46 of the judgment cited in section 6), it is for the Italian Government to show that the legislation in question complies with the Community principle of proportionality.

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.

Michel Debus' representative observes in this connection that the French beer at issue has a sulphur dioxide content of 36.8 %, which is far below the maximum content authorized by the French legislation (100 mg/1). Moreover, it should not be overlooked that the beer in question is a special beer, namely an alcoholic beverage based on beer and plant extracts, for which, as regards the addition of sulphur dioxide, account perhaps should be taken of technological requirements other than those applying to ‘normal’ types of beer.

It therefore appears to me to be inconsistent with the principle of proportionality, as it is defined in the case-law cited above (see paragraph 23 quoted in section 5 and paragraphs 45 and 46 quoted in section 6), that the importer should not be able to avail himself in Italy of a procedure which is easily accessible to him and can be concluded within a reasonable time by which he could obtain, for a given type of beer by an act of general application, exemption from the prohibition of marketing invoked against him, and bring legal proceedings against any refusal.

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.

Having regard to the foregoing observations, I propose that the Court should answer the national court's questions as follows:

(1)Articles 30 and 36 must be interpreted as precluding legislation of a Member State which prohibits the marketing of a beer imported from another Member State whose sulphur dioxide content exceeds 20 mg/1 where that legislation does not comply with the requirement of proportionality laid down in the Court's case-law, that is to say, where it goes beyond that which is necessary to ensure the protection of public health. Where the Member State in question authorizes for other foodstuffs, such as, for example, wine, a much higher sulphur dioxide content, the proportionality of the aforementioned legislation applicable to beer must be assessed, on the one hand, in the light of the relative importance of beer consumption compared with that of other foodstuffs, more specifically, that of wine, compared with the total intake of foodstuffs in the Member State concerned and of the real danger that each of those products represents for health as a result of the excessive ingestion of sulphur dioxide through the total intake of foodstuffs and, on the other hand, in the light of the differences between beer and other foodstuffs, more specifically wine, as regards the technological or economic need to add the additive at issue to those products. In any event, the legislation in question does not comply with the principle of proportionality in so far as it does not provide for the possibility of obtaining, for a given type of beer by an act of general application, exemption from the prohibition on marketing by means of a procedure which is easily accessible and can be concluded within a reasonable time and which incorporates the possibility of a legal remedy against any refusal to grant exemption.

(2)A national court may not apply national legislation which is incompatible with Articles 30 and 36 of the Treaty.

(3)A national court is bound to take, within the limits of its jurisdiction, all measures capable of making the free movement within the Community of beer imported from other Member States possible in accordance with Articles 30 and 36 of the Treaty.

(<span class="note"><a id="t-ECRCJ1992ENA.0600362801-E0001" href="#c-ECRCJ1992ENA.0600362801-E0001">*1</a></span>) Original language: Dutch.

(<span class="note"><a id="t-ECRCJ1992ENA.0600362801-E0002" href="#c-ECRCJ1992ENA.0600362801-E0002">1</a></span>) 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.

(<span class="note"><a id="t-ECRCJ1992ENA.0600362801-E0003" href="#c-ECRCJ1992ENA.0600362801-E0003">2</a></span>) 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.

(3) 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.

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

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

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

(7) 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.

(8) 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.

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

(10) 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.

(11) 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.

(12) As I have already mentioned in section 1 and in footnote 1, the beer in question could not be marketed in Italy as ‘birra’.

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