Citation: 2007 Eur. Food & Feed L. Rev. 153 2007
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Recent Case Law regarding free Movement of Foods established by the ECJ 153
Recent Case Law regarding free Movement
of Foods established by the ECJ*
Christine Stix-Hackel**
I. Introduction
The free movement of foods has been a crucial
issue in the case-law of the Court and more generally
for the construction of the single market.
Indeed many of the basic principles in the area of
free movement of goods have been developed in
cases involving food. The famous Cassis de Dijon
case is a good example, as it concerned a type of
food, namely a French liqueur which was prohibited
for sale in Germany, allegedly on grounds of
public health.
Why is this so? There is no doubt that food, with
its potential impact on the human body, is particularly
likely to raise legitimate concerns in the area
of human health. As a result, public authorities are
likely to take measures to prevent harm that could
be caused by food to their population. At the same
time, food is also an expression of national culture,
very often influenced by factors like natural conditions.
As a result, food regulations are often linked
to genuine national preferences. Nevertheless,
alleged justifications for national particularities in
food regulations can be guided by a concern of public
health or consumer protection, but they can also
hide attempts to favour national producers.
That is where the European Court of Justice
(hereafter: "Court" or "ECJ") steps in. Typically, the
Court will be the arbitrator between, on the one
hand, free movement of goods, guaranteed by
Article 28 and 29 EC and, on the other hand, a general
interest such as public health. Indeed, Article
30 EC provides for the possibility of prohibi*
This article isbased on a speech held at the 16th internatioanl
EFLA congress inVienna and has been first published in the
Austrian journal "ERNAHRUNG/NUTRITION, VOL 31/NR. 2
2007". The author expresses her thanks to Mrs. Miriam Lang,
PhD, for her useful support.
** Dr. Christine Stix-Hackl was amember of the ECJfrom 2000 to
2006 as Advocate-General and was elected First AdvocateGeneral
in2005.
1 Case 227/82, judgment of 30 November 1983 (Van Bennekom
ECR 3883); case 174/82, judgement of 14 July 1983 (Sandoz BV,
ECR 2445, para 16).
tions or restrictions of the free movement of goods
for a number of reasons, of which the "health and
life of humans" has probably been the most relevant
with respect to food.
Let me first give a very brief historical overview
of the Community's action on food.
The Community lacks a direct competence in the
area of food. More recently, a provision on public
health (Article 152) has been introduced in the EC
Treaty, but it does not provide a legal basis for harmonisation
by the Community in the area of public
health.
Thus, for a long time, the Community was
approaching the question of food mainly through
the lens of trade and free movement of foodstuffs.
From the early 6os until the middle of the 8os, the
Community was therefore dealing with food by
adopting a detailed harmonisation programme
with the view of establishing an internal market for
foodstuffs.
But since the area of food safety was not fully
harmonised, the Member States remained, in non
harmonised areas, free to adopt restrictive measures,
according to Article 30 EC. Repeatedly facing
cases of restrictions to free movement of food
the ECJ tried to strike a balance by stating that
Member States have the right to decide what
degree of protection of health they want to assure,
having regard to the requirements of free movement
of goods within the Community. In this context
it was for the national authorities to demonstrate
in each case that the marketing of the
product in question creates a "serious risk to public
health"
1
In 1986, in the view of the achievement of the
Single European Market, the Community decided
to abandon the method of detailed harmonisation
and introduced the so-called new approach, an
innovative approach based on the principle of
mutual recognition combined with the use of the
minimum harmonization method.
The BSE and dioxin crises in the 199os made it
clear that the free movement of foodstuffs could no
longer be the overriding principle of EC food law.
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154 1 Recent Case Law regarding free Movement of Foods established by the ECJ
From 1997, food safety became therefore a priority
of the Community 2
. This led to a global approach to
food safety, well summarised as "food safety from
the farm to the fork". Regulation 178/2OO23, a
framework regulation on food law represents now
a general rule which, in addition to establishing the
European Food Safety Authority and laying down
procedures in matters of food safety, lays down the
general principles and requirements of food law.
Unlike earlier food-related Community legislation,
these new specific measures have been mainly
adopted as regulations rather than directives.
Moreover they do not just contain general, abstract
rules giving the characteristics that are necessary to
put the goods or substances on the market, but, in
order to ensure the efficient realisation of the objective
of food safety, they go further and provide for
the identification of products and substances that
comply with the general rules (either by means of
an individual authorisation process or by the establishment
of a list).
II.The recent Community legislation
under the scrutiny of the ECJ
Some areas, particularly relevant to food safety,
like labelling or GMOs are quite extensively har-
monised.
So far the ECJ has until now rarely dealt with
measures, which are part of the new legislative
package of EU food law.
The first important question the Court tried to
solve is the notion of food. Before the adoption of
the framework regulation, surprisingly there was
no general definition of the notion of food under
Community law. In the joined cases HLH Warenvertriebs
GmbH 4
the Court was confronted with
the necessity to distinguish between food and
medicinal products. Indeed, depending on the qualifications
of certain goods as food- and in particular
food supplements - or medicinal products, the
applicable legal regime would be significantly different.
The cases concerned products that were
placed on the market in the Netherlands as food
supplements, but the German authorities refused to
authorise their import and marketing in Germany,
most importantly because the products were to be
considered medicinal products and not food supplements.
The plaintiffs considered that such a
refusal violated Article 28 and 30 EC.
The Court decided to give priority to the application
of the legislation on medicinal products. This
means that the member states, where the product is
imported, can lawfully require the acquisition of a
marketing authorisation issued in accordance
with the provisions of the Community rules on
medicinal products, even where the imported product
is lawfully marketed as foodstuff in another
Member state.
A second major point which the Court clarified
in HLH Warenvertriebs GmbH is the relationship
between the General food law (GFL)5
and specific
pieces of legislation, in the present case the food
supplement directive 2002/46. The Court held that
the basic regulation contained general provisions,
the application of which was precluded where
another Community regulation contains specific
rules. In an opinion I recently delivered in the case
Lidl Italia6
'7
, I explicitly referred to the HLH
Warenvertriebs GmbH case and confirmed the
complementary function of the general food law
with regard to more specific legislation8
.
A case I would also like to highlight was the case
where the Court confirmed for the first time the
"new" legislative technique used by the Community
in the area of food law. In Alliance for Natural
Health and Nutri-Link9
the plaintiffs questioned
the validity of the recent directive 2002/46 of 10
June 2002 on food supplements.
2 Conclusions of the European Council in Luxembourg (Annex 2,
Declaration of the European Council on food safety) 12-13 December
1997, http://www.consiIium.europa.eu/ueDocs/
cms Dataldocs/pressDatalen/ec/032a0008.htm ;Conclusions of
the European Council in Helsinki, 10 December 1999,
http://www.consi Iium.europa.eu/ueDocs/cms-Data/docs/
pressDatalen/ec/ACFA4C.htm.
3 Regulation (EC) 178/2002 of the European Parliament and the
Council of 28 January 2002 laying down the general principles
and requirements of food law, establishing the European Food
Safety Authority and laying down procedures in matters of food
safety, OJ 2002 L31 1-24. The latter is commonly called "general
food law" or "GFU'.
4 Joined cases C-211/03, C-229/03 and C-316/03 to C-318/03,
judgment of 9 June 2005 (HLH Warenvertriebs GmbH and
Orthica, ECR 1-5141).
5 See note 3.
6 Case C-315/05 (Lidl Italia, not yet decided).
7 In LidI Italia, the specific regulation to be construed was Directive
2000/1 3/EC of the European Parliament and of the Council of
20 March 2000 on the approximation of the laws of the Member
States relating to the labelling, presentation and advertising of
foodstuffs (OJ L 109, 6.5.2000, p. 29-42).
8 See my Opinion delivered on 12 September 2006 in case
C-315/05 (LidI Italia), Para. 57.
9 Joined cases C-154/04 and 155/04, Judgement of 12 July 2005
(Alliance for Natural Health and Nutri-Link, ECR-I-06451).
EFFL 312007
Recent Case Law regarding free Movement of Foods established by the ECJ 155
One of the arguments of the claimants was that the
Community institutions did not have the competence
to legislate in this area on the basis of Article
95 EC. In this respect, it must be borne in mind that
there is no specific provision in the EC treaties
allowing the Community to legislate in the area of
food and food safety. The Court considered that
food supplements are regulated by Member States
in a very diverse manner that may impede free
movement and create unequal conditions for competition.
Thus, the challenged directive improves
the conditions for the establishment and the functioning
of the internal market. According to the
Court, the fact that public health may have been a
decisive factor in the choices to be made by Community
institutions does not affect this conclusion.
The plaintiffs also claimed that the Directive
infringed the principle of proportionality, notably
because it prohibited certain forms of vitamins or
minerals in their natural form but allowed them in
their inorganic forms. In this respect, it is interesting
to note that Advocate-General Geelhoed, in his
opinion, considered that the Directive infringed the
principle of proportionality, because, in his view,
basic principles of Community law, such as the
requirements of legal protection, of legal certainty
and of sound administration have not been properly
taken into account1 0
.
The Court did, to a large extent, share the
Advocate-General's doubts as to the proportionality
of the measure; nevertheless it ultimately declared
the directive valid. Invoking the precautionary principle,
the ECJ considered that the objective of the
single market and the protection of human health
could be reconciled by reserving the benefit of free
movement only to those food supplements containing
substances, for which, at the time of the adoption
of the relevant directive, the European scientific
authorities were in possession of sufficient and
appropriate scientific evidence to justify their
authorisation. However the Court tempers this
strict system by requiring a procedure by which
individual market operators can request the updating
of the positive list of permitted food supplements
on the basis of scientific and technological
10 Opinion of 5 April 2005.
11 Case C-366/04, judgement of 24 November 2005, (Schwarz,
ECR 2005 Page 1-10139).
evolution. Thanks to this creative reading of the
directive, the latter was "saved" from being declared
invalid.
Ill. Food and cultural identity an
eternal obstacle for free
movement of food?
Other areas, which seem not so relevant for food
safety, are not harmonised or at least not fully harmonised
and are therefore still subject to the general
rules of free movement of goods of Article 28ff
EC Treaty. These areas will therefore put the Court
before the classic problems of balancing legitimate
interests of Member States, mainly public health,
against the basic freedom of free movement of
goods.
No one among us will probably disagree that
food is one of the strongest expressions of national
peculiarities. Don't we associate quite naturally foie
gras with France and pasta with Italy? In turn culinary
habits quite naturally influence national food
regulations and Europeans are very sensitive to
any apparent meddling of the Community with
"their" food. Given national sensitivities and the
absence of an explicit and direct competence of
the Community for food regulation, the Court has
tried, over the years, to keep a coherent balance
between the principle of free movement of food
and the restrictions to free movement of food
under Article 30 EC.
First, I would like to give you an example of a
case, where the Court has left a Member State an
unexpectedly wide margin of discretion in its invocation
of public health as a justification of restrictions
to free movements of goods. In the Schwarz
1
1
case the ECJ accepted to uphold an Austrian regulation
which provides for sweets to be wrapped
when they are sold in vending machines, although
Austria is the only country of the EU to have such a
requirement. The plaintiff, a distributor of sweets,
considered that the obligation to condition and
package goods differently when they were sold in
vending machines in Austria was restricting free
movement of goods in a way that is incompatible
with the EC Treaty. The ECJ considered that
although the regulation caused additional costs for
the importer, which makes the import more difficult,
it could be justified by reasons of public interest
linked to the protection of public health. Indeed,
EFFL 312007
156 1 Recent Case Law regarding free Movement of Foods established by the ECJ
in the past, unwrapped sweets in vending machines
had in particular suffered contamination by insects
and humidity. The Court also noted that nothing
leads to the conclusions that the public health
grounds invoked by the Austrian government were
diverted from their proper purpose in such a way as
to create discrimination in respect of goods originating
in other member States or indirectly protect
certain national products. Therefore, the Court considered
that the regulation at issue was not contrary
to the principles of free movement of goods. Thus
the Court gave a wide interpretation of the public
health exception contained in Article 30 EC - and
this in spite of the existence of less restrictive ways
to protect public health.
In this respect, Advocate-General Geelhoed had
indeed considered in his opinion that banning
products which elsewhere in the Community can
be marketed and dispensed from vending machines
unwrapped was not a suitable means of prevention
and it restricts trade in these products more than
necessary 12
. He also expressed the view that it
would seem more appropriate to adapt regulations
on the technical design of the vending machines
than to impose specific packaging requirements on
the products13
. Unlike the Court, the AdvocateGeneral
had therefore concluded that the Austrian
regulation was not justifiable under Article 3o EC.
Another example where the Court appears to
have been relatively lenient with a national regulation
that is likely to threaten the free movement of
goods is given in two cases concerning the qualification
of "bio" for organic food 14 .
A national regulation
in Spain authorised the use of the terms "bio"
and "biol6gico" in respect of products which have
not been organically produced. A Community regulation
of 199115 regulated the use of the terminology
to be used to designate products which have
been organically produced, it was modified in
200416 and said that certain diminutive forms like
"bio" or "eco" would refer to products which have
been organically produced and this in any language
and throughout the Community. The ECJ was asked
to construe the relevant provisions applicable
before 2004. Indeed, the 1991 regulation only contamned
the term "ecol6gico" including the diminutive
form "eco.
The Court held that Spain could not be blamed
for allowing the use of the forms "bio" and "biol6gico"
since those forms were not specifically mentioned
in the 1991 regulation. According to the
Court, the fact that the term "bio" has been explicitly
added in 2004 confirms this interpretation. The
Court so allowed an interpretation of secondary legislation
that lead to diverging situations in the single
market and therefore also to possible obstacles
to free movement of organic food.
This risk was highlighted by Advocate-General
Kokott in her opinion. In the Advocate-General's
view, it would be inconsistent if one and the same
term, such as "bio" were reserved in one Member
State for products obtained by organic production
methods but were left unprotected in other Member
States. If "bio" were protected in only some of
the Community languages as a reference to the
organic production method, consumers might be
mislead when shopping in other Member States, or
when buying products marketed in other languages.
Spain in the Advocate General's opinion
had therefore infringed Community law.
In other cases, however, national measures
which are likely to threaten the free movement of
goods were sanctioned by the Court, as this happened
recently in the so-called "shallot war" involving
France and the Netherlands1 7.
Two Dutch companies
had developed two species of shallots, called
,,matador" and "ambition'; grown from seed, and,
after registering them in a Community-wide "common
catalogue" with the European Commission,
attempted to market them throughout the Community.
However, a French regulation only allowed
vegetables produced by vegetative propagation to
be marketed as "shallots" and excluded those grown
from seed. Thus marketing the Dutch shallots
was illegal in France and even considered a criminal
offence.
The Court decided that the controversial French
regulation on shallots infringed the principles of
free movement of goods, as it obliged importers to
market shallots originating in other Member States
under a different denomination in France. Such a
restrictive measure was not seen necessary to
12 Opinion delivered on 28 June 2005, para. 41.
13 Ibid.
14 Case C-135/03, judgement of 14 July 2005 (Commission/Spain,
ECR-6909); case C-107/04, judgement of 14 July 2005, (Comit(}
Andaluz de Agricultura Ecologica, ECR -7137).
15 Regulation 2092/91/EC of24 June 1991.
16 Regulation 392/2004 of 24 February 2004.
17 Case C-147/04, judgement of 10 January 2006 (De Groot en
Slot Allium BV et Bejo Zaden By, not yet reported).
EFFL 312007
Recent Case Law regarding free Movement of Foods established by the ECJ 157
ensure consumer protection. Indeed, appropriate
labelling of the shallots would be sufficient for the
purpose of ensuring the appropriate information of
the consumer.
These few cases show us how strong much
national specificities still are in the food sector and
that the balance between justified restrictions and
unjustified restrictions to free movement of food is
not always easy to draw.
This task becomes however even more difficult
when free movement is restricted because of a risk
allegedly linked to food safety (increasing scientific
alteration of food, notably through the controversial
use of GMOs in the food industry).
Again, the Court has played an important role in
balancing the interests and they have shaped the
precautionary principle in the course of the last
years to facilitate this task.
IV.Food and public health risk the
precautionary principle
The precautionary principle has become, over time,
a general principle of Community law which allows
the intervention into individual right for the sake of
public interest, mainly the protection of the environment
or public health, when there is scientific
uncertainty as to the existence or the extent of the
risks incurred.
1.The emergence of the precautionary
principle in Community law
Let me first give a brief overview of the emergence
of the precautionary principle in the area of
food law. Indeed, it must be recalled that the precautionary
principle has its origins in environmental
law. It is also mentioned in this context in
Article 174 (2) EC.
18 Case C-180/96, Judgment of 5 May 1998 (UK v. Commission,
ECR I-02265).
19 Case C-157/96, Judgment of 5 May 1998 (National Farmers'
Union, ECRI -02211).
20 It should be noted thdt direddy on 2 Februdry 2000 the European
Commission issued a Communication on the precautionary
principle (COM (2000)1 final).
21 Case F-3/00, Decision of 1 April 2001 (EFTA Surveillance
Authority v Norway, [2001] EFTA Court Report 2000/2001, 73).
Its "move" into the food sector is quite recent and
happened in the aftermath of the major food crises
of the 9os, most importantly the BSE crisis. At this
occasion, the EC had imposed a temporary ban on
British beef on public health grounds based on the
risk of transmissibility. This ban was challenged by
the UK18
and the lobby of UK farmers1 9
. The court
held in this context that "where there is uncertainty
as to the existence or extent of risks to human
health, the institutions may take protective measures
without having to wait until the reality and
seriousness of those risks become fully apparent".
The EU institution did therefore not have to prove
the existence of a risk, which may often be impossible,
but it must prove that the measures taken are
indispensable given the scientific evaluation of the
risk that must be as comprehensive as possible.
Thus the Court accepted the legality of safeguard
measures taken by the Commission on the basis of
the precautionary principle and recognised implicitly
the precautionary principle.
The first supranational European Court20
which
dealt extensively with the precautionary principle
was the EFTA Court in the Kellogg's case2 1
, an
infringement proceeding against Norway. Norway
prohibited the import of corn flakes that were
enriched with vitamins and iron. The Norwegian
government argued that such enrichment could
only be made if there was a proven lack of nutritional
need in the population, since excessive vitamin
enrichment would lead to an excessive absorption
of such substances.
The EFTA Court confirmed that a national government
could invoke the precautionary principle,
but only on the basis of a precise evaluation of the
need for protection of human health. The proper
application of the precautionary principle requires
first that possible negative effects on human health
are identified and second that a comprehensive
risk assessment, based on the latest scientific
knowledge, is carried out. In the case at issue, the
Norwegian government had not carried out an
appropriate risk management. It only relied on
an apparent lack of nutritional need, which was in-
sufficient.
While the Commission qualified the precautionary
principle as a "general principle of food law" in
Article 7 of the General Food Law (GFL) adopted
in early 2002, the Community Courts have only
quite recently applied the precautionary principle
explicitly.
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158 1 Recent Case Law regarding free Movement of Foods established by the ECJ
The first Community Court to apply the precautionary
principle was the Court of First Instance
(CFI) in a number of cases where the Commission
had taken a measure on the basis of the precautionary
principle. The Pfizer22 and Alpharma23
cases concerned antibiotics which were used as supplements
in animal feed and aimed at a faster
growth and gain of weight. It was scientifically controversial
whether the resistance developed by animals
to these antibiotics were transmissible to
humans, which would be problematic. In this case,
the CFI conceded that the Community institutions
did not have to wait until the existence and the danger
of a risk materialised2 4
.
Later in 2002 the CFI decided the Artegodan
case2 5
. In this case, the plaintiffs questioned the
competence of the Commission to prohibit a medicine
used in the case of overweight. It was not scientifically
settled whether the benefits of such medicine
outweighed its possible negative side effects.
The CFI held that the precautionary principle was a
general principle of Community law that ,required"
the competent authorities to take appropriate measures
to avoid potential risks to public health, safety
and environment, by giving priority to the protection
of such interests over economic interests. By
making such a statement, the ECJ clearly emphasises
the priority of the protection of health over economic
interests. This case has also led to a heated
debate on whether the Community institutions
were obliged or just had the faculty to take action
when facing a situation where the precautionary
principle could be invoked.
Between September 2003 and December 2004, it
was the ECJ's turn to deal explicitly and extensively
with the precautionary principle in the so-called
Vitamins line of cases. They concerned 4 infringement
proceedings against Denmark, France, Italy
and the Netherlands. They all prohibited the marketing
of food enriched with vitamins and mineral
salts. It was the first time that the precautionary
principle was invoked by Member States.
Like in the EFTA Kellogg's case, the key question
was whether the prohibition of such food violated
the principle of free movement of goods, when,
according to a well-established administrative procedure,
the prohibition of the enrichment was
exclusively justified by the fact that there was no
proven nutritional need for supplementing the
average population's diet by such substances. The
ECJ considered that the national regulations fell
into the scope of Article 28 EC and expressed for
the first time its own interpretation of the precautionary
principle:
The first case to be decided in this series was
Commission/Denmark2 6
.At this occasion the Court
of Justice decided that the precautionary principle
justified the adoption of restrictive measures when
it proved to be impossible to determine with certainty
the existence or extent of the alleged risk
because of the insufficiency, inconclusiveness or
imprecision of the results of studies conducted. By
taking this view, the Court favoured the flexibility
of the precautionary principle over the rigidity of
the requirement of nutritional need.
The cases Commission/France2 7
and Commission/Italy2
8
were decided on the same day, as was
Greenham and Abel2 9
, a reference for preliminary
ruling made in the context of criminal proceedings
against two individuals who sold food enriched
with substances, the marketing of which was prohibited
in France under French law. The Court
made it clear that it was necessary to carry out a
full-fledged judicial review of the national legislation
when the precautionary principle was invoked.
The Court would then have to verify the fulfilment
of three conditions: (1) whether national measures
are based on a sound scientific assessment; (2)
whether the risk management decision is backed by
scientific advice; (3)whether the measures adopted
are the least restrictive ones. The need for such a
comprehensive judicial review of national regulations
became notably apparent in the case against
22 Case T-13/99, judgement of 11September 2002 (Pfizer Animal
Health /Council, ECR 11-03305).
23 Case T-70/99, judgement of 11 September 2002
(Alpharma/Council, ECR 11-03495).
24 "... it follows from the Community Courts' interpretation of the
precautionary principle that a preventive measure may be taken
only if the risk, although the reality and extent thereof have not
been 'fully' demonstrated by conclusive scientific evidence,
appears nevertheless to be adequately backed up by the scientific
data available at the time when the measure was taken".
25 Joined cases T-74/00, T-76/00, T-83/00, T-84/00, T-85/00,
T-132/00, T-137/00 and T-141/00, judgement of 26 November
2002 (Artegodan GmbH and Others v Commission,
ECR-II04945).
26 Case C-192/01, judgement of 23 September 2003 (Commission!
Denmark, ECR I-09693).
27 Case C-24/00, judgement of 5 February 2004 (Commission!
France, ECR I-01277).
28 Case C-270/02, judgement of 5 February 2004
(Commission/Italy, ECR I-01559).
29 Case C-95/01, Judgment of 5 February 2004 (Criminal proceedings
against John Greenham and L(}onard Abel, ECR I-0133).
EFFL 312007
Recent Case Law regarding free Movement of Foods established by the ECJ 159
Italy, where the Italian government did not even
explain on the basis of what scientific data it based
its national measures.
The last decision in the series of the Vitamins
infringement proceedings was Commission/Nether-
lands30
. The Court confirmed its position expressed
and discarded definitively the argument of the lack
of nutritional need. It also tried to clarify how the
precautionary principle affects the application of
the principle of proportionality. The precautionary
principle is autonomous and is not merely part of
the proportionality test. Indeed when a given
restrictive measure has fulfilled the conditions for
the invocation of the precautionary principle, it still
remains to be evaluated if the measure is also pro-
portionate!
2. General comments on the case-law
The cases, in which the Court has dealt with the
precautionary principle, seem to suggest that the
judicial control is stricter when the precautionary
principle is applied to evaluate an action taken by a
Member State compared to situations where an EC
institution invokes the principle. The explanation
may be that different consequences will ensue
when a Member State invokes the precautionary
principle compared to when a Community institution
does it. Indeed, a Member State tends to invoke
the precautionary principle to adopt a national regulation
that will normally restrict the free movement
of goods and thus fragment the single market.
In contrast, a Community institution will rely on
the precautionary principle for the adoption of a
measure that is maybe restrictive but which does
not pursue any possible protectionist aims. Moreover,
in the adoption process of such a Community
30 Case C-41/02, judgement of 2 December 2004
(Commission/Netherlands, ECR- I-11375).
31 Case C-236/01, judgement of 9 September 2003 (Monsanto
Agricoltura Italia, ECR. 1-08105).
32 Regulation (EC) No 258/97 of 27 January 1997 concerning
novel foods and novel food ingredients (OJ 1997 L 43/1).
33 Case C-132/03, judgement of 26 May 2005, (Ministero de Ia
Salute/Codacons and Federconsumatori, ECR I-041 67).
34 Regulation (EC) No 1139/98 of 26 May 1998 concerning the
compulsory indication on the labelling of certain foodstuffs
produced from genetically modified organisms of particulars
other than those provided for in Directive 79/112/EEC (OJ 1998
L 159/4), amended by Commission Regulation (EC) No 49/2000
of 10 January 2000 (OJ 2000 L 6/13).
measure, all Member States have normally the possibility
to express their views. For all these reasons,
it is not really surprising that the Court's control
will be stricter when a Member State invokes the
precautionary principle than when a Community
institution does it.
Another issue that should be highlighted is the
progressive determination of the boundaries of the
precautionary principle. Two cases may illustrate
this point. The first is the Monsanto3 1
case, where
a number of biotechnology companies in the food
sector challenged an Italian decree that suspended
preventively the marketing and the use of some
genetically modified food. The Community regulation
applicable to these goods3 2
provided for a simplified
procedure for the evaluation of novel food
for market approval if the novel food could be considered
as ,,substantially equivalent" to existing
foods. The question was therefore whether the presence
of residues of transgenic protein in novel food
would preclude the use of the simplified procedure.
The Court was asked to construe the notion of "substantial
equivalence" and to determine if this simplified
procedure was compatible with the precautionary
principle. Interestingly, the Court read the
precautionary principle into the notion of "substantial
equivalence". It considered that if unforeseeable
effects were identifiable as potential risks for
human health, the latter should be subject to a risk
evaluation and would preclude the finding of substantial
equivalence. In other words, the application
of the precautionary principle could prevent a finding
of substantial equivalence, which could inturn
prevent the use of a simplified procedure for the
market approval of novel food. It should be highlighted
that, in this case, the precautionary principle
is indeed used as a means of interpretation of a
notion mentioned in secondary legislation.
After the Monsanto case, which shows the great
potential of the precautionary principle, let me turn
to another case which illustrates its limits. The
Codacons and Federconsumatori case involves the
labelling of baby food containing material derived
from genetically modified organisms (GMOs) in
very low quantities3 3
. The main question in this
case was whether baby food which contains less
than 1% of GMOs must be specifically labelled as
to the presence of GMOs. The applicable regulation3
4
provided an exception in the obligation to
label for food with a presence of less than 1% of
GMOs -but it was questionable whether, in the
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light of the precautionary principle, this exception
also applied to baby food. The Court took the view
the exception did apply to baby food as well. It
recalls the precautionary principle requires that
there remains an uncertainty as to the existence or
the extent of the risks to public health. Therefore, it
can only be invoked earlier in the decision process,
namely when the full market approval is given for
the controversial product. As a result, the precautionary
principle cannot be invoked when the product
has received full market approval after a full
risk assessment.
The judgement has been criticised because it
seems to give priority to free movement of food
over the protection of health. However, by taking
this decision, the Court has certainly been motivated
by its desire to ensure legal certainty, by avoiding
controversy and litigation after a product has
received full market approval.
V. Conclusion
I would now like to conclude this speech, by which
I have attempted to give you an overview of the
very diverse case-law on free movement of food.
Each in its own way, these examples illustrate, if
need be, that food is probably one of the most sensitive
areas for the Community to deal with. This
can be explained in two ways. On the one hand, the
food we consume has a direct effect on our body:
this is the issue of food safety. On the other hand,
food is, particularly in Europe, an aspect of our
cultural identity: we could call this the cultural
issue. It is therefore quite likely that regulations on
food will have, more than other national regulations,
a specific "national flavour". However, these
national peculiarities often threaten the unity of the
single market, which is one of the pillars of the
Community.
Lacking specific competence in this area, the
Community has intervened in this area on an ad
hoc basis, mainly to ensure the functioning of the
single market. More recently, by initiating and
adopting a comprehensive legislative package, the
Community has aimed at ensuring food safety
"from the fork to the table". At the same time, the
ECJ has pursued its task of safeguarding the free
movement of food, while adequately taking into
account the legitimate interests of Member States
for protection of the consumer and public health.
As the uninterrupted flow of cases in this area
shows us, the balance between free movement of
food and legitimate general interests restricting the
free movement of food is still delicate to reach. The
emergence of the precautionary principle also
shows that this balance of interests needs permanent
refining.
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