Article 30 of the EEC Treaty, regarding the elimination of quantitative restrictions between the Member States, established that “quantitative restrictions on importation and all measures with equivalent effect shall, without prejudice to the following provisions, hereby be prohibited between Member States”.
Now the Article 34 of the TFEU establishes that “quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States”. Moreover, Article 36 of the TFEU lays down that “the provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”.
Due to the Court’s articulation of the principle of proportionality to take a decision, this historical case law made difficulties and restrictions for Member States to justify a restriction on the free movement of goods under Article 36 of the TFEU. A Member State that prohibits the marketing of a foodstuff containing additives has the burden of proving that the additive does not meet the risk and real need standard.
The Commission brought an action under Article 169 of the EEC Treaty for a declaration that Germany had failed to fulfil its obligations under Article 30 of the EEC Treaty by prohibiting the marketing of beers lawfully manufactured and marketed in another Member State if they do not comply with Articles 9 and 10 of the Biersteuergesetz (law on beer duty or Beer Purity Law) regarding beer manufacturing rules and that banned marketing of beer with any additives.
The Commission’s objections were directed against Articles 9 and 10 of the Biersteuergesetz in so far as they precluded the importation into the Federal Republic of Germany of beers which, although lawfully manufactured in the other Member States, had not been brewed in conformity with the rules applicable in the Federal Republic of Germany. The Commission took the view that marketing prohibition could not be justified on the grounds of the public interest relating to the protection of consumers or the safeguarding of public health.
On the other hand, the German government argued that the Reinheitsgebot (a series of regulations limiting the ingredients in beer in Germany and the states of the former Holy Roman Empire) was vital to safeguard public health.
The ECJ clarified that any trader marketing products satisfying the prescribed rules is free to use the designation “bier”, and those rules can readily be complied with outside the Federal Republic of Germany.
The Court has also consistently held in previous judgements that “in the absence of common rules relating to the marketing of the products concerned, obstacles to free movement within the community resulting from disparities between the national laws must be accepted in so far as such rules, applicable to domestic and to imported products without distinction, may be recognized as being necessary in order to satisfy mandatory requirements relating inter alia to consumer protection . it is also necessary for such rules to be proportionate to the aim in view . if a Member State has a choice between various measures to attain the same objective it should choose the means which least restricts the free movement of goods”.
Moreover, as the Court has already held in another context (Judgment of 27 February 1980 in Case 170/78 Commission v United Kingdom (1980), the legislation of a Member State must not “crystallize given consumer habits so as to consolidate an advantage acquired by national industries concerned to comply with them”.
It was also discovered from the tables of additives authorized for use in the various foodstuffs submitted by the German government itself that some of the additives authorized in the other Member States for use in the manufacture of beer are also authorized under the German rules, in particular the regulation on additives, for use in the manufacture of all, or virtually all, beverages. Mere reference to the potential risks of the ingestion of additives in general and that beer is a foodstuff consumed in large quantities does not suffice to justify the imposition of stricter rules in the case of beer.
The ECJ declared that by prohibiting the marketing of beers lawfully manufactured and marketed in another Member State if they do not comply with Articles 9 and 10 of the Biersteuergesetz, the Federal Republic of Germany has failed to fulfil its obligations under article 30 of the EEC Treaty.
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