Food Law News - EU - 2001

Commission Press Release (IP/01/1125), 27 July 2001

ADMINISTRATION - Free movement of goods Commission pursues infringement proceedings against Italy and Greece

The European Commission has decided to refer Italy to the European Union's Court of Justice for barriers to imports from other Member States of energy drinks. The Commission has also decided to send formal requests to Italy and Greece that they remove barriers to imports of special nutritional products for people practising sports and food supplements respectively. In all these cases, the Commission considers that these import barriers constitute unjustified restrictions on the free movement of goods, in violation of EC Treaty rules (Article 28). The formal requests to Italy and Greece take the form of so-called 'reasoned opinions', the second stage of infringement proceedings under Article 226 of the EC Treaty. In the absence of satisfactory replies from Italy and Greece within the two months following receipt of the reasoned opinions, the Commission may decide to refer the cases to the European Court of Justice.

Italy - energy drinks

The Commission has decided to refer Italy to the Court concerning obstacles to the marketing in Italy of energy drinks imported from other Member States. By limiting the amount of caffeine in energy drinks to 125mg per litre, Italian legislation effectively prohibits the marketing of these products in Italy, as the majority of energy drinks on the EU market contain significantly more than 125mg/litre.

The Commission considers that, in accordance with the case law of the EU's Court of Justice (e.g. the Cassis de Dijon and Dassonville judgements), Member States must ensure the free movement of products legally produced and/or marketed in any country of the EU or the European Economic area.

Italy - specialist nutritional products for people practising sports

The Commission has decided to send an additional reasoned opinion to the Italian authorities concerning the administrative procedures in force in Italy for the marketing of nutritional products intended mainly for people practising sports. Under the Italian rules, these products can only be marketed in Italy if they have been approved in Italy under a special prior authorisation procedure. The problem under EC Treaty rules on trade barriers arises because the Italian rules are applied not only to nutritional products made in Italy but also to such products imported from other Member States where they are already legally produced and/or are marketed.

The Court of Justice has underlined on a number of occasions that products legally manufactured and/or marketed in a Member State must be allowed to circulate freely in all other Member States. A derogation to this rule can be granted only if it is essential for the protection of health, consumer or other similar overriding public interests. The Commission considers that the obligations envisaged by the Italian provisions are not directly connected with the need to protect health or consumer interests and that the explanations provided by the Italian authorities in support of their measure are not sufficient to justify the charges imposed on operators.

Greece - food supplements

The Commission has decided to send a supplementary reasoned opinion to Greece because the Greek authorities have refused an application for marketing authorisation for an imported food supplement called "Cantamega 1000" on the grounds that they did not have all the information needed to complete an appraisal of the product. However, they did not explain to the importer what information was missing from the file. Moreover, they took more than eleven months to give a negative answer to the request. Five years after the initial request the Greek authorities invited the importer to reintroduce his request under the same procedure, but without specifying the additional information which he had to provide. The Commission considers that a Member State cannot refuse to authorise the marketing of a product that is legally marketed in another Member State unless there is an overriding public interest to do so, such as consumer or health protection.

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