Food Law News - EU - 2002

Commission Press Release (IP/02/999), 4 July 2002

Free movement of goods: Commission requests Germany and Italy to remove obstacles

The European Commission has decided to issue formal requests to Germany, Ireland and Italy to end unjustified obstacles to the free movement of goods in the Internal Market (in violation of Articles 28 to 30 of the EC Treaty). The German authorities forbid the marketing of an Austrian product, "Original Schwedenbitter", which is sold freely in its country of origin as an alcoholic beverage, on the pretext that it is a medicinal product which requires special authorisation. In Italy, there are excessive requirements for the authorisation, labelling and packaging of certain foodstuffs already marketed in other Member States and intended for particular nutritional uses. The Commission's requests take the form of reasoned opinions, which represent the second stage of the infringement procedure provided for by Article 226 of the EC Treaty. If the national authorities do not reply satisfactorily within two months of receiving the reasoned opinion, the Commission may decide to refer the matter to the Court of Justice.

Germany - "Original Schwedenbitter"

The product "Original Schwedenbitter" is manufactured and marketed in Austria without any restriction, essentially as a herb-based alcoholic beverage. However, the German authorities classify "Original Schwedenbitter" as a medicinal product, since it is traditionally used in Germany to cure and provide relief from several illnesses. It can therefore only be marketed in Germany after authorisation as a medicinal product under the medicinal products law.

On the basis of the information available to it, however, the Commission considers that it is not a medicinal product but a herb-based alcoholic product with properties wholly comparable with those of other spirits marketed in Germany. In the absence of convincing arguments on the part of the German authorities, the total ban on marketing "Original Schwedenbitter" appears disproportionate and in violation of the rules of the EC Treaty on the free movement of goods.

Italy - foodstuffs intended for particular nutritional uses

Currently products intended for particular nutritional uses which are not yet covered by specific harmonised provisions are subject to a prior authorisation procedure in Italy. They include, for instance, certain foodstuffs intended for athletes or persons who have specific dietary needs for reasons of health. In the case of foodstuffs for athletes, the Commission already decided in 2001 to refer the matter to the Court of Justice, since it considered that the Italian authorisation procedure was not justified for products lawfully produced and marketed in another Member State.

In particular, under the provisions in force in Italy, this procedure requires the number and date of the official authorisation to be indicated on the labelling and/or packaging of the product. As a result, the manufacturer (or person responsible for placing the product on the market in Italy) has to relabel or repackage the product in order to include that information.

This requirement amounts to an additional burden on the operator in terms of time and costs and, according to the case law of the Court of Justice (judgement of 16 November 2000, C-217/99 Commission v. Belgium), represents an unjustified obstacle to the free movement of goods between the Member States.

The Commission has therefore decided to send Italy a reasoned opinion specifically concerning this aspect of labelling and packaging. This reasoned opinion is in addition to the pending procedure before the Court of Justice referred to above.

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