Food Law News - EU - 2006

Commission Press Release (IP/06/446), 5 April 2006

SUPPLEMENTS - Free movement of goods: Commission takes steps against Spain

The European Commission has continued infringement procedures against three countries ( Belgium , Hungary , Spain ) for hampering the free movement of goods in the single market. These infringements concern the marketing of products containing herbal ingredients in Spain , …[text removed]

Commission Vice-President Günter Verheugen, responsible for Enterprise and Industry policy said: “The Commission had to act so that our consumers can reap the full benefits of the EU single market. At the same time the Commission has worked successfully with France and Austria to bring three infringement cases to an end.”

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Spain – marketing herbal products

Obstacles in Spain to the marketing of products containing herbal ingredients legally marketed and/or manufactured as food or dietary supplements in other Member States. Since 2004 the Commission has been receiving complaints from companies that wish to market products containing herbal ingredients in Spain . As the Spanish authorities treat these products as medicines, they withdraw them from the market and attract an onerous medicinal marketing authorisation procedure. The Commission considers that the absence of adequate procedures for assessing the risk to public health allegedly posed by such products containing plant extracts which are legally marketed in other Member States represents an unjustified barrier to intra-EU trade.

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The EC Treaty requires the Commission to ensure that EU law is correctly implemented. The Commission has been granted powers to do so under the infringement procedure laid down in Articles 226 and 228 of the Treaty. The main purpose of this procedure is not to bring infringement proceedings before the Court of Justice, but to bring the Member State back into line with EU law during a pre-litigation phase.

The main steps of the pre-litigation procedure are:

1. Letter of formal notice

The letter of formal notice represents the first stage in the pre-litigation procedure, during which the Commission requests a Member State to submit its observations on an identified problem regarding the application of Community law within a given time limit. The Commission does not make an accusation but offers the Member State the opportunity to give its explanation regarding an alleged infringement. The Member States is given two months to reply.

2. Reasoned opinion

The reasoned opinion gives a detailed statement, based on the letter of formal notice, of the reasons that have led the Commission to conclude that the Member State concerned has failed to fulfil one or more of its obligations under the Treaty or other EU legislation. The Member State has two months to reply.

3. Decision to refer a case to the Court of Justice

Referral to the Court of Justice of the European Communities opens the litigation procedure.

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