Food Law News - EU - 1999

8 July 1999: ADMINISTRATION - Barriers to trade: infringement procedures against France, Germany and Greece

Commission Press Release (IP/99/469 ), 8 July 1999

Barriers to trade: infringement procedures against France, Germany and Greece

After receiving a number of complaints, the European Commission has decided to pursue infringement procedures against France, Germany and Greece in connection with unjustified barriers to the free movement of goods in breach of Article 28 (ex 30) of the EC Treaty. It has decided to refer France and Germany to the Court of Justice concerning respectively barriers to imports of rubber products in contact with foodstuffs and vitamin-enriched food supplements. It has also sent reasoned opinions (the second stage of infringement proceedings under Article 226 (ex 169) of the EC Treaty) to Germany and Greece concerning respectively excessively long delays in issuing import authorisations for food supplements and labelling requirements for non-alcoholic drinks.

France - rubber products in contact with foodstuffs

French rules on rubber products in contact with foodstuffs such as pressure cooker rings and seals on jars - (an Order of 9 November 1994) do not allow such products imported from other Member States to be authorised for sale unless the Member States concerned themselves apply detailed rules in this area. In other words, France refuses to apply the principle of mutual recognition, whereby it should authorise the sale of all products that are lawfully manufactured and/or marketed in other Member States unless restrictions are justified by a requirement to protect the public interest (e.g. on public health grounds) and are in proportion to that requirement (see IP/99/395 on the Commission's mutual recognition Communication). Apart from France, only a few Member States have specific rules on rubber products in contact with foodstuffs, so that in practice products from all other Member States would have to be manufactured in accordance with French rules before they could be authorised for sale in France. Before the 1994 Order was adopted, it had been notified to the Commission under the terms of Directive 83/189/EEC and the Commission had already informed the French authorities that the Order should include a mutual recognition clause.

The Commission has decided to refer the case to the Court of Justice because the French authorities are still refusing to introduce a satisfactory mutual recognition clause. Instead, the French authorities insist not only that products should be subject to specific rules in the Member State of origin but also that other Member States' rules should specify the use of the same polymers and additives as the French Order.

Germany - barriers to the import of food supplements

The Commission has decided to refer Germany to the Court on the question of barriers to the sale of vitamin-enriched food supplements imported from other Member States. Because of the levels of vitamins in these products, the German authorities classify some of them as medicinal products. The effect of this classification is that they are subject to a long and costly authorisation procedure. However, the Commission considers that the systematic application of a purely quantitative criterion (three times the recommended daily intake) to classify a vitamin supplement as a medicinal product disregards the differences between the various types of vitamins and the different levels of risk involved in the event of excessive consumption. A less restrictive measure would be to specify a limit value for each vitamin, above which a preparation would be regarded as a medicinal product. The German authorities have so far refused to remove this obstacle.

Germany authorisation delays for food supplements

In Germany, food legally produced and/or marketed in another Member State which does not correspond to the provisions of German food law are subject to an authorisation procedure. This procedure, used for the German authorities to check that there is no danger to public health, lasts on average from six to nine months in the case of food supplements. The Commission considers that the length of this procedure constitutes an unjustified barrier to entering the German market, notably in the light of the case law of the Court of Justice in its 1987 ruling on a case concerning Germany's beer purity laws (C-178/84). The Court ruling on this case emphasised that any authorisation procedure should be completed within a reasonable period. In its interpretative Communication on free movement of foodstuffs of October 1989, the Commission specified that it considered that authorisation procedures for foodstuffs should not exceed 90 days. The German Government has argued that the delays are the result of the complexity of the process to decide whether a food supplement should be classified as a foodstuff or as a medicine, the workload of the competent authorities and the extremely high number of requests. However, the Commission considers that possible administrative difficulties experienced by a Member State cannot justify a trade barrier. In its reasoned opinion, the Commission states that it considers that delays for processing requests for authorisation for food supplements well in excess of 90 days constitute an infringement of EC Treaty rules on the free movement of goods.

Greece price labelling requirements for soft drinks and bottled water

The Commission has sent a reasoned opinion to Greece concerning the obligation to indicate a suggested retail price in drachmas (in Greek and English) in an indelible way on the label/packaging of all non-alcoholic drinks sold in Greece, which the Commission considers to be an unjustified trade barrier in violation of EC Treaty rules. The Commission recognises the need to protect consumers from paying exorbitant prices. However, the price labelling obligation gives rise to considerable additional costs for the economic operators involved because either retailers must themselves modify the labelling/packaging (a sticker is not enough) or the manufacturers must produce special batches for the Greek market with the necessary price indication.

Moreover, the Commission considers the measure to be disproportionate to the stated objective of consumer protection. A requirement on retailers to display suggested price lists would be just as effective at informing consumers without giving rise to heavy costs for retailers or manufacturers. Another alternative could be to ensure retailers do not enjoy a semi-monopoly status at places (e.g. archaeological sites) where the more spectacular abuses in selling soft drinks and bottled water at over-inflated prices.

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