«(Failure of a Member State to fulfil obligations – Articles 28 EC and 30 EC – Prohibition on marketing of foodstuffs to which vitamins and minerals have been added – Justification – Public health – Nutritional need)»

Free movement of goods – Quantitative restrictions – Measures having equivalent effect – National legislation subjecting the marketing of foodstuffs enriched with nutrients to proof of the population's nutritional need – Not permissible – Justification – Protection of public health – No justification – Breach of the principle of proportionality (Arts 28 EC and 30 EC) A Member State fails to fulfil its obligations under Article 28 EC if it applies an administrative practice which entails that foodstuffs enriched with vitamins and minerals and lawfully produced or marketed in other Member States can be marketed in that State only if it is shown that such enrichment with nutrients meets a need of that State's population.While Community law does not, in principle, preclude a Member State from prohibiting, save for prior authorisation, the marketing of foodstuffs incorporating nutrients, such as vitamins or minerals other than those whose use is lawful under Community legislation, since it is for the Member States, in default of harmonisation and to the extent that uncertainties continue to exist in the current state of scientific research, to decide on their intended level of protection of human health and life, that discretion must, however, be exercised in accordance with the principle of proportionality. It is, moreover, for the national authorities to show in each case, in the light of national nutritional habits and in the light of the results of international scientific research, that their rules are necessary for the protection of public health and, in particular, that the marketing of the products in question poses a real risk thereto.In that regard, the systematic prohibition on the marketing of enriched products which do not meet a nutritional need of the population does not enable Community law to be observed in regard to the identification and assessment of a real risk to public health, which requires a detailed assessment, case-by-case, of the effects which the addition of the minerals and vitamins in question could entail.see paras 42, 44-46, 56-57, operative part

JUDGMENT OF THE COURT 23 September 2003 (1)

((Failure of a Member State to fulfil obligations – Articles 28 EC and 30 EC – Prohibition on marketing of foodstuffs to which vitamins and minerals have been added – Justification – Public health – Nutritional need))

In Case C-192/01,

applicant,

v

defendant,

APPLICATION for a declaration that, by applying an administrative practice which entails that enriched foodstuffs lawfully produced or marketed in other Member States may be marketed in Denmark only if it is shown that such enrichment with nutrients meets a need in the Danish population, the Kingdom of Denmark has failed to fulfil its obligations under Article 28 EC,

THE COURT,,

composed of: J.-P. Puissochet, President of the Sixth Chamber, acting for the President, M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presidents of Chambers), C. Gulmann, A. La Pergola, F. Macken (Rapporteur), N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and A. Rosas, Judges,

Advocate General: J. Mischo,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 1 October 2002,

after hearing the Opinion of the Advocate General at the sitting on 12 December 2002,

gives the following

bacterial cultures,moulds and yeasts,enzymes, andnutrients.

Arguments of the parties

Findings of the Court

On those grounds,

THE COURT

hereby:

Puissochet

Wathelet

Schintgen

Timmermans

Gulmann

La Pergola

Macken

Colneric

von Bahr

Cunha Rodrigues

Rosas

Delivered in open court in Luxembourg on 23 September 2003.

R. Grass

J.-P. Puissochet

Registrar

For the President