By not respecting the principle of proportionality for processing aids and foodstuffs, whose preparation involved the use of processing aids from other member states where they are lawfully manufactured and/or marketed, France has failed to respect Community law, ruled the European Court of Justice (ECJ) (Case C-333/08 : European Commission/France). According to the Commission, which initiated proceedings for failure to fulfil an obligation, France has hindered intra-Community trade by establishing an authorisation scheme for these products originating from other EU countries. The ECJ agreed with the Commission.

Products under surveillance

Processing aids are substances used in the process of elaborating or manufacturing a foodstuff, and the aim of which is to obtain a certain technical effect during that process: they include antifoaming agents, enzymes, catalysts, contact freezing agents, etc. Although Community law harmonises certain categories of processing aids, the latter are not subject to horizontal harmonisation at Community level, so that, in general, member states remain free to regulate the use of processing aids while complying with the EC Treaty.

The ECJ recalls that national legislation making the addition of a nutritive substance to a foodstuff lawfully manufactured and/or marketed in other member states subject to prior authorisation is not in principle contrary to Community law provided certain conditions are fulfilled - firstly, it must be accompanied by a procedure allowing economic operators to obtain the entry of that nutritive substance in the national list of authorised substance; secondly, that procedure must be easily accessible, must be capable of being concluded within a reasonable time, and, if it leads to a refusal, the refusal decision must be capable of review before the courts; lastly, an authorisation request for a nutritive substance may be rejected only if that substance poses a genuine threat to public health.

Precautionary principle

France states that the prior authorisation procedure that it has set up is justified by the necessary respect of the precautionary principle, arguing that processing aids may cause changes in the structure of the molecules constituting the foodstuff, capable of producing toxic effects for the health of the consumer. But the ECJ considers that, while it is for the member states, in the absence of harmonisation and in so far as doubts subsist in the current state of scientific research, to decide at which level they intend to ensure the protection of the health and life of persons, they can only prohibit the marketing of processing aids and foodstuffs if - and only if - they are able to demonstrate, taking into account the most recent scientific research, that there is a genuine threat to public health and, in any case, they must respect the principle of proportionality. The ECJ considers that France’s prior authorisation scheme is disproportionate insofar as it systematically prohibits, without prior authorisation, the marketing of any processing aids or of any foodstuffs in the preparation of which processing aids lawfully manufactured and/or marketed in other member states were used, without making any distinction according to the various processing aids or according to the level of risk which their use might potentially pose for health.

ECJ considers that member states can only prohibit the marketing of processing aids and foodstuffs if they are able to demonstrate that there is a threat to public health