From ‘Euro Beer’ to ‘Newcastle Brown’, A Review of European Community Action to Dismantle Divergent ‘Food’ Laws

Journal of Common Market Studies Volume XXII, No. 1 September 1983 0021-9886 $3.00

From ‘Euro Beer’ to ‘Newcastle Brown’, A Review of European Com- munity Action to Dismantle Diver-

gent ‘Food’ Laws D I A N A WELCH’

Department of Agricultural Economics t3 Management, Reading University

INTRODUCTION

“Food” law embodies a set of regulations covering the production and marketing of both non-processed and processed food. The scope of a study of food law must, ideally, extend over all aspects of food production, processing, distribution, information, presentation and sale. The aggregate of these activities determines the condition under which the product reaches the ultimate consumer. The guiding principles of food law - health, safety and honesty - are agreed by all countries. However, “non-

tarrif barriers” to trade inevitably arise due to the heterogeneity of national food laws. These obstacles to trade may be the result of unintentional or deliberately protectionist food legislation.

THE COMMUNITY RESPONSE - AIMING AT A COMMON MARKET IN “FOOD”

The preamble to the EEC Treaty’ introduces the concept of free movement of goods. The member states are “resolved to ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe”. Article 2 of the Treaty, expressing the objectives of the EEC, states that, “the Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a

* The author is grateful for the useful remarks olTered during preparation of this paper from Alan Swinbank and an anonymous referee, and for financial support from the Ministry of Agriculture, Fisheries and Food.

’ Hereafter referred to as “The Treaty”.

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harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the states belonging to it”. In revealing the conditions which it is desirable to achieve in the common market, this Article has an important bearing on the powers granted under Article 100 of the Treaty. This is a controversial debate which will be examined at a later stage.

Article 3 of the Treaty is concerned with the methods of attaining a common market. It includes “the elimination, as between member states, of customs duties and of quantitative restrictions on the import and export of goods, and of all other methods having equivalent effect” (Article 3(a)), and “the approximation of the laws of member states to the extent required for the proper functioning of the common market” (Article 3(h)) . The former activity will be referred to as “repressive” and the latter as “constructive” activity (Eurocoop 1980).

“Repressive” activity operates under the enabling provisions of Articles 30 to 36 of the Treaty. Article 30 prohibits quantitative restrictions on trade between member states, and all measures having equivalent effect. Exceptions to the principle of Article 30 lie in Article 36 which states that such restrictions are compatible “on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants. . ,” However, there is a restricting clause on these exceptions which states that “such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States”. The Court of Justice has ruled that “the purpose of Article 30 is, save for certain specific exceptions, to abolish in the immediate future all quantitative restrictions and measures of equivalent effect, whereas the general purpose of Article 100 is, by approximating the laws, regulations and administrative provisions of the member states, to enable obstacles of whatever kind arising from disparities between them to be reduced”.2

Article 100 is thus the main instrument granting resort to “constructive” activity, by way of harmonisation, alignment or approximation.‘ Article 100 states “the Council shall, acting unanimously on a proposal from the Commission, issue directives for the approximation of such provisions laid down by law, regulation or administrative action in member states as directly affect the establishment or functioning of the common market . . .” It is important to note that Article 100 only relates to provisions which have a direct effect on the common market.

I t is clear that Articles 30 et seq and Article 100 pursue different objectives, bu t are nevertheless complementary to each other. The liber-

‘Commission v Italian Republic, Casr 193/80 of 9.12.81. (ECR 1981 p. 3019) I , . I hese terms are uscd synonymously.

FROM ‘EURO BEER’ TO ‘NEWCASTLE BROWN’ 49

alisation of trade in the common market thus depends on these two different sets of Treaty provision^.^

One of the European Community’s major pre-occupations is the Com- mon Agricultural Policy (CAP). Article 43 of the Treaty empowers the Council to enact harmonisation measures for agricultural products (listed in Annex I1 to the Treaty) where this is necessary for operation of the price and intervention measures of the CAP. Clearly the borderline between agricultural products and processed food products (Non-Annex 11) can be hazy, and hence the relevance of Article 43 or Article 100 may be unclear.

CONSTRUCTION OF HARMONISED FOOD LAWS UNDER ARTICLE 100

The Aims of Hamonisation

An appreciation of the aims of harmonisation depends primarily upon the understanding of the terms direct effecect and common market. The most visible aim of harmonisation is economic - the removal of trade barriers. However, other facets must be considered when harmonising food laws, such as health, safety and fraud. Community food legislation must, therefore, take account of the basic aims of food law. Consequently an improvement in the quality of food law should be the natural by-product of any harmonisation efforts, guaranteeing the consumer the highest possible degree of health and safety protection.

A necessary condition for harmonisation is that i t will contribute to a well-functioning common market. In the early stages of harmonisation, Article 100 was interpreted in a rather restricted sense, probably due to the ambiguity of its wording. For example, the preamble of the preservatives Directive5 carefully justifies its legal basis by specifying that the different national requirements concerning preservatives hinder intracommunity trade despite the fact that this directive was primarily motivated by health and safety considerations. Recently the interpretation of Article 100 has become less rigid. Burke (1977) comments that “the basis of the Commis- sion thinking has been changing from that of improving free trade to improving the quality of life by protection of the consumer and of public health. These aims were always present but the emphasis has shifted.” Thus, measures which do not affect trade but which are intended for health and safety reasons directly affect the common market within a broad interpretation of Article 100.

The consumer protection element was further emphasised in food law harmonisation in 1975 after the Council resolution on a Consumer Protec-

’ Articles 101 and 235 of the Treaty also provide for approximation of Laws. No directives have, as yet, been adopted under Article 101. Article 235 difFers from Article 100 in that i t does not require a “direct effect”.

Dir. 64/54/EEC of 5.1 1.63 OJ spec. ed. 1963-64 p. 99.

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tion and Information Policy.‘ Some harmonising directives have been issued on areas solely concerned with health, safety and consumer protection. The labelling7 and unit pricing’ Directives are obvious examples. The preamble of the erucuc acid Directive refers exclusively to health consideration^.^

As the understanding of Article 100 has grown, so its wider powers seem to have been recognised. Barthelemy (1 975) states that “While the optimist sees approximation as a source of enrichment, the pessimist may well regard it as a source of uniformity”. Dashwood (1981) recognises two forms of harmonisation - “positive” and “negative”. “Negative” harmonisation “aims at removing obstacles to the unity of the market resulting from the existence in the member states of rules geared to the needs of the separate national markets”, whereas “positive” harmonisation aims ‘‘to attune the legal systems of the Member States to the common policies being developed by the EEC”. The former could be interpreted as concerning the freedom of trade, and the latter the lesser recognised objectives of the common market such as improvement of consumer protection and information and the quality of life.

Dashwood recognises the wider application of Article 100: “It is therefore legitimate for the institutions, in dealing with specific problems, to seek a solution that is apt to promote the widest possible range of Community objectives. In this sense, every harmonisation measure may have a “positive” aspect”. However, there remain those who believe that harmonisation measures should be limited to cases involving trade and therefore concen- trate exclusively on “negative” harmonisation (see House of Lords, 1980, and below).

The Instruments - Regulations and Directives

Article 100 specifies the use of directives as the tools of harmonisation; whereas Article 43, concerned with the establishing the CAP, permits the use of both regulations and directives for the products listed in Annex I1 to the EEC Treaty. Article 189 defines these instruments: “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States”, and “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed,

Preliminary Programme of the EEC for a consumer Protection and Information policy. Council resolution of 14.4.75 (OJC 1975, 92/1) and Second Programme approved by Council on 19.5.81. (OJC 1981, 133). A resolution, though, has no force of law. I t is merely a statement of intent. ’ Dir. 79/1 I2IEEC (OJL3/79 of8.2.79, p. 1- 14). It is debatable whether this directive could actually

facilitate trade due to language differences between member states. Dir 79/581/EEC of 19.6.79 (OJL 158, 28.6.79 p. 15). ‘ Dir 76/621/EEC of 20.7.76 ( q J L 202, 28.7.76 p. 35) - Many edible oils and fats contain erucic

acid which appears to produce undesirable toxic effects when administered in large doses to experimental animals.


but shall leave to the national authorities the choice of form and methods”. Directives, being flexible instruments, are more suited to harmonisation because the enabling instruments may be drafted in a style compatible with each Member State’s legislation. Regulations, however, lead to “unifica- tion” rather than “approximation” of laws because they are directly applicable in the form upon which the Council has agreed. Regulations, such as those setting standards for eggs“’ and fruit and vegetables,” have been passed under Article 43 where they were clearly necessary for the operation of the CAP. Gerard (1972) suggests that motivations of a political nature played a part in the preference for Article 100 for products which could have been equally well harmonised under Article 43. Member States, particularly France, were opposed to the use of Article 43 for such harmonisation because, unlike Article 100, i t does not require unanimous agreement in Council. A compromise solution was agreed under which harmonised measures are based jointly on Article 43 and 100 where the difference between Annex I1 and non-Annex I 1 products is blurred. Certain directives concerning veterinary matters are obvious examples. This arrange- ment has often been criticised.13

The Approaches Towards Harmonisation

Harmonisation of food laws may be based on the principle of prohibition, as with the additives Directives, or on the principle of abuse, such as the cocoa D i r e c t i ~ e . ’ ~ The rigidity of a directive in terms of its scope of applicability is determined by its totality, optionality or partiality. Dash- wood (1978) points out that in the foodstuffs sector most directives are total, whereas in the industrial sector they are mainly optional. This is because total directives are preferred when health and safety is a major issue. Optional directives are preferable when rationalisation of production is the overriding harmonisation objective.

Total directives are applicable to all foods of a particular class in each member state. Thus they only permit the sale and free movement of goods complying with the total directive. Total directives have been accepted concerning, inter alia, preserved milks.I5

Optional directives, such as those concerning red meats, provide for the free movement of products complying with the directive but permit the

I ” Regulation 277/75 EEC (0.JL 282/75 of 29.10.75. p. 1 ) . ” Regulation number 23 of 20.4.62 (OJ spec. Ed. 1959-62, p. 97). l 2 For example the directive concerning health problems afierting intra Community lrade in fresh

meat. Dir 64/433/ECC of 26.6.64. (YJL 121/64). I s See Report on behalf of the Legal Commission on Harmonisation of European Laws, Otto

Weinkamm, Records of the EP, 1965-66, doc. nr. 54, 8.6.65. ”See par. 7 of Dir 73/241/EEC of 24.7.73. (OJL 228, 16.8.73. pp. 23-35). l 5 Dir 76/118/EEC of 18.12.75. (OJL 24, 30.1.76. p. 49).

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continuing application of national standards for sale in the home country. This approach is obviously less rigid.

Partial directives concern only certain specified kinds of food of a particular class, such as the sugars Directive,I6 where some types of sugars are included in the Directive and others may be controlled under national law.

The additive Directives are total in the sense that they provide positive lists” of the permitted additives, but optional in the sense that local differentiation is preserved within limits because the conditions of use of the additives have not been stated. However, national laws must not have the effect of totally excluding the use in foodstuffs of any additive on a positive list.’*

The content of a directive depends upon whether i t is vertically or horizontally drafted. Horizontal directives concern aspects of food manu- facturing and distribution which are common to all products, such as labelling. Thus a number of horizontal directives may apply to a particular food product: this should help to reduce trade barriers but, until the programme is complete, will not necessarily eliminate them. Vertical directives concern the same aspects as their horizontal counterparts, but are only applicable to individual food products. Consequently horizontal directives aim more particularly at protecting the consumer and vertical directives, because they cover all characteristics of a product, aim at facilitating trade.

Progress in the Harmonisation of Food L a d g 1960 marked the beginning of harmonisation of food law in the European Community, with the first meeting of the “Legislation on foodstuffs” working group. The first successes concerned additives, with the adoption of the first Directive on colourings used in foodstuffs in 1962.‘” The additives Directives can claim to have accelerated, and even initiated, the adoption of positive lists in a number of Member States. However, progress in the field of non-processed foodstuffs, covered by the CAP, was more impress- ive. As Dashwood (1978) notes “Before the adoption of the general programme a spillover of political will from the CAP seems to have provided the best hope for the enactment of Commission proposals to Council”. Hence

l b Dir 73/437/EEC of 11.12.73. (0.JL 356, 27.12.73. p. 71). l 7 Positive lists are a natural extension or the principle of prohibition. All the food additives

appearing in the positive list are acceptable for use and those not mentioned are banned. 18See Ministere Public v Siegfried Grunert. Case 88/79 of 12.6.80. (ECR 1980 p. 1827) and

Ministere Public v Rene Joseph Kugelmann. Case 108/80 of 5.2.81. (ECR 1981 p. 433). ” S e e “A Comparative Directory of European Community Legislation”, Institute of Trading Stan-

dards Administration, 1981 for a complete summary of adopted EEC food law harmonisation measures.

2o Dir. 115/82/EEC of 23.10.62. (OJ Spec.Ed. 1959-62, p. 279).


harmonisation of legislation concerning live animals, meat, and plant materials was approached at an early stage due to its relevance to the establishment of the CAP.

The planned harmonisation programme was proposed in a series of Council resolutions. Harmonisation of veterinary laws was provided for in a resolution of March 1968.2‘ In May 1969 a phase of intense activity in food law harmonisation was heralded in the adoption by Council of a general programme for the elimination of technical barriers to trade.2:! This programme contained four Council resolutions and an agreement of the government representatives of the member states. The second of the resolutions contained a timetable for foodstuffs harmonisation. I t set out five time periods within which forty-two directives were to be adopted. The majority of the proposals for directives submitted under this timetable appeared to favour the total approach. The first vertical directive concerning cocoa and chocolate was adopted in 1973.23 However the target dates for this programme were totally unrealistic and the timetable was not met.

The agreement between government representatives, affectionately christened “the gentleman’s agreement”, was reached in order to forestall national initiatives likely to undermine the general programme. It requested that member states refrained from adopting new legislation concerning subjects under the general programme for five months, after notifying the Commission of their intention to legislate, in order to give the Council an opportunity to pass a directive on the matter. The effectiveness of this agreement, naturally, relied upon the courtesy of the gentlemen.

The general unworkability of the first programme, and the accession of three new participants in 1973, led to the introduction of a revised programme.24 A timetable was again set out in five phases between July 1974 and January 1978. Of the forty-two directives foreseen in this programme, all except six were vertical directives and the programme covered, in the main, the same food products as the 1969 plan. However the optional approach was now preferred. Again, efforts towards realising the timetable proved to be a dismal failure. The subsequent harmonisation of food law has in no way matched the aspirations of the programme and, in addition to the subjects included in the revised timetable, numerous other areas of food law were in need of scrutiny. Haigh (1978), referring to foodstuffs outside the 1973 programme, stated that “if pragmatism is to be the key and if the Commission is to be able to treat problems as they arise, i t is impossible to adhere to an exact programme and timetable.”

In December 1973 seven proposals for vertical directives were with-

‘’ Council resolution of 12.3.68. (OJC 22, 18.3.68. p. 18). 22 Council resolution of 28.5.69. (OJC 76, 17.6.69. pp. 1-6). 23 Dir. 73/241/EEC of 24.7.73. (OJL 288, 16.8.73. p. 23). 24 Council resolution of 17.12.73. on industrial policy - timetable for abolition of technical barriers

to trade in foodstuffs (OJC 117 of 30.12.73 p. 1) .

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drawn. It was now becoming obvious to the Commission that its rigid vertical approach was proving to be a mistake. In 1974 Finn Gundelach - then the Commissioner in charge of the internal market - made a state-

ment concerning harmonisation in an effort to stress the value of what appeared to many a useless venture. He explained that the aim of the Commission was not to produce a network of laws covering all foodstuffs but to harmonise only those laws which were necessary for the removal of trade obstacles in those foods which were the subject of significant intra- Community trade. One wonders how such directives as those on fruit juice and honey justified this condition.

In 1974 the Scientific Committee on Foodstuffs was granted a permanent role as an expert advisory body to the Commission.2S Further changes in the harmonisation procedure were introduced with the establishment of a Consultative Committee for Food in 1975 in an effort to improve pre- consultation between interested parties.26 In the past, draft proposals were sent to these parties, who were asked to comment within a certain period. This procedure proved unsatisfactory because it was impossible for the parties to compare their often divergent approaches.

In 1975 the first draft proposals for directives of both a vertical and optional nature were introduced. These concerned bread and mayonnaise. Both proposals were withdrawn. In the same year the disappointing progress of the vertical approach led the Council to agree to give special priority to horizontal directives. Ward (1977) confirms this trend: “Recently the difficulties encountered in formulating some of the draft commodity directives concerned with foods which are sold and consumed where they are produced have led to a rather more realistic attitude by the Commission”. Indeed, in December 1976 further proposals for vertical directives were withdrawn from the programme.

In 1977 the Commission voiced hopes that it would shortly begin work on the vertical application of the additives Directives. “The Commission knows that this step is necessary to stop individual Member States taking independent action” (Eurofood, 21.7.77). However, this task has proved virtually impossible.

Growing discontent with the harmonisation programme led to a lengthy statement by the then President of the Commission, Roy Jenkins, once again putting the Commission on the defensive. He admitted that harmonisation had only been possible in those areas where the differences of view of the Member States were not too great and the problems were not too complex - definitely not a solution for free trade! The Commission agreed to apply stricter criteria to the extent to which it proposed legislation. Such

25 Commission Decision of 16.4.74. relating to the institution of a Scientific Committee for food;

“I Commisisori Dccision 76I42OIEEC of 26.6.75. (O,JI, 182. 12 7.75 p. 35-36). 74/231/EEC (OJI . 136, 20.5.74. p. I ) .

FROM ‘EURO BEER’ TO ‘NEWCASTLE BROWN’ 55 criteria for the justification of harmonisation proposals would be:- - Will they promote trade within the Community? - Will they strengthen the foundations for economic union? - Are they really necessary, and can the Commission do it best or better

than others? (i.e. member state governments, industry self-initiative). - Can they be justified in terms of the Commission staff required? Mr. Jenkins’ concluding remark stated that where the issue was not central to any of the above mentioned criteria, member states could cherish their differences. Was this reintroducing the idea of optional vertical directives which had previously met with such strong and effective opposition?

In 1979 a further seven vertical proposals were withdrawn from the timetable on the grounds that no solutions were likely to be forthcoming in these areas due to the age of the proposals, the new horizontal labelling Directive and the effects of enlargement.27 Into the 1980s the Commission has adopted a more pragmatic attitude to harmonisation learnt from disappointing past progress. The Commission’s current approach to food law harmonisation is described in its draft for a Council resolution on the second Community consumer programme.‘8 Harmonisation is now approached in more general terms without providing rigid timetables for achievements. Recent Commission working programmes list, almost exclusively, horizontal proposals. Fewer initiatives are now being taken by the Commission, but if a particular industry expresses a desire for harmonised legislation, the Commission will attempt to satisfy the want. Despite the many problems and criticisms met in this area, Dashwood (1978) comments that “Harmonisation of laws is slow but dificult and the achievements of the European Community in this field have been incomparably greater than those of any other international body”.

Problems and Criticisms of Constructive Action

Strong words have been written criticising the Commission’s harmonisation efforts. Lack of progress, or progress in the wrong direction, are the most common complaints. Turner (1979) claims that “the result of the EEC food law harmonisation programme seems merely to burden us with regulations of unnecessary complexity, without benefiting consumers or manufacturers, or helping trade”. Eurofood (1 978) elaborates: “At its worst harmonisation can damage companies, forcing them to give up long standing and harmless production systems and ingredients. At best, harmonisation under the “positive list” principle can be restrictive to new developments in the food industry”. Any form of harmonisation tends to limit product differentiation. The number of different products available on

27 COM(79) 128, Brussels, 19.3.79. 2* COM(79) 336, Brussels, 25.6.79.

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The “gentleman’s agreement” has been found unworkable. Those member states which have tried to adhere to i t found i t wanting and thus felt justified in acting independently. Consultation procedures have lacked adequate exploratory discussion, debate and research. The Commission has been trying to achieve too much, too quickly, with inadequate resources. Thus the ambitious harmonisation programmes have, largely due to a sterile and inefficient procedure, failed.

Problems and criticisms of the instruments used in harmonisation are abundant. Food law harmonising directives are often accused of being either over specific or too flexible. However the balance is a delicate one. Directives may need to be detailed and restrictive if technological considerations are involved. With flexible directives it may be impossible to understand what the Community legislators had in mind, or what is expected of the member states when implementing the requirements. Con- versely the inflexible approach may result in legislation which is costly and not practicable. Technological development may be inhibited and procedures which have operated satisfactorily in the past may need alteration.

Problems arise due to variances between dates of implementation of directives and stringency of enforcement in the member states. Harmonisa- tion of food laws requires uniformity of enforcement. The food industry believes that a growth in EC food law may outstrip the possibilities of enforcement. Harmonisation has increased the number of foodstuffs under specific legislation in the U.K.

Both the total and optional approaches to harmonisation have been scrutinised. It has been hard to reach consensus with total directives due to their “total” effects. Therefore negotiators often try to limit the content of the directive and grant numerous derogations and safeguard clauses. Total directives may ignore regional traditions and national customs. However the total approach must be applied when health and safety aspects are concerned. Barthemely ( 1975) criticises the optional approach: “If this method is applied indiscriminately the result will be that the only product which can be traded throughout the Community will be that complying with the strictest standard set”. Optional directives may also cause confu- sion in the market place because there are two sets of laws applicable to one product. Given the negative reactions towards optional directives, it seems that even this approach cannot eliminate the fear of excessive uniformity. Agreement may be hard to achieve if the result is to give benefits to another country’s products without similar advantages for national products. The optional approach sounded alluring initially, but in practice i t has been unsuccessful.

Misunderstandings have plagued harmonisation efforts. Kinch ( 1980) believes that the “ill-fated . . . and premature attempt of the Community to harmonise compositional laws was mispresented by the U.K. Nothing was further from the truth and nothing has since had a more adverse effect


mental and consumer affairs. Eurocoop (1980) concludes that “if one applies too literally the wording of Article 100 no directive could ever be adopted for the sole reason of consumer protection. The existence of technical barriers to trade would always be a prerequisite for justifying a directive”. Thus, on a broader interpretation, harmonisation could be used as an instrument to promote the objectives of the Community social policies.

The attitudes of member states towards the harmonisation programme have contributed to its failure. Harmonisation is only possible if a willingness to change exists. National interests, the erosion of legislative “sovereignty”, and the necessity of admitting that existing national legislation is not the most appropriate, have hindered harmonisation. Vogelaar (1975) states that harmonisation “leads to change in the national law making process which presupposes a feeling of European solidarity which as yet is hardly strong enough to produce an overwhelming success”. The prevailing economic situation has undoubtedly strengthened the balance of national interests over European unity. These national interests have led to a bargaining counter situation under Article 100. Sandalow and Stein (1982) comment that “the Council currently acts more as a diplomatic conference, in which states pursue discrete national interests, than as a common institution which decides in the common interest”. Thus food law harmonisation becomes a politically emotive area where compromises may be an acceptable basis for solving economic problems but are not suitable concerning health and safety. Negotiations over such directives are fraught with problems, especially when interest from food manufacturers is lacking due to the small proportion of total business involving intra-Community trade.

The harmonisation procedure is a complex and lengthy process. Delays are largely caused by the need for unanimity under Article 100. This problem became greater with enlargement in 1973. However, other factors contribute towards the length of the procedure. The lack of coordination between the EC institutions on the one hand, and industries on the other, delays negotiations. The low priority given to food harmonisation, and technical difficulties, enhance the problem. Early harmonisation efforts completely failed to recognise the time periods required. Fourteen years of negotiation passed before the jams Directive was finally adopted.‘“ The number of Commission staff allotted to food law harmonisation is inadequate if they are to prepare new legislation as well as managing existing directives. The tasks of these Commission staff have developed more rapidly than the structure and working of their department. Commission reorganisation programmes, and the swapping of responsibilities between various DG’s have blocked harmonisation progress.

’’ Dir. 79/693/EEC of 24.7.79. (0.JL 205, 13.8.79. p. 5).

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any national market might grow as a result of a harmonising directive, but the number of varieties available in the Community as a whole may fall simultaneously .

The possibilities for trading a harmonised food product through Europe will be limited by such natural trade barriers as climate, language, tastes, traditions and technological and production processes. Consequently production from a single specialised plant, with scale economies, may be impossible due to these divergent national conditions and habits. For example Boakes (1982), on the basis of a survey of food and drink companies, concluded that diverging legislative requirements in Europe are not considered to be an important trade barrier.

As regards additives, the Food and Drink Industries Council (1981) have commented that “in view of the varying technology and consumer habits of member states, there is little value in seeking to approximate national laws. If trends in these areas diverge at national level approximation would be pointless and probably unachievable”. Evidence supporting the view that harmonisation acts as a trade liberalising instrument is seriously lacking. On the other hand the labelling Directive may not remove the language barrier but will equate the European consumers’ right to be informed.

Determining the scope and meaning of Article 100 is difficult. The meanings of “direct effect” and “common market” are not clear. Is Com- munity legislation which aims at improving quality or protecting the consumer admitted within Article 1 OO? Were the early vertical directives necessary for the proper functioning of the common market? Is harmonsia- tion permitted only where there is a divergence of national laws? The answers to these questions depend upon whether Article 100 is broadly or narrowly interpreted.

The narrower view sees the fundamental objective of Article 100 as free movement of goods. This school of thought sees the Commission and Council as operating beyond their enabling powers. The case against the Community’s harmonisation policy was strongly voiced in a House of Lords Report (1980). This concluded that harmonisation is valid only when national laws have a negative effect on the establishment and functioning of the common market. “The dominant purpose of any measure should be economic, and, other purposes should be included only if clearly incidental to some economic purpose.” This report questions the validity of Community “consumer” legislation, the power to improve existing rules, and the application of harmonisation where rules exist in some member states and not in others. A broader interpretation of Article 100 provides for harmonisation whenever i t is necessary for the establishment, functioning and development of the common market, not requiring that existing national law acts as an impediment to trade. This view considers harmonisation as part of overall Community policy encompassing social, environ-


upon the work of food law harmonisation than the ‘Euroloaf Syndrome”’. There has been a tendency for “Euroscandal” tales to be dramatised in inaccurate press reports. However it is not only the media which encour- ages public opposition to harmonisation. Politicians, some within the Com- munity institutions, may treat proposals for directives at the consultation stage as directly applicable legislation which may not be changed.

REPRESSION OF PROTECTIONIST AND UN,JUSTIFIED FOOD LAWS

Repressive Action

It is wrong to consider Article 100 as a provision limiting the scope of Article 30. Article 30 et seq are of fundamental importance and may be considered as the basic means for eliminating technical barriers. It is important to note, however, that if a product is the subject of a harmonising directive, action under Article 30 et seq is not possible because the harmonisation process is assumed to have corrected any restrictive effects.

Article 36 of the Treaty also exempts certain measures from Article 30 on justifiable grounds, such as health and safety. McCarthy (1979) has pointed out a dilemma: “just because protection is the result, it does not follow that protectionism is the cause”. Consequently, Article 36 is a great source of dispute. Dangers may arise when Article 36 provides a member state with first hand justification for an obstacle to trade which may, in fact, have protectionist motives. The first Court case concerning the British restriction on U H T milk imports demonstrates this 10ophole.~’ However the British have not been so fortunate lately. The Court ruled that the recent poultry import ban constituted a disguised restriction on trade and a means of arbitrary discrimination within the meaning of Article 36.3‘ Article 36 only permits derogations from Article 30 et seq for measures of a “non-economic” nature. In 1976 the Court clearly stated that Article 36 should be narrowly interpreted. It said “Article 36 is not designed to reserve certain matters to the exclusive jurisdiction of member states but permits national laws to derogate from the principle of free movement of

30 Union Laitiere Normande v French Farmers Limited, Case 244/78 of 12.7.79. (ECR 1979, p. 2668). This case arose from complaints made to the Court against the British Government that it illegally maintained health and other restrictions on liquid milk imports from other EEC countries. Despite the fact that British lawyers concentrated on health aspects, and the Advocate General announced support for the British ban until there was harmonisation of health standards for milk, the Court justified the ban on the grounds that the U K could continue to exclude milk in non-imperial containers until the derogation under the packaging directive expired. The Court ducked the issue of health regulations and chose to rule on the subsidiary question of weights and measures. Thus the U K milk hygiene regulations escaped scrutiny under Article 30.

3’ Commission v UK, Case 40/82 of 15.7.82. In August 1981 the U K announced new animal health regulations, to prevent the spread of fowl pest (Newcastle disease) in the UK. The use of vaccine against fowl pest was stopped and only imports from disease free countriees prohibiting the use of vaccine and applying a compulsory slaughter policy were permitted.

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goods to the extent to which such derogation is and continues to be justified for the attainment of the objective referred to in that

Restrictive legislation on food additives can be justified under Article 36. In Case 53/80, the Netherlands was entitled, on public health grounds, to prohibit the use of nisin in processed cheese.33

There is no doubt that Article 30 does apply to discriminatory measures, provided that they are not justified under Article 36. However, the applicability of Article 30 to non-discriminatory measures has been extremely controversial. Discriminatory measures are applicable only to imported goods, whereas non-discriminatory measures apply equally to both imported and domestically produced goods. In 1970 the Commission stated its interpretation of the scope of Article 30 in a directive based on Article 33(7) of the Treaty.34 At this stage the Commission considered that, as a rule, non-discriminatory measures were not to be considered as measures having equivalent effect under the meaning of Article 30. The only exception to this understanding was that a measure would fall foul of Article 30 if the restrictive effects which it produced went beyond those which were necessarily inherent in any measure concerning the same matter.

European Court case law on Article 30 has now superseded the 1970 Commission Directive. “The ‘Dassonville’ formula contains the seeds of all the subsequent case law on measures having equivalent effect”. (Oliver 1982a). In the Dassonville case the Court said that the concept of equivalent effect includes “any national measure capable of hindering, directly or indirectly, actually or potentially, intra-community trade”.35

The contribution of the Court of Justice is an essential element of repressive action. If a complaint is lodged with the Commission, this in itself may be enough to result in the removal of the protectionist measure.” However, if the Commission decision is disputed then the Commission may bring the matter before the Court of Justice. National “protectionist” laws may also be challenged by another member state before the Court. But Sandalow and Stein (1982) comment that “it is unusual for one Member State to take another Member State before the Court. So far the initiative has always been taken by the Commission”.

The Court ruling applies only to the case in which i t was rendered.

Simmrnthal sp.A. v Italian Ministrr for Financr, Casr 35/76 of 15.12.76 (ECR 1976, p. IH71). ”’ Oficrr Van,Justitir v Koninkli,jkr Kaasfraubrirk Eyssrn BV, Casr 53/80 of5.2.81. (ECR 1981. p.

409). ’’ Dir 70/50/EE<;. “Conirnission tlirrctivr of 22.12.69 hascd on tltr prtivisions of Article 33(7) o n thr

abolition ol‘mrasurrs which havr an rrrct rquivalrnt to quantitative rrstrictions on imports and arr not covrrrd by other prtivisions adoptrd i n pnrsuancr 0 1 the EEC Treaty.” (0.J Sprc. Ed. 1952-72, 1st series, 1970, p. 1 7 ) .

35 Procureur de Rois v Brnoit and Gustavc Dassonville, Case 8/74 of 11.4.74. (ECR 1979, p. 649). ‘“ ‘ lhc increasing usr ofthr complaints procrdurr is confirmed by Mattera (19Hlb). Hr notrd that

over 400 tradr infringrmrnt complaints wrrr bring rxaminrd by the Commission in October 1981.


However, the referring court, and all other national courts, must follow the ruling if they are faced with the same situation, unless they again refer the question to the Court. Protectionist laws may also be challenged by traders in national courts.

Recent European Court Jurisprudence

Recent case laws supports, but expands upon, the 1970 Commission Direc- tive concerning Article 30 and the scope of the “Dassonville” formula. The Court supports the early Commission distinction between rules applicable only to imported products, which may be justified on the basis of Article 36, and measures equally applicable to national and imported products which may also be justified on grounds other than those stated in Article 36. However “ C a s ~ i s ” ~ ’ has reversed the presumption of legality of indistinctly applicable measures in the 1970 Commission Directive. The ruling in this case clearly stated that all such measures were incompatible with Article 30 unless justified under Article 36 or certain “mandatory require- men ts” .

The “Cassis” case arose from a preliminary ruling requested in May 1978 by the Hessisches Finanzgericht. The question referred to the Court was whether Article lOO(3) of the Branntweinmonopogesetz, prohibiting the marketing of spirits with an alcohol content below 32 per cent in Germany, was compatible with Article 30 of the Treaty. Rewe Zentral AG intended to import a French spirit, Cassis de Dijon, which had an alcohol content of 15-20 per cent and market it in Germany. In its reply the Court stated the “Obstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of the products in question must be accepted insofar as these provisions may be recognised as being necessary in order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer”. The Court concluded that “the concept of measures having an equivalent effect to quantitative restrictions on imports is to be understood to mean that the fixing of a minimum alcohol content for alcoholic beverages intended for human consumption by the legislation of a member state also falls within the prohibition laid down in that provision where the importation of alcoholic beverages lawfully produced and marketed in another member state is concerned”.

Thus “Cassis” abandons the discrimination criterion for the concept of the non-discriminatory measures, the main purpose of which is to protect domestic production. The judgement confirms the “Dassonville” formula which stated that Article 30 may apply when there is no discrimination.

37 Rewe-Zentral AG v Federal Monopoly Administration for Spirits. Case 120/78 of 20.2.79. (ECR 1979, p. 649).

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Oliver (1982a) deduces that the test of equivalent effect is whether a measure restricts imports, rather than discriminates against them. However he confirms that “with specific discriminatory measures, mention of discrimination in some of the Court’s judgement on Article 30 is consis- tent with Cassis de Dijon”.

I t is important to recognise that “Cassis” is not a revolutionary case. I t has collected, in a concise manner, concepts found in earlier Court judgements. Mattera (1981b) comments that “the Cassis de Dijon judgement interprets an existing rule of law; the Court has not somehow created new rules of law”.

Subsequent Court cases have confirmed the “Cassis” philosophy. The reasoning of the “Cassis” judgement was applied mutatis mutandis in the “Gilli and and re^"^^ and “Kelderman” cases.39 The former preliminary ruling concerned an Italian decree which prohibited the sale of all vinegar, other than wine vinegar, in Italy. The decree was held to be incompatible with Article 30. ‘‘Kelderman” concerned an item of Dutch legislation which stated the dry matter content required in bread. Since the Court found that such a measure was not necessary to fulfil any “mandatory requirement” or provision of Article 36 it was, therefore, contrary to Article 30. The “Fietje”4” case illustrated the scope of consumer protection as a mandatory requirement. The preliminary ruling concerned Dutch legislation on the labelling of alcoholic drinks which prohibited the sale of certain beverages under a description other than that prescribed by national law. The Court ruled that this legislation was prohibited under Article 30 and was not justified on consumer protection grounds because equivalent information could be given by adequate product labelling. In the “Irish souvenirs’’ case (41) the Court stressed that the “Cassis” doctrine related only to obstacles to trade arising from non-discriminatory measures. It can be assumed, therefore, that “mandatory requirements” can only be justified for indistinctly applicable measures and the sole escape from Article 30 for discriminatory measures is Article 36.4‘

The “Cassis” approach must be further defined by future Court judgements. For example, Mattera (1981 b) comments on the need for the Court

3R Criminal Proceedings against Herbert Gilli and Paul Andres, Case 788/79 of26.6.80. (ECR 1980,

39 Criminal Proceedings against Fabriek voor Hoogwaardige Voedings Kelderman, BV, Case 130/80

“Criminal Proceedings against Anton A. Fietje, Case 27/80 of 16.12.80. (ECR 1980, p. 3839). 4 ’ Commission v Ireland; Case 113/80 of 17.6.81. (ECR 1981, p. 1625). (Also see answer to W Q

42 Case 113/80, Commission v Ireland,Judgement of 17.6.81. The Court stated that “Article 36 of the EEC Treaty must be construed narrowly; the exceptions listed therein cannot be extended to cases other than those specifically laid down. In view of the fact that neither the protection ofconsumrrs nor the fairness of commercial transactions i s included amongst the exceptions set out in Article 36, thcse grounds cannot be relied upon as such in connection with that article.”

p. 2071).

of 19.2.81. (ECR 1981, p. 527).

874/81 - OJC 1981, 295/95).


to confirm the meaning of “legally manufactured and sold” when there is no national legislation concerning a particular product.

The Commission Response to “Cassis” et seq.

Just as the “Cassis” judgement is not to be understood as being revolutionary, neither is the response from the Commission. Discussions pre-‘LCassis’’ confirm this. In 1978 the Commission emphasised the fact that free trade was to be the rule and not the exception. Eurofood (5.1.78) commented that under this principle all food and drink would be allowed to circulate freely in the Community provided that it either complied with the laws of the country of origin or European Community legislation. Despite the fact that a Commission communication,’3 discussed below, concerning the implications of Cassis was issued some months after the Court judgement, Gormley (1981) notes that “the Commission, on 6.10.78, had addressed letters to the member states in which i t outlined typical examples of barriers to trade which were under investigation. The Commission furthermore stated that i t would call upon Governments to take all necessary measures to ensure the correct and effective fulfilment of the obligations arising out of Community law and to support the action taken by the Commission to safeguard the free movement of goods within the Commun- ity.” Furthermore, in January 1980 a Commission communication to the European Parliament on the removal of technical barriers to trade summa- rised the main principles identified by the Court in the “Cassis” judgement as regards Article 30 et ~ e q . ~ ~

The change in Commission policy which was stimulated by ‘‘Cassis” et seq is apparent in the Commission’s new approach towards harmonisation which would use the instrument of approximation more judiciously. Har- monisation would be used to prevent new obstacles emerging, which it considered more important, and the approach would be less likely to give rise to acrimonious disputes and would be less time consuming that the elimination of existing obstacles to trade. Economic importance would be the decisive stimulus for harmonisation.

The Commission communication to the member states, European Par- liament and the Council stated that “Where a product suitably and satisfactorily fulfils the legitimate objective of its rules, the importing country cannot justify prohibiting its sale in its territory by claiming that the way it fulfils the objective is different from that imposed on domestic products” and that “work on harmonisation will henceforth have to be directed mainly

*’ Communication from the Commission concerning the Consequences of the Judgement given by

*4 Communication from the Commission to the European Parliament on the Removal of Technical the Court of Justice on 20th February 1979 in Case 120/78 (“Cassis de Dijon”), OJC 256 of 3.9.80.

Barriers to Trade, COM(80)30 Final, Brussels, 24.1.80.

64 DIANA WELCH

at national laws having an impact on the functioning of the common market where barriers to trade to be removed arise from national provisions which are admissible under the criteria set out by the

Mattera (1981a) applauds this new approach. He states that it is “unde- niable that it will enhance the practical effectiveness of that provision (i.e. Article 100) and, much more than was the case in the past, increases the return on the efforts and resources devoted by the Community to this area”. However, the consumer lobby is not quite so optimistic. BEUC (1981) states that “The Commission has tended to regard “Cassis de Dijon” as the Deus ex machina to solve the frustrating problems in attemp- ting to harmonise national legislation, but in doing so has adopted a general interpretation not entirely borne out by the more prudent formula- tion of the Court and subsequent judgements”. It can be concluded that, despite its widespread publicity, the Commission statement concerning the implications of Cassis has caused much misinterpretation and has often been viewed as definitive when it certainly is not because the Court, itself, is the sole interpreter of the law.

In August 1980 the Commission fowarded a proposal to the Council which was obviously influenced by “Cassis” et ~ e q . * ~ It aims at improving procedures for preventing and removing technical barriers to trade and supplement the 1969 “Gentleman’s agreement”. The proposal primarily concerns prior exchange of information from member states to the Com- mission about proposed national legislative action. The Commission could then either propose similar action at Community level or devise some other method to prevent the erection of trade barriers.

Implications of the Court Jurisprudence and the Commission response

“There are those who believe the Court means exactly what it says; those who assert that the Court cannot possibly mean exactly what it says; and those who accept what the Court has said, but seek to interpret it in a different ways.” (FDIC 1981)

Some believe that it is too early to assess the Court’s action on the basis of a limited number of cases. Others believe that there is no reason to suppose that the Court will not continue to interpret the Treaty in this way. However, as a large body of case law emerges, the implications of “Cassis” et seq will become more transparent.

“Cassis” introduced the principle of equivalence in that a product “lawfully produced and marketed” in the exporting state must be admitted into another member state; but Barents (1981) notes that “it must be kept in

+5 See footnote 43. &COM (80) 400. Proposal for a Council Decision laying down a procedure for the provision of

information in the field of technical standards and regulations. Brussels, 19.8.80.


mind that in the Cassis de Dijon case the regulation concerned was held to be incompatible with Article 30, not because the beverage was lawfully produced in France, but because this regulation was not considered by the Court as a necessary means to protect the consumer”. Thus the Court applied only the “reasonable measures clause”. The idea behind the equivalence concept is nevertheless clear - member states may apply national laws to imported products, but they must take into account that the same interest could already have been considered by the exporting member state. It is also important to recognise that “Cassis” did not introduce any new implications for trade barriers involving health and safety arguments. However, following “Cassis” et seq, a member state using this defence must present an argument that will bear harsh scrutiny by the Court if it seriously expects to maintain the regulatory measure.

Mattera (1981 a) comments, on “Cassis”, that “if one applied this principle . . . in a systematic manner and without any restrictions, we should be steering straight towards untamed free trade and finally towards a common market where there would not be any legal standards and where. . . the bad products would drive out the good ones”. However the provisions of Article 36, and mandatory requirements, save us from this situation. ‘The scope of permissive mandatory requirements will probably grow with subsequent case law.

If a national rule is to be justified by a mandatory requirement, three criteria must be met - causality, proportionality and substitution. Thus the rule must be necessary and not excessive to meet a “mandatory requirement”, serve a purpose in the general interest and provide an essential guarantee that such a requirement will be met without hindering trade more than is necessary. The substitution effect is the most appropriate criterion for ruling on the justification of a national measure.

A question which remains unanswered relates to the impact of “Cassis” et seq on harmonisation efforts. “Cassis” et seq will probably act both as an incentive for harmonisation, largely on health and safety issues, and also dispense with the need for harmonisation on economic matters, and compositional standards, by forcing the examination of restrictive national legislation. The traditional doctrine concerning Article 100 stated that barriers resulting from disparities in laws had to be accepted and could only be eliminated by approximation. The Court has, in extending the scope of Article 30 et seq, widened this Article’s jurisdiction to cases previously regarded as falling within Article 100. However, Haigh (1980) notes that others “are equally convinced that the panoply of legislation in the member states will not be dismantled by this decision. There might well be a swing of the pendulum in favour of harmonisation, the impetus coming from industries likely to suffer from competitors . . .and from Gov- ernments eager for the Status QUO.” Thus “Cassis” et seq may act as a catalyst to harmonisation.

66 DIANA WELCH

The effects of “Cassis” et seq depend, largely, on the attitudes of the member states. Swinbank (1982) writes that “what this ruling would seem to imply is that if an importing state wished to liberalise trade in a particular good without attracting the opprobrium of its producers, or using scarce parliamentary time, this ruling would be a convenient excuse. If the importer did not wish to liberalise trade a delaying Court case would probably be necessary to judge whether the national measures were or were not justifiable.” Ideally on account of “Cassis” et seq, a member state, when considering the introduction of new legislation, should consider the requirements of its partners so that equivalent foreign goods do not face restricted access.

As the principle of “Cassis” concerned compositional standards it is obvious that the ruling aids Commission harmonisation efforts in relation to compositional regulations and labelling, but may have less effect in relation to food additives which are already covered by directives. “Cassis” will be particularly relevant in issues concerning uniform, maximum and minimum compositional requirements. France’s import ban against pasta manufactured otherwise than with 100 per cent durum wheat could be ruled illegal under Article 30 if Court action is s u ~ c e s s f u l . ~ ~ It may also be difficult for Germany to justify its restrictive beer laws, particularly as German producers make beer for export containing ingredients not permitted under the Reinheitsgebot. Information and labelling will become increasingly important if free movement of goods is to become a reality. The unpopular idea of a “Eurobeer”, suggesting a standard type of pint has been demolished and’the opportunity for German beer drinkers to enjoy a bottle of Newcastle Brown Ale, providing that the labelling clearly describes the nature and content of the product, may not be far away.

With respect to food additives, if member states are not in direct con- travention of the respective directives, “Cassis” will have little impact; but in areas yet to be harmonised, such as flavourings, the impact may be more debatable.

The principle of equivalence should mean that “traditional” goods may move between Member States, leading to an increase in consumer choice. However the consumer lobby is concerned that “Cassis” may encourage a reduction in standards. This seems unlikely, because if a higher national standard is justified then the foreign goods will be prohibited. Perhaps “choice” necessarily leads to choice between a number of levels of standards. This is acceptable, providing health and safety levels are not endangered.

As Harris, Swinbank and Wilkinson (1983) comment “It will be some years yet before the full implications of the Cassis de Dijon case are felt, and a lot will depend upon the willingness of the Member States to accept

4 7 Commission v Francc, Case 202/82 -,judgrment pending.


the implications of the ruling. If Member States are more convinced of the disadvantages of free trade . . . then progress will be slow. . . Trade will only be liberalised on a product by product basis as further case law is established . . . or as the Commission’s harmonisation programme makes headway.”

The Problems of Repressive Action

Repressive action appears to be plagued with almost as many handicaps as the constructive alternative. Eurocoop (1980) reported that there were only seven Commission officials dealing with over four hundred infringements on file in 1980. Judgement, following reference to the Courts, will take at least two years if the present trend continues. The cost of repressive action, both in money and political terms, can be high. Rather than individual traders taking court action and paying excessive litigation costs it is preferable for a member state or, better still, the Commission to take the action. However, as Sandalow and Stein (1982) comment, the Commission may be reluctant to bring an action against member states whose support may be required in Council negotiations. A member state may hesitate to sue another for similar political reasons.

Problems will obviously arise when applying the equivalence principle. The Commission may find it difficult to distinguish justified measures from spurious ones. The basic problem is one of placing economic, and health and safety interest on an equal footing. Eurocoop welcomes the equivalence principle when national laws apply solely to the economic interest of consumers. Consumers worry that defucto harmonisation may result in less stringent health and safety standards, and products of inferior quality.

Further debate will arise as to whether imported products “suitably and satisfactorily” meet the requirements of the importing country and how to prove that a product has been “lawfully produced and marketed” in the exporting country - what means of proof will be acceptable? Those unknown quantities of Article 30 et seq may discourage traders from bringing legal proceedings.

The principle of equivalence means that member states may be faced with extra administrative checks on compliance and a mountain of paper- work. This could impose heavy labour demands on the importing country.

The question of “reverse discrimination”, where national producers may be placed at a competitive disadvantage, also arises. As a result of the “Cassis” judgement the German alcoholic beverage industry is likely to press their legislature to modify the legislation in order to remove the minimum alcohol restriction altogether so that local producers will not be hampered in competing with imports. A revised German definition of liqueur will be required. The “Nisin” case raised the question of whether i t would be permissible for products of one state to be manufactured and

68 DIANA WELCH

marketed in compliance with the legislation of another state where a similar product manufactured in such other state would be entitled entry into the first state under Article 30. Although the principles of “Cassis” are a valuable weapon, they are no lasting substitute for de jure harmonisation.

Oliver (1982b) states that “where national measures are justified, Mem- ber States still have to allow imports conforming to norms providing equivalent guarantees . . . This could result in one and the same Member States applying a plethora of different norms. It is simpler to resort to harmonisation by a Community directive.” D e jure harmonisation is preferable because with de facto harmonisation initiatives arise from individuals and are not taken as a result of consultation and negotiation, as is the case with the former method.

T H E FUTURE - HARMONY BETWEEN “CONSECUTIVE” A N D RE-PRESSIVE” ACTION?

It is clear that “repressive” action can never totally replace “de jure” harmonisation. However it will control the flood of harmonising directives. The Commission will be better equipped to assess which cases warrant harmonisation and it will use increasing weight to pursue complaints. The moral effect of “Cassis” may result in the drafting of national legislation which is more sensitive to the needs of other member states. Hopefully the Commission will provide a forum for discussion between member states before they legislate individually. D e j u r e harmonisation will be limited in scope and thoroughly rethought. Harmonisation may be required for measures which fall inside Article 30 for the sake of clarity as well as those judged to be admissible due to “mandatory requirements” and Article 36. A large part of the harmonisation effort will be devoted to management of existing directives and conditions of use for food additives. It is hoped that the Commission has remembered past experience which taught that i t would be a waste of resources to attempt to harmonise where it is obvious that no compromises will be reached. If the Commission has learnt this lesson it may well abandon negotiations on conditions of additives use where tastes and eating habits vary to a significant extent between the member states. Future directives should be shorter and more flexible. However neither “repressive” nor “constructive” action will be rapid.

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Documents

From ‘Euro Beer’ to ‘Newcastle Brown’, A Review of European Community Action to Dismantle Divergent ‘Food’ Laws