Commission v. Germany and Article 36 Protection of Human Life and Health
Commission v. Germany
Commission v. Germany and Article 36 Protection of Human Life and Health
Mimi Y. Lee 0 1
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Free movement of goods is a fundamental principle of the European
Community.1 This principle is embodied, in part, in Article 30 of the
Treaty Establishing the European Economic Community ("EEC
Treaty").2 Article 30 prohibits restrictions on goods traded between
Member States of the European Community. Specifically, the Article
provides that "quantitative restrictions on imports and all measures
having equivalent effect" are prohibited.3
Article 36 of the EEC Treaty, however, provides important
exceptions to the principle of free movement of goods as embodied in Article
30.4 Article 36 states:
The provisions of Articles 30 to 34 inclusive shall not be an obstacle to
prohibitions or restrictions in respect of importation, exportation or transit
which are justified on grounds of public morality, public order, public
safety, the protection of human or animal life or health, the preservation of
plant life, the pyotection of national treasures of artistic, historical or
archaeological value or the protection of industrial and commercial
property. Such prohibitions or restrictions shall not, however, constitute either
a means of arbitrary discrimination or a disguised restriction on trade
be1 The other fundamental principles of the European Community are the free movement of
persons, the free movement of capital, and the freedom to provide services. L. GORMLEY,
PROHIBITING RESTRICTIONS ON TRADE WITHIN THE EEC 1 (1985).
2 Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 26,
art. 30 [hereinafter EEC Treaty]. Article 30 provides: "Quantitative restrictions on imports and all
measures having equivalent effect shall, without prejudice to the following provisions, be prohibited
between Member States." Article 34 of the EEC Treaty prohibits restrictions on exports between
3 Id. at 26, art. 30.
4 Id. at 29, art. 36.
tween Member States. 5
Because Article 36 permits derogations from a fundamental principle of
the European Community, it is strictly construed and addresses only
non-economic issues.' Foremost among the Article 36 exceptions to the
principle of free movement of goods are restrictions justified on grounds
of protection of human life and health.7
Recently, the Court of Justice of the European Community ("Court
of Justice" or "Court")' has begun to develop a significant body of case
law on the protection of human health exception of Article 36.1 This
development coincides with the increasing public interest in consumer
protection law, particularly with regard to the production of
Commission of the European Communities v. FederalRepublic of
Germany presents the Court's most recent attempt to define the
protection of human health exception.U In Commission v. Germany, the Court
5 Id. (emphasis added)
6 W.J.G. Bauhuis v. The Netherlands State, 1977 E. Comm. Ct. J. Rep. 5; Commission v. Italy,
pointed by common accord of the governments of the Member States. P. MATHUSEN, A GUIDE TO
EUROPEAN COMMUNrrY LAW 56 (1985). Its most important functions "are to ensure that the law
is enforced, irrespective of political considerations... ; to act as referee between the Member States
and the Community, as well as between the Community institutions inter se; and to protect the
rights of the individual from the infringement by the Brussels bureaucracies." T. HARTLEY, THE
FOUNDATIONS OF EUROPEAN COMMUNITY LAW 26 (1981).
9 E.g., Rewe-Zentrale AG v. Bundesmonopolverwaltung fur Branntwein, 1979 E. Comm. Ct. J.
Rep. 649; Officier van Justitie v. Sandoz B.V., 1983 E. Comm. Ct. J. Rep. 2,445; In re Leon Motte,
1985 E. Comm. Ct. J. Rep. 3887; Public Prosecutor v. Claude Muller, 2 Common Mkt. Rep. (CCH)
10 Loschelder identifies two reasons for the increased public interest in consumer protection law:
(1) a significant percentage of annual income is spent on food, and (2) changing lifestyles and
heightened public concern for health. Loschelder, Consumer Protection in the Federal Republic of
Germany:.4 Brief Look at the German Law of Food, 6 ST. Louis PUB. L. REv. 131 (1987).
11 Commission of the European Communities v. Federal Republic of Germany,  25
Common Mkt. L.R. 780, 4 Common Mkt. Rep. (CCH) t 14,417 (1988). The text of the original decision
is in German. The case has not yet been officially reported in the Report of Cases Before The Court
of Justice. An official English translation, Judgment of the Court, is not yet available from the Court
of Justice. The English translation reported the Common Market Reporter is unofficial. An
abbreviated, provisional translation is contained in the Proceedings of the Court of Justice of the
European Court of Justice of the European Communities No. 6/87 (Mar. 9-13, 1987). Quotations and
citations used in this Note are from the Common Market Reporter.
See also, Commission of the European Communities v. Hellenic Republic, 1987 E. Comm. Ct.
J. Rep., 4 Common Mkt. Rep. (CCH) 14,418 (1988) issued on the same day as Commission v.
Germany. The Court of Justice held that the Greek beer purity laws, which are very similar to those
in Germany, violated Article 30 and were not justified by Article 36. The Court did not cite
Commission v. Germany in this case, nor did it cite this case in Commission v. Germany. Nevertheless,
the Court used identical language in both cases to strike down the Greek and German beer purity
held that the Reinheitsgebot or beer purity laws of the Federal Republic
of Germany ("Germany") violated Article 30 and could not be justified
under the Article 36 protection of human health exception.12 The purity
laws allow beers containing only barley malt, hops, yeast, and water to be
marketed in Germany. The Court concluded that since beers from other
Member States contain additives, the purity laws effectively bar their
importation into Germany. 13
The purity laws are based on a royal decree issued in 1516 by Duke
Wilhelm IV of Bavaria. 4 Although the laws are regarded as the world's
oldest health regulation, their original purpose was to preserve wheat for
bread by specifying that only ingredients other than wheat could be used
in beer. i"
The purity laws as challenged by the Commission 16 are comprised of
several provisions. Article 9 of the Biersteuergesetz ("BSG") provides
that the very popular bottom-fermented beer may be produced only from
barley malt, hops, yeast, and water. Top-fermented beer may be
produced from the same four ingredients, plus certain other malts and
sugars. 7 Article 10 of the BSG provides that only fermented beverages in
compliance with Article 9 may be produced or imported in Germany
under the designation "bier".' 8 Thus, Member States can import into
Germany beverages containing other ingredients, but cannot market
them as "bier". 19
The specific ban on the sale of beers containing additives is provided
in the Lebensmittel-und-Bedarfsgegenstandegeset("LMBG"). z°
According to the LMBG, additives are "substances which are intended to be
added to foodstuffs in order to alter the characteristics of such foodstuffs
or to give them specific properties or produce special effects."2 1 The
LMBG prohibits the use of unauthorized additives in the commercial
production or processing of foodstuffs, including beer. Additionally, the
LMBG authorizes regulations which are "compatible with consumer
protection from the point of view of technological, nutritional and
dietary requirements" and which limits the amount of additives for specific
foodstuffs or uses or in general.2 "
This Note examines Commission v. Germany for the legal definition
it gives to the Article 36 exception for the protection of human health.
Further, this Note studies the way in which Commission v. Germany
raises questions concerning the degree of success the European
Community has had in attempting to realize a barrier-free common market.
Section II of this Note presents the Court's opinion, and Section III
compares the opinion to relevant Court of'Justice decisions. Section IV
reports reactions to Commission v. Germany and places the decision in
the context of the current condition of the European Community.
Finally, Section V evaluates how effective both the Court of Justice in
Commission v. Germany and other institutions of the European Community
have been in advancing the common market ideal.
COMMISSION v. GERMANY
A. Issues Before the Court
In 1982, a French exporter complained to the Commission that the
purity laws prohibited the sale of his beer in Germany, because his
product contained additives.2 3 The Commission found substance in the
complaint and sought to convince Germany to amend its legislation in order
to permit the sale of foreign beers. When Germany did not respond, the
Commission brought a direct action 4 against it before the Court of
20 Lebensmittel-und Bedarsfgegenstandegesetz (Law on Foodstuffs and Consumer Goods), Aug.
15, 1974, BSB, Part I, 1974, at 1946 [hereinafter LMBG].
23 Beer Ruling, supra note 14.
24 There are two general categories of cases which may come before the Court ofJustice-direct
actions and preliminary rulings. A direct action challenges the legality of: (1) regulations enacted by
a Member State; (2) directives or decisions by the Commission; or (
) directives or decisions by the
Council, another political institution of the European Community. Member States, the Commission,
the Council, or a natural or legal person may bring a direct action. Toepke, The EuropeanEconomic
Communit -- A Profile, 3 Nw. J.INT'L L. & Bus. 640, 651 (1981).
Northwestern Journal of
International Law & Business
Before reaching the substance of Commission v. Germany, the Court
of Justice resolved procedural matters which could have resulted in a
dismissal of the direct action. 6 Prior to bringing a direct action before
the Court, the Commission may deliver a "reasoned opinion" or "letter"
regarding application of the relevant European Community Treaty to the
matter at hand. The Member States, whose obligation to the Treaty is
being challenged, may submit a "reply to the reasoned opinion." The
Commission determines whether to file suit based on this reply.
The procedural issue involved in Commission v. Germany centered
on which regulations comprising the purity laws the Commission could
properly challenge.2 8 In its reasoned opinion, the Commission cited only
one regulation of the purity laws, Article 9 of the BSG. Subsequently,
Germany addressed only Article 9 in its reply to the reasoned opinion.
Additionally, the Commission discussed only Article 9 in its application.
Germany, however, argued in its defense that the Commission had failed
to name the legislation relevant to the suit. Germany contended that the
Commission should have challenged the LMBG, which specifically
restricted the use of additives in foodstuffs; therefore, the direct action
should be dismissed.2 9
The Court of Justice found that the direct action concerned
regulations in both the BSG and the LMBG.3 ° The Court explained that the
Commission had consistently objected to the restrictions on beer imports
from other Member States and had referred to Article 9 of the BSG as
merely an example of the purity laws that it opposed. Furthermore, the
Court noted that although the Commission did not cite the LMBG, it
had argued in its reasoned opinion that the blanket ban on additives was
disproportionate to Germany's objectives to protect the life and health of
its citizens. Finally, the Court stated that Germany also had indirectly
referred to the LMBG by defending its restrictions on additives and
raising the health and life justifications in its defense.31
Upon resolution of the procedural issue, the Court identified two
substantive issues: the permissiveness of Article 10 of the BSG, which
prohibits use of the designation "bier" for beers that do not comply with
Article 9 of the BSG, and whether the blanket ban on beers containing
25 Commission v. Germany, 4 Common Mkt. Rep. (CCH) 14,417 at 17,905.
26 Id. at 17,905-06.
27 J. USHER, EUROPEAN COURT PRACTICE 4, 29 (1983).
28 Commission v. Germany, 4 Common Mkt. Rep. (CCH) 14,417 at 17,905-06.
30 Id. at 17,906.
additives is justified by Article 36 of the EEC Treaty on grounds of
protection of human health.3 2
The Designation "Bier"
The Court first noted that Article 9 of the BSG, which permits only
the four ingredients of malt, hops, yeast, and water in beer, applied only
to German breweries. Consequently, Article 9 does not restrict imports
in violation of Article 30 of the EEC Treaty.3 3 However, as the Court
explained, Article 10 of the BSG applies both to products made in
Germany and those imported from other Member States, and it refers to
Article 9. Therefore, because German breweries are largely the only
producers of beer solely containing the four ingredients of Article 9, Article
10 effectively reserves the designation "bier" solely for
Germany argued that Article 10 is merely a rule of designation,
which is exclusively intended to protect consumers.35 According to
Germany, German citizens associate the term "bier" with beverages made
exclusively from the four ingredients listed in Article 9. The restrictions
of Article 10 are necessary so that Germans will not be misled about the
product they consume.3 6
The German government further maintained that the purity laws
are not protectionist in their aim. Any trader from any country can
market a product that complies with Article 9 as "bier". Thus, Article 10
does not violate Article 30 of the EEC Treaty.37
The Court soundly rejected Germany's contentions, finding that
Article 10 violates Article 30 of the EEC Treaty for two reasons. 38 First,
Article 10 "crystallizes" consumer conceptions about the meaning of the
term "bier." Second, "bier" is a generic term whose use cannot be
reserved by a Member State.39 In discussing the first reason, the Court
noted the European Community has "harmonized" or implemented
common rules governing all Member States in certain areas.40 However,
32 Id. at 17,906, 17,908.
33 Id. at 17,906.
37 Id. at 17,906-07. It should be noted that Article 36 ofthe EEC Treaty was not relevant to this
portion ofthe case, because Germany argued that Article 10 ofthe BSG did not violate Article 30 of
the EEC Treaty. Article 36 would have been at issue if Germany had conceded that Article 10
violated Article 30 but was justified under the protection of human health exception of Article 36.
38 Id. at 17,907.
40 Harmonization is achieved, in part, through Directives issued by the Council of the European
in the absence of harmonization, Member States may enact national
legislation subject to certain requirements. With respect to such national
health regulations, a Member State must recognize that consumers'
[C]onsumer conceptions which vary from one Member State to another are
likely to evolve over time within a Member State. The establishment of the
Common Market is, it should be added, one of the factors that may play a
major contributory role in that development. Whereas rules protecting
consumers against misleading practices enable such a development to be
taken into account . . . [Article 10 of the BSG prevents] it from taking
place. As the Court of Justice has already held in another context [in
Commission v. United Kingdom], the legislation of a Member State may not
"crystallize given consumer habits so as to consolidate an advantage
acquired by national industries." 41
The Court concluded that Article 10 violates Article 30 of the EEC
Treaty because "bier" is a generic term.4 2 Therefore, Germany cannot
reserve the term for beverages made in accordance with Article 9 of the
BSG. Indeed, as the Court pointed out, Germany appeared to have
contradicted itself because certain paragraphs of Article 9 use the
designation "bier" to refer to beverages that do not meet German purity
standards.4 3 The Court also suggested that appropriate labelling of
ingredients adequately protects consumers. Thus, Germany may establish
labelling requirements to identify beers from other Member States, but
such labelling cannot present negative impressions about imported
The Absolute Ban on Beers Containing Additives and the
Principle of Proportionality
The second substantive issue before the Court involved the absolute
ban on foodstuffs. Germany conceded that its purity laws effectively ban
all beers made in other Member States and hence violate Article 30 of the
EEC Treaty. However, Germany argued, the purity laws are justified
under Article 36 on grounds of protection of human health.4 5
In its attempt to justify the purity laws, Germany emphasized the
dangers of using additives when their long-term effects are unknown,
Community. Four Directives have been issued regarding additives. However, none of the Directives
specifically apply to regulations like the beer purity laws. See Commission v. Germany, 4 Common
Mkt. Rep. (CCH) 14,417 at 17,894 for a list of the four Directives on additives.
41 Id. at 17,907.
43 Id. at 17,907-08.
45 Id. at 17,908.
particularly the accumulative effect of additives in the body and their
interaction with substances such as alcohol. Importation of beers
containing additives presents a particularly high risk to German public
health, because Germans consume a large quantity of beer.' Indeed,
Germany emphasized, the use of additives is not "technologically
necessary" and can be avoided by following Article 9 of the BSG.47
In initial support of Germany's argument, the Court cited three of
its earlier decisions, Officier van Justitiev. Sandoz B. V, In re Leon Motte,
and Public Prosecutorv. ClaudeMuller. These cases establish that, in the
absence of Community harmonization of national laws, Member States
may decide the appropriate degree of protection of human health, while
still having regard for the requirement of free movement of goods.
Further, such legislation may require prior authorization by the recipient
State for products containing additives.4 8
However, the Court cautioned, a Member State that prohibits goods
containing additives, .even though the goods are authorized by other
Member States, must comply with Article 36, as interpreted by the
Court. In the instant case, the purity laws should be interpreted using
the "principle of proportionality" as based on the second sentence of
Artile 36." Furthermore, Germany had the burden of proof because it
was the Member State which enacted the challenged law.5 0
The second sentence of Article 36 provides that prohibitions or
restrictions on importation, exportation, or transit of goods "shall not...
constitute either a means of arbitrary discrimination or a disguised
restriction on trade between Member States."5 1 The principal of
proportionality sets forth criteria to determine if a prohibition arbitrarily
discriminates or is a disguised restriction on trade. Citing Sandoz, Motte,
and Muller, the Court defined the principle of proportionality in two
prohibitions on the marketing of products containing additives authorized
in the Member State of production but prohibited in the Member State of
importation must be restricted to what is actually necessary to secure the
protection of human health.... [A]lso the use of a specific additive which is
authorized in another Member State must be authorized in the case of a
product imported from that Member State where, in view, on the one hand,
46 Id. Germans consume 148 liters or 39 gallons a year. Beer accounts for almost one-third of
the nutrients consumed by the average German. Consumption in Bavaria is 250 liters or 66 gallons
annually. BeerRuling, supra note 14.
47 Commission v. Germany, 4 Common Mkt. Rep. (CCH) 14,417 at 17,908.
48 Id. at 17,908-909.
49 Id. at 17,909.
51 EEC Treaty, supra note 2.
of the findings of international scientific research.... and, on the other
hand, of the eating habits prevailing in the importing Member State, the
additive in question does not present a risk to public health and meets a real
need, especially a technological one.52
Next, the principle of proportionality requires that Member States
provide importers of goods containing additives with an accessible and
reasonably expedient procedure for obtaining permission to bring goods into
the country. 3
Applying the above definition, the Court held that Germany's
blanket ban on beer containing additives violated the principle of
proportionality as based on the second sentence of Article 36.14 Not only did the
purity laws fail to provide an application procedure for traders, 5 but
Germany had not justified the blanket ban of the purity laws on
international research or the eating habits of its citizens. Instead, Germany had
simply referred to unknown potential risks of additives and to the heavy
consumption of beer by its citizens. Indeed, rather than establishing a
need for the blanket ban, Germany had submitted evidence that it
permits some additives that are used in foreign beers to be used in drinks
other than beer.5 6
The Court strongly criticized Germany's arguments that the purity
laws meet a real need, particularly a technological one.57 Germany had
contended that there is no real need for additives in beer because it can be
manufactured in compliance with Article 9 of the BSG. Hence, by
Germany's definition, ingredients that met a "real need" were only those
indispensable to the manufacturing process. The Court responded that
mere reference to the fact that beer can be made without additives did
not preclude the possibility that some additives may meet a technological
need. "The concept of technological need must be assessed in light of the
raw materials utilized and bearing in mind the assessment made by
authorities of the Member State where the product was lawfully
manufactured and marketed. Rather than make such an assessment, Germany
had enacted purity laws which favor national production methods and
constitute a disguised restriction of trade in violation of Article 30.59
RELEVANT DECISIONS OF THE COURT OF JUSTICE
The Additives Cases: Proportionality and the "Risk and Real
Article 36 of the EEC Treaty attempts to address an inherent
contradiction in the common market ideal: the basic principle of free
movement of goods between all Member States weighed against the imperative
noneconomic interests of individual Member States.' ° Article 36
functions in two parts. The first sentence enumerates restrictions to free
movement which nevertheless are justified because of national interests,
particularly restrictions protecting human health. A measure that is
found to be justified by the first sentence of Article 36 must then comply
with the second sentence. 61 The second sentence states that a restriction
justified by the first sentence cannot constitute "a means of arbitrary
discrimination or a disguised restriction on trade between Member States
.... "62 In order to determine whether a restrictioni'constitutes a means
of arbitrary discrimination or a disguised restriction, the Court has
inferred from the second sentence the principle of proportionality.63
The principle of proportionality, in its barest form, permits
restrictions only to the extent necessary to protect a relevant interest. 6" The
Court has developed the law on the principle of proportionality in four
cases regarding the use of additives in foodstuffs: Sandoz, Motte, Muller,
and most recently, Commission v. Germany.
Sandoz involved the prosecution of an importer who sold foodstuffs
containing added vitamins, without first obtaining required authorization
from Dutch officials.65 Unlike the Netherlands, Germany and Belgium
had authorized the marketing of foodstuffs containing added vitamins.
The Netherlands conceded their measure violated Article 30 of the EEC
Treaty, but argued that the measure was justified under Article 36 on
public health grounds. 66
The Court recognized that excessive consumption of vitamins has
long-term harmful effects and that it is difficult to assess a safe level of
vitamin intake. But, the Court noted, the foodstuffs involved did not
contain harmful amounts of vitamins and did not alone threaten human
60 L. GORMLEY, supra note 1 at 220.
61 Id. at 210-11.
62 EEC Treaty, supra note 2.
63 Commission v. Germany, 4 Common Mkt. Rep. (CCH) 114,417 at 17,909.
64 L. GORMLEY, supra note 1, at 125.
65 Sandoz, 1983 E. Comm. Ct. J.Rep. it 2,458.
66 Id. at 2,459.
health.6 7 The Court explained that, in the absence of harmonization of
national rules, Member States have wide discretion in determining the
degree of protection of human health that they want to ensure, as long as
they uphold the principle of free trade. Moreover, Member States "must,
in order to observe the principle of proportionality, authorize marketing
when the addition of vitamins meets a real need, especially a technical or
Thus, the Court in Sandoz presented an initial definition of the
principle of proportionality: although Member States have wide discretion in
public health regulation, a Member State must authorize the use of an
additive that meets a real need. Motte and Muller further developed the
definition of the principle of proportionality.
In Motte, Belgium refused to allow potted fish roe containing
artificial coloring to be imported from Germany.69 Similarly, in Muller,
French authorities prosecuted the defendant for importing German
pastries containing an emulsifying agent.7 °
The Court of Justice found that both the Belgian and French
governments had violated Article 30 and that Article 36 did not justify their
actions.7 ' Citing Sandoz, the Court recognized in both cases that the
principle of proportionality provides that, in the absence of
harmonization, Member States are able to enact public health regulations.
However, the principle of free movement of goods must be recognized and
national authorities should assess whether a particular additive meets a
The Court in Motte and Muller then further defined the principle of
It is for the Member States to consider, in the context of factual assessments
which they must undertake in that regard, whether the marketing of
foodstuffs containing additives may present a risk to public health and whether
there is a realneed for the additives in the particular foodstuffs. In applying
those criteria, they must take account of the results of
internationalscientific research and in particular of the work of the Community's Scientific
Committee for Food viewed in light of the eating habitsprevailing in the
importing Member State.7 3
67 Id. at 2,460-61.
68 Id. at 2,463-64.
69 Motte, 4 Common Mkt. Rep. (CCH) 14,280 at 16,710.
70 Muller,  2 Comm. Mkt. L.R. at 479, 4 Common Mkt. Rep. (CCH) 1 14,329 at 17,070.
71 Motte, 4 Common Mkt. Rep. (CCH) 14,280 at 16,714; Muller,  2 Comm. Mkt. L.R.
at 485, 4 Common Mkt. Rep. (CCH) 1 14,329 at 17,073.
72 Motte, 4 Common Mkt. Rep. (CCH) 14,280 at 16,713; Muller,  2 Comm. Mkt. L.R.
at 483, 4 Common Mkt. Rep. (CCH) 14,329 at 17,072.
73 Muller,  2 Comm. Mkt. L.R. at 484, 4 Common Mkt. Rep. (CCH) 14,329 at 17,073.
Moreover, the Court noted in Muller that a real need includes needs of a
technological or economic nature.74 The Court thus expanded the
principle of proportionality to require that a Member State consider not only
whether an additive meets a real need, but also whether it presents a risk
to public health. Moreover, the risk and real need of an additive should
be determined in light of international research and the eating habits of
In Commission v. Germany, the Court relied on the principle of
proportionality to determine that the beer purity laws constituted a
disguised restriction on trade between Member States. The Court noted
that the principle of proportionality, as developed in Sandoz, Motte, and
Muller, requires that an additive authorized in one Member State but
prohibited in another must be allowed in the prohibiting State if
international research and the eating habits in the prohibiting State indicate that
the additive does not present a public health risk and "meets a real need,
especially a technological one."'75
The Court next defined the term "technological need". The Court
declared that the term is not so restrictive as to mean that the mere
feasability of producing a foodstuff without the additive eliminates the
possibility of a technological need. Rather, "technological need"
requires a Member State to assess an additive used in foreign beers, in light
of the raw materials used with the additive and the conclusions reached
by authorities in the other States where the additive is permitted.76
The Court's discussion of the risk and real need standard is
significant. It is the Court's most expansive definition to date of the principle
of proportionality as applied to cases regarding additives in foodstuffs.
Commission v. Germany reaffirms the principle of proportionality as
defined in Motte and Muller, and explains the term "technological need".
It is important to note that the Court's requirements that an additive
cannot present a public health risk and must meet a real need, especially
a technological need, does not preclude the possibility that other
nontechnological, real needs would be permitted. Indeed, in Sandoz and
Muller, the Court identified nutritional, technical, and economic needs as
permissible non-technological, real needs. Furthermore, neither party in
Commission v. Germany raised the issue of whether additives in beer met
real needs other than technological needs.
The Court's articulation of the principle of proportionality in
Commission v. Germany also makes it more difficult for a Member State to
74 Id. at 483,  4 Common Mkt. Rep. (CCH) 14,329 at 17,072.
75 Commission v. Germany, 4 Common Mkt. Rep. (CCH) 14,417 at 17,909.
76 Id. at 17,909-10.
justify a restriction on free movement of goods under Article 36.
According to the principle of proportionality, a Member State that prohibits
the marketing of a foodstuff containing additives has the burden of
proving that the additive does not meet the risk and real need standard. By
widening the scope of the risk and real need standard, the Court
increased the burden placed on a defending Member State. Thus, in order
for a defending Member State to prevail, it must show that an additive
poses a risk to public health and does not meet a real technological,
economic, or nutritional need.
This expansive definition of the principle of proportionality is
consistent with the Court's efforts to advance free movement of goods under
Article 30. By increasing the burden of proof for defending a measure
that impedes free movement, the Court narrowed the scope of measures
justified under Article 36. In narrowing the scope of Article 36, the
Court correspondingly widened the reach of Article 30.
B. Consumer Habits of the Member States
With the exception of Commission v. Germany, Muller is the Court's
most recent discussion of the Article 36 exception for the protection of
human life and health. Comparison of the two cases reveals the Court's
inconsistent treatment in recognizing the individuality of Member States,
particularly with regard to unique eating habits.
In Muller,the Court interpreted Article 36 to mean that the ideal of
a common market must nevertheless recognize the cultural differences of
the individual members to the extent that human life and health need
protection. Specifically, the eating habits of a country must be tolerated
to some degree because of overriding health concerns. In Commission v.
Germany, the Court cited Muller with approval, stating that the eating
habits of a country help determine if an additive meets a real need under
the principle of proportionality. The Court, however, contradicted its
toleration on national eating habits in another section of its opinion. In
its discussion of the designation "bier", the Court conclusively stated
national legislation cannot crystallize consumer habits." Because eating
habits are one form of consumer habit, national legislation, which
identifies a particular eating habit and thus justifiably protects public health
under Article 36, necessarily crystallizes a consumer habit. Yet,
according to the Court, such crystallization is prohibited.
One could argue that the Court's apparent contradiction can be
re77 Id. at 17,907.
solved by its ruling in Officier van Justitiev. Albert Hein B. V 78 In Albert
Hein, the Court held that, determination of acceptable levels of pesticide
should take into account, among other factors, the dietary habits of a
national population. However, such determination of permissible levels
cannot be static. For example, a new use of a pesticide might require an
adjustment of its permissible level.
Applying the ruling in Albert Hein to the situation in Commission v.
Germany, a national regulation regarding permissible additives for beers
would have to be flexible and receptive to both new uses of additives and
to changing consumer habits. Such flexibility would consider national
eating habits without crystallizing them. While this line of reasoning
may be valid, it was not proposed by the Court and the apparent
inconsistency in the Court's analysis remains.
Despite the inconsistency in the Court's analysis in Commission v.
Germany, the Court's conclusion was ultimately correct. By striking
down West Germany's overly broad restrictions on foreign beers and
expanding the principle of proportionality, the Court affirmed the basic
principle of the free movement of goods. The Court ruled that, even if
the European Community has not established common rules for Member
States on a particular subject, the States cannot enact legislation which
obstructs free movement. In short, whether or not harmonization exists,
free movement of goods under Article 30 must be secure.79 Defendants
of obstacles to free movement must meet a heavy burden of proof. Only
narrow exceptions, rather than Germany's sweeping purity laws, will be
allowed under Article 36.
IV. REACTION TO COMMISSION V GERMANY
While the Court of Justice continues to affirm the free movement of
goods principle, practical considerations hinder the effective
advancement of the principle. The European Community has set 1992 as its
target date for securing a barrier-free integral market.8" Yet, only four
years away from the target date, the Community continues to be a "maze
of protectionism". One member of the Commission has said that Europe
is "experiencing an innovation phase--not unfortunately in free trade,
but in obstacles and restrictions."8 1 Germany's beer purity laws
exemplify this unwanted innovation. The Court's struggle to balance free
movement with the undeniable cultural differences between Member
States illustrates the inherent contradiction of a common market.
Reaction to Commission v. Germany also reflects the cultural
divisions endemic to the common market. German brewers have stated that
the purity standards would remain in force for them, and that the
Reinheitsgebot would be used as a quality trademark.82 German brewers
also expect consumers to remain faithful to the domestic brews which
they have always consumed, even if imported beers are less expensive.83
Furthermore, two of Germany's biggest supermarkets, Coop and
Tenglemann, plan to boycott imported brews which do not conform to the
Brewers in other Member States are betting that German consumers
are ready for a change. Imports comprised only 3.3% of the total
German beer market in 1980.85 Nevertheless, French and Dutch brewers
have said that they will launch massive advertising campaigns in
The structure of Germany's beer industry may also make it
susceptible to competition. 87 Although it is the second largest beer-producing
country in the world, Germany is an exception to the rule that a handful
of firms produces the majority of the world's beer. Indeed, almost half of
the world's 3,000 breweries are located in Germany.8 8 Many German
breweries have markets concentrated in specific localities.89 The small
beer producers of Germany may find it difficult to compete with the huge
foreign beer producers.
The German government has not yet taken official action regarding
the purity laws. However, the German Ministry has stated that foreign
beers will be tested for impermissible ingredients. Ingredients in foreign
beers will also have to be listed clearly on every bottle, can, and barrel. 90
The Christian Democratic Party has said, "This decision is an example
of the European Commission's growing negligence in honoring the
cultural differences of its Member States."91
The unenthusiastic acceptance in Germany of the decision in
Commission v. Germany may be indicative of the country's growing
dissatisfaction with the European Community. German farmers have
demonstrated heavily against Community agricultural policies, and
Germany was the only Member State which failed to help promote
Community togetherness for the Olympic Games. Furthermore, the Ministry
has expressed a need for firm evidence that membership in the
Community is more favorable than rapprochement with East Germany.92
Germany also is currently a top world exporter and Western
Europe's dominant economy.93 While Germany enjoys prosperity, the
European Community suffers from sluggish growth-less than 2% in
1988.14 Leaders of the European Community and economic experts have
stated that better cooperation among the Member States is crucial for
domestic growth. Germany, France and Britain have been urged to
increase government spending in hopes that further stimulation of their
economies will spur the Community's abysmal growth. However,
Germany has refused to cooperate because it fears higher inflation, and
France and Great Britain will not follow without Germany's
Some economists believe that the lack of cooperation will necessitate
a realignment of the European Monetary System, which Germany
opposes. French and Italian currencies would be devalued against the
German currency. Such a realignment would reduce trade deficits for
France and Italy, but damage Germany's prosperity.96
As Germany becomes a formidable exporter relative to the United
States and Japan, the free movement of goods between the Member
States seems less important to Germany. While Germany flourishes, less
prosperous Member States insist on cooperation in the name of the
92 Berlin, not Brussels,Exerts the StrongestFascination,Financial Times, April 3, 1987, § 1, at
26, col. 1.
93 Greenhouse, Better Cooperation Urged in Europe, N.Y. Times, Feb. 23, 1988, at 24, col. 1.
pean Community. Unless Member States cooperate as members of a
common market, efforts to advance free movement by the Court of
Justice and other Community institutions may prove to be ineffective.
The Court of Justice has commented on attempts to harmonize the
national laws of Member States:
The fundamental principle of a united market and its corollary, the free
movement of goods, may not under any circumstances be made subject to
the condition that there should first be an approximation of national laws
for if that co9n7dition had to be fulfilled the principle would be reduced to a
Yet, without harmonization, the Court struggles to fit the national laws
of the autonomous, and thus necessarily self-interested, Member States
into a philosophically unified body of Community law.
On many levels, Commission v. Germany exemplifies the struggle of
the ideal of the common market. According to the Court, Germany's
purity laws were an effort to promote a national product at the expense
of the Community's overriding principle of free movement of goods.
Thus, the Court correctly struck down the beer purity laws. Yet, in
advancing the free movement of goods principle and expanding the
principle of proportionality, the Court was forced to acknowledge that a
unique characteristic of an autonomous Member State, national eating
habits, could properly stand in the way of free trade.
Enactment of legislation such as the purity laws and refusal by the
German government to work with other Member States in economic
policy-making stand in the way of the common market ideal. The threat in
Germany of boycotts of foreign beers demonstrates that the citizens of a
Member State also may hinder the realization of the common market
If neither the government nor the citizens of Member States are
willing to open their borders, sacrificing some national identity for the
greater cause of the Community, then decisions like Commission v.
Germany will make little progress. The Court believes that harmonization of
national laws would reduce the principle of free movement of goods to a
mere cipher. It seems, however, that the opposite is true. Without some
approximation of national laws by the European Community, the
individual interests of each Member State may continue to reduce the
common market ideal to a mere cipher.
Mimi Y Lee
1961 E. Comm. Ct . J. Rep. 317 . 7 Officier van Justitie v. De Peijper, 1976 E. Comm. Ct . J. Rep. 613 . 8 The Court of Justice of the European Communities consists of eleven judges, who are ap78 Officier van Justitie v . Albert Heijn B.V. 1984 E. Comm. Ct . J. Rep . 3263 . 79 On the efforts of the Community to harmonize rules of the Member States , see C. TWITCH-
Err,HARMONISATION IN THE EEC ( 1980 ) ; Dashwood, HasteningSlowly: The Community's Path
lace & C. Webb, eds. 1977 ) 273; Vogelaar, The Approximation of the Laws of the Member States
Under the Treaty of Rome 12 COMMON MKT . L. REv. 211 ( 1975 ). 80 Dietrich, GermansCanNo LongerExcludeForeignBeers, Reuters, March 12 , 1987 (NEXIS,
Omni file) . 81 Ball , The Common Market's Failure,FORTUNE , Nov. 14 , 1983 , at 188 at 190 (quoting Karl-
Heinz Najes of the Commission) . 82 Beer Ruling, supra note 14 . 83 Jautz, Consumer Groups Welcome Beer Ruling, Brewers Disappointed, Associated Press,
March 12 , 1987 (NEXIS, AP file). 84 Beer Ruling, supra note 14 . If these two supermarkets or other private groups boycott beer
from other Member States, they may be found to violate Article 36 of the EEC Treaty . The Euro-
pean Community law is unclear as to whether Articles 30 to 34 of the EEC Treaty, along with the
exceptions in Article 36, apply to private (as opposed to State) restrictions on trade . See, Themaat
and Gormley, ProhibitingRestrictionofFreeTrade Within the Community:Articles 30 -36 ofthe EEC
Treaty , 3 Nw. J. INT'L LAW AND BUS . 577 , 608 ( 1981 ). 85 J. CAVANAGH & F. CLAIRMONTE , ALCOHOLIC BEVERAGES DIMENSIONS OF CORPORATE
POWER 23 ( 1985 ). 86 Dietrich, supra note 81 . 87 J. CAVANAGH & F. CLAIRMONTE, supra note 86, at 67 . 88 Id. at 64 . 89 Jautz, supra note 84.