On 19 Janary 2017 the European Court of Justice decided whether the German legislation at issue in the main proceedings is in breach of EU law in that it, first, prohibits the use of amino acids in food in general, regardless of whether there are reasons to suspect that there is a risk to health and, second, imposes conditions on the possibility of obtaining a derogation.
The Lebensmittel- und Futtermittelgesetzbuch (German Code on foodstuffs and animal feed) aims to protect human health by prevention measures in the private national field or to prevent a risk that these products present or may present. The referring court referred to the version of the Code published on 3 June 2013 (BGBl. 2013 I, p. 1426), as amended byParagraph 2 of the Law of 5 December 2014.
In essence the European Court of Justice ruled:
Articles 6 and 7 of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which prohibits the manufacture, processing or marketing of any food supplement containing amino acids, unless a derogation has been issued by a national authority with discretion in that respect, where that legislation is based on a risk analysis which concerns only certain amino acids, which it is for the referring court to verify. In any event, those articles must be interpreted as precluding such national legislation, where that legislation lays down that the derogations to the prohibition covered by it may only be granted for a specific period even in cases where the safety of a substance is established.
We like to draw your attentiom in particular to partuculat to the points 65 and 66 of the ruling which are as follows:
"In the present case, having regard to the information provided by the German Government in its written observations, and subject to the necessary verifications which the referring court must carry out, the risk analysis and the resulting application of the precautionary principle appear to concern only certain amino acids, which would be insufficient to justify a prior authorisation scheme, such as that laid down in the LFGB, which applies without distinction to all amino acids.
In the context of that verification, it must be pointed out that the practical difficulties in carrying out an exhaustive assessment of the risk to health of food containing amino acids, in accordance with the case-law referred to in paragraph 56 of the present judgment, cannot justify the absence of such an exhaustive assessment prior to the adoption of a systematic and untargeted prior authorisation scheme (see, by analogy, judgment of 28 January 2010, Commission v France, C‑333/08, EU:C:2010:44, paragraph 103)."
The whole ruling can be downloades by clicking the following linK.
ECJ Ruling C-282-15