• In the case of Case 53/80 Eyssen [1981] ECR 409, the European Court of Justice ruled on whether the use of an additive was valid based on its health risks.
  • This case concerned European Economic Community law, consumer health and market competition.

Facts of the Case

  • The national rule in the Netherlands is that Nisin could not be added to cheese. This policy was domestically applied not for exports.
  • D contended in this appeal that this policy violated Article 34 of the Treaty on the Functioning of the European Union. D claimed this was a measure equivalent to a quantitative restriction.


  • Does the provision violate Article 34 of the Treaty?
  • Can the provision be permitted by Article 36 of the Treaty?

Held by European Court of Justice

  • C’s claim allowed – even though it was a quantitative restriction the prohibition of nisin applies due to public safety reasons.

Judge Koopmans (President)

Compatibility with Community law

  • Member State national courts share a “lack of uniformity” around the application of the preservative.
  • “Whilst it is true that the obstacles to which the disparity of the national laws on the subject give rise in intra-Community trade in the products concerned may be eliminated only by a uniform set of rules adopted at Community level, such rules do not exist at the present stage of Community law.”
  • “The provisions of the EEC Treaty regarding the free movement of goods do not, at the present stage of Community rules on preservatives in foodstuffs intended for human consumption, preclude national measures by a Member State which, on the ground of the protection of health and in accordance with Article 36 of the Treaty, prohibit the addition of nisin to home-produced or imported processed cheese, even if they limit such a prohibition only to products intended for sale on the domestic market of that state.”

Advocate General Mr. Jean-Pierre Warner

Free movement of goods

  • D’s argument relied on Case 8/74 Procureur du Roi v. Dassonville [1974] ECR 837 and Case 120/78 Rewe v. Bundesmonopolverwaltung für Branntwein [1979] ECR 649.
  • “The purpose of that legislation is plainly to limit the consumption of nisin by people in the Netherlands… the onus is on the Dutch Government to show that nisin is harmful, or that, as was suggested by the Commission, but disputed by Eyssen, the question must be left to the Dutch courts to decide.”
  • The long term effects of consuming risin is unclear and there are other risk factors at play.
  • “At present, a provision in the legislation of a member-State forbidding, subject to exceptions, the addition of nisin to processed cheese is compatible with the provisions of the Treaty relating to the free movement of goods.”