Can the Danes ban Marmite?

Jon Worth (surely Britain’s leading blogger on EU affairs) has the story that it’s now illegal to sell Marmite in Denmark. The Danish embassy has been anxious to stress that Marmite is not banned, but that is, I’m sorry to say, slightly misleading. It’s clearly unlawful at the moment to sell Marmite in Denmark, as the Danish Foreign Ministry admits:

Neither Marmite nor Vegemite and similar products have been banned by the Danish Food And Veterinary Administration. However, fortified foods with added vitamins, minerals or other substances can not be marketed in Denmark unless approved by Danish food authorities.

The Danish Food and Veterinary Administration has not received an application for marketing in Denmark of Marmite or similar products with added vitamins or minerals.

According to the Danish Order on food additives, addition of vitamins, minerals and other substances need to be approved by the Danish Veterinary and Food Administration before the product can be marketed in Denmark.

You might think that sounds reasonable. I think it’s contrary to EU law, though. If I were Unilever, I’d not only be delighted at this publicity (which seems almost perfectly designed to boost Marmite’s “love it or hate it” brand image). I’d also be wondering if potential sales in Denmark made it worth suing Denmark for damages in EU law.

The Danish Ministry of Food says that

According to the Danish Order on food additives, addition of vitamins, minerals and other substances needs to be approved by the Danish Veterinary and Food Administration before the product can be placed on the Danish market.

In addition to the required pre-approval, any fortification with vitamins, minerals and other substances needs to comply with Regulation (EC) No. 1925/2006.

Regulation (EC) No. 1925/2006 does not at this stage specify any maximum levels for addition of vitamins, minerals and other substances. Until maximum amounts are specified in the regulation, the Danish Veterinary and Food Administration will follow the national authorisation procedure as described below.

Here’s Regulation 1925/2006. It’s since been amended, but not in a way that makes any material difference.

Regulation 1925/2006 on the addition of vitamins and minerals and of certain other substances to foods

Article 10 of that Regulation makes its internal market harmonisation purpose clear:

Without prejudice to the Treaty, in particular Articles 28 and 30 thereof, Member States may not restrict or forbid trade in foods which comply with this Regulation and Community acts adopted for its implementation by the application of nonharmonised national provisions governing the addition of vitamins and minerals to foods.

The Danish Order plainly restricts trade in foods. The requirement for prior authorisation is in itself a restriction on free movement of goods. In other words, it’s a “measure equivalent to a quantitative restriction on imports”, or MEQR, to use EU law jargon, under what’s now article 34 of the Treaty on the Functioning of the EU. The concept of an MEQR was defined in case C-8/74 Dassonville as including (para. 5)

All trading rules enacted by member states which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade

which the Danish Order obviously is, since imports of Marmite from the UK are at least indirectly and potentially hindered by it.

But hang on! Can’t Denmark rely on article 17.3 of the Regulation? It says

Member States may, in compliance with the rules of the Treaty, continue to apply existing national provisions on maximum and minimum amounts of vitamins and minerals listed in Annex I added to foods and on the conditions applicable to this addition until the adoption of corresponding Community measures in accordance with Article 6 or under other specific Community provisions.

The answer, I think, is no. If the Danish Order were a provision on maximum amounts of vitamins and minerals that set rational, justified limits, it would be permitted. But it seems not to set maxima at all. In fact it appears to restrict the free movement of foods such as Marmite regardless of the amount of vitamins and minerals they contain. This simply cannot be a proportionate exercise of the article 17.3 derogation. On the contrary, it plainly undermines the purpose of Regulation 1925/2006.

Jon Worth makes the point that Denmark has been here before, in case C-192/01 Commission v Denmark, in which a Danish law making the sale of vitamin-enriched foods subject to proof of nutritional need was ruled disproportionate and unlawful. It may be that the Danes are trying to achieve a similar result here, by other means.

I mention damages because, under the principles laid down in cases C-46/93 and C-48/93 Brasserie du Pecheur and Factortame, member states can be liable for serious breaches of EU law that cause damage. See paragraph 51 of the judgment.

I’m not confident Unilever would succeed in obtaining damages in a case like this, in spite of Denmark’s “form” on hindering imports of enriched foods. Denmark might be able to persuade the courts it acted in good faith by applying its existing measures on vitamins, even if on any reading (whether literal or purposive) they cannot be reconciled with article 17.3 of the Regulation, so that the breach of EU law is not sufficiently serious.

What I’m more confident of is that the Danish Order breaches EU law, in the shape of Regulation 1925/2006, and in all likelihood Regulation 178/2002 (because not proportionate as required by article 7.2) as well as article 34 TFEU.

If I were advising the Danish government, I’d say the Order cannot survive legal challenge. If they do manage to defend it successfully in the ECJ, I’ll eat … not my hat, but the biggest Havarti and Marmite toastie I can make.