February 02 2007
In 1979 the European Court of Justice struck down a German decision limiting imports of alcoholic beverages from other EU member states. The case concerned Cassis de Dijon, a French liqueur with an alcohol level of 15% to 20%, instead of the 25% prescribed for liqueurs by German alcohol content requirements. The court denied the admissibility of such a limitation and upheld the principle of mutual recognition (known as the 'Cassis de Dijon principle'), signifying that a product manufactured according to regulations and permitted in one EU member state must be permitted in other EU member states. As the liqueur met French standards, it had to be allowed on the German market. Exceptions to this principle can be made only in order to serve the public interest (eg, the protection of health, the environment or consumers). In the years that followed the Cassis de Dijon principle has abolished many trade barriers.
Switzerland is not a member of the European Union. Swiss product declaration rules prohibit the import of certain products in their original form - for example, the declarations on many imported drinks need to be amended before the import as Swiss rules require the caffeine content to be given as a percentage, whereas EU rules require caffeine to be declared in milligrams. This can cause significant additional cost; the incompatibility with foreign rules is widely seen as a reason for the relatively high price level in Switzerland.
The importers of such products have disputed the Swiss declaration rules, claiming that they violate the Cassis de Dijon principle. However, to date the Swiss Federal Court has denied the applicability of this principle to imports of products into Switzerland. In two recent cases the court upheld its longstanding practice when dealing with medicines that infringed the prohibition on claiming positive effects on illnesses in advertisements.(1) In both cases the court confirmed the infringement of this prohibition and rejected the applicability of the Cassis de Dijon principle, on the grounds that there is no superior law obliging Switzerland, as a non-EU member state, to adopt this principle. The court stated that any discrepancy causing difficulties for the producers or importers of such items reflects the intentions of the legislature and must therefore be accepted. In another case the court could not comment on the applicability of the Cassis de Dijon principle as it held that the imported product had not infringed Swiss declaration rules.(2)
In November 2006 the Swiss Federal Council presented draft amendments to the Federal Act on Technical Trade Barriers in order to eliminate such barriers. This goal would be achieved by the harmonization of the Swiss and EU technical regulations and by additional treaties permitting the import of certain products. In addition, under the amendments the Cassis de Dijon principle would be applicable as a catch-all principle to cases in which the other solutions did not apply. As a result, products legally produced and permitted in an EU or European Economic Area (EEA) member state could be imported into Switzerland. As under EU law, exceptions would be made only in order to protect the public interest; these exceptions would be defined by the amendments to the act. According to EU precedent, the principle does not apply to products subject to compulsory approval or import prohibitions.
The amendments should also prevent discrimination against Swiss producers manufacturing products for export to the EU market. Such producers would be able to manufacture their products in Switzerland according to EU and EEA requirements. Thus, the national requirements would remain in force only for Swiss producers manufacturing products for the Swiss national or regional market.
For further information on this topic please contact Gregor Bühler or Christian Hediger at Homburger by telephone (+41 43 222 1000) or by fax (+41 43 222 1500) or by email (firstname.lastname@example.org or email@example.com). The Homburger website can be accessed at www.homburger.ch.
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