C-5/77

necessarily present in one of the which, although known and

constituents of the feeding-stuff as a recognized when that directive was residue from the previous adopted, do not appear in the list manufacture of another product may annexed thereto, provided that the

not be considered as an additive. The measures adopted on apply control of the presence of such identical terms to both national substances comes within Directive No products and to products imported 74/63 (undesirable substances) and not from other Member States. within Directive No 70/524 (b) Subject to the obligation not to

(additives). discriminate between imported 3. Article 36 is not designed to reserve products and national products, certain matters to the exclusive Article 5 of Directive No 74/63 jurisdiction of Member States but enables a Member State to fix, on permits national laws to derogate from a provisional basis, the maximum

the principle of the free movement of permitted level of a substance con­ goods to the extent to which such tained in imported feeding-stuffs derogation is and continues to be made from powdered milk even

justified for the attainment of the though no maximum level has objectives referred to in that article. ever been fixed in the past either

Reference to the Court under Article 177 of the EEC Treaty by the Pretura di Lodi for a preliminary ruling in the action pending before that court between

CARLO TEDESCHI

and

DENKAVIT COMMERCIALS S.R.L.

TEDESCHI v DENKAVIT

Interveners

composed of: H. Kutscher, President, A.M. Donner and P. Pescatore, Presidents of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges,

Advocate-General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and issues

The order making the reference and the Edition 1970 (III), p. 840) concerning written observations submitted under additives in feeding-stuffs and Council Article 20 of the Protocol on the Statute Directive No 74/63/EEC of 17 of the Court of Justice may be December 1973 (OJ L 38 of 11. 2. 1974, summarized as follows: p. 31) on the fixing of maximum

JUDGMENT OF 5. 10. 1977 — CASE 5/77

which conform to these stipulations can and coming from the Netherlands to be no longer be subject to any other delivered in September 1976, and paid a marketing restrictions as regards the deposit of Lit 350 000. The feeding-stuffs presence of undesirable substances and were not delivered because they were

Article 5 however Italian frontier products. provides a stopped at the by the

safeguard clause which reads as follows: public health inspector at the frontier on '1. Where a Member State considers that the basis of an urgent note from the

a maximum content fixed in the Italian Minister for Health of 7 annex, or that a substance or product September 1976 prohibiting the entry of not listed therein, presents a danger feeding-stuffs containing powdered milk to animal or human health, that or whey having a nitrate content

Member State may provisionally exceeding 30 and 50 parts per million

maintain the measures it has new substances not mentioned in the implemented.'

annex to Directive No 74/63/EEC, he referred the following questions

to the Court by order of 17 December 3. The procedure laid down in Article 1976: 10 entails a decision taken by the 1. Under the terms of the Community Commission after consultation of a

harmonizing directive, Council Standing Committee for Feeding-stuffs. Directive No 74/63/EEC of 17 However if no opinion is delivered, or if December 1973 (OJ L 38 of 11. 2. the Commission proposes to adopt

measures which are not in accordance 1974) containing provisions intended to replace national provisions on the with this opinion it must submit the

Council fixing of maximum permitted levels proposal to the which must for undesirable substances and adopt the measures by a qualified products in feeding-stuffs, do the majority. Member States, after incorporating all the Community provisions into their If the Council has not adopted any national legal systems, still enjoy a measures within fifteen days, the discretionary power to consider as Commission must adopt the measures undesirable specific substances, in and implement them forthwith, except this case although nitrates, which, where the Council has voted by a simple known and recognized when such measures. majority against Directive No 74/63 was adopted and

complaints as provided for by product contains a substance con­

Community law? sidered undesirable by the Member 2. Does Article 5 of the above- State in question, even if this

mentioned Directive No 74/63, substance is not included in the list

having regard to the ninth and of undesirable substances annexed to

thirteenth recitals of the preamble Community Directive No thereto and to Articles 7, 9 and 10 of 74/63/EEC, thereby violating the

that directive, and in the light of the prohibition on quantitative

feeding-stuffs made from powdered Article 5 of the abovementioned

milk, even if, in the case of this Directive No 74/63 be considered

substance which, moreover, is not valid within the meaning of Article included in the list of undesirable 177 of the Treaty Rome, in the of

substances annexed to Directive No light of Article 36 of the Treaty, and 74/63, no maximum permitted level of the fact that it extends the powers

has ever been fixed in the past in of the Member States beyond the

either the provisions in force in the bounds held to be proper by Article importing country or in the 36 by, in particular, permitting inter exporting country, thereby violating alia the said States (subject, the standstill rule laid down in moreover, to no clearly determined Article 31 of the Treaty and time-limits) to employ a provision

having regard to the ninth and Community agricultural regulations

thirteenth recitals of the preamble applicable in the present case, thereto and to Articles 7, 9 and 10 of namely, Regulations Nos 804/68, that directive, and in the light of 823/68 and 2727/75, and the

the abovementioned provisions of provisions to the common relating Articles 30 and 36 of the Treaty of organization of the agricultural

Rome, authorize a Member State, markets set out in Articles 39 and 40 Treaty?'

after the entry into force of the said et seq. of the

directive and its incorporation into The order for reference of 17 December the national legal system of the said 1976 was registered at the Court Registry Member State, to prevent the on 11 January 1977. importation of a product from another Member State (in this case After hearing the report of the feeding-stuffs made from powdered Judge-Rapporteur and the views of the

relating to the listing of undesirable

substances and products in feeding-stuffs II — Observations submitted to and also the laying down of maximum

the Court pursuant to permitted levels for these substances and

Article 20 of the Protocol products.

on the Statute of the Court of Justice of the EEC The second and third questions

A — Observations submitted by the The second and third questions are Commission designed to determine the extent of the

Feeding-stuffs to give its opinion; was not mentioned in the annex is however it has not yet done so as it immaterial, since Article 5 concedes that regards the scientific data at its disposal evaluations made at the time of the said

as either inadequate or too divergent. adoption may be called in question.

On 16 September 1976 the Commission In order to know exactly how far they initiated a procedure under the may be called in question the reasons for provisions of Article 169 of the EEC the adoption of the directive must be

Treaty against the Italian Republic at the analysed. The effect of harmonizing same expressing the opinion that time national laws is that the obstacles to trade the procedure for carrying out controls at Which previously resulted from thefrontier was too onerous and that the differences in the national laws in this

maximum permitted levels had been laid field and which were hitherto lawful are

down at too low a level. now prohibited, since the products

conclusion that Article 5 of the directive Article 5 allows measures to be taken is invalid because it enlarges the powers which, by way of derogation from the of Member States beyond the limits harmonization thus attained, restores

provisionally a situation the distinctive permitted by Article 36 of the Treaty or the regulations for the organization of feature of which is no more than

disparity of provisions. the agricultural markets. According to

the Commission, the interpretation of

to the third question must start with the B — Observations submitted by the same reasoning: if the Member State can Council lay down the maximum permitted level of a substance it may also not allow Since the Council wishes to defend in products coming other Member from abstracto validity of the safeguard the States and which do not comply with the clause contained in Article 5 of Directive limit to enter its territory, provided that No 74/63/EEC which has become a it imposes the same limit in the standard clause inserted as a matter of manufacture of the same product in its principle in directives on the territory. approximation of laws, it examines the function and the place of directives on It must however be stressed that the the approximation of laws in the whole power granted to Member States by body of Community law. Article 5 is nevertheless subject to certain obligations and limited in time. Whereas secondary Community law is a ring'

'first encircling the central core

The Member State must advise the other which the Treaty can be said to Member States and the Commission represent, national laws which had to be without delay of the measures taken and approximated or harmonized pursuant to at the same time state its reasons for directives form a second ring. These those putting forward measures adequate harmonization measures are of a different guarantees. (Article 5 (1)). kind from those provided for in the

JUDGMENT OF 5. 10. 1977 — CASE 5/77

articles of the Treaty Article 5 involve an analysis of the prohibiting quantitative restrictions and measures relationship between Article 36 of the

Although each Member State has some invoke Article 36 it must still apply the freedom when confronted with certain directive and in particular permit the dangers it only has such freedom on the marketing of products, whether domestic condition that the Community has the or imported from a Member State, which

last word. are in its territory and conform to the

provisions of the directive, except where The Council then proceeds to consider it has recourse to the procedures

the first question and points out first of provided for in the directive itself, for all that Article 7, interpreted in the light example the safeguard clause contained

of the thirteenth recital of the preamble in Article 5. to the directive, imposes an obligation

not to take action, consisting in not Therefore the question referred by the

the limits of the field of application of clause contained in Article 5 by the directive (Article 1 (2)) and except in comparing it with previous versions in the case of technical adaptations (Article other directives and stresses that: 6) Member States cannot subject (a) the national measures which may be feeding-stuffs which conform to the enacted pursuant to the safeguard

directive to any marketing restrictions clause are provisional; with regard to the presence of (b) their purpose, objective and extent

undesirable substances and products are defined by the directive itself; other than those specified in that (c) Article 5 (2) contains two legal ways directive, save as otherwise therein of reviewing the national measure, by provided, for example by the safeguard legislation (a decision adopted by the clause in Article 5. Commission) and by legal process

(should it be decided not to amend

The Council takes the view that the the annex to the directive, the

second and third questions of the Pretura Commission may, if the Member di Lodi concerning the interpretation of State does not give effect to the

no decision has been made by the the Netherlands) of very high nitrate Commission'

Council or the is only levels namely 4 000 parts per million, as

justified if the decision is in fact against a natural nitrate level in cow's

taken to modify the directive. milk of less than one part per million.

These levels, which are, from the

Accordingly the Council proposes to standpoint of toxicology and public

the terms of Article 5, prohibit the only in a quantity of less than one part

marketing of products containing per million. At the same time the

such substances. question of the addition of nitrates to the 2. A Member State cannot act products under consideration was

unilaterally: its decision is only brought to the attention of the EEC provisional may be amended and by institutions, on 26 August 1976 to the

the Community institutions. Management Committee for Milk, on 6 3. A Member State cannot obstruct and 7 September 1976 to the Committee

imports: it can only intervene at the of Experts and to the Standing level, subject to certain Committee for Feeding-stuffs. After marketing conditions as to the duration and the consulting national experts the permitted risks involved, whilst observing the limit specified in the measure of 5 principle of non-discrimination, August 1976 was increased in the

event there are no grounds for Directive No 74/63/EEC but on Council

holding that the safeguard clause in Directive No 70/524/EEC of 23 question is invalid. November 1970 concerning additives in feeding-stuffs (OJ, English Special C — Observations submitted by the Edition 1970 (I), p. 840) as subsequently Italian Government amended. The large amounts (40 to 4 000 parts per million) of nitrates found in the The Italian Government explains that products in question indicate, not a the measures taken in September 1976 natural content of undesirable substances

JUDGMENT OF 5. 10. 1977 — CASE 5/77

or products referred to in Directive No problems but, even if they had been 74/63, but deliberate additions of nitrates excluded by a specific decision, a

to the natural milk, that is to say Member State which finds a harmful additives which are not allowed under level of nitrates in feeding-stuffs may, by Directive No 70/524. Directive No with the formalities complying 74/63/EEC mentioned by the Pretura di prescribed by Article 5 of Directive No Lodi only relates to substances and 74/63/EEC, prohibit completely the

products naturally and unavoidably presence of the substance. The Italian present in feeding-stuffs and regarded as Government calls attention to the fact undesirable and does not apply if the that, although it did not act within the

powdered milk which contains a larger to this problem.

amount of nitrates than is natural

complies in every way with Directive No When a Member State has recourse to

70/524/EEC concerning additives in measures provided for by the

feeding-stuffs and does not therefore abovementioned Article 5 it does not

contravene Article 30 of the Treaty or the infringe the standstill provision laid other provisions relating to the common down in Article 31 of the EEC Treaty, organization of the market in the sector since the said Article 5 implements in question. Article 36 of the Treaty which permits

which have been from the been considered as such. Nor does annex to the directive (first question) or recourse by a Member State to the

in respect of which the maximum measures provided by Article 5 encroach permitted levels have not previously been on the Community's jurisdiction. Those fixed (second question). are in fact provisional measures adopted

as a precaution until the Community Contrary to the statement made by the institutions decide whether the annex to

Pretura di Lodi nitrates have not been the directive has to be modified or not in 'excluded'

from the list of undesirable accordance with the procedure laid down substances annexed to Directive No in Article 10 of Directive No 74/63/EEC. 74/63/EEC. Their omission is explained

by the fact that nitrates normally found In answer to the third question the

considered normal. No 74/63/EEC would be of fundamental importance to the question of the

In view of these considerations the validity of safeguard clauses in directives answer to the fourth question concerning generally:

the validity Article 5 of Directive No of (a) because these clauses are an essential 74/63/EEC must be in the affirmative. feature di­ of many harmonizing rectives as these are the only means D — Observations submitted by the whereby in relation to the directive a Government of the United Member State can legally take action

Kingdom which it considers necessary to

protect, for example, human health The Government of the United where such action would otherwise

Kingdom confines its observations to the be contrary to the provisions of the

immediate action. The clause permits very difficult situation. It would have Member States to be notified speedily of to choose between hazarding the lives the possible hazard. Moreover any action and health of its population by by the Commission as a result of the accepting the delays involved in initiation of the safeguard powers laid procuring the necessary Community down in the directive and any failure of legislation and disregarding its the Commission to any action on act or Community obligations. Community the part of a Member State in breach of law should in all cases allow Member obligations under the directive would be States to take the necessary subject to review by the Court of Justice. immediate action.

(c) The importance of safeguard clauses

The Government of the United in directives viewed as a whole is Kingdom does not consider that either such that in their absence

Article 5 or any other provision of the harmonization legislation in future

Treaty exceeds the bounds of Article 36 might prove impossible or at least of the Treaty which is only relevant in very difficult. A safeguard clause

relation to matters covered by Articles 30 could not be struck out of a directive to 34. without affecting the validity of the rest of the directive. It would be strange if the Community legislator could not provide for a E — Observations submitted by safeguard clause similar to those which Denkavit accompany each of the freedoms guaranteed in the Treaty (Articles 36, 48 The defendant in the main action points

manufacture. It goes on to say that in Member State. 1974 the Italian Minister of Health announced that 'on the basis of III — The argument developed in established scientific data potassium connexion with the concept of a 'single found in 2 500 market'

nitrate quantities of and and the grant of exclusive

250 kilogramme jurisdiction in­ milligrammes per to the Community respectively in powdered whey and stitutions applies to the sector of

feeding-stuffs manufactured from it must products for animal fodder which is be regarded as a harmless amount for mentioned in Annex II to the Treaty calves given it continually in the form of under Chapter 23. The fact that the

reconstituted milk during their economic sector in question is governed entirely by life'. Community rules and regulations is confirmed directly by EEC provisions

I — The defendant then examines the (Regulation (EEC) No 804/68 of the

'single in European market'

the are only applicable to the agricultural

agricultural organizations implies that sectors, apply to them. In the alternative, the free movement of goods must be the defendant in the main action refers

understood as having two meanings, on again to the judgment of the Court of 29 the one hand, freedom of movement May 1974 (Case 185/73, [1974] ECR 607) between the members of the single from which it appears that the products

market consisting of the various national mentioned in Annex II to the Treaty, in territories of the Member States and, on so far as they are closely interdependent the other, freedom for economic on the value of the basic products from operators to put the goods in question which they are derived, must be included onto the market within the single among the products which may be European market without let or governed by Community rules and

hindrance. Any obstacle not pertaining regulations.

in so far as economic policy and the such approximation, that is to say, favour rules adopted for its implementation is Community objectives on the margin of

TEDESCHI v DENKAVIT

freedom left to the Member States. The should elapse between the provisional

fact that the directive comes within the national measure and the Community field of the common organization of decision is less than 30 days and is agricultural markets leads to the clearly shorter than that laid down in conclusion that the approximation Article 9 for the normal procedure for carried out fits into the general plan amending the annex. designed to reproduce conditions similar

to those existing in a national market. (d) The defendant in the main action

points out that an examination of the last

directive itself. There can no longer be a a quantitative restriction contrary to

general presumption that the measures Articles 30 to 34 to be maintained

taken are lawful if they do not observe without any limitation as to time.

the letter and spirit of the directive. V — Before answering the various

(b) The directive has in fact had an questions point by point the defendant effect on the powers of the Member in the main action considers the limits of States. As shown by the sixth recital of the discretion of the Member States in the preamble to the directive, the the system introduced by Directive No Community now has general jurisdiction 74/63/EEC. in this field and it is clear from the

procedures for amending the annexes — In the opinion of the defendant in (Articles 9 and 10) that Member States the main action, Directive No 'explicit'

provides that an immediate decision discretionary powers laid down in this

must be made as to whether the annex article.

should be modified. The defendant in the main action considers that if the — It follows therefore that, as the

entire procedure prescribed by Article 10 judgment of the Court of Justice of 15 is taken into account the period which December 1976 in Case 35/76,

JUDGMENT OF 5. 10. 1977 — CASE 5/77

Simmenthal Sp.A. v Italian Minister for levels of September 1976 could not be Finance, [1976] ECR 1871, makes quite accepted. For this reason there are no

The defendant in the main action already known and had been disposed of —

takes the view, in answer to the first when the directive was approved.

question, that although the justification provided by Article 36 could work in VII — The second question

favour of the Italian State before the

entry into force of Directive No The purpose of the second question is to 74/63/EEC, when it was still possible to ascertain whether it was lawful for the

regard the direct administration of a Italian Government, assuming that it was system of defence by Member States as entitled to avail itself of the safeguard

— The fact that the measure taken in harmless substance. The notification of 7 September 1976 was unnecessary and September 1976 at issue therefore directs therefore unjustified is evidentfrom the all veterinary surgeons on the Italian finding that the Italian Minister for frontier to check imported products for Health intended to lay down permitted permitted levels which are not laid down levels for potassium nitrate (50 parts per by any legislative provision with regard

million for each kilogramme of to domestic products. There has clearly powdered whey) below those which the been an infringement of the prohibition

same Minister had considered on discrimination referred to in the

permissible in 1974 (250 parts per second subparagraph of Article 40 (3) of million). the Treaty since the duty to check goods only applies to those which have been If the permitted levels fixed in 1974, imported (the notice itself refers to

which were already at that time the limit 'controlli analitici sui prodotti ...' of harmfulness, had been rejected by the d'importazione dal'estero (analytical

Council, a fortiori the lower permitted tests on products imported from abroad)).

— The defendant in the main action, in by Community provisions. answer to the third question, takes the

view that, even if it is accepted that the Beyond these limits the safeguard clause Italian Government can order analytical cannot confer on the Member States any tests to be carried out only on imported other power, either by means of a goods by insisting on compliance with positive decision adopted by the the maximum permitted levels laid down Community institutions or even less as a without making the nitrates contained in result of a failure on their part to adopt domestic products comply with the same measures laid down in order to comply permitted levels by adopting coercive with the provisions of that clause. national measures, the question of the

legality of preventing the importation of However, it follows from the second products from the other Member States subparagraph of Article 10 (4) that the remains open. Owing to the special Council may be able by a simple legislative situation relating to this matter majority to paralyse any decision taken in Italy this sanction applies only to by the Commission. According to the imported products. In these defendant in the main action the fact circumstances it is certainly impossible that it is possible to maintain a provision torely upon Article 36 of the Treaty: it is adopted by a Member State, even an impossible in law to impose a restriction illegal one, because the Council has for reasons of public health solely on adopted a negative viewpoint, can only imported products without having at the make illegal the clause from which that same time made domestic products possibility is derived. These conside­

Member States which was expressly laid residues already included amongst the

down in Article 155. This power of ingredients necessary to produce the

control should enable the Commission to feeding-stuff. The same is true with

institute immediately the procedure regard to Community law: a comparison against infringements laid down in of Directive No 70/524 on additives and

Article 169 of theTreaty if it considers Directive No 74/63 on undesirable

that restrictive measures adopted by a substances shows that the latter Member State are incompatible with the completes Directive No 70/524 by Community rules. The only possibility of extending the control to substances

Government, represented by its Agent, The Italian Government considers that

Mr Braguglia, the Commission of the Directive No 74/63 on undesirable

European Communities represented by substances concerns the substances only its Agent, Mr Marenco and the Council and products whose presence in of the European Communities rep­ feeding-stuffs is natural or inevitable. resented by its Agent, Mr Sacchettini, Directive No 70/524, on the other hand, developed the arguments put forward covers in abstracto all substances which

during the written procedure. may artificially be added to

feeding-stuffs. It considers in particular

With fields the additives which have a favourable regard to the respective of

consistency and keeping qualities of in the feeding-stuffs is the result of a

food products. fraudulent operation at a preceding stage

TEDESCHI v DENKAVIT

of the manufacturing process. The however come within Directives Nos nitrates are not added to the powdered 70/524 or 74/63 but within Directive No milk or to the whey powder as 77/101 of 23 November 1976 on the feeding-stuffs. The nitrates are added marketing of straight feeding-stuffs (OJ, either to the fresh milk or by adding to L 32 of 3. 2. 1977). the powdered milk whey resulting from caseation treated with potassium nitrate. The nitrates are not therefore added to

the feeding-stuffs but are residues from These nitrates are therefore not naturally previous stages in the production of the

present beyond a certain limit in milk, butter or cheese. The Commission milk-based feeding-stuffs. considers that they are not therefore

to add whey powder to the powdered independent of the production of those milk as a feeding-stuff and to sell the feeding-stuffs. whole at the price of the powdered milk.

Such a fraud, which is difficult to locate The Advocate General delivered his if it does not exceed 5 %, does not opinion at the hearing on 6 July 1977.

Decision

1 By order of 17 December 1976, entered in the Register of the Court of

Justice on 11 January 1977, the Pretura di Lodi submitted to the Court of Justice several questions relating, on the one hand, to the interpretation of

Directive No 74/63/EEC of the Council of 17 December 1973 on the fixing of maximum permitted levels for undesirable substances and products in feeding-stuffs (OJ L 38 of 11.2. 1974), in particular Article 5 thereof, and on the other, to the validity of the said Article 5.

content of those feeding-stuffs exceeds 30 parts per million in whole milk

powder and skimmed-milk powder and 50 parts per million in powdered

whey.

4 According to the defendant and the interveners in the main action, the Italian measures are incompatible with Directive No 74/63.

5 According to the fourth recital of the preamble to that directive, its purpose, taking into account the fact that it is impossible to exclude totally the

presence of certain undesirable substances or products in feeding-stuffs, is to

listed therein, presents a danger to animal or human health, that Member State may provisionally reduce this content, fix a maximum content, or forbid the presence of that substance or product in feeding-stuffs. It shall advise the other Member States and the Commission without delay of the measures

taken and at the same time give its reasons'.

9 Under Article 5 (2), where a Member State has recourse to the provisional

measure referred to in the first paragraph thereof, a decision must

immediately be taken as to whether any modification to the annex should be made in accordance with the procedure laid down in Article 10 of the

directive.

types of cheeses'

and asked 'that the problem of the harmonization of

national legislation concerning the presence of that substance be examined'.

12 After deciding by an urgent communication of 5 August 1976 to intensify laboratory tests on imported consignments of whey and compound fodder containing whey and initially fixing the maximum nitrate level at one part per million, the Italian authorities adopted the contested measure on 7 September 1976.

13 After exchanges of notes between the Community authorities and the Italian

authoritiesduring the months of August and September, on 7 October 1976 the latter sent the Commission documents as to toxicity by way of the

containing the undesirable substances expressly listed in the annex to the

directive, unless Article 5 and the procedure laid down in Article 10 are

applied.

JUDGMENT OF 5. 10. 1977 — CASE 5/77

16 If it were necessary to consider as an unauthorized additive the potassium

nitrate whose presence in the imported feeding-stuffs has been established it would follow that the Italian measure prohibiting it was absolutely justified and, moreover, that there was no need for the measure to be followed by the implementation of the procedure laid down in Article 10 of Directive No 74/63 in order to decide whether or not it is necessary to complete the

considers this interpretation necessary to enable it to give judgment in the

action.

19 Thus the Court cannot require the national court or tribunal to state expressly that the provision which appears to that court or tribunal to call for an

interpretation is applicable.

20 The Court may however provide the national court with the factors of interpretation depending on Community law which might be useful to it in

evaluating the effects of the provision which is the subject-matter of the

22 Under Article 2 of Directive No 70/524, are substances which, when incorporated in feeding-stuffs, are likely to affect their characteristics or livestock production.

TEDESCHI v DENKAVIT

23 The fifth recital of the preamble to that directive specifies that additives

mean: 'as a general rule ... substances which improve both the feeding-stuffs

in which they are incorporated and livestock production'.

24 Although Directive No 74/63 does not define the concept of 'undesirable substances and products', the third and fourth recitals of the preamble thereto

whey and may not be considered as a substance which is naturally or

inevitably present in the feeding-stuffs to which the whey has been added.

27 On the other hand, the defendant in the main action and the Commission claim that the nitrate may not be considered as an additive because it was not intentionally added to the feeding-stuffs made from powdered milk but was

already there as a residue from a previous stage in the production of powdered milk and cheese.

28 A comparison of the abovementioned recitals of the preambles to the

directives shows that Directive No 70/524 (additives) and Directive No 74/63 (undesirable substances) although both relating to the composition of

JUDGMENT OF 5. 10. 1977 — CASE 5/77

29 In these circumstances a substance which, because of a previous admixture, independent of the use for animal feeding, is necessarily present in one of the constituents of the feeding-stuff as a residue from the previous manufacture of another product may not be considered as an additive.

30 The control of the presence of such substances comes within Directive No 74/63 (undesirable substances) and not within Directive No 70/524 (additives).

The first question

31 The first question asks in substance whether, under the terms of Directive No 74/63 and in view of a possible application of the provisional measure

referred to in Article 5 thereof, the Member States still have the power to

33 National measures regulating the composition of feeding-stuffs may in certain

cases constitute measures having an effect equivalent to quantitative

restrictions which are however capable, where they are justified by the

protection of animal or human health, of coming within the application of

Article 36 of the Treaty.

34 Article 36 is not designed to reserve certain matters to the exclusive

36 Directive No 74/63 was adopted and Community control procedure was a

introduced for the purpose of harmonizing the national provisions.

37 Within the context of the harmonization which has been brought about, Article 5 however permits Member States provisionally to prevent the

marketing on their territory of feeding-stuffs which contain substances which may be undesirable for animal or human health although they are not mentioned in the annexes to the directive.

38 AlthoughArticles 6 and 9 of the directive provide that, following a

Community procedure, it will be possible to amend the list of undesirable substances on the basis of the development of scientific or technical

thereto, provided that the measures adopted apply on both identical terms to

national products and to products imported from other Member States.

JUDGMENT OF 5. 10. 1977 — CASE 5/77

The second question

41 The second question asks in substance whether Article 5 of Directive No 74/63 enables a Member State to fix unilaterally the maximum permitted

level of a substance contained in imported feeding-stuffs made from powdered milk when in the past no maximum level had ever been fixed either in the exporting Member State or in the importing Member State.

The third question

44 The third question asks in substance whether Article 5 of the directive enables the Member State, when applying Article 5 (1), to prevent the

importation of the product concerned from another Member State.

45 In so far as Article 5 (1) of Directive No 74/63 enables the Member State to fix provisionally with regard both to national products and to imported products conditions other than those laid down in Directive No 74/63, it

must also be possible for it to prohibit the marketing of the products which

have been found to infringe the temporary national provisions.

check, even a random sampling, that they contain substances considered

provisionally as undesirable within the context of Article 5 of the directive.

The fourth question

48 If the Court replies in the affirmative to the first three questions, the next

question asks whether Article 5 of Directive No 74/63 must be considered as

valid to the extent to which it extends the powers of the Member States

must be made as to whether the annex should be modified in accordance

with the procedure laid down in Article 10.

51 The defendant in the main action alleges in support of its statement that

Article 5 of the directive is invalid that the procedure laid down in Article 10 might in certain cases lead to an indefinite extension of the provisional

measure by virtue of the last sentence of that article.

52 Article 10 (4) provides that a decision on the modification of the annex must be adopted either by the Commission in accordance with the opinion of the Standing Committee for Feeding-stuffs or, if the Commission is not in

54 It is true that the last sentence of Article 10 prevents the Commission from

implementing the proposal rejected by the Council where its proposal has been rejected by the Council and even where, in that case, the latter does not put forward an alternative solution.

55 However the Commission still has jurisdiction to issue, in accordance with

the procedure laid down in the first subparagraph of Article 10 (4), any other measure which it considers appropriate.

56 The final paragraph of Article 10 therefore does not have the effect of

paralysing the Commission or of enabling the national measure adopted

Court are not recoverable.

As these proceedings are, in so far as the parties to the main action are

concerned, a step in the action pending before the national court, the

decision on costs is a matter for that court.

On those grounds,

THE COURT

consider as undesirable certain substances which, although

known and recognized when that directive was adopted, do not appear in the list annexed thereto, provided that the

measures adopted apply on identical terms to both national

products and to products imported from other Member

States;

(2) Subject to the obligation not to discriminate between imported products and national products, Article 5 of

form of a prohibition on importation;

(4) The consideration of the fourth question has disclosed no

factor of such a kind as to affect the validity of Article 5 of

Directive No 74/63.

Kutscher Donner Pescatore Mertens de Wilmars Sørensen

Mackenzie Stuart O'Keeffe Bosco Touffait