C-88/79

T H E COURT (First Chamber)

composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges,

Advocate General: H. Mayras Registrar: J. A. Pompe, Deputy Registrar

gives the following

MINISTÈRE PUBLIC ν GRUNERT

JUDGMENT

Mr Grunert has never denied using these "Whether the Member States were under products, but maintains that they are an obligation to authorize in their authorized, as they are referred to in an national law all such preservatives for use EEC directive. in foodstuffs intended for human consumption as were listed in the said Criminal proceedings were instituted directives or whether they only had to before the Tribunal de Grande Instance, prohibit the use of all substances not Strasbourg, against Siegfried Grunert included in the nomenclatures adopted who is charged with having offered for by the EEC, and, sale and sold a product liable to adulterate foodstuffs for human if appropriate, whether a Community consumption, knowing its intended citizen adversely affected by national destination. legislation which is contrary to the Community directive may plead that the The Tribunal established, first, that national legislation is inapplicable to Article 1 of the Décret of 15 April 1912 him". (replaced by the Décret of 12 February 1973, Journal Officiel de la République The judgment referring the question to Française [Official Journal of the French the Court was received at the Court Republic] of 15 February 1973, p. 1728) Registry on 1 June 1979.

JUDGMENT OF 12. 6. 1980 — CASE 88/79

Part open the oral procedure without any III of the annex to the directive on preparatory inquiry. By an order of antioxidants includes in the category of 12 October 1979 the Court decided to “substances capable of increasing the assign the case to the First Chamber antioxidant effect of other substances” pursuant to the first and second sub- the products “E 270: Lactic acid” and paragraphs of Article 95 (1) of the Rules “E 330: Citric acid”. of Procedure.

In the preservatives authorized for use in accordance with the principle of the free foodstuffs intended for human movement of goods, however, those consumption (hereinafter referred to as provisions add that the use of the sub- the directive on preservatives) and Article stances listed in the annexes may not be 1 of Council Directive No 70/357 of totally excluded 13 July 1970 (Official Journal, English Special Edition 1970 (II), p. 429) on the The administrative authority must retain approximation of the laws of the a discretion regarding the use of sub- Member States concerning the stances which are not prohibited; it must antioxidants authorized for use in be able to determine, for each additive, foodstuffs intended for human the foodstuffs in which the latter may be consumption (hereinafter referred to as incorporated, as well as the quantity to the directive on antioxidants) stipulate be allowed and the procedures to be that Member States shall not authorize followed.

According to the preambles to the two On the subject of the marketing of pre- directives the Council must decide on the servatives and antioxidants, Article 9 of approximation of the laws concerning the directive on preservatives and Article individual foodstuffs intended for human 8 of the directive on antioxidants merely consumption to which the substances state that Member States shall take all listed in the annexes to the directives measures necessary to ensure that the may be added and on the conditions substances listed in the annexes and governing the addition thereof. In so far intended for use in foodstuffs are placed as the Council has not yet drawn up such on the market only if their packaging or directives, Member States retain the containers display certain information. power therefore to draw up such That provision, in conjunction with the provisions themselves; if need be, provision mentioned above which states Member States may require prior express that the provisions of national laws may authorization for each additive where not have the effect of totally excluding national provisions concerning individual the use of a particular substance, leads foodstuffs have not been, or will not be, one to conclude that the national auth- adopted. There is therefore no reason, in orities do not have the power to impose the opinion of the Netherlands a requirement of prior express author- Government, to consider a national ization for the marketing and sale of a provision such as Article 1 of the Décret substance which is, in principle, of 15 April 1912, replaced by the Décret permitted. of 12 February 1973, contrary to the provisions of the two directives, if such a provision is required on grounds of public health and if that objective cannot be achieved otherwise than by a general prohibition coupled with the possibility of exemptions. That method may not, however, have the effect of totally excluding in practice the use of any particular substances. The Commission observes that the method used by the Council in relation to preservatives and antioxidants is to draw up positive lists. Consequently sub- stances which do not appear on those lists may not be authorized by Member States for the purposes referred to by the directives but, conversely, the two acids in question may be authorized because they are included in the annexes to the directives in question. However, the Council found itself unable, at that early In the opinion of the Netherlands stage, to decide on the approximation of Government, however, it appears from the laws concerning individual foodstuffs the judgment making the reference that intended for human consumption, to the business of ADITEC, the company which the preservatives or antioxidants managed by Mr Grunert, is not the listed in the respective annexes to the addition of certain substances (in this directives may be added, nor to lay case lactic acid and citric acid) to down the conditions under which that foodstuffs, but the marketing and sale of admixture must be effected (last recital a preservative which contains lactic acid of the preamble to the directive on pre- and citric acid. servatives and penultimate recital of

the preamble to the directive on lactic or citric acid as a preservative antioxidants). That is why the first and/or antioxidant. sentence in Article 2 (2) of the directive on preservatives states that the latter "shall not affect provisions of national laws specifying the foodstuffs to which As is stated in the first sentence af Article the preservatives listed in the annex may 2 (2) of the directive on preservatives, be added and the conditions governing national provisions specifying foodstuffs the addition of such preservatives". to which the preservatives listed in the Article 9 of the directive on antioxidants annex may be added and the conditions contains a similar provision. governing that addition "must not have the effect of totally excluding the use in foodstuffs of any of the preservatives". A similar provision appears in Article 9, cited above, of the directive on Thus whilst consumers in the various antioxidants. Member States share a certain measure of common protection as a result of the prohibition of substances which are not authorized by the directives, the According to information available to the protection they enjoy will vary somewhat Commission the French rules comply from one Member State to another as a with that requirement. Thus, in result of, in the first place, the number of particular: foodstuffs in respect of which each has granted authorization and, in the second place, the reattive importance of each of such foodstuffs in the daily diet of lactic acid is additionally authorized by a consumers. circular of 27 January 1930 as a preser- vative in sparkling soft drinks and lemonade and, by a circular of 17 June 1965, as a synergic antioxidant in At the same time, because the national confectionery; provisions apply equally to imported products, such divergences oblige importers to comply with the legislation which is applicable to any one particular citric acid is authorized as a synergic foodstuff. Doubtless this interpretation antioxidant in mustard by virtue of a reveals that the directives have not decree of 10 September 1937. eliminated the technical obstacles to the movement of the goods concerned. But that was not their principal aim. As may be seen from the preambles, their main Second question concern was rather the protection of human health and of consumers, as well as considerations relating to competition. The case-law of the Court is, in the opinion of the Netherlands Government, clear. Its effect is that individuals may, in Only one restriction was imposed by the certain circumstances, rely on obligations directives on Member States' freedom to which are imposed by a directive and select the foodstuffs in respect of which that the national courts must consider they wish to authorize the addition of those obligations as forming part of

In the opinion of the Netherlands The Commission maintains that the Government the obligation contained in Court has already laid down the the first article of each of the two conditions under which an individual directives does not in itself confer on may rely upon a Community directive individuals a right to the unrestricted use before the courts, in particular in order of the substances listed in the directives. to obtain a declaration as to whether the Although the obligation imposed by the Member State in question has respected directive regarding the use of authorized the limits on the discretion left to it in substances is not perfectly defined and order to achieve the objective imposed unconditional, yet there is a clear by the directive (judgments of restriction imposed on the freedom of 4 December 1974, Van Duyn, Case Member States. The two directives 47/74 [1974] ECR 1337; 1 February provide — in Article 2 (2) and in Article 1977, Verbond van Nederlandse Onder­ 9 respectively — that the substances nemingen ν Inspecteur der Invoerrechten listed in those directives may not be en Accijnzen, Case 51/76 [1977] ECR totally excluded. The restriction is, 113; 23 November 1977, Enka ν admittedly, not a total one, because Inspecteur der Invoerrechten en Accijnzen, under Article 4 of the directive on pre­ Case 38/77 [1977] ECR 2203; 29 servatives and Article 3 of the directive November 1978, Delkvist ν on antioxidants Member States are still Anklagemyndigheden, Case 21/78 [1978] permitted to prohibit, on certain ECR 2327). specified grounds, the use of a substance which is listed in the directives. That permission is, however, clearly subject to procedural requirements •— immediate notification to the Commission, validity limited to one year — so that the validity However, as regards the prohibition by a of national provisions which have not Member State on the use of the additives been drawn up in accordance with that in question in any particular foodstuff, procedure may be challenged (see, in no such situation arises because the particular, judgment of 5 April 1979 in directives which mention them do not Case 148/78, Tullio Ratti [1979] ECR impose an obligation on the Member 1629.) States to adopt a specific course of

2 Criminal proceedings were instituted before the Tribunal against the Managing Director of a company who is charged with having offered for sale and sold, knowing its intended destination, a product liable to adulterate foodstuffs for human consumption, in this case a preservative containing lactic acid and citric acid. The product in question was used in making pork- butcher's meat and was marketed by the company managed by the accused.

3 In the judgment making the reference it was said that the French law applicable in the matter prohibits the addition to foodstuffs of any substances

MINISTÈRE PUBLIC ν GRUNERT

which have not been previously expressly authorized, that neither lactic acid nor citric acid have been so authorized, and that their use is therefore prohibited according to the national rules. However, the Tribunal considered that Directive No 64/54, and certain other directives, provide an exhaustive list of the preservatives authorized in the Member States for safeguarding foodstuffs intended for human consumption and that that list includes lactic acid and citric acid.

4 By its first question the Tribunal asks the Court to rule whether Member States are bound to authorize through their national laws all the preser­ vatives which may be used in foodstuffs intended for human consumption listed in Directives N o 64/54 and No 70/357, or if they must merely prohibit the use of all such substances as are not included in those lists.

5 Article 1 of Directive No 64/54 prohibits Member States from authorizing the use, for the protection of foodstuffs intended for human consumption against deterioration caused by micro-organisms, of any preservatives other than those listed in the annex thereto, which includes lactic acid. Article 2 (2) states that the directive shall not affect provisions of national laws specifying the foodstuffs to which the preservatives listed in the annex may be added, but it also stipulates that such provisions must not have the effect of totally excluding the use in foodstuffs intended for human consumption of any of the preservatives listed.

10 In view of those provisions, and as the use of the preservatives and antioxidants listed in the two directives may not be prohibited for all foodstuffs, a general prohibition against the marketing of such substances would, however, result in hindering the application of the Community rules and must therefore be considered as contrary to the objectives of the two directives.

1 1 The reply to the first question should therefore be that Directives No 64/54 and No 70/357 require Member States not to authorize the use in foodstuffs intended for human consumption of preservatives or antioxidants which are not included in the lists annexed to those directives. However, the Member States' freedom to prohibit or to authorize the use of such substances must not have the effect of totally excluding the use in foodstuffs intended for human consumption of any of the preservatives or antioxidants included in those lists, or of preventing all marketing of such a substance.

MINISTÈRE PUBLIC ν GRUNERT

12 The second question asked by the Tribunal requests the Court for a ruling as to whether a national of a Member State may rely upon the provisions of Directives No 64/54 and No 70/357 where the national laws applicable in the matter are contrary to those directives.

1 3 The judgment making the reference makes it apparent that the Tribunal asked that question in order to establish whether the provisions of the two directives which are concerned in the first question may be relied on in proceedings before the national courts.

JUDGMENT OF 12. 6. 1980 — CASE 88/79

On those grounds,

T H E COURT (First Chamber),

in answer to the questions referred to it by the Tribunal de Grande Instance, Strasbourg, by judgment of 22 March 1979, hereby rules,

1. Council Directives No 64/54 of 5 November 1963 and No 70/357 of 13 July 1970 require Member States not to authorize the use in foodstuffs intended for human consumption of preservatives or antioxidants which are not included in the lists annexed to those directives. However, the Member States' freedom to prohibit or to authorize the use of such substances must not have the effect of totally excluding the use in foodstuffs intended for human consumption of any of the preservatives or antioxidants included in those lists, or of preventing all marketing of such a substance.

2. In so far as Directives No 64/54 and No 70/357 do not allow Member States to prohibit absolutely the use in foodstuffs intended for human consumption of any of the preservatives or antioxidants included in the lists appearing in the annexes thereto, or to prevent all marketing of such a substance, the provisions thereof may be relied upon before national courts.