C-108/80

At the present stage in the approximation listed there may not be totally prohibited of legislation in the field of preservatives, except in special cases where there is no Member States are not bound to technological necessity. authorize for use in foodstuffs all the substances the use of which is permitted In these circumstances, an individual by Directive 64/54/EEC. They have who is prosecuted for using sorbic acid retained a certain discretion to determine in certain foodstuffs intended for human their own rules concerning the addition consumption cannot rely upon the of preservatives to foodstuffs, subject to provisions of Directive 64/54/EEC auth- the twofold condition that no preserv- orizing the use of that preservative if the ative may be authorized unless it appears applicable national legislation permits the in the list annexed to the directive and use thereof in other foodstuffs intended that the use of a preservative which is for human consumption.

In Case 108/80

REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour d'Appel [Court of Appeal], Colmar, for a preliminary ruling in the action pending before that court between

1 — Language of the Case: French.

JUDGMENT OF 5. 2. 1981 — CASE 108/80

MINISTÈRE PUBLIC [Public Prosecutor]

composed of: T . K o o p m a n s , President of Chamber, A. O'Keeffe and G. Bosco, Judges,

Advocate General: G. Reischl Registrar: A. V a n H o u t t e

gives the following

JUDGMENT

Facts and Issues

The order making the reference, the I — Facts and p r o c e d u r e course of the procedure and the obser- vations submitted under Article 20 of the Protocol on the Statute of the Court of Société de Produits Alimentaires pour Justice of the EEC may be summarized Charcuteries (SOPAC) Sàrl, Furdenheim as follows. (Bas-Rhin), whose managing director is

On the ground that the use of sorbic Under Article 3 (4) of the above- mentioned law of 1 August 1905 a acid is prohibited in France in prepared penalty will be imposed on "any person meat products and salt provisions, who . . . offers for sale or sells, knowing criminal proceedings were instituted their intended use, products . . . suitable against Mr Kugelmann for an offence for adulterating foodstuffs for human against the legislation on frauds, more consumption . . . and any person who has precisely against Articles 1 and 2 of the encouraged their use by the means of Order of 15 April 1912 1 implementing any brochures, circulars, prospectuses, the Law of 1 August 1905 on the posters, advertisements or instructions". repression of frauds. 2 Those articles provide as follows: By judgment of 16 February 1979 "Article 1 the Tribunal Correctionnel [Criminal Court], Strasbourg, found the accused It shall be prohibited to stock for the guilty on a charge of contravening the purpose of sale, to offer for sale or to legislation on frauds and found the sell any goods and foodstuffs intended Société de Produits Alimentaires pour for human consumption where chemical Charcuteries civilly liable for the damage products have been added to them other caused by Mr Kugelmann, its official. than those whose use is declared lawful by orders adopted in conjunction by the Before the Cour d'Appel, Colmar, the Minister of Agriculture, the Minister of accused claimed in particular that under Economy and Finance, the Minister of Council Directive 64/54/EEC of 5 Industrial and Scientific Development November 1963 concerning the pre- and the Minister of Public Health, on servatives authorized for use in the advice of the French Board of Public foodstuffs intended for human Health and the National Academy of consumption (Official Journal, English Medicine. Special Edition 1963-1964, p. 99), although Member States may only Article 2 authorize the preservatives listed in the annex to the directive (in which sorbic It is also prohibited to introduce, even acid appears), they cannot lay down temporarily, in the course of the provisions the effect of which is to exclude totally the use in foodstuffs of 1 — Order of 15 April 1912 laying down a public service one of the preservatives listed in the regulation in implementation of the Law of 1 August annex. It concluded from this that the 1905 on the repression of frauds in the sale of goods and of the adulteration of foodstuffs, especially meat, use of sorbic acid as a preservative prepared meat products, fruit, vegetables, fish and cannot lead to the bringing of criminal preserved products, amended by Order N o 73/138 of 12 February 1973, Article 15-1 (Journal Officiel de la proceedings based on the Law of 1905. République Française of 15 February 1973, p. 1728). 2 — Law of 1 August 1905 on frauds and adulteration relating to products or services, amended by Law N o Articles 1 and 2 of Directive 64/54/EEC 78/23 of 10 January 1978 (Journal Officiel de la République Française of 11 January 1978, p. 301). (as amended by Council Directive

67/427/EEC of 27 June 1967, Official "Does the fact that the national Journal, English Special Edition 1969, legislation of a Member State of the p. 169) are worded as follows: EEC prohibits the use of a preservative used in foodstuffs intended for human "Article 1 consumption, when the use of that preservative is authorized by the Community Directive of 5 November Member States shall not authorize the 1963, constitute a breach of the rule use, for the protection of foodstuffs regarding the supremacy of Community intended for human consumption (here- law over internal law which may be inafter called 'foodstuffs') against de- relied on by a Community subject pro- terioration caused by micro-organisms, secuted for adulteration of foodstuffs of any preservatives other than those with that preservative (sorbic acid)?" listed in the annex to this directive. The judgment making the reference was Article 2 entered on the Court Register on 8 April 1980. 1. Member States shall take all measures necessary to ensure that the Written observations were submitted preservatives for whose use the annex pursuant to Article 20 of the Protocol on lays down certain conditions are used the Statute of the Court of Justice of the solely, in accordance with those EEC by Mr Kugelmann, the accused in conditions. the main action, represented by Richard Huffschmitt, of the Strasbourg Bar, by 2. Save as otherwise provided in the Government of the French Republic, paragraph 1, this directive shall not and by the Commission of the European affect provisions of national laws Communities, represented by Jean- specifying the foodstuffs to which the Claude Séché, Legal Adviser of the preservatives listed in the annex may be Commission, acting as Agent. added and the conditions governing the addition of such preservatives. However, After hearing the report of the Judge- the laws of a Member State may totally Rapporteur and the views of the exclude the use of any of the pre- Advocate General, the Court decided to servatives listed in the annex only where open the oral procedure without any there is no technological reason for using preparatory inquiry. By order of 16 such preservatives in foodstuffs produced September 1980, the Court, pursuant to and consumed in its own territory." Article 95 (1) and (2) of the Rules of Procedure, decided to assign the case to The Cour d'Appel, Colmar, taking the the First Chamber. view that the interpretation of Directive 64/54/EEC was required in order to decide the case, so as to ascertain whether national legislation must II — S u m m a r y of the written authorize all the preservatives listed in o b s e r v a t i o n s s u b m i t t e d to the directive or whether the Member the C o u r t States must simply prohibit the use of all substances not listed in that directive, decided, by judgment of 21 December Mr Kugelmann, the accused in the main 1979, to stay the proceedings and to action, refers to the conclusions which refer the following question to. the Court he submitted to the Cour d'Appel, of Justice : Colmar.

In the same way, since national In conclusion, the French Government legislation applies also to imported considers that the question submitted to products, such differentiation compels the Court should be answered in the importers to comply with the legislation negative. applicable to a given foodstuff. There is no doubt that this interpretation shows that the directive has not eliminated the technical barriers to the movement of the The Commission observes that, as products concerned. That, however, was regards preservatives, the Council has not its principal objective. As shown by drawn up positive lists. Consequently, the recitals of the preamble to the substances not appearing on those lists directive, it was, rather, inspired by the cannot be permitted by Member States objectives of the protection of human life for the purposes indicated in the and consumers and by concerns relating directive but, conversely, sorbic acid may to competition.

JUDGMENT OF 5. 2. 1981 — CASE 108/80

Decision

1 By judgment of 21 December 1979, which was received at the Court on 8 April 1980, the Cour d'Appel [Court of Appeal], Colmar, referred to the Court of Justice under Article 177 of the EEC Treaty a question for a pre- liminary ruling on the interpretation of Council Directive 64/54/EEC of 5 November 1963 on the approximation of the laws of the Member States concerning the preservatives authorized for use in foodstuffs intended for human consumption (Official Journal, English Special Edition 1963 to 1964, p. 99).

MINISTÈRE PUBLIC v KUGELMANN

2 An appeal was brought before the Cour d'Appel, Colmar, from a judgment of the Tribunal de Grande Instance [Criminal Court of First Instance], Strasbourg, in which a company director was charged and found guilty of having offered for sale and sold, knowing their intended use, products, in other words, decorative jelly containing sorbic acid or products derived therefrom, suitable for adulterating foodstuffs for human consumption.

3 The Tribunal de Grande Instance, Strasbourg, had found that according to the French rules on the manufacture of foodstuffs, sorbic acid and products derived therefrom are preservatives the use of which is prohibited in the manufacture of prepared meat products and salt provisions. The Cour d'Appel, Colmar, however, wondered whether such rules were not contrary to Community law, in particular Directive 64/54/EEC.

4 The question referred to the Court of Justice by the Cour d'Appel, Colmar, is whether the fact that the national legislation of a Member State prohibits the use of a preservative used in foodstuffs intended for human consumption when the use of that preservative is authorized by Directive 64/54/EEC constitutes a breach of Community law which may be relied upon by a Community subject prosecuted for adulteration of foodstuffs with sorbic acid.

8 It follows from the information supplied to the Court by the French Government and the Commission that although the French rules do not authorize the use of sorbic acid in prepared meat products, they permit the use of that preservative in other foodstuffs intended for human consumption, in particular in certain articles of confectionery, fruit prepared with sugar intended for fermented milk products, chestnuts, prunes and certain other foodstuffs.

9 In these circumstances, an individual charged with having used sorbic acid as a preservative in breach of the applicable national legislation cannot rely upon the provisions of Directive 64/54/EEC against the application of that legislation.

10 It is therefore necessary to reply to the question referred to this Court by the Cour d'Appel, Colmar, that an individual who is prosecuted for using sorbic acid in certain foodstuffs intended for human consumption cannot rely upon

MINISTÈRE PUBLIC v KUGELMANN

the provisions of Directive 64/54/EEC authorizing the use of that pre- servative if the applicable national legislation permits the use of sorbic acid in other foodstuffs intended for human consumption.

Costs

Delivered in open court in Luxembourg on 5 February 1981.

A. Van Houtte T. Koopmans Registrar President of the First Chamber