C-29/87
ECLI:EU:C:1988:129
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OPINION OF MR DARMON — CASE 29/87
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 8 March 1988 *
Mr President, importation from other Member States of Members of the Court, feedingstuffs containing them. It appears that the dispute in the main proceedings is concerned with a national requirement to register the branded product used as an additive. 1. The essential aspect of the questions put by the Østre Landsret is whether there has been complete harmonization in relation to additives in feedingstuffs. 4. Let us bear in mind first of all that in the case of Community harmonization Member States may no longer have recourse to Article 36. The judgment in Tedeschi v 2. It should be said at the outset that the 5 Denkavit expressed this in particularly present questions concern only the state of clear terms: Community law prior to the adoption of Council Directive 84/587. 1 The provisions of that directive do not have to be inter preted now and I shall refer to them only in 'Where, in application of Article 100 of the so far as they may shed light on the inter Treaty, Community directives provide for pretation of the previous directives. The the harmonization of the measures provisions which the Court is asked to necessary to ensure the protection of animal interpret are the following: Directive 2 and human health and establish Community 70 / 524 and the amendments thereto made procedures to check that they are observed, by Directives 73/103 3and 75/296. 4 recourse to Article 36 is no longer justified and the appropriate checks must be carried out and the measures of production adopted within the framework outlined by the 3. Question 1 is basically concerned with harmonizing directive.' the point whether the degree of harmon ization achieved by Community legislation prior to Directive 84/587 was such as to deprive Member States of any possibility of Harmonization by Community measures relying on Article 36 of the Treaty as thus precludes the power of Member States regards national measures intended to to take unilateral measures. ensure identification of additives and also the purity of those substances in the case of
* Translated from the French. 5. It is precisely the existence of such 1 — Directive 84/587/EEC of 29 November 1984, OJ L 319, 8.12.1984, p. 13. harmonization which is at issue here. Article 2 — Directive 70/524/EEC of 23 November 1970, OJ L 270, 6 of Directive 70/524 lays down the 14.12.1970, p. 1. procedure to be observed on fixing criteria 3 — Directive 73 / 103 / EEC of 28 April 1973, OJ L 124, 10.5.1973, p. 17. 4 — Directive 75/296/EEC of 28 April 1975, OJ L 124, 5 — Judgment of 5 October 1977 in Case 5/77 [1977] ECR 15.5.1975, p. 29. 1555.
DANSK DENKAVIT v DANISH MINISTRY OF AGRICULTURE
of purity for the additives referred in the 7. The arguments advanced by the Danish directive by conferring power to do so on Government do not seem to me capable of the Council. That procedure was amended casting doubt on that view. It maintains that by Direttive 75/296 which delegated the since the presence of impurities is likely to power of decision on the subject to the involve serious risks to public health, the 'Standing Committee for Feedingstuff s'. matter in question is, in accordance with the Directive 75/296 expressly provided that judgments in Denkavit Futtermittel GmbH v criteria of composition, which the directive Minister für Ernährung, Landwirtschaft und had not until then expressly included, and Forsten 8 and Denkavit Futtermittel v Land physico-chemical and biological properties Nordrhein-Westfalen, 9 one which has not might be fixed in accordance with the been harmonized. Although it is true those aforementioned procedure. two decisions recognized the possibility of adopting unilateral measures on the basis of Article 36, I would emphasize that they refer to microscopic pathogens in relation to
6. In view of those provisions there can be the health inspection of compound feeding- no doubt that, as from the adoption of stuffs intended to prevent epizootic diseases. Directive 70/524 as regards the criteria of It is not possible to equate such germs with purity, and in any event as from the the impurities in an additive, even if the adoption of Directive 75/296, the harmon latter have harmful effects upon health. ization of the Community procedures in the Moreover, the analogy overlooks the fact matter was achieved. That view is confirmed that the criteria of purity must be fixed by Article 13 of the directive which according to the Community procedure laid precludes 'marketing restrictions other than down in Article 6. Any difficulties in those provided for in this directive'. implementing that procedure do not affect Measures such as those at issue here could the actual principle of harmonization in that therefore not be adopted by the Member respect. States since their adoption is prohibited by Directive 75/296 in a field from then on wholly governed by Community law. Accordingly the conclusion cannot differ from that arrived at in the judgments of 3 October 1985 in Commission v Federal Republic of Germany 6and Denkavit Futter- 8. Finally, although Directive 84/587 set up mittel v Land Nordrhein-Westfalen 7in which a system whereby by means of a mandatory it was held that monograph provided for in Article 8 for certain products the criteria of identification and purity have to be defined, it can in no way be inferred that such a matter was not
' . . . in relation to all constituents capable of previously harmonized. Although the giving rise to problems or dangers from the previous system did not make recourse to point of view of proper animal nutrition or the procedure of Article 6 systematic, it was from the point of view of animal or human nevertheless mandatory when it was health, the two directives have set up a intended to fix the criteria of purity or comprehensive system which enables account composition. The difference between the to be taken of the need to amend the law before and after the directive is not a directives periodically and of urgent matter of the degree of harmonization problems which may arise in practice'. attained. It relates solely to the systematic
6 — Case 28/84 [1985] ECR 3097 at p. 3115, paragraph 14. 8 — Case 251/78 [1979] ECR 3369. 7 — Case 195/84 [1985] ECR 3181. 9 — Case 73/84 [1985] ECR 1013.
OPINION OF MR DARMON — CASE 29/87
nature of the fixing of the relevant criteria. form provided for in this directive' and by The second recital in the preamble to that of Article 13 which requires the Directive 84/587 contains a perfect Member States to ensure 'that feedingstuffs statement of the reasons for which the which conform to the provisions of this measure was adopted for certain products: Directive shall be subject, as regards the '. .. experience has demonstrated :.. that presence or absence of additives and as the current rules ... have not afforded the regards marking, to no marketing required degree of safety. . . '. It is not restrictions other than those provided for in however possible to assert that any this Directive'. In view of those provisions it improvement in the Community rules means is not possible to allow information other that previously there was no harmonization. than that provided for by Article 10 (1), which relates only to additives themselves and in any event in no case authorizes reference to a registration similar to that 9. Thus the degree of harmonization referred to by the national court. achieved by the Community rules under Directive 70/524 and its amendments prior to Directive 84/587 appears such as to exclude any recourse to Article 36 of the Treaty by the national authorities with respect to measures intended to ensure identification and to lay down a criterion of 12. The third question concerns the purity of additives. And the view that compatibility with Article 30 of the harmonization is purely formal must be requirement of authorization to which firmly rejected. Let me emphasize that the importers of feedingstuffs containing adoption of unilateral measures by Member additives are subject and the fourth question States with respect to identification and asks essentially whether Directive 70/524 purity of additives cannot fail to lead to provided for such a degree of harmon appreciable differences which would ization as to deprive Member States of frustrate the objectives of harmonization recourse to Article 36 in connection with pursued. such a requirement.
10. It is only if harmonization has not reached such a degree as to exclude recourse to Article 36 that the Court would have fo answer the second question 13. The national court has described the concerning the possibility for Member authorization in question as being issued States to require information relating to the once and for all and as analogous to that registration of additives. In view of the required of domestic producers; it answer that I propose to the first question, constitutes the only means of knowing the that question does not arise. undertakings at whose premises the checking prescribed by the directive must be carried out. It is also stated that an authori zation may not be refused or withdrawn on 11. I shall thus confine myself to pointing specific grounds but only, in accordance out that in any event the information in with the principles of the national law, for question is expressly excluded by the imperative reasons based on human or wording of Article 10 (4), which prohibits animal health. Finally, authorization is 'any reference to additives other than in the granted in practice within a few weeks on
DANSK DENKAVIT v DANISH MINISTRY OF AGRICULTURE
the basis of a request, which need contain has referred do not appear to me to be such only the importer's name and address, and as to deprive the requirement in question of so far has never been refused to or the nature of a measure having equivalent withdrawn from any importer. effect.
14. With regard to Article 30 of the Treaty, the potentially restrictive nature of a measure suffices, according to established 16. It is accordingly necessary to inquire case-law, to bring it within the scope of whether there is in this case harmonization measures having an effect equivalent to such as, in accordance with the aforemen quantitative restrictions, the following tioned principles, to exclude recourse to well-known definition of which was given in Article 36. First of all it is necessary to 10 Procureur du Roi v Dassonville: all trading distinguish carefully between harmonization rules which are capable of hindering, of additives and harmonization of the rules directly or indirectly, actually or potentially, applicable to traders concerned in the intra-Community trade. sector. In that respect Directive 70/524 on additives makes no mention of the traders concerned. Like the Commission, I must point out that Article 13, which requires 15. In the case of authorization necessarily Member States to ensure that feedingstuffs implying a discretion on the part of the are subject, as regards the presence or absence national administration the Court's of additives, to no marketing restrictions judgment in Commission v United other than those provided for in the Kingdom 11 referred to the restrictive aspects directive, provides crucial evidence that of such a system as follows: there is no harmonization in that respect in so far as the areas in which harmonization excludes national measures are thus specified. That interpretation is supported by a reading of Article 20 of Directive 'Even though the United Kingdom main 84/587 which no longer mentions the tained at the hearing that current adminis abovementioned limit, whereas Article 13 trative practice permits licences to be issued (3) provides for annual publication by each promptly and automatically, a system Member State of the list of manufacturers requiring the issue of an administrative of additives. Even though the latter authorization necessarily involves the provision thus postulates a check on the exercise of a certain degree of discretion traders, it is important to point out that the and creates legal uncertainty for traders.' limitation to restrictions made solely by reason of the presence or absence of additives disappears, which does tend to show that henceforth, but only henceforth, During the discussion which arose at the the 'control' of traders is covered by the hearing on the scope of the concept of auth Community rules. The sequential logic of orization the Danish Government admitted the provisions at issue is clear. Since that it could in theory be refused. Thus, the Directive 70/524 did not contain provisions circumstances to which the national court relating to authorization of traders, it was, if necessary, for the Member States to adopt 10 — Judgment of 11 July 1974 in Case 8/74 [1974] ECR 837. relevant measures ad hoc on the subject on 11 _ Judgment of 8 February 1983 in Case 124/81[1983] ECR 203. the basis of Article 36 of the Treaty.
OPINION OF MR DARMON — CASE 29/87
17. In that respect the national court has frontier', referred in the judgment in not asked whether a measure similar to that Denkavit Loire v French State. 12 at issue should be regarded as compatible with Article 36. I should therefore merely say that Directive 84/587, which provides 19. I am similarly led to the view that the for control of the traders concerned, has set contested measure is not incompatible with out in its ninth recital the grounds of such a Article 95 of the Treaty. The internal
requirement when it states that ' . . . it is taxation in question seems to be identical as appropriate that the production and use of regards importers and domestic producers antibiotics be limited to those who have the who are taxed according to the same competence and the appropriate installations criteria. In that respect the criteria set out in and equipment for 'the manufacture of the Court's judgment in Officier van Justitie additives . . . and who are included on the n v Kortmann 13 may be recalled: list of manufacturers of a Member State'. Such objectives are intended to ensure, if necessary, that the traders concerned are liable and in any event that they are trust 'It is sufficient that the internal tax applies worthy. They are certainly in accordance in accordance with the same criteria, objec with the provisions of Article 36. tively justified by the purpose for which the tax was introduced, to domestic products and imported products so that it does not result in the imported product's bearing a heavier charge than that borne by the similar domestic product.'
18. The fifth question concerns the compat ibility with Directive 70/524 and Anieles 9 and 95 of the Treaty of an annual levy in 20. Denkavit states in this respect that the the same amount on domestic producers domestic producer is not liable to any and importers holding the aforementioned increase in the impact of the levy on his authorization and intended to cover the production if he has recourse to dealers expenditure occasioned by the checks by whereas the foreign producer incurs unrea random sampling carried out in accordance sonable costs if he has recourse to several with Directive 70 / 524 / EEC . The levy importers. That argument is unconvincing. appears as connected with the system of The sole importer may perfectly well have authorization which, as we have just seen, is recourse to independent dealers established not covered by the directive. Accordingly, it in the territory into which the goods are is not necessary to consider the levy's imported without their having to pay the lawfulness with regard to the directive. It levy. Finally, the system in question, which remains to consider it in the light of Articles applies to the traders on the market in 9 and 95 of the Treaty. Article 9, which question and not to the products does not prohibits customs duties and charges having appear to me to be contrary to the equivalent effect, cannot preclude a system requirements of the case-law of the Court of taxation which, as in the present case, is according to which the taxation must be imposed annually in the same amount on imposed on products at the same marketing importers and domestic producers, indepen- stage and the chargeable event must be
1 dently of the quantities imported. The fixed identical. 4 and non-discriminatory nature of that taxation means, in my opinion, that it is not 12 — Judgment of 31 May 1979 in Case 132/78 [1979] ECR possible to see in it the characteristics of a 1923, paragraph 7. 'pecuniary charge . . . imposed . . . on goods 13 — Judgment of 28 January 1981 in Case 32/80 [1981] ECR 251, paragraphs 27 and 28. by reason of the fact that they cross a 14 — Case 132/78, cited above, paragraph 8.
DANSK DENKAVTT v DANISH MINISTRY OF AGRICULTURE
21. In consequence I propose that the Court should rule that:
(1) Council Directive 70/524 of 23 November 1970, as amended up to the adoption of Directive 84/587 of 29 November 1984, provides for harmon ization which precludes Member States from relying on Article 36 of the Treaty in order to impose on the importation from other Member States of feedingstuffs containing additives, measures intended to ensure the identifi cation and the purity of the additives in question.
(2) A measure by a Member State subjecting to authorization the importation of feedingstuffs from other Member States is contrary to Article 30.
(3) Directive 70/524 of 23 November 1970, as amended up to the adoption of Directive 84/587, did not provide for harmonization depriving Member States of the power to have recourse to Article 36 for the adoption of domestic measures concerning the control of traders.
(4) An annual levy charged in the same amount on domestic producers and importers is not contrary to Articles 9 and 95 of the Treaty.