C-39/90

1. The questions which have been referred 3. An appeal against that decision was to the Court by the Verwaltungsgerichthof brought before the Verwaltungsgerichthof Baden-Württemberg for a preliminary ruling (Higher Administrative Court), Baden- invite the Court to set the requirements of Württemberg, which held that the the free movement of goods, as recognized amendments to the German legislation were by the EEC Treaty, against the necessities applicable to the proceedings. Ever since the of the harmonization of the national laws, Sixth Regulation amending the Futtermittel- in particular regarding labelling. verordnung of 22 June 1988 4 Paragraph 13(2) has required that the ingredients used must be indicated in descending order 2. The facts are straightforward. Denkavit of their proportion (the 'simplified' Futtermittel GmbH (hereinafter referred to declaration). Denkavit contended before as 'Denkavit'), a company incorporated that court that the new version of Paragraph under German law, has as its main activity 13(2) was also contrary to the provisions of the importation and sale on the German Directive 79/373 or, at the very least, to market of compound feedingstuffs coming those of Article 30 of the EEC Treaty. from other Member States of the Community and, in particular, from the Netherlands. It wished to import animal 4. As a result, the national court has feedingstuffs from that State without referred to this Court three questions for a complying with the obligation, laid down by preliminary ruling first, on the interpretation Paragraph 13(2) of the fifth German regu- of the relevant provisions of Directive lation amending the Futtermittelverordnung 79/373, secondly, on the compatibility of (Feedingstuffs Regulation), 1to indicate the that directive with regard to Article 30 of percentage of all the ingredients used (the the EEC Treaty; and, finally, should the 'detailed' declaration). The Kingdom of the case arise on the question whether the Netherlands apparently does not require the directive can be justified, where appropriate, ingredients used in animal feedingstuffs by recourse to the provisions of Article 36. to be indicated. 2 The Land Baden- Württemberg refused to allow those products to be marketed. Denkavit claimed, 5. I shall now examine these questions in before the Verwaltungsgericht (Adminis- turn. trative Court) Stuttgart, that Paragraph 3 — Council Directive of 2 April 1979 on the marketing of compound feedingstuffs (OJ 1979 L 86, p. 30), amended, * Original language: French. for the first time, by Council Directive 86/354/EEC of 1 — Regulation of 2 January 1987 (BGBl. I, pp. 94 and 423). 21 July 1986 (OJ 1986 L 212, p. 27); those amendments 2 — Observations submitted by Denkavit, p. 5 of the French have no bearing on the present case. translation. 4 — BGBl. I, p. 869.

6. The first question refers to Article 5 of the preamble thereto, that Article 5 must be Directive 79/373. According to paragraph interpreted as introducing a 'standstill' obli- (4) of that article, 'Member States may gation. require all or some of the following particulars only to be indicated: . . . ; (b) the ingredients'. Pursuant to paragraph (7) of the same Article, 'where particulars of the ingredients are given, all the ingredients present shall be listed, either by giving the quantities of each ingredient or in descending order of their proportion in the compound feedingstuff'. The national court 8. Before addressing that problem, it should is essentially asking the Court of Justice be pointed out that the directive at issue is whether these provisions introduce a part of a process of harmonizing national 'standstill' clause which does not allow the laws which is designed to bring about Member States to maintain an obligation to gradually the free movement within the indicate the ingredients unless an obligation Community of compound feedingstuffs.

7. The observations submitted to the Court ingstuffs and to eliminate certain disparities by the various participants in the concerning the use of ingredients and proceedings are somewhat at variance with labelling in particular. The Council shall act each other as regards the reply to be given on these proposals not later than five years to the first question. The Council, 6 the following notification of this directive.' This Land Baden-Württemberg and the Italian indicates the incomplete nature of the Government consider that the clear and harmonization that the directive was unambiguous provisions of Article 5 of the intended to carry out. A further step in that directive do not in any way restrict the harmonization became possible only with possibility for a Member State to introduce the adoption of Directive 90/44/EEC, 7in into its domestic law an obligation to the second and third recitals of which it is indicate the ingredients in descending order stated that 'under present Community legis- of their proportion, even where that obli- lation Member States may, in certain cases, gation did not exist in its national law when waive the Community rules, particularly as the directive entered into force. On the regards labelling and the choice of ingre- other hand, Denkavit and the Commission dients; . . . with a view to the completion of maintain that it follows from the objectives, the internal market, all national derogations the general scheme and the grounds of the liable further to inhibit free movement of directive, and especially the fifth recital in compound feedingstuffs or creating unequal

conditions of competition should be elim- refer, does not, on a proper reading, have inated'. Thus the new Article 5 of Directive the meaning which they believe they can 79/373, as amended by Directive 90/44, attribute to it. It is said in that recital that obliges the Member States to require 8 the 'pending the adoption of further provisions, ingredients to be shown in descending order it is necessary, given the existing practices in by weight. 9 If these particulars are not certain Member States, to provide tempor- shown the products may not be marketed. 10 arily for national administrations to require a fuller declaration of the composition of feedingstuffs, with regard to both analytical constituents and ingredients; ...such declarations may be required only as 9. I must, therefore, mention the two provided for in this directive'. That text essential features of Directive 79/373, does not establish the necessary link having regard to its place in the process of between 'existing practices in certain harmonization: it is incomplete and it is Member States' and the possibility of temporary. requiring a declaration of the composition of the feedingstuffs. It merely finds that certain States require that declaration and that others do not, and from this infers that 10. Let us therefore consider whether it it is necessary, in those circumstances, to follows from its objectives, its general leave the Member States free to choose scheme on the reasons which led to its whether or not to lay down such an obli- adoption that Article 5 must be construed as gation. Finally, the word 'temporarily' may having introduced a 'standstill' obligation, mean that the possibility of introducing such given — and this is not disputed by the a requirement into national law will participants in the proceedings — that a subsequently be abrogated; on the other reading of Article 5 shows that such an obli- hand, it may mean that it will later cease to gation cannot be inferred from the mere be an option and become a requirement. wording of that provision.

Besides the fact that that aniele clearly shows how a 'standstill' clause is drafted, it 16. According to the case-law of the Court, enables the general scheme of the directive to be understood. With regard to the ingre- dients which may be utilized, the protection of the health of humans and animals leads 'when the wording of secondary to permitting the exclusion of the marketing Community law is open to more than one of certain compound feedingstuffs, a interpretation, preference should be given to measure which is more restrictive of trade the interpretation which renders the than an obligation concerning labelling, but provision consistent with the Treaty, rather which is compensated for by the existence than the interpretation which leads to being of a 'standstill' clause. On the other hand, incompatible with the Treaty'. 11 with regard to the requirements on labelling, which, by their nature, have a less restrictive effect on trade, it is not necessary to provide for such a clause. 17. It seems to me, however, that the text of Article 5 of Directive 79/373 is not 'open to more than one interpretation'. The Commission itself recognizes that the existence of a 'standstill' clause may not be 14. Furthermore, to accept that there was in inferred from the words of that provision this case a 'standstill' clause would lead to alone. Accordingly, it does not seem to me an absurd result. The Federal Republic of that the Court's case-law must be applied Germany would, since the entry into force here. of Directive 79/373, have been prohibited from providing for such an obligation, whereas, as from the date laid down in Directive 90/44, it will be required to 18. All of the above factors lead me to introduce such an obligation into its propose that the Court reply to the first domestic law. question to the effect that Article 5(4) and (7) of Directive 79/373 does not prevent a Member State from introducing into its national legislation an obligation to indicate the ingredients used in the manufacture of 15. Finally, the Commission considers that compound feedingstuffs in descending order it cannot be ruled out that, where the of their proportion. disparities between national laws are made worse by a Council directive, this may constitute a ground for declaring the directive to be invalid. The Commission also 19. I shall examine the second and third suggests that the Court should interpret the question together, in so far as the first of directive as meaning that it has introduced a 'standstill' obligation in order to make the 11 — Judgment in Case 218/82 Commission v Conno/ [1983] Community text necessarily compatible with ECR 4063, paragraph 15; see also the judgment in Case 104/75 De Peijper [1976] ECR 613; judgment in Case Article 30, if need be by having recourse to 179/78 Rivoira [1979] ECR 1147.

23. In its judgment of 24 October 1973, 13 'the organization of these inspections by the where the issue was the compatibility of exporting State has been made obligatory so monetary compensatory amounts with that inspections at the frontier organized Articles 8, 9, 12 and 13 of the Treaty, the unilaterally by the importing Member State Court held that, although the monetary become unnecessary', 18 compensatory amounts did constitute a partitioning of the market, they had a 14 — Paragraph 20. corrective influence on the variations in 15 — For another application of that criterion, see the judgment in Case 5/77 Tedeschi [1977] ECR 1555, paragraphs 51 to 57. 12 — Judgment in Case 15/83 Denkavit Nederland [1984] ECR 2171, paragraph 15, where Article 34 of the EEC Treaty 16 — Judgment in Case 46/76 [1977] ECR 5. was invoked; see also judgment in Joined Cases 80/77 and 17 — Directive on animal health problems affecting intra- 81/77 Commissionnaires Reunis v Receveur des Douanes Community trade in bovine animals and swine (OJ, [1978] ECR 927, paragraph 35. Special English Edition 1963-64, p. 164). 13 — Case 10/73 Rewe-Zentrale [1973] ECR 1175. 18 — Paragraph 27.

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that 27. Finally, in a more recent judgment, 24 the Court had to consider whether Council Directive 77/93/EC of 21 December 1976, 25 which partially harmonized 'these measures are not laid down unilat- protective measures against harmful erally by each Member State, but have been organisms of plants, was compatible with made obligatory and uniform in the case of Article 30. all the products in question', 19

26. Here again the Court took into consideration the uniform nature 22 of the measure, its objectives and the general 'in the exercise of the powers conferred on interest of the Community. 23 them in this respect by Articles 43 and 100 of the Treaty, the Community institutions 19 — Paragraph 29. 20 — Paragraph 28 have a discretion in particular with regard 21 — Paragraph 30. to the possibility of proceeding towards 22 — On thai point, see the judgment in Case 251/78 Denkavit harmonization only in stages and of requiring Futtermittel[1979] ECR 3369, paragraph II, from which it emerges that the same measure will be assessed differently only the gradual abolition of unilateral according to whether it is unilateral or whether it is the result of a harmonization directive. 24 — Judgment in Case 37/83 Rewe-Zentrale [1984] ECR 1229. 23 — This case-law has been applied, mutatis mutandis, to inspection fees established by the United Nations interna- 25 — Directive on protection measures against the introduction tional agreement on the protection of vegetables of 6 into the Member States of organisms harmful to vegetables December 1951; judgment in Case 89/76 Commission v or vegetable products (OJ 1977 L 26, p. 20). Netherlands [1977] ECR 1355. 26 — Paragraph 19, emphasis added.

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29. Alongside the criteria which I have those States must be justified by one of the already mentioned, the Court had regard, in objectives of Article 36 or by the imperative that decision, to the incomplete nature of requirements specified in the Court's 'Cassis the harmonization in question. However, it de Dijon' decision. 31 Although the Court, in may be argued that that criterion is, in a its judgments in Rewe-Zentrale 32 and way, a different formulation from that Bauhuis, 33 referred only to the fact that the derived from the temporary nature of the harmonizing measure at issue in each of measure, a criterion which the Court used those cases was intended to promote the with respect to the monetary compensatory free movement of goods, that was plainly amounts. 28 because that measure was being questioned in the light of the prohibition of charges having equivalent effect, a prohibition laid down in Articles 9 and 12 of the Treaty, which do not include provisions similar to those of Article 36 or to those which the

195. 33 — Case 46/76, above. 29 — Oliver, P.: free Movement of Goods in the EEC, Second Edition, 1988, 4-13, p. 46. 34 — Case 37/83, above, paragraph 19.

33. It follows that the questions submitted by the national court in fact cover two problems. On the one hand, is the 'part of the framework of the common agri- requirement that the ingredients be cultural policy and at the same time that of indicated on the label of compound feeding- the harmonization of legislation capable of stuffs justified having regard to Article 36 or directly affecting the functioning of the imperative requirements? On the other common market', hand, is the option given to the Member States of maintaining or introducing such a requirement, and of thus allowing disparities and that its purpose was between national laws to remain, in conformity with Article 30? These two points will be examined in turn. 'to contribute specifically in the area in question to achieving the free movement of goods'. 39 34. In the first place, it is indisputable that the requirement that certain particulars be shown on a product is, in the sense that it 38. In a judgment given some months may possibly force a manufacturer or earlier, 40 also concerning Directive 79/373, importer to alter the presentation of the the Court held that that directive did not product, of such a nature as to make its marketing more difficult in certain Member States and, accordingly, has a restrictive effect on intra-Community trade. The 'purport to lay down rules with regard to court's case-law is very clear on that health inspections on compound feeding- point. 37 stuffs" 41

35 — Case 104/75, above. 38 — Case 28/84 Commission v Germany [1985] ECR 3097 36 — Sec p 653. 39 — Paragraph 11 37 — Judgment in Case 27/80 nette [1980] ECR 3839, para- 40 — Judgment in Case 73/84 Denkavn Futtermittel/[l985] ECR graphs 8 to 10; judgment in Case 94/82 De Kikvonch 1013. [1983] ECR 947, paragraph 10 41 — Paragraph 12

41. Denkavit indicates, moreover, the factual reasons which appear to form the basis of its hostility to the measure at issue. 39. Thus, the Court has already held that As a specialist in feedingstuffs for young the objectives of Directive 79/373 were animals, which are more susceptible to concerned simultaneously with the disease than others, Denkavit had incurred requirement of fair trading and with the substantial expense, following costly protection of the health and life of humans scientific research in perfecting those feed- and animals which is referred to in Article ingstuffs. Thus, according to Denkavit, the 36 of the EEC Treaty. obligation to indicate the ingredients runs counter to the protection of business secrets. It states, however, in the exposition of its interpretation of Directive 90/44 that the 40. It appears, however, that the particular new Article 5c(3) allows the indication of measure constituted by the obligation to the ingredients to be replaced by an indi- indicate the ingredients essentially responds cation of 'categories grouping several ingre- to the need to ensure fair trading and 43 — Judgment in Case C-150/88 [1989] ECR 3891. 42 — Paragraph 12, emphasis added. 44 — Paragraph 18.

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dients', which, in its view, protects industrial which are justified having regard to the and commercial property. 45 It fails to point imperative requirements of fair trading and out, however, that in Article 5(7) Directive consumer protection. 79/373 already authorizes the Member States to 'group ingredients together by category or maintain existing categories and permit particulars of ingredients to be 44. I shall now consider the compatibility of replaced by those relating to categories'. Directive 79/373 with Article 30 with The argument put forward is therefore respect to the allegations that that directive irrelevant. has 'aggravated' the disparities between national laws. That difficulty is, no doubt, in the case in point, easier to resolve.

'must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory 43. The measure at issue, to conclude on requirements relating in particular to . . . the this point, thus appears to be one of those fairness of commercial transactions and the defence of the consumer'. 47 45 — It will be recalled that Denkavitalso refers to Article 36 of the Treaty. 46 — Cases 10/73. 46/76 and 37/83, above. 47 — Case 120/78, above, paragraph 8.

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49. I therefore conclude that the C o u r t should rule as follows:

(1) T h e provisions of Article 5(4) and (7) of Council Directive 7 9 / 3 7 3 / E E C of 2 April 1979 on the marketing of c o m p o u n d feedingstuffs must be interpreted as meaning that they permit a M e m b e r State to introduce into its domestic law the obligation to indicate all or some of the particulars mentioned in Article 5(4), even if, when the directive was adopted, no such obligation existed u n d e r that law.

(2) Consideration of those provisions has disclosed n o factor of such a kind as to affect their validity.

48 - Case 37/83, above. 49 - Paragraph 20.

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