CJEC, October 5, 1977, No 5-77

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.

2 These questions have been submitted in the context of a dispute concerning the non-performance of a contract for the supply of feeding-stuffs made from powdered milk in which the defendant in the main action maintains, in order to justify its failure to deliver the goods, that they were illegally stopped at the border by the Italian health authorities because their potassium nitrate content exceeded that permitted by those authorities.

3 This measure was adopted on the basis of an urgent note (biglietto urgente) of 7 September 1976 sent by the Italian minister of health to the veterinary authorities at frontiers, ports and airports and to the provincial authorities prohibiting the importation of milk-based feeding-stuffs where the nitrate 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 reduce their content in order to prevent them from harming animal health or, because of their presence in animal products, human health.

6 Under article 3 of the directive ' member states shall prescribe that the substances and products listed in the annex shall be tolerated in feeding-stuffs only under the conditions therein set out ', that is, below a maximum level.

7 According to article 7 ' member states shall ensure that feeding-stuffs which conform to this directive are not subject to any other marketing restrictions as regards the presence of undesirable substances and products '.

8 However, article 5 (1) provides that: ' where a member state considers that a maximum content fixed in the annex, or that a substance or product not 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.

10 Article 5 (2) continues: ' so long as no decision has been made by either the Council or the Commission the member state may maintain the measures it has implemented '.

11 The file shows that as early as 27 July 1976 the Italian authorities drew the attention of the Commission to the presence ' in certain consignments of whey from France, the Netherlands and the federal Republic of Germany of potassium nitrate in levels varying from 40 to 4 000 parts per million (milligrammes per kilogramme), residues from the manufacture of certain 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 authorities during the months of august and September, on 7 October 1976 the latter sent the Commission documents as to toxicity by way of the statement of reasons referred to in article 5 (1) of the directive.

14 The Italian government contests the relevance of the questions referred to the Court with regard to the outcome of the main action and observes that the measure in question was not adopted on the basis of article 5 of directive No 74-63 but in accordance with Council directive No 70-524 of 23 November 1970 concerning additives in feeding-stuffs (oj, English special edition 1970 (iii), p.840).

15 The distinction between the field of application of these two directives is important because all marketing of feeding-stuffs containing unauthorized additives is clearly prohibited whereas in so far as undesirable substances are concerned the prohibition on marketing concerns only feeding-stuffs 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.

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 list of undesirable substances.

17 Article 177 is based on a distinct separation of functions between national Courts and tribunals on the one hand and the Court of justice on the other, and it does not give the Court jurisdiction to take cognizance of the facts of the case, or to criticize the reasons for the reference.

18 Therefore, when a national Court or tribunal refers a provision of community law for interpretation, it is to be supposed that the said Court or tribunal 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 questions which have been referred to it.

21 Directive No 74-63 (undesirable substances) specifies that it applies ' without prejudice ' to the provisions concerning, in particular, additives in feeding-stuffs and it is therefore important, in order to reach a useful interpretation of the provisions thereof, to state precisely its field of application in relation to directive No 70-524 (additives).

22 Under article 2 of directive No 70-524, ' additives ' are substances which, when incorporated in feeding-stuffs, are likely to affect their characteristics or livestock production.

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 specify however that undesirable substances or products which ' feeding-stuffs often contain ' are involved and that ' it is impossible to exclude totally the presence ' of them.

25 The file and the observations submitted by the parties during the hearing show that the presence of potassium nitrate in the imported feeding-stuffs in excess of the maximum levels fixed by the Italian government results from the fact that a quantity of whey, which is a by-product of the manufacture of cheese, during which the nitrate is used as a preservative, is mixed with the skimmed-milk powder.

26 The Italian government considers that the nitrate added during the caseation process continues to be an additive in the subsequent stages of the use of the 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 feeding-stuffs make, as regards their respective fields of application, a distinction between certain substances which are intentionally added to those feeding-stuffs so as to produce a favourable effect on their characteristics and, on the other, undesirable substances which are inevitably present in those feeding-stuffs either in the natural state or as residues from processing previously undergone by those feeding-stuffs or by the constituents of those feeding-stuffs.

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 consider as undesirable substances certain substances (in this case nitrates) which, although known when directive No 74-63 was adopted and incorporated into the national legal systems, were excluded from the list of undesirable substances annexed to the directive.

32 Under article 1 (g) of regulation No 804-68 of the Council of 27 June 1968 on the common organization on the market in milk and milk products (oj, English special edition 1968 (i), p.176), dairy-based feeding-stuffs come within that organization of the market and must, under article 22 of the same regulation, be admitted to free circulation between the member states.

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 jurisdiction of member states but permits national laws to derogate from the principle of the free movement of goods to the extent to which such derogation is and continues to be justified for the attainment of the objectives referred to in that article.

35 Where, in application of article 100 of the treaty, community directives provide for the harmonization of the measures necessary to ensure the protection of animal and human health and establish community procedures to check that they are observed, recourse to article 36 is no longer justified and the appropriate checks must be carried out and the measures of protection adopted within the framework outlined by the harmonizing directive.

36 Directive No 74-63 was adopted and a community control procedure was 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 Although articles 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 knowledge, it was however justified in also providing for the means of remedying a lacuna in the harmonized legislation when a danger requiring immediate action arises.

39 The eventuality provided for in article 5 covers the case in which substances which were previously considered not to be harmful prove to be so, in particular if, considered in a previous stage as not harmful because they are only present in minute quantities, it appeared that in other feeding-stuff mixtures or in mixtures made in new proportions, they are present in a proportion which may make them undesirable.

40 It is therefore necessary to reply to the first question that even after the entry into force of the harmonizing directive, directive No 74-63, the member states have, within the context of article 5 of that directive and subject to the material and procedural requirements laid down therein, the power provisionally to consider as undesirable certain substances which although known 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.

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.

42 Subject to the obligation not to discriminate between imported products and national products, it is necessary, for the reasons put forward in reply to the first question, to reply to the second question in the affirmative.

43 In fact, although substances have not been recognized as undesirable because in a previous stage the composition of feeding-stuffs was such that those substances only appear in minute quantities, it is possible that different mixtures may contain the same substances in quantities such that because of their level they may be considered as undesirable.

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.

46 Such a prohibition on marketing on the national market may, for products coming from other member states, take the form of a prohibition on importation, since importation may be treated, for the purposes of the application of the directive, as the first marketing on the territory of the member state.

47 Such a prohibition may not however be issued in a general manner and may concern only consignments of goods from which it appears as the result of a 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 beyond the limits justified by article 36 and permits them, by means of the last sentence of article 10, to escape, without any limitation as to time, the directly applicable provisions of article 30 of the treaty and those concerning the common organization of the agricultural markets.

49 The directive, whilst obliging the member states to adopt common provisions in relation to the presence of harmful or undesirable substances in feeding-stuffs leaves those member states, by means of article 5, a discretionary power to implement provisional supplementary measures relating to other substances or to the level of the substances listed in the annex to the directive.

50 Under article 5 (2), when a member state has brought into force provisionally a measure such as that referred to in article 5 (1), an immediate decision 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 accordance with that opinion or if the committee does not deliver an opinion, by the Council at the proposal of the Commission.

53 Article 10 (4) continues by specifying that: ' if the Council has not adopted any measures within fifteen days of the proposal being submitted to it, the Commission shall adopt the proposed measures and implement them forthwith, except where the Council has voted by a simple majority against such measures '.

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 provisionally to be prolonged indefinitely.

57 It is therefore necessary to conclude that consideration of the fourth question has disclosed no factor of such a kind as to affect the validity of article 5 of the directive.

Costs

58 The costs incurred by the government of the Italian Republic, the government of the united kingdom and the Council and the Commission of the European Communities which have submitted observations to the 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

In answer to the questions referred to it by the pretura di lodi by order of 17 December 1976 hereby rules:

(1) even after the entry into force of harmonizing directive No 74-63, the member states have, within the context of article 5 of that directive and subject to the material and procedural requirements laid down therein, the power provisionally to 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 directive No 74-63 enables a member state to fix, on a provisional basis, the maximum permitted level of a substance contained in imported feeding-stuffs made from powdered milk even though no maximum level has ever been fixed in the past either in the exporting member state or in the importing member state;

(3) Article 5 of directive No 74-63 enables a member state to prohibit the marketing of the products which have been found to infringe the temporary national provision which it is empowered to adopt. For products coming from other member states such prohibition on marketing may take the form of a prohibition on importation ;