Court of Justice of the European Communities (including Court of First Instance Decisions)

1 . APPROXIMATION OF LAWS - PRESERVATIVES OR ANTIOXIDANTS AUTHORIZED FOR USE IN FOODSTUFFS INTENDED FOR HUMAN CONSUMPTION - DUTIES OF THE MEMBER STATES - SCOPE
( COUNCIL DIRECTIVES NOS 64/54 AND 70/357 )
2 . MEASURES OF THE INSTITUTIONS - DIRECTIVES - DIRECT EFFECT - DIRECTIVES CONCERNING THE PRESERVATIVES OR ANTIOXIDANTS AUTHORIZED FOR USE IN FOODSTUFFS INTENDED FOR HUMAN CONSUMPTION
( COUNCIL DIRECTIVES NOS 64/54 AND 70/357 )

1 . DIRECTIVES NOS 64/54 AND 70/357 CONCERNING THE PRESERVATIVES OR ANTIOXIDANTS AUTHORIZED FOR USE IN FOODSTUFFS INTENDED FOR HUMAN CONSUMPTION 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 . ON THE OTHER HAND , AT THE PRESENT STAGE IN THE APPROXIMATION OF NATIONAL LAWS IN THIS FIELD , MEMBER STATES ARE NOT BOUND TO AUTHORIZE THE USE IN FOODSTUFFS OF ALL THE PRESERVATIVES OR ANTIOXIDANTS APPEARING ON THOSE LISTS . HOWEVER , THE FREEDOM THUS LEFT TO THE MEMBER STATES MUST NOT HAVE THE EFFECT OF TOTALLY EXCLUDING THE USE IN THE FOODSTUFFS IN QUESTION OF ANY OF THOSE SUBSTANCES , OR OF PREVENTING ALL MARKETING THEREOF .



2 . IN SO FAR AS DIRECTIVES NOS 64/54 AND 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 .

IN CASE 88/79
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE GRANDE INSTANCE ( CRIMINAL COURT OF FIRST INSTANCE ), STRASBOURG , FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
MINISTERE PUBLIC ( PUBLIC PROSECUTOR ' S OFFICE )
AND
SIEGFRIED GRUNERT , MANAGING DIRECTOR OF A COMPANY , RESIDING IN STRASBOURG ,

ON THE INTERPRETATION OF THE COUNCIL DIRECTIVES OF 5 NOVEMBER 1963 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-1964 , P . 99 ) AND 13 JULY 1970 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( II ), P . 429 ) ON ADDITIVES AUTHORIZED FOR USE IN FOODSTUFFS INTENDED FOR HUMAN CONSUMPTION ,

1 IN A JUDGMENT OF 22 MARCH 1979 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 1 JUNE , THE TRIBUNAL DE GRANDE INSTANCE , STRASBOURG , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS ON THE INTERPRETATION OF COUNCIL DIRECTIVE NO 64/54 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 1963-1964 , P . 99 ) AND COUNCIL DIRECTIVE NO 70/357 OF 13 JULY 1970 ON THE APPROXIMATION OF THE LAWS OF THE MEMBER STATES CONCERNING THE ANTIOXIDANTS AUTHORIZED FOR USE IN FOODSTUFFS INTENDED FOR HUMAN CONSUMPTION ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1970 ( II ), P . 429 ).

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 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 PRESERVATIVES WHICH MAY BE USED IN FOODSTUFFS INTENDED FOR HUMAN CONSUMPTION LISTED IN DIRECTIVES NO 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 .

6 ACCORDING TO ITS PREAMBLE , THE DIRECTIVE IS MERELY THE FIRST STAGE IN THE APPROXIMATION OF NATIONAL LAWS RELATING TO PRESERVATIVES , INVOLVING THE ESTABLISHMENT OF A SINGLE LIST OF PRESERVATIVES THE USE OF WHICH IS AUTHORIZED . DURING THE SECOND STAGE THE APPROXIMATION OF LAWS WILL ENTAIL CONSIDERATION OF INDIVIDUAL FOODSTUFFS INTENDED FOR HUMAN CONSUMPTION TO WHICH THE PRESERVATIVES AUTHORIZED BY THE DIRECTIVE MAY BE ADDED .

7 BY VIRTUE OF THE PROVISIONS OF DIRECTIVE NO 70/357 , ESPECIALLY ARTICLES 1 AND 9 THEREOF AND THE PREAMBLE , THE SAME SCHEME HAS BEEN ADOPTED IN RESPECT OF ANTIOXIDANTS . LACTIC ACID AND CITRIC ACID APPEAR IN THE ANNEX TO THAT DIRECTIVE .

8 ACCORDINGLY , AT THE PRESENT STAGE IN THE APPROXIMATION OF NATIONAL LAWS RELATING TO PRESERVATIVES AND ANTIOXIDANTS MEMBER STATES ARE NOT BOUND TO AUTHORIZE FOR USE IN FOODSTUFFS ALL THE SUBSTANCES THE USE OF WHICH IS PERMITTED BY THE TWO DIRECTIVES . THE MEMBER STATES HAVE RETAINED A CERTAIN DISCRETION TO DETERMINE THEIR OWN RULES CONCERNING THE ADDITION OF PRESERVATIVES AND ANTIOXIDANTS TO FOODSTUFFS , SUBJECT TO THE TWOFOLD CONDITION THAT NO PRESERVATIVE OR ANTIOXIDANT MAY BE AUTHORIZED UNLESS IT APPEARS IN ONE OF THE LISTS ANNEXED TO THE DIRECTIVES AND THAT THE USE OF A PRESERVATIVE OR ANTIOXIDANT WHICH IS LISTED THERE MAY NOT BE TOTALLY PROHIBITED .

9 IT SHOULD BE NOTED THAT THE TWO DIRECTIVES IN QUESTION CONCERN THE USE OF PRESERVATIVES OR ANTIOXIDANTS IN FOODSTUFFS ; AS FAR AS THE MARKETING OF SUCH SUBSTANCES IS CONCERNED THE DIRECTIVES MERELY IMPOSE AN OBLIGATION ON MEMBER STATES , LAID DOWN IN ARTICLE 9 OF DIRECTIVE NO 64/54 AND ARTICLE 8 OF DIRECTIVE NO 70/357 , TO TAKE ALL MEASURES NECESSARY TO ENSURE THAT THE SUBSTANCES ARE PLACED ON THE MARKET ONLY IF THEIR PACKAGINGS OR CONTAINERS BEAR CERTAIN INFORMATION .

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 .

11 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 .

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 .

13 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 .

14 CONSIDERATION OF THE FIRST QUESTION HAS SHOWN THAT ALTHOUGH IN GENERAL THE TWO DIRECTIVES LEAVE A LARGE MEASURE OF FREEDOM TO THE MEMBER STATES AS TO WHETHER OR NOT TO AUTHORIZE THE USE IN FOODSTUFFS OF THE PRESERVATIVES AND ANTIOXIDANTS LISTED IN THE ANNEXES TO THOSE DIRECTIVES , THE LAWS OF THE MEMBER STATES MAY NO LONGER PROHIBIT ALTOGETHER THE USE OF ANY OF THOSE PRESERVATIVES OR ANTIOXIDANTS IN FOODSTUFFS , NOR MAY THEY PREVENT ALL MARKETING OF SUCH A SUBSTANCE . THE PROHIBITION AGAINST THE INTRODUCTION OR MAINTENANCE OF LEGISLATIVE OR REGULATORY PROVISIONS TO THAT EFFECT BY THE MEMBER STATES IS UNCONDITIONAL AND SUFFICIENTLY PRECISE TO ENABLE AN INDIVIDUAL TO RELY ON IT BEFORE A NATIONAL COURT WHERE THERE IS A LIKELIHOOD THAT LEGISLATIVE OR REGULATORY PROVISIONS OF SUCH A NATURE MAY BE APPLIED AGAINST HIM .

15 THE REPLY TO THE SECOND QUESTION SHOULD BE , THEREFORE , THAT 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 .

16 THE COSTS INCURRED BY THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , COSTS ARE A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,
THE 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 .