62002CJ0145_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-145/02,
REFERENCE for a preliminary ruling under Article 234 EC from the Bundesverwaltungsgericht (Germany), made by decision of
31 January 2002
, received at the Court on
18 April 2002
, in the proceedings
Land Nordrhein-Westfalen
v
Denkavit Futtermittel GmbH,
THE COURT (First Chamber),
composed of P. Jann, President of the Chamber,
A. Rosas (Rapporteur) and S. von Bahr, Judges,
Advocat General: A. Tizzano,
Registrar: M.-F. Contet, Principal Administrator,
having regard to the written procedure and further to the hearing on
27 November 2003,
after considering the observations submitted on behalf of:
– Denkavit Futtermittel GmbH, by V. Schiller, Rechtsanwalt,
– the German Government, by W.-D. Plessing, M. Lumma and A. Tiemann, acting as Agents,
– the Commission of the European Communities, by K. Fitch and M. Niejahr, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on
4 March 2004,
gives the following
Judgment
Grounds
1. This request for a preliminary ruling relates to the interpretation of Articles 12 and 19 of Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs (OJ, English Special Edition 1970 (III), p. 840), as amended by Council Directive 84/587/EEC of 29 November 1984 (OJ 1984 L 319, p. 13), (‘Directive 70/524’) and of Articles 28 EC and 30 EC.
2. That request has been submitted in the course of a dispute between Land Nordrhein-Westfalen (the State of North Rhine-Westphalia), and Denkavit Futtermittel GmbH, a company incorporated under German law (‘Denkavit’), concerning the importation and marketing by Denkavit in Germany of a supplementary feedingstuff for piglets which was lawfully manufactured in the Netherlands and the vitamin D 3
content of which exceeded that authorised in Germany.
Legal framework
Community legislation
3. Article 2 of Directive 70/524 defines complete feedingstuffs as ‘mixtures of feedingstuffs which, by reason of their composition, are sufficient for a daily ration’.
Supplementary feedingstuffs, in turn, are defined as ‘mixtures of feedingstuffs which have a high content of certain substances and which, by reason of their composition, are sufficient for a daily ration only if they are used in combination with other feedingstuffs’.
4. Article 12 of Directive 70/524 provides:
‘1. Member States shall require that supplementary feedingstuffs, diluted as specified, may not contain levels of the additives named in this Directive which exceed those fixed for complete feedingstuffs.
2. Member States may require that the levels of ... D vitamins … in supplementary feedingstuffs may exceed the maximum levels fixed for complete feedingstuffs in the case of:
(a) supplementary feedingstuffs which a Member State has authorised to be made available to all users, provided that their level of … D vitamins … does not exceed five times the fixed maximum level;
(b) supplementary feedingstuffs which are intended for certain species of animal and which a Member State is permitted to authorise to be made available within its territory to all users because of special feeding systems, provided that their level does not exceed:
–		…
–		for D vitamins, 200 000 IU [international units]/kg.
Member States shall prescribe that if, in the manufacture of supplementary feedingstuffs, recourse is had to the possibility referred to in (a), the possibility referred to in (b) may not be made use of at the same time.
3. Where paragraph 2 is invoked, Member States shall require that the feedingstuff has one or more compositional characteristics (as regards, for example, proteins or minerals) which in practice ensure that the level of additives fixed for complete feedingstuffs is not exceeded and that the feedingstuff is not used for other species of animal.’
5. Under Article 19 of Directive 70/524, Member States are required to ensure that additives, premixtures and feedingstuffs which conform to that directive are subject only to the marketing restrictions provided for therein.
6. With regard to complete feedingstuffs intended for pigs, Annex I to Directive 70/524 fixes the maximum vitamin D 3
content for such feedingstuffs at 2 000 IU/kg.
A higher level applies in the case of milk feeds for piglets.
That is not relevant in the circumstances of the dispute in the main proceedings.
National legislation
7. Directive 70/524 was transposed into the German legal system by the Futtermittelgesetz (Law on Feedingstuffs; ‘the FMG’) and by the Futtermittelverordnung (Regulation on Feedingstuffs; ‘the FMV’).
8. Paragraph 14 of the FMG, in the version published on 25 August 2000 (BGBl. 2000 I, p. 1358), prohibits the importation of feedingstuffs which do not comply with the provisions governing feedingstuffs in force within Germany.
9. Paragraph 4(1)(4) of the FMG allows the content of additives in feedingstuffs to be fixed by way of regulation.
10. Under Paragraph 4(5), first sentence, point 2(b) of the FMG, the marketing of feedingstuffs which fail to meet the requirements laid down by way of regulation pursuant to Paragraph 4(1)(4) is prohibited.
11. Paragraph 17a of the FMV, in the version published on 23 November 2000 (BGBl. 2000 I, p. 1605), establishes the maximum authorised level of additives in feedingstuffs as follows:
‘1. The level of additives in compound feedingstuffs, in relation to a dry extract content of 88% of complete feedingstuffs, shall not be lower than the minimum levels laid down in the annex to the applicable Community regulation under the heading “minimum content” and shall not exceed the levels laid down under the heading “maximum content”.
The first sentence shall also apply to the minimum and maximum levels laid down in Column 6 of Annex 3.
The calculation of the maximum levels of additives must include substances occurring naturally in the feedingstuffs that are identical to those of the additives.
2. Subject to the provisions of subparagraph (3), the maximum levels of additives laid down may be exceeded if, when the supplementary feedingstuffs are being used with other feedingstuffs in a manner in accordance with their purpose, the maximum level of additives is respected.
3. By way of derogation from subparagraph 2,
1.	the level of vitamin D … may be up to five times the fixed maximum level, or
2.	…
(d)	up to 200 000 IU/kg in supplementary feedingstuffs intended for all species or categories of animals as a short-term vitamin supplement
in the case where the feedingstuff has one or several compositional characteristics, particularly in regard to gross protein, lactose or mineral content, which ensure that when it is administered the additive levels laid down will not be exceeded and that there is no practical possibility that the feedingstuff will be administered to any other species.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
12. Denkavit distributes in Germany a supplementary feedingstuff for piglets named ‘Denkavit Kern Ferkel 125’ (‘the contested feedingstuff’).
This feedingstuff contains 16 000 IU/kg of vitamin D 3 .
According to its labelling and directions for use, it is intended for administration to animals only after being mixed with simple feedingstuffs in a ratio of 1 to 7.
13. The contested feedingstuff is manufactured by a sister company of Denkavit established in the Netherlands.
According to the order for reference, the contested feedingstuff meets the requirements laid down by Netherlands law in regard to supplementary feedingstuffs.
By contrast, the contested feedingstuff does not comply with the relevant German provisions, in particular Paragraph 17a(3)(1) of the FMV.
Under this latter provision, as interpreted by the German authorities, the vitamin D content may not exceed five times the maximum level laid down, in the case of feedingstuffs for animals such as those in issue in the main proceedings, at 2 000 IU/kg, that it is say, it may not exceed 10 000 IU/kg.
14. In the course of an inspection carried out in May 1991, the Landesamt für Ernährungswirtschaft und Jagd (Regional Office for the Food Industry and Hunting) of Land Nordrhein-Westfalen raised an objection to the contested feedingstuff by reason of its vitamin D 3
content.
It argued that excessive dosage of that vitamin in the amount of 6 000 IU/kg would lead to a ban on its sale and use pursuant to Paragraph 4(5), first sentence, point 2(b), of the FMG.
15. On 23 March 1993, Denkavit brought proceedings before the Verwaltungsgericht (Administrative Court) Düsseldorf (Germany) in which it sought a declaration that it was entitled under Articles 28 EC and 30 EC to import and market the contested feedingstuff.
16. Following dismissal of its action by decision of 21 May 1996, Denkavit appealed to the Oberverwaltungsgericht (Higher Administrative Court) of Land Nordrhein-Westfalen (Germany).
That court upheld Denkavit’s appeal by decision of 13 December 2000.
17. Land Nordrhein-Westfalen brought an appeal on a point of law (‘Revision’) against that decision before the Bundesverwaltungsgericht (Federal Administrative Court).
As it formed the view that the issue involved matters of Community law, the Bundesverwaltungsgericht decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. Are national provisions of the law on feedingstuffs, which prohibit imports of a feedingstuff manufactured lawfully in another Member State on the ground that the level of vitamin D 3
does not comply with the law of the State of importation, to be assessed directly in the light of Articles 28 EC and 30 EC?
2. Is Article 19 of Directive 70/524/EEC … to be interpreted as permitting the prohibition of imports of a supplementary feedingstuff manufactured lawfully in another Member State on the ground that it exceeds the level of vitamin D 3
permitted in the Member State of importation?
3. Does the answer to Question 2 turn on whether the difference in the rules in the Member State of manufacture and the Member State of importation results from the fact that different use has been made of the possibility to lay down rules under Article 12(2)(b) of Directive 70/524/EEC?’
Preliminary observations
18. By its three questions, the Bundesverwaltungsgericht is asking in substance whether Articles 28 EC and 30 EC or the provisions of Directive 70/524 preclude a measure by which a Member State prohibits the marketing, within its territory, of a supplementary feedingstuff which is lawfully manufactured in another Member State and the vitamin D 3
content of which is at variance with the provisions in force in that first State.
19. It must first of all be pointed out that it appears from the case-file that the fact that the contested feedingstuff does not comply with the provisions in force in the State of importation, in casu the Federal Republic of Germany, results from a divergence between the provisions in force in that State and those in force in the State in which that feedingstuff was manufactured, in casu the Kingdom of the Netherlands, by reason of the fact that the Federal Republic of Germany has exercised the option to lay down rules made available by Article 12(2)(a) and (b) of Directive 70/524.
For its part, the Netherlands Government points out, in response to a question put by the Court, that the contested feedingstuff was placed on the market in the Netherlands pursuant to the general rule laid down in Article 12(1) of Directive 70/524.
20. In the light of the foregoing, it appears that the interpretation of Article 12(1) and (2) of Directive 70/524 and the relationship between those two provisions constitute the key elements in resolving the dispute in the main proceedings.
Article 12 of Directive 70/524 is closely linked to Article 19 thereof, which requires Member States to ensure that feedingstuffs which conform to that directive are subject only to the marketing restrictions provided for therein.
The question which arises is therefore whether the first subparagraph of Article 12(2) of Directive 70/524 constitutes a marketing restriction within the terms of Article 19 thereof.
21. It must be remembered that, by its second and third questions, the Bundesverwaltungsgericht is in substance asking whether the combined provisions of Articles 12 and 19 of Directive 70/524 preclude a ban on importation such as that laid down in the German legislation.
In order to provide a useful reply to the Bundesverwaltungsgericht, it is necessary to examine those questions together and understand them as seeking to establish whether Article 19 of Directive 70/524 authorises a Member State which has adopted legislation pursuant to the first subparagraph of Article 12(2) of that directive to prohibit the importation of a supplementary feedingstuff marketed in another Member State by virtue of Article 12(1) of that directive, by reason of the fact that its vitamin D 3
level exceeds that authorised in that first State.
22. Second, it should be pointed out, as the Advocate General has correctly noted in point 23 of his Opinion, that it will be necessary to reply to the first question, which concerns the interpretation of Articles 28 EC and 30 EC, only if it is established that the provisions of Directive 70/524 do not stand in the way of a ban on imports such as that in issue in the main proceedings.
23. In those circumstances, the order of the questions should be reversed, with the second and third questions, as reformulated, being examined first and then, if necessary, the first question.
The second and third questions
24. By its second and third questions, as reformulated, the Bundesverwaltungsgericht asks whether Article 19 of Directive 70/524 allows a Member State which has laid down rules pursuant to the first subparagraph of Article 12(2) of that directive to prohibit the importation of a supplementary feedingstuff which is marketed in another Member State in accordance with Article 12(1) of that directive, by reason of the fact that its vitamin D 3
content exceeds that authorised in that first State.
25. The German Government submits that Article 19 and the first subparagraph of 12(2) of Directive 70/524 allow it to ban imports of the contested feedingstuff.
The option to lay down rules which that latter provision makes available for Member States does in fact constitute a marketing restriction provided for by the directive itself and therefore justified by Article 19 thereof.
Consequently, importation into the national territory of a Member State of a feedingstuff authorised by another Member State under the general rule set out in Article 12(1) of Directive 70/524 may be prohibited by the first State on the basis of national provisions adopted pursuant to Article 12(2).
26. Denkavit and the Commission of the European Communities take the opposite view.
They also express doubts as to whether the measures adopted by the German Government for the purpose of transposing Article 12 of Directive 70/524 in the national legal order are compatible with Community law.
27. In order to determine whether recourse by a Member State to the possibility of laying down rules provided for in the first subparagraph of Article 12(2) of Directive 70/524 allows that State to ban imports of a product which complies with Article 12(1), it is necessary to examine the scope and content of Article 12(1) and (2) and Article 19 of Directive 70/524, as well as the relationship between those different provisions.
28. It must first of all be pointed out that Article 12(1) of Directive 70/524 provides that supplementary feedingstuffs, diluted as specified, may not contain levels of additives which exceed those fixed for complete feedingstuffs.
So far as concerns the vitamin D 3
level in complete feedingstuffs for pigs, this is fixed, by Annex I to Directive 70/524, at 2 000 IU/kg.
As is clear from the term ‘diluted’ contained in Article 12(1), the maximum level refers to the supplementary feedingstuff in its diluted form.
In other words, it relates to the supplementary feedingstuff after it has been mixed with a simple feedingstuff, in accordance with its purpose and directions for use.
29. In this case, it appears from the case-file that the contested feedingstuff contains, in its undiluted form, 16 000 IU/kg of vitamin D 3
and that, after being mixed with simple feedingstuffs, in accordance with the directions for its use, in a ratio of 1 to 7, it has a level of that vitamin equivalent to 2 000 IU/kg.
It therefore complies with the general rule laid down in Article 12(1) of Directive 70/524.
30. Member States are required under Article 19 of Directive 70/524 to ensure that feedingstuffs which comply with the provisions of that directive are subject only to the marketing restrictions that are provided for therein.
It is for that reason necessary to examine whether the first subparagraph of Article 12(2) of Directive 70/524 constitutes a marketing restriction within the terms of Article 19 and whether a Member State which has had recourse to that provision may prohibit the importation of a supplementary feedingstuff which has been placed on the market in another Member State pursuant to Article 12(1) of Directive 70/524.
31. It should be noted in this regard that Article 12(2) of Directive 70/524 authorises Member States, in certain cases, to allow the vitamin D levels of supplementary feedingstuffs to exceed the maximum levels laid down for complete feedingstuffs.
According to the 10th recital in the preamble to Directive 70/524, in its original version, such derogations are permissible only in so far as they are acceptable for animal and human health.
32. For that purpose, Member States have two possibilities.
First, they may prescribe, pursuant to heading (a) of the first subparagraph of Article 12(2) of Directive 70/524, that the levels of D vitamins in supplementary feedingstuffs that are available to all users may exceed the maximum levels fixed for complete feedingstuffs on condition that they do not exceed five times the fixed maximum level, that is to say, in the circumstances of the dispute in the main proceedings, 10 000 IU/kg.
Second, Member States may, under heading (b) of the first subparagraph of Article 12(2), prescribe that, in the case of supplementary feedingstuffs which are intended for certain species of animal and which a Member State is permitted to authorise to be made available within its territory to all users because of special feeding systems, the level of D vitamins may exceed the limits fixed but may not exceed 200 000 IU/kg.
33. The unavoidable conclusion is that neither the wording of the first subparagraph of Article 12(2) of Directive 70/524 nor the contextual elements or purpose of that provision allow it to be established that recourse by a Member State to the possibility of laying down rules made available by that provision authorises that Member State to prohibit the importation of a supplementary feedingstuff which has been placed on the market in another Member State pursuant to Article 12(1) of Directive 70/524.
34. It is first of all necessary to point out that, while they govern the authorised levels of additives in supplementary feedingstuffs, paragraphs 1 and 2 of Article 12 of Directive 70/524 do not cover identical situations.
Article 12(1), which establishes the general rule, applies to supplementary feedingstuffs in their diluted form.
Article 12(2), on the other hand, allows the levels of certain additives in supplementary feedingstuffs to be exceeded in specified circumstances, but applies to those supplementary feedingstuffs in their pure form.
The wording of Article 12(2) indicates that this is an additional liberalisation vis-à-vis the rule set out in Article 12(1) and in no way constitutes a limitation on that rule.
35. Next, in regard to the context, it should be pointed out, as the Advocate General has correctly noted in point 44 of his Opinion, that, according to the wording of Article 12(3) of Directive 70/524, the compositional characteristics of the feedingstuff must, ‘where paragraph 2 is invoked’, ensure that the maximum levels fixed for complete feedingstuffs are not exceeded in any event.
While it is evident that such a precaution does not appear to be necessary in the case of supplementary feedingstuffs for which a rule on dilution is provided, to the extent to which such a rule in itself guarantees that an appropriate concentration will be achieved, it is, by contrast, necessary where no such dilution is provided for.
This finding corroborates the interpretation to the effect that Article 12(2) cannot be treated as constituting a limitation on the general rule set out in Article 12(1).
36. Finally, with regard to the objective pursued by Article 12(1) and (2) of Directive 70/524 and by the directive itself, reference should be made to the fourth and ninth recitals in its preamble, which stress the functioning of the internal market and the protection of animal and human health.
37. As the Commission has correctly pointed out, the proper functioning of the internal market could be seriously compromised if a Member State were able, under the national rules adopted pursuant to the first subparagraph of Article 12(2) of Directive 70/524, to impose on feedingstuffs for which a dilution ratio is provided conditions additional to those indicated in Article 12(1).
With regard to the protection of animal and human health, there cannot be any greater risk in allowing the marketing of a supplementary feedingstuff which contains, in its undiluted form, 16 000 IU/kg of vitamin D 3
and which, following dilution, has a level of that vitamin equivalent to 2 000 IU/kg than there is in the case of a feedingstuff which, pursuant to heading (b) of the first subparagraph of Article 12(2) of Directive 70/524, may contain as much as 200 000 IU/kg of additives.
38. In the light of the foregoing, the answer to the second and third questions must be that the combined provisions of Articles 12 and 19 of Directive 70/524 must be interpreted as precluding a measure by which a Member State prohibits the marketing within its territory of a supplementary feedingstuff lawfully manufactured in another Member State in accordance with Article 12(1) of that directive on grounds of its vitamin D level.
39. In view of the reply to the second and third questions, and for the reasons set out in paragraph 22 of the present judgment, there is no need to reply to the first question.
Decision on costs
Costs
40. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.
Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (First Chamber) rules as follows:
The combined provisions of Articles 12 and 19 of Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs, as amended by Council Directive 84/587/EEC of 29 November 1984, must be interpreted as precluding a measure by which a Member State prohibits the marketing within its territory of a supplementary feedingstuff lawfully manufactured in another Member State in accordance with Article 12(1) of that directive on grounds of its vitamin D level.