OPINION OF MR ADVOCATE GENERAL REISCHL

DELIVERED ON 17 DECEMBER 1980 ( 1 )

Mr President,

Members of the Court,

This reference for a preliminary ruling, which the Cour d'Appel [Court of Appeal], Colmar, submitted to the Court by an interlocutory judgment of 30 November 1979, raises a problem which to a large extent is the same as the one on which the Court recently gave a ruling at the request of the Tribunal de Grande Instance [Criminal Court of First Instance], Strasbourg, in the judgment of 12 June 1980 in Case 88/79 Ministère Public v Grunert [1980] ECR 1827.

Like Mr Grunert, Mr Kugelmann is accused of offering for sale and selling, knowing its intended use, a product suitable for adulterating foodstuffs for human consumption, which constitutes a criminal offence under the Law of 1 August 1905 on frauds and adulteration relating to products or services, amended by Law No 78/23 of 10 January 1978. This product, described as “cocktail jelly” and intended for use as an additive in the manufacture of jelly for prepared meats, was sold to a manufacturer of meat products by Mr Kugelmann, who, like Mr Grunert, manufactures and sells additives for meat products. It is regarded as suitable for adulterating foodstuffs for human consumption because it contains sorbic acid.

As Advocate General Mayras explained in his opinion in the Grunert case, under Article 1 of the Order of 15 April 1912 implementing the Law of 1905, as amended by Order No 73/138 of 12 February 1973, a product intended for human consumption (such as an additive to meat products) may not be sold if chemical substances have been added to it other than those whose use has been authorized by orders adopted jointly by several Ministers. But, as in the case of lactic and citric acid, which are at issue in the Grunert case, no authorization for the use of sorbic acid in additives for meat products has been issued. Thus its use for that purpose is forbidden in France.

Mr Kugelmann, like Mr Grunert, does not dispute the offences alleged against him. But, like Mr Grunert, he pleads that the effect of Council Directive 64/54/EEC 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) is that, whilst Member States may authorize only the preservatives listed in the annex to the directive (where sorbic acid is the first substance mentioned), they may not adopt provisions the effect of which is to exclude totally the use in foodstuffs of one of the preservatives listed in the annex. Therefore, he argues, sorbic acid, which is expressly mentioned in the annex to the directive, may not be excluded from the list of substances which may be used as preservatives in France; hence its use cannot lead to criminal prosecution under the Law of 1905.

The Cour d'Appel, Colmar, considered the question whether Directive 64/54 requires Member States to authorize in their national legislation all preservatives which may be used in foodstuffs and are listed in that directive or whether the Member States must simply prohibit the use of all substances not included in the list. In view of this issue concerning the interpretation of a provision of Community law the court stayed the proceedings and referred the following question to the Court of Justice under Article 177 of the EEC Treaty:

“Does the fact that the national legislation of a Member State of the EEC prohibits the use of a preservative used in foodstuffs intended for human consumption, when the use of that preservative is authorized by the Community Directive of 5 November 1963, constitute a breach of the rule regarding the supremacy of Community law over internal law which may be relied on by a Community subject prosecuted for adulteration of foodstuffs with that preservative (sorbic acid)?”

I —

In the judgment to which I referred at the beginning, namely that of 12 June 1980 in the Grunert case, the Court held that Directive 64/54 of 5 November 1963 requires Member States not to authorize the use in foodstuffs of preservatives which are not included in the list annexed to that directive. The Court noted that Article 2 (2) of that directive 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. Thus Directive 64/54 did not require Member States to authorize the use of the preservatives listed in the annex thereto in all foodstuffs. 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 of any of the preservatives included in that list, or of preventing all marketing of such a substance.

Therefore, in the case of sorbic acid, with which the present proceedings are concerned, as in the case of lactic acid and citric acid, the French provision cannot be challenged on the ground that it has contravened that obligation, for according to the information given to us by the French Government and the Commission the use of sorbic acid in France is permitted inter alia in the following foodstuffs: chestnuts, fruit prepared with sugar for use in yoghurt, frozen sugar confectionery.

II —

With regard to the direct effect of the directive the Court held in its judgment in the Grtmert case that the provisions of Directive 64/54 may be relied upon before national courts in so far as they do not allow Member States to prohibit absolutely the use in foodstuffs intended for human consumption of any of the preservatives included in the list appearing in the annex thereto, or to prevent all marketing of such a substance. The direct effect which is thereby ascribed to the directive is thus confined to cases in which a Member State prohibits absolutely the use in foodstuffs intended for human consumption of any of the preservatives listed in the annex to the directive or prevents all marketing of such a substance, unless there is no technological reason for using such preservative in foodstuffs produced and consumed in its own territory (the second sentence of Article 2 (2) of the directive, as amended by Article 1 (1) of Council Directive 67/427/EEC of 27 June 1967 (Official Journal, English Special Edition 1967, p. 169)). An individual cannot therefore rely on the directive in order to have the charge dismissed in criminal proceedings instituted under provisions of domestic criminal law which are not contrary to the directive in question.

I therefore propose that the following answer be given to the question submitted by the Cour d'Appel, Colmar:

1. Council Directive 64/54 of 5 November 1963 does not prevent Member States from prohibiting the use in foodstuffs intended for human consumption of the products listed in the annex thereto. However, Member States' freedom to prohibit or to authorize the use of such substances may not have the effect of totally excluding the use in these foodstuffs of one of those preservatives or of preventing all marketing of such a substance, except where there is no technological reason for such use.

2. The provisions of the directive may be relied upon before national courts only in so far as they require Member States to authorize the use of each preservative mentioned in the list in the annex thereto in at least one foodstuff of its choice — except where there is no technological reason for its use — and not to prevent all marketing of such a substance.

( 1 ) Translated from the German.