3.

There is no doubt that Directive 74/329 allows Member States to maintain such a ban and to reject an application for authorization. Like the three other basic directives on additives — Council Directive of 23 October 1962 on colouring matters (Official Journal, English Special Edition 1959-1962 p. 279), Council Directive 64/54 of 5 November 1963 on preservatives (Official Journal, English Special Edition 1963-1964, p. 99) and Council Directive 70/357 of 13 July 1970 on antioxydants (Official Journal, English Special Edition 1970 (II), p. 429) — the directive on emulsifiers is intended to further the approximation of national laws whose disparities may hinder the free movement of foodstuffs and creat conditions of unfair competition. The harmonization must give priority first of all to ‘the protection of public health’, then to ‘the protection of the consumer against falsification’ and, ‘so far as health protection allows’, to ‘economic and technological needs’ (third recital). For that purpose the directive envisages two stages : — ‘as a first stage, ... the establishment of a single list of emulsifiers, stabilizers, thickeners and gelling agents which may be authorized by the Member States for the treatment of foodstuffs... ’ (fourth recital); — ‘during a second stage’, the Council must decide on conditions for the use of each of the agents or in other words the foodstuffs to which they may be added and the conditions under which they may be added (sixth recital and Article 4). During the first stage, the directive prohibits the Member States from authorizing the use of additives not expressly listed in Annex I thereto. On the other hand, it in no way requires them to authorize the use of every additive referred to therein. In this regard, the title of the directive, the wording of the fourth recital of its preamble and Annex I are unambiguous: it is a question only of drawing up a list of agents ‘which may be used in foodstuffs’. That literal interpretation is confirmed by Article 2 (1) which states that ‘Member States shall authorize the use as emulsifiers, stabilizers, thickeners and gelling agents in foodstuffs intended for human consumption, of only those substances listed in Annex I... ’. The initial purpose of the directive is therefore solely to require the Member States to refrain from doing something. However, since the Council has still not adopted the measures needed to pass to the second stage of harmonization, the Member States must for the time being determine not only the foodstuffs to which the additives may be added but also the conditions under which they may be used. Does the latitude which they are thus given still allow them to maintain a ban on use? Unlike the three other directives on additives, which in giving such latitude prohibit the Member States (in respectively Articles 1 (2), 2 (2) and 9) from completely excluding the use of one of the additives listed in their annexes, Directive 74/329 contains no provision of that kind. In Kampfmeyer's view, the absence of such a provision cannot be interpreted as giving the Member States freedom to impose a general and absolute ban without impairing the effectiveness of the directive. In support of its view it relies on the effect of the procedure laid down in Article 5 which Member States must observe each time they wish to ban the use of an additive listed in Annex I; in principle the directive allows the use of all the additives listed in Annex I; therefore, in its view, the only way of completing banning use left open to the Member States is that provided for in Article 5 for the protection of public health. That argument must be rejected. In its judgment in Case 88/79 Ministère public v Grunert [1980] ECR 1827 and in Case 108/80 Ministère public v Kugelmann [1981] ECR 433 the Court placed a token limit on the right of the Member States to regulate the use of additives based on the express proviso in Articles 2 (2) and 9 of the directives on preservatives and antioxydants. Consequently, it must be recognized that, in the absence of a provision of the same kind in Directive 74/329, there is nothing to prevent a Member State from maintaining a complete ban on the use of one of the additives listed in Annex I, such as the ban imposed by the national legislation in question. As far as those additives are concerned, the reservation cannot be inferred from the provisions or the scheme of the directive but must be inferred from the general interim powers retained by the Member States during the first stage of harmonization as a result of the Council's inaction. As regards the directive's effectiveness at the first stage of the approximation of laws envisaged by the directive, this clearly resides in the prohibition imposed on the Member States preventing them from authorizing any additive not mentioned in Annex I. In addition, the Member States are bound by the provisions of the directive each time when, following an application, for example, they authorize the use of one of the additives referred to in Annex I. In such a case, the harmonization for which it provides, even though embryonic, has the following two effects. First, a Member State which intends to withdraw authorization which it has granted is now required to observe the Community procedure for temporarily suspending the authorization to use a particular additive; the Council, acting unanimously, may then decide to impose a permanent ban (Article 5 of the directive). A Member State must follow that Community procedure in order to prohibit the use of an additive previously authorized. Secondly, the directive provides that the Member States may not prohibit the importation of an additive listed in Annex I ‘for the sole reason that they consider the labelling inadequate’ if it satisfies the conditions laid down in the directive itself (Article 8 (4)). Obviously, those provisions, let us remember, apply only to additives listed in Annex I, the use of which has been authorized by a Member State; the directive, as applied at present, allows the Member State to maintain any previous prohibition.