I —

As often happens, you are called upon, pursuant to Article 177, to rule on the application of a Community text by the authorities of a Member State to a particular case. Worded in abstract terms, the three questions which have been addressed to you by the Italian court concern the extent of the power which is left to the Member States by Council Directive No 74/63 of 17 December 1973 on the fixing of maximum permitted levels for undesirable sub-stances and products in feeding-stuffs. The Italian court is asking you whether, if it be that Article 5 of that directive gives Member States a discretionary power in that respect, the said Article 5 is not invalid as being contrary to the principle of freedom of movement of goods (Article 30 of the Treaty) and not justified by Article 36 of the Treaty. There is no point in dwelling at length on the considerations which led to the adoption of the directive in respect of which you are called upon for a ruling. Let me simply remind you that it was not possible for the adoption of the basic regulations on the common organizations of markets in agricultural, vegetable or animal products and in particular Regulation No 804/68 on milk and milk products' to settle all the ecological problems relating to the production of, free movement of, and trade in the products covered by those regulations. As is stated in the preamble to the directive, livestock production occupies a very important place in the agriculture of the Community and depends to a large extent on the use of appropriate good-quality feeding-stuffs. But the feeding of animals is increasingly connected with the use of additives and, moreover, the feeding-stuffs which are fed to them often contain, either naturally or because of the ill-considered addition of certain substances to the basic products of which they are composed, undesirable elements which can endanger animal health and, because of their presence in livestock products, human health. Now, the legislation concerning feeding-stuffs for animals, which directly affects the functioning of the common market in agriculture (Article 100 of the Treaty) varies considerably from one Member State to another and depends on developments in scientific or technical knowledge. Therefore it is necessary for the national provisions relating to feeding-stuffs to be brought into closer alignment or harmonized at Community level, the rules governing those products being an essential factor in the increase of productivity in agriculture. Additives in feeding-stuffs have been dealt with by Council Directive No 70/254 of 23 November 1970, as amended by Council Directive No 73/103 of 28 April 1973. As regards the setting of maximum levels for undesirable substances and products in feeding-stuffs, the Commission originally proposed that a regulation be adopted under Article 43 and, alongside that regulation, it proposed to the Council that a regulation concerning the marketing of feeding-stuffs be adopted. What actually happened was that the Council adopted a directive under Articles 43 and 100 of the Treaty, and no regulation specifically covering marketing was adopted. On 16 December 1976, the Council adopted Directive No 77/101 on the marketing of straight feeding-stuffs for animals. But that directive, published during the course of the proceedings, sets 1 January 1979 as the date by which the Member States must have brought into force the national provisions necessary to comply with it. The system introduced is as follows: the annex to the directive contains a list of the substances or products the presence of which beyond a certain level, also stated in the annex, in feeding-stuffs renders those feeding-stuffs undesirable and, accordingly, gives rise to a prohibition on the marketing of them. That list was drawn up by experts for each feeding-stuff, and the maximum content has been set in parts per million of unadulterated matter. The fact that a substance was not included in the annex at the time when the directive was adopted does not prevent the later ‘aggiornamento’ (bringing up to date) of the text. Since it is necessary constantly to adjust the contents of the annex to developments in scientific and technical knowledge ‘Member States should retain the power, if animal or human health is endangered to reduce temporarily the fixed maximum permissible levels or to fix maximum levels for other substances or products, or to prohibit the presence of such substances or products in feeding-stuffs’. That power is to be exercised in accordance with the provisions of Article 5. However ‘in order that a Member State should not abuse that power, possible amendments to the annex to this directive based on supporting documents should be decided on by emergency Community procedure’. The latter procedure is explained in Article 10 and it presupposes action on the part of a ‘Standing Committee for Feeding-stuffs’, according to detailed rules which are not wholly unlike the detailed rules governing the Management Committees contained in the basic regulations.