III —

As the Commission shows, lactic acid and citric acid are basically flavour modifiers: they make the foodstuff treated more acid. As such they unfortunately escape all Community rules for, at the moment, there is no directive on that issue. 1) On the other hand, as Mr Grunert asserts, they are according to the circumstances referred to by one or two Council directives. Lactic acid is mentioned both in the list contained in the annex to the so-called “preservatives” Council Directive of 5 November 1963 as amended (Official Journal, English Special Edition 1963-1964, p. 99) as a substance “which may have a subsidiary preservative property” and in that contained in the annex to the so-called “antioxidants” Council Directive of 13 July 1970 as amended (Official Journal, English Special Edition 1970 (II), p. 429) as a substance “capable of increasing the antioxidant effect of other substances”. Citric acid is mentioned only in the list contained in the annex to the “antioxidants” directive in the same capacity as lactic acid. 2) What is the scope of those references? Is the effect of the directives which I have just cited to permit the use of all the substances which they list, as the accused claims, or only to prohibit the use of those which they do not mention, as the Ministère Public maintains? The directives in question in the present case, just as the directive on colouring matters (Council Directive of 23 October 1962, as amended; Official Journal, English Special Edition 1959-1962, p. 279) and that on emulsifiers (Council Directive of 18 June 1974, as amended; Official Journal L 189 of 12 July 1974, p. 1) are horizontal directives. That means that they concern the use of a specific category of additives in foodstuffs in general. Directives of that type contain in their annexes lists of substances which have as their main or subsidiary quality the properties with which the directives are concerned. The substances so listed are according to Article 1 of each of the directives the only ones which the Member States may authorize for use in foodstuffs intended for human consumption. Conversely, the use in foodstuffs, for the purposes provided by each directive, of substances which are not included in the lists thereto annexed is prohibited throughout the Community. That common prohibition of substances not mentioned starts the process which, according to their title, constitutes the aim of the directives and, to the same extent, leads to improvements in the protection of the health of consumers and the approximation of conditions of competition, which results are sought by-means of the harmonization of laws, as is apparent from their recitals. 3) The Council, however, did not think it possible to achieve closer harmonization straight away. Both the “preservatives” directive, in Article 2 (2), and the “antioxidants” directive, in Article 9, state in fact in similar terms that their provisions shall affect neither the national laws specifying the foodstuffs to which the substances listed in their annexes may be added nor those governing the conditions for the addition of those substances. Those directives have placed only one restriction, which seems derisory, on the free choice by Member States of the foodstuffs for which they may authorize the use of a specific additive. That restriction is to be found at the end of Article 2 (2) of the “preservatives” directive and of Article 9 of the “antioxidants” directive. According to those provisions national laws “must not have the effect of totally excluding the use in foodstuffs of any of the substances” listed in the annexes. It thus suffices for a Member State to allow the use of each Community additive in only one foodstuff in order to comply with its obligations. As regards the additives in question, according to the information supplied by the Commission, the French laws meet those requirements. Thus in particular: Lactic acid is authorized incidentally by a circular of 27 January 1930 as a preservative in sodas and lemonades and by a circular of 17 June 1965 as an antioxidant in confectionery; Citric acid is authorized as an antioxidant in mustard under a decree of 10 September 1937. 4) As matters now stand, and as a result of that continued existence over a wide spectrum of differences between national laws, the objective of free movement of foodstuffs, which is also mentioned in the preambles to the directives, can be achieved only partially. Technical obstacles to trade resulting from divergences between the laws continue since the prohibition on the use of an additive in a foodstuff extends not only to national production but also to imports. In order fully to guarantee in this field the free movement of goods, which it cannot be too frequently repeated is one of the corner-stones of the Community, the Community legislature must embark upon the second stage of the approximation of laws which it proclaims at the end of the preambles to the directives under consideration. That stage must deal with the individual foodstuffs to which the additives listed in the annexes may be added and with the conditions under which the addition of those substances may take place. Another way of arriving at the same result, we have been told, would be to include the particulars which I have just mentioned in vertical directives which relate to a specific foodstuff. Thus the use of lactic acid and citric acid is or should be authorized and the conditions of such use defined as regards grape juice (under Council Directive No 75/726 of 17 November 1975, as amended; Official Journal L 311 of 1 December 1975, p. 40) and as regards caséines and caseinates (pursuant to a proposal for a directive of 30 January 1979, Official Journal C 50 of 24 February 1979, p. 5). However, no such vertical directive exists for pork-butcher's meat.