III —

At the ‘legislative’ level the applicants maintain that the Commission has exceeded or misused the powers conferred upon it by Articles 5 and 10 of the directive. The nature of the powers which the Commission derives from those articles must therefore be ascertained. We must bear in mind that Article 5 enables Member States, if a product not listed in the Annex presents a danger to animal or human health, to forbid, by means of a directly applicable measure, the presence of that product in feeding-stuffs or to fix a maximum permitted level. When the Member State concerned makes use of this power it must advise the other Member States and the Commission of the level fixed and of the reasons upon which the measure that it has adopted is based. Paragraph (2) of that Article provides that in accordance with the procedure laid down in Article 10, an immediate decision shall be made as to whether the Annex should be modified, but that so long as no decision has been made by either the Council or the Commission the Member State may maintain the measures it has implemented. It is therefore clear that the procedure laid down by Article 10 is itself dependent upon the work rate of the Standing Committee and that the adjective ‘immediate’, even if it is not intended to mean ‘at some future date’, admits of a rather flexible meaning in accordance with the use made of the procedure laid down by Article 10. That procedure involves the adoption of a decision by the Commission after consulting the Standing Committee for Feeding-stuffs. However, if that Committee does not deliver an opinion or where the Commission intends to enact measures which are not in accordance with the opinion given, it shall bring the matter before the Council which shall act by a qualified majority. If the Council has not adopted any measures within 15 days the Commission itself shall adopt appropriate measures and implement them forthwith, except where the Council has voted by a simple majority against such measures. The extracts of the minutes of meetings held by that committee between 15 October 1978 and the month of April 1978, which were produced at the request of the Court by the Commission, make it possible to reconstruct the proceedings of that committee as far as potassium nitrates are concerned. The ‘draft of the measures to be adopted’ submitted by the Commission's representative to the Standing Committee (Article 10 (3)) was apparently designed to fix limits for the levels of potassium nitrates. According to that provision the committee had two days within which to deliver its opinion on those measures. On 7 September 1976, the other delegations, according to the minutes quoted by the applicants and produced by the Commission, while expressing surprise and regret concerning the measures adopted by Italy ‘consider that the question whether or not it is necessary to limit the level of nitrates in feeding-stuffs can only be determined on the strength of an examination of scientific data compiled for that purpose’ and the chairman decided that the scientific data which the Italian delegation was requested to submit as soon as possible ‘shall be laid before the Scientific Committee for Feeding-stuffs as soon as it meets … The Opinion of the Scientific Committee shall be taken into consideration by the Commission's departments for the purpose of drawing up the appropriate proposals which will be submitted to the Standing Committee for Feeding-stuffs’. A committee of consultant experts, qualified to furnish the Commission with scientific information, had already begun working unofficially from the date when the first measures for implementing the Community programme for the harmonization of food laws were adopted. That committee was assigned a permanent role in the preparation of Community food legislation after it was officially established on 16 April 1974 (Official Journal of 25 May 1974, L 136, p. 1) as the Scientific Committee for Food [for human consumption]. On the other hand the Scientific Committee for Feeding-stuffs was not in existence on 7 September 1976; the setting-up of that committee may be traced to a Commission decision of 24 September 1976 (Official Journal of 9 October 1976, L 279, p. 35). Consequently its opinion had to be taken into consideration for the purpose of drawing up the appropriate proposals for submission to the Standing Committee and the latter had on several occasions recorded that this procedure met with its approval. Again, on 7 June 1977‘at the request of the delegations the chairman decides to postpone formulation of the opinion of the Standing Committee so that the observations submitted by the German delegation may be placed before the Scientific Committee and the latter may consider whether, it is necessary to modify its opinion’. On 1 February 1978 the Standing Committee had still not formally defined its position on the draft of the measures submitted to it by the Commission with a view to amending the Annex to Council Directive No 74/63 on the fixing of maximum permitted levels for undesirable substances and products in feeding-stuffs. The chairman, to whom the draft which became the Commission decision on the measures adopted by the Italian Republic had been referred, pointed out on 3 May 1978 that ‘according to Article 5 of Directive No 74/63 the Commission was under an obligation to decide immediately whether an amendment to the Annex was necessary; that from the outset the medical data supplied by Italy have proved to be inadequate; that the Commission, however, being anxious to take the necessary health precautions, has asked for the opinion of the Scientific Committee which has been obliged to wait for the expert evidence; that when the Scientific Committee has delivered its opinion, it is for the Commission to take the necessary measures forthwith’. This led him once again to postpone for a week the formulation of the opinion of the Standing Committee. Finally, the Committee delivered a concurring opinion; the Commission was then able to adopt its decision of 30 May 1978. Thus the Standing Committee had never, before the month of May 1978, formally voted on that draft. Accordingly there could be neither a concurring opinion nor an unfavourable opinion nor even a case where ‘no opinion was delivered’, that is to say an opinion for which there could not be shown to have been the requisite majority (41 votes) for a concurring or unfavourable opinion. Of the Standing Committee's delay in voting it cannot be said that this was a case where ‘no opinion was delivered’. Furthermore, the only measures which the Commission intended to adopt before the month of May 1978 consisted, as I have already mentioned, in an amendment to the Annex to the directive: even if the Standing Committee had voted and the Commission had disregarded that opinion, the only effect of those measures would have been to fix a new maximum permitted level for nitrates in complete feeding-stuffs for piglets up to the age of four weeks, which would not have amounted to an express decision on the measure adopted by the Italian authorities. The applicants suggest that the Commission, instead of adopting the procedure laid down in Articles 5 and 10, which they regard as the ‘urgent’ procedure, should have availed itself of the ‘scientific’ procedure provided for in Articles 6 and 9. It is in fact very likely that at the outset the wrong course was taken, but, once having embarked upon the procedure laid down in Article 10, the latter had to be carried through to completion. Even if the Commission had elected to follow the Article 9 procedure it should have followed at the same time the procedure laid down by Article 10 since Italy had adopted unilateral measures. I do not, moreover, quite see how the Commission could have applied the procedure laid down in Articles 6 and 9 without at the same time initiating the procedure laid down in Articles 5 and 10, and in my view it is very difficult to distinguish between those two procedures. On the other hand, the applicants are perfectly justified in pointing out that the directive on undesirable substances originates in the idea of securing a higher degree of Community integration. The Court itself held (paragraph 35 of its judgment of 5 October 1977, [1977] ECR 1576) that ‘where, in application of Article 100 of the Treaty, Community directives provide for the harmonization of the measures necessary to ensure the protection of animal and human health and establish Community procedures to check that they are observed, recourse to Article 36 is no longer justified and the appropriate checks must be carried out and the measures of protection adopted within the framework outlined by the harmonizing directive’; but that simply means that the reasons which might justify the measures adopted by Member States under Article 36 must continue to guide the action of the Commission when it makes use of Article 10. Consequently, the Commission finds that the duties which it has to perform conflict with each other: on the one hand, it must ensure the free movement of goods, which in fact seems to me to be a superior rule or principle of Community law, but, on the other hand, it must take proper account of the essential requirements for the protection of human or animal life and health, a task which it has so to speak inherited from the Member States in the specific field of feeding-stuffs. The applicants maintain that a mere glance at the scientific file forwarded to the Commission by the Italian authorities on 7 October 1976 is sufficient proof that the application made by these authorities for amendment is wholly without foundation; in fact all the scientific data which that file contains were already known when the directive was adopted. Similarly, no doubt in answer to the observation in my opinion of 6 July 1977 ([1977] ECR 1583), they point out appropriately that, according to Commission Regulation No 804/76, as from 15 April 1976 feeding-stuffs had to contain not less than 60 % skimmed-milk powder in order to qualify for the Community aid provided for in Article 10 (3) of Regulation No 804/68. In other words, it was in the interest of producers, as from April 1976, to reduce the amounts of powdered whey used for the manufacture of their compound feeding-stuffs and the nitrate content was henceforth of necessity lower than it had been previously. I do not know whether this producers' interest necessarily resulted in the reduction which the applicants mention. In any case, the question of the harmlessness of the nitrates might be raised again in the light of developments in scientific knowledge. If their harmlessness had been proved beyond doubt before the directive on ‘undesirable substances’ was adopted, such a fact ought not have escaped the notice of the distinguished members of the Standing Committee and the Scientific Committee. For my part I can only with difficulty accept that those persons met merely for the pleasure of meeting or that the supplementary research which they carried out was unnecessary from the outset. I said in my opinion in the above-mentioned Tedeschi Case, that it did not seem to me that there was anything illegal in the system organized by Article 5 of the directive; nevertheless, I did not rule out the possibility that the Member States or the Commission might abuse that system. Can one complain because the Commission endeavoured to obtain, and in the end did obtain, a concurring opinion from the Standing Committee, instead of risking a decision without that committee's having formally expressed an opinion? Taking into account its responsibilities in this field I do not think so. Otherwise it would have to be supposed that, when the Commission set up the Scientific Committee on 25 September 1976, its actual aim was to bring to a halt the work of the Standing Committee on the maximum permitted levels for nitrates. The applicants themselves do not claim that it was unlawful for the Commission to set up the Scientific Committee or for the Commission or the Standing Committee to consult it. Thus the use which the Commission made at the ‘legislative’ level of Articles 5 and 10 of the directive do not seem to amount to a sufficiently serious abuse of the concept of ‘protection of public health’ such as to render it liable.