CELEX: 61979CC0088
Language: en
Date: 1980-04-24
Title: Opinion of Mr Advocate General Mayras delivered on 24 April 1980. # Criminal proceedings against Siegfried Grunert. # Reference for a preliminary ruling: Tribunal de grande instance de Strasbourg - France. # Approximation of laws: preservatives. # Case 88/79.

OPINION OF MR ADVOCATE GENERAL MAYRAS
      DELIVERED ON 24 APRIL 1980 (
            1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      The present request for a preliminary ruling will allow the Court to define the scope of the duties of the Member States in relation to directives on the harmonization of national laws on additives authorized for use in foodstuffs.
      
               I — 
            
            
               The case has its origin in an inspection carried out on 13 August 1975 by the Service de la Répression des Fraudes [service for the prevention of fraud] of the Département du Nord. The inspection related inter alia to a preservative salt used in pork-butcher's meat and curing, which is manufactured and sold by the ADITEC Company of Strasbourg. That company, of which Siegfried Grunert is the Managing Director, makes products intended for the food industry and in particular additives for pork-butcher's meat. The analyses carried out showed that one of the preservatives which the company had sold contained lactic acid and citric acid.
               The French legislation does not allow the use of those substances in pork-butcher's meat. Article 1 of the Décret of 5 April 1912 as amended, being a public administrative regulation applying the Law of 1 August 1905 on the prevention of fraud, prohibits the addition to foodstuffs of all substances which have not been given prior authorization. That is the so-called principle of positive lists of additives.
               It follows from that provision that an additive may be used only when such use is declared lawful by decisions taken in common by several Ministers, including those responsible for agriculture and public health, after hearing the opinion of the Conseil Supérieur d'Hygiène Publique de France [French Supreme Council for Public Hygiene] and the Académie Nationale de Médecine [National Academy for Medicine]. The procedure is thus particularly strict.
               Since the use of lactic acid and citric acid in preservatives intended for pork-butcher's meat has not been authorized by any provision it is therefore prohibited. In those circumstances Mr Grunert, as the person liable in criminal law for the acts of the company, was brought before the Second Criminal Chamber of the Tribunal de Grande Instance, Strasbourg, charged with adulterating foodstuffs contrary to Article 3 of the Law of 1 August 1905.
               The accused has never challenged the facts upon which he is charged but has claimed that the French legislation is contrary to Council Directives No 64/54 of 5 November 1963 and No 70/357 of 13 July 1970 which in his view authorize the use in France of lactic acid and citric acid in additives intended for pork-butcher's meat. The fact that Community law has precedence over national provisions to the contrary, together with the direct effect of certain provisions contained in directives as recognized by the case-law of this Court, leads the defendant to believe that he has certain individual rights upon which he may rely at law.
               Since the Ministère Public [Public Prosecutor's Department] denies that the directives in question have the scope which Mr Grunert attributes to them, judgment in the action thus depends on their interpretation. The Tribunal de Grande Instance, Strasbourg, considered it preferable to ask this Court under the second paragraph of Article 177 of the Treaty:
               “Whether the Member States were under an obligation to authorize in their national law all such preservatives for use in foodstuffs intended for human consumption as were listed in the said directives or whether they only had to prohibit the use of all substances not included in the nomenclatures adopted by the EEC, and,
               If appropriate, whether a Community citizen adversely affected by national legislation which is contrary to the Community directive may plead that the national legislation is inapplicable to him.”
            
         
               II — 
            
            
               The first question from the court making the reference calls for a preliminary observation. Mere perusal of it clearly shows that it relates to the use in foodstuffs of the substances listed in the annexes to the directives. It does not relate to their marketing.
               As I have shown, it is apparent from the file that the business of the company managed by Mr Grunert is not the manufacture of pork-butcher's meat, as the Commission thought, but concerns an earlier stage, that of the production and marketing of additives for those foodstuffs. The company ADITEC thus does not itself use additives in foodstuffs intended for human consumption but markets them. The Netherlands Government has clearly grasped this in answering the question from the point of view of the marketing of preservatives and antioxidants.
               Should we therefore re-word that question and answer it as if it referred to marketing and not to use?
               On the authority of the cases in which this Court has allowed itself to depart from the wording of questions put by national courts, as listed by Mr Advocate General Warner in his opinion in the Greenwich case (Case 22/79, Greenwich Film Production ν SACEM and Société des Editions Labrador), I do not think we may do so. The question, the meaning of which is free from all ambiguity, is worded in general terms and relates solely to Community law. It does not raise an issue of interpretation of a provision of Community law which is obviously inapplicable to the facts established by the national court. Nor, finally, does it omit to refer to a provision of Community law which is obviously applicable to the facts. In those circumstances the interpretation of the directives which I shall propose will be confined to the use of the additives and will not concern their marketing.
               I should, however, like to add that the distinction seems quite artificial from the practical point of view. If the prohibition by French law of the use of certain acids in additives intended for a particular foodstuff is not contrary to Community law, the marketing in France of those additives has no sense. Unless they deliberately contravene their national legislation French manufacturers of foodstuffs will not buy an additive which they are prohibited from using. In other words, as a necessary preliminary to its use, the marketing of a product suffers the same fate as the use.
            
         
               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.
                     
                  
         In those circumstances my opinion is that the Court should answer the first question put by the Tribunal de Grande Instance, Strasbourg, as follows:
      Pursuant to Article 1 of Council Directive No 64/54 of 5 November 1963 and Article 1 of Council Directive No 70/357 of 13 July 1970 Member States must only prohibit the use of additives which those directives do not mention;
      Pursuant to Article 2 (2) of Directive No 64/54 and Article 9 of Directive No 70/357 they are required to authorize the use of additives only in one foodstuff, at their discretion; and
      Consequently, national provisions which make use of that power must be regarded as validly made by the Member State concerned within the limits of those directives.
      
               IV — 
            
            
               That answer determines the answer to the second question put by the national court.
               That question arises only in the event of the national law being held to be contrary to the directives because it does not authorize the use in all foodstuffs of all the substances listed in the directives. Since that is not the case the second question does not call for an answer.
               Furthermore, as Mr Advocate General Warner recently recalled in his opinion in the Sant'ilio case (Case 131/79 Regina v Secretary of State for Home Affairs, ex parte Sant'ilio)“Of course a Member State's failure to implement a provision of a directive does not of itself mean that that provision may be directly invoked by private persons”. Mr Warner added, citing the words used in the judgment of 4 December 1974 (Case 41/74 Van Duyn v Home Office [1974] ECR at p. 1349), “the test in each case is whether ‘the nature, general scheme and wording of the provision’ are such as to entail such a requirement”.
               In the present case it is the “preservatives” and “antioxidants” directives as a whole which Mr Grunert claims have a direct effect, in that they may not be relied upon against him.
               One of the conditions which the case-law of this Court certainly lays down for recognizing that a provision of a directive has direct effect is, however, clearly not satisfied in the present case: provisions which require of the Member States, as a sole condition, apart from prohibiting the use of substances which they do not mention, the authorization of the use of the additives which they list in one foodstuff of their choice leave the States a discretion to determine the foodstuffs in which such additives are to be authorized which rules out any attribution of direct effect.
               Consequently, even assuming that a Member State has not correctly implemented Directives Nos 64/54 and 70/357, an individual cannot claim that the legislation of that State which does not authorize the use of a particular additive, such as lactic acid or citric acid, in a foodstuff or a particular group of foodstuffs, such as products of pork-butcher's meat, may not be relied upon against him.
            
         (
            1
         )	Translated from the French.