CELEX: 62002CC0145
Language: en
Date: 2004-03-04
Title: Opinion of Mr Advocate General Tizzano delivered on 4 March 2004. # Land Nordrhein-Westfalen v Denkavit Futtermittel GmbH. # Reference for a preliminary ruling: Bundesverwaltungsgericht - Germany. # Free movement of goods - Directive 70/524/EEC - Articles 28 EC and 30 EC - Additives - Harmonisation of national provisions relating to the vitamin D content of animal feedingstuffs - Legislation of a Member State prohibiting the importation of animal feedingstuffs which have been lawfully manufactured in another Member State and the vitamin D3 content of which exceeds that authorised in that first State. # Case C-145/02.

OPINION OF ADVOCATE GENERALTIZZANOdelivered on 4 March 2004(1)
         Case C-145/02Land Nordrhein-Westfalen v Denkavit Futtermittel GmbH (Request for a preliminary ruling from the Bundesverwaltungsgericht)
            (Free movement of goods  –  Measures having equivalent effect  –  Directive 70/524/EEC  –  Additives  –  Vitamin D in supplementary feedingstuffs for pigs)
            
      
         
      I –   Introduction 
      
        1.        By order of 31 January 2002 the Bundesverwaltungsgericht (Federal Administrative Court) (Germany) referred to the Court for
      a preliminary ruling three questions in which it essentially asks whether Articles 28 EC and 30 EC or Council Directive 70/524/EEC
      of 23 November 1970 concerning additives in feedingstuffs, as amended by Council Directive 84/587/EEC of 29 November 1984
      (‘the Directive’),  
         			(2)
         		 preclude a national measure which prohibits the marketing in the territory of that State of a supplementary feedingstuff
      for animals manufactured lawfully in another Member State on grounds of its vitamin D content.
      
      
      II –   Legal background 
      
       A –  The Directive 
      
        2.        The Directive was adopted having regard to the fact that, in the Member States which lay them down, the national provisions
      ‘concerning additives in feedingstuffs … differ as regards their basic principles’ and that ‘it follows that they directly
      affect the establishment and functioning of the common market and should therefore be harmonised’ (fourth recital in the preamble).
      
      
        3.        Consequently, in view of this objective the Directive first sets out the following definitions in Article 2:
      ‘…
      
      (d)
          Complete feedingstuffs : mixtures of feedingstuffs which, by reason of their composition, are sufficient for a daily ration;
         
      
      
      (e)
          Supplementary feedingstuffs : mixtures of feedingstuffs which have a high content of certain substances and which, by reason of their composition, are
            sufficient for a daily ration only if they are used in combination with other feedingstuffs;
         
      
      
      …
      
      
      (h)
          Premixtures : mixtures of additives or mixtures of one or more additives with substances used as carriers, intended for the manufacture
            of feedingstuffs.’
         
      
      
      
        4.        For the purposes of this case the key provision of the Directive is Article 12, which is divided into three paragraphs. Paragraph
      1 provides:
      ‘Member States shall require that supplementary feedingstuffs, diluted as specified, may not contain levels of the additives
      named in this Directive which exceed those fixed for complete feedingstuffs.’
      
      
        5.        Paragraph 2 stipulates as follows:
      ‘Member States may require that the levels of antibiotics, coccidiostats and other medicinal substances, growth promoters,
      D vitamins and antioxidants in supplementary feedingstuffs may exceed the maximum levels fixed for complete feedingstuffs
      in the case of:
      
      (a)
         supplementary feedingstuffs which a Member State has authorised to be made available to all users, provided that their level
            of … D vitamins … does not exceed five times the fixed maximum level;
         
      
      
      (b)
         supplementary feedingstuffs which are intended for certain species of animal and which a Member State is permitted to authorise
            to be made available within its territory to all users because of special feeding systems, provided that their level does
            not exceed:
         
      
      
        
      –
         …;
      
      
        
      –
         …;
      
      
        
      –
         for D vitamins, 200 000 IU  
               			(3)
               		/kg.
         
      
      
       Member States shall prescribe that if, in the manufacture of supplementary feedingstuffs, recourse is had to the possibility
      referred to in (a), the possibility referred to in (b) may not be made use of at the same time.’
      
      
        6.        Paragraph 3 states:
      ‘Where paragraph 2 is invoked, Member States shall require that the feedingstuff has one or more compositional characteristics
      (as regards, for example, proteins or minerals) which in practice ensure that the level of additives fixed for complete feedingstuffs
      is not exceeded and that the feedingstuff is not used for other species of animal.’
      
      
        7.        Finally, mention should be made of Article 19 of the Directive, under which ‘Member States shall ensure that … feedingstuffs
      which conform to this Directive are subject only to the marketing restrictions provided for in this Directive.’
      
      
       B –  German legislation 
      
        8.        The Directive was implemented in Germany by the Futtermittelgesetz (Law on Feedingstuffs: ‘the FMG’) and the Futtermittelverordnung
      (Regulation on Feedingstuffs: ‘the FMV’).
      
      
        9.        Paragraph 14 of the FMG, in the version published on 25 August 2000, prohibits imports of feedingstuffs which do not comply
      with the relevant German provisions.
      
      
        10.      Paragraph 17a of the FMV, in the version published on 23 November 2000, is particularly important in this respect. Paragraph
      17a(1) provides that the level of additives in supplementary feedingstuffs may not exceed the maximum levels laid down in
      the relevant Community authorising regulations. For vitamin D, the maximum level is 2 000 IU/kg.
      
      
        11.      Paragraph 17a(2) provides that, subject to subparagraph 3, the maximum levels of additives in supplementary feedingstuffs
      may be exceeded if, where such feedingstuffs are mixed with others in accordance with the instructions, the maximum levels
      of additives are adhered to. This provision is intended to implement Article 12(1) of the Directive.
      
      
        12.      Paragraph 17a(3) sets out five derogations from subparagraph 2. For the purposes of the present case, the first and fifth
      derogations are of interest.
      
      
        13.      According to the first derogation (set out in Paragraph 17a(3)(1)), the level of vitamin D in supplementary feedingstuffs
      to prevent histomoniasis or coccidiosis may be up to five times the fixed maximum level. This rule implements heading (a)
      of the first subparagraph of Article 12(2) of the Directive.
      
      
        14.      According to the fifth derogation (set out in Paragraph 17a(3)(2)(d)), the level of vitamin D can amount to up to 200 000
      IU/kg in supplementary animal feedingstuff for all species and categories of animals for the short-term supply of additional
      vitamins. This rule implements heading (b) of the first subparagraph of Article 12(2) of the Directive.
      
      
      III –   Facts 
      
        15.      The German company Denkavit Futtermittel GmbH (‘Denkavit’) manufactures in the Netherlands, through a sister company, the
      product ‘Denkavit Kern Ferkel 125’ (‘the contested product’) which it then imports into Germany. This is a supplementary product
      for pigs which contains 16 000 IU/kg of vitamin D and is to be administered only after having been diluted with straight feedingstuffs
      in a ratio of 1 to 7.
      
      
        16.      According to the order for reference, this product complies with the relevant Netherlands legislation. In particular, as was
      confirmed by the Netherlands Government in response to a specific question put by the Court, the contested product is authorised
      by the provision of Netherlands law which implements Article 12(1) of the Directive.
      
      
        17.      However, as can be seen from the order for reference, the contested product does not comply with the relevant German legislation,
      in particular Paragraph 17a(3)(1) of the FMV. It follows from that provision, as interpreted by the German courts, that the
      level of vitamin D may not exceed five times the maximum level of 2 000 IU/kg, that is to say, 10 000 IU/kg.
      
      
        18.      In 1991 the competent German authorities (the Regional Office for the Food Industry and Hunting of Land Nordrhein-Westfalen)
      raised an objection pursuant to that legislation and informed Denkavit that it could not import the contested product into
      Germany precisely because of its excessive level of vitamin D. They stated that under Paragraph 17a(3)(1) of the FMV supplementary
      feedingstuffs for pigs may contain a maximum of 10 000 IU/kg of vitamin D. The contested product contained 16 000 IU/kg of
      vitamin D, that is to say, an excess of 6 000 IU/kg, and was therefore prohibited under the FMG.
      
      
        19.      Subsequently, in 1993, Denkavit brought an action for a declaration before the competent administrative court (Verwaltungsgericht).
      In particular, it sought a declaration that it was entitled, under Articles 28 EC and 30 EC, to import into Germany and market
      there the contested product, which contains 16 000 IU/kg of vitamin D and is intended for mixing with other foodstuffs in
      a ratio of 1 to 7.
      
      
        20.      After the administrative court had dismissed its action, Denkavit lodged an appeal with the Oberverwaltungsgericht (Higher
      Administrative Court) of Nordrhein-Westfalen, which upheld the appeal. The Land of Nordrhein-Westfalen subsequently contested
      this ruling before the Bundesverwaltungsgericht, the highest court in the German administrative order.
      
      
        21.      Since the Bundesverwaltungsgericht formed the view that the matter touched on aspects of Community law, it stayed proceedings
      and requested the Court to give a ruling on the following questions:
      
      ‘1.
         Are national provisions of the law on feedingstuffs, which prohibit imports of a feedingstuff manufactured lawfully in another
            Member State on the ground that the level of vitamin D 3 does not comply with the law of the State of importation, to be assessed
            directly in the light of Articles 28 EC and 30 EC?
         
      
      
      2.
         Is Article 19 of Directive 70/524/EEC concerning additives to be interpreted as permitting the prohibition of imports of a
            supplementary feedingstuff manufactured lawfully in another Member State on the ground that it exceeds the level of vitamin
            D 3 permitted in the Member State of importation?
         
      
      
      3.
         Does the answer to Question 2 turn on whether the difference in the rules in the Member State of manufacture and the Member
            State of importation results from the fact that different use has been made of the possibility to lay down rules under Article
            12(2)(b) of Directive 70/524/EEC?’
         
      
      
      
      IV –   Appraisal 
      
       A –  Preliminary remarks 
      
        22.      By the questions submitted, the national court is essentially asking whether the Directive (second and third question) or
      Articles 28 EC and 30 EC (first question) preclude a measure by which a Member State prohibits the marketing of a supplementary
      feedingstuff, put on the market pursuant to Article 12(1) of the Directive in another Member State, on the ground that it
      contains a level of vitamin D above that fixed in Article 12(2)(a) of the Directive.
      
      
        23.      In fact, however, as we shall see below, it will be necessary to answer the first question only if it is ruled that the German
      measure at issue is not prohibited under the Directive. This question in turn requires an interpretation of Article 12 of
      the Directive, to which the other two questions directly or indirectly relate. Therefore, it is necessary to reverse the order
      in which the questions are to be dealt with by first examining these two questions and then considering, if need be, the first
      question.
      
      
       B –  The second question 
      
        24.      In this question, the issue of the lawfulness of the German legislation is raised specifically in relation to Article 19 of
      the Directive.
      
      
        25.      As we have seen, that article requires that ‘feedingstuffs which conform to this Directive are subject only to the marketing
      restrictions provided for in this Directive’. In the present case the relevant restrictions are those provided for under Article
      12 of the Directive. Therefore, it is necessary to interpret the scope of that provision.
      
      
        26.      However, it is not easy to do so as the wording of Article 12 is not particularly helpful, with the result that the provision
      makes complicated reading both as regards its individual paragraphs and, primarily, as regards the relationship between them.
      The differences between the parties, which have put forward contrary interpretations, have focussed precisely on these aspects.
      
      
        27.      Before expressing a view in this respect, I must first examine in greater detail the scope and content of Article 12 and also
      the relationship between the various paragraphs thereof.
      
      
        28.      Starting with paragraph 1, I should note firstly that, unlike the subsequent paragraph, it appears to be sufficiently clear
      and the parties do in fact agree on its meaning. Essentially, that provision lays down a limit on the level of additives permitted
      in supplementary feedingstuffs by providing that ‘supplementary feedingstuffs, diluted as specified, may not contain levels
      of the additives … which exceed those fixed for complete feedingstuffs’. As we have seen, for vitamin D that value is 2 000
      IU/kg.
      
      
        29.      The parties also agree that the level fixed by paragraph 1 refers to supplementary feedingstuffs in diluted form. This is
      clear from the interpolated clause ‘diluted as specified’.
      
      
        30.      It follows that a supplementary feedingstuff must contain a level of vitamin D which, when diluted with another feedingstuff
      in the ratios specified, does not exceed 2 000 IU/kg in the complete feedingstuff.
      
      
        31.      Consequently, it is not so much the additive content as the ratio of dilution that is important for the purposes of paragraph
      1 – and we will soon see the importance of this distinction. For example, a product such as that at issue in this case, which
      has 16 000 IU/kg in pure (that is to say, non-diluted) form and must then be diluted in a ratio of 1 to 7, will have, after
      dilution, a vitamin level of 2 000 IU/kg 
         			(4)
         		 and will therefore comply with Article 12(1).
      
      
        32.      That being established, we now come to Article 12(2), on the interpretation of which the parties have, however, expressed
      irreconcilable views.
      
      
        33.      I should first note that this provision authorises the Member States to ‘require that the levels of … D vitamins … in supplementary
      feedingstuffs may exceed the maximum levels fixed for complete feedingstuffs …’.
      
      
        34.      To that end, headings (a) and (b) of the first subparagraph of Article 12(2) give the Member States two options. Firstly (heading
      (a)), they may require that the level of vitamin D in supplementary feedingstuffs available to all users may go beyond the
      limits fixed for complete feedingstuffs (that is to say, 2 000 IU/kg), provided that they do not exceed five times the fixed
      maximum level (that is to say, 2 000 x 5 = 10 000 IU/kg).
      
      
        35.      Secondly (heading (b)), Member States may require that in supplementary feedingstuffs which are intended for certain species
      of animal and which a Member State is permitted to authorise to be made available within its territory to all users because
      of special feeding systems the levels of vitamin D may go beyond the maximum fixed limits, provided that their level does
      not exceed 200 000 IU/kg.  
         			(5)
         		
      
        36.      As regards this provision, the parties agree only that, unlike paragraph 1, paragraph 2 refers to supplementary feedingstuff
      in pure (that is to say, non-diluted) form. That would appear to me to be correct. In addition to the absence in paragraph
      2 of the interpolated clause ‘diluted as specified’ contained in paragraph 1, it is quite clear that the levels referred to
      in paragraph 2 (for example, 200 000 IU/kg) can make sense only if they refer to a supplementary feedingstuff in its pure
      form.
      
      
        37.      In other respects, I repeat, the parties are in complete disagreement, in particular as regards the relationship between paragraph
      1 and paragraph 2 of Article 12.
      
      
        38.      Denkavit and the Commission contend that a product authorised by one Member State by virtue of paragraph 1 cannot be prohibited
      by another Member State under its own legislation adopted pursuant to paragraph 2 because the function of the latter paragraph
      is not to restrict but to extend the range of marketable supplementary feedingstuffs. Therefore, a product authorised in one
      Member State by virtue of paragraph 1 can move freely throughout the single market without another Member State being able
      to prohibit the marketing thereof in its own territory by invoking legislation adopted pursuant to paragraph 2.
      
      
        39.      By contrast, the German Government takes the view that paragraph 2 grants each Member State the option of imposing, in derogation
      from paragraph 1, more restrictive conditions on the marketing of feedingstuffs containing certain additives. In its view,
      paragraph 2 constitutes a ‘special’ rule in relation to paragraph 1 and as such therefore derogates from it in accordance
      with the principle  ‘lex specialis derogat generali’ . It follows from this premise that the levels fixed in paragraph 2 may be regarded, vis-à-vis those fixed in paragraph 1,
      as further limits on the movement of the feedingstuffs at issue.
      
      
        40.      In my view, the German Government’s argument is less convincing that that put forward by the Commission and Denkavit for a
      number of reasons which I shall attempt to illustrate.
      
      
        41.      Firstly, I should observe that there is nothing in paragraph 2 to suggest that it is intended to be a derogation from the
      general rule laid down in paragraph 1. On the contrary, I could note that this provision does not contain the interpolated
      clause ‘in derogation from paragraph 1’, as normally occurs in these cases, whereas the German legislature felt obliged to
      insert no less than two interpolated clauses in the rule implementing paragraph 2 to make it clear that it derogates restrictively
      from the rule implementing paragraph 1. 
         			(6)
         		
      
        42.      However, the decisive factor also appears to me to be that it follows from a careful reading of Article 12 that the scope
      of the first two paragraphs thereof is different because only paragraph 1 refers to supplementary feedingstuffs ‘diluted  as specified ’,  
         			(7)
         		 whereas paragraph 2 contains no such reference.
      
      
        43.      In other words, whereas paragraph 1 applies to supplementary products containing any additive in respect of which  a dilution is specified , paragraph 2 applies to supplementary products containing certain additives for which  no such dilution is specified .
      
      
        44.      This is also confirmed by Article 12(3). Under that provision, ‘where paragraph 2 is invoked’, the compositional characteristics
      of the product are to ensure that the maximum levels fixed for complete feedingstuffs are not exceeded in any event. Although
      it will be obvious that such a precaution is ineffective or at least excessive as regards supplementary feedingstuffs for
      which a dilution is explicitly specified in that this per se ensures that an appropriate concentration is attained, it is
      necessary where  no such dilution is specified .
      
      
        45.      However, if that is the case, it follows that there is no special relationship between paragraphs 1 and 2 of Article 12 or
      relationship of derogation of one from the other for the simple reason that the cases which fall within the scope of one are
      different from those taken into account by the other.
      
      
        46.      I should add that this conclusion appears to me to be even more consistent with the liberalising and harmonising objectives
      pursued by the Directive and expressed in the fourth recital in the preamble thereto. If the proposal put forward by the German
      Government were accepted and national rules adopted under Article 12(2) were thus permitted to impose requirements in addition
      to those laid down in paragraph 1 also on products for which a dilution ratio is specified, those objectives could be seriously
      compromised. That would mean accepting that, on account of the broad margin of discretion provided by paragraph 2, each national
      legislature could add to the limits fixed in paragraph 1 further autonomous limits which differed from those laid down by
      the other Member States. That would amount precisely to undermining the harmonisation objectives which the Directive pursues
      in this regard.
      
      
        47.      However, to challenge that argument the German Government raises an objection based on the logic of the system. In its view,
      if paragraph 2 permitted the Member States not to restrict but rather to extend the range of products marketable under paragraph
      1, and if paragraphs 1 and 2 could be applied simultaneously, the purpose of paragraph 2 would be impossible to comprehend
      since all the products eligible for authorisation under that paragraph would already be eligible under paragraph 1.
      
      
        48.      However, that objection does not appear to me to be decisive. As I stated above (see paragraph 41 et seq.), the two provisions
      have different objects and purposes. It is possible to conceive of foodstuffs which can be authorised under paragraph 2 but
      are prohibited for the purposes of paragraph 1. An example would be a feedingstuff with 9 000 IU/kg with no diluting instructions.
      Provided that such a product complied with paragraph 3, it would be lawful for the purposes of paragraph 2(a) without, however,
      falling within the scope of paragraph 1. This demonstrates that paragraph 2 retains independent legal significance even if
      the interpretation suggested by the Commission and Denkavit is accepted.
      
      
        49.      Finally, the German Government contends that its interpretation of Article 12(2) is the only one capable of safeguarding the
      requirements relating to the protection of public health and that this justifies possible limitations on the effects of the
      liberalisation sought by the Treaty and the Directive. It observes that if the interpretation suggested by the Commission
      and Denkavit were accepted, national rules laid down pursuant to paragraph 2 could easily be circumvented by products which
      had very high levels but were nevertheless lawful for the purposes of paragraph 1 if the dilution thereof were specified in
      very high ratios.
      
      
        50.      In this respect the German Government cites as an example a hypothetical product containing 1 000 000 IU/kg of vitamin D to
      be used diluted in a ratio of 1 to 499. It considers that although such a product would comply with paragraph 1 it could not
      be compatible with the requirements relating to public health since certain additives are particularly insidious and hazardous.
      The German Government observes that the greater the concentration, the more unpredictable the consequences of an incorrect
      dosage.
      
      
        51.      However, this objection does not appear to be entirely convincing. Firstly, and in general terms, it should be noted that
      the requirements relating to the protection of public health would necessitate, in such a case, limitations on the free movement
      of goods and therefore, in view of the well-known interpretative criteria confirmed in that respect by established case-law,
      would have to be invoked with great care as a ground for derogating from a fundamental principle of the common market. This
      is not so in the present case since  inter alia  the German Government’s concerns appear to be very broad as regards the feared risks.
      
      
        52.      Apart from this, however, I must observe that if it were true that paragraph 2 is intended to avoid the risk referred to by
      the German Government, it would not be possible to understand why the provision sets out such an objective only in respect
      of antibiotics, D vitamins and growth promoters (see paragraph 12(2)(a) of the Directive). Nor does the German Government
      provide any explanation regarding this restriction. However, even if the German Government’s argument were accepted, it would
      be difficult to understand, as the national court correctly emphasises, how it would be more dangerous to permit the marketing
      of a product containing 16 000 IU/kg of vitamin when German law authorises feedingstuffs containing 200 000 IU/kg (see Paragraph
      17a(3)(2)(d) of the FMV, which implements Article 12(2)(b) of the Directive.
      
      
        53.      Furthermore, as regards the level of public health protection it appears to me that there is substantial convergence between
      the rule contained in Article 12(1) and that contained in Article 12(2). Article 12(3) provides that where paragraph 2 is
      invoked, the feedingstuff must have compositional characteristics which in practice ensure that the level of additives for
      complete feedingstuffs is not exceeded and that the feedingstuff is not used for other species of animal. It may therefore
      be concluded that the feedingstuffs authorised by paragraph 2 must be of such a nature that dilution essentially occurs naturally. 
         			(8)
         		
      
        54.      In the final analysis this means that, as the Commission points out, the level of vitamin D in the complete feedingstuff imposed
      by Article 12(2), in conjunction with Article 12(3), is no different from that imposed by Article 12(1). They merely constitute
      two different means (one relating to the feedingstuff in diluted form, the other to the feedingstuff in pure form) of arriving
      at the same result.
      
      
        55.      Therefore, it seems to me, ultimately, that the arguments advanced by the German Government are incapable of refuting the
      argument put forward by Denkavit and the Commission.
      
      
        56.      I accordingly propose that, in answering the second question, the Court rule that Article 12 of Directive 70/524/EEC, as amended
      by Council Directive 84/587/EEC of 29 November 1984, in conjunction with Article 19 thereof, must be interpreted as precluding
      any measure by which a Member State prohibits the marketing within its territory of a supplementary feedingstuff manufactured
      lawfully in another Member State for the purposes of Article 12(1) of that directive by reason of its level of vitamin D.
      
      
       C –  The third question 
      
        57.      In this question the Bundesverwaltungsgericht asks whether the assessment of the lawfulness of the prohibition on marketing
      the contested product can turn on the different use made by the Member States in question (that is to say, Germany and the
      Netherlands) of the possibility to lay down rules under Article 12(2)(b) of the Directive. In other words, it asks whether
      a product which has been placed on the market in one Member State by virtue of a measure implementing this provision of the
      Directive can be prohibited by another Member State which has made no use of the possibility to lay down rules thereunder
      or has made different use thereof by deciding not to authorise the product in question.
      
      
        58.      I consider that the question is purely hypothetical since it is based on the assumption that the contested product was placed
      on the market in the Netherlands under the Netherlands law adopted pursuant to Article 12(2)(b). However, in response to a
      specific question put by the Court, the Netherlands Government stated that the contested product was placed on the market
      in the Netherlands pursuant to Article 12(1) and this assertion has not been contested by any of the parties.
      
      
        59.      In those circumstances, I accordingly take the view, as I have said, that the question is hypothetical and irrelevant to the
      resolution of the present dispute and I therefore consider that the Court need provide no answer in this respect. 
         			(9)
         		
      
       D –  The first question 
      
        60.      I now come finally to the first question submitted for a preliminary ruling. I note that in this question the national court
      asks whether the relevant provisions of the FMV (and in particular Paragraph 17a(3)(1)), which prohibit the contested product
      on grounds of its level of vitamin D, must be assessed in the light of Articles 28 EC to 30 EC.
      
      
        61.      In this regard, I should point out firstly that, according to established case-law, where a directive introduces partial harmonisation,
      the rules of a Member State which restrict the importation of goods from other Member States are to be assessed also in the
      light of Articles 28 EC to 30 EC. 
         			(10)
         		
      
        62.      Therefore, on close consideration, this question is relevant only if it is held that Article 12(2) of the Directive is to
      be interpreted in the way suggested by the German Government, that is to say, as granting each Member State the possibility
      to lay down, in derogation from paragraph 1, more restrictive conditions on the marketing of feedingstuffs containing certain
      additives.
      
      
        63.      In that case, it would have to be concluded that the harmonisation sought by the Directive was not complete and therefore
      left the Member States a margin of discretion. The question would then arise of assessing whether the more restrictive conditions
      which could have been laid down in national law were compatible with Articles 28 EC to 30 EC.
      
      
        64.      However, as we have seen, the interpretation of Article 12 of the Directive which I have suggested leads to the opposite conclusion,
      namely that restrictive provisions of the kind at issue are contrary to the Directive. Consequently, there is no need to establish
      whether this rule is contrary also to Articles 28 EC to 30 EC and consequently no need to answer the question under consideration
      here.
      
      
        65.      Therefore, merely for the sake of completeness, I would point out that Article 28 EC prohibits quantitative restrictions on
      imports between Member States and all measures having equivalent effect, that is to say, any measures which are capable of
      hindering, directly or indirectly, actually or potentially, intra-Community trade. 
         			(11)
         		 Paragraph 17a(3)(1) of the FMV would appear precisely to be covered by the prohibition laid down by Article 28 EC since it
      imposes conditions on goods lawfully produced and marketed in another Member State and thereby restricts the movement thereof.  
         			(12)
         		
      
        66.      It is true that Article 30 EC is without prejudice to the restrictions on imports and measures having equivalent effect justified
       inter alia  on grounds of the protection of health and life of humans and animals, provided that they do not constitute a means of arbitrary
      discrimination or a disguised restriction on trade between Member States. However, as is clear from the foregoing, the German
      Government has failed to provide any cogent evidence that Paragraph 17a(3)(1) of the FMV is intended to protect public health
      requirements (see paragraph 55 et seq. above).
      
      
        67.      In the present case, therefore, it is, if necessary, for the national court to assess, on the basis of the facts in its possession,
      whether this provision can be otherwise justified by those (or other) requirements and, if so, whether or not, according to
      the well-known case-law of the Court, it is disproportionate or discriminatory.
      
      
        68.      However, as I have said, I do not consider that such an assessment is necessary in this case since, in my view, the question
      is already resolved on the basis of the Directive.
      
       
      V –   Conclusion 
      
        69.      In conclusion, I propose that the reply to the questions submitted by the Bundesverwaltungsgericht should be that Article
      12 of Council Directive 70/524/EEC of 23 November 1970, as amended by Council Directive 84/587/EEC of 29 November 1984, in
      conjunction with Article 19 thereof, must be interpreted as precluding any measure by which a Member State prohibits the marketing
      within its territory of a supplementary feedingstuff manufactured lawfully in another Member State within the terms of Article
      12(1) of that directive on the grounds of its level of vitamin D. 
      
      
       1 –
         
         Original language: Italian.
      
      2 –
         
         OJ, English Special Edition 1970 (III), p. 840.
            
         
      
      3 –
         
         International Units.
            
         
      
      4 –
         
         16 000 ÷ (1+7) = 2 000.
            
         
      
      5 –
         
         However, it should be noted that the Italian version states: ‘a condizione che la  percentuale  non superi’, whereas other languages versions refer to content: for example, the French version states ‘à condition que leur
             teneur  ne dépasse pas’ and the German version ‘wenn ...  der Gehalt  folgende Werte nicht übersteigt’ (emphasis added).
            
         
      
      6 –
         
         See Paragraph 17a(2) and (3) of the FMV, which state respectively ‘subject to subparagraph 3’ and ‘in derogation from subparagraph
            2’.
            
         
      
      7 –
         
         Emphasis added.
            
         
      
      8 –
         
         An example might be the case of a feedingstuff that animals will eat only if it is diluted or a feedingstuff which, if eaten
            in its pure form, makes animals thirsty.
            
         
      
      9 –
         
         For a similar argument see, for example, the order in Case C-458/93  Saddik  [1995] ECR I-511, paragraphs 17 and 18.
            
         
      
      10 –
         
         See Case 28/84  Commission  v  Germany  [1985] ECR 3097, paragraph 25; Case 29/87  Dansk Denkavit  v  Danish Ministry of Agriculture  [1988] ECR 2965, paragraph 19; and Case C-3/99  Ruwet  [2000] ECR I-8749, paragraph 42.
            
         
      
      11 –
         
         Case 8/74  Dassonville  [1974] ECR 837, paragraph 5.
            
         
      
      12 –
         
         Case 120/78  Rewe-Zentral  (‘ Cassis de Dijon ’) [1979] ECR 649.