Commission of the European Communities v Federal Republic of Germany (28/84)

Contents

Judgment of the Court3 October 1985^noteIn Case 28/84Commission of the European Communities, represented by its Legal Adviser, Peter Karpenstein, acting as Agent, with an address for service in Luxembourg at the office of Georges Kremlis, a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg,vFederal Republic of Germany, represented by Martin Seidel, Ministerialrat at the Federal Ministry for the Economy, and Michael Loschelder, Rechtsanwalt, Cologne, acting as Agents, with an address for service in Luxembourg at its Embassy,THE COURTcomposed of: Lord Mackenzie Stuart, President, G. Bosco, O. Due and C. Kakouris (Presidents of Chambers), P. Pescatore, T. Koopmans, U. Everling, K. Bahlmann and Y. Galmot, Judges,Advocate General: M. DarmonRegistrar: P. Heimafter hearing the Opinion of the Advocate General delivered at the sitting on 9 July 1985,gives the following

Judgment

(The account of the facts and issues which is contained in the complete text of the judgment is not reproduced)

Decision

1By application lodged at the Court Registry on 26 January 1984 the Commission of the European Communities brought an action pursuant to Article 169 of the EEC Treaty for a declaration that the Federal Republic of Germany had failed to fulfil its obligations under Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs (Official Journal, English Special Edition 1970 (III), p. 840j hereinafter referred to as ‘the additives directive’), Council Directive 74/63/EEC of 17 December 1973 on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs (Official Journal 1974, L 38, p. 31; hereinafter referred to as ‘the undesirable substances directive’) and Council Directive 79/373/EEC of 2 April 1979 on the marketing of compound feedingstuffs (Official Journal 1979, L 86, p. 30; hereinafter referred to as ‘the compound feedingstuffs directive’), and under Article 30 of the EEC Treaty, by providing in the German rules concerning feedingstuffs for minimum iron contents and maximum permitted levels of sodium in feedingstuffs.

The background to the dispute

2Paragraph 7 of the Futtermittelverordnung [Feedingstuffs regulation] of 16 June 1976 was amended by the Dritte Verordnung zur Änderung der Futtermittelverordnung [Third regulation amending the Feedingstuffs regulation] of 19 July 1979 (Bundesgesetzblatt I, p. 1122), which introduced a new subparagraph laying down a minimum iron content and a maximum permitted level of sodium for milk-replacer feed intended for use as complete feedingstuffs for the rearing of calves. That provision, which is now contained in Paragraph 8 (3) of the Futtermittelverordnung of 8 April 1981 (Bundesgesetzblatt I, p. 352), provides as follows:‘Milk-replacer feed intended for use as complete feedingstuffs for calf-rearing must contain at least 60 mg of iron per kg. Milk-replacer feed intended for use as complete feedingstuffs for the fattening of calves up to approximately 80 kg in weight must contain at least 40 mg of iron per kg. Milk-replacer feed intended for use as complete feedingstuffs for the fattening of calves may contain no more than 6000 mg of sodium per kg. In each case the content level relates to dry matter of milk-replacer feed’.

3According to Paragraph 14 (1) of the Futtermittelgesetz [Law on feedingstuffs] of 2 July 1975 (Bundesgesetzblatt I, p. 1745) feedingstuffs which fail to comply with the requirements in force may not be introduced into the territory in which the law is applicable.

4After the new provisions of the Futtermittelverordnung had come into force the Commission drew the attention of the German Government, by two letters dated 6 February 1980 and 20 March 1981, to the incompatibility of those provisions with the aforementioned directives and with Article 30 of the EEC Treaty. By two communications dated 26 March 1980 and 15 May 1981 the German Government set out the factual and legal grounds that, in its view, served to justify the measure to which the Commission objected. On 16 April 1982 the Commission thereupon delivered a reasoned opinion to the Federal Republic of Germany pursuant to Article 169 of the EEC Treaty.

5In September 1983, after the delivery of that opinion, the German Government submitted to the Commission within the framework of the compound feedingstuffs directive a proposal intended for the Working Party on feedingstuffs legislation, established under that directive, for the adoption of provisions to the same effect as the rules which are the subject of this case. According to the information provided by the Commission, which was not disputed by the German Government, the representatives of all the other Member States participating in the Working Party concluded that it was not necessary to amend the existing Community directives. The objective justification for the arguments put forward by the German delegation with regard to iron and sodium was not disputed but the members of the Working Party took the view that the question raised by the German Government could be resolved without serious difficulty by the provision of more information to the manufacturers of feedingstuffs and breeders.

The arguments submitted by the parties

6The Commission contends, in essence, that the three directives constitute a complete and exhaustive set of rules covering the whole field of production and marketing of compound feedingstuffs, including questions of public health which may be raised by the use of certain ingredients. According to Article 13 of the additives directive, Article 7 of the undesirable substances directive and Article 9 of the compound feedingstuffs directive, products which conform to the standards laid down by the Commission ought to be able to circulate freely subject only to the emergency measures provided for by Article 7 of the additives directive and Article 5 of the undesirable substances directive. A Member State is therefore unable, save in the exceptional circumstances laid down by those directives, to adopt unilaterally measures concerning the composition of feedingstuffs that have the effect of creating obstacles to the marketing of feedingstuffs in other Member States. In the Commission's view the compound feedingstuffs directive clearly shows that the Community legislature did not intend to prescribe to manufacturers of feedingstuffs what had to be contained in their products but did intend, in principle, to enable products whatever their composition to be marketed freely in the Community.

7More specifically, the Commission contends that the question of the iron content of compound feedingstuffs is governed by the additives directive and the fixing of the permitted level of sodium is governed by the undesirable substances directive. The questions raised by the German rules should therefore have been considered within the framework of one or other of those two directives, which the German Government has consistently refused to accept since it based its arguments exclusively on the compound feedingstuffs directive.

8In its defence the Federal Republic of Germany explains the reason for the adoption of the measure to which the Commission objects. Its purpose is to prohibit certain undesirable practices in the feeding of calves. One such practice is the use of feedingstuffs which are deficient in iron to induce artificial anaemia in calves so as to produce a white meat which is particularly highly regarded by consumers; the other practice is the administering of excessive quantities of salt so as to make the calves artificially thirsty which causes them to absorb excessive quantities of liquid feedingstuffs in order to increase their slaughter liveweight.

9From a legal point of view the German Government's arguments may be summarized as follows:(a) According to the principle of proportionality, or, in the form relevant to this case, the principle of minimum intervention, when interpreting measures of secondary Community law which encroach upon the sovereignty of the Member States, preference should be given to the interpretation which keeps the intervention to a minimum.(b) In addition to additives and undesirable substances, the use or presence of which is the specific subject of Directives 70/542 and 74/64, it is necessary to take account, for the purpose of applying those directives, of the rules relating to ‘constituent elements’, that is to say the substances which essentially determine the quality of feedingstuffs. Since the question of the composition of feedingstuffs is not regulated by the directive in question, that is to say the compound feedingstuffs directive, that question continues to lie within the remit of the Member States. It is for that reason that the rules of which the Commission complains are justified. Moreover, Article 8 of the compound feedingstuffs directive expressly reserved to the Member States the power to limit the marketing of compound feedingstuffs to those which are obtained from certain ingredients or which are free from certain ingredients.(c) The contested measure is justified for the protection of animal health, which falls within the powers reserved to the Member States by Article 36. That power is reaffirmed in Article 3 of the compound feedingstuffs directive according to which the Member States must ensure that compound feedingstuffs are wholesome and do not represent a danger to health.(d) Finally, the Commission misinterpreted Article 15 of the compound feedingstuffs directive which requires it, on the basis of experience acquired, to forward to the Council within a certain period proposals for amendments to the directive such as to achieve free movement of compound feedingstuffs and to eliminate certain disparities concerning in particular the use of ingredients. Since the Commission has not taken appropriate steps, the German Government is authorized to adopt at national level such measures as it considers necessary.

Substance

10Before examining the arguments put forward by the Federal Republic of Germany it is necessary to make certain preliminary observations regarding the general background to the aforementioned directives and their relationship with Article 30 of the EEC Treaty.

11First, it should be noted that the three directives are based on Articles 43 and 100 of the EEC Treaty. In other words they form part of the framework of the common agricultural policy and at the same time that of the harmonization of legislation capable of directly affecting the functioning of the common market. In view of that dual legal basis the purpose of the directives is to contribute specifically in the area in question to achieving the free movement of goods which is one of the fundamental elements of the common market.

12Although the directives came into force over a period of time from 1970 to 1979 they form a coherent system, as is clear from the first two recitals in their respective preambles. According to those recitals the common objective of the directives is to increase agricultural productivity by promoting the quality of animal production by means of the use of ‘appropriate good-quality feedingstuff s’. Within that framework the specific purpose of the additives directive and the undesirable substances directive is to define those aspects which require particular supervision on account, in particular, of their effect on animal or human health (see the fifth to eleventh recitals in the preamble to the additives directive and the third and eighth recitals in the preamble to the undesirable substances directive). Each of those directives provides for a Community procedure for laying down special rules, whether in the form of maximum or minimum contents or in the form of prohibitions, which are contained in the annexes to those directives (see Article 6 of the additives directive, as amended by Council Directive 73/103/EEC of 28 April 1973, Official Journal 1973, L 124, p. 17, and Article 6 of the undesirable substances directive).

13In addition, the additives directive and the undesirable substances directive both provide for the provisional adoption of emergency measures by the Member States in the event of danger to animal or human health (Article 7 of the additives directive and Article 5 of the undesirable substances directive). Any Member State which adopts such measures must inform the other Member States and the Commission without delay. Such notification sets in motion a procedure under which appropriate measures may be adopted at Community level.

14It therefore appears that, in relation to all constituents capable of giving rise to problems or dangers from the point of view of proper animal nutrition or from the point of view of animal or human health, the two directives have set up a comprehensive system which enables account to be taken of the need to amend the directives periodically and of urgent problems which may arise in practice.

15The compound feedingstuff s directive relates, as is clear from its title, to the marketing of compound feedingstuffs. In that connection it lays down a number of rules concerning packaging of feedingstuffs and the information relating to their composition contained on their labelling or in the accompanying documents.

16According to Article 3 of the compound feedingstuffs directive:‘Member States shall prescribe that compound feedingstuffs may be marketed only if they are wholesome, unadulterated and of merchantable quality. They shall also prescribe that compound feedingstuffs may not represent a danger to animal or human health and may not be presented or marketed in a manner liable to mislead’.

17Article 8 of the directive provides as follows:‘In so far as their national laws so provide at the time of adoption of this directive, Member States shall be authorized to limit the marketing of compound feedingstuffs to those:obtained from certain ingredients, orfree from certain ingredients’.

18Article 14 of the directive reserves to the Member States the right, inter alia, ‘to recommend types of compound feedingstuffs which meet certain analytical characteristics’.

19Finally, Article 15 of the directive requires the Commission, on the basis of experience acquired, to forward to the Council, not later than three years following notification of the directive, ‘proposals for amendments to the Directive such as to achieve free movement of compound feedingstuffs and to eliminate certain disparities concerning the use of ingredients and labelling in particular’.

20Each of the directives contains a provision according to which compound feedingstuffs which conform to the directive in question may not be subjected to any marketing restrictions other than those provided for in the directive itself (Article 13 of the additives directive, Article 7 of the undesirable substances directive and Article 9 of the compound feedingstuffs directive). They therefore constitute a coherent system covering the manufacture and marketing of compound feedingstuffs, including the question of additives and undesirable substances.

21The defence put forward by the Federal Republic of Germany must therefore be examined in the light of those considerations.

22 (a)With regard to the argument based on the ‘principle of minimum intervention’ it should be stated that that method of interpretation overlooks the fact that the directives in question form part of the common agricultural policy and are intended to facilitate the free movement of feedingstuffs within the common market. They must therefore be interpreted in the light of their objectives, which are to improve livestock production throughout the Community according to common rules and at the same time to eliminate the obstacles arising from differences in the relevant national legislation.

23 (b)The distinction between ‘constituent elements’, on the one hand, and ‘additives’ and ‘undesirable substances’, on the other, also overlooks the coherent scheme of the three directives. In principle, compound feedingstuffs should be able to circulate freely within the Community if they satisfy the requirements of the compound feedingstuffs directive and if they also comply with the rules laid down by the additives directive and the undesirable substances directive. The German Government was wrong to try to confine the argument to the compound feedingstuffs directive by refusing to deal with the matters which are the subject of the contested provisions of the Futtermittelverordnung by means of the procedures provided for by the additives directive and the undesirable substances directive, even though the two substances in question, iron and sodium, fall within the scope of one or the other of those two directives. According to those directives the Member States may adopt unilateral measures only by following the emergency procedure. The German Government has never asserted that the contested provisions of the Futtermittelverordnung were a matter of urgency.

24With regard to Article 8 of the compound feedingstuffs directive it suffices to note that the reservation contained therein is restricted to the application of national law in force ‘at the time of the adoption of this directive’, that is to say 2 April 1979. The Federal Republic of Germany cannot rely on that provision to justify a measure adopted after that date.

25 (c)With regard to the Federal Republic of Germany's reliance on Article 36 of the EEC Treaty, which authorizes the Member States to maintain restrictions on imports justified on the ground of the protection of health and life of humans and animals, it follows from the scheme of the additives directive and the undesirable substances directive that questions of public health relating to the use of substances covered by the directives are regulated exhaustively by those directives. In that respect, therefore, a Member State may no longer rely on the exception contained in Article 36 as is clear from the Court's established case-law (see primarily the judgment of 5 October 1977, Case 5/77 Tedeschi v Denkavit [1977] ECR 1555, paragraph 35 of the decision). Only the procedures provided for by the additives directive and the undesirable substances directive could have been used to resolve any public health problems to which the contested measure is alleged to be addressed.

26The argument based on Article 3 of the compound feedingstuffs directive cannot be accepted either, since that provision can have neither the purpose nor the effect of derogating from the exhaustive nature of the additives directive and the undesirable substances directive.

27 (d)With regard to the charge that the Commission failed to fulfil its obligations under Article 15 of the compound feedingstuffs directive, it suffices to observe that that provision, which is of a general nature, does not in any way oblige the Commission to take up on its own account, in the form of proposals, the provisions adopted unilaterally by the Federal Republic of Germany. The Commission has a discretion with regard to the steps it takes towards amending the directive; with regard to the contested measures, the discussion within the Working Party on feedingstuffs legislation shows that the other Member States were notin favour of extending the measures adopted unilaterally by the Federal Republic of Germany to the whole of the Community. Accordingly, the Commission cannot be criticized for failing to take such an initiative on its own authority pursuant to Article 15 of the compound feedingstuffs directive.

28It appears from all the foregoing that the measure adopted by the German authorities derogates from the division of powers laid down by the directives pursuant to the EEC Treaty since a measure of that type could have been adopted only for the whole of the Community in accordance with the procedures provided for by the additives directive and the undesirable substances directive. The unilateral adoption of those measures by the Federal Republic of Germany also constitutes an infringement of the principle of the free movement of goods set out in Article 30 of the EEC Treaty and confirmed by the relevant provisions of the three directives.

29It must therefore be declared that, by laying down, as part of the German legislation on feedingstuffs, minimum iron contents and maximum permitted levels of sodium in feedingstuffs, the Federal Republic of Germany has failed to fulfil its obligations under Council Directives 70/524 of 23 November 1970 concerning additives in feedingstuffs, 74/63 of 17 December 1973 on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs and 79/373 of 2 April 1979 on the marketing of compound feedingstuffs, and under Article 30 of the EEC Treaty.

Costs

30Article 69 (2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs. As the Federal Republic of Germany has failed in its submissions, it must be ordered to pay the costs.

Operative part

On those grounds,THE COURThereby:

(1).Declares that, by laying down, as part of the German legislation on feedingstuffs, minimum iron contents and maximum permitted levels of sodium in feedingstuffs, the Federal Republic of Germany has failed to fulfil its obligations under Council Directives 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs (Official Journal, English Special Edition 1970 (III), p. 840), 74/63/EEC of 17 December 1973 on the fixing of maximum permitted levels for undesirable substances and products in feedingstuffs (Official Journal 1974, L 38, p. 31) and 79/373/EEC of 2 April 1979 on the marketing of compound feedingstuffs (Official Journal 1979, L 86, p. 30), and under Article 30 of the EEC Treaty.

(2).Orders the Federal Republic of Germany to pay the costs.

Delivered in open court in Luxembourg on 3 October 1985.