Opinion of Mr Advocate General Mayras

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.

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.

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.

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.

1 Translated from the French.