JUDGMENT OF 5. 2. 1981 — CASE 108/80 MINISTÈRE PUBLIC v KUGELMANN

In Case 108/80 REFERENCE to the Court under Article 177 of the EEC Treaty by the Cour d'Appel [Court of Appeal], Colmar, for a preliminary ruling in the action pending before that court between

THE COURT (First Chamber) composed of: T. Koopmans, President of Chamber, A. O'Keeffe and G. Bosco, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Summary of the written observations submitted to the Court

III — Oral procedure

Decision

Costs

I —. Facts and procedure

1. Member States shall take all measures necessary to ensure that the preservatives for whose use the annex lays down certain conditions are used solely, in accordance with those conditions.

2. Save as otherwise provided in paragraph 1, this directive shall not affect provisions of national laws specifying the foodstuffs to which the preservatives listed in the annex may be added and the conditions governing the addition of such preservatives. However, the laws of a Member State may totally exclude the use of any of the preservatives listed in the annex only where there is no technological reason for using such preservatives in foodstuffs produced and consumed in its own territory.

II —. Summary of the written observations submitted to the Court

1. Under Article 1 of Council Directive 64/54/EEC of 5 November 1963, Member States must only prohibit the use of the additives not mentioned in that directive.

2. Under Article 2 (2) they are only obliged to authorize their use in one foodstuff of their choice.

3. National provisions exercising that power must be considered as validly laid down by the Member State in question within the limits of that directive.

III —. Oral procedure

1. By judgment of 21 December 1979, which was received at the Court on 8 April 1980, the Cour d'Appel [Court of Appeal], Colmar, referred to the Court of Justice under Article 177 of the EEC Treaty a question for a preliminary ruling on the interpretation of Council Directive 64/54/EEC of 5 November 1963 on the approximation of the laws of the Member States concerning the preservatives authorized for use in foodstuffs intended for human consumption (Official Journal, English Special Edition 1963 to 1964, p. 99).

2. An appeal was brought before the Cour d'Appel, Colmar, from a judgment of the Tribunal de Grande Instance [Criminal Court of First Instance], Strasbourg, in which a company director was charged and found guilty of having offered for sale and sold, knowing their intended use, products, in other words, decorative jelly containing sorbic acid or products derived therefrom, suitable for adulterating foodstuffs for human consumption.

3. The Tribunal de Grande Instance, Strasbourg, had found that according to the French rules on the manufacture of foodstuffs, sorbic acid and products derived therefrom are preservatives the use of which is prohibited in the manufacture of prepared meat products and salt provisions. The Cour d'Appel, Colmar, however, wondered whether such rules were not contrary to Community law, in particular Directive 64/54/EEC.

4. The question referred to the Court of Justice by the Cour d'Appel, Colmar, is whether the fact that the national legislation of a Member State prohibits the use of a preservative used in foodstuffs intended for human consumption when the use of that preservative is authorized by Directive 64/54/EEC constitutes a breach of Community law which may be relied upon by a Community subject prosecuted for adulteration of foodstuffs with sorbic acid.

5. Article 1 of Directive 64/54/EEC, as subsequently amended, prohibits Member States from authorizing the use, for the protection of foodstuffs intended for human consumption against deterioration caused by microorganisms, of any preservatives other than those listed in the annex thereto, which includes sorbic acid. Article 2 (2) of the directive states that the directive shall not affect provisions of national laws specifying the foodstuffs to which the preservatives listed in the annex may be added, but it also stipulates that such provisions may totally exclude the use of any of the preservatives listed in that annex only where there is no technological reason for using such preservatives in foodstuffs produced and consumed on the territory of the Member State concerned.

6. According to its preamble, the directive is merely the first stage in the approximation of national laws relating to preservatives involving the establishment of a single list of preservatives the use of which is authorized. During the second stage the approximation of laws will entail consideration of individual foodstuffs intended for human consumption to which the preservatives authorized by the directive may be added.

7. At the present stage in the approximation of national laws in this field, Member States are not therefore bound to authorize for use in foodstuffs all the substances the use of which is permitted by the directive. On the contrary, they have retained a certain discretion to determine their own rules concerning the addition of preservatives to foodstuffs, subject to the twofold condition that no preservative may be authorized unless it appears in the list annexed to the directive and that the use of a preservative which is listed there may not be totally prohibited except in special cases where there is no technological necessity.

8. It follows from the information supplied to the Court by the French Government and the Commission that although the French rules do not authorize the use of sorbic acid in prepared meat products, they permit the use of that preservative in other foodstuffs intended for human consumption, in particular in certain articles of confectionery, fruit prepared with sugar intended for fermented milk products, chestnuts, prunes and certain other foodstuffs.

9. In these circumstances, an individual charged with having used sorbic acid as a preservative in breach of the applicable national legislation cannot rely upon the provisions of Directive 64/54/EEC against the application of that legislation.

10. It is therefore necessary to reply to the question referred to this Court by the Cour d'Appel, Colmar, that an individual who is prosecuted for using sorbic acid in certain foodstuffs intended for human consumption cannot rely upon the provisions of Directive 64/54/EEC authorizing the use of that preservative if the applicable national legislation permits the use of sorbic acid in other foodstuffs intended for human consumption.

11. The costs incurred by the Government of the French Republic and the Commission of the European Communities, which submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (First Chamber), in answer to the question referred to it by the Cour d'Appel, Colmar, by judgment of 21 December 1979, hereby rules:

1 Order of 15 April 1912 laying down a public service regulation in implementation of the Law of 1 August 1905 on the repression of frauds in the sale of goods and of the adulteration of foodstuffs, especially meat, prepared meat products, fruit, vegetables, fish and preserved products, amended by Order No 73/138 of 12 February 1973, Article 15-1 (Journal Officiel de la République Française of 15 February 1973, p. 1728).

2 Law of 1 August 1905 on frauds and adulteration relating to products or services, amended by Law No 78/23 of 10 January 1978 (Journal Officiel de la République Française of 11 January 1978, p. 301).