Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. The questions referred to this Court for a preliminary ruling by the Bundesverwaltungsgericht [Federal Administrative Court] arose in proceedings between Denkavit, a German undertaking producing feedingstuffs, and the Landesamt für Ernährungswirtschaft Nordrhein-Westfalen [North-Rhine Westphalia Regional Board for Food Production and Distribution]. Denkavit wishes to market complete feedingstuffs for calves which do not comply with certain statutory provisions regarding minimum iron content and maximum sodium content, as a result of which they may not be marketed in German territory (Paragraph 14 (1) of the Law of 2 July 1975 on Feedingstuffs, BGBl. I, p. 1745).

2. The Court is familiar with examples of a reference for a preliminary ruling having the same subject-matter as an application for a declaration that a Member State has failed to fulfil its obligations. It has consistently held that though it may not, in the framework of the power to give preliminary rulings under Article 177 of the EEC Treaty, rule on the conformity of national legal provisions with Community law, it is incumbent upon the Court of Justice when interpreting Community rules whose applicability is at issue before the national court, to provide the latter with an appropriate reply enabling it to resolve the dispute before it (see, for example, Case 111/76 Officier van Justitie v Van den Hazel [1977] ECR 910, paragraph 4 of the decision).

3. Denkavit advances an argument based on four points.

4. For its part, the Land Nordrhein-Westfalen contends that the German rules regard iron and sodium as constituent elements and for that reason, the two specific directives are inapplicable. Unlike the additives authorized by Directive 70/524, constituent elements are present in feedingstuffs in their natural state and are not deliberately added to those feedingstuffs. None the less, even supposing that the iron referred to by the German rules was to be assimilated to an additive, the directive would still not apply to the fixing of a minimum level: where there is a danger to health, Article 13 allows the Member States to impose a minimum level when such a level is not provided for in the annex.

5. In its observations, the Italian Government presents essentially the same arguments as the Land Nordrhein-Westfalen. At the hearing, its representatives argued that Article 8 of Directive 79/373 should be read together with Article 15: harmonization of the national rules applicable to ingredients will not and cannot be achieved until Community rules have replaced the divergent rules which still exist in each Member State. It is therefore still possible to take action under Article 36.

6. An examination of the file in the main proceedings as well as of all the observations submitted to the Court reveals no new factor capable of changing the interpretation of the three directives at issue which I proposed in my Opinion in Case 28/84.

7. Consequently, the following reply should be given to the questions referred to the Court of Justice by the Bundesverwaltungsgericht:

1 Translated from the French.