Summary
Parties
Grounds
Decision on costs
Operative part
Keywords
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1 . Agriculture - Approximation of laws - Additives in feedingstuffs - Directive 70/524 before its amendment by Directive 84/587 - Identification and purity of additives - Complete harmonization - Measures of health conrol applicable to traders - Absence of harmonization allowing national measures under Article 36 of the Treaty
( EEC Treaty, Art . 36; Council Directive 70/524, as amended )
2 . Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Importations of feedingstuffs containing additives subject to prior authorization
( EEC Treaty, Art . 30 )
3 . Agriculture - Approximation of laws - Additives in feedingstuffs - Check sampling provided for by Directive 70/524 - Levy charged to cover costs of control - Compatibility with the directive and Articles 9 and 95 of the Treaty
( EEC Treaty, Art . 9 and 95; Council Directive 70/524, as amended )
Summary
1 . Directive 70/524 concerning additives in feedingstuffs, as amended up to the adoption of Directive 84/587, provided for harmonization which precluded Member States from relying on Article 36 of the Treaty in order to impose, on the importation from other Member States of feedingstuffs containing additives, national measures intended to ensure the identification and the purity of the additives in question . It did not, on the other hand, provide for harmonization of such a nature as to deprive Member States of recourse to Article 36 of the Treaty as regards measures of health control applicable to the traders concerned .
2 . Article 30 of the Treaty must be interpreted as meaning that a national measure which subjects the importation of feedingstuffs containing additives to prior authorization constitutes a measure having an effect equivalent to quantitative restrictions on imports within the meaning of Article 30 of the Treaty .
3 . An annual levy charged by a Member State in like manner on importers and national producers of feedingstuffs containing additives and intended to cover the costs incurred by the State in checking samples taken pursuant to Directive 70/524 is compatible with Articles 9 and 95 of the Treaty and the provisions of that directive .
Parties
In Case 29/87
REFERENCE to the Court under Article 177 of the EEC Treaty by the OEstre Landsret ( Eastern Division of the High Court ), Copenhagen, for a preliminary ruling in the proceedings pending before that court between
Dansk Denkavit ApS,
and
Danish Ministry of Agriculture
on the interpretation of Council Directive 79/524 concerning additives in feedingstuffs ( Official Journal, English Special Edition 1970 ( III ), p . 840 ), as amended by Council Directive 73/103 of 28 April 1973 ( Official Journal L 124, p . 17 ), and the second Council Directive 75/296 of 28 April 1975 ( Official Journal L 124, p . 29 ),
THE COURT ( Second Chamber )
composed of : O . Due, President of the Chamber, K . Bahlmann and T . F . O' Higgins, Judges,
Advocate General : M . Darmon
Registrar : H . A . Ruehl, Administrator
after considering the observations submitted
on behalf of the plaintiff in the main action by Karen Dyekjaer-Hansen, of the Copenhagen Bar,
on behalf of the Danish Government and the defendant in the main action by Joergen Molde and Gregers Larsen, of the Copenhagen Bar,
on behalf of the Commission of the European Communities, by Richard Wainwright and Jens Christoffersen, Agents,
having regard to the Report for the Hearing and further to the hearing on 9 December 1987,
after hearing the Opinion of the Advocate General delivered at the sitting on 8 March 1988,
gives the following
Judgment
Grounds
1 By order of 30 January 1987, which was received at the Court on 2 February 1987, the OEstre Landsret referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty several questions on the interpretation of Directive 70/524 of the Council of 23 November 1970 concerning additives in feedingstuffs ( Official Journal, English Special Edition 1970 ( III ), p . 840 ), as amended by Council Directive 73/183 of 28 April 1973 ( Official Journal L 124, p . 17 ) and the second Council Directive 75/296 of 28 April 1975 ( Official Journal L 124, p . 29 ) as well as Articles 9, 30, 36 and 95 of the EEC Treaty for the purpose of determining the compatibility with Community law of certain provisions of Danish law on the trade in and importation of compound feedingstuffs containing antibiotics and other additives .
2 Those questions were raised in proceedings between the Danish Ministry for Agriculture and Dansk Denkavit Aps ( hereinafter referred to as "Denkavit "), which is part of the same group as a Netherlands manufacturer of compound feedingstuffs containing additives and which since 1981 has imported them into Denmark .
3 It appears from the documents before the Court that on importing the feedingstuffs into Denmark Denkavit complies with the relevant provisions of Danish law and in particular with the obligation to register the additives used, to state the registration number stated on the packing and to obtain prior authorization from the Ministry of Agriculture . Since however it took the view that Directive 70/524, as amended by Directives 73/103 and 75/296, provided for Community harmonization so as to deprive Member States of any possibility of adding supplementary national requirements to those provided for by the directive, Denkavit brought an action in September 1981 before the OEstre Landsret against the aforementioned Danish provisions the lawfulness of which it challenged . During the proceedings it also claimed the refund of the amounts paid by way of an annual authorization levy .
4 Since the OEstre Landsret took the view that a decision in the proceedings required an interpretation of Directive 70/524 as amended up to the adoption of Council Directive 84/587 of 29 November 1984 ( Official Journal 1984, L 319, p . 13 ), it stayed the proceedings and referred the following questions to the Court :
"( 1 ) Did Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs, as amended up to the adoption of Council Directive 84/587/EEC of 29 November 1984, lay down such a degree of harmonization that the Member States were precluded, as regards the importation from other Member States of feedingstuffs containing additives, from relying on Article 36 of the EEC Treaty in connection with national measures for ensuring the identification of the additives used and the purity of those additives?
( 2 ) If Question 1 is answered in the negative it is asked whether, again up to the adoption of said Directive 84/587/EEC, such a degree of harmonization of the requirements on packaging and labelling of feedingstuffs containing additives had been achieved that Article 36 could not be relied on in connection with a national requirement that there must be a statement on the packaging that the additive in question had been approved by a national authority under the registration number assigned .
( 3 ) Must Article 30 of the EEC Treaty be construed as meaning that it forbids a national measure whereby a Member State requires that the importation from other Member States of feedingstuffs containing additives mentioned in Directive 70/574/EEC shall only take place on the basis of a document, known as an 'authorization' , issued to the undertaking on a 'once and for all' basis, where a wholly analogous authorization is required of domestic products, where the authorities are not informed in any other way in which undertakings the control must be carried out pursuant to the said directive, where the legislation does not lay down specific conditions for issuing or revoking authorizations and it must be assumed that according to principles of national law a request may be revoked only where the activitiy is pursued in such a way that considerations of human or animal health make this imperative, where according to administrative practice the authorization is issued within a few weeks on the basis of a request which need contain only the importer' s name and address and where in administrative practice an authorization has hitherto never been refused to or withdrawn from an importer?
( 4 ) Did Council Directive 70/524/EEC of 23 November 1970 concerning additives in feedingstuffs, as amended up to the adoption of Council Directive 84/587/EEC of 29 November 1984, lay down such a degree of harmonization that the Member States were wholly precluded from relying on Article 36 of the EEC Treaty in connection with a national measure such as that described in Question 3?
( 5 ) Was it compatible with Community law, in particular Articles 9 and 95 of the EEC Treaty in conjunction with Directive 70/524, for a Member State to collect an annual levy from undertakings which obtained the authorization mentioned in Question 3, where the levy was collected in the same amount from domestic producers and importers and where the total amount of the levy corresponded to the expenditure occasioned by the checks by random sampling carried out in accordance with Directive 70/524?"
5 Reference is made to the Report for the Hearing for a fuller account of the facts and the background to the proceedings, the relevant provisions of Danish law and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .
The degree of harmonization achieved by Directive 70/524 with regard to the identification and purity of additives
6 By its first question the national court essentially seeks to ascertain whether Directive 70/524 of the Council of 23 November 1970, as amended prior to the adoption of Council Directive 84/587 of 29 November 1984, provided for harmonization excluding the possibility for Member States to rely on Article 36 of the Treaty in order to impose, on the importation from other Member States of feedingstuffs containing additives, national measures intende
