ECJ 1. Article 177 is based on a distinct separation of functions between national courts and tribunals on the one hand and the court of justice on the other, and it does not give the court jurisdiction to take cognizance of the facts of the case, or to criticize the reasons for the reference. Therefore, when a national court or tribunal refers a provision of community law for interpretation, it is to be supposed that the said court or tribunal considers this interpretation necessary to enable it to give judgment in the action. Thus the court cannot require the national court or tribunal to state expressly that the provision which appears to that court or tribunal to call for an interpretation is applicable. The court may however provide the national court with the factors of interpretation depending on community law which might be useful to it in evaluating the effects of the provision which is the subject-matter of the questions which have been referred to it.
2. Directive no 70/524 (additives) and directive no 74/63 (undesirable substances) although both relating to the composition of feeding-stuffs make, as regards their respective fields of application, a distinction between certain substances which are inten- tionally added to those feeding-stuffs so as to produce a favourable effect on their characteristics and, on the other, undesirable substances which are inevitably present in those feed- ing-stuffs either in the natural state or as residues from processing previously undergone by those feeding-stuffs or by the constituents of those feeding-stuffs. In these circumstances a substance which, because of a previous admixture, independent of the use for animal feeding, is necessarily present in one of the constituents of the feeding-stuff as a residue from the previous manufacture of another product may not be considered as an additive. The control of the presence of such substances comes within directive no 74/63 (undesirable substances) and not within directive no 70/524 (additives).
3. Article 36 is not designed to reserve certain matters to the exclusive jurisdiction of member states but permits national laws to derogate from the principle of the free movement of goods to the extent to which such derogation is and continues to be justified for the attainment of the objectives referred to in that article. Where, in application of article 100 of the treaty, community directives provide for the harmonization of the measures necessary to ensure the protection of animal and human health and establish community procedures to check that they are observed, recourse to article 36 is no longer justified and the appropriate checks must be carried out and the measures of protection adopted within the framework outlined by the harmonizing directive.
4. (A) even after the entry into force of harmonizing directive no 74/63, the member states have, within the context of article 5 of that directive and subject to the material and procedural require- ments laid down therein, the power provisionally to consider as undesirable certain substances which, although known and recognized when that directive was adopted, do not appear in the list annexed thereto, provided that the measures adopted apply on identical terms to both national products and to products imported from other member states.
(B) subject to the obligation not to discriminate between imported products and national products, article 5 of directive no 74/63 enables a member state to fix, on a provisional basis, the maximum permitted level of a substance con- tained in imported feeding-stuffs made from powdered milk even though no maximum level has ever been fixed in the past either in the exporting member state or in the importing member state.
(C) article 5 of directive no 74/63 enables a member state to prohibit the marketing of the products which have been found to infringe the temporary national provisions which it is empowered to adopt. For products coming from other member states such prohibition on marketing may take the form of a prohibition on importation.
Citations:
R-5/77, [1977] EUECJ R-5/77
Links:
Jurisdiction:
European
Cited by:
Cited – Oracle America Inc v M-Tech Data Ltd SC 27-Jun-2012
The appellant complained that the respondent had imported into the European Economic Area disk drives bearing its trade marks in breach of the appellant’s rights. The respondent had argued that the appellant had abused its position by withholding . .
Lists of cited by and citing cases may be incomplete.
European
Updated: 21 June 2022; Ref: scu.214569