Master's Program 2004/2005 Technical and Fiscal Barriers ... - Lexnet

61997J0319 European Court reports 1999 Page I-03143 3
(now, after amendment, Article 95 EC) and Article 100a(4) allows Member States to request a derogation
from the implementation of that directive.
2. The direct effect of a directive, where the deadline for its transposition into national law has expired, is
not affected by the notification made by a Member State pursuant to Article 100a(4) of the EC Treaty
seeking confirmation of provisions of national law derogating from the directive, even where the
Commission fails to respond to that notification.
1 By order of 6 August 1997, received at the Court on 16 September 1997, the Landskrona Tingsrätt
(District Court, Landskrona) referred to the Court for a preliminary ruling under Article 177 of the EC
Treaty (now Article 234 EC) three questions on the interpretation of Article 100a(4) of the EC Treaty
(now, after amendment, Article 95(4) to (9) EC), and European Parliament and Council Directive 94/36/EC
of 30 June 1994 on colours for use in foodstuffs (OJ 1994 L 237, p. 13; hereinafter `the Directive').
2 Those questions were raised in criminal proceedings brought by the Swedish Public Prosecutor against
Mr Kortas for infringement of provisions concerning the use of additives in the composition of foodstuffs.
3 Mr Kortas is charged with having sold in his shop, until 15 September 1995, confectionery products
imported from Germany and containing a colorant called E 124 or `cochineal red'. Under Article 6 of the
Livsmedelslag (1971:511) (Swedish Law on foodstuffs), the only substances which may be used as
additives are those which have been approved specifically for the food product concerned. For the period
between 1 January 1994 and 30 June 1996, approved additives were listed in the annexes to the Statens
Livsmedelsverks Kungörelse (1993:33) om Livsmedelstillsatser (Notice on food additives issued by the
National Food Administration). For the subsequent period, they were listed in the Statens Livsmedelsverks
Kungörelse (1995:31) med Föreskrifter och allmänna Råd om Livsmedelstillsatser (Guidelines on food
additives issued by the National Food Administration), which applied from 1 July 1996. According to
those guidelines, the use of E 124 as an additive in confectionery is not permitted. Furthermore, pursuant
to Article 30 of the Swedish Law on foodstuffs, contravention of that prohibition is a punishable offence.
4 However, E 124 is one of the colorants approved by the Directive for use in confectionery. Under
Article 2(1) and (2) of the Directive, the substances listed in Annex I thereto may be used as colorants in
foodstuffs under certain conditions, defined in Annexes III to V. E 124 is one of the substances which
may be used up to a maximum level of 50 mg/kg or 50 mg/l.
5 Article 9 of the Directive provides that Member States are to bring into force, not later than 31
December 1995, the laws, regulations and administrative provisions necessary to comply with the
Directive, which was adopted on the basis of Article 100a of the Treaty.
6 Article 100a(4) provides:
`If, after the adoption of a harmonisation measure by the Council acting by a qualified majority, a
Member State deems it necessary to apply national provisions on grounds of major needs referred to in
Article 36, or relating to protection of the environment or the working environment, it shall notify the
Commission of these provisions.
The Commission shall confirm the provisions involved after having verified that they are not a means of
arbitrary discrimination or a disguised restriction on trade between Member States.
By way of derogation from the procedure laid down in Articles 169 and 170, the Commission or any
Member State may bring the matter directly before the Court of Justice if it considers that another
Member State is making improper use of the powers provided for in this Article.'
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