Aklagaren v. Antoine Kortas, Case C‐139/97 (Azo Dyes)

• Published date: 01 November 1999
• Author: Lara Levis
• Date: 01 November 1999
• DOI: http://doi.org/10.1111/1467-9388.00219

Volume 8 Issue 3 1999 Case Notes

Aklagaren v. Antoine Kortas,

Case C-319/97 (Azo Dyes)

Introduction

This judgment of the European Court of Justice (ECJ)

was issued on 1 June 1999, 6 months after the Com-

mission provided a Decision related to the same issue.

1

In the earlier Decision the Commission refused to allow

Sweden to maintain legislation containing stricter stan-

dards than the European Community (EC) legislation

regarding food additives, particularly azo dyes (or E

124). The ECJ judgment discussed here addresses the

question whether Sweden was allowed to apply stricter

legislation during the three years that it took the Com-

mission to reach its decision.

In the 1970s the Swedish authorities decided to limit the

use of E 124 in Sweden because studies had shown that

the consumption of this substance involved risks of

allergies, urticaria and asthma. Subsequently the Swed-

ish Law on foodstuffs was amended, allowing only sub-

stances approved by the National Food Administration

to be used as additives. E 124 was not allowed as an

additive in confectionery.

Six months before Sweden joined the European Union

(EU), the EC adopted Directive 94/36/EC on colours for

use in foodstuffs.

2

This Directive permits the use of E

124 in foodstuffs under the conditions specified in its

Annex III. The Directive, adopted on the basis of Article

100a of the Treaty,

3

was required to be implemented by

Member States not later than 31 December 1995.

When Sweden joined the EU in 1995, it requested a tem-

porary derogation to the Directive under Article 151 of

the Act of Accession. This derogation was refused by

the Commission. Sweden then sought recourse to Article

100a(4) of the EC Treaty. Article 100a(4) allowed a Mem-

ber State to maintain stricter legislation if it ‘deems it

necessary to apply national provisions on grounds of

major needs referred to in Article 36 of the EC Treaty

(now: Article 30), or relating to protection of the environ-

ment or the working environment’. If a Member State

wishes to adopt or maintain stricter legislation it must

notify the Commission and await confirmation from the

Commission that it is satisfied that the stricter measures

are not discriminatory or restricting trade in the EC. On

5 November 1995 the Swedish Government notified the

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347

Commission of its intention to maintain its national pro-

visions prohibiting the use of E 124. The Commission did

not reply to the notification until 21 December 1998,

when it said Sweden could not apply its stricter legis-

lation.

4

Facts

Until September 1995 Mr Kortas sold confectionery pro-

ducts imported from Germany, containing E 124. He was

prosecuted for violating the Swedish law on foodstuffs.

Swedish criminal law requires courts to apply the lesser

of the penalty on the date when the offence was commit-

ted or the penalty at the time that the judgment is given.

Mr Kortas argued that the current Swedish legislation

violates Directive 94/36. According to Mr Kortas, as this

Directive has direct effect, he could not, at the time of

the judgment, be prohibited from selling products con-

taining E124. The Public Prosecutor argued that the long

silence of the European Commission following the Swed-

ish notification under Article 100a(4) amounted to an

implicit acceptance of the derogation. Faced with these

two arguments, the national court referred three ques-

tions to the ECJ for a preliminary ruling. The ECJ inter-

preted these questions as:

1) Can a directive have direct effect even if its legal

basis is Article 100a of the Treaty and Article 100a(4)

allows Member States to request a derogation from the

implementation of that directive;

2) Is the direct effect of a directive, where the deadline

for its transposition into national law has expired, affec-

ted by the notification made by a Member State pursuant

to Article 100a(4) of the Treaty, seeking confirmation of

provisions derogating from the directive.

The Decision of the ECJ

The ECJ’s answer to the first question was that ‘the gen-

eral potential of a directive to have direct effect is wholly

unrelated to its legal basis (%)’ (para 22).

5

It depends

only on ‘the intrinsic characteristics’ of the directive, i.e.

if it is sufficiently precise and unconditional.

The second question could have more implications for

the relationship between trade and environment within

the EC. In Article 100a(4) the aim of the notification pro-

cedure is to discourage Member States from applying

national rules derogating from the harmonized legis-

lation without obtaining confirmation from the Com-