In the context of the organization of the powers of the Community the choice of the legal basis for a measure must be based on objective factors which are amenable to judicial review ( see judgment of 26 March 1987 in Case 45/86 Commission v Council (( 1987 )) ECR 1493 ).
Article 43 of the Treaty is the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the achievement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty . Even where such legislation is directed both to objectives of agricultural policy and to other objectives which, in the absence of specific provisions, are pursued on the basis of Article 100 of the Treaty, it may involve the harmonization of provisions of national law in the latter field without there being any need to have recourse to Article 100 . In view of the precedence which Article 38(2 ) of the Treaty gives to specific provisions in the agricultural field over general provisions relating to the establishment of the common market, Article 100 cannot be relied on as a ground for restricting the field of application of Article 43 ( see judgments of 23 February 1988 in Cases 68/86 and 131/86 United Kingdom v Council (( 1988 )) ECR 855 and 905 ).
Although Directive 87/519 amending Directive 74/63 on undesirable substances and products in animal nutrition, may refer incidentally to certain products not included in Annex II, it applies essentially to products within that annex; furthermore, it is an essential factor in increasing agricultural productivity, which is the stated objective of Article 39(1)(a ) of the Treaty . Consequently, the directive should have been adopted by the Council on the basis of Article 43 alone . Since that was not the case, it must be declared void .
In Case C-11/88
Commission of the European Communities, represented by René Barents, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,
applicant,
v
Council of the European Communities, represented by Arthur Brautigam and Moyra Sims, respectively Principal Administrator and Administrator in the Legal Department of the Council, acting as Agents, with an address for service in Luxembourg at the office of Joerg Kaeser, Manager of the Legal Directorate of the European Investment Bank, 100 boulevard Konrad-Adenauer,
defendant,
APPLICATION for a declaration that Council Directive 87/519/EEC of 19 October 1987 amending Directive 74/63/EEC on undesirable substances and products in animal nutrition ( Official Journal 1987, L 304, p . 38 ) is void,
THE COURT
composed of : O . Due, President, Sir Gordon Slynn and F . A . Schockweiler ( Presidents of Chambers ), G . F . Mancini, R . Joliet, T . F . O' Higgins, J . C . Moitinho de Almeida, G . C . Rodríguez Iglesias and F . Grévisse, Judges,
( the grounds of the judgment are not reproduced )
hereby :
( 1 ) Declares void Council Directive 87/519/EEC of 19 October 1987 amending Directive 74/63/EEC on undesirable substances and products in animal nutrition;
( 2 ) Orders the Council to bear the costs .
