C-216/84

My Lords, importation of such products, but contends that the prohibition is justified on three grounds: (a) to protect public health; (b) to protect the consumer from deception; (c) to avoid an obstacle to the implementation of Article 1 of the French Law of 29 June 1934 Article 39 of the EEC Treaty. on the protection of milk products (Journal officiel de la République française, 1 July 1934) provides: 'It is forbidden to manu­ facture ..., sell, import, ... There is no doubt that prima facie this provision falls within Article 30 as a measure having an equivalent effect to a quantitative restriction as defined in Case 8/74 Procureur du Roi v Dassonville [1974] (3) under the name "milk powder", ECR 837, at p. 852, notwithstanding that it "concentrated milk" whether or not is applicable both to domestic and to followed by a qualification, or under imported products. (Case 120/78 Cassis de any fancy name whatsoever, a product Dijon [1979] ECR 649.) having the appearance of milk powder or concentrated milk, intended for the same uses and not originating exclu­ sively from the concentration or drying In support of its claim that this measure is of milk or of skimmed milk, sweetened justified on grounds of public health France or not; in particular the addition of relies both on Article 36 of the Treaty and extraneous fats is forbidden'. Article 15 of Directive 79/112 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (Official Journal 1979, L The Commission contends that this 33, p. 1) which enables Member States to provision has the effect of prohibiting the forbid on grounds of public health trade in importation into France of any product foodstuffs which otherwise comply with the designed to replace milk powder and rules laid down in the directive. The concentrated milk, but made of different argument is in three parts. First, it is said substances, whatever the trade name of the that milk substitutes made from vegetable product may be. It accordingly asks the products are nutritionally inferior to milk. Court to declare that in maintaining and They have, for example, lower quantities of applying these provisions France is in breach protein, certain minerals and vitamins. This of Article 30 of the Treaty. the Commission accepts in respect of some of the base products such as coconut and palm oil but not in respect of others such as soya. On the evidence, it seems to me, that it cannot be said that all of the sources of France does not deny that the prohibition the substitute products are necessarily amounts to a complete ban on the

inferior. In any event it does not seem to me automatic vending machine, where the that the mere fact that one product is better purchaser of the powder as such is not the than another necessarily justifies the total ultimate consumer. However, it seems to me exclusion of the latter. Secondly, it is said that there is no insurmountable problem that these products are or may be positively here. The base product sold to the harmful to health. There is obviously an middleman can be labelled so that he knows issue between medical practitioners and what he is getting and there is nothing to scientists as to the relative merits of animal prevent a Member State from requiring that and vegetable fats and their effect on, e. g. vending machines should clearly indicate cholesterol levels and heart disease. I do not whether milk powder or a substitute is being consider that this ground has been made out used. It is said, however, that the greatest even on the basis put forward that the difficulty arises in canteens or restaurants Frenchman's diet is already overloaded with where powdered substitutes may be used in fats which milk substitutes only go to coffee or tea and in preparing other foods. increase. If this were a valid ground it is This is obviously a much wider problem difficult to see why the prohibition is not than that relating to milk — the consumer absolute equally in respect of margarine and does not know, unless he asks, whether his other vegetable-based products. Thirdly, it food is sweetened by sugar or saccharine, is said that these products are particularly prepared with butter or vegetable-based deficient for such groups as young children, margarine, flavoured with natural or old people and pregnant women who need synthetic products. If it matters to him on milk. It may be so, but it cannot justify a grounds of taste or health he can ask. If it complete ban for the whole population, matters to Member States they can prescribe even if it obliges these classes to make rules requiring restaurants and canteens to particular enquiries to ensure that they are give clear notice of the particular products getting milk. which they use. Such a power is given by Article 1 (2) of the directive although, as I see it, it exists independently of the directive.

It is said, however, that labelling is not Finally it is said that the Community has sufficient for a separate reason. In reality vast milk and milk powder surpluses. To let the consumer has no choice. Substitute in vegetable substitutes undermines the products are cheaper; the middleman's or common agricultural policy since a large the retailer's profit margins are higher so percentage of the vegetable substitutes come that all vending machines and canteens will from outside the Community. It also use a powder substitute. This is, however, a imposes a burden on the Community two-edged argument. If choice is the deter­ budget. The Commission's reply is that an mining factor, at present the person who increasing quantity of oleaginous seeds are wants vegetable-derived substitutes has no now produced in the Community and that choice in France so that on that argument the quantity of powdered substitute sold is the products should be let in. Again, so small that it can have no appreciable however, it seems to me that the matter effect on milk stocks. should be left for the consumer to decide. If he wants only milk he will ask for it in a restaurant and not take white coffee from a machine which gives only milk substitute. In my view, whether a ban on the He must decide between the lower price importation and sale of a product is in and the product he really wants. If the breach of Article 30 cannot depend on demand for milk is as great as is suggested whether, at any moment of time, the then marketing practices will change. Only Community has a glut or a deficit of if it could be shown that the use of another product. It is in any event for the substitutes was harmful to health could such Community and not Member States to deal a prohibition on grounds of choice be with the problem as part of the common justified. Here it has not been shown. agricultural policy.