C-261/85

(2) by requiring heat-treated cream and 5. Before considering that question, I must milk-based drinks to be manufactured in however express a view on the United Great Britain only from milk produced Kingdom's statement to the effect that the in Great Britain and, in Northern Commission changed the subject-matter of Ireland, only from milk produced in the action during the course of the Northern Ireland, the United Kingdom proceedings. What happened was that on 5 had failed to fulfil its obligations under August 1985, that is to say 15 days before Article 30 of the Treaty and Regulation the Commission's application was lodged, No 804/68 of the Council of 17 June the Council adopted Directive 85/397/EEC 1968 on the common organization of on health and animal-health problems the market in milk and milk products. 1 affecting intra-Community trade in heat- treated milk, 3that is to say milk which has been pasteurized, sterilized or treated at an 2. During the course of the proceedings, ultra-high temperature (UHT). That the Commission abandoned its second directive is intended to approximate the submission after the United Kingdom had relevant laws of the Member States by repealed the relevant legislation. laying down Community rules concerning production, treatment and transport and by setting up a Community control system. By 3. In order to avoid the need to return to virtue of Article 16 of the directive, it must this subject later, I should like to say at this be transposed into the legislation of the stage that, pursuant to Article 69 (4) of the Rules of Procedure, the costs relating to this 2 — In that connection, I would refer to the judgment of the Court of 14 December 1979 in Case 34/79 Reginu v Henn part of the application should be paid by the and Darby [1979] ECR 3795, in which it is stated that United Kingdom, whose conduct justified Article 30 'applies also to prohibitions on imports inasmuch as they are the most extreme form of restriction' and that the Commission's partial discontinuance. 'the expression used in Article 30 must therefore be understood as being the equivalent of the expression "prohibitions or restrictions on imports" occurring in * Translated from the French. Article 36' (paragraph 12). 1 — Official Journal, English Special Edition, 1968 (1), p. 176. 3 — Official Journal 1985, L 226, p. 13.

Member States by 1 January 1989 at the the infringement alleged by the Commission latest. (in other words the subject-matter of the application) remained the same, namely the United Kingdom's prohibition of imports of 6. Needless to say, there was no reference pasteurized milk and unfrozen pasteurized to that directive in the reasoned opinion, cream. and in its rejoinder the United Kingdom levels the criticism that the Commission 9. We can now consider that substance of changed the subject-matter of the the case. The Court has in the past firmly application by stating that even before that established that date the United Kingdom was no longer entitled to prohibit imports of pasteurized milk which satisfied the standards laid down 'in the absence of harmonization in this in that directive. According to the United field, it is for the Member States to Kingdom, by so doing the Commission determine .

10. The fact is that 'the purpose of Article 36 of the Treaty is not to reserve certain 7. In my view, that argument is unac matters to the exclusive jurisdiction of the ceptable. On the one hand, it was the Member States'. Since it allows derogations United Kingdom which, in its defence, from the fundamental principle of the free sought to secure an advantage from the movement of goods, it authorizes 'restrictive existence of that directive by drawing measures. . . only in so far as they are attention to the disparities between the "justified", that is to say necessary in national rules and the need for a order .

Moreover, from the time of the letter judgment of 15 July 1982 in Case 40/82 Commission v calling upon the United Kingdom to submit United Kingdom [1982] ECR 2793: ' . . . the effects of health policy on imports from other Member States cannot its observations to the time of the exceed the limits laid down by Community law' (paragraph 34). Commission's reply in these proceedings, 7 — Sec for example the judgment of 12 July 1979 in Case 153/78 Commission v Germany [1979] ECR 2555, 4 — See for example the judgment of 15 December 1982 in paragraph 5. Case 211/81 Commission v Denmark [1982] ECR 4547, 8 — See for example the judgments in Melkunie and De Peijper, paragraph 14. supra, paragraphs 12 ana 17 respectively.

15. In essence it based that view on the same considerations as in this case, namely 'the disparities in the laws of the Member 19. That seems to me to be the case in these States relating to the production and proceedings too. treatment of … milk, ... the varying degree of application of those different laws and ... the impossibility of exercising control over the production cycle of… milk 20. The United Kingdom should at least in the other Member States from collection provide for the possibility of allowing at the farm to packing and distribution'. It imports of pasteurized milk and unfrozen also stated that 'such control is indis­ pasteurized cream originating in another pensable for ensuring that the milk obtained Member State and produced and marketed is free of any bacterial or virus infection' under objective conditions identical to those (paragraph 24). which it has adopted for itself. In other words, milk producers in the other Member States should have an opportunity of proving that the pasteurized milk produced 16. As far as the present case is concerned, by them fulfils the conditions laid down in the United Kingdom takes the view that the United Kingdom legislation. However,

OPINION OF MR MISCHO —CASE 261/85

22. As the Court also pointed out in para regardless of the type of heat treatment graphs 30 and 31 of its judgment of 8 (sterilization, pasteurization, ultra-high- February 1983, provision could be made, temperature treatment) which it will within the framework of cooperation subsequently undergo. between the authorities of the Member States, for substantiating documents or 25. It seems to me in particular that the certificates issued by the competent auth dairies which are now exporting UHT milk orities in the exporting Member States to to the United Kingdom under the certificate certify that the products in question comply to which I referred earlier should be with the United Kingdom requirements. By allowed to export pasteurized milk to the thus creating a presumption of the United Kingdom after a straightforward conformity of the imported products with check of their pasteurizing methods and the requirements of the legislation of the facilities. importing country, those documents would facilitate and simplify frontier checks,

I confess that I am very amenable to the Commission's 23. That is what the United Kingdom did, reasoning to the effect that pasteurized milk following the judgment of the Court in the which already conforms to the requirements UHT milk case, by preparing, in consul of that directive should be able to be tation with the Commission and the various imported into the United Kingdom now Member States, a model public-health even though the period for the implemen certificate to be signed by the competent tation of the directive has not yet expired. authorities in the exporting Member State Products which will be regarded as not and to accompany milk imported into the constituting any danger to health as from 1 United Kingdom (see Appendix 9 to the January 1989 should also be so regarded at defence). At first sight there is nothing to the present time. prevent such a system from being applied to pasteurized milk and unfrozen pasteurized 27. It would not be a question of giving

COMMISSION v UNITED KINGDOM

time prescribed for its implementation has 31. The risk that imported milk not elapsed, but merely of accepting that conforming to the standards might already pasteurized milk complying with agreed have reached consumers' tables when the common standards offers sufficient guar­ result of the checks carried out at the antees to ensure effective protection of retailers' premises are known is therefore human health. somewhat hypothetical.

33. The agent for the United Kingdom contended, however, that the Commission had not been able to prove that any other 29. The United Kingdom stated in Member State was at present able to give a paragraph 3.14 of its defence that at the guarantee that milk pasteurized on its present time, in the case of domestic territory already complied with the United production, 'the sampling of heat-treated Kingdom standards or those laid down in milk is carried out at dairies or at the retail the directive. point of sale by environmental health officers or by trading standards officers'.

34. In that connection it should be pointed out in the first place that the United Kingdom should have indicated specifically 30. It would therefore be sufficient for in what respects it considered the guarantees those officers to extend their checks to and controls prescribed in the other imported pasteurized milk. The milk will in Member States to be insufficient, 9 rather any case have been subject to controls in the country of origin (from the farm until 9 — See judgment of 8 November 1979 in Case 251/78 bottling) and will be accompanied by a Denkavit Futtermittel v Minister fur Ernäbrung, Land- wirtschaft und Forsten [1979] ECR 3369, paragraphs 24 and health certificate. 28.

OPINION OF MR MISCHO — CASE 261/85

than confining itself to emphasizing the 5 of the form of certificate contained in disparities existing in that connection as Appendix 9 to the defence). The possibility between the other Member States them­ cannot therefore be ruled out that, after selves and between the United Kingdom verification of the pasteurization methods and the other Member States. The fact that used by them, those dairies could also be the relevant national rules are different does regarded as meeting the United Kingdom not mean that they cannot be equivalent. standards in that respect.

40. It should then be borne in mind that a total prohibition without limitation as to 36. Those statements, for which no written time, justified by circumstances existing at a evidence was provided, cannot of course be particular moment, would render the regarded as decisive. But the fact is that situation immutable and make it impossible, neither the Commission nor the United for an indefinite period, to achieve one of Kingdom seems to have approached the the principle aims of the Treaty, namely the other 11 Member States or their dairies for free movement of goods. the purpose of carrying out a systematic investigation and accordingly it cannot be 41. Finally, the Court has consistently held stated with certainty that none of those that the prohibition contained in Article 30 dairies could satisfy the conditions laid of the Treaty also refers to rules which are down in the United Kingdom legislation or potentially liable to hinder intra-Community in the directive. trade. It is not necessary for an undertaking in another Member State actually to show that it was interested in exporting the goods in question and was in a position to do so. 37. As I have already indicated, the continental dairies authorized to export 42. To summarize, my view is therefore UHT milk to the United Kingdom fulfil that a Member State may not, by law or requirements which are regarded as satis­ regulation, prevent an exporter from factory by the United Kingdom authorities another Member State from furnishing regarding the condition of the milk before it proof that his product satisfies the rules of is treated (see in that connection paragraph the country of importation.

43. Moreover, the Court has already held warning letter to the United Kingdom on 2 in its judgment of 28 January 1986 in Case February 1984 and the latter could therefore 188/84 Commission v France [1986] ECR have remedied the situation during that 419) that a Member State same year. 'is not entitled to prevent the marketing of a 47. Moreover, it must not be forgotten that product originating in another Member State which provides a level of protection of ' ... the Court has consistently held, for the health and life of humans equivalent to example in the judgment of 7 February 1973 that which the national rules are intended to in Case 39/72 Commission v Italy [1973] ensure or establish. It is therefore contrary ECR 101, that the subject-matter of an to the principle of proportionality for action brought under Article 169 of the national rules to require such imported Treaty is established by the Commission's products to comply strictly and exactly with reasoned opinion and even where the the provisions or technical requirements laid default has been remedied after the period down for products manufactured in the prescribed in the second paragraph of that Member State in question'. article has elapsed, an interest still subsists in 44. It is therefore hardly conceivable that the action. That interest may in particular the total prohibition of imports of consist in establishing the basis for a liability pasteurized milk laid down in the United which a Member State may incur towards Kingdom legislation could be justified under those to whom rights accrue as a result of 10 Article 36. that failure.' 45. It might, however, be objected that it 48. Finally — and this is the most important would not be reasonable to require the point — the United Kingdom is at liberty to United Kingdom to establish a new system transpose Directive 85 / 397 / EEC into its based on bilateral collaboration with the national law at any time before 1 January Member States which are prepared to 1989. If it does so, it will thereby put an end furnish the requisite guarantees a few to its infringement (the absolute prohibition) months before the entry into force of a without having to establish a transitional directive harmonizing legislation in that regime, and at the same time will be sure area. that only milk pasteurized in accordance 46. It must however be stated in that with the standards of the directive will enter connection that the Commission sent a its territory.