C-205/89

COMMISSION v GREECE

O P I N I O N OF MR ADVOCATE GENERAL VAN GERVEN delivered on 10 January 1991 *

Mr President, 2. The remaining complaint relates to Members of the Court, Article 13 of Presidential Decree No 40/1977 concerning veterinary inspection of animals for slaughter and animal products. 3 Under Article 13(1) of that decree all imported foodstuffs must be accompanied by the original copy of a veterinary health certificate or a health certificate issued by a competent authority of the country from 1. By the present application the which the goods come. The certificate must Commission seeks a declaration that the be drawn up in Greek, English or French Hellenic Republic has failed to fulfil its obli- and must have been issued within two weeks gations under Regulation No 804/68/EEC of the departure of the means of transport of the Council of 27 June 1968 on the used for carrying the goods. 4If my under- common organization of the market in milk standing is correct, under Article 13(3) of and milk products 1 and under Articles 30 the decree foodstuffs may be imported into and 36 of the EEC Treaty. It takes the view Greece only if the health certificate contains that the requirement under the Greek legis- all the information which must be indicated lation to produce a health certificate on the in the country from which the goods come importation of pasteurized butter in respect in accordance with that country's rules of which the pasteurization process is concerning foodstuffs, in so far as it corres- indicated on the label or a mark is contrary ponds to the information which is provided to those provisions. for by the corresponding Greek provisions.

The Court has however also consistently held that national rules introduced to The Commission's view cannot be disputed. achieve any of the objectives referred to in The Court has expressly held inter alia in its Article 36 of the Treaty are only compatible judgment in Denkavit Futtermittel with the Treaty if they go no further than is (paragraph 11) 5 that a requirement to necessary, that is to say they are of such a produce a certificate of that kind constitutes nature as to achieve the objective sought a measure having equivalent effect to a and are essential because there is no alter- quantitative restriction on imports. native means of achieving the objective Moreover, the requirement discriminates which restricts the free movement of goods against products of Member States other less. 8 Moreover, the measure must be than the importing country. It therefore falls proportionate to the objective sought. 9 as such under Article 30 of the EEC Treaty 6and hence can only be justified on the basis of Article 36 of the EEC Treaty.

5. The written observations of the parties do not clearly indicate the content of the health certificate required by the Greek 4. In the Greek Government's view the legislation. The Greek Government obligation to produce the certificate on explained the content of the certificate at importation is justified on grounds of the request of the Court. In addition to protection of human health. Consequently, information concerning the identity, the it is necessary to consider whether the origin and the destination of the product, requirement remains within the margin the certificate must contain a declaration which Article 36 of the EEC Treaty, as made by a veterinarian officially recognized interpreted by the Court, leaves to the in the country from which the goods come Member States. to the effect that 10

'(a) the raw material comes from: 6. Most if not all details to be mentioned on the certificate concern matters which may be determined at the moment of production or packing of the butter in the 1. an area which has been free from exporting country. That applies to the foot and mouth disease for at least absence of the diseases mentioned at (a)l, 2 six months; and 3 in the area, the farm or the animals from which the milk used in making the butter comes. That also applies to verifi- cation of the fact that the undertaking 2. cattle farms that are inspected for, producing the butter is subject to health and are free from tuberculosis, controls ((b)l), that no substances brucellosis and other transmittable prohibited by the legislation of the country diseases; of origin are added to the butter ((b)2), that the butter is packed in suitable materials ((b)3) and that it is marketed in the country 3. animals which do not suffer from of origin with the same composition and the mastitis; same characteristics ((b)4, second clause). That does not apply, or at least not to the same extent, to the requirement that the product should be free from pathogenic (b) the product micro-organisms and suitable for human consumption ((b)4, first clause), since these characteristics may change and possibly should also be verified subsequent to the 1. is prepared in an undertaking which time of production. I shall therefore is subject to official health examine this point separately later. inspections;

2. contains no substances that are prohibited by the applicable legis- lation; 11

9. As regards the Community legislation, I would refer to Council Directive 85/397/EEC of 5 August 1985 on health and animal-health problems affecting intra- 8. In my view there can be no doubt Community trade in heat-treated milk. 14 concerning the principle itself. I consider Article 3 A(l)(f) of the Directive, read in that it is reasonable for the Greek auth- conjunction with Annex A, Chapter X, and orities to require a certificate for imports of Annex B, imposes on the exporting Member butter showing that the butter is produced State the obligation to ensure that heat- and packed in accordance with the treated milk which is sent to another applicable health provisions in the exporting Member State is accompanied by a health country and that it is marketed in that certificate on which a veterinarian or country with the same composition and another competent authority of an equi- characteristics. A certificate issued by a valent level appointed by the competent competent person in the exporting country- central authority certifies that the imported offers such a guarantee. I consider that, milk has been produced in accordance with contrary to the Commission's view, no the conditions concerning production and adequate guarantee is provided by labelling inspection contained in the directive. In the provisions which are intended to inform the twelfth recital in the preamble to the customer of the characteristics of the directive it is stated that the issue of a product 12 but do not give (reasonable) certificate by the competent authority of the assurance that the applicable health exporting country is the most appropriate provisions concerning the raw material, means of giving the competent authorities of production and packing of the butter were the country of destination the assurance that observed. 13 a consignment of heat-treated milk complies with the requirements of the directive.

heat-treated milk. 15 There is in my view no exporting Member State (see paragraph 29 reason to distinguish between the two milk of the judgment). 17 products in relation to these requirements. I find it difficult to imagine that milk from unhealthy cows, unhygienic forms of production or unsuitable packaging constitutes a danger to health against which the public must be protected only in the case of heat-treated milk and not in the case of 11. Whilst I have no objection to the actual pasteurized butter. Admittedly in the principle of the certificate required by the absence of harmonization the present case Greek Government, I do have problems concerns compliance with national with the detailed provisions governing the provisions. However, I do not see why a certificate. It should be remembered that certificate required with a view to ensuring Article 13 of the Greek Decree requires the compliance with such provisions must be production of the original copy of the assessed differently from a certificate health certificate for all imponed animal required by a Council regulation in order to foodstuffs, in this case butter, and that the ensure that Community provisions of this document must be issued two weeks before type are observed. the departure of the means of transport by a veterinarian or a competent authority.

Directive; — point (a)2 and 3 of ihe certificate with Article 3 specified period stating that butter coming A(l)(a)(n) of the directive, read in conjunction with from a particular producer has been Annex A, Chapter VIII A points 1(a) to (d); — point (b)l of the certificate with Article 3 A(l)(b) and produced, packed and marketed in Anicie 5(1) and (2) of the directive; — point (b)2 of the certificate with Article 11(3) of the accordance with the health requirements in directive; the country of production. — point (b)3 of the certificate with Article 3 A (l)(d) of the directive, read in coniunction with Annex A, Chapter VIII 17 — See also the abovementioned ludgment in Case 73/84 16 — [1983] ECR 203. Denkavit Futtermittel, paragraph 15.

12. There remains one further point for me and that appropriate information should be to consider. As already mentioned, the given on the label of the butter intended for certificate required by the Greek legislation the consumer, in particular the information must state that the imported pasteurized mentioned in Directive 79/112/EEC butter contains no pathogenic micro- concerning labelling of foodstuffs. The organisms and is suitable for human Greek Government has, however, been consumption. If my understanding is unable to show that the abovementioned correct, this could involve a requirement to phenomena are a danger to health. For its carry out a physical health inspection after part the Commission has produced the the pasteurized butter is produced and results of an inquiry from which it appears shortly before each consignment of butter that in the Member States which took part intended for importation into Greece is in the inquiry no health problems arose dispatched. concerning pasteurized butter in the previous twenty years. That inquiry indicates that, where pasteurized butter is produced in accordance with the rules laid down in the various Member States, it does not present any real danger to health even though chemical or enzymatic reactions In this connection the Commission has may occur after production. convincingly shown that pasteurized butter is a microbiologically stable product which does not constitute a suitable environment for the growth of microbes. The Greek Government, which must under the case-law of the Court show that the conditions for derogating from the prohibition of principle laid down in Article The additional guarantee for human health 30 of the EEC Treaty are met, 18 has provided by the production of a declaration produced no evidence to show that the obli- concerning the absence at the time of gation in question is necessary for the importation of pathogenic micro-organisms protection of human health and is and the suitability of the butter for proportionate to the additional guarantee consumption at that time is therefore which this obligation provides. It cannot extremely limited. Consequently, it must be rely on an application by analogy of concluded that such a requirement is not Directive 85/397. The heat-treated milk proportionate to the objective sought and is covered by that directive is a microbiol- not necessary in order to achieve that ogically unstable product. objective. It is sufficient for that purpose that there should be produced a health certificate valid for a specific period on which a veterinarian or a competent authority declares that the pasteurized butter was produced and packed in accordance with the health requirements of the exporting country, in particular The observation that butter may become regarding the origin of raw materials and rancid, oxidized and mouldy is of course absence of prohibited substances in the correct. In that connection it is important butter, and that it is suitable for human that the butter should be properly packed consumption in the exporting country and is marketed there with the same composition 18 — See the abovementioned judgment in Case C-128/89 and characteristics. Commission v Italy, paragraph 23.

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