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ment, Article 37 EC), this directive is 6. Chapter III in Annex C contains the intended to ensure the rational develop- requirements relating to wrapping and ment of the milk sector, 7 ensure the pro- p a c k a g i n g of t h e p r o d u c t . U n d e r tection of public health 8 and contribute to Chapter 111(5), the packaging of the heat- the establishment of the internal market. 9 treated milk must display the nature of the heat treatment, the date of the last heat treatment and, in the case of pasteurised milk, the temperature at which the product must be stored.

4. Article 5 of the directive requires the Member States to ensure that heat-treated drinking milk is not placed on the market unless it meets certain conditions set out inter alia in Annex C to Directive 92/46. 7. Chapter IV(B) in Annex C lays down certain conditions governing labelling. It provides that, without prejudice to the provisions of Directive 79/112, the label- ling must clearly show the 'use by' or minimum durability date for products in which growth of micro-organisms can occur. 5. Chapter I in Annex C relates to require- ments for the manufacture of heat-treated milk. Chapter I(A)(4)(a)(ii) provides that:

8. Directive 79/112 lays down rules relat- ing to the labelling and presentation of '[p]asteurised milk must... show a negative foodstuffs for sale to the ultimate con- reaction to the phosphatase test and a sumer. Adopted under Article 100 of the positive reaction to the peroxidase test. EEC Treaty (after amendment, Article 100 However, the production of pasteurised of the EC Treaty, and now Article 94 EC), milk which shows a negative reaction to the this directive is intended to remove peroxidase test is authorised, provided that obstacles to the free movement of goods, the milk is labelled as "high-temperature which result from the disparity between pasteurised".' national laws in this sector, and therefore to contribute to the functioning of the internal market. 1 0 7 — Second recital. 8 — Fourth recital. 9 — Fifth and seventh recitals. 10 — First and second recitals.

12. Directive 89/396 enacts rules relating to indications or marks identifying the lot 15. On the other hand, Law N o 169/89 to which a foodstuff belongs. Adopted contains no specific provision on high- under Article 100a of the EEC Treaty temperature pasteurised milk. According (which became Article 100a of the EC T r e a t y , a n d n o w , after a m e n d m e n t , 11 — Third recital. Article 95 EC), this directive is intended 12 — GURI No 180, of 11 May 1989, p. 1996 ('Law to ensure better information on the identity No 169/89').

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to the order for reference, 1 3 this type of II — Facts and procedure milk is obtained by a special method of pasteurisation (a steam infusion method), which gives it a shelf life of 15 to 20 days after preparation. Technically, high-tem- perature pasteurised milk is a milk which 18. Granarolo SpA 1 6 is a company based shows a negative reaction to the peroxidase in Bologna, Italy, where it markets, under test. the name 'Più Giorno', a high-temperature pasteurised milk, produced for it in Ger- many.

19. By decision of 11 February 2000, the Municipality of Bologna imposed on Gran- 16. Under Italian law, high-temperature arolo a fine of EUR 1 119.16 (ITL 2 167 pasteurised milk is referred to only by 000) for having infringed Article 5(3) of Presidential Decree N o 54 of 14 January Law N o 169/89. The Italian authorities 1 9 9 7 , 1 4 which implements Directives noted that the packaging of 'Più Giorno' 92/46 and 92/47/EEC. 1 5 milk bore a 'use by' date of eight days after treatment, instead of the four days required by that law.

Ill — The question submitted for a preliminary ruling

25. Granarolo is therefore seeking an argu- ment which would enable it to resolve all 23. As a result, the referring court decided its difficulties. Firstly, it wants to be able to to stay proceedings and to refer a question market its German-made products with a to the Court for a preliminary ruling, 'best before' date of more than four days. seeking to clarify whether: Secondly, it also wants to be able to market its Italian products with a 'use by' date of more than four days. Granarolo is therefore seeking a solution which applies not only to cross-border situations (such as the main 'application of the combined provisions of proceedings), but also, and especially, to Council Directive 92/46/EEC... (imple- purely domestic situations. mented in Italy by Decree N o 54/97) and Directives 89/395/EEC and 89/396/EEC... (implemented in Italy by Legislative Decree N o 109 of 27 January 1992) is limited by the content of a piece of national legislation (in particular Article 5(3), in relation to Article 3, of Law [No 169/89), with the 2 6 . G r a n a r o l o is n o t d i s p u t i n g L a w result that (according to the interpretation N o 169/89 in the light of Articles 28 EC which has been given thereto in the present and 30 EC, but maintains that Article 5(3) case) a "best before" date of four days after preparation would apply to milk pasteur- ised at high temperature (a type of milk 17 — See the order for reference (p. 10); Granarolo's written contemplated and governed solely by observations (pp. 13 and 14); the request for an early hearing, submitted by Granarolo on 18 June 2002 (p. 2); Directive 92/46 and Decree [No 54/97]).' and Granarolo's oral submissions.

18 — Although it is mentioned in the order for reference, 31. In these conditions, the literal inter- Directive 89/396 does not appear relevant to answering the question referred for a preliminary ruling. The only pretation of Directives 92/46 and 79/112 provision that it contains relating to the 'use by' date of foodstuffs is Article 5, which provides that, '[w]hen the cannot lead to the disapplication of the date of minimum durability or "use by" date appears on 'best before' date of four days for high- the label, the indication [which allows identification of the lot to which a foodstuff belongs] need not appear on the temperature pasteurised milk. foodstuff, provided that the date consists at least of the uncoded indication of the day and the month in that order'. Apart from this article, Directive 89/396 does not contain any provision which deals, directly or indirectly, with the date of minimum durability of milk products. I 19 — See, as a recent example of settled case-law, Case C-491/01 shall therefore restrict myself to examination of Directives British American Tobacco (Investments) and Imperial 92/46 and 79/112. Tobacco [2002] ECR I-11453, paragraph 203.

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32. Unlike Granarolo and the German or processing establishments, as well as Government, I think that this interpretation hygiene standards for the premises, equip- is confirmed by the general broad logic of ment and staff of these establishments. 2 1 It Directives 92/46 and 79/112. goes on to lay down requirements for the manufacture of heat-treated milk and milk- based products 2 2 and for the wrapping, packaging and labelling of products. 2 3 Finally, it covers the conditions for storing and transporting products 2 4 and the provi- sions in respect of health checks and supervision of production. 2 5 B — The broad logic of Directives 92/46 and 79/112

43. Thus, as far as the list of ingredients is 39. In these conditions, fixing the 'use by' concerned, for example, Directive 79/112 date for heat-treated milk does not fall provides that the labelling of foodstuffs within the scope of Directive 92/46. must include 'the list of ingredients'. 3 1 It specifies the cases in which this list may be omitted, 3 2 defines the concept of 'ingredi- ent' itself 3 3 and explains the way in which the ingredients are to be cited. 3 4 On the other hand, Directive 79/112 does not specify the ingredients which must form 40. The same holds true of Directive part of the composition of foodstuffs. 3 5 79/112.

44. Similarly, Article 3(1) of Directive 4 1 . As I have already said, this directive 79/112 provides that labelling must include lays down requirements relating to the the 'date of minimum durability' of the labelling and presentation of foodstuffs foodstuff or, in the case of highly perish- for sale to the ultimate consumer. able foodstuffs, the 'use by' date. Articles 9 and 9a define the concept of 'date of minimum durability' and the wording which should be used to indicate it. On

29 — Idem. 42. It is undisputed that Directive 79/112 30 — See, to that effect, the judgment in Case C-144/95 Maurin [1996] ECR 1-2909, paragraphs 10 and 11, and the contains, however, only rules of a pro- Opinion of Advocate General La Pergola in that case (point 4). cedural nature. It lays down methods of 31 —Article 3(1)(2). labelling, 2 7 the list of compulsory particu- 32 — Article 6(2). lars 2 8 and, where appropriate, the way in 33 — Article 6(4). 34 — Articles 6(5) to (8), 7 and 8. 35 — This question may possibly be covered by a sectoral directive relating to the relevant foodstuff (see, for 26 — See point 49 of this Opinion. example, Council Directive 79/693/EEC of 24 July 1979 on the approximation of the laws of the Member States 27 — Article 2. relating to fruit jams, jellies and marmalades and chestnut 28 — Articles 3 to 14. purée (OJ 1979 L 205, p. 5)).

47. Firstly, it was substantively impossible 49. Given the degree of precision of these to fix a 'use by' date for foodstuffs within requirements, it is obvious that, if the the framework of Directive 79/112, since, legislature had wished to fix a 'use by' date according to its third recital, this directive for raw milk, heat-treated milk or milk- enacts 'rules of a general nature applicable based products, it would have made sure to horizontally to all foodstuffs put on the insert express provisions into Directive market'. It was inconceivable, therefore, 92/46. 4 0 that the legislature could fix a 'use by' date for all foodstuffs put on the market in Member States. 37 — Chapter III(C)(1)(b)(i) in Annex A. 38 — Chapter IV(B)(1) in Annex A. 39 — The third indent of Chapter V(2) in Annex C. 40 — See, to that effect, Case C-257/00 Givane and Others 36 — See point 63 of the Commission's written observations. [2003] ECR I-345, paragraph 52.

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50. Finally, as the Commission has said, 4 1 C — The objectives of Directives 92/46 it is clear that a product's 'use by' date is and 79/112 generally fixed not only according to objective factors (such as the quality of the r a w materials, the manufacturing process or the characteristics of the pack- aging), but also according to subjective 53. At the hearing, Granarolo expressly factors (such as climatic conditions, the recognised that Directive 92/46 does not conditions in which the product is kept and c o n t a i n anything enabling the deter- the habits and expectations of consumers). mination of a 'best before' date for high- temperature pasteurised milk.

41 — See point 59 of the Commission's written observations. 42 — See page 10 of Granarolo's written observations.

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56. In my opinion, this argument cannot be 60. However, I think that this objective accepted. alone cannot be enough to avoid the application of Law N o 169/89 to high- temperature pasteurised milk. 4 5

57. As the Commission has pointed out, Directive 92/46 does not have the objective of enabling traders to produce a new category of milk. Nor does it have the objective of promoting the marketing of 61. It is clearly apparent from the above high-temperature pasteurised milk in the considerations 4 6 that Directive 92/46, like various Member States or of stimulating Directive 79/112, does not govern the way economic investments in the European in which the 'use by' date of products is Community. fixed. This 'best before' date does not fall within the context of the harmonisation being effected by these directives. The result is that, in the current state of C o m m u n i t y law, the M e m b e r States remain competent to adopt measures relat- ing to fixing the 'use by' date of products 58. The main objective of Directive 92/46 covered by Directive 92/46, subject to the is to ensure a high level of public health general provisions of the Treaty and, in protection. 4 3 It lays down rules which particular, of Articles 28 EC and 30 EC. make it possible to guarantee that products placed on the market in the various Member States present all the required health, quality and food safety guarantees. From that point of view, Directive 92/46 simply states the conditions required for high-temperature pasteurised milk to be lawfully placed on the market.

64. In accordance with settled case-law, 4 8 I 67. By contrast, as far as the second therefore propose that the Court interpret category of national measures is concerned, Articles 28 EC and 30 EC. the Court now takes the view that the application to products coming from other Member States of provisions which restrict or prohibit certain selling arrangements does not constitute an obstacle as referred to in Dassonville, 51 provided that they are applied to all relevant traders carrying out 65. On the substance, it should be pointed their activity in the national territory and out that, since the judgment in Keck and that they affect the marketing of domestic Mithouard, 49 the Court has drawn a dis- products and those coming from other tinction between national measures relating Member States in the same way. 5 2 to the characteristics of products and those relating to the ways they are sold.

66. As far as the first category of measures 68. In the present case, Law N o 169/89 is concerned, the Court takes the view that, comes under the first category of measures. in the absence of harmonisation of laws, Article 5(3) concerns the indications which Article 28 EC prohibits barriers to intra- must appear on the packaging of pasteur- Community trade which are the con- ised milk, namely the characteristics expressly cited by the Keck and Mithouard judgment (the presentation and labelling of 47 — See points 65 to 75 of this Opinion. 48 — See inter alia Case 35/85 Tissier [1986] ECR 1207, paragraph 9, Case C-107/98 Teckal [1999] ECR I-8121, paragraph 39, and Case C-265/01 Pansard and Others [2003] ECR I-683, paragraph 19. 50 — Ibid., paragraph 15. 49 — Joined Cases C-267/91 and C-268/91 Keck and Mithouard 51 — Case 8/74 Dassonville [1974] ECR 837. [1993] ECR I-6097. 52 — Keck and Mithouard, paragraph 16.

70. However, although it applies equally to the milk produced in Italy and the milk produced in Germany, Law N o 169/89 is likely to obstruct the free movement of goods, since the result of this measure is to 74. In its order for reference, the Tribunale require importers to adapt the presentation civile di Bologna points out that the of their products according to where they fundamental technical characteristic of are being marketed and, therefore, to bear high-temperature pasteurised milk is that additional expenses for wrapping. Accord- it has a longer shelf life than fresh pasteur- ing to the case-law of the Court, 5 3 such a measure therefore falls within the scope of Article 28 EC. 54 — This is the ground which provides the basis for the requirement laid down by Article 5(3) of this law (see the order for reference, p. 5). 55 — See, for example, Case 227/82 Van Bennekom [1983] 53 — See inter alia Case C-470/93 Mars [1995] ECR I-1923, ECR 3883, paragraphs 39 and 40, and Case C-17/93 Van paragraphs 11 to 14. der Veldt [1994] ECR I-3537, paragraph 15.

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VII — Final remarks 79. It should be noted that, under settled case-law, 5 9 the Court takes the view that reverse discrimination does not fall within the scope of Community law. The Court is 76. It is undisputed that the solution ident- ified above does not resolve all the dif- ficulties encountered by Granarolo. 58 — See inter alia Case 355/85 Cognet [1986] ECR 3231, paragraph 10, Joined Cases 80/85 and 159/85 Edah [1986] ECR 3359, paragraph 18, and Case 98/86 Mathot [1987] ECR 809, paragraph 7. 59 — See inter alia Case 86/78 Peureux [1979] ECR 897; 56 — See the order for reference (pp. 6 and 7). Cognet, paragraphs 10 to 12; Edah, paragraph 2 3 ; and 57 — Ibid., pp. 5 and 6. Mathot, paragraph 12.

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83. It would therefore be useful for the referring court to check whether the prin- ciple identified by the Italian Constitutional Court may be transposed to this case. If the answer is in the affirmative, the Tribunale civile di Bologna will be able to apply the 82. It should be recalled that, in its judg- s o l u t i o n identified in a p p l i c a t i o n of ment in Glocken and Others, 62 the Court Articles 28 EC and 30 EC to the high- took the view that the Italian legislation on temperature pasteurised milk produced by Granarolo in Italy. 60 — For an opposite view, see the excellent contribution of Poiares Maduro, M., (2000) 'The Scope of European Remedies: The Case of Purely Internal Situations and 63 — Ibid., paragraph 25. Reverse Discrimination' in The Future of Remedies in Europe, Hart Publishing, USA, p. 117. 64 — On the subject of this judgment, see also Della Chà, A., (2002) 'Challenge of internal rules on grounds of reverse 61 — Rivista di diritto internazionale, 1998, p. 530. discrimination: an open issue', Diritto del commercio 62 — Case 407/85 3 Glocken and Others [1988] ECR 4233. internazionale, p. 145, 161.

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VIII — Conclusion

84. Having regard to the above considerations, I therefore propose that the Court answer the question referred for a preliminary ruling by the Tribunale civile di Bologna as follows:

(1) Council Directive 92/46/EEC of 16 June 1992 laying down the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products, as amended by Council Directive 94/71/EC of 13 December 1994, and Council Directive 79/112/EEC of 18 December 1978 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, as amended by Council Directive 89/395/EEC of 14 June 1989, do not preclude the authorities of a Member State from applying to milk pasteurised at high temperature national rules which require a 'use by' date of four days after preparation of the product.