Report for the Hearing delivered in Case 261/85
I — Facts and procedure
A— The legislation in question
As a result of the judgment delivered by the Court of Justice of the European Communities on 8 February 1983 in Case 124/81 Commission v United Kingdom [1983] ECR 203), the United Kingdom amended its legislation concerning milk. Pursuant to the Importation of Milk Act 1983 various regulations were issued in 1983 which entered into force on 16 November 1983, namely the Importation of Milk Regulations 1983 (SI 1983 No 1563), the Import of Milk (Scotland) Regulations 1983 (SI 1983 No 1545) and the Importation of Milk Regulations (Northern Ireland) 1983 (SI 1983 No 338).
a) Regulation 3 of the Importation of Milk Regulations 1983 (SI 1983 No 1563) provides that, subject to regulation 4, no person shall import into England and Wales milk intended for human consumption. Regulation 4 provides that the prohibition on importation does not apply to two categories of products:
1) Milk imported into England and Wales which :
i) is standardized whole milk, semiskimmed milk, skimmed milk, cream or milk-based drink;
ii) has been heat treated by the ultra high temperature method;
iii) has been produced in, and is imported from, a Member State of the European Economic Community;
iv) is accompanied by, and complies with, such certificate as the Minister may from time to time require by notice published in the London Gazette in relation to milk in general or milk of such description as may be specified in the notice;
v) is neither milk which is unfit for human consumption nor milk which has been rendered injurious to human health by addition of any substance as an ingredient, by abstraction of any constituent or by subjection to any other process or treatment;
vi) is imported in a closed container in which it is to be supplied to the ultimate consumer or to a catering establishment; and
vii) is imported through an authorized place of entry;
2) Cream imported into England and Wales which: Analogous provisions were laid down for Scotland by the Import of Milk (Scotland) Regulations 1983 (SI 1983 No 1545) and for Northern Ireland by the Importation of Milk Regulations (Northern Ireland) 1983 (SI 1983 No 338). The effect of those provisions is to prohibit the import into all parts of the United Kingdom of all pasteurized milk and unfrozen pasteurized cream.
i) has been heat treated by being heated to a temperature of not less than 80o C and retained at that temperature for not less than 15 seconds;
ii) has been frozen immediately after that heat treatment;
iii) is imported in a frozen state; and
iv) complies in all respects with conditions 1. (iii) to (vii) above concerning milk.
b) Schedule 1 of the Milk and Dairies (heat treatment of cream) Regulations 1983 (SI 1983 No 1509) provides that: ‘No milk other than milk produced in Great Britain and no cream other than cream produced in Great Britain shall be subjected to heat treatment so as to produce heat-treated cream in accordance with these regulations’. The Milk-Based Drinks (hygiene and heat treatment) Regulation 1983 (SI 1983 No 1508) provides that: ‘Only milk which has been produced in Great Britain shall be used in connection with the heat treatment of milk-based drinks’.
Analogous provisions apply in Scotland by virtue of the Cream (Heat Treatment) (Scotland) Regulations 1983 (SI 1983 No 1515) and the Milk-Based Drinks (Scotland) Regulations 1983.
The effect of those regulations is to prevent milk produced in Northern Ireland from being used in the manufacture of heat treated milk-based drinks and cream in Great Britain.
Conversely, analogous regulations preclude the use of milk produced in Great Britain in the manufacture of heat treated milk-based drinks and cream in Northern Ireland.
Those regulations do not apply to milk imported into the United Kingdom in accordance with regulations 3 and 4 of the Importation of Milk Regulations 1983 (and the analogous Scottish provisions) where the milk in question may be classified, under the terms of the Regulations, as ‘permitted imported milk’.
Under Schedule 3 of the Regulations, the term ‘permitted imported milk’ means, firstly, milk imported into England and Wales [and Scotland] ‘pursuant to the disapplication, by regulation 4, of the importation prohibition contained in regulation 3, and in accordance with these regulations’ and, secondly, ‘milk brought into England and Wales [and Scotland] from another part of the United Kingdom where that milk has been imported into that other part of the United Kingdom in accordance with legislation in force in that other part of the United Kingdom’.
It follows from the last-mentioned provisions that imported milk may be used in the manufacture of heat treated milk-based drinks and cream in Great Britain and Northern Ireland where it fulfils all the conditions laid down in regulation 4 of the Importation of Milk Regulations 1983 (and the analogous Scottish provisions).
B — The infringement procedure
1. By a letter of 2 February 1984 (SG (84) D/1613) the Commission informed the United Kingdom that it was of the opinion ‘that the absolute ban on imports of pasteurized milk and fresh pasteurized milk is contrary to Article 30 of the EEC Treaty and that it cannot be justified under Article 36. If an exporting Member State is able to provide adequate animal and public health guarantees the Commission sees no reason why the United Kingdom should not accept imports of pasteurized milk and fresh pasteurized cream from that Member State’. The Commission added that it considered that the various regulations which provided in their schedules that cream and milk-based drinks were to be manufactured only from milk produced in Great Britain constituted, in respect of potential imports of milk from other Member States, a further breach of Article 30 not justified under Article 36. Consequently, pursuant to Article 169 of the EEC Treaty the Commission requested the United Kingdom to submit its observations within one month.
2. By a letter of 23 March 1984 sent to the Commission by the Office of the United Kingdom Permanent Representative to the Communities, the United Kingdom replied to the two points raised by the Commission. The United Kingdom accepted that the prohibition on the importation of pasteurized milk and fresh pasteurized cream was either a quantitative restriction or a measure having equivalent effect; however, it considered that the prohibition was justified under Article 36 of the Treaty by the need to protect human health, since the process of pasteurizing milk did not provide the same health guarantees as the ultra heat treatment (UHT); the same applied to cream where it was simply pasteurized and was not frozen. As regards trade in pasteurized milk between Great Britain and Northern Ireland, the United Kingdom observes that the Commission does not place any reliance in this respect on Article 30 of the Treaty; moreover the provisions in question are not contrary to the common organization of the markets in the dairy sector.
3. By a letter of 29 November 1984 (SG (84) D/15357), the Commission sent the United Kingdom the reasoned opinion provided for in Article 169 of the Treaty.
4. In a letter of 1 February 1985, from the Office of the United Kingdom Permanent Representative to the European Communities, the United Kingdom reiterated its view that the measures in question were justified on health grounds.
5. Since the United Kingdom did not take the necessary measures to comply with the reasoned opinion of 29 November 1984, the Commission decided to make the present application to the Court of Justice, which was lodged at the Court Registry on 20 August 1985.
6. In its defence, lodged on 23 January 1986 the United Kingdom stated that the provisions requiring the use of milk produced in Great Britain in the manufacture of heat-treated cream and milk-based drink in Great Britain and the analogous provisions for Northern Ireland, namely the Milk and Dairies (heat treatment of cream) Regulations 1983 (SI 1983 No 1509), the Cream (heat treatment) (Scotland) Regulations 1983 (SI 1983 No 1515) and the Milk-Based Drinks (Scotland) Regulations 1983, were in the process of being amended and it subsequently forwarded to the Commission the texts of the amending regulations.
7. Since those regulations came into operation on 1 June 1986 the Commission, in its reply, stated that it was withdrawing the part of its case which concerned the abovementioned requirement since it no longer existed. However, the Commission requested the Court to order the United Kingdom to pay the costs in respect of this part of its application since the Commission's withdrawal was justified by the United Kingdom's conduct. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to open the oral procedure without any preparatory inquiry.
II — Conclusions of the parties
The Commission claims that the Court should :
1) Declare that, by prohibiting the importation from other Member States of pasteurized milk and unfrozen pasteurized cream, the United Kingdom has failed to fulfil its obligations under Article 30 of the Treaty;
2) Order the United Kingdom to pay the costs.
The United Kingdom contends that the Court should:
1) As regards the prohibition on the importation of pasteurized milk and unfrozen pasteurized cream, dismiss the Commission's application and refuse to make the declaration sought by it;
2) As regards the restrictions on the use of milk in the manufacture of milk-based drink and cream: in so far as the Commission has not withdrawn its case on this point, make no finding or order in respect of the Commission's application;
3) Order the Commission to pay the costs of the proceedings in so far as they relate to the prohibitions on the importation of pasteurized milk and unfrozen pasteurized cream.
III — Summary of the submissions and arguments of the parties
1. The Commission ultimately restricts its case to the provisions which prohibit in all parts of the United Kingdom the importation of pasteurized milk and unfrozen pasteurized cream. It considers that they clearly constitute a measure having equivalent effect to a quantitative restriction. on imports. The Commission observes that the United Kingdom itself accepted in its letter of 23 March 1984 that the prohibition fell within the wording of Article 30 of the Treaty. It considers that the total prohibition on imports of pasteurized milk and unfrozen pasteurized cream cannot under any circumstances be justified under Article 36 of the Treaty. Whilst Article 36 of the Treaty permits prohibitions on imports in certain cases on the grounds inter alia of the protection of human health and life, the Court has consistently held that the measures in question must not be excessive if they are to be justified under Article 36. The United Kingdom maintains that the controls to which it subjects pasteurized milk at all stages from production until final sale are different from those applied by the other Member States, but it has offered no satisfactory explanation as to why the guarantees offered by the other Member States are insufficient. The fact that the national rules are different does not necessarily mean that the guarantees offered by the other Member States are insufficient. In reply to the United Kingdom's claim that adequate health protection could only be secured by detaining the product for a certain period, which would result in its deterioration, the Commission observes that certain bacteriological tests can be completed within a short time and that monitoring of residue levels does not necessitate the detention of the product pending analysis. The prevention of pasteurized milk being used for human consumption until all tests results were available would only be justified in the case of the manufacture of UHT milk or dairy products from bulk supplies, because it would be possible to prevent the sale of those products until it was known that the milk satisfied health requirements.
2. The basis of the United Kingdom's defence is that the prohibitions on imports are justified by the strictness of its own legislation. (a) The United Kingdom agrees that its legislation in respect of the prohibition on imports of pasteurized milk and unfrozen pasteurized cream from other Member States constitutes either a quantitative restriction or a measure having equivalent effect within the meaning of Article 30 of the Treaty. However, it considers that its legislation is justified under Article 36. The United Kingdom claims firstly that the pasteurization process provides less extensive safeguards than the UHT process. Pasteurization is a process which minimizes health hazards arising from pathogenic microorganisms associated with milk. The UHT process, on the other hand, whilst changing the chemical, physical and organoleptic properties of the product, destroys all microorganisms. It follows that, in order to compensate for the less rigorous nature of the pasteurization process, additional precautions are essential. These consist in verifying the hygienic quality of the raw milk, ensuring that the heat treatment process itself is properly carried out and in monitoring the handling of the milk during packaging, transport and distribution. In the case of pasteurized milk these additional precautions are necessary in order to prevent the transmission of diseases, such as tuberculosis, brucellosis and streptococcal infections. In other words, the pasteurization process must be supplemented by careful controls throughout the production cycle. The United Kingdom observes that, as the Court held in its judgment of 20 May 1976 in Case 104/75 De Peijper [1976] ECR 613, human health and life rank first among the property or interests protected by Article 36, and ‘it is for the Member States, within the limits imposed by the Treaty, to decide what degree of protection they intend to assure and in particular how strict the checks to be carried out are to be’. In its judgment of 6 June 1984 in Case 97/83 Melkunie [1984] ECR 2367, the Court stated that the proviso in Article 36 did not apply ‘where human life and health can be protected just as effectively by means less restrictive of intra-Community trade’. The United Kingdom observes that the standards which it has imposed by legislation are those considered appropriate for the protection of human health and that the Commission does not appear to suggest that those standards are too rigorous. It maintains further that, having regard to the health risks, the accepted scientific evidence, the detail and complexity of the control system provided for in the directive now adopted and the imminence of the date on which it comes into operation, there is no manifestly reasonable alternative to an absolute prohibition on imports. The United Kingdom adds that it is not possible simply to rely on guarantees provided by the exporting States since the United Kingdom cannot be certain that the standards which it requires have been met at all stages of the milk-production process; with regard to the Commission's claim that tests are available which can be performed quickly so as to allow imported milk to reach the consumer before delay leads to deterioration, the United Kingdom observes that there are no end-product tests available which are sufficiently conclusive. (b) A border check can only be a supplementary form of control, the essential requirement being an integrated system of control of farms and dairies, that is to say a system of control throughout the production cycle. (1) In that regard the United Kingdom claims that it operates a comprehensive control system to ensure that pasteurized milk does not present a threat to human health. This extremely rigorous control is justified by the fact that pasteurized milk is consumed daily within every British family in large quantities and without any further processing. The United Kingdom emphasizes the importance of pasteurized milk in the national diet as demonstrated by the following statistics: dairies in the United Kingdom utilize 42% whole milk for liquid sales, compared with a Community average of 15%; consumption of liquid milk per head of population is higher in the United Kingdom than in any other Member State with the exception of the Republic of Ireland and Denmark; finally, 93% of heat-treated liquid milk consumed in England and Wales in 1984/85 was pasteurized. In England and Wales alone total sales of pasteurized milk exceed those of any other Member State. It follows that strict controls are necessary. Consequently, there are both statutory and quasi-statutory controls. Statutory measures These measures begin with controls on farms and provide for the registration of dairy farmers and dairy farms. Registration may be refused or cancelled if the health regulations are not complied with. Compliance with the regulations is monitored by Dairy Husbandry Advisory Officers. Farm inspections are also carried out by Environmental Health Officers and Trading Standards Officers, both employed by the local authorities. The local authorities are responsible not only for the registration of dairies but also for issuing dealers' licences to dairies and enforcing the conditions under which the licences are granted. Licences to use the designation ‘pasteurized’ are granted subject to very strict conditions laid down in the Milk (Special Designation) Regulations 1977, which impose requirements concerning the process used, the apparatus in which the milk is pasteurized, the controls to be carried out and the packaging and transportation of the milk. Sampling of heat-treated milk is carried out at dairies or at the point of retail sale by Environmental Health Officers or by Trading Standards Officers. Analyses of the milk are peformed in local authority laboratories. Finally, it is a criminal offence to sell milk which is unfit for human consumption. Quasi-statutory measures These derive from the Milk Marketing Scheme. In the United Kingdom there are five Milk Marketing Boards which have been given the exclusive right to buy raw milk from farmers. Where the milk is of poor quality or the producers' arrangements for the production or delivery of the milk are unsatisfactory or unsanitary, a Board may, after issuing warnings to the producer, refuse to purchase his milk. Under an agreement with the Dairy Trade Federation, the Milk Marketing Boards have implemented a Code of Practice governing the acceptance and rejection of milk. In addition, milk producers enter into a standard contract with the Milk Marketing Board which inter alia provides for the exclusion of milk whose quality is not sufficiently certain, requires that milk be kept at or below a temperature of 4.5o C and gives officers of the Milk Marketing Board the right to carry out inspections. Finally, the Milk Marketing Board carries out detailed central testing of each producer's milk, and the system of payment is based on the hygienic quality of the milk. The United Kingdom observes that very similar regulatory frameworks exist in Scotland and Northern Ireland. (2) The United Kingdom claims that there are considerable disparities between the control systems of the various Member States and that it is not possible to conclude that they all offer sufficient guarantees concerning the quality of the exported milk. It observes that the Commission does not state on what basis it concludes that the guarantees offered by the other Member States are equivalent to those required by the United Kingdom. The United Kingdom asks the Court to request the Commission to indicate the grounds for its view, as the Court did in Case 124/81. The United Kingdom's concern in this connection arises out of the following circumstances : (i) In the case of pasteurized milk adequate controls are necessary at all stages of the production cycle including the farm. (ii) The United Kingdom knows from experience that certain exporting States already have difficulty in complying with die standards required for UHT milk, and the same must apply a fortiori to pasteurized milk. It cites as an example an analysis carried out in France between 1 May and 30 June 1981: of 100 samples of whole or semiskimmed pasteurized milk purchased in Paris or the Paris area, 33 had an excessively high level of total germs or coliforms or both. Consequently, only a Community system would provide adequate guarantees. (3) The United Kingdom attaches great significance to Council Directive 85/397/EEC of 5 August 1985 on health and animal-health problems affecting intra-Community trade in heat-treated milk (Official Journal 1985, L 226, p. 13). The objective of that directive is to facilitate intra-Community trade in heat-treated milk, that is to say pasteurized, sterilized or ultra heat treated milk, by establishing common health and hygiene standards relating to the production, processing and transportation of such milk, in other words by introducing a Community system of control. The implementation date for the directive is 1 January 1989, which is evidence of an inability on the part of some Member States to establish or operate control systems so as to achieve the minimum health standards required. The United Kingdom contends that the Commission, by insisting that the United Kingdom set up a new import control system based upon ‘appropriate guarantees’ before the directive is implemented, ignores the objective and substance of the directive. The directive expressly acknowledges that there are differences in the control systems of Member States in respect of pasteurized milk and hence, by implication, acknowledges that the United Kingdom's concern is justified. Moreover, the directive distinguishes between pasteurized milk and UHT or sterilized milk. The United Kingdom refers in particular to the second subparagraph of Article 10 (1) of the directive, which provides as follows: ‘However, a Member State which, from the date laid down in Article 16 [1 January 1989], applies to heat-treated milk intended for home consumption the microbiological standards laid down for step 2 [1 January 1993] may, after such application has been established in accordance with the procedure in Article 14, make the entry of sterilized and UHT milk in its territory subject to the standards laid down in that step for the finished product, and the entry of pasteurized milk subject to the standards laid down for both untreated milk and pasteurized milk.’ That provision proves that controls at the dairy alone provide insufficient protection for the consumer of pasteurized milk. Finally, the directive provides for Commission supervision of intra-Community trade in milk and gives it numerous powers and duties. However, no assurances in that regard can be given before the directive takes effect on 1 January 1989. Moreover, it is only from that date that it will be possible to give the guarantees considered essential by the directive in the form of a certificate based on Annex B thereof. In conclusion the United Kingdom states that the directive provides a comprehensive, multilateral system of controls to safeguard public health: the United Kingdom is therefore justified in prohibiting imports of uncontrolled and thus potentially hazardous milk in the period prior to 1 January 1989.
3. The Commission's reply (a) The Commission argues that a total ban on all imports of pasteurized milk and unfrozen pasteurized cream is neither necessary nor proportionate to its objective, namely to protect public health in the United Kingdom. Such a ban takes no account of the actual nature of the product to be imported and in particular whether or not it complies with the agreed common Community standards. It is perfectly possible that some milk from a Member State will comply with the standards while other milk will not. The United Kingom must ascertain whether or not the milk complies with the standards. It is unreasonable to refuse to import products which meet those standards on the pretext that they may present a hazard to public health. Secondly, the United Kingdom cannot rely on Directive 85/397/EEC in order to justify national measures which are contrary to primary Community law. It cannot claim that milk which already complies with Community standards which it has accepted as guaranteeing public health presents a danger to public health such as would justify a prohibition on importation under Article 36. (b) The Commission adds that the United Kingdom's interpretation of Article 10 of the directive is incorrect. It is for the Commission, after consulting the Standing Veterinary Committee, to decide whether the conditions are fulfilled which would allow a Member State to apply the provisions of Article 10. Until that decision is taken the Member States are obliged to accept imports of milk complying with step 1 requirements, within the framework of the directive.
4. The United Kingdom's rejoinder (a) The United Kingdom observes that the Commission now bases its case on Directive 85/397/EEC inasmuch as it argues that the United Kingdom may not prohibit imports which comply with the rules of the directive. It is, however, a fundamental procedural rule that the subject-matter of an application brought under Article 169 of the Treaty should be determined by the Commission's reasoned opinion and hence that the reasoned opinion and the application must be founded on the same grounds and submissions. T on is now advancing is new and hence inadmissible, and consequently the application is defective. (b) The United Kingdom observes that, contrary to the Commission's claims, there is no harmonization in the relevant market since the methods of verifying compliance with the standards laid down by the directive have not yet been adopted. Moreover, harmonization implies much more than mere agreement on common standards; it implies firm implementing action by Member States. Secondly, the Commission is wrong when it states that the United Kingdom does not take account of the nature of the product. Firstly, agreed standards do not yet exist. Secondly, it is not possible to rely totally on certificates issued by exporting countries; and finally, it is extremely difficult to test consignments of pasteurized milk at the point of entry into the country. Consequently, there is no viable alternative to the United Kingdom's absolute ban on imports of pasteurized milk and unfrozen pasteurized cream. The ban is necessary until Directive 85/397/EEC becomes operative. Thirdly, the United Kingdom rejects the Commission's observation that the legislation at present in force in the United Kingdom prevents the importation of products which meet the conditions laid down by that legislation. That observation is wholly speculative since it assumes that all or some other Member States enforce statutory or non-statutory controls as effective as those of the United Kingdom, an assumption which is no way proved. Finally, the United Kingdom claims that it is not reasonable to require it to bring about a complete change to its system of control when some Member States at least will not be in a position to comply with the standards laid down by the directive before 1 January 1989. It would be a huge waste of resources, in particular manpower, for the United Kingdom to embark upon the creation of a temporary and unsatisfactory domestic system of controls at a time when it is using all its resources in order to implement Directive 85/397/EEC at the earliest possible date. In reply to the Commission's argument that the United Kingdom should accept milk complying with the common standards, on the basis of certificates issued by the exporting Member State, the United Kingdom observes firstly that the common standards are not yet finalized and, secondly, that the system of national certification contemplated by the directive will be backed up by Community safeguards which do not exist at present and would not be available under a bilateral system.
IV — Replies to the questions put by the Court
1. Replies of the United Kingdom
Question
The comprehensive system of control of the quality of milk which exists in the United Kingdom and on which the latter dwells at length in its defence (pp. 7 et seq.) is undoubtedly designed to ensure that the pasteurized milk produced in those conditions has intrinsic properties which guarantee its safe condition. The United Kingdom has in particular indicated that the analyses carried out both by qualified officers of the local authorities and by the Milk Marketing Board check the hygienic quality of pasteurized milk produced in the United Kingdom. The Government of the United Kingdom is requested to state clearly and precisely:
a) What are the intrinsic qualities, in particular of a bacteriological or chemical nature, which are required of pasteurized milk produced in the United Kingdom and which are checked by means of the abovementioned analyses?
Reply
The United Kingdom makes four preliminary comments: First, one of the functions of the Milk Marketing Board is to analyse the quality of the untreated milk which is supplied to heat-treatment plants. The quality of the untreated milk may be considered by reference to its compositional quality, hygienic quality and antibiotic residues. In its reply the United Kingdom confines itself to hygienic quality.
Secondly, the intrinsic quality of heat-treated milk is enhanced by the code of practice for the assessment of milk quality issued by the Joint Committee of the Milk Marketing Board and Dairy Trade Federation. That code of practice is in effect a condition of sale.
Thirdly, the ‘hygienic quality’ system employed within the United Kingdom is aimed at the minimization of risk to public health. No method of measurement exists which can guarantee that a consignment of milk injurious to health is not supplied to the consumer. Thus it is important to maintain and promote the highest standards of hygiene from farm to consumers.
Fourthly, the United Kingdom's system is intended to ensure that all untreated milk and all heat-treated milk achieves bacteriological and chemical standards which are at least equivalent to those prescribed for step 2 in Chapters VI and VII of Annex A to the directive.
Under the central testing of milk quality payment schemes the untreated milk of every producer is tested each week by the Milk Marketing Board at a substantial cost (at present more than UKL 2.5 million per annum).
The principal test used by the Milk Marketing Board is a measurement of total bacterial count (TBC), which is the equivalent of the ‘plate count 30o C (per ml)’ test in Part D of Chapter VI of Annex A to the directive.
The Milk Marketing Board makes adjustments to producers' prices in respect of hygienic quality. The success of the test was described as follows by the Joint Milk Quality Committee in its 1986 report: ‘Table IV gives a monthly breakdown of the litres and percentage of wholesale litres in each TBC band from April 1985 to March 1986. On average over 98% of ex-farm milk is placed in bands A, AX and B’ (that is to say, has a TBC of less than 100000).
The ‘step 2’ standards require a plate count of less than 100000. In June 1982 the mean TBC weighted average was 94000. Following the introduction of central testing in October 1982 substantial progress was made. The figure of 90000 TBC fell dramatically to 32000 TBC. By June 1985 it had been further reduced to 17000 and was at the same level in June 1986. In 1987 the Milk Marketing Board has increased the price penalty to 4.8 pence per litre for milk having a TBC in excess of 100000. In June 1986 only 1.6% of all litres of untreated milk had a TBC in excess of a 100000. This constitutes an objective assessment of the hygienic quality of the milk, the reason for the low TBC being the system for enforcement of hygienic quality.
It is important to minimize the risk of harmful bacteria entering the heat-treatment plant since pasteurization may fail to kill all bacteria, the process of pasteurization may be defective or harmful bacteria may cause post-pasteurization contamination.
As regards heat-treated milk, there is no equivalent to the Milk Marketing Board's central testing. However, a limited industry survey indicates that step 2 standards are generally achieved.
Licensed processors also operate their own system of checks and these can be rigorous, as is demonstrated by Appendix 3 to the United Kingdom's answers; these contain a description of the quality control system applied by one of the principal suppliers of pasteurized milk in the United Kingdom. Such a system of control, in which tests are carried out 365 days a year at the dairy, minimizes the hazard to public health. As in the case of untreated milk the principal safeguard against hazard to health is the existence of a comprehensive system.
Question
b) What are the exact reasons for which the same requirements could not be formulated as regards imported pasteurized milk and verified in the United Kingdom by means of the same kind of analyses?
Reply
Requirements can indeed be formulated. Before 1 January 1989 the United Kingdom's requirements are equal to the totality of the United Kingdom system as described in the defence and in the preceding reply. After 1 January 1989 the United Kingdom's requirements will be the step 2 requirements of the directive. After that date verification will consist principally in checking the certificate of compliance provided for by the directive. Before 1 January 1989 suitable verification is impossible in the absence, firstly, of proof by the exporting State that is able to meet the requirements of the United Kingdom system and, secondly, of rapid and reliable methods of testing samples of pasteurized milk at the place of entry for, at least, TBC and coliform.
Question
On page 23 of its defence the United Kingdom says that it ‘now has substantial and relevant experience as to the ability of exporting Member States to comply with the standards for UHT and sterilized milk required by the United Kingdom’ and that it has happened that milk coming from certain Member States does not offer all the guarantees required.
a) The United Kingdom is requested to state which are the Member States that at present seem to it to be able to offer adequate guarantees for the quality of milk which are equivalent to those required by it as regards its own production. In so far as the United Kingdom may consider that none of the other Member States is able to produce adequate guarantees it is requested to give the exact reasons on which it bases that view.
Reply
The United Kingdom considers that none of the other Member States is able to produce adequate guarantees. An offer of a guarantee has to be tested by proof of the adequacy of the guarantee, and despite the initiation of these proceedings by the Commission no such offer has been made.
Question
b) May there not be, in a given Member State, disparities in the quality of the milk offered to consumers, since certain producers are capable of achieving high quality standards and others are not?
Reply
The hygienic quality of pasteurized milk supplied to consumers in the United Kingdom has been produced under a system of controls designed to minimize the risk of any injury to health. Within that system certain producers may adopt even more rigorous systems of quality control. The aim of the directive is to ensure that no producer can engage in intra-Community trade unless he is capable of achieving high quality standards. However, the probable existence of disparities in the quality of milk currently produced in other Member States only emphasizes the importance of the State system of controls and the State as ultimate guarantor of the quality of milk exported by its nationals.
2. Questions put to the Commission
Question
The Commission considers that the prohibition on importation of which it complains is disproportionate having regard to the objectives laid down in Article 36 of the Treaty in so far as that prohibition affects all the Member States without having regard to the specific nature of the imported product.
It maintains that whilst the Member States have different requirements as regards the control of the quality of milk it does not follow that the systems of control do not offer equivalent guarantees.
The Commission is requested to state what guarantees, in its view, the United Kingdom would be legitimately entitled to call for, what guarantees the other Member States would be able as of now to offer to the United Kingdom and what form those guarantees might take.
Reply
The Commission observes firstly that Directive 85/397/EEC lays down common standards for pasteurized milk which guarantee a satisfactory and sufficient level of protection of human health. The United Kingdom is entitled to require imports of pasteurized milk to comply with the standards contained in that directive.
A certificate issued by the competent authority of the Member State exporting to the United Kingdom stating that the particular batch of milk concerned complies with those standards is sufficient. The Commission adds that such a solution was suggested by the Court in Case 124/81 Commission v United Kingdom, cited above, and is in fact made considerably simpler as a result of the existence of commonly agreed standards at a Community level.
Question
On page 9 of the application the Commission says that certain bacteriological tests can be completed within a short time and monitoring of residue levels does not necessitate the detention of the product pending analysis. The Commission is requested to state what are the tests which would offer the United Kingdom the guarantees which it calls for whilst not causing imported products to be immobilized for a period during which they would become unfit for consumption?
Reply
The Commission emphasizes firstly that it would not be permissible for the United Kingdom to resort to systematic checking of imports of pasteurized milk from other Member States. The United Kingdom authorities must rely on the certificate issued by the exporting Member State and may only undertake random spot checks on specific consignments in a nondiscriminatory manner. The tests which could be undertaken by the United Kingdom without immobilizing the milk are as follows:
(1) The phosphatase test, which determines whether the milk has been correctly pasteurized. The results of this are available within a few hours.
(2) Certain classic methods accepted at international level (e. g. the FIL) or officially applied by the Member States. According to the Commission's information such methods require from one to three days (for example, total germ count).
Question
On page 8 of its reply the Commission says that ‘the United Kingdom is obliged to allow imports of milk which complies with the common standards laid down in the directive. A prohibition of imports of such milk cannot be justified under Article 36 as necessary for the protection of public health’. The Commission is requested to state which are the Member States which have now adopted the measures needed to comply with the requirements of Directive 85/397/EEC of 5 August 1985.
Reply
Member States have until 1 January 1989 to implement the directive. No Member State has as yet officially informed the Commission of the measures which it has taken to implement the directive.
Y. Galmot
Judge-Rapporteur
1 Language of the Case: English.