Report for the hearing in Case C-205/89
I — Summary of the facts
1. In the Hellenic Republic the importation of milk and milk products from other Member States was made subject, by Presidential Decree No 40/1977 on the veterinary inspection of animals for slaughter and animal products (Official Journal of the Hellenic Republic A 18 of 21 January 1977) to health inspection measures consisting of systematic controls comprising two successive veterinary inspections and a system of veterinary certificates. The system of veterinary certificates is the subject of Article 13 of Decree No 40/1977, paragraph (1) of which provides that all imported foodstuffs must be accompanied by the original of a veterinary health certificate or a health certificate issued by a competent public authority of the country from which the goods come, drawn up in Greek, English or French. The certificate must be issued during the fortnight preceding the dispatch of the goods. Article 13(3) requires that the certificate should contain all the information laid down by the applicable Greek legislation.
2. In a letter of 18 December 1986 giving formal notice and in a reasoned opinion of 14 March 1988 the Commission claimed that the Hellenic Republic had failed to fulfil its obligations under the EEC Treaty by subjecting imports of milk products other than pasteurized butter to arrangements requiring inspection of every consignment of the products and by subjecting pasteurized butter to the same inspection arrangements and to the requirement of a veterinary certificate.
3. In its defence the Hellenic Republic claimed that under an explanatory ministerial circular the arrangements for systematic inspection applied only to products imported from non-member countries and argued that the requirement of a health certificate for each consignment of imported pasteurized butter was justified on grounds of protection of public health.
4. By Presidential Decree No 550/1989 (Official Journal of the Hellenic Republic A 232 of 11 October 1989), the Hellenic Republic abolished the rules requiring systematic inspection of imports of milk products coming from Member States of the Community, but retained the requirement of a health certificate for pasteurized butter.
II — Written Procedure and forms of order sought by the parties
1. The Commission's application was lodged at the Court Registry on 29 June 1989.
2. Following the adoption of Decree No 550/1989 the Commission, in its reply, restricted its application to the requirement of a veterinary certificate for imports of pasteurized butter.
3. The Commission, applicant, claims that the Court should: declare that, by subjecting imports of pasteurized butter in respect of which the pasteurization process is mentioned on the label or mark to the requirement of a health certificate, the Hellenic Republic has failed to fulfil its obligations under Regulation No 804/68 on the common organization of the market in milk and milk products and under Articles 30 and 36 of the Treaty; order the Hellenic Republic to pay the costs.
4. The Hellenic Republic, defendant, contends that the Court should: hold that, by subjecting imports of pasteurized butter in respect of which the pasteurization process is mentioned on the label or mark to the requirement of a health certificate, the Hellenic Republic has not failed to fulfil its obligations under Regulation No 804/68 of the common organization of the market in milk and milk products or under Articles 30 and 36 of the Treaty; order the Commission to pay the costs.
5. The Court, upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, decided to open the oral procedure without any preparatory inquiry. The Commission and the Hellenic Republic were requested to reply in writing to certain questions, which they did within the prescribed period.
III — Pleas in law and arguments of the parties
1. The Commission maintains that the requirement of a health certificate for imports of pasteurized butter constitutes a measure having equivalent effect to a quantitative restriction prohibited by Article 30 of the Treaty, which forms an integral part of the common organization of the market in milk and milk products established by Council Regulation No 804/68 (Official Journal, English Special Edition 1968, p. 176). The issuing of such a certificate constitutes a cause of delay and of cost and is therefore a disincentive for traders. Moreover, the requirement is not justified on grounds of protection of public health. According to the case-law of the Court, it is admittedly for the Member States to decide on the level of protection which they wish to accord to protection of public health. However, national rules which have a restrictive effect on intra-Community trade are compatible with the Treaty only in so far as they are necessary for the purpose of ensuring effective protection of health and life of humans. That is not the case where those objectives could be achieved just as effectively by measures which restrict intra-Community trade less (judgment in Case 104/75 De Peijper [1986] ECR 613). In this case, pasteurized butter, which has been produced and marketed in accordance with the rules applicable in a Member State and in respect of which the pasteurization process is stated by means of a label or a mark, does not present any risk for public health. All the Member States have rules incorporating health and inspection requirements for the manufacture of milk and milk products. Those rules are intended to ensure that milk collected with a view to the manufacture of milk products comes from cows which are healthy and are subject to a general system of health control. Additional health requirements are applicable to all stages of production and marketing of the products in question. Observance of those requirements is ensured at both farms and dairies. Such controls are, moreover, carried out with the same intensity whether the products are intended for the domestic or the export market. The Commission concludes that butter manufactured from heat-treated milk in accordance with the health requirements applicable in the Member States provides all the necessary guarantees regarding manufacturing hygiene and therefore presents no risks for human health. The indication of the pasteurization process by means of a label or a mark provides a guarantee for the importing Member State that the product in question has been subject to heat treatment ensuring the destruction of pathogenic micro-organisms. The requirement of a health certificate is justified only for milk products which have not been subject to heat treatment and for those which, although having undergone heat treatment, provide a favourable environment for the growth of microorganisms. Pasteurized butter is a microbiologically stable product and, in view of the quantity of water which it contains, there is only a minute possibility of microbes developing. Any development of germs or tendency to become rancid, oxidized or mouldy constitutes an enzymatic or chemical reaction which has no significance for public health. Moreover, such reactions are due essentially to poor storage conditions in the importing country itself. The labelling of butter, which conforms to the requirements laid down by Council Directive 79/112/EEC of 18 December 1978 (Official Journal L 33, p. 1), provides sufficient information to allow any inspection of the quality of imported butter and any enquiries to be made with the authorities of the exporting Member State. The draft regulation laying down health requirements applicable to the production and marketing of untreated milk, milk intended for processing and all milk-based products, to which the Hellenic Republic refers, does not provide for health or veterinary certificates but only adequate labelling with a view to allowing any checks to be carried out.
2. The Hellenic Republic seeks to defend the requirement of a veterinary certificate for imports of pasteurized butter on grounds of protection of public health. With regard to the dangers which pasteurized butter represents for public health, the Hellenic Republic refers to the reply which it gave to the reasoned opinion in which it mentioned the risk of deterioration in the quality of the butter as a result of the butter becoming rancid, oxidization or the development of micro organisms, in particular fungus and germs. Neither national legislation on milk products nor the draft Community regulation laying down health requirements applicable to the production of milk products makes any distinction between butter and other milk products. There are a number of arguments which may be put forward in favour of maintaining the requirement of a veterinary health certificate: such certificate always bears a recent date; it concerns the specific consignment of butter which it accompanies; it is issued after a health inspection made by the competent authority of the exporting country and constitutes a guarantee of the quality and hygiene of the goods. Labelling and marking, even when carried out in accordance with Directive 79/112, do not offer adequate guarantees: the information is placed on the goods by the manufacturer himself; it may be printed on a single occasion and in large quantities and differs only by the date indicated for consumption of the goods; it does not bear the mark of the competent veterinary department of the exporting country and says nothing about the hygiene and quality of the specific consignment of the imported product. The argument that pasteurized butter has undergone heat treatment is irrelevant. Most milk products that are marketed have undergone such treatment. Sterilization constitutes a much more rigorous form of heat treatment than pasteurization. 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 L 226, p. 13) requires a health certificate for products which are absolutely stable microbiologically and which, by reason of their packaging, are in no danger of deteriorating during the period for which they are kept. Pasteurized butter is different, since it has only been heat-treated at a temperature lower than that of sterilization, is marketed in a simple packaging which normally is not hermetically sealed and must be kept at low temperatures.
IV — Questions put by the Court
1. Asked to state the information which must be given on the health certificates required for imports of pasteurized butter, the Hellenic Republic submitted to the Court a standard certificate. According to the Hellenic Republic, it contains information similar to that provided for by the corresponding certificate required by Directive 85/397. The information concerns essential matters such as the identification of the consignment, the supplier, the recipient and the means of transport and also questions of a health nature relating to raw materials and the finished product.
2. Asked by the Court to explain why it challenges the reasons for requiring a veterinary certificate for imports of pasteurized butter when Directive 85/397 requires a health certificate for milk products which have undergone more rigorous heat treatment than pasteurized butter, the Commission emphasized that the present case concerns pasteurized butter manufactured from pasteurized cream, whereas the directive applies to heat-treated milk (pasteurized milk, UHT milk and sterilized milk). The fundamental difference between those two groups of products lies in the fact that pasteurized butter is micro-biologically stable, a quality which is due to the fact that it is an emulsion of water and oil, that is to say very fine droplets of water distributed in a continuous lipid phase. The danger of microbiological growth in the butter exists only in the event of poor distribution of the water, which may be easily detected using test paper. Other milk products have a continuous aqueous phase, with the result that the presence of pathogenic micro-organisms may lead to dangerous microbiological growth.
3. The Commission was authorized by the Court to produce the results of an inquiry made with the authorities of Member States in order to determine whether there was any record of public health problems linked to pasteurized butter during the last twenty years. It is apparent from the replies given by France, Denmark, Portugal, the Netherlands, the Federal Republic of Germany, Belgium, the United Kingdom and Ireland that none of those Member States had any record of health problems associated with butter manufactured from pasteurized cream.
4. Asked to submit its observations on the results of the inquiry, the Hellenic Republic informed the Court that it did not wish to challenge the content of the replies received, but it had serious misgivings concerning the choice of the period and the appropriateness of the inquiry. Medical and hospital practice shows that cases of food poisoning which come to light or which are the subject of an inquiry constitute only a small percentage of the actual number of persons affected. In addition, the butter in question is packaged in small packs and consumed in small quantities by families. In cases where such consumers are affected by defective butter, they are generally cared for at home and escape the attention of doctors and those responsible for drawing up statistics. For those reasons the Hellenic Republic considers that the results of the enquiry carried out by the Commission do not call in question the validity of the arguments put forward by the Hellenic Republic.
F. A. Schockweiler
Judge-Rapporteur
1 Language of the case: Greek.