Opinion of the Advocate General — ECLI:EU:C:1998:406
Date: 1998-09-15
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Overseas countries and territories;Veterinary legislation;French overseas departments
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 
1. Agriculture — Approximation of laws — Health rules for the production and placing 
on the market of raw milk, heat-treated milk and milk-based products — Directive 
92/46 — Provisions concerning imports from non-member countries — Application to 
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SUMMARY — CASE C-106/97 
products from the overseas countries and territories — Import restrictions — 
justification — Protection of public health — Principle of proportionality — Whether 
breached — No such breach 
(Council Directive 92/46, Art. 23) 
2. Agriculture — Approximation of laws — Health rules for the production and placing 
on the market of raw milk, heat-treated milk and milk-based products — Directive 
92/46 — Provisions concerning imports from non-member countries — Application to 
products from the overseas countries and territories — Provisional list of countries 
exporting milk and milk-based products drawn up by the Commission on the basis of a 
list established for other products — Decision 94/70 — Not valid 
(Council Directive 92/46, Art. 23; Commission Decision 94/70) 
1. The provisions of Chapter III of Direc­
tive 92/46 laying down the health rules 
for the production and placing on the 
market of raw milk, heat-treated milk 
and milk-based products, which lays 
down health rules for imports of milk-
based products from third countries, 
must be interpreted as applying to the 
placing on the Community market of 
such products from overseas countries 
and territories (OCTs) such as the 
Netherlands Antilles. 
The means employed by Chapter III, 
and in particular Article 23 thereof — 
registration on a list of countries which 
export to the Community and compli­
ance with the requirement to produce a 
health certificate signed by the compe­
tent authority in the country of export 
attesting that the milk or milk-based 
products satisfy the requirements of 
Chapter II of the Directive — are 
appropriate for the purpose of attain­
ing the objective of Chapter III, which 
is to require of products imported into 
the Community guarantees as to the 
protection of public health equivalent 
to those afforded by products of Com­
munity origin. Moreover, the require­
ment that those products afford such 
guarantees does not go beyond the 
limits imposed by observance of the 
principle of proportionality. It cannot 
be accepted, in the absence of any 
controls, that the regulatory and health 
situation in a third country, including 
that in an OCT which exports to the 
Community, is such that the competent 
authority is able to supply guarantees 
for the purposes of the protection of 
public health equivalent to those pro­
vided by the competent authority of a 
Member State. 
2. Article 23 of Directive 92/46 laying 
down the health rules for the produc-
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DADI AND DOUANE-AGENTEN V RIJKSDIENST VOOR DE KEURING VAN VEE 
tion and placing on the market of raw 
milk, heat-treated milk and milk-based 
products must be construed as applying 
to imports from overseas countries and 
territories even where the regime laid 
down in that Directive for trade 
between the Member States has not in 
fact yet been introduced and where the 
lists of exporting countries and 
approved establishments have not been 
drawn up in accordance with the 
method indicated in that provision. 
However, since such lists have not been 
validly drawn up in accordance with 
the method indicated in the second 
subparagraph of Article 23(3)(a) of the 
Directive — that is to say, on the basis 
of the lists of establishments producing 
milk or milk-based products which 
have been approved and inspected by 
the competent authorities — but on the 
basis of a list drawn up for other 
products, Decision 94/70, by which 
the Commission established the provi­
sional list of third countries from which 
Member States authorise imports of 
raw milk, heat treated milk and milk-
based products, is invalid. 
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