III —

I do not wish, however, to sidestep the first problem, if only because the plaintiff needs to have the situation after 1 January 1980 clarified in this respect. The explanation I have given on the texts shows that the sale under a designation of milk which has been subjected to various forms of heat treatment and transported over long distances is subject to the legislation of the producing Member State, given that there are as yet no Community regulations — or even directives — in this sphere. In the United Kingdom, especially, certain restrictions imposed by the health regulations prevent imports into that country of standardized whole milk from other Member States. Are these restrictions still justified under Article 36 by the requirements relating to protection of public health? It is known that particularly high levels of infection due to brucellosis have continuously been observed in large dairy herds and. in densely-populated herds. In France, for example, 25 % of the herds are still infected. Naturally, it is desirable to limit the obstacles to the free movement of goods and to protect free trading in the rest of the Community by limiting animal health measures to that part of Community territory in which a contagious disease appears. But the intensification of trade by means of increasingly intensive production, on the one hand, and distribution on the other, entailing in particular the collection of milk from various sources in industrialized establishments, and the rise in trade due to the establishment of a single market, have led to increased health risks. The Commissions's view is that in any case heat treatment carried out by the ultra-high temperature method will avoid the danger of contamination, even by milk coming from farms which may have been infected by epizootic disease. It points out that in so far as methods of treating and packaging milk in the producing State are indentical with, or offer guarantees equivalent to, those required by the importing State, the importing Member State is no longer justified under Article 36 of the Treaty in demanding that the milk be treated or packaged a second time. The whole problem is, in fact, to decide whether the requirement of identical treatment or equivalent guarantees has been complied with and who shall be able to say that this condition has been met. According to the Commission, if the health authorities in the exporting State declare that indentical or equivalent guarantees exist in their country and invite the health authorities in the importing Member State to verify this for themselves on the spot, and if that verification proves positive, the authorities in the importing Member State have no need to apply their own legislation. Thus the conditions to be met are these: (1) the French authorities consider that the French guarantees are identical or equivalent; (2) the French authorities invite the English authorities to verify this; (3) this verification is positive. But the Commission does not say how the experts' opinions are to be reconciled in the event of a dispute, or who shall bear the costs of the tests. Such a system of bilateral co-ordination seems to me to be difficult to put into practice and liable to produce discrepancies; I do not think it can be left to the goodwill of the national authorities. In any case, it would be wrong to rely on the judgment of the courts in the country of origin to decide on the suitability of the measures adopted by the importing country; that is a decision which really should be made by the courts in the latter country, for where the exporter is not responsible, it is the authorities in that country who are responsible for protecting the life and health of humans. Determination of the methods of analysis required to test the composition of the milk in question and the manner of its preparation, and determination of the sampling procedure are measures of application of a technical nature, the adoption of which should be entrusted to the Commission in order to simplify and expedite the procedure. As the Court said in the Tedeschi judgment of 15 October 1977 ([1977] ECR 1555, at p. 1577), it is within the framework of the Community harmonization measures that the appropriate checks must be carried out and the measures of protection adopted. As long as measures necessary to protect human health and procedures to check that they are observed have not been established and harmonized at Community level, recourse to Article 36 remains justified and the national authorities in the importing State must apply their own legislation. What is more important, the Commission's argument largely renders the proposals which it made itself to the legislature in 1971 and 1972 devoid of purpose. These proposals have been approved by the Assembly which in its resolution ‘emphasizes that the growing number of requirements covering matters of hygiene, animal health and consumer protection calls for a system of control which is particularly strict and progressive’; that ‘a system of health control has a primarily preventive purpose, so that, where milk production is concerned, it must trace all the intermediate steps in production, from the animal to the consumer’; in this resolution, the Assembly ‘expresses its satisfaction, therefore, at having adopted rigorous standards of hygiene, on the basis of the national laws which are most advanced in health matters, regarding all the conditions associated with the production of heat-treated milk’. According to these proposals the treatment may only be performed on approved premises subject to inspection; the conditions for such approval are given in an annex. An official certificate from the Community must accompany products during their transportation to another Member State; provision is made for allowing expert opinion to be taken when a consignment is the subject of a dispute. The experts must not be of the same nationality as the Member States in the dispute. Here again, the Court cannot take the place of the Community legislature. As the Court repeated in the Ratti judgment of 5 April last, recourse to Article 36 will not cease to be justified until, under Article 100 of the Treaty, Community directives have harmonized the measures necessary to ensure the protection of the health of humans and animals and have established Community procedures to supervise compliance therewith, and the appropriate controls must henceforth be carried out and the protective measures taken within the scheme laid down by the harmonizing directive. In the United Kingdom zootechnic operations (milk testing, etc.) are often carried out at regional level through the Milk Marketing Boards which offer producers a veterinary service. It is possible, therefore, that owing to the combined effect of this technical service and the commercial activities of those Boards (exclusive purchase rights for milk and equalization of prices) — which are authorized by Council Regulation No 1421/78 after expiry of the transitional period — the prerogatives they enjoy give rise to distortion in the free movement of milk products within the Community. But that is not the question: in the absence of Community harmonization measures, the United Kingdom's health control is lawful, even if it contributes towards a partitioning of the markets.