Keywords

Summary



Keywords

1 . PROCEDURE - ORIGINATING APPLICATION - SUBJECT-MATTER OF THE DISPUTE - DELIMITATION - ALTERATION ONCE PROCEEDINGS HAVE BEEN STARTED - NOT ALLOWED

( RULES OF PROCEDURE , ART . 42 )

2 . PROCEEDINGS UNDER ARTICLE 169 - STAGE PRIOR TO ACTION - INVITATION TO MEMBER STATE TO SUBMIT OBSERVATIONS - REASONED OPINION - PURPOSE - DELIMITATION OF THE SUBJECT-MATTER OF THE DISPUTE - NO SUBSEQUENT EXTENSION PERMITTED

( EEC TREATY , ART . 169 , FIRST PARA .)

3 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - CONCEPT OF MEASURES HAVING EQUIVALENT EFFECT - INCLUDES NATIONAL RULES RELATING TO PRODUCTION AND MARKETING - ABSENCE OF COMMON COMMUNITY RULES OR HARMONIZING DIRECTIVES - NO EFFECT

( EEC TREATY , ART . 30 )

4 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES HAVING EQUIVALENT EFFECT - SYSTEM OF IMPORT LICENCES - NOT ALLOWED - PURELY FORMAL NATURE OF THE SYSTEM - IMMATERIAL - POSSIBLE JUSTIFICATION UNDER ARTICLE 36

( EEC TREATY , ARTS 30 AND 36 )

5 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES HAVING EQUIVALENT EFFECT - DISCRETIONARY POWER OF NATIONAL AUTHORITIES - IMMATERIAL TO THE CLASSIFICATION OF MEASURES AS PROHIBITED

( EEC TREATY , ART . 30 )

6 . FREE MOVEMENT OF GOODS - EXCEPTIONS - PROTECTION OF THE HEALTH OF ANIMALS - SYSTEM OF IMPORT LICENCES FOR MILK - JUSTIFICATION - CONDITIONS - PROPORTIONALITY OF NATIONAL MEASURES IN RELATION TO THE OBJECTIVE PURSUED

( EEC TREATY , ART . 36 )

7 . FREE MOVEMENT OF GOODS - QUANTITATIVE RESTRICTIONS - MEASURES HAVING EQUIVALENT EFFECT - REQUIREMENT TO HAVE IMPORTED UHT MILK HEAT-TREATED A SECOND TIME AND REPACKED - NOT ALLOWED - EXCEPTION - PROTECTION OF THE HEALTH OF HUMANS - JUSTIFICATION OF NATIONAL MEASURES - CONDITIONS - PROPORTIONALITY IN RELATION TO THE OBJECTIVE PURSUED

( EEC TREATY , ARTS 30 AND 36 )

8 . FREE MOVEMENT OF GOODS - EXCEPTIONS - PROTECTION OF THE HEALTH OF HUMANS - PERMISSIBILITY - CONDITIONS - HEALTH INSPECTIONS - DUAL CONTROL - NEED FOR COOPERATION BETWEEN THE AUTHORITIES OF MEMBER STATES

( EEC TREATY , ART . 36 )

Summary

1 . EVEN THOUGH ARTICLE 42 OF THE RULES OF PROCEDURE ALLOWS FRESH ISSUES TO BE RAISED IN CERTAIN CIRCUMSTANCES A PARTY MAY NOT ALTER THE ACTUAL SUBJECT-MATTER OF THE DISPUTE DURING THE PROCEEDINGS . CONSEQUENTLY , THE SUB- STANCE OF AN APPLICATION MUST BE EXAMINED SOLELY WITH REFERENCE TO THE CONCLUSIONS CONTAINED IN THE APPLICATION INSTITUTING THE PROCEEDINGS .

2.IN THE CONTEXT OF PROCEEDINGS BROUGHT BY THE COMMISSION UNDER ARTICLE 169 OF THE EEC TREATY , THE LETTER ADDRESSED BY THE COMMISSION TO THE MEMBER STATE INVITING IT TO SUBMIT ITS OBSERVATIONS AND THEN THE REASONED OPINION ISSUED BY THE COMMISSION DELIMIT THE SUBJECT-MATTER OF THE DISPUTE , WHICH CANNOT THEREAFTER BE EXTENDED . IN FACT THE OPPORTUNITY FOR THE STATE CONCERNED TO BE ABLE TO SUBMIT ITS OBSERVATIONS , EVEN IF IT CHOOSES NOT TO AVAIL ITSELF THEREOF , CONSTITUTES AN ESSENTIAL GUARANTEE INTENDED BY THE TREATY , ADHERENCE TO WHICH IS AN ESSENTIAL FORMAL REQUIREMENT OF THE PROCEDURE UNDER ARTICLE 169 .

3.THE ABSENCE OF COMMON RULES OR OF HARMONIZING DIRECTIVES RELATING TO THE PRODUCTION OR MARKETING OF A PRODUCT IS NOT SUFFICIENT TO PREVENT THAT PRODUCT FROM FALLING WITHIN THE SCOPE OF THE PROHIBITION LAID DOWN IN ARTICLE 30 OF THE EEC TREATY . THE PROHIBITION OF MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS IN FACT APPLIES TO ALL TRADING RULES OF MEMBER STATES CAPABLE OF HINDERING , WHETHER DIRECTLY OR INDIRECTLY , ACTUALLY OR POTENTIALLY , INTRA-COMMUNITY TRADE .

4.ARTICLE 30 OF THE EEC TREATY PRECLUDES THE APPLICATION TO INTRA-COMMUNITY TRADE OF NATIONAL PROVISIONS WHICH REQUIRE , EVEN AS A PURE FORMALITY , IMPORT LICENCES OR ANY OTHER SIMILAR PROCEDURE .

HOWEVER , WHILST THE REQUIREMENT OF A LICENCE , EVEN AS A FORMALITY , IS CONTRARY TO ARTICLE 30 , IT DOES NOT NECESSARILY FOLLOW THAT A MEASURE OF THAT KIND MAY IN NO CASE BE JUSTIFIED UNDER ARTICLE 36 .

5.NATIONAL PROVISIONS CAUGHT BY THE PROHIBITION LAID DOWN IN ARTICLE 30 OF THE EEC TREATY DO NOT ESCAPE THAT PROHIBITION SIMPLY BECAUSE THE COMPETENT AUTHORITY ENJOYS A DISCRETIONARY POWER IN THE APPLICATION OF THOSE PROVISIONS . FREEDOM OF MOVEMENT IS A RIGHT WHOSE ENJOYMENT MAY NOT BE DEPENDENT UPON A DISCRETIONARY POWER OR ON A CONCESSION GRANTED BY THE NATIONAL AUTHORITIES .

6.ALTHOUGH LEGISLATIVE PROVISIONS OF A MEMBER STATE SUBJECTING IMPORTS OF MILK INTO ITS NATIONAL TERRITORY TO A SYSTEM OF SPECIFIC LICENCES MAY ENABLE THE COMPETENT AUTHORITIES , WHEN PROCESSING APPLICATIONS FOR LICENCES , LODGED BY IMPORTERS , TO OBTAIN INFORMATION OF AN ADMINISTRATIVE NATURE OR CONCERNING HEALTH WHICH IS UNDENIABLY OF ASSISTANCE IN ACHIEVING THE OBJECTIVE OF PROTECTING ANIMAL HEALTH , SUCH PROVISIONS ARE NOT JUSTIFIED UNDER ARTICLE 36 OF THE TREATY WHERE THE RESULTING IMPEDIMENT TO INTRA-COMMUNITY TRADE COULD BE ELIMINATED WITHOUT PREJUDICE TO THE EFFECTIVENESS OF THE PROTECTION OF ANIMAL HEALTH .

7.A NATIONAL SYSTEM OF DEALERS ' LICENCES REQUIRING MILK WHICH HAS ALREADY UNDERGONE UHT ( ULTRA HEAT TREATED ) TREATMENT IN ONE MEMBER STATE TO BE RETREATED AND REPACKED IN THE IMPORTING MEMBER STATE CONSTITUTES , OWING TO ITS ECONOMIC EFFECTS , THE EQUIVALENT OF A TOTAL PROHIBITION ON IMPORTS AND THEREFORE A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION PRO- HIBITED BY ARTICLE 30 OF THE TREATY .

SUCH A SYSTEM IS NOT JUSTIFIED UNDER ARTICLE 36 OF THE TREATY INASMUCH AS IT CONSTITUTES AN IMPEDIMENT TO THE FREE MOVEMENT OF DAIRY PRODUCE WHICH IS DISPROPORTIONATE IN RELATION TO THE OBJECTIVE PURSUED , NAMELY THE PROTECTION OF THE HEALTH OF HUMANS , SINCE THE MEMBER STATE IN QUESTION COULD ENSURE SAFEGUARDS EQUIVALENT TO THOSE WHICH IT HAS PRESCRIBED FOR ITS DOMESTIC PRODUCTION OF UHT MILK , WITHOUT HAVING RECOURSE TO THE MEASURES ADOPTED .

8.WHERE COOPERATION BETWEEN THE AUTHORITIES OF THE MEMBER STATES MAKES IT POSSIBLE TO FACILITATE AND SIMPLIFY FRONTIER CHECKS , THE AUTHORITIES RESPONSIBLE FOR HEALTH INSPECTIONS MUST ASCERTAIN WHETHER THE SUBSTANTIATING DOCUMENTS ISSUED WITHIN THE FRAMEWORK OF THAT COOPERATION RAISE A PRESUMPTION THAT THE IMPORTED GOODS COMPLY WITH THE REQUIREMENTS OF DOMESTIC HEALTH LEGISLATION , THUS ENABLING THE CHECKS CARRIED OUT UPON IMPORTATION TO BE SIMPLIFIED .

THAT NECESSARY COOPERATION DOES NOT , HOWEVER , PRECLUDE THE AUTHORITIES OF THE IMPORTING MEMBER STATE FROM CARRYING OUT CONTROLS BY MEANS OF SAMPLES TO ENSURE OBSERVANCE OF THE STANDARDS WHICH IT HAS LAID DOWN , OR FROM PREVENTING THE ENTRY OF CONSIGNMENTS FOUND NOT TO CONFORM WITH THOSE STANDARDS .