Opinion of Mr Advocate General Van Gerven delivered on 10 January 1991. - Commission of the European Communities v Hellenic Republic. - Free movement of goods - Pasteurized butter - Health certificate. - Case C-205/89.



European Court reports 1991 Page I-01361



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1. By the present application the Commission seeks a declaration that the Hellenic Republic has failed to fulfil its obligations under Regulation No 804/68/EEC of the Council of 27 June 1968 on the common organization of the market in milk and milk products (1) and under Articles 30 and 36 of the EEC Treaty. It takes the view that the requirement under the Greek legislation to produce a health certificate on the importation of pasteurized butter in respect of which the pasteurization process is indicated on the label or a mark is contrary to those provisions.

Originally the Commission also objected to the application of systematic controls on imports of milk products in general, including butter. However, the Hellenic Republic amended its legislation on this point (2) so that systematic controls on imports no longer exist for any dairy product, including butter. The Commission stated in its reply that it was withdrawing this part of its application, and I therefore no longer need to consider it.

2. The remaining complaint relates to Article 13 of Presidential Decree No 40/1977 concerning veterinary inspection of animals for slaughter and animal products. (3) Under Article 13(1) of that decree all imported foodstuffs must be accompanied by the original copy of a veterinary health certificate or a health certificate issued by a competent authority of the country from which the goods come. The certificate must be drawn up in Greek, English or French and must have been issued within two weeks of the departure of the means of transport used for carrying the goods. (4) If my understanding is correct, under Article 13(3) of the decree foodstuffs may be imported into Greece only if the health certificate contains all the information which must be indicated in the country from which the goods come in accordance with that country's rules concerning foodstuffs, in so far as it corresponds to the information which is provided for by the corresponding Greek provisions.

3. From the title of Decree No 40/1977 it may be inferred that the abovementioned rules concern imports of all animal products. The Commission has however challenged the rules only in so far as they restrict imports of pasteurized butter. The Commission takes the view that the requirement to produce a health certificate on the importation of such butter is a measure having equivalent effect to a quantitative restriction on imports. The issue of such a certificate involves delay and costs and is liable to discourage imports of the product into Greece.

The Commission's view cannot be disputed. The Court has expressly held inter alia in its judgment in Denkavit Futtermittel (paragraph 11) (5) that a requirement to produce a certificate of that kind constitutes a measure having equivalent effect to a quantitative restriction on imports. Moreover, the requirement discriminates against products of Member States other than the importing country. It therefore falls as such under Article 30 of the EEC Treaty (6) and hence can only be justified on the basis of Article 36 of the EEC Treaty.

4. In the Greek government's view the obligation to produce the certificate on importation is justified on grounds of protection of human health. Consequently, it is necessary to consider whether the requirement remains within the margin which Article 36 of the EEC Treaty, as interpreted by the Court, leaves to the Member States.

It should be noted first of all that at present there are no Community or harmonized provisions concerning health requirements for butter. According to the established case-law of the Court (7) the Member States may in such circumstances still lay down measures in this area on the basis of Article 36 of the EEC Treaty.

The Court has however also consistently held that national rules introduced to achieve any of the objectives referred to in Article 36 of the Treaty are only compatible with the Treaty if they go no further than is necessary, that is to say they are of such a nature as to achieve the objective sought and are essential because there is no alternative means of achieving the objective which restricts the free movement of goods less. (8) Moreover, the measure must be proportionate to the objective sought. (9)

5. The written observations of the parties do not clearly indicate the content of the health certificate required by the Greek legislation. The Greek government explained the content of the certificate at the request of the Court. In addition to information concerning the identity, the origin and the destination of the product, the certificate must contain a declaration made by a veterinarian officially recognized in the country from which the goods come to the effect that (10)

"(a) the raw material comes from:

1. an area which has been free from foot and mouth disease for at least six months;

2. cattle farms that are inspected for, and are free from tuberculosis, brucellosis and other transmittable diseases;

3. animals which do not suffer from mastitis;

(b) the product

1. is prepared in an undertaking which is subject to official health inspections;

2. contains no substances that are prohibited by the applicable legislation; (11)

3. is packed in suitable materials which are approved for foodstuffs and which protect it from infection;

4. is free from pathogenic micro-organisms, is suitable for human consumption and is marketed in the country of production with the same composition and the same characteristics."

6. Most if not all details to be mentioned on the certificate concern matters which may be determined at the moment of production or packing of the butter in the exporting country. That applies to the absence of the diseases mentioned at (a) 1, 2 and 3 in the area, the farm or the animals from which the milk used in making the butter comes. That also applies to verification of the fact that the undertaking producing the butter is subject to health controls ((b) 1), that no substances prohibited by the legislation of the country of origin are added to the butter ((b) 2), that the butter is packed in suitable materials ((b) 3) and that it is marketed in the country of origin with the same composition and the same characteristics ((b) 4, second clause). That does not apply, or at least not to the same extent, to the requirement that the product should be free from pathogenic micro-organisms and suitable for human consumption ((b) 4, first clause), since these characteristics may change and possibly should also be verified subsequent to the time of production. I shall therefore examine this point separately later.

7. The Commission states that the production of butter is subject to health provisions in all the Member States and that those provisions are actually enforced. If my understanding is correct, those provisions concern inter alia the germ-free nature of the milk used as a raw material, the method of production, the composition, the packing and the fitness of the butter for consumption. The Greek government does not dispute that assertion. The question therefore is whether a certificate such as that requested by the Greek government is necessary for the protection of human health and is proportionate to that aim. In replying to that question I wish to make a distinction between the principle of the certificate itself and the detailed terms thereof.

8. In my view there can be no doubt concerning the principle itself. I consider that it is reasonable for the Greek authorities to require a certificate for imports of butter showing that the butter is produced and packed in accordance with the applicable health provisions in the exporting country and that it is marketed in that country with the same composition and characteristics. A certificate issued by a competent person in the exporting country offers such a guarantee. I consider that, contrary to the Commission's view, no adequate guarantee is provided by labelling provisions which are intended to inform the customer of the characteristics of the product (12) but do not give (reasonable) assurance that the applicable health provisions concerning the raw material, production and packing of the butter were observed. (13)

That as a matter of principle a certificate such as that required by the Greek government is necessary for the protection of human health is moreover apparent from the Community legislation concerning heat-treated milk and from the case-law of the Court.

9. As regards the Community legislation, I would refer to Council Directive 85/397/EEC of 5 August 1985 on health and animal-health problems affecting intra-Community trade in heat-treated milk. (14) Article 3 A(1)(f) of the Directive, read in conjunction with Annex A, Chapter X, and Annex B, imposes on the exporting Member State the obligation to ensure that heat-treated milk which is sent to another Member State is accompanied by a health certificate on which a veterinarian or another competent authority of an equivalent level appointed by the competent central authority certifies that the imported milk has been produced in accordance with the conditions concerning production and inspection contained in the directive. In the twelfth recital in the preamble to the directive it is stated that the issue of a certificate by the competent authority of the exporting country is the most appropriate means of giving the competent authorities of the country of destination the assurance that a consignment of heat-treated milk complies with the requirements of the directive.

The Greek rules at issue in this case are intended to give the same assurance concerning compliance with similar national health provisions concerning raw materials, production and packaging of butter as required by Directive 85/397 in relation to raw materials, production and packaging of heat-treated milk. (15) There is in my view no reason to distinguish between the two milk products in relation to these requirements. I find it difficult to imagine that milk from unhealthy cows, unhygienic forms of production or unsuitable packaging constitutes a danger to health against which the public must be protected only in the case of heat-treated milk and not in the case of pasteurized butter. Admittedly in the absence of harmonization the present case concerns compliance with national provisions. However, I do not see why a certificate required with a view to ensuring compliance with such provisions must be assessed differently from a certificate required by a Council regulation in order to ensure that Community provisions of this type are observed.

10. The Court has also held that the Member States are empowered to require production of a health certificate in order to ensure that requirements such as those at issue here are satisfied. In its judgment in Case 124/81 Commission v United Kingdom (16) the Court took the view that the importing Member State could ensure observance of requirements relating to the quality of the milk before treatment, the method of treatment and the packing of UHT milk by requiring importers to produce certificates issued for that purpose by the competent authorities of the exporting Member State (see paragraph 29 of the judgment). (17)

11. Whilst I have no objection to the actual principle of the certificate required by the Greek government, I do have problems with the detailed provisions governing the certificate. It should be remembered that Article 13 of the Greek Decree requires the production of the original copy of the health certificate for all imported animal foodstuffs, in this case butter, and that the document must be issued two weeks before the departure of the means of transport by a veterinarian or a competent authority. As the Greek government made clear at the hearing, it follows that each consignment of butter intended for importation into Greece must be accompanied by a health certificate, with the result that a fresh declaration by a veterinarian or a competent authority is required on each occasion.

In my view that is excessive. The need to approach a veterinarian or a competent authority each time a consignment of butter is exported to Greece seems to me to be disproportionate to the requirements of public health. From the principle of mutual confidence of Member States in each other's rules it follows that the Greek authorities must be satisfied with the production of a veterinary or health certificate valid for a specified period stating that butter coming from a particular producer has been produced, packed and marketed in accordance with the health requirements in the country of production.

12. There remains one further point for me to consider. As already mentioned, the certificate required by the Greek legislation must state that the imported pasteurized butter contains no pathogenic micro-organisms and is suitable for human consumption. If my understanding is correct, this could involve a requirement to carry out a physical health inspection after the pasteurized butter is produced and shortly before each consignment of butter intended for importation into Greece is dispatched.

In this connection the Commission has convincingly shown that pasteurized butter is a microbiologically stable product which does not constitute a suitable environment for the growth of microbes. The Greek Government, which must under the case-law of the Court show that the conditions for derogating from the prohibition of principle laid down in Article 30 of the EEC Treaty are met, (18) has produced no evidence to show that the obligation in question is necessary for the protection of human health and is proportionate to the additional guarantee which this obligation provides. It cannot rely on an application by analogy of Directive 85/397. The heat-treated milk covered by that directive is a microbiologically unstable product.

The observation that butter may become rancid, oxidized and mouldy is of course correct. In that connection it is important that the butter should be properly packed and that appropriate information should be given on the label of the butter intended for the consumer, in particular the information mentioned in Directive 79/112/EEC concerning labelling of foodstuffs. The Greek government has, however, been unable to show that the abovementioned phenomena are a danger to health. For its part the Commission has produced the results of an enquiry from which it appears that in the Member States which took part in the enquiry no health problems arose concerning pasteurized butter in the previous twenty years. That enquiry indicates that, where pasteurized butter is produced in accordance with the rules laid down in the various Member States, it does not present any real danger to health even though chemical or enzymatic reactions may occur after production.

The additional guarantee for human health provided by the production of a declaration concerning the absence at the time of importation of pathogenic micro-organisms and the suitability of the butter for consumption at that time is therefore extremely limited. Consequently, it must be concluded that such a requirement is not proportionate to the objective sought and is not necessary in order to achieve that objective. It is sufficient for that purpose that there should be produced a health certificate valid for a specific period on which a veterinarian or a competent authority declares that the pasteurized butter was produced and packed in accordance with the health requirements of the exporting country, in particular regarding the origin of raw materials and absence of prohibited substances in the butter, and that it is suitable for human consumption in the exporting country and is marketed there with the same composition and characteristics.

Conclusion

13. Consequently I propose that the Court should :

(1) Declare that the Hellenic Republic has failed to fulfil its obligations under Article 30 of the EEC Treaty by requiring that every consignment of pasteurized butter intended for importation into Greece should be accompanied by a health certificate, thereby entailing a fresh declaration by a veterinarian or a competent authority on each occasion;

(2) Order the Hellenic Republic to pay the costs.

(*) Original language: Dutch.

(1) OJ, English Special Edition 1968 II, p. 176.

(2) Presidential Decree No 550/89 (Greek Official Journal A 232 of 11 October 1989).

(3) Greek Official Journal A 18 of 21 January 1977.

(4) Originally the provision also required the health certificate to be legalized by the Greek consulate in the country from which the goods came. It became apparent at the hearing that that requirement was abolished by Presidential Decree No 1050/1981 (Greek Official Journal A 256 of 15 September 1981).

(5) Judgment in Case 251/78 [1979] ECR 3369.

(6) Regulation No 804/68 also prohibits measures having equivalent effect to a quantitative restriction on imports.

(7) For example the judgment in Case 29/87 Dansk Denkavit [1988] ECR 2965, paragraphs 26 to 30.

(8) See inter alia the judgment in Case 104/75 De Peijper [1976] ECR 613, paragraphs 16 and 17, and also recently the judgment in Case C-128/89 Commission v Italy [1990] ECR, paragraph 18.

(9) See inter alia the judgment in Case 73/84 Denkavit Futtermittel [1985] ECR 1013, paragraph 14.

(10) If I understand correctly, the reference in the certificate to a statement by a veterinarian must, having regard to the wording of Article 13(1) of Decree No 40/1977, be broadly construed. Certificates issued by a "competent authority" of the country of origin (as mentioned in the decree) also appear to suffice.

(11) I assume that reference is being made here to the applicable legislation of the country of origin.

(12) See Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (OJ 1979 L 33, p. 1).

(13) According to Article 6(2)(b) of Directive 79/112 even ingredients need not be listed in the case of butter.

(14) OJ 1985 L 226, p. 13.

(15) Compare:

- point (a) 1 of the certificate with Article 12 of the Directive;

- point (a) 2 and 3 of the certificate with Article 3 A(1)(a)(ii) of the directive, read in conjunction with Annex A, Chapter VIII A points 1(a) to (d);

- point (b) 1 of the certificate with Article 3 A(1)(b) and Article 5 (1) and (2) of the directive;

- point (b) 2 of the certificate with Article 11(3) of the directive;

- point (b) 3 of the certificate with Article 3, A (1)(d) of the directive, read in conjunction with Annex A, Chapter VIII.

(16) [1983] ECR 203.

(17) See also the abovementioned judgment in Case 73/84 Denkavit Futtermittel, paragraph 15.

(18) See the abovementioned judgment in Case C-128/89 Commission v Italy, paragraph 23.

Translation