4.3.

In my view, a national provision such as Article 34 (3) of the Melkbesluit should be examined against the background of those technical and legal observations. As I have already stated, when a quantitative limit on microorganisms in milk is considered, the stage at which that standard is applied — immediately after pasteurization or at the time of sale to the consumer or at the time of consumption itself — is very important. At the hearing it became apparent that a difference of opinion exists between the Netherlands Government and the Commission on this question. In the view of the Netherlands Government, that requirement must be satisfied on the latest date for sale. This is also clear from the extracts from the charges brought against Melkunie which show that the maximum limits laid down by the Melkbesluit were far exceeded on that date. The Commission, however, considers that the crucial time is the date until which the goods will remain fresh. That view is based on Article 10 of the Algemeen Aanduidingenbesluit [General Description of Goods Order] (Warenwet) of 10 September 1981 (Staatsblad No 621), which provides that pre-packed foods and drinks must bear the words “Best before ...” followed by the relevant date. If that date depends on the goods being kept in a particular way, this must be stated. Those provisions owe their origin to Articles 3 and 9 of Council Directive 79/112/EEC 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 (Official Journal 1979, L 33, p. 1). In my view, however, the difference between the two dates is of great importance for assessing whether the microbiological standards in question are permissible in Community law. As the Commission has correctly pointed out, the rationale of the requirement laid down in Directive 79/112/EEC is that on the date of minimum durability the product must retain its characteristic properties (when properly stored). This means that on that date it must still be possible to consume the milk without risk to health; therefore the bacteriological count must be sufficiently low. In this case the question is whether the requirement that the number of microorganisms must not exceed 50000 per millilitre is actually in proportion to the interest to be protected. Indeed, it is clear that even higher levels, for instance 100000 per millilitre, are in themselves not harmful to public health. This is clear from the fact that for whipping cream the Melkbesluit stipulates a maximum of200000 micro-organisms per millilitre. If the legislation of another Member State allows a higher bacteriological count on the date of minimum conservation then, in my view, there is a conflict with the proportionality principle if imported products are required to have a lower bacteriological count. In such a case, the importing Member States should adduce justification as to why it considers a lower count essential once it is clear that the higher count permitted in the exporting Member State also safeguards public health to a satisfactory degree. However, if it is a question of the latest date for sale, the situation must, in my view, be assessed differently. The Netherlands Government has argued and the other parties do not dispute that the rationale of the latest date for sale is that the milk must be capable of being consumed without risk even after that date. The representative of the Netherlands Government spoke of a period of two days. According to that view, the latest date for sale therefore comes before the date of minimum conservation. This means that, given the rate at which micro-organisms multiply, the limits which may not be exceeded on that date must be, or are capable of being, lower. If the legislation of the exporting Member State has no similar rules, there can be no conflict with the principle of proportionality. In view of the foregoing argument I therefore consider it quite compatible with Article 36 of the EEC Treaty that, considering the principle of proportionality, a higher number of micro-organisms is permitted where the method based on the date of minimum conservation is used and a lower number where the method based On the latest date for sale is used. Which method is, in fact, used in the Netherlands legislation is not wholly clear. It is a matter for regret that the Netherlands Government was unable to cast light on the legal basis of the requirement of the latest date for sale. My own research has shown that the requirement to state the latest date for sale on the packaging is based on Article 4 (a) of the Zuivelverordening Consumptiemelk [Dairy Regulation on Milk for Human Consumption] 1958 of the Dutch Dairy Board. That requirement must be considered together with the provision of the Warenwet requiring the minicipalities to adopt inspection regulations. These practically identical regulations prohibit the sale of goods in an unsound condition or of unsound composition (according to the criteria laid down in the Warenwet). Furthermore, the inspection regulations equate a number of other transactions with selling. This complex interrelation between the regulations was considered by the Hoge Raad itself in its judgment of 7 July 1977 (reported in Nederlandse Jurisprudentie 1978, No 498, at p. 1666). Since in proceedings brought under Article 177 of the EEC Treaty the Court may not explicitly pronounce upon national legislation, such complexity need not hamper the Court when it answers the second question submitted by the Hoge Raad. I would also add that it is unclear to what extent the Netherlands requirement concerning the latest date for sale conflicts with the requirement laid down in Directive 79/112/EEC or whether it falls within the exceptions provided for therein. On that point I think that the Court must qualify its answer. Since the maximum count requirement is applied at the latest date for sale, the question remains whether the number of 50000 active micro-organisms per millilitre is itself disproportionately low. As a precise limit cannot be determined, only a comparison with other legislation laying down similar rules can cast some light on this question. Melkunie's reference to the German legislation affords no assistance, however, since, as the Commission has explained in answer to questions from the Court, in that legislation microbiological counts arc not used to determine the keeping qualities of milk and milk products. In so far as the Commission has provided examples of legislation in which microbiological counts are used (Switzerland — 50000 per millilitre on delivery to the consumer; Federal Republic of Germany — 100000 for imported milk; Bavaria — 75000), the requirement of 50000 per millilitre laid down in the Netherlands legislation would not appear to be excessively low.