CELEX: 62003CJ0124
Language: en
Date: 2004-10-28
Title: Judgment of the Court (Third Chamber) of 28 October 2004.#Artrada (Freezone) NV and Others v Rijksdienst voor de keuring van Vee en Vlees.#Reference for a preliminary ruling: College van Beroep voor het bedrijfsleven - Netherlands.#Health checks - Production and placing on the market of raw milk, heat-treated milk and milk-based products - Mixture made of sugar, cocoa and skimmed-milk powder, imported from Aruba.#Case C-124/03.

Case C-124/03
      Artrada (Freezone) NV and Others
      v
      Rijksdienst voor de keuring van Vee en Vlees
      (Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven)
      (Health checks – Production and placing on the market of raw milk, heat-treated milk and milk-based products – Mixture made of sugar, cocoa and skimmed-milk powder, imported from Aruba)
      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 – Meaning of ‘milk for the manufacture of milk-based products’ – Milk constituents
            of a product which also contains other non-milk constituents which cannot be separated from the former – Excluded
      (Council Directive 92/46, Art. 2(2))
      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 – Meaning of ‘milk-based products’ – Semi-finished products – Included – Criteria
            – Characteristics and objective properties of the product 
      (Council Directive 92/46, Art. 2(4))
      1.        Article 2(2) of Directive 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 is to be interpreted as meaning that the expression ‘milk for the manufacture of milk-based products’
         does not include milk constituents of a product which also contains other non-milk constituents if the milk constituent cannot
         be separated from the non-milk constituents. That provision covers only milk regarded as a single product whose composition
         could be modified only by the addition and/or removal of natural milk constituents.
      
      (see paras 26, 28, operative part 1)
      2.        Article 2(4) of Directive 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 is to be interpreted as meaning that the term ‘milk-based products’ covers both finished products
         and semi-finished products which must undergo further processing before they can be offered for sale to the consumer. In such
         a case, it is with regard to the semi-finished product that it must be ascertained whether its milk content is an essential
         part, in terms of quantity or for its characterisation. To do that, account must be taken of the characteristics and objective
         properties of the semi-finished product when it is imported, particularly the proportion of milk or milk product which it
         contains, the use which can be made of it and its taste.
      
      (see paras 34, 37-39, operative part 2)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Third Chamber)28 October 2004(1)
         
         
            
         
               (Health checks  –  Production and placing on the market of raw milk, heat-treated milk and milk-based products  –  Mixture made of sugar, cocoa and skimmed-milk powder, imported from Aruba)
               
             In Case C-124/03,
             REFERENCE for a preliminary ruling under Article 234 EC
             from the College van Beroep voor het bedrijfsleven (Netherlands), made by decision of 11 March 2003, received at the Court on 20 March 2003, in the proceedings
            
            
            Artrada (Freezone) NVVidemecum BVJac. Meisner Internationaal Expeditiebedrijf BV
            
            v
            
            Rijksdienst voor de keuring van Vee en Vlees,
            
            
            
            THE COURT (Third Chamber),,
            
             composed of: A. Rosas, President of the Chamber (Rapporteur), R. Schintgen and N. Colneric, Judges,
            
             Advocate General: M. Poiares Maduro,Registrar:  M.-F. Contet, Principal Administrator,
             having regard to the written procedure and further to the hearing on 24 June 2004,after considering the observations submitted on behalf of:
            
            –
             Artrada (Freezone) NV, Videmecum BV and Jac. Meisner Internationaal Expeditiebedrijf BV, by A. Van Lent, N. Helder and M. Slotboom,
            advocaten,
            
            –
             the Rijksdienst voor de keuring van Vee en Vlees, by J. Hoffmans, acting as Agent, and by B.J. Drijber, advocaat,
            
            –
             the Hellenic Republic, by V. Kontolaimos and I. Chalkias, acting as Agents,
            
            –
             the Commission of the European Communities, by T. van Rijn, acting as Agent,
            
            
            
            after hearing the Opinion of the Advocate General at the sitting on 15 July 2004,
         gives the following
         
         
         Judgment
         1
            
          The request for a preliminary ruling concerns the interpretation of Council Directive 92/46/EEC of 16 June 1992 laying down
         the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products (OJ 1992
         L 268, p. 1).
         
         
         
         2
            
          That request was made in the course of proceedings between, on the one hand, Artrada (Freezone NV), a company incorporated
         under Aruban law, (hereinafter ‘Artrada’), Videmecum BV, a limited liability company, (hereinafter ‘Videmecum’) and Jac. Meisner
         Internationaal Expeditiebedrijf, a limited liability company (hereinafter ‘Jac Meisner’) and, on the other hand, the Rijkdienst
         voor de keuring van Vee en Vlees (Netherlands Livestock and Meat Inspectorate, hereinafter ‘the Inspectorate’), regarding
         the latter’s refusal to authorise the import into the Netherlands of a product consisting of a mixture of 75.75% sugar, 15.15%
         skimmed-milk powder and 9.1% cocoa.
         
         
            
               Applicable legislation
            Community legislation
         
         3
            
          Article 1(1) of Directive 92/46 provides:
         ‘This Directive lays down health rules for the production and placing on the market of raw milk, heat-treated drinking milk,
         milk for the manufacture of milk-based products and milk-based products intended for human consumption.’
         
         
         
         4
            
          Article 2 provides: 
         ‘For the purposes of this Directive the following definitions shall apply: 
         
         1. 
            ...
         
         
         2. 
            “milk for the manufacture of milk-based products”: either raw milk for processing or liquid or frozen milk obtained from raw
               milk, whether or not it has undergone an authorised physical treatment, such as heat treatment or thermisation, or is modified
               in its composition, provided that these modifications are restricted to the addition and/or removal of natural milk constituents;
               
            
         
         
         3. 
            ...
         
         
         4. 
            “milk-based products”: milk products, namely products exclusively derived from milk, it being accepted that substances necessary
               for their manufacture may be added, provided that these substances are not used to replace in part or in whole any milk constituent,
               and composite milk products, namely products of which no part replaces or is intended to replace any milk constituent and
               of which milk or a milk product is an essential part either in terms of quantity or for characterisation of the product; 
            
         
         
         ...’.
         
         
         
         
         5
            
          Article 22 of Directive 92/46, which forms part of Chapter III thereof relating to imports from third countries, provides:
         ‘The conditions applicable to imports from third countries of raw milk, heat-treated milk and milk-based products covered
         by this Directive must be at least equivalent to those laid down in Chapter II for Community production.’ 
         
         
         
         6
            
          Article 23(1) and (2) of Directive 92/46 provide: 
         
         ‘1.
            For the purposes of uniform application of Article 22, the provisions of the following paragraphs shall apply. 
         
         
         2.
            In order to be imported into the Community, milk or milk-based products must: 
         
         
            
               (a)
                  come from a third country on the list to be drawn up in accordance with paragraph 3(a); 
               
         
         
         
            
               (b)
                  be accompanied by a health certificate corresponding to a specimen to be drawn up in accordance with the procedure laid down
                     in Article 31, signed by the competent authority of the exporting country and certifying that the milk or milk-based products
                     meet the requirements of Chapter II or any additional conditions or offer the equivalent guarantees referred to in paragraph
                     3 and come from establishments offering the guarantees provided for in Annex B.’ 
                  
               
         
         
         
         
         
         7
            
          Commission Decision 95/340/EC of 27 July 1995 drawing up a provisional list of third countries from which Member States authorise
         imports of milk and milk-based products and revoking Decision 94/70/EC (OJ 1995 L 200, p. 38) contains the list of third countries
         mentioned in Article 23(2)(a) of Directive 92/46. Aruba is not on that list.
         
         
         
         8
            
          Council Directive 97/78/EC of 18 December 1997 laying down the principles governing the organisation of veterinary checks
         on products entering the Community from third countries (OJ 1998 L 24, p. 9) describes those checks.
         
         National legislation
         
         9
            
          The referring court states that, in order to comply with its obligations under Directive 92/46, the Kingdom of the Netherlands
         adopted, among others, the Warenwetbesluit Zuivel (Order on milk products, adopted under the Law on Foodstuffs, Stbl. 1994,
         p. 813, subsequently amended). 
         
         
         
         10
            
          Article 23 of Directive 92/46 was implemented by Article 16 of the Warenwetregeling Zuivelbereiding (Regulation concerning
         the manufacture of milk products, adopted under the Law on Foodstuffs, Stcrt. 1994, p. 243, subsequently amended). That provision
         refers to the list of third countries annexed to Decision 95/340.
         
         
         
         11
            
          At the date of the decision challenged in the main proceedings, 23 February 2001, Article 4 of the Warenwetregeling Veterinaire
         controles (derde landen) (Regulation on veterinary checks (third countries)), adopted under the Law on Foodstuffs, Stcrt.
         2000, p. 207) designated, among other things, the Inspectorate as the competent authority to carry out the checks mentioned
         in Directive 97/78.
         
         
         
         12
            
          Finally, the Warenwetbesluit Invoer levensmiddelen uit derde landen (Order on food imports from third countries, adopted under
         the Law on Foodstuffs, Stbl. 1993, p. 698), can be applied to foods and drinks from third countries not covered by Community
         regulations.
         
         Facts, main proceedings and questions referred for a preliminary ruling
         
         13
            
          The order for reference shows that Artrada, a company established in Aruba, produced a mixture of 75.75% sugar, 15.15% skimmed-milk
         powder and 9.1% cocoa. The product, whose constituents cannot be separated, was to be used as a raw material for the production
         of chocolate milk in factories in Germany and Belgium. Jac. Meisner, a customs agent, was instructed by Videmecum, a subsidiary
         of Artrada, to make the import declarations for the product. 
         
         
         
         14
            
          Two import declarations for imports from Aruba for the placing of containers into free circulation were lodged on 26 January
         2001. A border crossing certificate, submitted on 22 February 2001 at the request of the competent authorities, states the
         nature of the goods as ‘bakeryprod. (semi-finished)’.
         
         
         
         15
            
          Following a veterinary check, the importation of the consignment into the European Union was, by decision of 23 February 2001,
         refused on the ground that the import of milk products from Aruba was not authorised, that the product did not originate from
         a recognised undertaking and that it was not accompanied by a veterinary certificate. A complaint was brought against that
         decision but the Inspectorate confirmed the import refusal.
         
         
         
         16
            
          An action was brought before the Rechtbank te Rotterdam (District Court, Rotterdam) (Netherlands). By judgment of 4 March
         2002, that court upheld the action on the ground that the contested decision had not been signed by the person authorised
         to do so. As Netherlands law authorises it to do, the Rechtbank however upheld the legal effects of the quashed decision.
         
         
         
         17
            
          Basing itself on a working document of the Commission, the Rechtbank decided that the product in question was not a ‘milk-based
         product’ within the meaning of Article 2(4) of Directive 92/46, because that category covered only finished products, whereas
         the product in question was a semi-finished product. Taking into consideration the Directive’s aim of public health protection,
         the Rechtbank decided that a constituent of a product should be susceptible to a check and that, therefore, the milk powder
         contained in the product should be described as ‘milk for the manufacture of milk-based products’ within the meaning of Article
         2(2) of Directive 92/46. Since that semi-finished product – and therefore the milk powder – came from a third country which
         was not on the list of third countries in Decision 95/340, it was correct that the product could not be imported.
         
         
         
         18
            
          The appellants in the main proceedings appealed to the College van Beroep voor het bedrijfsleven, (Administrative Court for
         Trade and Industry), arguing that the milk powder contained in a compound product, came within the Directive’s scope only
         if it formed an essential part of the product. Since that was not so in this case, the only matter to be considered was whether
         it had satisfied the provisions of Article 3 of the Warenwetbesluit Invoer levensmiddelen uit derde landen. The appellants
         in the main proceedings stated at the hearing before the College that the milk powder used in the preparation of the product
         had been manufactured in an approved undertaking in Poland, which is recognised under Directive 92/46 as a country exporting
         milk products. They suggested to the Inspectorate that samples be taken of all the consignments of the product in question
         whose importation was envisaged in order to check whether the requirements of the Netherlands law were satisfied, but the
         Inspectorate rejected that suggestion because it considered that the product in question came within the scope of Directive
         92/46.
         
         
         
         19
            
          The referring court found that the working document emanating from the Commission’s services on which the Rechtbank had based
         its decision was not binding and did not necessarily reflect the Commission’s view. It held that, viewed in isolation, the
         wording of Article 2(4) of Directive 92/46/EEC afforded no support for an interpretation whereby ‘milk-based products’ covered
         only products which undergo no further processing. It observed, in addition, that the high level of public health protection
         sought does not mean that Directive 92/46 must be applied to the milk contained in semi-finished products. In fact, other
         provisions could be applicable. The appellants in the main proceedings referred in that regard to Directive 97/78 and to the
         Warenwetbesluit Invoer levensmiddelen uit derde landen.
         
         
         
         20
            
          In the referring court’s view, it is not logical to require, in Article 2(4) of Directive 92/46, that, for the directive to
         apply, the milk or milk product be an essential constituent of the product, and then to deem the directive applicable none
         the less to the constituent not regarded as essential. Directive 92/46 would then always be applicable when milk is contained
         in a product irrespective of whether it is, or is not, an essential constituent. Had that been the aim, the Community legislature
         could have merely required that the milk or milk product form part of the constituents without classifying them as essential.
         
         
         
         
         21
            
          If Directive 92/46 and, in particular, Article 2(2) thereof is applicable to the milk powder contained in a mixture of which
         it is not the essential part, it falls to be determined whether it is that milk powder which must originate from a country
         on the list of third countries under Article 23 of the Directive and be accompanied by a health certificate or the compound
         product.
         
         
         
         22
            
          If the milk powder is not covered by Article 2(2) of Directive 92/46, it must be asked whether the mixture can be regarded
         as a ‘milk-based product’ and, therefore, whether the milk powder is, in itself, an essential part of the product or whether
         it merely characterises the product as referred to in Article 2(4) of the Directive. The referring court observes in that
         regard that, in the import declaration, the mixture is classified under tariff heading 1806 2095, that is to say that it is
         regarded as an ‘other food preparation containing cocoa in liquid, paste or powder form’. The product is made in accordance
         with the specifications of the customer who further processes it into chocolate milk.
         
         
         
         23
            
          Finding that a doubt subsisted as to the interpretation of Directive 92/46, the College van Beroep voor het bedrijfsleven
         considered itself bound to refer the following questions to the Court of Justice for a preliminary ruling:
         
         ‘1(a)
            Must the term “milk for the manufacture of milk-based products” in Article 2(2) of Directive 92/46/EEC be interpreted as meaning
               that it (also) includes milk constituents of a product which also contains other non-milk constituents and where the milk
               constituent cannot be separated from the non-milk constituents?
            
         
         
         1(b)
            If the answer to Question 1(a) is affirmative: must Article 22 of Directive 92/46/EEC be interpreted as meaning that in the
               case of imports from non-Member States, that Directive is applicable only to the milk constituent of a product and thus not
               to the product of which it is a constituent?
            
         
         
         2(a)
            Does the concept of “milk-based products” in Article 2(4) of Directive 92/46/EEC concern only finished products or also semi-finished
               products which must undergo further processing before they can be offered for sale to the consumer?
            
         
         
         2(b)
            In the event that Article 2(4) of Directive 92/46/EEC also covers semi-finished products, according to which criteria must
               it be determined whether milk or a milk product forms an essential part of a product, either in terms of quantity or for characterisation
               of those products, as referred to in Article 2(4) of Directive 92/46/EEC?’
            
         
         
         The questions referred for a preliminary rulingThe first question
         
         24
            
          The first part of the first question concerns the interpretation of Article 2(2) of Directive 92/46. The referring court seeks
         to ascertain whether the expression ‘milk for the manufacture of milk-based products’ includes milk constituents of a product
         which also contains other non-milk constituents and where the milk constituent cannot be separated. The second part of the
         question, referred on the hypothesis of an affirmative response to the first part, concerns the interpretation of Article
         22 of Directive 92/46. The national court seeks to establish whether, in the case of imports from non-Member States, that
         Directive is applicable to the milk constituent of a mixture or to the mixture itself.
         
         
         
         25
            
          As stated in the first recital in its preamble, Directive 92/46 distinguishes between raw milk, heat-treated drinking milk,
         milk for the manufacture of milk-based products, and milk-based products. Those four expressions are defined in Article 2(1)
         to (4) of the directive.
         
         
         
         26
            
          It is clear from the terms of Article 2(2) of the directive that the expression ‘milk for the manufacture of milk-based products’
         does not cover a product consisting of a mixture of inseparable ingredients, one of whose constituents is milk powder. Article
         2(2) covers only milk regarded as a single product, whose composition could be modified only by the addition and/or removal
         of natural milk constituents.
         
         
         
         27
            
          Interpreting Article 2(2) of Directive 92/46 as meaning that it covers the milk constituents of a mixture would, in addition,
         run counter to the scheme and coherence of that Directive, since it would deprive Article 2(4), relating to ‘milk-based products’,
         of its substance.
         
         
         
         28
            
          The answer to the first part of the question must therefore be that Article 2(2) of Directive 92/46 is to be interpreted as
         meaning that the expression ‘milk for the manufacture of milk-based products’ does not include milk constituents of a product
         which also contains other non-milk constituents if the milk constituent cannot be separated from the non-milk constituents.
         
         
         
         29
            
          In view of the answer to the first part of the question, the second part does not arise.
         
         The second question
         
         30
            
          The first part of the second question concerns the interpretation of Article 2(4) of Directive 92/46. The referring court
         seeks to establish whether the term ‘milk-based products’ covers only finished products or also semi-finished products which
         must undergo further processing before they can be offered for sale to the consumer. In the second part of the question, referred
         on the hypothesis that Article 2(4) of Directive 92/46 also covers semi-finished products, the referring court wishes to identify
         the criteria for determining whether milk or a milk product constitutes an essential part of a product, either in terms of
         quantity or for characterisation of those products as referred to in Article 2(4) of Directive 92/46.
          Observations submitted to the Court
         
         
         
         31
            
          All the parties which have submitted observations take the view that the word ‘products’ in Article 2(4) of Directive 92/46
         covers both finished and semi-finished products. The Inspectorate and the Commission point out that such an interpretation
         complies with the objective of public health protection and with the desire to check milk at the earliest possible stage of
         its production or use. The Commission observes, in addition, that the working document emanating from its services, cited
         by the national court, cannot be interpreted as meaning that the provision covers only finished products. Artrada, which takes
         that position only in the alternative, observes that a national law applies to the semi-finished product and that the finished
         product must, in any event, satisfy Community legislation.
         
         
         
         32
            
          Those parties accept that it is the quantity of milk in a product which enables it to be determined whether that milk is an
         essential part. That would certainly be so if the percentage of the milk in the product exceeded 50%. The Commission explains
         that the protection of public health justifies the checking of any milk content in a product, but that checks on products
         containing only small quantities of milk create problems in trade with non-Member States. Artrada maintains that, in the main
         proceedings, milk powder making up 15.15% of the total weight of the product is not sufficient to characterise that milk powder
         as an essential part.
         
         
         
         33
            
          All the parties who have submitted observations argue that the ‘characterisation’ of milk in a product can be determined by
         the taste of the product, its presentation, its use or even the statement used in importing the product. They point out the
         particular difficulty arising from the fact that the main proceedings concern a semi-finished product which, according to
         the importers, is for use in the production of a chocolate drink by the addition of milk but which could also well be used
         as ‘Hagelslag’ (chocolate granules). In that context, the parties to the main proceedings question the relevance of the product’s
         final use as declared or the taste of the finished product declared. Artrada maintains that, in the main proceedings, the
         milk powder has been added to cocoa and sugar for reasons of consistency of the mixture, but that it is not indispensable
         to the product. It observes that the milk in the finished product will essentially be the milk added to the mixture to make
         the drink and that, in any event, the finished product will taste more of cocoa than of milk.
          The Court’s reply
         
         
         
         34
            
          Article 2(4) of Directive 92/46 must be interpreted as meaning that the term ‘milk-based products’ covers both finished products
         and semi-finished products which must undergo further processing before they can be offered for sale to the consumer.
         
         
         
         35
            
          It is clear from the text of that provision that it makes no distinction between finished and semi-finished products. Such
         a distinction would, in any event, run counter to the aim of public health protection of Directive 92/46, which envisages
         checks on milk from the time of its production to that of its being placed on the market.
         
         
         
         36
            
          If the product in question containing a milk constituent is a semi-finished product, Article 2(4) of Directive 92/46 is to
         be interpreted as meaning that a semi-finished product is a ‘milk-based product’ where no part replaces or is intended to
         replace any milk constituent and of which milk or a milk product is an essential part either in terms of quantity or for characterisation
         of that semi-finished product.
         
         
         
         37
            
          It is therefore with regard to the semi-finished product that it must be ascertained whether the milk therein is an essential
         part, either in terms of quantity or for characterisation. To do that, account must be taken of the characteristics and objective
         properties of the semi-finished product when it is imported. 
         
         
         
         38
            
          In order to determine whether the milk or milk product in a semi-finished milk-based product is an essential part in terms
         of quantity, the proportion of milk or milk product in that product must be examined. If that proportion is not dominant or
         sufficiently important in the semi-finished milk-based product, the milk or milk product cannot be regarded as an essential
         part of the product by its quantity alone.
         
         
         
         39
            
          In order to determine whether the milk or milk product in a semi-finished milk-based product is an essential part of it by
         its characterisation of that product, account must be taken of all the objective features present when that product is imported,
         particularly the use which can be made of the semi-finished product and its taste.
         
         
         
         40
            
          In the main proceedings, it is for the competent national court to determine, bearing in mind the aim of public health protection
         of Directive 92/46 and taking account of all the objective features present at the time of import, whether the skimmed-milk
         powder in the mixture imported by the appellants in the main proceedings was an essential part of it, particularly for its
         characterisation of that mixture.
         
         
         
         41
            
          It follows from all those factors that the answer to the second question is that:
          Article 2(4) of Directive 92/46 is to be interpreted as meaning that the term ‘milk-based products’ covers both finished products
         and semi-finished products which must undergo further processing before they can be offered for sale to the consumer. In such
         a case, it is with regard to the semi-finished product that it must be ascertained whether its milk content is an essential
         part, in terms of quantity or for its characterisation. To do that, account must be taken of the characteristics and objective
         properties of the semi-finished product when it is imported, particularly the proportion of milk or milk product in the semi-finished
         product, the use which can be made of the semi-finished product and its taste.
         
         
         Costs
         42
            
          Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national
         court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than
         the costs of those parties, are not recoverable. 
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (Third Chamber) rules as follows: 
         
            
            
             
               1.
                  Article 2(2) of Council Directive 92/46/EEC of 16 June 1992 laying down the health rules for the production and placing on
                     the market of raw milk, heat-treated milk and milk-based products is to be interpreted as meaning that the expression ‘milk
                     for the manufacture of milk-based products’ does not include milk constituents of a product which also contains other non-milk
                     constituents if the milk constituent cannot be separated from the non-milk constituents.
                  
               
            
            
            
             
               2.
                  Article 2(4) of Directive 92/46 is to be interpreted as meaning that the term ‘milk-based products’ covers both finished products
                     and semi-finished products which must undergo further processing before they can be offered for sale to the consumer. In such
                     a case, it is with regard to the semi-finished product that it must be ascertained whether its milk content is an essential
                     part, in terms of quantity or for its characterisation. To do that, account must be taken of the characteristics and objective
                     properties of the semi-finished product when it is imported, particularly the proportion of milk or milk product in the semi-finished
                     product, the use which can be made of the semi-finished product and its taste.
                  
               
            
             Signatures.
      
      
          1 –
            
            Language of the case: Dutch.