CELEX: 62001CC0294
Language: en
Date: 2003-03-06
Title: Opinion of Mr Advocate General Léger delivered on 6 March 2003. # Granarolo SpA v Comune di Bologna. # Reference for a preliminary ruling: Tribunale civile di Bologna - Italy. # Agriculture - Health rules for the production and placing on the market of heat-treated milk - Free movement of goods - National law imposing a use-by date for high-temperature pasteurised milk. # Case C-294/01.

OPINION OF ADVOCATE GENERALLÉGER delivered on 6 March 2003 (1)
         Case C-294/01 Granarolo SpAvComune di Bologna(Reference for a preliminary ruling from the Tribunale civile di Bologna (Italy))
            ((Agriculture – Health rules for the production and placing on the market of milk – Free movement of goods – Labelling and presentation of foodstuffs – National law imposing a  best before date of four days after preparation for milk pasteurised at high temperature))
            
      
         
       1.  This reference for a preliminary ruling seeks interpretation of three Community Directives: 
      
      
      ─
       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, 
      
      
      
      2
       OJ 1992 L 268, p. 1. as amended by Council Directive 94/71/EC of 13 December 1994 
      
      
      
      3
       OJ 1994 L 368, p. 33. (
      Directive 92/46);  
      
      
      
      ─
       Council Directive 79/112/EEC of 18 December 1978 on the approximation of the laws of the Member States relating to labelling,
      presentation and advertising of foodstuffs for sale to the ultimate consumer, 
      
      
      
      4
       OJ 1979 L 33, p. 1. as amended by Council Directive 89/395/EEC of 14 June 1989 
      
      
      
      5
       OJ 1989 L 186, p. 17. (
      Directive 79/112), and   
      
      
      
      ─
       Council Directive 89/396/EEC of 14 June 1989 on indications or marks identifying the lot to which a foodstuff belongs. 
      
      
      
      6
       OJ 1989 L 186, p. 21. 
      
      
      
       2.  The Tribunale civile di Bologna (Civil District Court, Bologna) (Italy) is asking whether the Italian authorities' imposition
      of a  
      best before date of four days after preparation for milk pasteurised at high temperature is contrary to the  
      application of the combined provisions of these three Directives. 
       I ─ Legal background
      
      
      
      A ─
       The relevant Community legislation
      
       3.  Directive 92/46 lays down the health rules for the production and placing on the market of raw milk, heat-treated milk and
      milk-based products. Adopted under Article 43 of the EEC Treaty (Article 43 of the EC Treaty, and now, after amendment, Article 37
      EC), this directive is intended to ensure the rational development of the milk sector, 
      
         			(7)
         		 ensure the protection of public health 
      
         			(8)
         		 and contribute to the establishment of the internal market. 
      
         			(9)
         		
       4.  Article 5 of the directive requires the Member States to ensure that heat-treated drinking milk is not placed on the market
      unless it meets certain conditions set out inter alia in Annex C to Directive 92/46.
      
       5.  Chapter I in Annex C relates to requirements for the manufacture of heat-treated milk. Chapter I(A)(4)(a)(ii) provides that:
       [p]asteurised milk must ... show a negative reaction to the phosphatase test and a positive reaction to the peroxidase test.
      However, the production of pasteurised milk which shows a negative reaction to the peroxidase test is authorised, provided
      that the milk is labelled as  
      high-temperature pasteurised.
      
       6.  Chapter III in Annex C contains the requirements relating to wrapping and packaging of the product. Under Chapter III(5),
      the packaging of the heat-treated milk must display the nature of the heat treatment, the date of the last heat treatment
      and, in the case of pasteurised milk, the temperature at which the product must be stored. 
      
       7.  Chapter IV(B) in Annex C lays down certain conditions governing labelling. It provides that, without prejudice to the provisions
      of Directive 79/112, the labelling must clearly show the  
      use by or minimum durability date for products in which growth of micro-organisms can occur. 
      
       8.  Directive 79/112 lays down rules relating to the labelling and presentation of foodstuffs for sale to the ultimate consumer.
      Adopted under Article 100 of the EEC Treaty (after amendment, Article 100 of the EC Treaty, and now Article 94 EC), this directive
      is intended to remove obstacles to the free movement of goods, which result from the disparity between national laws in this
      sector, and therefore to contribute to the functioning of the internal market. 
      
         			(10)
         		
       9.  Article 3(1)(4) of this directive provides that the labelling of foodstuffs must necessarily include  
      the date of minimum durability or, in the case of highly perishable foodstuffs,  
       the  
      use by date.
      
       10.  Under Articles 9 and 9a of Directive 79/112, the date of minimum durability is the date until which the foodstuff retains
      its specific properties when properly stored. It must be indicated by the words  
      best before ... or  
      best before end .... 
      
       11.  On the other hand, the  
      use by date of a foodstuff must be indicated by the words  
      use by ... and must consist of the day, the month and, possibly, the year. These particulars must be followed by a description of the
      storage conditions which must be observed. 
      
       12.  Directive 89/396 enacts rules relating to indications or marks identifying the lot to which a foodstuff belongs. Adopted under
      Article 100a of the EEC Treaty (which became Article 100a of the EC Treaty, and now, after amendment, Article 95 EC), this
      directive is intended to ensure better information on the identity of products inter alia when these products constitute a
      health hazard for consumers. 
      
         			(11)
         		
      
      
      B ─
       The relevant national legislation
      
       13.  Until 1997, Law No 169 of 3 May 1989, 
      
         			(12)
         		 entitled  
      Disciplina del trattamento e della commercializzazione del latte alimentare vaccino, was the basic text governing the treatment and marketing of cows' milk for human consumption in Italy. 
      
       14.  This law defines the characteristics of  
      pasteurised milk and of  
      fresh pasteurised milk. Furthermore, Article 5(3) states that the packaging must include the name of the category of milk, in accordance with these
      definitions, as well as the  
      use by date. The same provision specifies that the  
      use by date may not exceed four days after the date of treatment. 
      
       15.  On the other hand, Law No 169/89 contains no specific provision on high-temperature pasteurised milk. According to the order
      for reference, 
      
         			(13)
         		 this type of milk is obtained by a special method of pasteurisation (a steam infusion method), which gives it a shelf life
      of 15 to 20 days after preparation. Technically, high-temperature pasteurised milk is a milk which shows a negative reaction
      to the peroxidase test. 
      
       16.  Under Italian law, high-temperature pasteurised milk is referred to only by Presidential Decree No 54 of 14 January 1997, 
      
         			(14)
         		 which implements Directives 92/46 and 92/47/EEC. 
      
         			(15)
         		
       17.  In accordance with Chapter I in Annex C to Directive 92/46, Decree No 54/97 provides that pasteurised milk must show a positive
      reaction to the peroxidase test and that the production of pasteurised milk which shows a negative reaction to the peroxidase
      test is authorised provided that the milk is labelled as  
      high-temperature pasteurised.
       II ─ Facts and procedure  
      
       18.  Granarolo SpA 
      
         			(16)
         		 is a company based in Bologna, Italy, where it markets, under the name  
      Più Giorno, a high-temperature pasteurised milk, produced for it in Germany. 
      
       19.  By decision of 11 February 2000, the Municipality of Bologna imposed on Granarolo a fine of EUR 1 119.16 (ITL 2 167 000) for
      having infringed Article 5(3) of Law No 169/89. The Italian authorities noted that the packaging of  
      Più Giorno milk bore a  
      use by date of eight days after treatment, instead of the four days required by that law. 
      
       20.  Granarolo appealed against this decision before the Tribunale civile di Bologna. It maintained that the contested decision
      was incompatible with Directives 92/46, 79/112 and 89/396.
      
       21.  In its order for reference, the Tribunale civile di Bologna explains that the Italian authorities interpreted the law as meaning
      that high-temperature pasteurised milk was included within the definition of  
      pasteurised milk given in Law No 169/89. The Italian authorities therefore logically applied the  
      use by date limit of four days, required by that provision, to the high-temperature pasteurised milk imported by Granarolo. 
      
       22.  The Tribunale civile di Bologna wants to check that the Italian authorities' interpretation is compatible with Community law.
      
       III ─ The question submitted for a preliminary ruling
      
       23.  As a result, the referring court decided to stay proceedings and to refer a question to the Court for a preliminary ruling,
      seeking to clarify whether:  application of the combined provisions of Council Directive 92/46/EEC ... (implemented in Italy by Decree No 54/97) and Directives
      89/395/EEC and 89/396/EEC ... (implemented in Italy by Legislative Decree No 109 of 27 January 1992) is limited by the content
      of a piece of national legislation (in particular Article 5(3), in relation to Article 3, of Law [No 169/89), with the result
      that (according to the interpretation which has been given thereto in the present case) a  
      best before date of four days after preparation would apply to milk pasteurised at high temperature (a type of milk contemplated and
      governed solely by Directive 92/46 and Decree [No 54/97]).
       IV ─ Preliminary observations
      
       24.  It is apparent from the documents in this case 
      
         			(17)
         		 that, after the facts in the main proceedings, Granarolo transferred its production site to Italy. At the hearing, Granarolo
      explained that  
      Più Giorno milk has, since then, been produced in Italy, but the Italian authorities have continued to apply sanctions (fines and seizures)
      to it on the ground that the labelling of its products does not comply with Law No 169/89.
      
       25.  Granarolo is therefore seeking an argument which would enable it to resolve all its difficulties. Firstly, it wants to be
      able to market its German-made products with a  
      best before date of more than four days. Secondly, it also wants to be able to market its Italian products with a  
      use by date of more than four days. Granarolo is therefore seeking a solution which applies not only to cross-border situations
      (such as the main proceedings), but also, and especially, to purely domestic situations. 
      
       26.  Granarolo is not disputing Law No 169/89 in the light of Articles 28 EC and 30 EC, but maintains that Article 5(3) of this
      law is incompatible with Directives 92/46, 79/112 and 89/396.
      
       27.  Given these factors, I shall first examine the question referred for a preliminary ruling in the light of Directives 92/46
      and 79/112 (see section V below). I shall then set out the reasons why, in my opinion, the case should also be examined in
      the light of Articles 28 EC and 30 EC (see section VI below). 
       V ─ Directives 92/46 and 79/112
      
       28.  By its question, the Tribunale civile di Bologna is asking whether Directives 92/46 and 79/112 preclude the authorities of
      a Member State from applying to milk pasteurised at high temperature national rules which require a  
      use by date of four days after preparation of the product. 
      
         			(18)
         		
       29.  In order to answer this question, in accordance with the methods of interpretation adopted by the Court, 
      
         			(19)
         		 the wording, the broad logic and the objectives of these directives must be examined in turn. 
      
      
      
      A ─
       The wording of Directives 92/46 and 79/112
      
       30.  As regards the wording of Directives 92/46 and 79/112, it is undisputed that they do not contain any provision fixing the
       
      use by date of pasteurised milk or of other milk-based products. It is also undisputed that these directives do not contain any
      provision governing the way in which the  
      use by date of milk products or foodstuffs should be fixed. 
      
       31.  In these conditions, the literal interpretation of Directives 92/46 and 79/112 cannot lead to the disapplication of the  
      best before date of four days for high-temperature pasteurised milk. 
      
       32.  Unlike Granarolo and the German Government, I think that this interpretation is confirmed by the general broad logic of Directives
      92/46 and 79/112.
      
      
      
      B ─
       The broad logic of Directives 92/46 and 79/112
      
       33.  As I have already said, Directive 92/46 lays down health rules relating to the production of milk and milk-based products.
      
      
       34.  The requirements which it lays down cover all stages of the production of raw milk, heat-treated milk and milk-based products.
      Thus, Directive 92/46 starts by fixing the conditions relating to the acceptance of raw milk at milk treatment or processing
      establishments. 
      
         			(20)
         		 These conditions apply to animal health and to the hygiene of holdings and their staff, as well as hygiene in milking, in
      the collection of raw milk and in its transport to treatment or processing establishments. 
      
       35.  Directive 92/46 next fixes the conditions relating to approval of treatment or processing establishments, as well as hygiene
      standards for the premises, equipment and staff of these establishments. 
      
         			(21)
         		 It goes on to lay down requirements for the manufacture of heat-treated milk and milk-based products 
      
         			(22)
         		 and for the wrapping, packaging and labelling of products. 
      
         			(23)
         		 Finally, it covers the conditions for storing and transporting products 
      
         			(24)
         		 and the provisions in respect of health checks and supervision of production. 
      
         			(25)
         		
       36.  Thus, Directive 92/46 governs all the stages in the milk production process, from animal health to the transport of products
      to various sales outlets. 
      
       37.  On the other hand, Directive 92/46 does not in any way make provision for the later stages of production and placing on the
      market of products. It does not lay down any requirement concerning their marketing or their consumption. 
      
       38.  Yet the  
      best before date of products relates precisely to a later stage than that of their production. Even if this date is fixed inter alia
      according to the method of manufacturing the product, 
      
         			(26)
         		 the fact remains that it relates to the conditions in which the product may (or must) be consumed once it has been manufactured
      and placed on the market. 
      
       39.  In these conditions, fixing the  
      use by date for heat-treated milk does not fall within the scope of Directive 92/46.
      
       40.  The same holds true of Directive 79/112.
      
       41.  As I have already said, this directive lays down requirements relating to the labelling and presentation of foodstuffs for
      sale to the ultimate consumer. 
      
       42.  It is undisputed that Directive 79/112 contains, however, only rules of a procedural nature. It lays down methods of labelling, 
      
         			(27)
         		 the list of compulsory particulars 
      
         			(28)
         		 and, where appropriate, the way in which these particulars must be worded. 
      
         			(29)
         		 On the other hand, it does not lay down any substantive rule relating to the content of these particulars. 
      
         			(30)
         		
       43.  Thus, as far as the list of ingredients is concerned, for example, Directive 79/112 provides that the labelling of foodstuffs
      must include  
      the list of ingredients. 
      
         			(31)
         		 It specifies the cases in which this list may be omitted, 
      
         			(32)
         		 defines the concept of  
      ingredient itself 
      
         			(33)
         		 and explains the way in which the ingredients are to be cited. 
      
         			(34)
         		 On the other hand, Directive 79/112 does not specify the ingredients which must form part of the composition of foodstuffs. 
      
         			(35)
         		
       44.  Similarly, Article 3(1) of Directive 79/112 provides that labelling must include the  
      date of minimum durability of the foodstuff or, in the case of highly perishable foodstuffs, the  
      use by date. Articles 9 and 9a define the concept of  
      date of minimum durability and the wording which should be used to indicate it. On the other hand, Directive 79/112 in no way fixes the substantive
      content of this date. It contains no rule enabling direct or indirect determination of the date of minimum durability of foodstuffs.
      
      
       45.  It is apparent from these different factors that fixing the  
      use by date does not fall within the scope of Directives 92/46 and 79/112.
      
       46.  Like the Commission of the European Communities, 
      
         			(36)
         		 I think that this exclusion is intentional. Certain factors lead one to think that the Community legislature deliberately
      omitted to rule on the question of the  
      use by date for products covered by Directives 92/46 and 79/112.
      
       47.  Firstly, it was substantively impossible to fix a  
      use by date for foodstuffs within the framework of Directive 79/112, since, according to its third recital, this directive enacts
       
      rules of a general nature applicable horizontally to all foodstuffs put on the market. It was inconceivable, therefore, that the legislature could fix a  
      use by date for all foodstuffs put on the market in Member States. 
      
       48.  Secondly, it should be pointed out that Directive 92/46 contains extremely detailed provisions in several areas. It provides,
      for example, that  
      milkers must wash their hands immediately before the milking commences and keep them clean as far as practicable throughout
      the milking, 
      
         			(37)
         		 that  
      [r]aw buffalo milk for the manufacture of milk-based products must [have a p]late count at 30° C (per ml) < 1 000 000 [:this
      figure represents the g]eometric average over a period of two months, with at least two samples a month, 
      
         			(38)
         		 and that  
      [t]anks, churns and other containers which are used for the transport of pasteurised milk must ... be washed, cleaned and
      disinfected immediately after each use and as necessary before further use. 
      
         			(39)
         		
       49.  Given the degree of precision of these requirements, it is obvious that, if the legislature had wished to fix a  
      use by date for raw milk, heat-treated milk or milk-based products, it would have made sure to insert express provisions into Directive
      92/46. 
      
         			(40)
         		
       50.  Finally, as the Commission has said, 
      
         			(41)
         		 it is clear that a product's  
      use by date is generally fixed not only according to objective factors (such as the quality of the raw materials, the manufacturing
      process or the characteristics of the packaging), but also according to subjective factors (such as climatic conditions, the
      conditions in which the product is kept and the habits and expectations of consumers). 
      
       51.  Therefore, the  
      use by date of a foodstuff need not necessarily coincide with the objective durability which the manufacturing process confers on
      it. The competent authorities may decide to modify this date according to factors specific to their territory or their community.
      It also follows that the  
      use by date for one and the same foodstuff may vary from one Member State to another, even from one region to another. 
      
       52.  Given all these factors, I think that the matter of fixing the  
      use by date of products does not fall within the scope of Directives 92/46 and 79/112. In other words, these two directives are
      not intended to govern the  
      use by date of foodstuffs. 
      
      
      
      C ─
       The objectives of Directives 92/46 and 79/112
      
       53.  At the hearing, Granarolo expressly recognised that Directive 92/46 does not contain anything enabling the determination of
      a  
      best before date for high-temperature pasteurised milk. 
      
       54.  However, notwithstanding this fact, Granarolo maintained that the application of Law No 169/89 to high-temperature pasteurised
      milk is contrary to Directive 92/46. 
      
       55.  Granarolo considers that the Italian authorities' interpretation  
      inevitably affects the effectiveness and the full application of Community law in Italian law. 
      
         			(42)
         		 In Granarolo's view, it is futile for Directive 92/46 to offer traders the possibility of producing a new category of milk
      (that is, high-temperature pasteurised milk) if, at national level, a Member State can continue to apply legislation dictating
      that it is marketed with a  
      use by date of four days. Granarolo adds that Law No 169/89 has the effect of dissuading Italian and foreign traders from making
      the necessary investments in Italy to produce the high-temperature pasteurised milk provided for by Directive 92/46.
      
       56.  In my opinion, this argument cannot be accepted. 
      
       57.  As the Commission has pointed out, Directive 92/46 does not have the objective of enabling traders to produce a new category
      of milk. Nor does it have the objective of promoting the marketing of high-temperature pasteurised milk in the various Member
      States or of stimulating economic investments in the European Community. 
      
       58.  The main objective of Directive 92/46 is to ensure a high level of public health protection. 
      
         			(43)
         		 It lays down rules which make it possible to guarantee that products placed on the market in the various Member States present
      all the required health, quality and food safety guarantees. From that point of view, Directive 92/46 simply states the conditions
      required for high-temperature pasteurised milk to be lawfully placed on the market. 
      
       59.  That said, it is true that Directive 92/46 has the secondary objective of gradually creating the conditions of an internal
      market. 
      
         			(44)
         		 It is intended to ensure free movement of goods manufactured in accordance with the health standards which it enacts. 
      
       60.  However, I think that this objective alone cannot be enough to avoid the application of Law No 169/89 to high-temperature
      pasteurised milk. 
      
         			(45)
         		
       61.  It is clearly apparent from the above considerations 
      
         			(46)
         		 that Directive 92/46, like Directive 79/112, does not govern the way in which the  
      use by date of products is fixed. This  
      best before date does not fall within the context of the harmonisation being effected by these directives. The result is that, in the
      current state of Community law, the Member States remain competent to adopt measures relating to fixing the  
      use by date of products covered by Directive 92/46, subject to the general provisions of the Treaty and, in particular, of Articles 28
      EC and 30 EC. 
       VI ─ Articles 28 EC and 30 EC
      
       62.  In this regard, I think that Articles 28 EC and 30 EC are relevant to the outcome of the main proceedings. 
      
       63.  It is undisputed that, in the present case, the Italian authorities have prohibited the marketing of products lawfully manufactured
      in another Member State, namely the Federal Republic of Germany. The main proceedings are therefore covered by the Treaty
      provisions on the free movement of goods. Furthermore, the interpretation of these provisions could lead the referring court
      to declare the fine imposed on Granarolo unlawful. 
      
         			(47)
         		
       64.  In accordance with settled case-law,  
      
         			(48)
         		 I therefore propose that the Court interpret Articles 28 EC and 30 EC. 
      
       65.  On the substance, it should be pointed out that, since the judgment in  
       Keck and Mithouard , 
      
         			(49)
         		 the Court has drawn a distinction between national measures relating to the characteristics of products and those relating
      to the ways they are sold. 
      
       66.  As far as the first category of measures is concerned, the Court takes the view that, in the absence of harmonisation of laws,
      Article 28 EC prohibits barriers to intra-Community trade which are the consequence of applying, to goods coming from other
      Member States where they are lawfully manufactured and marketed, rules that lay down requirements to be met by such goods
      (such as those relating to, for example, presentation, labelling and wrapping), even if those rules apply without distinction
      to both domestic and imported products. 
      
         			(50)
         		
       67.  By contrast, as far as the second category of national measures is concerned, the Court now takes the view that the application
      to products coming from other Member States of provisions which restrict or prohibit certain selling arrangements does not
      constitute an obstacle as referred to in  
       Dassonville , 
      
         			(51)
         		 provided that they are applied to all relevant traders carrying out their activity in the national territory and that they
      affect the marketing of domestic products and those coming from other Member States in the same way. 
      
         			(52)
         		
       68.  In the present case, Law No 169/89 comes under the first category of measures. Article 5(3) concerns the indications which
      must appear on the packaging of pasteurised milk, namely the characteristics expressly cited by the  
       Keck and Mithouard  judgment (the presentation and labelling of products). The disputed provision therefore cannot be described as  
      selling arrangements within the meaning of the case-law cited. 
      
       69.  It is also undisputed that Law No 169/89 is equally applicable to domestic products and imported products. At the hearing,
      Granarolo explained that, after the transfer of its production site to Italy, the Italian authorities had continued to apply
      the same prohibition measures (fines and seizures) as those which it had applied to the milk produced in Germany. 
      
       70.  However, although it applies equally to the milk produced in Italy and the milk produced in Germany, Law No 169/89 is likely
      to obstruct the free movement of goods, since the result of this measure is to require importers to adapt the presentation
      of their products according to where they are being marketed and, therefore, to bear additional expenses for wrapping. According
      to the case-law of the Court, 
      
         			(53)
         		 such a measure therefore falls within the scope of Article 28 EC.
      
       71.  At this stage, it remains for me to examine whether the application of Law No 169/89 may be justified for reasons relating
      to the protection of public health. 
      
         			(54)
         		
       72.  According to settled case-law, 
      
         			(55)
         		 the Court considers that it is for the national authorities to demonstrate in each case that the rules in question are necessary
      to ensure the protection of consumer health and that they are proportionate to the objective pursued. 
      
       73.  In the present case, the Italian Government has put forward no evidence to indicate that the application of Law No 169/89
      to high-temperature pasteurised milk complies with the principle of proportionality. On the contrary, it is apparent from
      other documents in the case that that application goes beyond what is necessary to ensure public health protection. 
      
       74.  In its order for reference, the Tribunale civile di Bologna points out that the fundamental technical characteristic of high-temperature
      pasteurised milk is that it has a longer shelf life than fresh pasteurised milk or traditionally pasteurised milk. According
      to the referring court, the process of pasteurisation used for the production of high-temperature pasteurised milk guarantees
      it a shelf life of 15 to 20 days after preparation. 
      
         			(56)
         		 The referring court adds, moreover, that the application of the  
      best before date of four days after preparation, provided for by Law No 169/89,  
      seem[s] irrelevant to milk pasteurised at high temperature, for which there now exist new technologies ensuring a longer shelf
      life. 
      
         			(57)
         		
       75.  Since none of the intervening parties has disputed these factors, I think that the Court is in a position to conclude that
      the requirement laid down by Article 5(3) of Law No 169/89 is disproportionate to the objective pursued. I therefore propose
      that the Court declare that the application of Law No 169/89 to the high-temperature pasteurised milk imported from Germany
      by Granarolo is contrary to Articles 28 EC and 30 EC. 
       VII ─ Final remarks
      
       76.  It is undisputed that the solution identified above does not resolve all the difficulties encountered by Granarolo. 
      
       77.  The purpose of Article 28 EC is to eliminate obstacles to the importation of goods and not to ensure that goods of national
      origin enjoy the same treatment as imported goods. 
      
         			(58)
         		 Therefore, the solution that I am proposing will simply have the effect of prohibiting the application of Law No 169/89 to
      high-temperature pasteurised milk coming from other Member States. On the other hand, the Italian authorities will be able
      to continue to apply the  
      best before date of four days from preparation to high-temperature pasteurised milk produced in Italy. 
      
       78.  As Granarolo has pointed out, this solution leads to  
      reverse discrimination, since, following the Court's judgment, domestic products will be subject to less favourable treatment than imported products.
      
      
       79.  It should be noted that, under settled case-law, 
      
         			(59)
         		 the Court takes the view that reverse discrimination does not fall within the scope of Community law. The Court is therefore
      not ─ in its own view ─ competent to intervene in this kind of situation. 
      
         			(60)
         		
       80.  However, because the Court adopts this position, national authorities attempt to identify other solutions. Consequently, some
      of them have laid down the principle (through legislation or case-law) that their products or nationals must enjoy the same
      treatment as that which would be applied to products or nationals of other Member States pursuant to Community law. 
      
       81.  It would appear that the Italian Constitutional Court has indeed laid down such a principle in its Judgment No 443 of 30 December
      1997. 
      
         			(61)
         		
       82.  It should be recalled that, in its judgment in  
       Glocken and Others , 
      
         			(62)
         		 the Court took the view that the Italian legislation on pasta products, which prohibited the marketing of pasta made from
      common wheat or a mixture of common wheat and durum wheat, was contrary to Articles 28 EC and 30 EC. In accordance with its
      own case-law, the Court was careful to stress that  
      it is the extension of the law on pasta products to imported products which is at issue, and that Community law does not require
      the legislature to repeal the law as far as pasta producers established on Italian territory are concerned. 
      
         			(63)
         		  However, it appears that the Italian Constitutional Court held, in its Judgment of 30 December 1997, that such reverse discrimination,
      between domestic producers and Community producers, could not be allowed because it infringed the equal treatment principle
      provided for in Article 3 of the Italian Constitution. 
      
         			(64)
         		
       83.  It would therefore be useful for the referring court to check whether the principle identified by the Italian Constitutional
      Court may be transposed to this case. If the answer is in the affirmative, the Tribunale civile di Bologna will be able to
      apply the solution identified in application of Articles 28 EC and 30 EC to the high-temperature pasteurised milk produced
      by Granarolo in Italy.
        VIII ─ Conclusion
      
       84.  Having regard to the above considerations, I therefore propose that the Court answer the question referred for a preliminary
      ruling by the Tribunale civile di Bologna as follows: 
      (1) 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, as amended by Council Directive 94/71/EC of 13 December 1994, and 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, as amended by Council Directive 89/395/EEC of
      14 June 1989, do not preclude the authorities of a Member State from applying to milk pasteurised at high temperature national
      rules which require a  
      use by date of four days after preparation of the product.  
      
      (2) On the other hand, Articles 28 EC and 30 EC preclude the application of such rules to high-temperature pasteurised milk coming
      from other Member States, provided that it has been established that the process used to manufacture this milk guarantees
      a shelf life of 15 to 20 days after preparation of the product.
      
      
      
       1 –
         
           Original language: French.
      
      2 –
         
         OJ 1992 L 268, p. 1.
      
      3 –
         
         OJ 1994 L 368, p. 33.
      
      4 –
         
         OJ 1979 L 33, p. 1.
      
      5 –
         
         OJ 1989 L 186, p. 17.
      
      6 –
         
         OJ 1989 L 186, p. 21.
      
      7 –
         
         Second recital.
      
      8 –
         
         Fourth recital. 
      
      9 –
         
         Fifth and seventh recitals.
      
      10 –
         
         First and second recitals.
      
      11 –
         
         Third recital.
      
      12 –
         
         GURI No 180, of 11 May 1989, p. 1996 (
            Law No 169/89).
         
      
      13 –
         
         Pages 5 to 7. See also paragraph 2(a) of the written observations from the applicant in the main proceedings.
      
      14 –
         
         GURI No 59, of 12 March 1997, Ordinary Supplement No 54, p. 1200 (
            Decree No 54/97).
         
      
      15 –
         
         Council Directive 92/47/EEC of 16 June 1992 on the conditions for granting temporary and limited derogations from specific
            Community health rules on the production and placing on the market of milk and milk-based products (OJ 1992 L 268, p. 33).
         
      
      16 –
         
         Granarolo.
      
      17 –
         
         See the order for reference (p. 10); Granarolo's written observations (pp. 13 and 14); the request for an early hearing, submitted
            by Granarolo on 18 June 2002 (p. 2); and Granarolo's oral submissions.
         
      
      18 –
         
         Although it is mentioned in the order for reference, Directive 89/396 does not appear relevant to answering the question referred
            for a preliminary ruling. The only provision that it contains relating to the  
            use by date of foodstuffs is Article 5, which provides that,  
             [w]hen the date of minimum durability or  
            use by date appears on the label, the indication [which allows identification of the lot to which a foodstuff belongs] need not
            appear on the foodstuff, provided that the date consists at least of the uncoded indication of the day and the month in that
            order. Apart from this article, Directive 89/396 does not contain any provision which deals, directly or indirectly, with the date
            of minimum durability of milk products. I shall therefore restrict myself to examination of Directives 92/46 and 79/112.
         
      
      19 –
         
         See, as a recent example of settled case-law, Case C-491/01  
             British American  Tobacco (Investments) and Imperial Tobacco   [2002] ECR I-11453, paragraph 203.
         
      
      20 –
         
         See Annex A.
      
      21 –
         
         See Annex B.
      
      22 –
         
         See Chapters I and II in Annex C.
      
      23 –
         
         Ibid., Chapters III and IV.
      
      24 –
         
         Ibid., Chapter V.
      
      25 –
         
         Ibid., Chapter VI.
      
      26 –
         
         See point 49 of this Opinion.
      
      27 –
         
         Article 2.
      
      28 –
         
         Articles 3 to 14.
      
      29 –
         
         Idem.
      
      30 –
         
         See, to that effect, the judgment in Case C-144/95  
             Maurin   [1996] ECR I-2909, paragraphs 10 and 11, and the Opinion of Advocate General La Pergola in that case (point 4). 
         
      
      31 –
         
         Article 3(1)(2).
      
      32 –
         
         Article 6(2).
      
      33 –
         
         Article 6(4).
      
      34 –
         
         Articles 6(5) to (8), 7 and 8.
      
      35 –
         
         This question may possibly be covered by a sectoral directive relating to the relevant foodstuff (see, for example, Council
            Directive 79/693/EEC of 24 July 1979 on the approximation of the laws of the Member States relating to fruit jams, jellies
            and marmalades and chestnut purée (OJ 1979 L 205, p. 5)).
         
      
      36 –
         
         See point 63 of the Commission's written observations.
      
      37 –
         
         Chapter III(C)(1)(b)(i) in Annex A.
      
      38 –
         
         Chapter IV(B)(1) in Annex A.
      
      39 –
         
         The third indent of Chapter V(2) in Annex C.
      
      40 –
         
         See, to that effect, Case C-257/00  
             Givane and Others   [2003] ECR I-345, paragraph 52.
         
      
      41 –
         
         See point 59 of the Commission's written observations.
      
      42 –
         
         See page 10 of Granarolo's written observations.
      
      43 –
         
         Fourth recital.
      
      44 –
         
         Fifth and seventh recitals.
      
      45 –
         
         See, by analogy, Cases C-12/00  
             Commission  v  
             Spain  [2003] ECR I-459, paragraphs 51 to 70, and C-14/00  
             Commission  v  
             Italy  [2003] ECR I-513, paragraphs 43 to 67.
         
      
      46 –
         
         See points 29 to 51 of this Opinion.
      
      47 –
         
         See points 65 to 75 of this Opinion.
      
      48 –
         
         See inter alia Case 35/85  
             Tissier   [1986] ECR 1207, paragraph 9, Case C-107/98  
             Teckal   [1999] ECR I-8121, paragraph 39, and Case C-265/01  
             Pansard and Others   [2003] ECR I-683, paragraph 19.
         
      
      49 –
         
         Joined Cases C-267/91 and C-268/91  
             Keck and Mithouard   [1993] ECR I-6097.
         
      
      50 –
         
         Ibid., paragraph 15.
      
      51 –
         
         Case 8/74  
             Dassonville  [1974] ECR 837.
         
      
      52 –
         
         . Keck and Mithouard , paragraph 16.
         
      
      53 –
         
         See inter alia Case C-470/93  
             Mars   [1995] ECR I-1923, paragraphs 11 to 14.
         
      
      54 –
         
         This is the ground which provides the basis for the requirement laid down by Article 5(3) of this law (see the order for reference,
            p. 5).
         
      
      55 –
         
         See, for example, Case 227/82  
             Van Bennekom   [1983] ECR 3883, paragraphs 39 and 40, and Case C-17/93  
             Van der Veldt   [1994] ECR I-3537, paragraph 15.
         
      
      56 –
         
         See the order for reference (pp. 6 and 7).
      
      57 –
         
         Ibid., pp. 5 and 6.
      
      58 –
         
         See inter alia Case 355/85  
             Cognet  [1986] ECR 3231, paragraph 10, Joined Cases 80/85 and 159/85  
             Edah  [1986] ECR 3359, paragraph 18, and Case 98/86  
             Mathot   [1987] ECR 809, paragraph 7.
         
      
      59 –
         
         See inter alia Case 86/78  
             Peureux   [1979] ECR 897;  
             Cognet , paragraphs 10 to 12;  
             Edah , paragraph 23; and  
             Mathot , paragraph 12.
         
      
      60 –
         
         For an opposite view, see the excellent contribution of Poiares Maduro, M., (2000)  
            The Scope of European Remedies: The Case of Purely Internal Situations and Reverse Discrimination in  
             The Future of Remedies in Europe , Hart Publishing, USA, p. 117.
         
      
      61 –
         
         . Rivista di diritto internazionale , 1998, p. 530.
         
      
      62 –
         
         Case 407/85  
             3 Glocken and Others   [1988] ECR 4233.
         
      
      63 –
         
         Ibid., paragraph 25.
      
      64 –
         
         On the subject of this judgment, see also Della Chà, A., (2002)  
            Challenge of internal rules on grounds of reverse discrimination: an open issue,  
             Diritto del commercio internazionale , p. 145, 161.