CJEC, February 23, 1988, No 216-84

The court

1 By an application lodged at the court registry on 21 august 1984, the Commission of the European Communities brought an action under article 169 of the eec treaty for a declaration that, by prohibiting the importation and sale of substitutes for milk powder and concentrated milk, under any name whatsoever, the French Republic has failed to fulfil its obligations under article 30 of the eec treaty.

2 The national prohibition contested by the commission stems from article 1 of the law of 29 june 1934 on the protection of milk products (journal officiel de la republique francaise of 1 july 1934).

3 During the pre-litigation procedure and in support of its application, the commission argued essentially that the provision at issue gave rise to an absolute prohibition on the marketing and the importation into france of any product intended to replace milk powder or concentrated milk which is composed of products other than milk, whatever name it is marketed under. Although that absolute prohibition applies to domestically made and imported products alike, it is justified neither on any of the grounds set out in article 36 of the treaty nor by any mandatory requirement.

4 The french government argues in defence of the provision at issue that it is necessary on grounds both of consumer protection and of the protection of human health and that it is consonant with the objectives of community policy with regard to milk products. In addition, the french government relies on the alleged retroactivity of article 5 of council regulation n°1898-87 of 2 july 1987 on the protection of designations used in marketing of milk and milk products (official journal 1987, l 182, p. 36).

5 Reference is made to the report for the hearing for a fuller account of the relevant legal provisions, the facts of the case, in particular as regards the reopening of the oral procedure, and the arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the court.

6 It must first be observed that, in the absence of common or harmonized rules relating to the manufacture and marketing of milk substitutes, it is for each member state to regulate all matters relating to the composition, the manufacture and the marketing of those products in its own territory.

7 However, according to the established case-law of the court it follows from article 30 et seq. Of the eec treaty that the application of national legislation to products imported from other member states is compatible with the treaty only in so far as it is necessary on grounds of public interest listed in article 36, such as the effective

Protection of human health, or in order to satisfy mandatory requirements relating inter alia to consumer protection. It also follows therefrom that a member state may not invoke those grounds of public interest or mandatory requirements in order to justify a measure restricting imports unless the same objective cannot be achieved by any other measure which restricts the free movement of goods less.

8 Consequently it is appropriate to consider in turn, in the light of this case-law, the various submissions put forward by the french government in order to justify the prohibition of any commercial transaction relating to the product in question.

Consumer protection

9 As regards its submission relating to consumer protection, the french government puts forward essentially three separate arguments, based in the first place on the problem of informing consumers that what they are being offered for consumption are substitutes, secondly on the risk of confusion on the part of consumers as to the characteristics of the product in question and thirdly on the possibility that because they are cheaper substitutes will gradually supplant milk products and thus deprive consumers of any choice.

10 In that connection, it must be observed in the first place that the french government' s concern to ensure that consumers are properly informed about the products which they consume may be justified. However, in this case such information may be provided in particular in the form of adequate labelling detailing the nature, the ingredients and the characteristics of the product on offer. As the commission rightly pointed out, such information may also be provided where the products are sold by drink vending machines and in principle in catering establishments. Although there may be some difficulties in providing consumers with full and detailed information where milk substitutes are used in catering, it should be borne in mind that full and detailed information is likewise not given about the other ingredients used in the foodstuffs and meals provided by catering establishments. There is no particular reason for stricter consumer information where milk substitutes are involved.

11 With regard to the question of information liable to mislead consumers, it appears from the case-law of the court (judgment of 16 december 1980 in case 27-80 fietje ((1980)) ecr 3839) that national measures which are necessary in order to ensure that products are accurately described may be adopted without infringing the principle of

The free movement of goods as laid down in article 30 et seq. Of the treaty provided that they avoid any confusion on the part of consumers and ensure fairness in commercial transactions. Hence community law does not preclude a national measure securing accurate consumer information and thereby avoiding any confusion. However, the measure in question in this case goes beyond that.

12 As to the risk of milk products being supplanted by substitutes because they are lower priced, it is sufficient to observe that a member state may not plead a mandatory requirement, such as consumer protection, in order to shield a product from the effects of price competition on the pretext of economic difficulties brought about by the elimination of barriers to intra-community trade. Neither can it be said that by prohibiting the marketing of milk substitutes the provision in question safeguards the consumer' s freedom of choice. On the contrary, only the possibility of importing milk substitutes will give consumers a genuine choice between whiteners and milk products.

13 It follows that an absolute prohibition on the importation and sale of milk substitutes is not necessary in order to protect consumers and hence the french government' s first susbmission must be rejected.

Health protection

14 In this connection, the french government relies on two arguments, one relating to nutritional value, the other based on the alleged harmful effect of milk substitutes on particular groups of the population.

15 As far as the first argument is concerned, it must be observed that a member state may not invoke public health grounds in order to prohibit the importation of a product by arguing that its nutritional value is lower or its fat content higher than another product already available on the market in question. It is plain that the choice of foodstuffs available to consumers in the community is such that the mere fact that an imported product has a lower nutritional value does not pose a real threat to human health. Moreover, as the commission has pointed out without being contradicted by the french government, there are products on the market in france which are also of lower nutritional value or are composed substantially of the same fats used in milk substitutes yet there is no ban on marketing them.

16 As regards the harmful effect of milk substitutes on certain groups of the population, the commission rightly pointed out that milk products also pose risks to people suffering from certain diseases and, secondly, that there is manifestly disagreement between specialists as

To the actual and potential dangers to human health of animal and vegetable fats. In that connection, it must be pointed out that appropriate labelling informing consumers about the nature, the ingredients and the characteristics of the milk substitutes on offer would enable persons liable to be adversely affected by vegetable fats or other constituents of the milk substitutes to decide for themselves as to whether to use them.

17 In those circumstances, an absolute prohibition on the importation of milk substitutes cannot be justified on grounds of the protection of human health.

Compatibility of the measure at issue with the objectives of the relevant community policy

18 As for the french government' s argument that the prohibition on the marketing of milk substitutes in france is consonant with the common agricultural policy, it must first be observed that milk products are subject to a common organization of the market, which is designed to stabilize the milk market, inter alia by means of intervention measures. It appears from the established case-law of the court that once the community has established a common market organization in a particular sector, the member states must refrain from taking any unilateral measure which consequently falls within the competence of the community.

It is therefore for the community and not for a member state to seek a solution to this problem in the context of the common agricultural policy.

19 In this connection, it must be added that, even if they support a common policy of the community, national measures may not conflict with one of the fundamental principles of the community - in this case that of the free movement of goods - unless they are justified by reasons recognized by community law.

20 It appears from the foregoing that the measure at issue falls within the prohibition set out in article 30 of the eec treaty and is not justified either by any mandatory requirement or on one of the grounds listed in article 36 of the treaty.

Justification of the provision in question by article 5 of regulation n°1898-87

21 In addition, the french government interprets article 5 of regulation n°1898-87, which provides that the member states may, for a certain period "and in compliance with the general provisions of the treaty, maintain their national regulations which restrict the manufacture and marketing in their territory of products not fulfilling the conditions referred to in article 2 of this regulation", as meaning that the french legislation in question may in any event continue to apply.

22 That argument cannot be accepted. Without its even being necessary to rule on whether article 5 of regulation n°1898-87 is retroactive, it is sufficient to observe that that article provides that national regulations may be maintained only on condition that the general provisions of the eec treaty are complied with. However, as the court has held above, the provision at issue in this case is contrary to article 30 of the eec treaty and therefore does not satisfy the conditions laid down by article 5 of regulation n°1898-87.

23 It appears from all the foregoing that it is established that there has been a failure to fulfil obligations. It must therefore be held that, by prohibiting the importation of substitutes for milk powder and concentrated milk under any name whatsoever and the sale of such imported products, the French Republic has failed to fulfil an obligation incumbent upon it under article 30 of the eec treaty.

Costs

24 Under article 69 (2) of the rules of procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party' s pleading. Since the defendant has been unsuccessful in its submissions, it must be ordered to pay the costs.

On those grounds,

The court

Hereby:

(1) Declares that, by prohibiting the importation of substitutes for milk powder and concentrated milk under any name whatsoever and the sale of such imported products, the French Republic has failed to fulfil an obligation incumbent upon it under article 30 of the eec treaty;

(2) Orders the French Republic to pay the costs.