CJEC, March 19, 1991, No C-205/89

THE COURT,

1 By an application lodged at the Court Registry on 29 June 1989, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that the Hellenic Republic had failed to fulfil its obligations under Council Regulation No 804-68-EEC of 27 June 1968 on the common organization of the market in milk and milk products and under Articles 30 and 36 of the EEC Treaty by making the importation of milk products subject to rules requiring physical inspection of each consignment of products and making the importation of pasteurized butter in respect of which the pasteurization process is mentioned on the label or a mark subject to the same system of inspection and also to the requirement of a veterinary certificate.

2 By Presidential Decree No 550-1989 (Official Journal of the Greek Government A 232 of 11 October 1989) the Hellenic Republic abolished the rules requiring inspection of each consignment of milk products imported from other Member States, and the Commission therefore withdrew that complaint in its reply. However, it continued its action in so far as it concerned the requirement of a veterinary certificate applicable to the importation of pasteurized butter.

3 Article 13(1) of Presidential Decree No 40-1977 on the veterinary inspection of animals for slaughter and animal products (Official Journal of the Greek Government A 18 of 21 January 1977), as amended, provides that all imported foodstuffs must be accompanied by the original copy of a veterinary health certificate or a health certificate issued by a competent public authority of the country from which the goods come, drawn up in Greek, English or French; the certificate must be issued during the fifteen days preceding the dispatch of the goods.

4 Reference is made to the Report for the Hearing for a more detailed account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

5 In assessing whether the application is well-founded it must be remembered first that, according to established case-law of the Court (see first the judgment in Case 8-74 Dassonville [1974] ECR 837, paragraph 5), the prohibition on measures having equivalent effect to quantitative restrictions laid down in Article 30 of the Treaty covers any trading rules of the Member States which are liable directly or indirectly, actually or potentially, to hinder intra-Community trade.

6 The requirement to produce a health certificate, to which the Hellenic Republic subjects the importation of pasteurized butter from other Member States, is liable to hinder imports of those products and is therefore covered by Article 30 of the Treaty.

7 It is however necessary to verify whether, as the Hellenic Republic maintains, the application of such measures may be justified under Article 36 of the Treaty on grounds of protection of human health.

8 As is apparent from a consistent line of decisions of the Court, it is for the Member States, in the absence of harmonization at Community level, to decide on the level of protection which they wish to accord to the protection of human health, whilst taking account of the requirements of the free movement of goods within the Community (see in particular the judgment in Case 178-84 Commission v Germany [1987] ECR 1227).

9 Article 36 of the Treaty lays down an exception - falling to be construed strictly - to the rule that goods should be able to move freely within the Community, which constitutes one of the fundamental principles of the common market. It follows that it is for the national authorities which seek to rely on that provision for the purpose of adopting a measure restricting intra-Community trade to establish in each case that the measure in question satisfies the criteria laid down by that provision (judgment in Case 174-82 Sandoz [1983] ECR 2445).

10 On this point the Hellenic Republic maintains that pasteurized butter is subject to risks of deterioration in quality harmful to health and emphasizes that, in Directive 85-397-EEC of 5 August 1985 on health and animal-health problems affecting intra-Community trade in heat-treated milk (Official Journal L 226, p. 13), the Council expressly authorized the requiring of health certificates.

11 In that regard it should be noted that the pasteurized butter in this case cannot be compared to the products covered by Directive 85-397, since its composition is different. The Commission has moreover convincingly argued that pasteurized butter is characterised by its microbiological stability and is not subject to the same risks of deterioration as milk products which have merely undergone heat treatment.

12 As regards the other health risks (which the Hellenic Republic did no more than allege), the existence of such risks is contradicted by an enquiry carried out by the Commission with the authorities of the Member States, from which it appears that the marketing of pasteurized butter has not given rise to health problems in any of those States.

13 The Hellenic Republic's failure to fulfil its obligations under Article 30 of the Treaty is therefore established; consequently it is unnecessary to examine the complaints relating to infringement of Regulation 804-68, which merely reproduces, in the context of the common organization of the market in milk and milk products, the principles of free movement laid down in Article 30 of the Treaty.

14 It follows from the foregoing that, by subjecting the importation of pasteurized butter in respect of which the pasteurization process is mentioned on the label or a mark subject to the requirement of a health certificate, the Hellenic Republic has failed to fulfil its obligations under Article 30 of the Treaty.

Costs

15 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Article 69(4) of the Rules of Procedure provides that a party who discontinues or withdraws from proceedings is to be asked to pay the costs unless the discontinuance or withdrawal is justified by the conduct of the opposite party. In this case the Commission's withdrawal of the complaint relating to the carrying out of a physical inspection of each consignment of products imported from other Member States is justified by the conduct of the Hellenic Republic, which amended its legislation only after expiry of the period laid down in the reasoned opinion. Since the Hellenic Republic has failed in its submissions with regard to the application as it stood following the Commission's partial withdrawal, it must be ordered to pay the costs.

On those grounds,

THE COURT

Hereby:

(1) Declares that, by subjecting the importation of pasteurized butter in respect of which the pasteurization process is mentioned on the label or a mark to the requirement of a health certificate, the Hellenic Republic has failed to fulfil its obligations under Article 30 of the Treaty;