CJEC, 5th chamber, June 6, 1984, No 97-83

THE COURT (fifth chamber)

1 By a judgment dated 10 may 1983, which was received at the court on 27 may 1983, the Hoge Raad referred to the court for a preliminary ruling under article 177 of the eec treaty two questions on the interpretation of provisions of the eec treaty concerning the free movement of goods within the community.

2 The questions arose in the course of criminal proceedings brought against a Netherlands importer for holding in stock milk products unfit for human consumption, contrary to the melkbesluit (milk order) of 25 october 1974. That order, which was adopted pursuant to articles 14 and 16 of the warenwet (law on goods) of 28 december 1935, laying down requirements as to the quality and description of goods (staatsblad 1935, no 793), as amended, prescribes the conditions that pasteurized and sterilized products must satisfy in order to be marketed in the Netherlands.

3 Article 34 (3) of the melkbesluit provides that on the latest date for sale pasteurized milk products must satisfy inter alia the following requirements:

' ' (a) Active coliform bacteria must not be detectable in one millilitre;

(b) The number of active micro-organisms must not exceed 50 000 per millilitre save in the case of whipping cream, in which case that number must not exceed 200 000;... ' '.

4 Analyses carried out by the Netherlands supervisory authority of five consignments imported from the federal republic of germany for marketing in the Netherlands revealed that on or immediately before the latest date for sale stated on the packaging of the product in question 9 000 000 active micro-organisms per millilitre were present in the first two consignments, 18 000 000 in the third, 90 000 000 in the fourth and 82 000 in the fifth, and active coliform bacteria were present in the third and fourth consignments.

5 After being acquitted of the charges by a judgment of the economische politierechter (magistrate dealing with commercial offences) of 16 april 1981, Melkunie was ordered by a judgment of 7 may 1982 of the gerechtshof (regional court of appeal), amsterdam, to pay five hfl 4 000 fines for ' ' five offences committed by a corporate body against a provision adopted pursuant to article 16 of the warenwet ' '.

6 Melkunie appealed against that decision to the Hoge Raad, which stayed the proceedings and submitted the following questions to the court of justice for a preliminary ruling:

' ' 1. Must the provisions of the melkbesluit (warenwet) 1974, in particular the requirements which article 34 (3) of that order places on goods described as ' ' pasteurized ' ', namely that:

(a) Active coliform bacteria must not be detectable in one millilitre; and

(b) The maximum number of active micro-organisms must not exceed 50 000 per millilitre save in the case of whipping cream, in which case that number must not exceed 200 000;

Be regarded as measures having an effect equivalent to quantitative restrictions on imports within the meaning of article 30 of the eec treaty if they are applied in conjunction with the provisions referred to in part 6 of this judgment to goods imported from another member state of the european communities?

' ' 2. If question 1 is answered in the affirmative, is the adoption of the requirements referred to in that question and their application to goods imported from another member state of the european communities none the less justified under article 36 of the eec treaty on one of the grounds mentioned in that article and in particular on grounds of the protection of the ' health of humans ' ?

' '

7 Although the court has no jurisdiction in proceedings under article 177 of the eec treaty to rule on the question whether provisions of national legislation are compatible with the treaty, it may provide the national court with all such criteria for the interpretation of community law which may enable it to answer that question.

8 Accordingly, it must be assumed that the Hoge Raad wishes to know:

Whether national legislation prohibiting the marketing of pasteurized products lawfully produced and marketed in the exporting member state on the ground that they do not satisfy the microbiological requirements of the importing member state constitutes a measure having an effect equivalent to a quantitative restriction on imports within the meaning of article 30 and, if so,

In what circumstances does article 36 of the treaty allow such a restriction on imports on the grounds of the protection of health and life of humans.

The first question

9 It should be pointed out that the community legislature has not laid down microbiological requirements affecting the production and marketing of milk and milk products either within the common organization of the market in milk products or through harmonization of relevant national legislation.

10 Although the member states may therefore prescribe the standards which products intended for human consumption must satisfy in their own territories, the national provisions in question cannot be exempt from the application of article 30 et seq. Of the treaty. According to a consistent line of decisions of the court, the prohibition in article 30 of measures having equivalent effect applies to all trading rules enacted by the member states which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade.

11 Consequently, the answer to the first question must be that national legislation prohibiting the marketing of goods lawfully produced and marketed in the exporting member state on the ground that they do not satisfy the microbiological requirements laid down in the importing member state constitutes a measure equivalent in effect to a quantitative restriction within the meaning of article 30 of the eec treaty.

The second question

12 According to a consistent line of decisions of the court, it follows from article 36 that a national measure which has, or may have, a restrictive effect on trade is compatible with the treaty only in so far as it is necessary for the purpose of effectively protecting human life and health. The proviso in article 36 cannot therefore apply where human life and health can be protected just as effectively by measures less restrictive of intra-community trade.

13 In this connection, Melkunie points out, first, that the product in question complied with the requirements of the legislation of the exporting member state and that that legislation provides the same safeguards as the legislation of the importing member states. Consequently, the requisite cooperation between member state ought to induce the importing member state to require no more than that the imported products should comply with the standards of the exporting member state. Secondly, it contends that legislation of the Netherlands type cannot be justified under article 36 since it goes beyond what is required by a strict concern to safeguard public health.

14 As far as Melkunie ' s first argument is concerned, it should be pointed out that, whilst it is true, as the court has held many times, for example in its judgment of 8 february 1983 in case 124-81, commission of the european communities v united kingdom, (1983) ecr 203, that cooperation between the authorities of the member states makes it possible to facilitate and simplify frontier checks whilst not precluding the authorities of the importing member state from satisfying themselves that the goods imported comply with the requirements of that state ' s health legislation, none the less such cooperation cannot impair the right of each individual member state to enact and apply its own legislation to protect public health. Such legislation is compatible with the treaty if the requirements of article 36 are fulfilled. To this end, it must be shown that the standards are necessary for the effective protection of the health and life of persons residing in the importing member state and do not constitute a means of arbitrary discrimination or a disguised restriction on trade between member states.

15 As regards the question whether the rules laid down by the melkbesluit are justified in the light of article 36 of the treaty, it appears first of all from the documents before the court that the presence of active coliform bacteria in a milk product means that there is a risk of pathogenic micro-organisms being present and is therefore a direct indication that the product may be a source of real danger to human health. A requirement which seeks to exclude the presence of any active coliform bacteria in such a product must therefore be regarded as justified within the meaning of article 36 of the treaty.

16 As regards the second requirement, laying down the maximum permissible number of active non-pathogenic micro-organisms, Melkunie and the commission first point out that, in the present state of scientific knowledge, it is not possible to establish the maximum quantity of such micro-organisms that man may absorb every day without serious risk. They go on to state that it is only where the concentration of such micro-organisms reaches one or two million per millilitre of the product in question - much higher than the maximum level of 50 000 stipulated by the melkbesluit - that there is possibly a risk to human health. Finally, they consider that to stipulate the maximum number of non-pathogenic micro-organisms that may be present on the latest date for sale of a pasteurized product is excessively strict and that it would be sufficient to apply a requirement of that kind at the end of the pasteurization process.

17 It must first be noted that, according to the documents before the court, the member states which lay down a maximum limit for non-pathogenic micro-organisms stipulate levels of the same order of magnitude as the figure of 50 000 laid down by the melkbesluit, even though that requirement is applied at different marketing stages.

18 Secondly, the data available at the present stage of scientific research do not make it possible to determine with certainty the precise number of non-pathogenic micro-organisms above which a pasteurized milk product becomes a source of danger to human health. In the absence of harmonization in this field, it is for the member states to determine, with due regard to the requirements of the free movement of goods, the level at which they wish to ensure that human life and health are protected. In those circumstances, national legislation seeking to ensure that at the time of consumption the milk product in question does not contain micro-organisms in a quantity which may constitute a risk merely to the health of some, particularly sensitive consumers, must be considered compatible with the requirements of article 36.

19 Lastly, in assessing the validity of a rule laying down the maximum number of micro-organisms that may be present in milk products - not on the date of their consumption but on the latest date for their sale - it is also legitimate, as the Netherlands government maintains, to take account of national consumption habits, such as keeping such products for a period of time in less suitable conditions than those in the distributor ' s plant before consuming them. When assessing the validity of the requirement at issue, it is proper therefore for the national court to take account of the rate at which the micro-organisms multiply during the time which generally elapses between the sale of such products and their consumption.

20 The second question must therefore be answered as follows. National legislation which:

(a) Does not allow active coliform bacteria to be present in a pasteurized milk product, and

(b) Is intended to prevent such a product from containing at the time of its consumption non-pathogenic micro-organisms in a quantity which may present a risk to the health of the most sensitive consumers and to that end fixes the maximum number of such micro-organisms that may be present on the date of sale of the product on the basis of its deterioration in the time between its sale and consumption

Complies with the requirements of article 36 of the eec treaty.

Costs

21 The costs incurred by the danish government, the Netherlands government and the commission of the european communities, which have submitted observations to the court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

The court (fifth chamber),

In answer to the questions referred to it by the Hoge Raad by judgment of 10 may 1983, hereby rules:

1. National legislation prohibiting the marketing of goods lawfully produced and marketed in the exporting member state on the ground that they do not satisfy the microbiological requirements laid down in the importing member state constitutes a measure equivalent in effect to a quantitative restriction within the meaning of article 30 of the eec treaty;

2. National legislation which:

(a) Does not allow active coliform bacteria to be present in a pasteurized milk product, and

(b) Is intended to prevent such a product from containing at the time of its consumption non-pathogenic micro-organisms in a quantity which may present a risk to the health of the most sensitive consumers and to that end fixes the maximum number of such micro-organisms that may be present on the date of sale of the product on the basis of its deterioration in the time between its sale and consumption

Complies with the requirements of article 36 of the eec treaty.