3.Apart from the case, explained above, where merely a general open licence is required, the Commission considers that the United Kingdom measures are justified neither to protect the health of livestock nor to protect human health, nor finally to protect the consumer.(a) The protection of British livestock could be guaranteed since the UK authorities would be certain that the imported milk comes from an area of production free of infectious diseases or, at least, from an area where any such infection has been brought under control. To that end, the Commission points out that the requirement of a health certificate from an exporting country accompanying the imported consignments, linked to a centralized system of monitoring that information would enable the United Kingdom to exercise control over those imported products which pose a threat and, if necessary, to prohibit the importation or the sale of milk coming from doubtful areas.In the Commission's opinion such a system is found to be satisfactory in all Member States where it is operated and the Commission states that, contrary to the United Kingdom's assertion, neither Belgium nor Denmark operates a licensing system for imports. Consequently, only the United Kingdom and Ireland subject imports of milk to a system as restrictive as the system under challenge in the present proceedings and, in that respect, the Commission states that the possibility of proceedings against Ireland is at present under consideration.(b) Nor does the protection of human health necessitate the operation of a system as restrictive as the one at present in force in the United Kingdom.The Commission seeks to emphasize that the criteria used for the purpose of protecting public health may not be appraised abstractly but must on the contrary be viewed in context. Thus, the Commission considers that, in view of the health precautions taken in the various Member States, milk is “very far from being a major source of human disease”. It states that, to its knowledge, the case reported by the United Kingdom, of intoxication of certain persons due to the presence of enterotoxins in UHT milk marketed in the Federal Republic of Germany, “must rank as one of the very few cases of illness, if not the only case, ever to have been caused by UHT milk”. In that respect it emphasizes that a second UHT treatment would not have destroyed the enterotoxins which caused the illness.For that reason the Commission considers that, for the purpose of protecting public health, the same criteria may not be applied to a product such as milk, which is widely consumed and the characteristics of which are well established, and to entirely new and only partly tested products such as the pesticides and artificial preservatives which formed the subject-matter of the judgments of the Court of 5 February 1981 in Case 53/80 (Officier van Justitie v Koninklijke Kaasfabriek Eyssen BV [1981] ECR 409) and of 17 December 1981 in Case 272/80 (Openbaar Ministerie v Frans-Nederlandse Maatschappij voor Biologische Producten BV [1981] ECR 3277). The Commission rejects the comparison made by the United Kingdom to demonstrate the lawfulness of its restrictive measures because, inter alia, the production and sale of the chemical products at issue in those cases were totally prohibited on the territory of the Member States concerned, which is not so in the present case.The Commission emphasizes that figures for intra-Community trade show that for a number a years there has been substantial trade in UHT milk between all the Member States of the Community except the United Kingdom and, so far as the Commission is aware, no health problem has occurred. In addition some Member States noted for their high standard of public health protection, such as the Netherlands and the Federal Republic of Germany, have very liberal rules regarding imports of these products.în that respect the Commission submits that no system of safeguards is absolutely failsafe, that the dangers referred to by the United Kingdom to justify its restrictive policy on imports are just as acute on its own territory and, finally, that the health standards in force in the different Member States are similar, if not at least equivalent, to those imposed in the United Kingdom.Furthermore, the Commission argues that it is scientifically proven that a second UHT treatment of milk and daiiy products is ineffective and thus useless to eliminate dangerous substances which have resisted the first treatment. However, it is principally on the requirement of a second treatment that the United Kingdom authorities are insisting to ensure the protection of public health. For that reason the Commission considers that the measures applied by the United Kingdom are disproportionate in relation to the purpose to be achieved.In support of that argument, the Commission points out that:— UHT cream and flavoured UHT milk may, after importation, still be freely marketed on certain parts of the territory of the United Kingdom, whereas those products, as the United Kingdom admits, pose an equal threat to public health, although their consumption is less. Indeed, the Commission “deeply regrets” that the United Kingdom did not see fit to await the outcome of the present proceedings before setting in motion the process of consultation leading to the extension to those products of all the restrictive measures applying to imports of milk (letter from the Ministry of Agriculture, Fisheries and Food dated 9. 10. 1981 to the responsible authorities). The Commission states that, if the measures envisaged, which seek to subject the marketing of flavoured cream and milk to the requirement of a second UHT treatment on the territory of the United Kingdom, were finally adopted, further proceedings under Article 169 of the EEC Treaty would probably have to be instituted on that ground against the United Kingdom.— The system of import licences prior to any entry of UHT milk on to the territory of the United Kingdom does not enable the public health authorities to satisfy themselves as to the nonpathogenic quality of the milk intended for sale on the United Kingdom market. In fact, the Commission observes, first, that no health inspection is carried out by inspectors from the United Kingdom in the Member State or States seeking to export and, secondly, that no inspection may take place on the territory of the United Kingdom itself since the products in question are not landed prior to the issue of a licence. Therefore the Commission questions the objectivity of the criteria used by the United Kingdom authorities for the grant of those licences and emphasizes that, if the true criterion is whether the area of production is infected, the requirement of a prior licence is unjustified and may easily be replaced by the system of export documents described above.— Finally, the United Kingdom, in order to justify its system, has adduced no evidence of any outbreaks of disease linked to imports of dairy products.ín concluding its submissions on the question of the protection of public health, the Commission relies on the judgments of the Court of 8 November 1979 in Denkavit (cited above) and 7 April 1981 in Case 132/80 (United Foods v Belgian State [1981] ECR 995), where it was held that an importing Member State should, wherever possible, give credence to health certificates delivered by the authorities of the exporting Member State, subject to spot checks. In that respect the Commission is of the opinion that the United Kingdom can no longer justify its refusal to do this by relying on the opinion of Mr Advocate General Mayras of 14 June 1979 in Case 244/78 Union Laitière Normande v French Dairy Farmers [1979] ECR 2685 since, in its view, his Opinion was overruled in the judgments cited above.(c) In the Commission's view, consumer protection cannot be viewed separately from the question of public health. Consequently, hindrances to trade which could not be justified from the point of view of public health cannot be justified by reference to the objective of protecting consumers. In any case, the Commission recalls that the requirement of a second UHT treatment on the territory of the United Kingdom for the purpose of protecting the consumer is ineffective and liable to alter the organoleptic quality of milk to the detriment of consumers.In concluding, the Commission states that its task is to ensure that distribution conditions for food products which are compatible with human and animal health are maintained and improved throughout the Community. It continues to take the view that the measures of the United Kingdom are “considerably more restrictive than is necessary” of imports of UHT milk and that the United Kingdom authorities could ensure the protection of public health by means which are less restrictive of trade and compatible with the case-law of the Court. To that effect it would be sufficient if the United Kingdom were to lay down the requirement that importers should produce veterinary certificates drawn up by the exporting Member State.For those reasons, the Commission claims that the United Kingdom has failed to fulfil its obligations under the EEC Treaty by adopting the contested measures relating to imports of milk on to its territory.
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