Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (261/85)

Contents

Judgment of the Court4 February 1988^noteIn Case 261/85Commission of the European Communities, represented by D. Grant Lawrence, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of G. Kremlis, a member of the Commission's Legal Department, Jean Monnet Building, Kirchberg,vUnited Kingdom of Great Britain and Northern Ireland, represented by S. J. Hay, of the Treasury Solicitor's Department, assisted by J. Swift QC, and G. Barling, Barrister, acting as Agents, with an address for service in Luxembourg at the British Embassy,THE COURTcomposed of: G. Bosco, President of Chamber, acting as President, J. C. Moitinho de Almeida (President of Chamber), T. Koopmans, U. Everling, Y. Galmot, C. Kakouris and F. Schockweiler, Judges,Advocate General: J. MischoRegistrar: B. Pastor, Administratorhaving regard to the Report for the Hearing and further to the hearing on 15 October 1987,after hearing the Opinion of the Advocate General delivered at the sitting on 24 November 1987,gives the following

Judgment

1By application lodged at the Court Registry on 20 August 1985 the Commission of the European Communities brought an action before the Court under Article 169 of the EEC Treaty for a declaration that:— by prohibiting the importation from other Member States of pasteurized milk and unfrozen pasteurized cream, and— by requiring that heat-treated cream and milk-based drinks are to be manufactured in Great Britain only from milk produced in Great Britain, and in Northern Ireland from milk produced in Northern Ireland,the United Kingdom of Great Britain and Northern Ireland had failed to fulfil its obligations under Article 30 of the EEC Treaty and Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products (Official Journal, English Special Edition, 1968 (I), p. 176).

2The provisions which required only milk from Great Britain to be used for the production of heat-treated cream and milk-based drinks, and the equivalent provisions applicable in Northern Ireland, were repealed with effect from 1 June 1986. Accordingly, the Commission discontinued the part of its action relating thereto.

3It only remains therefore to give judgment on the first head of claim mentioned above, which relates more particularly to various regulations concerning the importation of milk, adopted pursuant to the Importation of Milk Act, 1983. Those regulations (Importation of Milk Regulations, 1983 SI 1983 No 1563; Importation of Milk (Scotland) Regulations, 1983, SI 1983 No 1546; Importation of Milk Regulations (Northern Ireland), 1983, SI 1983 No 338) have the effect of prohibiting the importation, into any part of the United Kingdom, of pasteurized milk and of cream, unless the latter has been frozen.

4By a letter dated 2 February 1984, the Commission informed the United Kingdom that it considered that prohibition to be contrary to Article 30 of the EEC Treaty and that it could not be justified under Article 36, and it asked the United Kingdom to submit its observations within a period of one month. The United Kingdom stated in reply that it considered that the prohibition was justified under Article 36 and on 29 November 1984 the Commission delivered the reasoned opinion provided for in Article 169 of the Treaty. Since the United Kingdom did not take the necessary measures to comply with that opinion, the Commission brought the present action before the Court on 20 August 1985.

5Reference is made to the Report for the Hearing for a more detailed account of the facts and of 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.

Admissibility of the application

6The United Kingdom contends in its rejoinder that the Commission has, during the course of the proceedings, altered the subject-matter of its application as defined in the reasoned opinion. In its reply, the Commission criticized the United Kingdom for prohibiting imports which satisfied the conditions laid down in Council Directive 85/397/EEC of 5 August 1985 (Official Journal 1985, L 226, p. 13) on health and animal-health problems affecting intra-Community trade in heat-treated milk, whereas there was no reference to that directive in the reasoned opinion.

7That argument cannot be upheld. It is apparent both from the documents before the Court and from the oral arguments presented to it that throughout the pre-contentious procedure and the proceedings before the Court the Commission's definition of the infringement which the United Kingdom is alleged to have committed has remained unchanged, namely that the prohibition of the importation of pasteurized milk and unfrozen pasteurized cream was contrary to Article 30 of the Treaty and to the common organization of the market in milk and milk products. Although, in its reply, the Commission referred to Directive 85/397/EEC, which was adopted after the reasoned opinion was delivered, it did so only in response to an argument contained in the defence of the United Kingdom which had itself relied upon that directive to draw attention to the disparities between national rules and to the need for a Community system of quality control for milk.

8The objection of inadmissibility raised by the United Kingdom must therefore be rejected.

Substance

9The Commission maintains that the rules in force in the United Kingdom are contrary to Article 30 of the Treaty and are not justified under Article 36, in so far as the total prohibition of imports is disproportionate in relation to the health objectives adopted by the United Kingdom. In the first place, it has not been shown in what way the legislation of the other Member States offers only inadequate guarantees as to the quality of the milk. In the second place, the United Kingdom should, rather than imposing a general and absolute prohibition, allow the importation of milk found to comply with the United Kingdom standards. There is no reason for claiming that milk from other Member States never complies with those standards. Certain tests make it possible to verify this within a sufficiently short time and it is incumbent upon the United Kingdom to set up an organization capable of carrying out the necessary checks. Finally, the Commission states that it would be excessive to prohibit, for reasons of public health, the importation of milk which already satisfied the rules laid down in Directive 85/397.

10The United Kingdom concedes that the rules in question are contrary to Article 30 of the Treaty. It considers, however, that they are justified under Article 36. It states, in the first place, that pasteurization offers less substantial guarantees regarding health than ultra-high-temperature treatment. The United Kingdom states that in that connection it has, as it is entitled to do by virtue of consistent decisions of the Court, laid down appropriate standards to ensure a high degree of protection of human life and health, having regard to the substantial consumption of milk products, and the Commission has never suggested that those standards were too rigorous. To ensure compliance therewith, the United Kingdom authorities have established a comprehensive system for controlling the quality of milk, based on statutory measures, supervisory bodies and a system of penalties, which has no equivalent in the other Member States. Only by means of an organization of this type can it be ensured that the standards in force are complied with. The United Kingdom remarks in that connection that the specific purpose of Directive 85/397 is to compel the other Member States to adopt a similar system. It adds that in the absence of common standards no Member State can, before the entry into force of the directive, validly certify that its producers' milk complies with the United Kingdom standards.

11It must be observed that, as is recognized by both the parties, the contested rules fall within the scope of Article 30 of the Treaty and of Regulation No 804/68, the purpose of which is to achieve a single market in milk and milk products. The only question to be resolved therefore is whether or not the measures in question are justified under Article 36 of the Treaty for reasons relating to the protection of human life and health.

12It must be borne in mind in that connection that, as the Court has consistently held, whilst human life and health are among the matters protected by Articles 36 and whilst, as a result, it is for the Member States to decide within the limits of the Treaty as to the level of protection which they wish to ensure, national rules restricting imports are compatible with the Treaty only in so far as they are necessary for the effective protection of human life and health and only if that objective cannot be achieved by measures less restrictive of intra-Community trade (judgments of 20 May 1976 in Case 104/75 De Peijper [1976] ECR 613; 8 February 1983 in Case 124/81 Commission v United Kingdom [1983] ECR 203; 6 June 1984 in Case 97/83 Melkunie [1984] ECR 2367).

13It is true, as the United Kingdom points out, that the technique of pasteurization does not offer the same guarantees, from the point of view of public health, as sterilization or ultra-high-temperature treatment. In those circumstances, the United Kingdom can legitimately seek to offset that inadequacy by imposing strict requirements applicable to the whole production and marketing cycle, from the farm to the final consumer. It should also be noted that those requirements correspond to a considerable extent to those adopted in Directive 85/397/EEC.

14Those considerations cannot, however, release the United Kingdom from compliance with its obligation under Community law to limit restrictions on intra-Community trade to what is strictly necessary for the protection of human life and health.

15It appears, in that connection, that the contested rules, whose purpose is to impose a general and absolute prohibition on all imports of the products concerned, on the ground that they could not, in any event, satisfy the United Kingdom healthinspection requirements, are disproportionate in relation to the objectives pursued. Until such time as common standards enter into force, the United Kingdom could achieve those objectives whilst permitting the importation from other Member States of pasteurized milk and unfrozen pasteurized cream which met its own requirements.

16Even assuming it were true, as the United Kingdom contends — a contention not substantiated by the documents before the Court or at the hearing — that at the present time no system for the production of pasteurized milk which complies with the requirements of the United Kingdom legislation exists in any Member State, the fact nevertheless remains that the absolute prohibition of imports imposed by the United Kingdom would, from the outset, discourage producers in the other Member States from making adjustments so as to conform to those requirements and would, at least potentially, obstruct intra-Community trade.

17In those circumstances, it is for the United Kingdom to establish a system enabling the importers in question to prove that the imported milk products comply with the national standards in force. As the Court has already held (see in particular Commission v United Kingdom [1983] ECR 203), the United Kingdom would be able to ensure such compliance by asking importers to produce certificates issued for that purpose by the competent authorities in the exporting countries. As stated in the same judgment, it would also be able to carry out controls to ensure observance of the standards which it has laid down and to prevent the entry of consignments found not to conform with those standards, whilst at the same time addressing itself to the question whether cooperation with the authorities in the other Member States might make it possible to facilitate and simplify such controls.

18Finally, although the United Kingdom claims that the establishment of such a system would occasion unnecessary expenditure in view of the fact that all the Member States will within a very short time — as from 1 January 1989 — have to conform with Directive 85/397/EEC, it should be pointed out, on the one hand, that the Commission's letter inviting the United Kingdom to submit its observations was sent to it as long ago as 2 February 1984 and, on the other, that there is nothing to prevent the United Kingdom from establishing immediately the system provided for by that directive, even before the expiry of the period allowed for that purpose.

19It must therefore be concluded that by laying down the various measures analysed above, the effect of which is to prohibit the importation into its territory of pasteurized milk and unfrozen pasteurized cream from other Member States, the United Kingdom has failed to fulfil its obligations under Article 30 of the Treaty and Council Regulation No 804/68 of 27 June 1968.

Costs

20Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Similarly, according to Article 69 (4), ‘A party who discontinues or withdraws from proceedings shall be ordered to pay the costs, unless the discontinuance or withdrawal is justified by the conduct of the opposite party’. Since the United Kingdom has failed in its submissions and the Commission's discontinuance is attributable to the conduct of the United Kingdom, the latter should be ordered to pay the costs.

Operative part

On those grounds,THE COURThereby:

(1).Declares that, by prohibiting the importation from other Member States of pasteurized milk and unfrozen pasteurized cream, the United Kingdom has failed to fulfil its obligations under Article 30 of the Treaty and under Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products;

(2).Orders the United Kingdom to pay the costs.

Delivered in open court in Luxembourg on 4 February 1988.