Opinion of Mr advocate general Mayras

Mr President,

Members of the Court,

I —. It may be useful to recall the facts at the origin of this reference for a preliminary ruling by the Tribunal de Commerce, Paris.

II. A — It is only too well known that the achievement of free movement of agricultural products is hindered by the national provisions on units of measurement. In most Member States the pre-conditions for marketing liquids in containers which have been prepared and closed in advance are laid down in mandatory regulations which vary from one Member State to another and thus make trading difficult. With effect from 26 July 1971 the Council, under Article 100 of the EEC Treaty, adopted Directive No 71/316 on the approximation of the laws of the Member States relating to common provisions for both measuring instruments and methods of metrological control. On the following 18 October the Council, again under Article 100, adopted Directive No 71/354 on the approximation of the laws of the Member States relating to units of measurement. The situation was complicated by the accession in 1973 of new Member States where other units of measurement were in use. As a result these two directives were amended by the Act of Accession (Annexes I, II and XI). On 19 December 1974 the Council, under Article 100, adopted a new directive No 75/106 on the approximation of the laws of the Member States relating to the making-up by volume of certain prepackaged liquids; Annex III thereto made the provisions of that directive applicable inter alia to milk sold by volume. Finally, the original directive on the approximation of the laws of the Member States relating to units of measurement was amended by Council Directive No 76/770 of 27 July 1976. B — The establishment of a single market in the veterinary sphere also requires that national measures designed to safeguard the health of humans and animals be harmonized and co-ordinated. As with units of measurement, harmonization in veterinary matters can only be achieved by adopting and uniformly applying Community measures. The main purpose of the relevant Community rules is to enable the controls exercised on trade between Member States to be progressively relaxed. To that end the Council adopted with effect from 12 March 1968 a resolution that the Commission should draw up as soon as possible proposals concerning hygiene in farm milk production and, as a matter of priority, animal health measures to combat the following contagious and infectious diseases: foot and mouth disease, classical swine fever, tuberculosis, brucellosis and should submit these proposals to the Council. On 24 February 1971 the Commission presented to the Council a proposal for a regulation on the basis of Article 43 on hygiene and animal health provisions to be complied with for raw whole milk when used to prepare heat-treated milk and its products, and a proposal for a regulation also based on Article 43 on hygiene problems in the production and marketing of heat-treated milk. The Assembly gave a favourable opinion on these proposals on 13 March 1972. In accordance with the views expressed by the Assembly, the Commission modified certain points in the text before presenting it to the Council once more on 1 August 1972. It is important to note that these latter proposals allowed Member States to defer until 31 December 1978 the application in their territory of the provisions in point 1 (a) of Chapter I of the annex to the first of those regulations as far as brucellosis was concerned (provided, however, that from 1 January 1976 up to that date animals used for producing milk must come from herds immunized against brucellosis) and that from 31 December 1978 heat-treated milk sent to the territory of another Member State must be accompanied during transportation to the importing country by an official certificate as prescribed in Chapter IX of Annex I to the second of these texts. However, it transpired that the timetable laid down in 1968 could not be adhered to. That is why the Council undertook in its resolution of 22 July 1974 on the veterinary, plant health and animal feedingstuffs sectors to make every effort to act before 1 January 1975 on health and health inspection requirements for raw whole milk and heat-processed milk. It must be admitted that, more than ten years after the creation of the common organization of the market in milk and milk products (29 July 1968) and more than six years after the accession of the new Member States certain national laws are still much in evidence, even where they include a ban in principle on imports. Progress in examining the Commission's latest proposals (1 August 1972) is not sufficient to enable us to see how much time will be needed for their adoption. But one can guess that, if they do emerge, they will be cast in the form of directives and will be based on not only Article 43 but also Article 100. In the related field of the manufacture and trade in preserved milk intended for human consumption the Commission, after first opting for the form of a regulation, changed later to a directive and it was in that form that its proposals were finally adopted by the Council (Directive No 76/118 of 18 December 1975). This question of form is an important one, for directives are not necessarily directly applicable in Member States and they allow a certain latitude in interpretation. More important, where a directive is adopted on the basis of Article 100 the Council must be unanimous, whereas a regulation under Article 43 may be adopted by a qualified majority. C — According to Article 7 (1) of Directive No 75/106 of 19 December 1974, Member States had to put into force national provisions to comply with this directive within 18 months of its notification. But Article 7 (2) authorizes certain Member States, including the United Kingdom, to defer implementation thereof until 31 December 1979, and thus to prohibit before that date marketing the milk in question in so far as the latter has been packaged in forms which do not comply with the national legislation. This time-limit had thus not expired at the time of the events in the dispute, and still has not today, and the Member States allowed to defer implementation have until 31 December 1979 to introduce the provisions of the directive into their internal laws. Therefore the directive can only be of use to the plaintiff in the main action when the fixed period has come to an end and if the Member State has failed to fulfil its obligations. To hold otherwise would mean ignoring a Council directive the legality of which has not been questioned. On the other hand it is accepted that repackaging the milk in imperial units would affect ipso facto the original state of the product; it might be dangerous to human health and would mean that the milk would need to be heat-treated afresh. This explanation alone seems sufficient to guide the court which made the reference to the Court of Justice and to avoid the need for an answer to the remaining questions.

III —. I do not wish, however, to sidestep the first problem, if only because the plaintiff needs to have the situation after 1 January 1980 clarified in this respect.

I propose that the questions asked should be answered as follows:

The marketing within the territory of a Member State, which has opted for the formula of non-standardized whole milk, of standardized milk from another Member State, with a fat content not less than the guideline figure fixed by the Council, was permissible in 1978 only in accordance with the regulations in force in the importing Member State concerning prepackaging by volume and public health protection.

1 Translated from the French.