JUDGMENT OF 12. 7. 1979 — CASE 244/78 UNION LAITIÈRE NORMANDE v FRENCH DAIRY FARMERS

In Case 244/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Commerce, Paris, for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco, A. Touffait and T. Koopmans, Judges, Advocate General: H. Mayras Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

III — Oral procedure

Decision

Costs

I —. Facts and procedure

1. Milk is subject to the common organization of the market in milk and milk products established by Regulation No 804/68 of the Council of 27 June 1968 (Official Journal, English Special Edition 1968 (I), p. 176).

2. The Union Laitière Normande (hereinafter referred to as the U.L.N.) which was incorporated under French law in the form of a group of agricultural co-operatives, made a contract on 1 June 1978 with French Dairy Farmers Ltd. (hereinafter referred to as F.D.F.), a company incorporated under English law, for supplies of standardized whole milk with a fat content higher than 3,78 %, treated by the process known as ultra-high temperature (UHT) treatment and produced in France.

3. A certified copy of this judgment was received at the Court Registry on 6 November 1978.

II —. Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. The Union Laitière Normande considers that the requirements imposed by British law on importers of milk, especially standardized whole milk, are incompatible with Community law. The following are the requirements concerned:

1. To import standardized whole milk into Great Britain a special licence is required under Article 5 (1) of the Importation of Carcases and Animal Products Order 1972. Whether or not the product can be put on the market depends then on the grant of a dealer's licence, according to Regulation 30 (2) of Statutory Instrument No 277 on milk, of 17 February 1959, supplemented by Statutory Instrument No 1033 of 16 June 1977.

2. (a) In view of the geographical position of the United Kingdom, the requirement that imports be made in bulk compels continental operators to transport standardized whole milk in special containers, which obviously complicates delivery of this product, as it can only be effected by sea. Indeed, any measure which subjects imports of foreign products to conditions different from, or more difficult to satisfy than, those required for national products amounts to a measure having an effect equivalent to a quantitative restriction according to Commission Directive No 70/50 of 22 December 1969. (b) The obligation imposed on importers to carry out reprocessing and repackaging of the product in Great Britain on premises registered for the purpose must be considered as a measure having an effect equivalent to a quantitative restriction, since it makes it impossible to market in Great Britain milk imported from another Member State, for the reprocessing and repackaging can only be carried out in British territory on premises specially registered for the purpose by local authorities, whose competence has certain territorial limits. It cannot be argued, as do the British authorities, that such an obligation is necessary to protect the life and health of consumers and that it is therefore justified by Article 36 of the EEC Treaty.

3. Lastly, the obligation to market the imported milk in containers holding a pint or a multiple or sub-multiple thereof makes it more difficult, both now and in the future, to import into Great Britain and is therefore a typical example of a measure having equivalent effect prohibited by Community law.

B —. The French Government observes that, in the first place, the milk exported by the U.L.N. to the United Kingdom complies with the requirements of Regulation No 1411/71, as amended by Regulation No 566/76, with regard in particular to the fat content of whole milk, and of Council Regulation (EEC) No 300/78 fixing, as provided in the above-mentioned regulation, the guideline figure for the fat content of standardized whole milk imported into Ireland and the United Kingdom.

C —. The Government of the United Kingdom sets out to give full details of the legislation at issue in the questions referred to the Court and to show that it in no way conflicts with provisions of Community law. It therefore omits to deal initially with the problem of admissibility of the questions in the form in which they are put.

D —. The first point made by the Commission is that in the view of the consistent rulings by the Court in past cases it will not challenge the admissibility of the questions even though they concern, at least in part, the compatibility of national legislation with Community law. It then goes on to note that there is a provision in Article 22 (1) of the basic regulation for the sector of milk and milk products (Regulation No 804/68 of the Council of 27 June 1968) which expressly prohibits in the internal trade of the Community the levying of any customs duty or charge having equivalent effect, and any quantitative restriction or measure having equivalent effect.

III —. Oral procedure

1. In a judgment of 16 October 1978, received by the Court on 6 November 1978, the Tribunal de Commerce, Paris, referred to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty some questions concerning the interpretation of certain provisions of Council Regulation No 566/76 of 15 March 1976 (Official Journal 1976, L 67, p. 23) amending Regulation (EEC) No 1411/71 as regards the fat content of whole milk, and of Articles 30 and 36 of the Treaty.

2. These questions arose in the course of an action between a group of agricultural co-operatives incorporated under French law and its English subsidiary concerning the performance, on 30 September 1978, of a contract to supply standardized whole milk produced in France and exported to the United Kingdom. The milk in question had a fat content of 3,78 %, had been given ultra-high temperature (UHT) treatment, and was packaged in one-litre containers.

3. When the aforementioned company decided to terminate the contract in a letter of 12 September 1978, its supplier, the group of agricultural cooperatives, brought an action against it on 27 September 1978 before the Tribunal de Commerce, Paris, for non-performance of the contract concerning those supplies, relying in particular on Regulation No 566/76 of the Council and on Article 30 of the EEC Treaty.

4. The Tribunal de Commerce, Paris, decided to stay proceedings and referred the following questions to the Court of Justice for a preliminary ruling under Article 177 of the EEC Treaty:

5. Before proceeding to examine the questions which have been referred to the Court for a preliminary ruling, it should be noted that, whilst Article 177 of the Treaty does not permit the Court to evaluate the grounds for making the reference, the need to afford a helpful interpretation of Community law makes it essential to define the legal context in which the interpretation requested should be placed.

6. Although the national court did not give its reasons for asking the Court to interpret the Community law, it appears from the file on the case that it considers an interpretation necessary for its decision on the consequences which are to follow from the non-performance of the disputed contract to ascertain whether the English legislation which prevents the marketing of the products in question within the United Kingdom was or was not, at the date on which those products were imported, justified under Community law.

7. It also appears from the file on the case that, whereas certain provisions in that legislation, such as Regulation 4 in Part II of the British Statutory Instrument No 1033 of 16 June 1977, read together with the provisions in Schedule 2, Part IV require, for obtaining a dealer's licence for whole milk bearing the special designation UHT, that the product, immediately after having been treated by the UHT method, be packaged on registered premises, other provisions in the same legislation, especially those in the Weights and Measures Act 1963, provide in paragraph 3, Part V of Schedule 4 that for the marketing of any pre-packaged milk, whether imported or not, the product must be made available for distribution in containers of a capacity of one third of a pint, half a pint, or a multiple of half a pint.

8. It is accepted that in this case the milk in question was imported into the United Kingdom and made available for distribution in that Member State in containers with a capacity of one litre. Since this milk was pre-packed in a way which did not comply with the requirements laid down by the British Weights and Measures Act 1963, the first difficulty in marketing the goods in England was presented by the provisions in that act, so that in fact the question of the compatibility with Community law of the British legislation concerning the marketing of UHT whole milk in the United Kingdom must, in the case of the imports concerned in this dispute, be considered first with reference to that act.

9. That being so, the fourth question should be answered first and the others examined only if it appears that the British national legislation concerning the packaging of pre-packed milk could not have applied in this case to the marketing in England of the product under discussion.

10. In order to encourage the approximation of the national laws concerning weights and measures in the context of Article 100 of the EEC Treaty, the Council, on the basis of Directive No 71/316 of 26 July 1971 (Official Journal 1971, L 207, p. 1) and Directive No 71/354 of 18 October 1971 (Official Journal 1971, L 243, p. 29), later amended by the Act of Accession, adopted Directive No 75/106 of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain pre-packaged liquids (Official Journal 1975, L 42, p. 1), the provisions of which are, by virtue of point 7 of Annex III, applicable equally to milk when sold by volume.

11. The object of this directive, according to the first recital in the preamble, is to harmonize the conditions of presentation for sale of liquids in prepackages, on the ground that these conditions are, in most of the Member States, the subject of mandatory regulations which differ from one Member State to another, thereby hindering trade in such pre-packages.

12. For those reasons the directive determines the conditions which pre-packages containing the products listed in Annex III, such as milk, measured by volume for the purpose of sale in individual quantities of between 0,05 litre and five litres inclusive must satisfy before they may be marketed within the Community, and provides in Article 5 that Member States may not refuse, prohibit or restrict the placing on the market of pre-packages which satisfy the requirements and tests laid down in this directive for reasons concerning the volume of the contents ….

13. The same directive further provides in Article 7(1) that Member States have a period of 18 months from the date of its notification in which to put into force the laws, regulations and administrative provisions needed in order to comply with it. It also states in paragraph (2) of that Article that Belgium, Ireland, the Netherlands and the United Kingdom may defer implementation of this directive and the annexes thereto until 31 December 1979 at the latest.

14. Consequently the United Kingdom is authorized until 31 December 1979, by an express provision in the directive cited above, to maintain in force the provisions of its national laws fixing the capacity of packages for products allowed onto the market, in particular those of the Weights and Measures Act 1963, the effect of which is not to allow the marketing of milk in that Member State unless the product is packaged in containers with a capacity of one third of a pint, half a pint or a multiple of half a pint.

15. Since it is accepted that the product in dispute was imported into the United Kingdom pre-packaged in one-litre containers in the course of the year 1978, it follows from Article 7 (2) of Directive No 75/106, cited above, that the provisions in the British Weights and Measures Act can be applied to the marketing of the products in question in England without infringing the rules of Community law.

16. On those grounds the reply to the fourth question must be that since the final date for implementing the provisions of Council Directive No 75/106 of 19 December 1974 on the approximation of the laws of the Member States relating to the making-up by volume of certain pre-packaged liquids was, by Article 7 (2) thereof, deferred in the case of the United Kingdom until 31 December 1979 at the latest, the retention by that Member State of the provisions of the Weights and Measures Act 1963 was not, at the date of the imports in question, prohibited by the rules of Community law and could therefore at that date be applied to the marketing in England of prepackaged milk from another Member State, made up in containers of a capacity of one litre.

17. Since the reply to the fourth question makes it unnecessary to examine the other questions referred by the national court for a preliminary ruling, a decision on them is not required.

18. The costs incurred by the Government of the French Republic, the Government of the United Kingdom and the Commission of the European Communities, which submitted observations to the Court are not recoverable. As the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT, in answer to the questions referred to it by the Tribunal de Commerce, Paris, by judgment of 16 October 1978, hereby rules: