Opinion of Mr Advocate General

Mr President,

Members of the Court,

With this reference for a preliminary ruling made by the Hoge Raad [Supreme Court] in the criminal proceedings brought against the firm to which I shall refer as Melkunie the Court is once again confronted with the question how far provisions of Netherlands food legislation may conflict with Articles 30 and 36 of the EEC Treaty. Before discussing the facts I shall first review the Netherlands legislation applicable to milk and milk products which is at issue in this case.

1. The relevant legislation on milk and milk products

Netherlands food legislation is mainly based on the Warenwet [Law on Goods] of 28 December 1935 laying down requirements as to the quality and description of goods (Staatsblad No 793). Pursuant to Articles 14, 14a, 16 and 16a of that Law, the Melkbesluit [Milk Order] of 25 October 1974 laying down rules on milk (Staatsblad, No 699) was adopted. It contains inter alia rules concerning the description pasteurized and lays down the requirements that pasteurized products must satisfy. Article 34 (3) of the Melkbesluit provides that pasteurized products must satisfy the following requirements:

Pasteurized products must bear the description pasteurized on their packaging (Article 34 (6) and — apart from exceptions which are not relevant to this case — must also be kept and carried by the vendors at a temperture not exceeding 10°C (Article 43 (1)). Offences against those provisions are punishable under the Wet op de Economische Delicten [Law on Commercial Offences] of 22 June 1950 (Staatsblad No 258).

Supervision of compliance with the requirements laid down by or pursuant to the Warenwet is carried out on a decentralized basis by municipal inspection authorities. To this end, the municipalities lay down inspection regulations, in accordance with a prescribed model. Such requirements may not depart from the substantive requirements of the Warenwet (Warenwet, Article 6).

2. The principal facts and the questions

Melkunie imported from the Federal Republic of Germany, for sale in the Netherlands, milk products described on their packaging as pasteurized skimmed vanilla and caramel custard with whipped cream. Analyses of samples revealed infringements of Article 34 (3) of the Melkbesluit on or immediately before the latest date for sale stated on the packaging. After being acquitted by the Economische Politierechter [magistrate dealing with commerical offences] but subsequently convicted by the Gerechtshof [Regional Court of Appeal], Amsterdam, on appeal by the Openbaar Ministerie [Public Prosecutor's Department] Melkunie then sought cassation principally on the ground that the aforementioned provisions of the Melkbesluit conflicted with Article 30 of the EEC Treaty. Melkunie maintained that the products in question satisfied the requirements of the legislation of the country from which they had been exported (the Federal Republic of Germany) and that those requirements were equivalent to the relevant Netherlands requirements. That argument prompted the Hoge Raad to refer the following questions to the Court for a preliminary ruling:

The provisions referred to in part 6 are the relevant provisions of the municipal inspection regulations.

3. The first question

In my view, the first question should raise few problems for the Court. It has been etsablished by the Court in its decisions that [all] trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions (Case 8/74, Procureur du Roi ν Dassonville, [1974] ECR 837, paragraph 5 at p. 852). Legislation, such as that in the present case, on the pasteurization of milk, which applies to both domestically-produced and imported products, comes within that definition, since imported products must satisfy the requirements of the Member State from which they are exported besides those of the importing Member State. Compared with domestic products, imported products are thereby subjected de facto to a dual burden and thus indirectly discriminated against. The Commission, Melkunie and the Netherlands Government also argue that the provisions in question amount to measures having equivalent effect within the meaning of Article 30 of the EEC Treaty. I would add that, even national measures which are justified under Article 36 of the EEC Treaty (second question) are none the less to be regarded as measures having equivalent effect within the meaning of Article 30 of the EEC Treaty. Not only does this follow from the wording and scheme of the provisions concerned; the Court has also expressly recognized this view in its judgments in (Bauhuis ν Netherlands, [1977] ECR 5, paragraph 48 at p. 20) and Case 34/79, Regina ν Henn and Darby, [1979] ECR 3795, paragraph 12 at p. 3812).

4. The second question

4.1. The real significance of the present case therefore lies in the second question submitted by the Hoge Raad in which the question of the applicability of Article 36 of the EEC Treaty is raised. It is clear from its explanation of the questions that the Hoge Raad also considered the possibility of this national legislation being justified under the proviso on reasonable measures discernible in the Cassis de Dijon judgment (Case 120/78, Rewe-Zentral AG ν Bundesmonopolverwaltung für Branntwein, [1979] ECR 649). On this point the Netherlands Government also developed arguments more by way of an alternative, whereas Melkunie's case is based essentially on that construction of Article 30 of the EEC Treaty. This nexus arises directly from the provisions of, or made pursuant to, the Warenwet itself, which not only in fact protect consumers on a broader front than that of health alone but also relate to fair trading. It must be emphasized that it is a general feature of modern food legislation for different aims to be pursued, often concurrently, by means of a coherent set of legal provisions without its being possible to determine in each specific case which aim is the principal one. In the case of quality requirements, the interests of public health, consumer protection and fair trading may certainly overlap to some extent and reinforce one another. This has also been recognized by the Court in its decisions. In the Cassis de Dijon case, besides listing the interests of consumer protection and fair trading under reasonable measures, the Court also referred to the interests of public health, which are mentioned in Article 36 of the EEC Treaty. Especially in those instances of food legislation in which such interests overlap and complement each other, it does not always matter which proviso provides the justification. Since the legislation concerned will always apply to domestic and imported goods alike, it is primarily in the case of provisions in which interests of public health and consumer protection overlap that both provisos may conceivably provide a justification. It will then depend above all on whether the national legislation satisfies the principle of proportionality underlying both provisos, though it must also be shown that the relevant subject-matter is not exhaustively regulated by Community legislation. In the light of those observations I will examine the second question of the Hoge Raad. I shall concentrate mainly on Article 36 of the EEC Treaty, since the question submitted expressly refers to that provision alone. I shall begin with some observations on the nature of the health provisions in question and then investigate whether relevant Community rules exist. After that, I shall consider the principle of proportionality.

4.2. The basic principle underlying all modern health legislation on milk is that because it perishes very quickly this extremely important food is fit for consumption only if it has undergone a certain kind of heat treatment. This may consist of pasteurization, sterilization or ultra heat treatment (UHT), with which the Court is very familiar. That minimum principle is also embodied in Articles 3 (1) and 5 of Regulation (EEC) No 1411/71 (Official Journal, English Special Edition 1971 (II), p. 412) in which a start was made towards a common milk consumption policy. Some other rules cited by the Commission, which concern specific aspects of milk production and marketing, are also based on that basic requirement. The aim of such heat treatment can be described as the minimizing of the risks to public health which the presence of pathogenic micro-organisms in raw milk entail. As such, pasteurization is a measure which is necessary for public health and thus justified under Article 36 of the EEC Treaty, a fact which is not disputed by any of the parties to the main proceedings.

4.3. In my view, a national provision such as Article 34 (3) of the Melkbesluit should be examined against the background of those technical and legal observations. As I have already stated, when a quantitative limit on microorganisms in milk is considered, the stage at which that standard is applied — immediately after pasteurization or at the time of sale to the consumer or at the time of consumption itself — is very important. At the hearing it became apparent that a difference of opinion exists between the Netherlands Government and the Commission on this question. In the view of the Netherlands Government, that requirement must be satisfied on the latest date for sale. This is also clear from the extracts from the charges brought against Melkunie which show that the maximum limits laid down by the Melkbesluit were far exceeded on that date. The Commission, however, considers that the crucial time is the date until which the goods will remain fresh. That view is based on Article 10 of the Algemeen Aanduidingenbesluit [General Description of Goods Order] (Warenwet) of 10 September 1981 (Staatsblad No 621), which provides that pre-packed foods and drinks must bear the words Best before ... followed by the relevant date. If that date depends on the goods being kept in a particular way, this must be stated. Those provisions owe their origin to Articles 3 and 9 of Council Directive 79/112/EEC on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs for sale to the ultimate consumer (Official Journal 1979, L 33, p. 1).

5. Conclusion

In conclusion, I would suggest that the Court should answer the questions submitted by the Hoge Raad as follows:

1 Translated from the Dutch.