Report for the hearing in Case C-205/89
I — Summary of the facts
1. In the Hellenic Republic the importation of milk and milk products from other Member States was made subject, by Presidential Decree No 40/1977 on the veterinary inspection of animals for slaughter and animal products (Official Journal of the Hellenic Republic A 18 of 21 January 1977) to health inspection measures consisting of systematic controls comprising two successive veterinary inspections and a system of veterinary certificates.
2. In a letter of 18 December 1986 giving formal notice and in a reasoned opinion of 14 March 1988 the Commission claimed that the Hellenic Republic had failed to fulfil its obligations under the EEC Treaty by subjecting imports of milk products other than pasteurized butter to arrangements requiring inspection of every consignment of the products and by subjecting pasteurized butter to the same inspection arrangements and to the requirement of a veterinary certificate.
3. In its defence the Hellenic Republic claimed that under an explanatory ministerial circular the arrangements for systematic inspection applied only to products imported from non-member countries and argued that the requirement of a health certificate for each consignment of imported pasteurized butter was justified on grounds of protection of public health.
4. By Presidential Decree No 550/1989 (Official Journal of the Hellenic Republic A 232 of 11 October 1989), the Hellenic Republic abolished the rules requiring systematic inspection of imports of milk products coming from Member States of the Community, but retained the requirement of a health certificate for pasteurized butter.
II — Written Procedure and forms of order sought by the parties
1. The Commission's application was lodged at the Court Registry on 29 June 1989.
2. Following the adoption of Decree No 550/1989 the Commission, in its reply, restricted its application to the requirement of a veterinary certificate for imports of pasteurized butter.
3. The Commission, applicant, claims that the Court should:
4. The Hellenic Republic, defendant, contends that the Court should:
5. The Court, upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, decided to open the oral procedure without any preparatory inquiry. The Commission and the Hellenic Republic were requested to reply in writing to certain questions, which they did within the prescribed period.
III — Pleas in law and arguments of the parties
1. The Commission maintains that the requirement of a health certificate for imports of pasteurized butter constitutes a measure having equivalent effect to a quantitative restriction prohibited by Article 30 of the Treaty, which forms an integral part of the common organization of the market in milk and milk products established by Council Regulation No 804/68 (Official Journal, English Special Edition 1968, p. 176). The issuing of such a certificate constitutes a cause of delay and of cost and is therefore a disincentive for traders.
2. The Hellenic Republic seeks to defend the requirement of a veterinary certificate for imports of pasteurized butter on grounds of protection of public health.
IV — Questions put by the Court
1. Asked to state the information which must be given on the health certificates required for imports of pasteurized butter, the Hellenic Republic submitted to the Court a standard certificate. According to the Hellenic Republic, it contains information similar to that provided for by the corresponding certificate required by Directive 85/397. The information concerns essential matters such as the identification of the consignment, the supplier, the recipient and the means of transport and also questions of a health nature relating to raw materials and the finished product.
2. Asked by the Court to explain why it challenges the reasons for requiring a veterinary certificate for imports of pasteurized butter when Directive 85/397 requires a health certificate for milk products which have undergone more rigorous heat treatment than pasteurized butter, the Commission emphasized that the present case concerns pasteurized butter manufactured from pasteurized cream, whereas the directive applies to heat-treated milk (pasteurized milk, UHT milk and sterilized milk). The fundamental difference between those two groups of products lies in the fact that pasteurized butter is micro-biologically stable, a quality which is due to the fact that it is an emulsion of water and oil, that is to say very fine droplets of water distributed in a continuous lipid phase. The danger of microbiological growth in the butter exists only in the event of poor distribution of the water, which may be easily detected using test paper. Other milk products have a continuous aqueous phase, with the result that the presence of pathogenic micro-organisms may lead to dangerous microbiological growth.
3. The Commission was authorized by the Court to produce the results of an inquiry made with the authorities of Member States in order to determine whether there was any record of public health problems linked to pasteurized butter during the last twenty years. It is apparent from the replies given by France, Denmark, Portugal, the Netherlands, the Federal Republic of Germany, Belgium, the United Kingdom and Ireland that none of those Member States had any record of health problems associated with butter manufactured from pasteurized cream.
4. Asked to submit its observations on the results of the inquiry, the Hellenic Republic informed the Court that it did not wish to challenge the content of the replies received, but it had serious misgivings concerning the choice of the period and the appropriateness of the inquiry. Medical and hospital practice shows that cases of food poisoning which come to light or which are the subject of an inquiry constitute only a small percentage of the actual number of persons affected. In addition, the butter in question is packaged in small packs and consumed in small quantities by families. In cases where such consumers are affected by defective butter, they are generally cared for at home and escape the attention of doctors and those responsible for drawing up statistics. For those reasons the Hellenic Republic considers that the results of the enquiry carried out by the Commission do not call in question the validity of the arguments put forward by the Hellenic Republic.
1 Language of the case: Greek.