Avis juridique important

61978J0244

European Court reports 1979 Page 02663 Greek special edition Page 00307

Summary

1 . REFERENCES FOR A PRELIMINARY RULING - JURISDICTION OF THE COURT - DEFINITION OF THE LEGAL CONTEXT OF THE QUESTIONS ( EEC TREATY , ART . 177 )

Keywords

1 . 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 .

Parties

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 UNION LAITIERE NORMANDE , A GROUP OF AGRICULTURAL CO-OPERATIVES , CONDE-SUR-VIRE , AND FRENCH DAIRY FARMERS LIMITED , LONDON ,

Subject of the case

ON THE INTERPRETATION OF CERTAIN PROVISIONS IN REGULATION NO 1411/71 OF THE COUNCIL OF 29 JUNE 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1971 , ( II ), P . 412 ), AS AMENDED BY COUNCIL REGULATION , NO 566/76 OF 15 MARCH 1976 ( OFFICIAL JOURNAL 1976 , L 67 , P . 23 ) REGARDING IMPORTS INTO THE UNITED KINGDOM OF STANDARDIZED WHOLE MILK , UHT TREATED , COMING FROM FRANCE ,

Grounds

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 .

THE IMPORTING COMPANY , WHICH HELD AN IMPORT LICENCE FOR THE SUPPLIES IN QUESTION , HAD NOT OBTAINED FROM THE BRITISH AUTHORITIES THE DEALER ' S LICENCE REQUIRED BY REGULATION 4 IN PART II OF STATUTORY INSTRUMENT NO 1033 OF 16 JUNE 1977 - THE MILK ( SPECIAL DESIGNATION ) REGULATIONS 1977 - IN ORDER TO MARKET IN ENGLAND ALL MILK , IMPORTED OR NOT , UNDER THE SPECIAL DESIGNATION ' ' UHT ' ' .

3 WHEN THE AFOREMENTIONED COMPANY DECIDED TO TERMINATE THE CONTRACT IN A LETTER OF 12 SEPTEMBER 1978 , ITS SUPPLIER , THE GROUP OF AGRICULTURAL CO-OPERATIVES , 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 : ' ' 1 . CAN ARTICLE 3 ( 6 ) OF REGULATION NO 1411/71 ( AS ENACTED BY ARTICLE 2 OF COUNCIL REGULATION NO 566/76 OF 15 MARCH 1976 ), WHICH PROVIDES THAT A MEMBER STATE THAT OPTS FOR THE FORMULA OF NON-STANDARDIZED WHOLE MILK SHALL NOT PROHIBIT , WITHOUT PREJUDICE TO REQUIREMENTS FOR THE PROTECTION OF PUBLIC HEALTH , . . . THE MARKETING WITHIN ITS TERRITORY OF STANDARDIZED WHOLE MILK COMING FROM ANOTHER MEMBER STATE , WHEN THE FAT CONTENT OF SUCH MILK IS NOT LESS THAN A GUIDELINE FIGURE FIXED BY THE COUNCIL . . ., BE INTERPRETED , AS THE AUTHORITIES OF THE UNITED KINGDOM APPEAR TO DO , AS MEANING THAT MILK THUS IMPORTED MAY BE MARKETED ONLY FOR PURPOSES OTHER THAN HUMAN CONSUMPTION? ' '

3 . IF THE SECOND QUESTION IS ANSWERED IN THE NEGATIVE , DOES THE AFOREMENTIONED BRITISH NATIONAL LEGISLATION CONSTITUTE A MEASURE HAVING AN EFFECT EQUIVALENT TO A RESTRICTIVE MEASURE PROHIBITED BY THE TREATY? ' '

4 . IS THE APPLICATION OF BRITISH WEIGHTS AND MEASURES LEGISLATION TO MILK PRODUCED AND PACKAGED IN ANOTHER MEMBER STATE COMPATIBLE WITH THE TERMS OF ARTICLE 3 ( 6 ) OF REGULATION NO 1411/71 ( AS ENACTED BY ARTICLE 2 OF COUNCIL REGULATION NO 566/76 ), WHICH STIPULATES REQUIREMENTS OF PUBLIC HEALTH AS THE ONLY RESERVATION IN RELATION TO INTRA-COMMUNITY TRADE? ' '

5 . DOES THE COMBINED EFFECT OF THE BRITISH NATIONAL MEASURES BASED ON REASONS OF PROTECTION OF HEALTH AND ON THE APPLICATION OF THE NATIONAL WEIGHTS AND MEASURES LEGISLATION CONSTITUTE A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES SUCH AS ARE PROHIBITED BY ARTICLE 36 OF THE 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-PACKAGED 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 PRE-PACKAGES ' ' , 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 005 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 PRE-PACKAGED 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 .

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Decision on costs

COSTS

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 .

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Operative part

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 :

SINCE THE DATE FOR THE IMPLEMENTATION OF 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 MAINTENANCE IN FORCE 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 PRE-PACKAGED MILK FROM ANOTHER MEMBER STATE , MADE UP IN CONTAINERS OF A CAPACITY OF ONE LITRE .

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