Opinion of the Advocate General — ECLI:EU:C:2015:589
Date: 2015-09-10
Language of the case: German
Subject matter: Agriculture and Fisheries;Veterinary legislation
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 3 December 2015 1. Agriculture — Approximation of laws — Protection of animals during transport — Limit to transport which takes place in connection with an economic activity — Concept of economic activity — No uniform Community definition — Taking account of the context and usual meaning of the terms (Council Regulation No 1/2005, Art. 1(5)) 2. Agriculture — Approximation of laws — Protection of animals during transport — Regulation No 1/2005 — Scope — Whether frequent transport of stray dogs from one Member State to another carried out by a charitable association is included — Included (Art. 43 TFEU; Council Regulation No 1/2005, Recital 2 and Art. 1(5)) 3. Agriculture — Approximation of laws on animal health — Veterinary and zoo technical checks applicable in intra-Community trade in certain live animals and products — Concept of dealers engaging in intra-Community trade’ — Charitable association carrying out the frequent transport of stray dogs from one Member State to another after payment of the costs incurred for that purpose — Included (Council Directive 90/425, as amended by Directive 92/60, Art. 12) 1. See the text of the decision. (see para. 24) 2. The concept of ‘economic activity’ within the meaning of Article 1(5) of Regulation No 1/2005 on the protection of animals during transport and related operations must be interpreted as covering an activity relating to the transport of stray dogs from one Member State to another by a charitable association in order to hand over those dogs to persons who have undertaken to adopt them after payment by those persons of a sum covering, in principle, the costs incurred for that purpose by that association. First, the legal basis for Regulation No 1/2005 is Article 37 EC (now Article 43 TFEU) and it therefore falls within internal market policy. In that context, the importation of goods or the provision of services for remuneration are to be regarded as ‘economic activities’ within the meaning of the Treaty. The decisive factor which enables an activity to be regarded as having an economic character, is the fact that the activity must not be provided for nothing. However, for an activity to be classified as economic, it is not necessary that it be carried out for profit. Therefore, an activity involving the frequent transport of a large number of dogs, by a charitable association in order to bring those animals to persons who adopt them on the basis of a contract providing, inter alia, for the payment of a sum of money to that association, is performed in connection with an economic activity, within the meaning of Article 1(5) of Regulation No 1/2005, even if that association does not seek to make a profit or make a profit. Second, having regard to the objectives pursued by Regulation No 1/2005, the concept of economic activity cannot be interpreted restrictively. Limiting the scope of Regulation No 1/2005 to economic activities performed for profit risks jeopardising that regulation’s main objective, which is the protection of animals during transport. (see paras 29-31, 33-35, operative part 1) 3. The concept of ‘dealers engaging in intra-Community trade’ within the meaning of Article 12 of Directive 90/425 concerning veterinary and zoo technical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market, as amended by Directive 92/60, must be interpreted as covering, inter alia, a charitable association which transports stray dogs from one Member State to another in order to give those dogs to persons who have agreed to adopt them after they have paid a sum covering in principle the costs incurred for that purpose by that association. As regards the concept of intra-Community trade, it is clear from Article 2(3) of Directive 90/425 that it concerns trade between Member States within the meaning of Article 28(1) TFEU. According to the latter provision, which is to be found in Title II on the free movement of goods, the customs union covers all trade in goods. In that connection, ‘goods’ for the purposes of that provision means goods which can be valued in money and which are capable, as such, of forming the subject of commercial transactions. That definition includes animals. The provisions of the FEU Treaty on free movement of goods apply irrespective of whether the goods concerned are being transported across national frontiers for the purposes of sale or resale, or rather for personal use or consumption. Accordingly, the fact that the activity pursued by the dealer is for profit is not decisive in order for it to be classified as ‘intra-Community trade’. (see paras 46-48, 52, operative part 2)