Opinion of the Advocate General — ECLI:EU:C:2008:183
Date: 2008-04-03
Language of the case: French
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services
Procedure: Action for failure to fulfil obligations - successful
Origin: France

summary of the grounds, and that the statement must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to exercise its review. It follows that the essential elements of fact and of law on which an application is based must emerge coherently and comprehensibly from the text of the application itself. (28) 35. I therefore consider that, since they fail to meet the necessary conditions of clarity and precision, the complaints raised by the Commission concerning alleged restrictions on freedom of establishment and the freedom to provide services with reference to the semen distribution service (or services) must be dismissed as inadmissible. 36. Consequently, in this Opinion, I shall not consider the questions pertaining to the obligation to deliver the semen to and store it at an authorised AIC, after dispatch from the production centre. (29) I would, moreover, add that the Commission has set out the complaint concerning that obligation in a manner that lacks clarity in both the application and the reply, as a result of which, for that reason also, I have to consider that conditions governing admissibility referred to in points 33 and 34 above have not been met. 37. I shall, instead, focus on the alleged restrictions of freedom of establishment and of the freedom to provide services with reference to the insemination service, in situations arising from the exclusive rights over defined geographical areas conferred on the authorised AICs to carry out that service, and the requirement that an agreement be concluded with an authorised AIC before an inseminator’s licence could be obtained (hereinafter also the ‘national rules at issue’). b) Complaints relating to the insemination service i) Preliminary considerations 38. The two aspects of the national rules at issue mentioned in point 37 above seem to me to be two sides of the same coin. 39. As the Court had occasion to state in its judgment in Centre d’insémination de la Crespelle, (30) ‘by making the operation of the [AICs] subject to authorisation and providing that each centre should have the exclusive right to serve a defined area, the national legislation granted those centres exclusive rights’, ‘thus establishing, in favour of those undertakings, a contiguous series of monopolies territorially limited but together covering the entire territory of a Member State’. 40. The possibility, for which the rules at issue provide, that insemination activities could be carried out by licence-holders who were not AIC employees, might, on the face of it, seem at odds with the exclusive geographically defined rights conferred on the AICs in relation to insemination. But this is actually only an apparent contradiction, since it is clear from the rules themselves that insemination carried out by such persons must, in any event, take place under the authority of the territorially competent, authorised AIC, and subject to the technical responsibility of the AIC manager, and that the technical and financial, as well as the administrative procedures for that insemination could not be determined by the operator independently, but had to form the subject of an agreement with the managing director of the AIC. In those circumstances, it seems difficult to envisage the provision of insemination services by operators other than the AICs in a truly independent manner, and that would, moreover, have been incompatible with the abovementioned exclusive rights. It actually appears that, far from providing that service in competition with the AIC, and on the basis of a professional relationship established with a client breeder, provided they held the requisite licence, such operators were in fact able to carry out insemination as collaborators – albeit independent collaborators – of the AIC itself. (31) 41. Therefore, rather than reinforcing, as the Commission claims, the exclusive rights over a defined geographical area conferred on the AICs, the requirement that an agreement be entered into with the AIC as a prerequisite for obtaining an inseminator’s licence, is, in my view, an inherent part of those exclusive rights in the context of a system that, by reserving the insemination service for the authorised AICs, in any event sought to ensure that insemination activities could also be carried out, within – and not outside – the framework of those exclusive rights, by qualified persons who were not necessarily on the staff of an AIC. 42. Furthermore, in its written pleadings, the French Government clearly states that Article L. 653-7 of the Rural Code accorded the AICs an ‘exclusive right’ which the French Government itself defines as a ‘geographical monopoly’ on insemination, after stating, in its response to the Commission’s reasoned opinion, that the requirement that the inseminator enter into an agreement with an authorised AIC was ‘the direct consequence of the exclusive rights over the defined area’ which had been conferred on the latter. 43. I am, therefore, of the opinion that the two aspects in question must be considered together, both for the purpose of determining whether there is any restriction of freedom of establishment and the freedom to provide services, and for the purpose of assessing the reasons invoked by the French Government to justify any such restrictions. 44. As is well known, Community law does not generally prohibit the Member States from making a specific economic activity subject to a monopoly. That is borne out by Article 31 EC in particular, for Article 31(1) simply requires the adjustment of any State monopolies of a commercial character; it is further borne out by Article 86(1) EC which, by generally prohibiting the Member States from enacting or maintaining in force, in relation to public undertakings to which Member States grant special or exclusive rights, any measures contrary to the rules contained in the EC Treaty, necessarily implies that the Member States may accord certain undertakings exclusive rights and grant them a monopoly. (32) 45. As the Court has explained, however, that does not mean that all special and exclusive rights are necessarily compatible with the EC Treaty. (33) 46. Specifically with reference to monopolies on the provision of services, such as those which, it has been determined, result from the exclusive rights over a defined geographical area conferred on the authorised AICs by the national rules at issue, the Court has held that, even though they are not caught by Article 37 of the EC Treaty, which relates to trade in goods, they are incompatible with the principle of the free movement of goods under Article 30 of the EC Treaty, if they have an indirect influence on that trade by discriminating against imported products to the benefit of products of domestic origin. (34) In its judgment in Société coopérative d’amélioration de l’élevage et d’insémination artificielle du Béarn, in particular, the Court found that the circumstances referred to by the national court and those which had come to light in the course of the proceedings before the Court of Justice were not sufficient to support the view that legislation of the kind which, in France, governs the artificial reproduction of cattle, indirectly established a monopoly hindering the free movement of goods, since any private breeder was free to request the AIC for his area to supply him with semen from a production centre of his choice, whether situated in France or abroad. (35) 47. It in its judgment in Centre d’insémination de la Crespelle, the Court pointed out that the mere creation of a dominant position by the granting of an exclusive right within the meaning of Article 90(1) of the EC Treaty was not, as such, incompatible with Article 86 of the Treaty, and that a Member State contravened the prohibitions contained in those two provisions only if, in merely exercising the exclusive right granted to it, the undertaking in question could not avoid abusing its dominant position. In that case, analysing the French legislation which set in place AICs authorised to operate exclusively in a defined zone, allowing them to require breeders who requested the AICs to provide them with semen from other production centres to pay the additional costs entailed by that choice, the Court found that although it left to the AICs the task of calculating those costs, that legislation did not lead the centres to charge disproportionate costs and thereby abuse their dominant position. (36) 48. In these proceedings, the Court is asked to rule, directly on this occasion (this not being a request for a preliminary ruling but an action for a declaration that a State has failed to fulfil an obligation), whether the national rules at issue, which have established a number of territorial monopolies on the provision of services, are compatible with other provisions of the EC Treaty, such as those which guarantee freedom of establishment and the freedom to provide services within the Community (Articles 43 EC and 49 EC). Consequently, the fact that, in the abovementioned judgments, the Court was not able to identify ways in which those rules were incompatible with the provisions of the EC Treaty certainly does not imply that a finding in favour of the Commission in these proceedings would be incompatible with the Court’s case-law. 49. There is no doubt that it is open to the Court to ascertain, on the basis of Articles 43 EC and 49 EC, whether the conferring by a Member State of exclusive rights to engage in economic activities is compatible with Community law. 50. In its judgment in ERT, (37) not only did the Court accept that a monopoly on the provision of services, such as, in that case, a monopoly in the television sector in Greece, may infringe the rules of the EC Treaty on the freedom to provide services, in particular, because of the manner in which it is organised or exercised, but it also held, citing the precedent set by its judgment in Sacchi, (38) that ‘Community law does not prevent the granting of a television monopoly for considerations of a non-economic nature relating to the public interest’. The requirement, under the rules of the EC Treaty on the freedom to provide services, that a Member State should be able to cite valid reasons for establishing a monopoly on the provision of services emerges with greater clarity from the judgment in Commission v Netherlands, (39) a month after the judgment in ERT, when the Court states that ‘in order to establish whether a Member State may exclude the provision of certain services from free competition, it is a matter of determining whether the restrictions on the freedom to provide services thereby created can be justified [by overriding reasons relating to the public interest]’. 51. That was how, in its judgment in Läärä and Others, (40) the Court was able to conclude that national legislation prohibiting any person other than the licensed public body from running the operation of slot machines, which involves no discrimination on grounds of nationality and applies without distinction to operators who might be interested in that activity, whether they are established in the Member State concerned or in another Member State, constitutes an impediment to the freedom to provide services in that it directly or indirectly prevents operators in other Member States from themselves making such machines available to the public, and must, therefore, if it is to be compatible with the EC Treaty, if it does not fall within one of the derogations expressly provided for by the Treaty (restrictions justified by the exercise of public authority or on grounds of public order, public safety or public health) be justified by overriding reasons relating to the public interest. 52. The considerations set out above in themselves intimate the conclusions which I shall reach below concerning the existence, in the case forming the subject-matter of these proceedings, of restrictions of freedom of establishment or the freedom to provide services. ii) Freedom of establishment 53. According to case-law, all measures which prohibit, impede or render less attractive the exercise of freedom of establishment, under Article 43 EC, must be considered to be restrictions on that freedom. (41) 54. The French Government, although taking the view, contrary to the assumption made by the Commission, that the exclusive rights over a defined geographical area in favour of the AICs and the fact that the issue of an inseminator’s licence is conditional upon the conclusion of an agreement with the territorially competent AIC do not constitute a complete barrier to access for operators from other Member States to the activity of artificially inseminating cattle, acknowledges that those exclusive rights and that condition represent a restriction of freedom of establishment. 55. I am completely in agreement with that view. 56. In its judgment in Servizi Ausiliari Dottori Commercialisti, (42) the Court held that national rules restricting the right to engage in certain activities to certain legal entities meeting strict conditions constituted a restriction of freedom of establishment, since they were liable to make more difficult, or even completely prevent, the exercise by economic operators from other Member States of their right to establish themselves in the Member State concerned, with the aim of providing the services in question. As Advocate General Ruiz-Jarabo Colomer explained, (43) those national rules involved such a restriction because, inter alia, they granted those organisations an exclusive right to provide certain types of advice, creating two sectors, one with open access and the other restricted to those organisations and denied to other operators with the relevant professional qualifications, whether they were national operators or operators from other Member States. 57. All the more reason then that I must conclude that a restriction of freedom of establishment exists in this case. The fact that the authorised AICs had exclusive rights within a defined geographical area limited the total number of operators allowed to open and operate such centres in French territory, restricting it to just one in the part of that territory identified in the ministerial authorisation. The fact that the exclusive rights were of unlimited duration, which the French Government has not disputed, hampered the access of such operators, including those from other Member States, to the market in artificial insemination, reinforcing and protecting the position of the national operators who were already operating on that market. 58. Any opportunity to become established in France in order to exercise the activity of independent inseminator was made impossible by the conferring of exclusive rights on the authorised AICs to provide insemination services and the related requirement that inseminators who were not on the staff of an authorised AIC had to engage in their activity under the management and control of the territorially competent AIC, and subject to the technical responsibility of the manager of the AIC, and because they were therefore unable independently to determine with the breeder the methods and financial terms of the service, which had to form the subject-matter of an agreement with the AIC. 59. The exclusive rights in question over a specific geographical area and the related requirement to conclude an agreement with the AIC in order to obtain an inseminator’s licence therefore constituted, in my view, a serious obstacle to access to the market in artificial insemination in France and, consequently, a restriction of freedom of establishment under Article 43 EC, notwithstanding the fact that those measures applied without distinction to national operators and operators from other Member States. (44) The fact that there was no discrimination depending on the operator’s Member State of origin is actually relevant only in the sense that it makes it possible to take into consideration, for the purposes of assessing the compatibility of the national rules at issue with Article 43 EC, reasons in the public interest, other than those set out in Article 46(1) EC, to justify the restriction which has been established. c) The freedom to provide services 60. It is settled case-law that Article 49 EC requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services. (45) 61. It is apparent from the description of the national rules at issue set out above that a transfrontier service provider wishing to engage, in French territory, in artificial insemination, in accordance with the freedom to provide services, would have had necessarily to apply for and obtain an inseminator’s licence in France. Even setting aside the conditions governing the issue of such a licence, it must be pointed out that the actual requirement of a licence, viewed in and of itself, constituted, in accordance with the Court’s settled case-law, (46) a restriction on the freedom to provide services in so far as it is liable to prohibit or otherwise impede the provision of insemination services in France by operators established in other Member States where they lawfully provide similar services. 62. A further dissuasive effect resulted from the requirement that the insemination services be provided under the management and subject to the control of the territorially competent authorised AIC, and under the technical responsibility of the manager of that AIC, as well as that the methods, including the financial methods, of those operations had to be agreed with the AIC itself, so that it was impossible to engage in artificial insemination activities independently in competition with the AICs. 63. In my view, it follows that the exclusive geographical rights in question and the related requirement to enter into an agreement with the AIC in order to obtain an inseminator’s licence constituted a serious obstacle to the freedom to provide insemination services in France, within the meaning of Article 49 EC, notwithstanding the fact that those measures applied without distinction to national operators and operators from other Member States. The fact that there was no discrimination according to the operator’s Member State of origin is actually relevant only so far as it makes it possible to take into consideration, for the purposes of assessing the compatibility of the national rules at issue with Article 49 EC, reasons in the public interest, other than those set out in Article 46(1) EC – applicable also in the sphere of freedom to provide services by virtue of the reference made by Article 55 EC – to justify the restriction which has been established. B – The justifications put forward by the French Government 64. It is clear from settled case-law that when national measures liable to hinder or make less attractive the exercise of freedom of establishment or the freedom to provide services apply without distinction to all persons or undertakings exercising an activity in the territory of the host Member State, they may be justified by overriding reasons relating to the public interest, provided that they are suitable for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it, (47) so long as there are no Community harmonising measures providing for measures necessary to ensure that those interests are protected. (48) 65. The case-file does not contain evidence to show that the restrictive measures at issue have been applied in a discriminatory fashion. The Commission has not challenged the French Government’s argument that they applied without distinction to national operators and operators from other Member States. 66. I shall therefore now turn to consider whether the reasons the French Government has invoked to justify the national rules at issue meet the criteria referred to in point 64 above. 67. In its rejoinder, the French Government has referred to the protection of bovine stock, the requirements of land-use planning and the protection of public health. 1. The protection of bovine stock. 68. The French Government maintains that the national rules at issue were designed to improve bovine stock and that the Court has already recognised, in its judgment in Nilsson and Others, (49) that the protection of bovine stock constitutes an overriding reason relating to the public interest. It adds that, while Directives 77/504 and 87/328 harmonised the conditions governing the movement within the Community of pure-bred breeding animals of the bovine species, they did not harmonise the conditions governing the insemination of female animals of the bovine species. 69. Referring to the implementation in its territory of programmes of selection for progeny and stock conservation, the French Government points out that the exclusive rights over a defined geographical area conferred on the authorised AICs and the conditions governing the issue of an inseminator’s licence were the only way of guaranteeing accurate and comprehensive genetic information on cattle, which was essential to the continued genetic improvement of the species. Those measures in fact made it possible to centralise within a single body all the data on the breeding carried out by means of the insemination undertaken in a given area over which exclusive rights existed. 70. The Commission replies that the objective of protecting bovine stock falls within a sphere, namely zootechnical and pedigree requirements, which, as the Court recognised in its judgment in Centre d’insémination de la Crespelle, (50) has been fully harmonised at Community level. It maintains that there is in fact no relationship between that objective and the conditions governing the act of insemination, which has no effect on the quality or provenance of the semen and, at most, involves considerations relating to health. 71. The reference to the full harmonisation which, according to the abovementioned judgment, has been achieved at Community level in terms of zootechnical and pedigree requirements does not seem to me to be relevant. 72. In paragraph 33 of Centre d’insémination de la Crespelle, the Court noted that ‘[a]s regards the reasons relating to the genetic improvement of bovine stock’, ‘Article 2(1) of Directive 87/328, which is designed to remove zootechnical obstacles to intra-Community trade in bovine semen, requires Member States to remove all barriers to entry into, or use within, their territory of bovine semen imported from other Member States in accordance with the conditions laid down in Article 4 of the directive’, and that ‘Article 2 of Directive 91/174 [(51)] provides that marketing of semen of pure-bred animals may not be prohibited, restricted or impeded on pedigree grounds’. The Court concluded that ‘[i]t follows from those provisions that zootechnical and pedigree requirements have been fully harmonised at Community level’. 73. That line of argument seems to me to indicate that the full harmonisation which the Court thus established relates to the national measures designed to further zootechnical or pedigree requirements by means of restrictions on the importation of, trade in and use of bovine semen. (52) Furthermore, in its judgments in both Gervais and Others (53) and Nilsson and Others, (54) the Court pointed out that Directives 77/504 and 87/328 are designed to harmonise the conditions governing the admission to reproduction of pure-bred bovine breeding animals and their sperm, with a view to removing the zootechnical obstacles to the free movement of bovine semen. The Court concluded from this both that ‘a requirement whose purpose or effect is to control or verify imports of bovine semen by reference to zootechnical or pedigree considerations could be laid down only in conformity with those directives’ (55) and that ‘[t]hose directives do not govern the conditions regarding actual insemination or the training of inseminators; nor do they cover the issue of certificates or licences authorising the holders to carry out the regulated functions of inseminators’. (56) 74. The present case relates essentially to restrictions on the persons authorised to carry out insemination – and, therefore, on the conditions governing insemination per se or access to the function of inseminator – regardless of the semen used, and the Commission does not allege that those restrictions were used to control the genetic quality of the breeding animals in a manner for which the Community directives did not provide. (57) 75. It seems neither to me, nor to the French Government, that the harmonisation achieved through Directives 77/504, 87/328 and 91/174 prevents the Member States from relying on zootechnical or pedigree requirements to justify national measures which, like those at issue in this case, govern the service of inseminating cattle without involving restrictions on the import of, trade in or use of bovine semen originating in other Member States. 76. A further issue is whether the conditions governing the act of insemination may in fact affect the conservation and improvement of bovine stock. The positions of the parties on that point are diametrically opposed, with the Commission taking a negative and the French Government a positive view. It does not, however, seem to me that the Court need resolve the dispute, which is of a rather technical nature. 77. In my view, it is sufficient to establish that, according to the statements of the French Government, the national rules at issue were designed to protect bovine stock inasmuch as they made it possible to centralise the collection of data on breeding carried out in the territory by means of artificial insemination – that data being needed to implement the programmes of selection of progeny and stock conservation. 78. However, I fail to see why that centralised collection of data could not have been achieved using measures less restrictive than the regional monopoly on the insemination service accorded to the authorised AICs. The imposition on operators engaged in the artificial insemination of bovine animals of an obligation to forward to a body designated for that purpose information on the breeding carried out could, in my view, have permitted that information to be collected in the same centralised manner, but without creating the serious obstacles to freedom of establishment and the freedom to provide services that this monopoly entailed. 79. I therefore agree with the Commission when it observes that, in any case, the national rules at issue went beyond what was necessary in order to achieve the objective pursued of protecting bovine stock. 2. Land-planning requirements 80. The French Government claims that those rules also pursued a land-planning objective and that the Court had already recognised in its judgment in TK‑Heimdienst (58) that an objective of that nature constitutes an overriding reason relating to the public interest. That objective required breeders to be able to use the insemination service in uniform conditions throughout French territory. 81. Because it was barely profitable, however, if no exclusive rights over a defined geographical area for its exercise existed, that service would not have been offered in the areas, amounting to some three quarters of French territory, where there is very little livestock farming. The French Government states that preserving livestock farming in those zones, where climatic and geographical conditions were not conducive to growing any kind of crop, had enabled it to conserve agricultural activity and the production of quality products with high added value, such as mountain cheeses. 82. In that connection, in my view, it will suffice to point out, as has the Commission, that those claims by the French Government are not supported by any information or statistical data enabling them to be evaluated. Consequently, there is no detailed evidence of the need for the exclusive geographical rights in favour of the authorised AICs in order to guarantee the insemination services in all areas of French territory. 83. Therefore, without it being necessary to consider whether land-planning requirements are in theory capable of justifying restrictions on freedom of establishment and the freedom to provide services, it cannot be considered to have been proved that such requirements existed in this case and were such as to require the establishment of a network of territorially defined monopolies for the provision of the insemination service. 84. Moreover, as the Commission emphasises, the justification at issue could not, in any event, hold good for those areas of French territory which did not possess the features referred to by the French Government. 3. The protection of public health 85. The French Government also invokes public health objectives, in terms of the protection of both animal and human health. 86. In the first place, it submits that the rules relating to the professional qualifications of operators who carry out insemination reflected concerns about the protection of animal health, because the act of insemination must comply with health and safety rules in relation to both the handling of the semen and contact with the animal. That act calls for great skill in order to avoid physical harm to the animal artificially inseminated. In addition, according to the French Government, the very decision to carry out insemination may affect the health of the animal, as the latter may be compromised, in terms of its fertility in particular, as a result of ill-judged cross-breeding. 87. In the second place, the system of inseminators’ licences, which included an investigation of fitness for the task, was necessary in order to safeguard also the health of operators carrying out insemination, an act involving risks in terms of both contact with a large animal and the use of liquid nitrogen, an extremely hazardous substance, in that it can cause severe burns on contact. 88. Finally, the issue of a licence served the purpose of protecting human health in terms of food security also, helping to meet the requirement of product traceability recognised by the Community legislature in the form of Regulation (EC) No 178/2002. (59) The French Government maintains that the principle of product traceability also applies to semen, which is a living biological product underpinning the process of livestock production, and points out that the national rules required the inseminator to identify the female animals to be inseminated (60) and to draw up an insemination list containing, among other things, information about the bull and the cow and the number of injections of semen used. (61) According to the French Government, the AICs guaranteed the traceability of that semen, by providing for documentary checks, physical checks and checks on the identity of the semen, whatever its provenance. 89. It seems patent to me that, as the Commission has observed, the considerations set out in points 86 and 87 above cannot justify the restrictions of freedom of establishment and the freedom to provide services in question. Indeed, as the Commission’s representative confirmed at the hearing, in these proceedings no claim has been made against the Member State concerned regarding the requirement of an inseminator’s licence or the condition governing the issue of that licence, consisting of the submission of a certificate of fitness for the duties of an inseminator. The subject of the dispute is in fact the conferring of exclusive rights over a defined geographical area on authorised AICs and the condition governing the issue of the licence, namely the conclusion of an agreement with an authorised AIC. The French Government has not explained why, in the absence of such measures, and notwithstanding the checking of fitness for the duties of an inseminator required by the national rules governing the issue of an inseminator’s licence, human and animal health would have been put at risk. 90. As regards the requirement of product traceability, it is sufficient to point out that neither the obligations imposed on inseminators, referred to by the French Government, nor the checks on the semen by the authorised AICs, necessarily require exclusive rights over a defined geographical area in favour of those centres in relation to insemination services. It seems to me that it is perfectly possible to devise and carry out such obligations and checks in a system which does not provide for such exclusive rights. 91. Consequently, it is my view that the reasons relied on by the French Government in these proceedings to justify the national rules at issue fail to meet the criteria established by the case-law cited at point 64 above and cannot, therefore, justify the restrictions of freedom of establishment and the freedom to provide services resulting from those rules in relation to the service of artificially inseminating cattle. I therefore consider that the Commission’s action must be upheld in relation to those restrictions. V – Costs 92. Pursuant to Article 69(2) of the Rules of Procedure of the Court of Justice, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Pursuant to Article 69(3), where each party succeeds on some and fails on other heads, the Court may order that the costs be shared or that the parties are to bear their own costs. 93. If, as I propose, the Court upholds the application in part only, that is to say, in so far as it concerns the restrictions of freedom of establishment and the freedom to provide services with reference to the service of carrying out the artificial insemination of cattle only, but not also the alleged restrictions of those freedoms in relation to the bovine semen distribution service, it seems to me to be fair to order that the costs be shared between the parties. To be more precise, I suggest that the French Republic should be ordered to pay two thirds of the total costs and the Commission to pay the remaining third. VI – Conclusion 94. In the light of the above considerations, I propose that the Court should: – declare that, by conferring on the artificial insemination centres authorised in its territory the exclusive right to provide the service of artificially inseminating cattle within the area defined in the measure authorising the opening and operation of any such centre, and, in connection therewith, by making the issue of an inseminator’s licence subject to the conclusion of an agreement between the managing director of a centre and the person applying for a licence, the French Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC; – dismiss the remainder of the action as inadmissible; – order the French Republic to pay two thirds of the total costs and the Commission of the European Communities to pay the remaining third. 1 – Original language: Italian. 2 – Let me immediately make it clear that, in order to adhere as closely as possible to the terminology employed in the relevant French legislation – which sometimes distinguishes between ‘mise en place’ and ‘insémination’, giving the latter term a wider significance – in this Opinion, I shall use the term ‘insemination’ to refer to the placing of the semen extracted from male bovine animals into the genital apparatus of female bovine animals, and the term ‘reproduction’ (which could be used as a synonym), in what is in fact a broader sense, to refer generally to the whole range of activities involved in the reproduction of cattle by artificial means, including, therefore, the activities involved in the production of that semen. 3 – Case 271/81 Société coopérative d’amélioration de l’élevage et d’insémination artificielle du Béarn [1983] ECR 2057 and Case C-17/94 Gervais and Others [1995] ECR I‑4353. 4 – Case C-323/93 Centre d’insémination de la Crespelle [1994] ECR I-5077. 5 – Council directive of 25 July 1977 on pure-bred breeding animals of the bovine species (OJ 1977 L 206, p. 8). 6 – Council directive of 18 June 1987 on the acceptance for breeding purposes of pure-bred breeding animals of the bovine species (OJ 1987 L 167, p. 54). 7 – Gervais and Others, cited in footnote 3. 8 – In the proceedings for a preliminary ruling which resulted in the judgment in Gervais and Others, cited in footnote 3, the Court was asked to consider whether the abovementioned legislation was compatible with the Treaty provisions on freedom of establishment and the freedom to provide services (Articles 52 and 59 of the EC Treaty, now, after amendment, Articles 43 EC and 49 EC). The Court did not, however, hand down judgment in that regard, pointing out that the provisions in question could not apply in that case, since the situations at issue in the main proceedings were purely internal to a Member State. 9 – JORF of 5 January 2006, p. 229. 10 – JORF of 8 December 2006, p. 18620. 11 – JORF of 23 December 2006, p. 19479. 12 – Law concerning the Legislative Part of (new) Book VI of the Rural Code (JORF of 9 July 1998, p. 10458). 13 – JORF of 29 December 1966, p. 11619. 14 – Decree concerning the Regulatory Part of Book VI of the Rural Code and amending the Regulatory Part of Books II and III of that code (JORF of 6 September 2003, p. 15405). 15 – JORF of 23 March 1969, p. 2948. 16 – JORF of 30 April 1969, p. 4349. 17 – JORF of 19 November 1969, p. 11256. 18 – JORF of 31 January 1989, p. 1469. 19 – JORF of 6 December 1991, p. 15936. 20 – JORF of 1 June 1997, p. 8791. 21 – JORF of 27 January 2001, p. 1477. 22 – We may leave aside, for the purposes of these proceedings, those provisions which, under certain conditions, allow breeders themselves to carry out insemination on the livestock which they have raised (in such circumstances, this is not a service provided to third parties), as well as those provisions which permit veterinarians, who are not in possession of an inseminator’s licence, to carry out insemination, exceptionally and for therapeutic reasons, on animals in their care (as these are clearly marginal instances of derogation). 23 – Case C-347/88 Commission v Greece [1990] ECR I‑4747, paragraph 40, and Case C-260/04 Commission v Italy [2007] ECR I-7083, paragraph 18, and the case-law cited therein. 24 – Case C-19/92 Kraus [1993] ECR I‑1663, paragraph 32, and Case T‑266/97 Vlaamse Televisie Maatschappij v Commission [1999] ECR II‑2329, paragraph 113. 25 – Council directive of 14 June 1988 laying down the animal health requirements applicable to intra-Community trade in and imports of deep-frozen semen of domestic animals of the bovine species (OJ 1988 L 194, p. 10). 26 – From the wording of the Commission’s written and oral pleadings, it may be understood that, contrary to what the contentions set out in the reply seem to suggest, the requirement of an inseminator’s licence is not in itself the subject of criticism. 27 – Case C-98/04 Commission v UnitedKingdom [2006] ECR I-4003, paragraph 18. 28 – See, as regards an action for failure to fulfil an obligation under Article 226 EC, the judgment of 14 October 2004 in Case C‑55/03 Commission v Spain (not published in the ECR), paragraph 23. 29 – I should point out in passing that, in its judgment in Centre d’insémination de la Crespelle, cited in footnote 4, paragraphs 28 to 40, the Court had occasion to review, in the light of Articles 30 and 36 of the EC Treaty (now, after amendment, Articles 28 EC and 30 EC), the obligation which French legislation imposed on economic operators importing semen from other Member States to deliver it to an authorised insemination or production centre. 30 – Cited in footnote 4, paragraph 17. 31 – Under Article 4 of the Decree of the Minister for Agriculture, Food, Fisheries and Rural Affairs of 20 February 2003 concerning the charges for insemination carried out on cattle by authorised artificial insemination centres (JORF of 23 February 2003, p. 3290), the cost of the insemination was invoiced to the breeders by the AIC, regardless of whether the person who had carried out the insemination was an employee or an independent operator. 32 – Case C-159/94 Commission v France [1997] ECR I-5815, paragraph 44. 33 – Case C-202/88 France v Commission [1991] ECR I-1223, paragraph 22, and Case C-353/89 Commission v Netherlands [1991] ECR I-4069, paragraph 34. 34 – Société coopérative d’amélioration de l’élevage et d’insémination artificielle du Béarn, cited in footnote 3, paragraphs 8 to 10, and Gervais and Others, cited in footnote 3 , paragraphs 35 and 36. 35 – Société coopérative d’amélioration de l’élevage et d’insémination artificielle du Béarn, cited in footnote 3, paragraphs 11 and 12, also mentioned in Gervaisand Others, cited in footnote 3, paragraph 37, in which the Court made it clear that the question whether the operation of the authorised centres in practice involved discrimination against the imported semen, contrary to Article 30 of the EC Treaty, requires an assessment of the material facts which falls within the jurisdiction of the national court (in point of fact, as in Société coopérative d’amélioration de l’élevage et d’insémination artificielle du Béarn, that case concerned a reference for a preliminary ruling and not, as in this case, proceedings for failure by a State to fulfil its obligations). 36 – Centre d’insémination de la Crespelle, cited in footnote 4, paragraphs 13, 18 and 21. 37 – Case C-260/89 [1991] ECR I-2925, paragraphs 10 to 12 and 20). 38 – Case 155/73 [1974] ECR 409, paragraph 14. My emphasis. 39 – Cited in footnote 33, paragraph 35. 40 – Case C-124/97 [1999] ECR I‑6067, paragraphs 28 to 30. 41 – Case C-442/02 CaixaBank France [2004] ECR I‑8961, paragraph 11, and the case-law cited therein. 42 – Case C-451/03 [2006] ECR I‑2941, paragraph 34. 43 – Opinion of 28 June 2005 in Servizi Ausiliari Dottori Commercialisti, cited in footnote 42, points 42 and 44. 44 – Kraus, cited in footnote 24, paragraph 32. 45 – Case C-76/90 Säger [1991] ECR I‑4221, paragraph 12; Case C-205/99 Analir and Others [2001] ECR I‑1271, paragraph 21; Case C-433/04 Commission v Belgium [2006] ECR I‑10653, paragraph 28; and Case C-208/05 ITC [2007] ECR I‑181, paragraph 55. 46 – See, in particular, Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 28; Säger, cited in footnote 45, paragraph 14; Case C-43/93 Vander Elst [1994] ECR I‑3803, paragraph 15; Case C-355/98 Commission v Belgium [2000] ECR I‑1221, paragraph 35; and Case C-134/05 Commission v Italy [2007] ECR I-6251, paragraph 23. 47 – See Case C-55/94 Gebhard [1995] ECR I‑4165, paragraph 37; Case C-424/97 Haim [2000] ECR I‑5123, paragraph 57; Analirand Others, cited in footnote 45, paragraph 25; Case C‑439/99 Commission v Italy [2002] ECR I‑305, paragraph 23; and CaixaBank France, cited in footnote 41, paragraph 17. 48 – Case C-255/04 Commission v France [2006] ECR I‑5251, paragraph 43, and judgment of 14 December 2006 in Case C‑257/05 Commission v Austria (not published in the ECR), paragraph 23. 49 – Case C-162/97 [1998] ECR I‑7477. 50 – Cited in footnote 4, paragraph 33. 51 – Council Directive 91/174/EEC of 25 March 1991 laying down zootechnical and pedigree requirements for the marketing of pure-bred animals and amending Directives 77/504/EEC and 90/425/EEC (OJ 1991 L 85, p. 37). 52 – Furthermore, as the French Government points out and the Commission itself acknowledges, this concerns only semen extracted from pure-bred breeding animals of the bovine species; consequently, the harmonisation in question would not, in any event, encompass semen from cross-bred bulls. 53 – Cited in footnote 3, paragraph 32. 54 – Cited in footnote 49, paragraph 29. 55 – Nilsson and Others, cited in footnote 49, paragraph 29. 56 – Gervais and Others, cited in footnote 3, paragraph 32. 57 – In Nilsson and Others, cited in footnote 49, paragraph 30, the Court pointed out that, in view of the harmonisation achieved by Directives 77/504 and 87/328, ‘the requirement of authorisation for insemination activities may not be used for the purpose of controlling the genetic quality of breeding animals in a manner not provided for in the directives’ themselves. 58 – Case C-254/98 [2000] ECR I‑151, paragraph 34. 59 – Regulation of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1). 60 – The French Government cites, in that context, the Decree of 2 August 1983 defining the specific activity of inseminators (JORF of 10 August 1983, p. 7442). 61 – Article 15 of the Decree of 17 April 1969, as amended.