Opinion of the Advocate General — ECLI:EU:C:1998:39
Date: 1998-02-03
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Free movement of goods;Measures having equivalent effect;Quantitative restrictions;Veterinary legislation
Procedure: Action for failure to fulfil obligations - successful
Origin: Germany

summary 
record of the Council concerning Article 
6(1 )(b) at the time of the adoption of Direc­
tive 91/497), Article 7(1)(b) of Directive 89/662 
is applicable to all consignments of pigmeat 
from other Member States. All consignments 
of pigmeat, irrespective of any marking 
attesting to hygiene standards, will be 
inspected at the place of destination to check 
whether this limit level has been complied 
with and, where it has been exceeded, action 
will be taken ...'. 
This is the substance of the national legisla­
tion in issue. Furthermore, it is of general 
application, in that the note applies to prod­
ucts from all the Member States. However, 
the problems which gave rise to this applica­
tion relate exclusively to imports of pigmeat 
from Denmark, in that — as will be explained 
below — the German authorities object to 
the methods used by their Danish counter­
parts to detect pronounced sexual odour. 
5. The Commission took the view that the 
content of that note infringed Directives 
64/433 and 89/662, and Article 30 of the 
Treaty, and set in motion the pre-litigation 
procedure provided for by Article 169 against 
the Federal Republic of Germany. In reply to 
the reasoned opinion, the German Govern­
ment undertook to adopt all measures neces­
sary to comply therewith in connection with 
the allegations relating to paragraphs 1 and 2 
of the note in issue. However, with reference 
to paragraph 3 of the note, the Federal 
Republic was only prepared to modify the 
system of monitoring so that it is carried out 
only by means of non-discriminatory spot-
checks. For the rest, the German Govern­
ment disputed the Commission's assessment 
and expressed the view that paragraph 3 of 
the note did not in any way contravene the 
directives in question or Article 30 of the 
Treaty. 
The Commission then brought an action 
before the Court limiting its application to 
paragraph 3 of the note in issue. More spe­
cifically, the applicant institution seeks the 
following form of order: 
'A declaration that the Federal Republic of 
Germany has failed to fulfil its obligations 
under Articles 6(1)(b) and 5(1)(o) of Direc­
tive 64/433/EEC, as amended by Directive 
I - 6878 
COMMISSION v GERMANY 
91/497/EEC, in conjunction with Articles 
5(1), 7 and 8 of Directive 89/662/EEC and 
Article 30 of the Treaty, 
in imposing a particular requirement for spe­
cial marking and heat treatment of carcases of 
uncastrated male pigs pursuant to Article 
6(1)(b) of the directive irrespective of the 
weight of the animal, as soon a concentration 
of androsterone over 0.5 g/g can be detected 
in the meat by applying Professor Claus's 
modified immuno-enzyme test 
and 
in stipulating that where the limit level of 0.5 
g/g of androsterone is exceeded, the meat 
gives off a pronounced sexual odour with the 
result that under Article 5(o) of the directive 
it is rendered unfit for human consumption. 
An order that the defendant pay the costs.' 
The defendant Member State defended the 
action calling for the dismissal of the applica­
tion and an order requiring the Commission 
to pay the costs. 
The harmonisation brought about by Direc­
tives 64/433 and 89/662 
Before considering the substance of the indi­
vidual claims made by the Commission, let 
me first assess whether or not the rules laid 
down by the directives under consideration 
have achieved the complete harmonisation of 
the legislation we are concerned with in this 
case. The Federal Republic of Germany justi­
fies the national rules in issue by arguing that, 
in the case under consideration, there is only 
partial harmonisation, with the result that the 
establishment of a limit level for 'pronounced 
sexual odour' and of methods to detect it is a 
matter for the national legislatures. Obviously 
this argument can be accepted or refuted 
according to whether total or only partial 
harmonisation is involved. The answer to that 
question, moreover, affects the judgment 
which the Court will be called upon to give 
on a possible infringement of Article 30, and 
in particular on the possibility for the defen­
dant Member State to justify the measures in 
issue, on the basis of Article 36, by reference 
to the need to protect public health. It is 
established case-law that 'where ... Commu­
nity directives provide for the harmonisation 
of the measures necessary to ensure the pro­
tection of animal and human health and 
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OPINION OF MR LA PERGOLA — CASE C-102/96 
establish Community procedures to check 
that they are observed, recourse to Article 36 
is no longer justified and the appropriate 
checks must be carried out and the measures 
of protection adopted within the framework 
outlined by the harmonising directive'. 7 
It is, therefore, my opinion that the investiga­
tion into the question whether there has been 
harmonisation holds the key to the correct 
interpretation of this case. In making this 
assessment, I believe we should consider 
Directives 64/433 and 89/662 together: the 
purpose of the first is to lay down rules in 
respect of the health requirements for the 
production and marketing of fresh meat; the 
second lays down the rules relating to 'vet­
erinary checks in intra-Community trade with 
a view to the completion of the internal mar­
ket'. Accordingly the Community rules con­
cerning trade in pigmeat, in so far as they are 
relevant here, derive from these two pieces of 
legislation read in conjunction with one 
another. 
If, then, we look at the preamble to the above 
legislation it seems clear to me that the inten­
tion of the legislature was to achieve total 
harmonisation. The second recital in the pre­
amble to Directive 64/433, as annexed to 
Directive 91/497, refers to obstacles to intra-
Community trade resulting from 'differences 
between the health requirements of Member 
States concerning meat'. The third recital 
points to the need to eliminate such differ­
ences by approximating the provisions of the 
Member States in this area; according to the 
following recital 'the object of this approxi­
mation must be ... to standardise ...' the above 
health requirements. The recitals in the pre­
amble to Directive 91/497 in this regard are 
even more explicit: the need to 'harmonise 
the conditions under which certain meat is 
declared unfit for human consumption' 8 is 
seen by the legislature as a direct consequence 
of the abolition by Directive 89/662 of vet­
erinary checks at the frontiers of the Member 
States. The directive under consideration, then, 
is included amongst the 'measures for the 
gradual establishment of the internal mar­
ket'. 9 From that point of view Directive 
89/662 complements Directive 64/433 in that 
its objective is to relocate veterinary checks in 
the place of origin, so that goods which meet 
Community requirements can be moved freely 
within the Community unhindered by obsta­
cles which might otherwise result from sub­
sequent checks justified by the need to ensure 
the protection of public health. 
Analysis of the recitals, then, reveals the leg­
islature's desire to achieve the total harmoni­
sation of health requirements relating to trade 
in meat through the legislation under consid­
eration. Moreover, this is how the Court 
interpreted Directive 64/433. On this point I 
think it useful to quote in full a passage from 
7 — See, inter alia, Case 5/77 Tedeschi [1977] ECR 1555, para­
graph 35; Case 148/78 Ratti [1979] ECR 1629; Case 251/78 
Denkavit [1979] ECR 3369; Case C-5/94 Hedley Lomas 
[1996] ECR I-2553. 
8 — See seventh recital. 
9 — Sec third recital. 
I - 6880 
COMMISSION v GERMANY 
the judgment in the Delhaize Frères case 10 
which seems to me to be of particular interest: 
'... as far as fresh meat is concerned, the Court 
has already stated in its judgment of 15 
December 1976 in Case 35/76 Simmenthal 
[1976] ECR 1871 that the harmonised system 
of public health inspections, introduced in 
particular by Directive 64/433, has as its aim 
the abolition of barriers to intra-Community 
trade in fresh meat by the harmonisation of 
public health measures. That system, which is 
based on the principle that the public health 
guarantees required by all the Member States 
are equivalent, accordingly has as its purpose 
to transfer supervision to the exporting 
Member State and to replace in this way the 
systematic measures of protection at the fron­
tier with a uniform system so as to make 
multiple frontier inspections unnecessary, 
whilst at the same time giving the Member 
State of destination the opportunity of 
ensuring that the guarantees provided by the 
system of inspections thus standardised are in 
fact given'. 
In the judgment in the Ligur Carni case 1 1 the 
Court recognised that '... the directive estab­
lished a harmonised system of health inspec­
tions, based on the principle that the public 
health guarantees required by all the Member 
States are equivalent, which ensures the pro­
tection of health and at the same time equal 
treatment of products. The purpose of that 
system is to transfer supervision to the 
exporting Member State'. 
6. It now remains to be seen in the light of 
the relevant substantive provisions of the 
directive whether it is possible to speak of 
total harmonisation even in the specific cir­
cumstances of this case, that is to say the 
detection of a pronounced sexual odour which 
renders meat unfit for consumption. The 
German Government argues that we cannot, 
on the ground that the Community legisla­
tion has not established either a standard level 
at which it is agreed that a pronounced sexual 
odour is given off or a common method for 
measuring that level. On that basis it con­
cludes that, in the absence of a common ref­
erence level, each Member State is free to set 
its own. 
However, I am not swayed by that argument. 
First of all, the objective of harmonisation, 
and thus liberalisation, which the Commu­
nity legislature had in mind in drawing up the 
legislation in question would thereby be frus­
trated. Elsewhere, 12 the Court has demon­
strated its preference for the only interpreta­
tion which is compatible with the fundamental 
principles of the single market and the free 
movement of goods. 
Moreover, it would, in my view, be erroneous 
to maintain that harmonisation exists only 
where the legislature has laid down a uniform 
10 — Joined Cases 2/82, 3/82 and 4/82 Delhaize Frères [1983] 
ECR 2973, paragraph 11. Emphasis added. 
11 — Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Carni 
[1993] ECR I-6621, paragraph 25. Emphasis added. 12 — See Case C-105/95 Paul Daut [1997] ECR I-1877. 
I - 6881 
OPINION OF MR LA PERGOLA — CASE C-102/96 
standard. It is true that, in the present case, 
there is no such standard, in the sense that the 
legislature has not 'quantified' the pronounced 
sexual odour which renders meat unfit for 
consumption; and it is also true that Article 
6(l)(b)(iii) of the directive provided for the 
establishment of a common method for 
detecting such sexual odour. However, the 
same article provides that in the absence of a 
common method, that 'recognised by the com­
petent authority concerned' is to apply, that is 
to say, the method adopted by the authori­
ties of the country of origin. Now, for present 
purposes, it seems to me that this constitutes 
harmonisation. We must bear in mind that 
the work of the legislature aimed at harmon­
ising health regulations for trade in meat is 
not an end in itself but a means of achieving 
an ultimate purpose: 13 in this case to allow 
the free movement of goods which meet the 
harmonised requirements. That purpose can 
be achieved by means of legislative techniques 
which are different but substantially equiva­
lent as regards the final result. A common 
rule may be laid down to replace the corre­
sponding national standards and that is the 
first possibility envisaged by Article 6(1)(b)(iii) 
which refers to 'a method recognised by the 
procedure laid down in Article 16'; or else, 
and this is the possibility which concerns us, 
in the absence of such a method, the detec­
tion of pronounced sexual odour may be a 
matter for the competent authorities of the 
country of origin of the goods. For the pur­
poses of this case, the two possibilities are 
equivalent. The above legislation purposely 
makes provision for both as alternatives but 
in terms of absolute equivalence. Hence the 
objective of approximating the relevant health 
regulations is achieved here through the 
Member States' agreeing, in adopting this 
directive, to assume the obligation to accept 
the decisions of the authorities of the country 
of origin. 
7. Furthermore, Directive 89/662 provides for 
the possibility for the Member State of des­
tination of the goods to carry out non­
discriminatory spot-checks to ensure the 
goods conform to the health regulations in 
force. 14 This is obviously a provision intended 
to safeguard public health through the system 
set up by this directive: it makes it possible to 
prevent the marketing of meat where irregu­
larities are found in the consignment. 15 In 
such a case, however, the State availing itself 
of that option is required to set in motion 
'without delay' the special procedure set up 
by Article 8 to deal with any complaints 
which may be made regarding the conformity 
of the goods with health regulations. 
13 — The harmonisation, or approximation, of laws has been the 
subject of special study in legal writings. On the functional 
nature of approximation and on the various means by which 
it may be achieved, see inter alia R. Mastroianni, 'Ravvici­
namento delle legislazioni nel diritto comunitario', in Digesto 
delle Discipline Pubblicistiche, Turin, 1996, vol. X X I I p. 457 
et seq. and its many references to other works. 
14 — See Article 5. 
15 — See Article 7. 
I - 6882 
COMMISSION v GERMANY 
The alleged infringement of Directives 64/433 
and 89/662 
8. In the light of these preliminary observa­
tions, I now turn to the alleged infringement 
of these directives. 
In this connection, I do not believe there is 
any doubt that the requirements imposed by 
the German authorities relating to the special 
marking and heat treatment of pigmeat are 
contrary to Article 6(1)(b)(iii). That provision 
is clear and unequivocal: only carcases 
weighing in excess of 80 kilograms must bear 
the special mark and undergo heat treatment, 
except where the establishment is able to 
guarantee by means of a common method or, 
in the absence of such a method, by means of 
a method recognised by the competent 
authority of the country of origin, that 'car­
cases giving off a pronounced boar taint may 
be detected'. The German authorities on the 
other hand require special marking and heat 
treatment for carcases below the threshold of 
80 kilograms. Moreover, they impose these 
requirements despite the fact that the authori­
ties of the country of origin are using a 
method suitable for detecting meat which 
gives off a pronounced sexual odour; indeed, 
in the note in issue it is expressly stated that 
'only the modified immuno-enzyme test of 
Professor Claus is recognised as a specific 
method for measuring the level of androster-
one'. This is clearly in breach of Article 
6(1)(b)(iii). 
9. I now turn to consider the Commission's 
claim alleging a breach of Article 5(1)(o) of 
Directive 91/497 in conjunction with Article 
8 of Directive 89/662. According to the appli­
cant institution, the failure to fulfil obliga­
tions lies in the fact that the German authori­
ties refused to recognise that pigmeat imported 
from Denmark meets the relevant health 
requirements but did not set in motion the 
special procedure under Article 8. Here, too, 
the problem raised by the defendant govern­
ment relates to the detection of a pronounced 
sexual odour in pigmeat: the German authori­
ties do not recognise the validity of the Scatol 
method used by the Danish authorities to 
detect pronounced sexual odour. Instead they 
use Professor Claus's method and maintain, 
as set out in paragraph 3 of the note in issue, 
that meat containing a level of androsterone 
higher than 0.5 g/g gives off a pronounced 
sexual odour and is therefore not fit for human 
consumption. 
In my view, this claim by the Commission 
should also be upheld. It turns on the failure 
to set in motion the procedure required by 
Article 8 and there is no doubt that the 
German authorities did not use that proce­
dure. The fact that the provision in question 
allows the Member State no discretion as to 
whether to set in motion the procedure in 
question is similarly beyond doubt: under 
I - 6883 
OPINION OF MR LA PERGOLA — CASE C-102/96 
Article 8 the authorities of the country of 
destination must 16 contact the competent 
authorities of the Member State of dispatch 
without delay — and take the various proce­
dural steps laid down by Article 8 — where 
irregularities are discovered in the consign­
ment and recourse is had to the options open 
to them under Article 7. The presence of a 
pronounced sexual odour clearly constitutes 
an 'irregularity' within the meaning of that 
legislation. 
10. In my view, the arguments put forward 
by the defendant government cannot be 
upheld. As regards the allegation just consid­
ered, the German Government confines itself 
to denying, without more, its failure to set in 
motion the procedure under consideration, 
but without furnishing any evidence to sub­
stantiate the contention made in its own 
defence. Accordingly, for the purposes of 
these proceedings, the Federal Republic of 
Germany has not discharged the burden of 
proof incumbent upon it; for that reason its 
defence should be rejected as not proven. 
11. As regards, then, the national legislation 
in issue under which the conformity with 
health requirements of meat is only recogn­
ised if it has a level of androsterone of below 
0.5 µg/g measured by the method of Pro­
fessor Claus, the German Government essen­
tially puts forward two arguments. First, it 
alleges that there are no harmonised rules on 
this subject, so that each Member State is 
entitled to set independently the level of pro­
nounced sexual odour which renders meat 
unfit for consumption. However, this argu­
ment is based on the premiss that the relevant 
rules have not been harmonised: therefore, as 
this premiss has proved to be unfounded, this 
argument also fails. 
12. The defendant Member State argues fur­
ther that the Danish authorities use a method 
which is scientifically unsuitable for detecting 
sexual odour. In its written observations, the 
German Government argues that it is willing 
to accept the principle that checks for 'pro­
nounced sexual odour' should be carried out 
by the authorities of the country of dispatch 
using methods recognised by those authori­
ties, but they must none the less use suitable 
methods. This was allegedly not the case here, 
since the Scatol method used by the Danish 
authorities does not allow the presence of 
sexual odour to be detected properly. In other 
words, the German Government appears to 
acknowledge, in the abstract, the power of 
the authorities of the countries of origin, but 
denies that, in this case, that power was prop­
erly exercised. 
16 — The wording used in the directive is 'the competent authority 
of the Member State of destination shall contact'; this makes 
plain that this course of action is compulsory and not 
optional. 
I - 6884 
COMMISSION v GERMANY 
However, that argument also strikes me as 
unfounded. I concur with the German Gov­
ernment in the fact that the competent author­
ities of the country of origin must use 'suit­
able methods', that is to say methods suited 
to achieving the result required by the provi­
sion in question, particularly as the system set 
up by the directives is based precisely on the 
confidence which the authorities of the 
country of destination must have in the checks 
carried out by the State of dispatch; therefore 
— as the sixth recital in the preamble to 
Directive 89/662 states — 'the latter must 
ensure that such veterinary checks are carried 
out in an appropriate manner'. However, if 
the defendant government considers that Den­
mark is not complying with this condition it 
must first set in motion the procedure pro­
vided for in Article 8, and thereby resolve, 
using the framework provided by the direc­
tive, any disputes which may arise regarding 
the conformity with health requirements of 
goods which are covered by the harmonised 
rules. 17 
13. In any event, leaving aside the question 
of recourse to the above procedure, I would 
point out here that the Court has consistently 
held that, if a Member State considers that 
another Member State has failed to fulfil its 
obligations under a directive, it must bring 
proceedings against the State allegedly in 
breach of its obligations for a declaration to 
that effect and to bring the infringement to an 
end. 18 However, I do not believe that the 
State concerned can act unilaterally and impose 
substantive requirements for the marketing of 
pigmeat which are not provided for in the 
relevant Community legislation. To proceed 
in this way would not only be contrary to the 
letter of the directives under consideration. It 
would also conflict with the fundamental prin­
ciple of the Community legal order according 
to which the Member States must avail them­
selves of the judicial remedies provided for 
by the Treaty and cannot take matters into 
their own hands. 19 In the light of that prin­
ciple, I cannot see how the German Govern­
ment can justify the imposition of require­
ments which are clearly not provided for by 
the directive under consideration — such as 
the requirement for special marking and heat 
treatment for carcases weighing less than 80 
kilograms as well, and the refusal to recognise 
the validity of any method other than that of 
Professor Claus — on the basis of the Danish 
authorities' alleged failure to fulfil their obli­
gations, in that they did not use appropriate 
methods to detect pronounced sexual odour. 
If the defendant Member State considers that 
the Danish authorities are using unsuitable 
methods — and are not therefore properly 
implementing the directive — it can (and 
17 — At the hearing the question was discussed whether the pro­
cedure provided for in Article 8 could usefully be imple­
mented in this use: in particular, it was said that there would 
be no 'irregularity' within the meaning of that article, since 
every Member State would be free to fix the limit level for 
sexual odour and the methods for detecting it. However, this 
is a point of view which I cannot share. The detection of 
pronounced sexual odour is one of the checks for which the 
authorities of the country of origin are responsible; if, in the 
course of checks which it is allowed to make using its own 
methods, the authority of the country of destination takes 
the view, disagreeing with the first authority, that the meat 
gives off a pronounced sexual odour, it will have to set in 
motion the procedure in question disputing precisely the fit­
ness of the meat to be marketed because of that sexual odour. 
At that point there will be an assessment of whether or not 
the meat is tainted in this way and it will obviously be pos­
sible to criticise the suitability of the methods used. 
18 — See Case C-14/96 Paul Denuit [1997] ECR I-2785; Hedley 
Lomas, cited above, and Case C-11/95 Commission v Bel­
gium [1996] ECR I-4115. 
19 — Sec Joined Cases 90/63 and 91/63 Commission v Luxem­
bourg and Belgium [1964] ECR 625 and Case 232/78 Com­
mission v France [1979] ECR 2729. 
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OPINION OF MR LA PERGOLA — CASE C-102/96 
indeed, must) use the administrative and judi­
cial mechanisms provided for by the system. 
The path followed by the German Govern­
ment — that is to say, taking matters into its 
own hands by introducing requirements not 
provided for by the directive — is, on the 
other hand, contrary to the logic of the Com­
munity legal order. 
14. All these considerations lead me to con­
sider that the wide-ranging and detailed argu­
ments relied on by the German Government 
which seek to demonstrate, in scientific terms, 
the unsuitability of the Scatol method used 
by the Danish authorities and to emphasise 
the merits of Professor Claus's method used 
by the German authorities are wholly irrel­
evant. Such considerations strike me as beside 
the point in this context: the procedure pro­
vided for in Article 8 is the most appropriate 
context in which to assess, at a technical level, 
whether the Scatol method is suitable for 
detecting the presence of a pronounced sexual 
odour. And the failure of the defendant 
Member State to fulfil its obligations in this 
case consists precisely in its not having set in 
motion the procedural mechanism specifically 
set up by the directive, or, in any event, in 
not having brought proceedings in the rel­
evant court to obtain a declaration that Den­
mark has failed to fulfil its obligations. 
Infringement of Article 30 
In the light of the foregoing considerations, I 
take the view that the Commission's allega­
tion regarding the infringement of Article 30 
must also be upheld. First of all, there is no 
doubt that the practice followed by the 
German authorities in accordance with the 
note in issue falls within the scope of Article 
30. This point is conceded by the Federal 
Republic of Germany itself which recognises 
that the national measures in issue might, in 
the familiar wording used in the Dassonville 
judgment, 'hinder, directly or indirectly, actu­
ally or potentially, intra-Community trade 
...'. 20 The defendant government believes, 
however, that those measures are justified, in 
this case, in that they are intended to protect 
public health within the meaning of Article 
36. 
However, I cannot endorse the defence of the 
German Government. As I have already said, 
in my view, there is in this case a sufficient 
degree of harmonisation to preclude reliance 
on Article 36 and thus to preclude recourse 
to national rules purportedly based on the 
need to protect public health in respect of the 
marketing of pigmeat. The detection of 'pro­
nounced sexual odour' is one of the checks 
20 — See Case 8/74 [1974] ECR 837, paragraph 5. 
I - 6886 
COMMISSION v GERMANY 
which must be carried out by the country of 
origin, using methods recognised by the com­
petent authorities of that country. This does 
not mean that it is impossible to monitor the 
proper fulfilment by the Member State of 
origin of the obligation to make provision for 
suitable checks on the conformity of the goods 
with health regulations and thus to use 
methods which are objectively suitable for 
detecting the presence of any 'pronounced 
sexual odour'. The special procedure pro­
vided for in Article 8 is specifically intended 
to iron out speedily any possible disparities 
in assessment which may arise between 
national authorities regarding the conformity 
of meat with the health requirements in force. 
O n the other hand, it does not seem to me 
that, in this case, the protection of consumer 
health has been jeopardised in any way. In 
that connection, suffice it to note that Direc­
tive 89/662 itself provides for the possibility 
for the Member State of destination of the 
goods to carry out spot checks for the pur­
pose of ascertaining whether the requirements 
laid down by the Community directives have 
been complied with. Obviously those require­
ments include the absence of a pronounced 
sexual odour, which, according to Article 5(o) 
of Directive 64/433, renders meat unfit for 
human consumption. If the competent 
authority of a Member State finds that the 
goods do not meet those requirements it can, 
under Article 7(l)(b), give the consignor the 
choice of 'destroying the goods or using the 
goods for other purposes, including returning 
them with the authorisation of the competent 
authority of the country of the establishment 
of origin'. The risk of a threat to public health 
is thus averted. For the rest, the Commission 
itself does not dispute that it is possible for 
the defendant Member State to prevent the 
marketing of the meat by recourse to the 
options available to it under Article 7 of 
Directive 89/662; however, it takes the view, 
I think justifiably, that the German authori­
ties should have applied Article 8 of that 
directive and opened the procedure provided 
for by that article without delay. I would add 
that public health can be adequately protected 
by means of the special procedure which, 
however, the defendant State unjustifiably 
failed to use: according to the sixth subpara­
graph of Article 8(1), 'pending the Commis­
sion's findings, the Member State of dispatch 
must, at the request of the Member State of 
destination, intensify checks on products 
coming from the establishment in question, 
and if there are serious animal health or public 
health grounds, suspend approval'; the eighth 
subparagraph goes on to provide that 'at the 
request of one of the two Member States con­
cerned — where the irregularities are con­
firmed by the expert's opinion — the Com­
mission must, in accordance with the 
procedure laid down in Article 17, take the 
appropriate measures, which may go as far as 
authorising the Member States to prohibit 
provisionally the bringing into their territory 
of products coming from that establishment. 
These measures must be confirmed or 
reviewed as soon as possible in accordance 
with the procedure laid down in Article 17'. 
To conclude, then, I do not consider that the 
grounds provided for in Article 36 can be 
taken into account by way of justification: 
the system set up by the abovementioned 
directives is quite comprehensive and, in 
particular, allows situations requiring rapid 
I - 6887 
OPINION OF MR LA PERGOLA — CASE C-102/96 
intervention to guarantee the protection of 
health to be dealt with. 
15. Moreover, leaving aside the question of 
the, albeit compulsory, setting in motion of 
the procedure laid down by Directive 89/662, 
I would stress that the complaints of the 
German Government regarding the validity 
of the Scatol method used by the Danish 
authorities should logically point to the con­
clusion that Denmark had failed to fulfil its 
obligations under the directives under con­
sideration here: more specifically, it has failed 
to meet the obligation to arrange adequate 
monitoring of goods by using methods suit­
able for the detection of the presence of pro­
nounced sexual odour. In my view, however, 
a full refutation of that argument is to be 
found in the consistent case-law to which I 
have already referred: 'if a Member State con­
siders that another Member State has failed to 
fulfil its obligations under the directive, it may 
... bring Treaty infringement proceedings 
under Article 170 of the EC Treaty or request 
the Commission itself to take action against 
that Member State under Article 169 of the 
Treaty'. 21 On that basis, the Court concludes 
that 'it is settled case-law that a Member State 
cannot unilaterally adopt, on its own authority, 
corrective or protective measures designed to 
obviate any breach by another Member State 
of rules of Community law'. 22 
16. I therefore consider that the conduct of 
the defendant State is clearly contrary to the 
directives under consideration and to Article 
30, since that State, 'reacted' as it were, by 
non-judicial means to the alleged unsuitability 
of the Scatol method used by the Danish 
authorities, all the more so as the German 
Government itself surprisingly conceded at 
the hearing that it could have brought an 
action against Denmark for a declaration that 
it had failed to fulfil its obligations in that it 
used a method which was scientifically unsuit­
able for detecting any pronounced sexual 
odour; and it added that it could also have 
challenged the decision recognising the validity 
of the Danish Scatol method under the pro­
cedure provided for in Article 8, instigated at 
the request of France. However, the German 
Government did not trouble itself to specify 
the reasons why it chose the more convenient 
route of adopting unilateral measures rather 
than making use of the remedies provided for 
by the Treaty and secondary legislation, a 
course of action which is more in keeping 
with the character of a Community based on 
the rule of law. It is scarcely necessary to add 
that in such a Community governed by the 
21 — Sec Commission v Belgium, cited above at footnote 18, para­
graph 36. 
22 — See the judgment cited above, paragraph 37. As regards the 
need to ensure that legality is restored without delay, sumce 
it to note — in line with tne judgment in Commission v Bel­
gium, cited above — that the Member State concerned 'may 
request the Court under Article 186 of the EC Treaty to 
prescribe interim measures in any proceedings brought before 
it under Article 170 of the Treaty'. 
I - 6888 
COMMISSION v GERMANY 
rule of law the concept of 'rough justice' — 
on 'which the German Government has largely 
relied in the case now before the Court — is 
necessarily subordinated to a structure of legal 
remedies to which the Member States must 
submit. For these reasons, I do not consider 
that I can endorse the position of the defen­
dant government in this case. 
Conclus ion 
17. In the light of the foregoing considerat ions, I therefore p ropose that the C o m ­
mission's application should be uphe ld in its ent irety and that the defendant State 
should be ordered to pay the costs. 
I - 6889