61991CC0277_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
++++
Mr President,
Members of the Court,
1. Are rules applicable in a region of a Member State, which make importation and marketing of fresh meat into a municipality subject to a compulsory health check and to the payment of charges, whatever the origin of that product, compatible with the relevant Community rules?
2. That is essentially the main question which the President of the Tribunale di Genova (District Court, Genoa) refers to the Court in the three cases brought by Ligur Carni Srl (C-277/91), Ponente SpA (C-318/91) and Genova Carni Srl (C-319/91).
3. Article 40 of Royal Decree No 3298 of 20 December 1928, concerning the approval of the regulation on health checks on meat (1) provides that:
"The bringing into the municipality of fresh meat, after slaughter elsewhere, intended for public shops and industrial establishments is authorized under the following conditions:
(a) that it bears the health inspection mark (stamp) of the municipality of origin;
(b) that it is accompanied by a certificate issued by the municipal authorities in accordance with the model annexed to this regulation (model no 1), with a statement from the municipal veterinary showing that the meat bearing the health inspection mark (stamp), printed or described on the certificate itself is from an animal which was perfectly healthy and was slaughtered in compliance with the applicable rules;
(c) that it undergoes a further inspection by the municipal veterinary at the municipality of destination". (2)
4. Regional Law No 31 of 22 August 1989 on the "provisions relating to the payment of charges owed by individuals using the Local Health Authority' s veterinary services", (3) provides that veterinary inspections and checks carried out by the unità sanitarie locale (local health authority ° USL) give rise to the levying of charges.
5. These texts are applied and interpreted by the Liguria regional administration so that imports of fresh meat into that region are subject to the following conditions:
° only meat which has undergone a veterinary check on arrival can be put on the market in the municipality of destination; in the absence of such an inspection, the meat cannot be marketed;
° a compulsory second check is carried out by the USL in the municipality of destination;
° it gives rise to the levying of a charge. (4)
6. Those rules present two features: they apply without distinction to fresh meat imported from other Member States and to that which comes from other regions of Italy. They provide for a health inspection, not at the time of crossing the intra-Community frontier, but in the municipality of destination.
7. Furthermore, for meat marketed in the municipality of La Spezia there is a mandatory requirement that use be made of the services of CO.GE.SE.MA (a cooperative for the management of the butchery services of the municipality of La Spezia) which has been given an exclusive concession by the municipal authority to carry out the loading, unloading and transport of fresh meat.
8. The three plaintiffs in the main proceedings are Italian companies which import meat from other Community States. It is common ground that that meat is normally accompanied by a health certificate issued by an official veterinarian in the exporting State in accordance with the Community legislation.
9. In the course of 1990-1991, Ligur Carni and Genova Carni, on the one hand, and Ponente SpA, on the other, paid considerable sums of money to USL No XV of Genoa and to USL No XIX of La Spezia respectively for inspection charges. Moreover, Ponente has to pay LIT 70 511 609 to CO.GE.SE.MA, even though according to the importer, CO.GE.SE.MA, which denies such allegation, never took part in the distribution of the goods.
10. The plaintiffs in the main proceedings before the president of the Tribunale di Genova, seek repayment of the sums paid to the USL (and to CO.GE.SE.MA in the case of Ponente) on the grounds that such sums are "charges" prohibited by Council Directives 64/433/EEC of 26 June 1964 on health problems affecting intra -Community trade in fresh meat, (5) 83/90/EEC of 7 February 1983, (6) 89/662/EEC of 11 December 1989 (7) and 90/425/EEC of 26 June 1990. (8)
11. The President of the Tribunale di Genova basically raises six questions (9) which may be grouped together as follows, with the last two relating only to Case C-318/91, Ponente SpA.
° Is such a health inspection system contrary to the abovementioned directives in that it imposes "systematic and costly" health inspections on meat upon dispatch and at the time of its arrival in the municipality of destination? (Questions 1 and 2)
° Are those inspections measures having equivalent effect to quantitative restrictions prohibited by Article 30; may they be justified under Article 36? (Question 3)
° Should the cost for the importer of such systematic checks be considered as consideration for services rendered on his behalf within the meaning of the Court' s case law? (Question 4)
° Is the obligation imposed on the economic operator to pay to an undertaking, even if it does not use that undertaking' s services, an amount corresponding to the price of the services that the undertaking is called upon to render under the concession for handling and transporting goods granted to it by a municipality contrary to Articles 30, 52 and 59 of the Treaty? (Questions 5 and 6).
12. The Italian Government contends that the conditions for application of the second paragraph of Article 177 of the Treaty are not met; the decision to be made by the President of the Tribunale di Genova has to be made following summary proceedings, by way of an "injunction", on the sole basis of the plaintiff' s contentions and without there having prior debate between the parties, therefore without observing the inter partes principle. (10)
13. In the Politi case, (11) concerning a question from the President of the Tribunale di Torino also in the context of "injunction proceedings", the Court considered that the fact that those proceedings were not inter partes did not prevent the Court from being seised of the case in so far as:
"It is sufficient to note that the President of the Tribunale di Torino is performing a judicial function within the meaning of Article 177 and that he considered an interpretation of Community law to be necessary to enable him to reach a decision, there being no need for the Court to consider the stage of the proceedings at which the questions were referred." (12)
14. The Court' s case-law has not been disputed since then. (13) The admissibility of this reference for a preliminary ruling cannot, therefore, be called in question.
15. Before dealing with the questions submitted for a preliminary ruling themselves, a further preliminary remark is necessary.
16. I am assuming that, as seems to follow from the orders for reference and the Italian Government' s observations, (14) the Italian national law implementing Directive 64/433/EEC has not led to the abolition of the Royal Decree of 20 December 1928 and Liguria Regional Law No 31 of 22 August 1989.
17. The first two questions for a preliminary ruling relate to the compatibility with Directives 64/433/EEC, 89/662/EEC and 90/425/EEC of the rules and practices in force in the region of Liguria as regards the health inspection and checking of goods in transit and as regards the entry of goods into the municipality of destination.
18. It should be noted first that the domestic legislation (Royal Decree No 3298 of 20 December 1928 and the Regional Law of 22 August 1989) was adopted before 31 December 1991, the deadline for implementation of the aforementioned Directives 89/662/EEC (15) and 90/425/EEC. (16) Secondly, the dispute in the main proceedings relates to a period before 31 December 1991. (17) Finally, the subject matter of Directive 90/425/EEC is unrelated to the dispute before the court making the reference.
19. It therefore follows that any interpretation that might be given by the Court on those directives would have no bearing upon the application of the domestic legislation in question to the facts in this case. (18)
20. What is the position regarding Directive 64/433/EEC?
21. Directive 64/433/EEC, as amended by Directive 83/90/EEC, aims to eliminate, in the context of intra-Community trade in fresh meat, the differences existing in the Member States relating to health requirements and health checks, in order to allow free movement of that product under the same conditions as those existing in an internal market. (19) It does not merely lay down uniform health requirements relating to the handling of fresh meat in slaughterhouses and shops, but also concerns storage and transport. (20) It imposes obligations essentially on the exporting Member States. It is founded on the principle of equivalence of public health guarantees required throughout the Community: (21) the health check which has been carried out in the State of origin ° which gives rise to the issuance of a health certificate (22) ° is valid throughout transport and therefore right up until the destination. (23) The importing Member State can check that every consignment of fresh meat is accompanied by a health certificate. (24)
22. Thus, the Court in Simmenthal (25) held that:
"the aim of the [harmonised system of veterinary and public health inspections] is to transfer supervision to the exporting Member State and to replace in this way the systematic measures of protection at the frontier with a uniform system so as to make multiple frontier inspections unnecessary and at the same time to give the Member State of destination the opportunity of ensuring that the guarantees provided by the system of inspections thus standardized are in fact given". (26)
23. Article 10(2) and (3) of Directive 64/433/EEC (27) reserves the possibility, if irregularities are seriously suspected for the State of destination to carry out, in a non-discriminatory manner, inspections to check compliance with the requirements of the Directive. Those inspections must not unduly delay the passage of the goods or their placing on the market or cause delays which might adversely affect the quality of the meat.
24. As regards that Directive the Court held, even before the new Article 10 was adopted in Directive 83/90/EEC, that only sporadic checks at the importing State' s frontiers are possible, provided that they are not increased to such an extent as to constitute a disguised restriction on trade between Member States. (28)
25. By Directive 83/643/EEC, (29) the Council laid down the principle of mutual recognition of inspections by the Member States (30) and extended the scheme already laid down for fresh meat by Directive 64/433/EEC to carriage of goods not yet governed by specific Community rules. In this regard, the eighth recital in the preamble to Directive 83/643/EEC is particularly worthy of note:
"... in order to ensure a smooth flow of means of transport engaged in the carriage of goods between Member States, it is desirable to centralise the various inspections in one place, preferably the place of departure or destination of the goods;" (31)
26. Under that Directive, the inspection carried out by one Member State and recognized by others precludes any second check or any other inspection except by way of sampling. (32)
27. In order to ensure complete freedom of movement of the products referred to, the inspections carried out in the exporting state are valid throughout the whole journey and in particular when a frontier is crossed. (33)
28. It is with that scheme set up by Directive 64/433/EEC that the national rules described by the court making the reference must be compared. Under the national rules inspections in the municipality of destination are compulsory, systematic and permanent and are a precondition of marketing the product in the municipality of destination. Nor may the product be marketed without payment of charges determined on a discretionary basis by the public authority. (34) As has been mentioned, a specific feature of that legislation is that health inspections are carried out not at the time when the frontier is crossed, but in the Member State of destination itself.
29. The principle of mutual recognition of inspections by Member States rules out any additional checks, at any place whatsoever. Under the principle of equivalence of health guarantees, the inspection carried out by the exporting country replaces any other check, whether at the frontier or within the country of destination. Such a scheme, which intends the first inspection to be valid for all the Member States, would be undermined if what was prohibited at the frontier was not prohibited at a distance from it. Furthermore it should be noted that where the municipality of destination is a port, the crossing of the frontier and the entry into the municipality imposing a health check "on arrival" occur at the same time. In certain cases such a check is carried out at the time when the frontier is crossed.
30. Directive 64/433/EEC must therefore be interpreted as precluding all systematic health inspections within the country of destination, whether the goods are in transit or have arrived at their destination.
31. The actions brought by the plaintiffs in the main proceedings are directed, as regards the application of Directive 64/433/EEC, against Genova USL No XV (Cases C-277/91 and C-319/91) and La Spezia USL No XIX (Case C-318/91).
32. However, the question arises whether the plaintiffs in the main action may rely on that Directive against such bodies.
33. As is well known a Directive has direct effect only where:
1) the Member State has not implemented it within the prescribed period,
2) its provisions are sufficiently clear, precise and unconditional,
3) those provisions are relied upon against a State or one of its subdivisions.
34. These three points must be considered in turn.
35. Directives 64/433/EEC and 83/90/EEC have been implemented into Italian law by Law No 1073 of 29 November 1971 (35) and the Ministerial Decree of 15 March 1985 respectively. (36)
36. However, as has been observed, that implementation leaves in place some provisions imposing systematic inspections.
37. The Court has held that improper implementation of a Directive has the same effect as failure to implement it:
"wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where that State has failed to implement the directive in national law by the end of the period prescribed or where it has failed to implement the directive correctly". (37)
38. Moreover, the Court has stated that:
"each Member State should implement the directives in question in a way which fully meets the requirements of clarity and certainty in legal situations which directives seek". (38)
39. In this case the relevant provision of the directive is Article 10(2), which requires Member States to carry out inspections to check compliance with the directive' s requirements only "if irregularities are seriously suspected". Implicitly, but unambiguously, the Member States are bound by an obligation to refrain from certain conduct. They are prohibited from carrying out systematic inspections. That provision is sufficiently precise for an individual to be able to rely upon it against a State which makes widespread use of such checks.
40. Finally, as the Court' s case-law now stands, an individual can rely upon the effect of a clear, precise and unconditional provision of an improperly implemented directive only against a Member State or a public authority and not against an individual. (39)
41. However, the Court has held that
"a body, whatever its legal form, which has been made responsible, pursuant to measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon". (40)
42. It is therefore for the court making the reference to determine whether Liguria USL are legal entities fulfilling the criteria set out in the Foster (41) judgment so that the provisions of a directive may be relied upon against them. (42)
43. As regards intra-Community trade in fresh meat, Directive 64/433/EEC has set up, as has been mentioned, a harmonized system of health inspections. (43)
44. Should rules adopted in this sector by a Member State or a region of that Member State, therefore, be examined under Articles 30 and 36 of the EEC Treaty?
45. The Court has consistently held that: (44)
"where, in application of Article 100 of the Treaty, Community directives provide for the harmonization of the measures necessary to ensure inter alia the protection of animal and human health and 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 protective measures adopted within the framework outlined by the harmonizing directive.
This system of health inspections, harmonized at Community level and based on full inspection of the goods in the exporting State, replaces inspection in the State of destination and is intended to allow the free movement of the goods concerned under the same conditions as those of an internal market". (45)
46. In view of the answers given to the first two questions, therefore, Question 3 is devoid of purpose.
47. The fourth question asks whether Community law precludes the levying of charges for systematic inspection by veterinary officers, such as those provided for under Articles 1 et seq. of the Liguria Regional Law No 31 of 22 August 1989. (46)
48. Under that Law a flat-rate charge (Article 3(2)) is levied by the USL for their services such as inspections, health checks and issue of licences for marketing.
49. Since the systematic inspections carried out by those bodies infringe Directive 64/433/EEC, it is said, the charges levied at the time of those inspections infringe Community law.
50. Such charges would also infringe Community law if they were levied at the time of checks by sampling.
51. The legality under Directive 64/433/EEC of checks by sampling at the place of destination does not necessarily justify the levy, at that time, of a charge on the importer, even though the directive is silent on that point.
52. It is apparent from the Court' s judgment in Simmenthal (47) which, in particular, related to the interpretation of Directive 64/433/EEC, that pecuniary charges imposed by reason of veterinary or public health inspections of goods on the occasion of their crossing the frontier are charges having an equivalent effect to customs duties. That is the case even if that charge is not levied for the benefit of the State. (48)
53. The position would be different only if the pecuniary charges related to a general system of internal dues applied systematically in accordancce with the same criteria to domestic products and imported products alike. (49)
54. It should be noted that the rules at issue may discriminate against imported products: fresh meat from the municipality' s slaughterhouse which is marketed in that town is subject to a single health inspection. It is not "slaughtered elsewhere" within the meaning of Royal Decree No 3298 and will therefore not be subject to charges in the municipality of destination.
55. In addition, the inspections carried out in the municipality of destination affect all imported products and have the same effect as an inspection carried out at the frontier; moreover they may coincide where the municipality of destination is a port.
56. Finally, those charges do not cease to be charges having equivalent effect merely because they have an impact not only on goods imported from another Member State, but also on those brought into that municipality from another part of that State.
57. The Court has held that a charge levied at a regional frontier by reason of the fact that products are entering a region of a Member State is a charge having an equivalent effect to a customs duty on imports and constitutes a hindrance at least as serious to the free movement of goods as a charge levied at the national frontier on bringing in products into the whole territory of a Member State. (50)
58. It would also be somewhat paradoxical if national rules were not declared incompatible with Articles 9 and 12 of the Treaty on the ground that they also affected domestic products coming from other parts of the Member State in question.
59. Charges may be levied on the occasion of health inspections at the place of destination only where such charges constitute payment for a service rendered to the economic operator. (51)
60. Such is not the case where an
"activity of the administration of the State intended to maintain a public health inspection system imposed in the general interest cannot be regarded as a service rendered to the importer such as to justify the imposition of a pecuniary charge. If, accordingly, public health inspections are still justified at the end of the transitional period, the costs which they occasion must be met by the general public which, as a whole, benefits from the free movement of Community goods". (52)
61. Finally, in the Ponente case, the Court making the reference has further submitted to the Court two questions specifically relating to CO.GE.SE.MA' s monopoly.
62. The first of those questions (Question 5) relates to whether Articles 30, 52 and 59 of the Treaty preclude national rules from prohibiting an undertaking which imports goods from carrying out in a municipality of the importing Member State the loading, unloading and delivery of goods with its own means.
63. The second of those questions (Question 6) relates to the compatibility with those articles of an administrative practice which allows importing undertakings to carry out themselves the transportation and delivery of goods in a part of the national territory only if they, nevertheless, pay the undertaking holding the corresponding concession for "services which have neither been sought nor rendered." (53)
64. I shall consider these two questions together.
65. An undertaking holding an exclusive concession has a monopoly for the handling and transport of meat in a municipality.
66. That undertaking thus enjoys exclusive rights within the meaning of Article 90 of the Treaty.
67. Although that situation is close to that in the Merci (54) case, it cannot be treated in the same way: Article 86 of the Treaty is not manifestly applicable since it has not been proved that the market affected by that municipal concession represents a substantial part of the common market. (55) On the basis of the information available to the Court, there is not a body of municipal monopolies granted to one group of undertakings whose activities have effects on the import of goods from other Member States. (56) If it were proved that such exclusive concessions were widespread in a Member State, it would be for the court making the reference to draw the appropriate conclusions having regard to Articles 86 and 90, as to whether a substantial part of the common market was affected.
68. The concession in question ° and the ensuing ban on transport of meat by undertakings importing meat into the municipality ° is treated quite differently under Article 30.
69. From 31 December 1969, when the transitional period ended, that article has direct effect and itself gives rise to rights for individuals which the national courts must safeguard. (57)
70. The prohibition on measures having equivalent effect to quantitative restrictions on imports applies to any type of obstacle to free movement of goods in the Community.
71. The question is, therefore, whether Article 30 is applicable to a situation with the following four specific features:
(1) the measure of prohibition applies without distinction,
(2) it covers only the territory of a municipality,
(3) it has only a marginal effect on intra-Community trade,
(4) the protection of public health is cited to justify the exclusive concession.
72. I shall consider those four points in turn.
73. Even though it applies without distinction and affects national products in the same way as products imported from other Member States, a national measure is contrary to Article 30 where it has a restrictive effect on trade between Member States, in particular where importations of products from other Member States are made more expensive and more difficult. (58)
74. The prohibition affecting meat importers in a municipality forces them to use a carrier for transport that they could carry out themselves, which is liable to cause an increase in price. In practice, it may even lead to importers carrying out transport operations themselves whilst paying a "toll" without any consideration being given by the exclusive concession-holder. The importer therefore has to bear the cost of transport together with the concession holder' s remuneration.
75. Whilst not directly affecting imports, such rules are liable to limit their volume by increasing the cost of transport. The result therefore is market rigidity representing an obstacle to trade falling within the scope of Article 30.
76. Rules which apply in only part of the territory of a Member State may be contrary to Article 30.
77. That principle was stressed in the judgment in Aragonesa de Publicidad Exterior et Publivía: (59)
"when a national measure has limited territorial scope because it applies only to a part of the national territory, it cannot escape being categorized as discriminatory or protective for the purposes of the rules on the free movement of goods on the ground that it affects both the sale of products from other parts of the national territory and the sale of products imported from other Member States. For such a measure to be characterized as discriminatory or protective, it is not necessary for it to have the effect of favouring national products as a whole or of placing only imported products at a disadvantage and not national products." (60)
78. Moreover, it would be paradoxical to allow rules restricting trade where they only applied with territorial scope on a municipal or regional level, whereas they were prohibited on a national level. What would happen if all the regions or municipalities in a Member State adopted the same rules?
79. Rules in the transport sector have a very direct effect on the marketing of products in the Community. No restriction on trade, even if it is minimal, can be welcomed in this sector. The de minimis rule should not be applied here. It is apparent from the Prantl (61) judgment that it is not necessary that "those measures have an appreciable effect on intra-Community trade". The Court held in Yves Rocher (62) that save for rules having purely hypothetical effects on intra-Community trade, it is undisputed that Article 30 of the Treaty does not distinguish between measures which may be categorized as measures having an equivalent effect to a quantitative restriction according to the level of the effects which they have on trade within the Community. (63)
80. According to CO.GE.SE.MA, (64) the object of the concession granted to it by the municipal authority was solely to protect citizens' health.
81. The existence of such an object and, therefore, the need for such an exclusive concession may be questioned since, according to the court making the reference, it is permissible for those operations to be carried out by the importer himself, subject to him paying the undertaking holding the concession a sum which in that case does not relate to services performed.
82. Furthermore no particular health situation has been cited to justify an importer being prohibited from carrying out himself loading and unloading operations of fresh meat in the municipality. On the contrary there are legitimate doubts as to the desirability, from the point of view of public health requirements, of a measure requiring cargoes to be transferred.
83. A concession which solely has the effect of burdening importing undertakings with an additional pecuniary charge, without any benefit for the protection of health, cannot be justified by an imperative requirement.
84. Moreover, if fresh meat is indeed to be marketed in a municipality under conditions compatible with the protection of human health, the prohibition at issue in any event goes beyond what is strictly necessary in order to attain that objective. (65)
85. The further question arises as to whether the prohibition on an importer of goods into the municipality from carrying out himself the loading or unloading of those goods in that municipality is contrary to Article 52 of the Treaty.
86. Whereas concessions granted by private undertakings to other private undertakings, such as beer-supply contracts, (66) undoubtedly fall under the competition rules, a concession granted by a public authority, in this case a municipal administration, falls in certain circumstances within the scope of Article 52.
87. The compatibility of such a concession with that article may reasonably be questioned. However, it is necessary here to concentrate on the factual circumstances and to ascertain whether a sufficient foreign element has been substantiated so as to enable that article to be relied upon.
88. The action before the national court is between an Italian undertaking importing meat from northern Europe and the concession-holder (CO.GE.SE.MA).
89. Having regard to its nationality, if the importer wished to establish itself as a carrier in La Spezia, that would be a purely national situation.
90. Article 52 can be invoked only where an undertaking which is a national of another Member State is altogether denied the right to pursue the activity carried out by the concession-holder in the municipality which granted the concession. However, that is not the situation before the Court.
91. I am therefore of the opinion that, in the absence of any foreign element, Article 52 does not apply in this case.
92. Is Article 59 applicable?
93. It should be pointed out that the services subject to a restriction in this case relate to the field of transport and therefore fall within the scope of Article 61 of the Treaty and not Article 59.
94. However, freedom to provide services is not relied upon in this instance by the provider of services. The plaintiffs in the main action are not nationals of other Member States who wish to be able to offer in the municipality the transport services which are the subject of the concession. At the very most they wish to be able to perform that service themselves. For the reasons mentioned above, such a situation is not covered by Community law.
95. Article 61 could be relied upon only in so far as the Italian undertakings importing meat wished, as recipients of services, to use in the municipality granting the concession the services of a carrier who is a national of another Member State. By virtue of the existence of an exclusive concession, the undertakings in question no longer have a free choice as to the provider of services.
96. The freedom to provide services in the transport sector presupposes the elimination of any discrimination against a provider of services by reason of his nationality or the fact that he is established in a Member State other than the one in which the service is provided.
97. As is well known, freedom in this sector has not yet been fully achieved. A transitional cabotage system has been laid down pending adoption of permanent rules.
98. In its judgment of 22 May 1985 in the Parliament v Council case, (67) the Court noted the Council' s failure to ensure the freedom of services in the international transport sector and to lay down the conditions for the admission of non-resident carriers to domestic carriage within a Member State.
99. In its judgment of 7 November 1991 in the Pinaud Wieger case, (68) the Court accepted that the liberalization of road transport cabotage activities could be implemented gradually.
100. It follows that carriers residing in another Member State, and authorized for the activity of carrier in that State alone, cannot rely upon Articles 59, 60 and 61 in order to gain access to those activities in another Member State.
101. Specifically, Council Regulation (EEC) No 4059/89 of 21 December 1989 laying down the conditions under which non-resident carriers may operate national road haulage service within a Member State (69) allows Community carriers of goods by road to carry out domestic carriage of goods in another State only within the framework of a Community cabotage quota.
102. Accordingly, Article 61 does not create any right in favour of an importing undertaking which may be directly relied on.
103. I therefore propose that the Court should rule as follows:
(1) (a) Council Directive 64/433/EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat, amended by Council Directive 83/90/EEC of 7 February 1983 should be interpreted as precluding a Member State' s rules and national practices from requiring that imported fresh meat, which has already undergone health checks required by the directive in the Member State of export, be subject to veterinary inspections and systematic health checks in the importing State, the cost of which is charged to importers (1) at the time of transit in the municipality and/or (2) at the time of entry into the municipality of destination.
(b) Such a prohibition can be directly relied upon by an individual as against a body which, whatever its legal form, the national court considers to be entrusted, under a public authority measure and under the public authority' s control, with a public interest service and which, for that purpose, has exceptional powers going beyond the rules applying in relations between individuals.
(2) In view of the answer given to the first two questions, the third is devoid of purpose.
(3) Both Articles 9 and 12 of the EEC Treaty and Directive 64/433/EEC preclude the levying of charges for systematic health inspections of fresh meat from another Member State carried out by the veterinary officers in the municipalities of transit or destination of the importing Member State.
(4) (a) Article 30 of the EEC Treaty prohibits a domestic measure or administrative practice prohibiting an undertaking which imports goods into the municipality from there carrying out itself loading, unloading and delivery of such goods or authorizing it to carry out such operations subject to paying charges, without consideration, to a municipal concession-holder.
(b) Article 52 of the Treaty does not apply to a purely domestic situation in a Member State such as where a national of that State is disputing the existence of a concession granted on its territory by a municipality of that State.
(c) Article 61 of the Treaty does not establish rights which an individual can rely upon directly.
(*) Original language: French.
(1) ° GURI No 36 of 12 February 1929.
(2) ° Commission observations, p. 3 and 4 of the French translation.
(3) ° Official Bulletin No 15 of the Liguria Region, 6 September 1989, Part 1, p. 1439.
(4) ° Unless the charge is paid in advance the USL apparently refuses to carry out the health inspection. See Circular No 27303/3062 of the Veterinary Department of the region of Liguria of 29 November 1990 annexed to the Commission' s observations.
(5) ° OJ, English Special Edition 1963-1963, p. 185.
(6) ° Directive amending Directive 64/433/EEC on health problems affecting intra-Community trade in fresh meat (OJ 1983 L 59, p. 10).
(7) ° Directive concerning veterinary checks in intra-Community trade with a view to completion of the internal market (OJ 1989 L 395, p. 13).
(8) ° Directive concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animal and products with a view to the completion of the internal market (OJ 1990 L 224, p. 29).
(9) ° Their full text appears in the Report for the Hearing, point 14.
(10) ° Observations of the Italian government in Case C-318/91 and C-319/91, p. 2 of the French translation.
(11) ° Case C-43/71 [1971] ECR 1039.
(12) ° Point 5, emphasis added. The same submission was raised in Case 84/71 Marimex [1972] ECR 89 by the Italian government which at the hearing deferred to the judgment of the Court.
(13) ° See Case C-338/85 Pardini [1988] ECR 2041, point 8. See also my Opinion in Case C-24/98 Corbiau [1993] ECR I-1277, at points 8 to 10.
(14) ° P. 4 of the French translation.
(15) ° See Article 22.
(16) ° See Article 26.
(17) ° Ligur Carni request the repayment of charges paid between January 1990 and June 1991. Genova Carni request the repayment of charges paid between February 1989 and September 1991.
(18) ° As to the legal effects of directives before the expiry of the period for implementation, see Case 148/78 Ratti [1979] ECR 1629, at para. 43.
(19) ° See, in particular, the third recital in the preamble to Directive 64/433/EEC and first recital in the preamble to Directive 83/90/EEC.
(20) ° See judgment in Joined Cases 2, 3 and 4/82 Delhaize [1983] ECR 2973, para. 14.
(21) ° See judgment in Case 35/76 Simmenthal [1976] ECR 1871, para. 34.
(22) ° Article 3(g) of Directive 64/433/EEC.
(23) ° See sixth recital in the preamble to Directive 64/433/EEC.
(24) ° Article 10(1) as amended by Article 1 of Directive 83/90/EEC.
(25) ° Cited above in footnote 21.
(26) ° Paragraph 19.
(27) ° As amended by Article 1 of Directive 83/90/EEC.
(28) ° See paragraph 20 of Simmenthal and paragraphs 12 and 13 of Delhaize.
(29) ° Council Directive 83/643/EEC of 1 December 1983 on the formalities in respect of the carriage of goods between Member States (OJ 1983 L 359, p. 8).
(30) ° See Article 3.
(31) ° Emphasis added; see also Article 2 of the Directive.
(32) ° Article 2.
(33) ° See paragraphs 14 and 17 of the Delhaize judgment: the inspections carried out in the exporting country also relate to the transport of meat and poultry and, consequently, extend to their state of preservation throughout transportation, including therefore the time at which a frontier is crossed (paragraph 17, emphasis added).
(34) ° See wording of the second question.
(35) ° GURI No 319 of 18 December 1981.
(36) ° GURI No 68 of 20 March 1985, p. 2153, amended by Decree of the President of the Republic No 312/91, GURI No 233 of 4 October 1991.
(37) ° Case 103/88 Fratelli Costanzo [1989] ECR 1839, para. 29, emphasis added.
(38) ° Case 102/79 Commission v Belgium [1980] ECR 1473, para. 11.
(39) ° See Case 152/84 Marshall [1986] ECR 723, para. 48, and Case C-221/88 ECSC v Busseni [1990] ECR I-495, para. 23.
(40) ° Case C-188/89 Foster [1990] ECR I-3313, para. 20.
(41) ° Cited in footnote 40.
(42) ° See Foster, paragraph 15 and Marshall, paragraph 50.
(43) ° See Delhaize, paragraph 11.
(44) ° Case 190/87 Oberkreisdirecktor des Kreises Borken and Another v Moorman [1988] ECR 4689.
(45) ° Paragraphs 10 and 11.
(46) ° Document 5 annexed to Ligur Carni' s observations.
(47) ° Paragraph 22.
(48) ° See Case 46/76 Bauhuis [1977] ECR 5, para. 10.
(49) ° See Case 251/78 Denkavit [1979] ECR 3369, para. 30.
(50) ° Case 163/90 Legros [1992] ECR I-4625, para. 16.
(51) ° See paragraph 10 of the judgment in Case 87/75 Bresciani [1976] ECR 129.
(52) ° Ibidem, paragraph 10.
(53) ° I keep to the wording of the question submitted for preliminary ruling and I shall not express a view on whether CO.GE.SE.MA actually levied charges for services which were neither sought nor rendered, even though there was some discussion on that point. That aspect falls to be assessed by the national judge alone.
(54) ° Case C-179/90 [1991] ECR I-5889.
(55) ° Ibidem, see paragraph 15.
(56) ° See Case 30/87 Bodson [1988] ECR 2479.
(57) ° Denkavit, paragraph 3, cited in footnote 49. See also Joined Cases 314-316/81 and 83/82 Waterkeyn [1982] ECR 4337 and Merci, paragraph 23, cited in footnote 54.
(58) ° See in this respect Merci, paragraph 22, cited in footnote 54.
(59) ° Joined Cases C-1/90 and C-176/90 [1991] ECR I-4151.
(60) ° Paragraph 24.
(61) ° Case 16/83, [1984] ECR 1299.
(62) ° Case C-126/91 [1993] ECR I-2361.
(63) ° Paragraph 21.
(64) ° See its observations, at p. 3 of the French translation.
(65) ° See on that point, the Commission' s observations, p. 17 of the French translation.
(66) ° See Case 23/76 Brasserie de Haecht [1967] ECR 526 and Case C-234/89 Delimitis [1991] ECR I-935.
(67) ° Case 13/83 [1985] ECR 1513.
(68) ° Case C-17/90 [1991] ECR I-5253, para. 12.
(69) ° OJ 1989 L 390, p. 3. The regulation was annulled by the Court' s judgment of 16 July 1992 in Case C-65/90 Parliament v Council [1992] ECR I-4593. Its effects are, however, maintained until the Council, after due consultation with the Parliament, has adopted a new regulation in this field.