61982CJ0161_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 161/82
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, RENE-CHRISTIAN BERAUD, ACTING AS AGENT, ASSISTED BY HANS PETER HARTVIG, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG
AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V
FRENCH REPUBLIC, REPRESENTED BY GILBERT GUILLAUME, DIRECTOR OF LEGAL AFFAIRS IN THE MINISTRY OF FOREIGN RELATIONS, AND NOEL MUSEUX, DEPUTY DIRECTOR OF LEGAL AFFAIRS IN THE MINISTRY OF FOREIGN RELATIONS, ACTING AS AGENTS, AND ALEXANDRE CARNELUTTI, SECRETARY FOR FOREIGN AFFAIRS, ACTING AS DEPUTY AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY, 2 RUE BERTHOLET,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT THE FRENCH REPUBLIC, BY RESTRICTING ACCESS TO IMPORTS OF SEMEN INTENDED FOR THE ARTIFICIAL INSEMINATION OF ANIMALS TO A SPECIFIC CATEGORY OF PRODUCERS AND BY ENABLING INSEMINATION CENTRES TO CARRY ON DISCRIMINATORY PRACTICES IN RELATION TO IMPORTED SEMEN, HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 37 OF THE EEC TREATY AND ARTICLE 2 OF COUNCIL DIRECTIVE NO 77/504 OF 25 JULY 1977 ON PURE-BRED ANIMALS OF THE BOVINE SPECIES,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 27 MAY 1982 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT THE FRENCH REPUBLIC, BY RESTRICTING IMPORTS OF SEMEN INTENDED FOR THE ARTIFICIAL INSEMINATION OF ANIMALS TO A SPECIFIC CATEGORY OF PRODUCERS AND BY ENABLING INSEMINATION CENTRES TO CARRY OUT DISCRIMINATORY PRACTICES IN RELATION TO IMPORTED SEMEN, HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .
2 IN THE COMMISSION ' S VIEW THE PROVISIONS APPLICABLE IN FRANCE LAID DOWN BY LAWS OR REGULATIONS IN RELATION TO THE ARTIFICIAL INSEMINATION OF ANIMALS AND THE PRACTICE FOLLOWED BY THE FRENCH AUTHORITIES AS REGARDS CONDITIONS FOR THE IMPORTATION OF SEMEN ARE CONTRARY TO ARTICLE 37 OF THE TREATY AND ARTICLE 2 OF COUNCIL DIRECTIVE NO 77/504 OF 25 JULY 1977 ON PURE-BRED BREEDING ANIMALS OF THE BOVINE SPECIES ( OFFICIAL JOURNAL L 206, P . 8 ).
3 THE ISSUE BETWEEN THE PARTIES, BOTH DURING THE PROCEEDINGS PRIOR TO THE ACTION BROUGHT BEFORE THE COURT AND IN THIS ACTION HAS RELATED SOLELY TO THE FRENCH SYSTEM APPLICABLE TO THE ARTIFICIAL INSEMINATION OF CATTLE . THE DIRECTIVE CITED BY THE COMMISSION RELATES ONLY TO PURE-BRED BREEDING ANIMALS OF THE BOVINE SPECIES AND THE FACTS ON WHICH THE COMMISSION BASES ITS ACTION HAVE ARISEN ON THE IMPORT OF BOVINE SEMEN . IN THOSE CIRCUMSTANCES THE COURT CONSIDERS THAT THE ACTION IS CONCERNED WITH IMPORT RESTRICTIONS AND DISCRIMINATORY PRACTICES WITH REGARD TO SEMEN INTENDED FOR THE ARTIFICIAL INSEMINATION OF ANIMALS OF THE BOVINE SPECIES ONLY .
4 THE FRENCH RULES APPLICABLE TO THE ARTIFICIAL INSEMINATION OF SUCH ANIMALS DEPENDS IN PARTICULAR ON LAW NO 66/1005 OF 28 DECEMBER 1966 ON STOCK-BREEDING ( JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE 1966, P . 11619 ). ACCORDING TO THE FIRST PARAGRAPH OF ARTICLE 5 OF THAT LAW A LICENCE IS NECESSARY FOR THE MANAGEMENT OF INSEMINATION CENTRES . THE PROVISION IN QUESTION MAKES A DISTINCTION BETWEEN CENTRES RESPONSIBLE FOR PRODUCTION OF SEMEN AND THOSE RESPONSIBLE FOR INSEMINATION, BUT IT DOES NOT PROHIBIT ONE AND THE SAME CENTRE FROM ENGAGING IN BOTH OPERATIONS, PRODUCTION INVOLVES MAINTENANCE OF A CATTLE STATION FOR MALE-BREEDING ANIMALS, THE TESTING OF THE BREEDING ANIMALS, THE COLLECTION, PACKING, PRESERVATION AND SALE OF THE SEMEN . INSEMINATION INVOLVES THE INSEMINATION OF FEMALES OR SUPERVISING THAT OPERATION WHEN IT IS EFFECTED BY BREEDERS QUALIFIED TO PERFORM IT .
5 THE AFORESAID LAW OF 1966 MOREOVER PROVIDES THAT EACH INSEMINATION CENTRE SHALL SERVE AN AREA WITHIN WHICH IT ALONE IS AUTHORIZED TO ACT ( ARTICLE 5, FOURTH PARAGRAPH ); IF SUCH AN AREA IS ALLOTTED TO AN AGRICULTURAL CO-OPERATIVE IT IS BOUND TO AFFORD FACILITIES TO BREEDERS WHO ARE NOT MEMBERS . BREEDERS ESTABLISHED IN THE AREA OF AN INSEMINATION CENTRE MAY ASK IT TO SUPPLY THEM WITH SEMEN FROM PRODUCTION CENTRES OF THEIR CHOICE ( ARTICLE 5, FIFTH PARAGRAPH ); THE ADDITIONAL COSTS RESULTING FROM SUCH CHOICE ARE TO BE BORNE BY THE USER . INSEMINATION CENTRES WHICH ARE NOT AT THE SAME TIME PRODUCTION CENTRES ARE NORMALLY SUPPLIED WITH BREEDING ANIMALS OR SEMEN BY THE PRODUCTION CENTRE OR CENTRES WITH WHICH THEY HAVE SIGNED A SUPPLY CONTRACT .
6 THE IMPORT OF SEMEN REQUIRES THE GRANT ON EACH OCCASION OF A LICENCE FROM THE MINISTER FOR AGRICULTURE . APPLICATION FOR A LICENCE MUST BE ACCOMPANIED BY A PRO FORMA INVOICE MENTIONING THE QUANTITIES OF DOSES PER BREEDING ANIMAL, A CERTIFICATE OF THE BLOOD GROUP OF THE ANIMALS WHICH HAVE PRODUCED THE SEMEN, GIVEN BY AN APPROVED LABORATORY IN THE COUNTRY OF ORIGIN, AND THE OFFICIAL RESULTS OF CHECKS ON THE PERFORMANCE OF THE ANIMALS .
7 IN THIS ACTION THE COMMISSION DOES NOT CHALLENGE EITHER THE RIGHT OF THE FRENCH AUTHORITIES TO REQUIRE IMPORT LICENCES FOR THE IMPORTATION OF SEMEN INTENDED FOR THE ARTIFICIAL INSEMINATION OF CATTLE OR TO REQUIRE THAT IMPORTED SEMEN SHALL OBSERVE THE ZOOTECHNICAL RULES APPLICABLE IN FRANCE . ITS ACTION IS CONCERNED SOLELY WITH THE FACT THAT THE FRENCH RULES AND THE ADMINISTRATIVE PRACTICE FOLLOWED BY THE FRENCH AUTHORITIES IN RELATION TO THE GRANT OF IMPORT LICENCES LEADS TO THE RESTRICTION OF ACCESS TO IMPORTS OF SEMEN TO A PARTICULAR CATEGORY OF PRODUCERS AND TO THE OPPORTUNITY FOR INSEMINATION CENTRES TO CARRY ON DISCRIMINATORY PRACTICES .
8 IN THAT RESPECT THE COMMISSION ALLEGES THAT IMPORT LICENCES ARE GRANTED EXCLUSIVELY TO TRADERS WHO, ACCORDING TO THE FRENCH AUTHORITIES, ARE CAPABLE OF USING THE SEMEN IN ACCORDANCE WITH THE NATIONAL RULES APPLICABLE OR WHO ACT ON BEHALF OF A BODY STATISFYING THAT CONDITION . IT FOLLOWS THAT, GENERALLY SPEAKING, IMPORT LICENCES ARE ISSUED ONLY TO PRODUCTION OR INSEMINATION CENTRES AND TO THE NATIONAL UNION OF SUCH CENTRES, THE UNION NATIONALE DE COOPERATION D ' ELEVAGE ET D ' INSEMINATION ARTIFICIELLE ( NATIONAL UNION OF STOCK-BREEDING AND ARTIFICIAL INSEMINATION CO-OPERATIVES ) ( HEREINAFTER REFERRED TO AS ' ' THE NATIONAL UNION ' ' ) AND ONE COMMERCIAL COMPANY, BOVEC .
9 ACCORDING TO THE COMMISSION SUCH A PRACTICE IS CONTRARY TO ARTICLE 37 OF THE TREATY INASMUCH AS IT RESERVES THE IMPORT AND MARKETING OF IMPORTED SEMEN TO BODIES PRODUCING AND MARKETING SEMEN PRODUCED WITHIN THE NATIONAL TERRITORY, WHICH LEADS TO A GUARANTEE OF THE SALE OF NATIONAL PRODUCTS . THAT PRACTICE, IT IS CLAIMED, ALSO INFRINGES ARTICLE 2 OF DIRECTIVE NO 77/504 ACCORDING TO WHICH INTRA-COMMUNITY TRADE IN THE SEMEN OF PURE-BRED BREEDING ANIMALS OF THE BOVINE SPECIES MAY NOT BE RESTRICTED OR IMPEDED ON ZOOTECHNICAL GROUNDS .
10 THE FRENCH GOVERNMENT STATES FIRST OF ALL THAT THE REGIONAL MONOPOLY OF INSEMINATION CENTRES RELATES TO THE PROVISION OF SERVICES AND DOES NOT AFFECT THE IMPORT AND MARKETING OF SEMEN . EVEN ASSUMING THAT ALL SUCH REGIONAL MONOPOLIES CONSTITUTE A NATIONAL MONOPOLY, SUCH A MONOPOLY IS IN NO WAY OF A COMMERCIAL CHARACTER WITHIN THE MEANING OF ARTICLE 37 OF THE TREATY .
11 AS TO THE SYSTEM APPLICABLE TO IMPORTS OF SEMEN, THE FRENCH GOVERNMENT RECOGNIZES THAT A LICENCE IS GRANTED ONLY ON CONDITION THAT THE IMPORTER CAN USE THE SEMEN IN ACCORDANCE WITH THE LAW OR ACT ON BEHALF OF A BODY SATISFYING THAT CONDITION . IN THAT RESPECT IT IS SUFFICIENT FOR THE IMPORTER TO BE ABLE TO SPECIFY THE INSEMINATION CENTRE OR THE APPROVED INSEMINATOR WHOM HE HAS INSTRUCTED TO CARRY OUT THE INSEMINATION .
12 ACCORDING TO THE FRENCH GOVERNMENT IT IS WRONG TO THINK THAT ONLY INSEMINATION CENTRES MAY IMPORT SEMEN AND THAT TO OBTAIN IMPORTED SEMEN A BREEDER MUST APPLY TO THE INSEMINATION CENTRE IN HIS DISTRICT . THERE IS NOTHING IN THE FRENCH LAW TO PREVENT A PARTICULAR BREEDER OR A PRODUCTION OR INSEMINATION CENTRE FROM APPLYING DIRECTLY TO A FOREIGN CENTRE TO BUY SEMEN FOR HIM . NEVERTHELESS THAT OPPORTUNITY IS LITTLE USED BY REASON OF THE PROHIBITED COST OF IMPORTING SEMEN IN SMALL QUANTITIES .
13 THE FRENCH GOVERNMENT EMPHASIZES THAT THE LAW OF 1966 ON STOCK-BREEDING AND THE IMPLEMENTING LEGISLATION IS INTENDED TO IMPROVE THE QUALITY OF AND CONDITIONS FOR STOCK FARMING . THAT OBJECTIVE INVOLVES A RIGOROUS SUPERVISION OF ARTIFICIAL INSEMINATION, WHICH IN TURN HAS A CERTAIN REPERCUSSION ON THE CONDITIONS FOR THE GRANT OF IMPORT LICENCES FOR SEMEN INTENDED FOR ARTIFICIAL INSEMINATION .
14 IT MUST BE OBSERVED FIRST OF ALL THAT THERE IS NOTHING IN THE DOCUMENTS IN THE FILE OR IN THE ARGUMENTS ADDRESSED TO THE COURT TO SHOW THAT THE FRENCH LAWS OR REGULATIONS ESTABLISH A NATIONAL MONOPOLY IN THE MARKETING OR IMPORTATION OF SEMEN INTENDED FOR THE ARTIFICIAL INSEMINATION OF CATTLE . FOR THE COMMISSION TO BE ABLE TO RELY ON ARTICLE 37 OF THE TREATY IT WOULD THEREFORE BE NECESSARY PURSUANT TO THE SECOND SUBPARAGRAPH OF ARTICLE 37 ( 1 ) FOR THE COMMISSION TO ESTABLISH THE EXISTENCE OF A BODY THROUGH WHICH THE FRENCH STATE, IN LAW OR IN FACT, CONTROLS, DIRECTS OR APPRECIABLY INFLUENCES IMPORTS OF SEMEN FROM OTHER MEMBER STATES EITHER DIRECTLY OR INDIRECTLY .
15 THE COMMISSION ADMITS THAT THE SOLE FACT THAT THE FRENCH REPUBLIC SUBJECTS THE IMPORT OF SEMEN TO A LICENSING SYSTEM IS NOT SUCH AS TO ESTABLISH THE EXISTENCE OF A SITUATION IN FACT OR IN LAW SUCH AS DESCRIBED IN THAT PROVISION . IT HAS NEVERTHELESS MAINTAINED THAT THE PRACTICE FOLLOWED BY THE FRENCH AUTHORITIES LEADS TO THAT RESULT .
16 IT IS APPARENT FROM THE STATISTICS SUBMITTED BY THE FRENCH GOVERNMENT AND NOT CHALLENGED BY THE COMMISSION THAT IN 1980 AND 1981 MORE THAN HALF THE FOREIGN BOVINE SEMEN PURCHASED IN FRANCE WAS IMPORTED BY THE NATIONAL UNION AND THE REST BY INSEMINATION CENTRES, BY A BRANCH OF THE NATIONAL UNION AND BY BOVEC . IN 1981 MORE THAN 75% OF IMPORTED SEMEN CAME FROM NON-MEMBER COUNTRIES AND IN PARTICULAR FROM THE UNITED STATES . IN THE SAME YEAR ALMOST 20% OF DOSES OF IMPORTED SEMEN WERE COVERED BY IMPORT LICENCES GRANTED TO BOVEC ; IN 1980 THE FIGURE ACTUALLY REACHED 20% .
17 IN THE COMMISSION ' S VIEW THOSE FIGURES CONFIRM THAT THE FRENCH AUTHORITIES BY THE INDIRECT MEANS OF AN ESTABLISHED ADMINISTRATIVE PRACTICE IN RELATION TO THE GRANT OF IMPORT LICENCES DE FACTO CONFERRED AN EXCLUSIVE RIGHT OF IMPORT ON PRODUCTION OR INSEMINATION CENTRES OR BODIES ACTING ON THEIR BEHALF OR IN CONJUNCTION WITH THEM . THOSE BODIES ARE INTER ALIA, IT CLAIMS, THE NATIONAL UNION AND BOVEC .
18 THE FRENCH GOVERNMENT HAS HOWEVER MAINTAINED THAT BOVEC IS A PRIVATE UNDERTAKING AND SUBSIDIARY OF AN AMERICAN COMPANY, AND THAT INFORMATION HAS NOT BEEN CONTRADICTED BY THE COMMISSION . IT FOLLOWS THAT THE NUMBER OF IMPORTERS ACTIVE IN THE MARKET IN SEMEN INTENDED FOR THE ARTIFICIAL INSEMINATION OF CATTLE IS NOT CONFINED TO INSEMINATION CENTRES AND TO THE NATIONAL UNION SINCE A PRIVATE COMMERCIAL UNDERTAKING WHICH IS INDEPENDENT OF THEM IS ALSO AN IMPORTER . IN THOSE CIRCUMSTANCES THE FACTS DO NOT ALLOW THE CONCLUSION TO BE DRAWN THAT ALL THE INSEMINATION CENTRES AND THE NATIONAL UNION CONSTITUTE A ' ' BODY ' '
THROUGH WHICH THE FRENCH REPUBLIC CONTROLS, DIRECTS AND APPRECIABLY INFLUENCES IMPORTS BETWEEN THE MEMBER STATES .
19 SINCE THE COMMISSION HAS RELIED EXCLUSIVELY ON THE PRACTICE FOLLOWED BY THE MINISTER FOR AGRICULTURE IN RELATION TO THE GRANT OF IMPORT LICENCES TO CLAIM
THAT ARTICLE 37 OF THE TREATY HAS BEEN INFRINGED, IT FOLLOWS FROM THE AFOREGOING CONSIDERATIONS THAT SUCH INFRINGEMENT HAS NOT BEEN ESTABLISHED .
20 THE SECOND CLAIM IN THE ACTION IS BASED ON ARTICLE 2 OF DIRECTIVE NO 77/504 WHICH PROVIDES THAT THE MEMBER STATES SHALL ENSURE THAT INTRA-COMMUNITY TRADE IN THE SEMEN AND EMBRYOS OF PURE-BRED BREEDING ANIMALS OF THE BOVINE SPECIES SHALL NOT BE PROHIBITED, RESTRICTED OR IMPEDED ON ZOOTECHNICAL GROUNDS .
21 THE FRENCH GOVERNMENT HAS CITED ARTICLE 3 OF THE DIRECTIVE TO REFUTE THAT SUBMISSION, ACCORDING TO THAT PROVISION, UNTIL THE ENTRY INTO FORCE OF COMMUNITY PROVISIONS FOR THE APPROVAL OF PURE-BRED BREEDING ANIMALS OF THE BOVINE SPECIES FOR BREEDING, THE APPROVAL OF BULLS TO BE USED FOR ARTIFICIAL INSEMINATION AS WELL AS THE USE OF SEMEN AND EMBRYOS ARE TO REMAIN SUBJECT TO NATIONAL LAW, ON THE UNDERSTANDING THAT THAT LAW MAY NOT BE MORE RESTRICTIVE THAN THAT APPLICABLE TO PURE-BRED BREEDING ANIMALS OF THE BOVINE SPECIES, SEMEN AND EMBRYOS IN THE MEMBER STATE OF DESTINATION .
22 IT MUST BE OBSERVED THAT THE COMMISSION ' S SUBMISSION, PLACED IN THE CONTEXT OF THE AFORESAID PROVISIONS OF ARTICLES 2 AND 3 OF THE DIRECTIVE, AMOUNT TO ARGUING THAT THE RESTRICTIONS OR IMPEDIMENTS TO INTRA-COMMUNITY TRADE IN SEMEN FOR ZOOTECHNICAL REASONS, AS PROHIBITED BY ARTICLE 2, IMPLY THE APPLICATION BY A MEMBER STATE TO IMPORTED SEMEN OF THE ZOOTECHNICAL RULES PROVIDED BY ITS NATIONAL LAW FOR THE USE OF SEMEN WITHIN ITS TERRITORY .
23 THAT VIEW IS NOT COMPATIBLE WITH THE PROVISIONS OF ARTICLE 3, NAMELY THAT THE USE OF SEMEN IS TO REMAIN SUBJECT TO NATIONAL LAW AND CONFLICTS IN PARTICULAR WITH THE PROVISION AT THE END OF THAT ARTICLE TO THE EFFECT THAT A MEMBER STATE MAY NOT APPLY TO SEMEN IMPORTED FROM ANOTHER MEMBER STATE A STRICTER SYSTEM THAN THAT APPLICABLE TO SPERM PRODUCED AND USED IN ITS OWN TERRITORY . IT FOLLOWS THAT THE DIRECTIVE ACCEPTS THE DIVERSITY OF THE EXISTING RULES AND IN THE EVENT OF INTRA-COMMUNITY TRADE ALLOWS THE RULES APPLICABLE TO THE USE OF SEMEN IN THE STATE IN WHICH THE SEMEN IS TO BE USED TO PREVAIL .
24 AS A RESULT THE FRENCH REPUBLIC HAS NOT INFRINGED DIRECTIVE NO 77/504 BY SUBJECTING THE GRANT OF IMPORT LICENCES FOR SEMEN INTENDED FOR THE ARTIFICIAL INSEMINATION OF CATTLE TO THE ZOOTECHNICAL REQUIREMENTS PROVIDED FOR BY FRENCH LEGISLATION AND APPLICABLE WITHOUT DISTINCTION TO IMPORTED SEMEN AND THAT PRODUCED IN THE NATIONAL TERRITORY .
25 IT FOLLOWS THAT THE ACTION MUST BE DISMISSED .
Decision on costs
COSTS
26 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION ;
2.ORDERS THE APPLICANT TO PAY THE COSTS .