OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 20 JUNE 1979

My Lords,

In this action, which is brought by the Commission under Article 169 of the EEC Treaty against the Federal Republic of Germany, the Commission seeks a declaration that the Federal Republic is in breach of Articles 30 and 36 of the Treaty in that it has forbidden the importation from other Member States of meat products manufactured in any of those States from meat originating in a different Member State (even from meat originating in the Federal Republic itself).

Paragraph 12c of the German ‘Fleischbeschaugesetz’ (or ‘FIG’) makes it a condition of the importation of any meat product into the Federal Republic that that product should have been manufactured in a processing establishment (approved by the Federal Minister concerned) situate in the country in which the animals from whose meat it is made have been slaughtered. That paragraph, in conjunction with provisions contained in relevant subordinate legislation (the ‘Mindestanforderungen-Verordnung’), requires any consignment of a meat product imported into the Federal Republic to be accompanied by an official certificate from which compliance with that condition can be checked.

It is common ground that the imposition of that condition constitutes a measure having equivalent effect to a quantitative restriction on imports, prima facie forbidden by Article 30 of the Treaty. The Federal Republic contends however that it is a restriction justified on grounds of ‘the protection of health and life of humans’ and so exempted by Article 36 from the prohibition in Article 30. The Commission denies that, and further contends that the restriction constitutes ‘a means of arbitrary discrimination or a disguised restriction on trade between Member States’.

As a matter of history this case appears to have had its origin in a complaint made to the Commission by a Dutch manufacturer of pork-tongue sausages who used among his ingredients pork tongues imported from the USA. That circumstance led the Federal Republic in its arguments before us, to put the accent, on the one hand, on the need to protect consumers against the risk of eating meat products rendered unwholesome by the inclusion in them of meat imported from outside the Community (we were told for instance, on behalf of the Government of the Federal Republic, that in the USA pork tongues are regarded as waste, so that they are subject to no public health controls there) and, on the other hand, on the particular dangers arising in the case of pork products because of the possible presence in them of trichinae.

The Commission however made it clear that, whatever may originally have triggered off its enquiry into the effects of paragraph 12c of the FIG,

(1) the scope of the present proceedings was limited to the question of the compatability with the Treaty of paragraph 12c in so far as it affects meat products made from meat of animals slaughtered in the Community (in other words, the Commission does not in this action seek a declaration extending to the effect of paragraph 12c on trade between Member States in meat products made wholly or partly from meat imported from outside the Community — a matter as to which the Commission still has, it told us, an open mind); but that

(2) the scope of the proceedings was not limited to pork products: it extended to all meat products trade in which could be affected by paragraph 12c.

During the course of the argument we were referred to a number of directives of the Council.

The first was Council Directive No 64/433/EEC of 26 June 1964‘on health problems affecting intra-Community trade in fresh meat’. This Directive has been repeatedly amended and our attention was drawn to a useful, albeit not authoritative, consolidated text of it and of the amendments to it published bv the Commission (Official Journal C 189 of 20 August 1975, p. 31).

The Commission pointed in particular to Articles 3 and 4 of that Directive, which, among other things, provide for the approval and supervision by the competent central authority of each Member State of slaughterhouses and cutting plants situated on its territory; require each Member State to ensure that only meat from such approved and supervised slaughterhouses and cutting plants is sent from its territory to that of any other Member State: lay down in elaborate detail, by reference to the several Chapters of Annex I to the Directive, the rules that must be observed in approved slaughterhouses and cutting plants, and in the storage, packaging and transport of meat; and similarly prescribe in detail the manner in which the meat is to be marked and the form of health certificate that must accompany it during transportation from one Member State to another.

The Government of the Federal Republic, for its part, pointed to Article 6, providing that the Directive should not ‘affect Member States’ provisions' concerning certain matters, including the ‘detection of the presence of trichinae in fresh pigmeat’.

The second directive to which we were referred was Council Directive No 72/462/EEC of 12 December 1972‘on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries’. We were reminded, on behalf of the Government of the Federal Republic, that that Directive was considered by the Court in Case 70/77 Simmenthal v Amministrazione delle Finanze dello Stato [1978] ECR 1453, where the Court found that, owing to the failure of the Community authorities to take the necessary measures for its implementation, the Directive remained for the most part a dead letter. The same conclusion was reached by the Court in Case 137/77 Frankfurt v Neumann [1978] ECR 1623 and Case 138/77Ludwig v Hamburg, ibid, p. 1645. There was no suggestion by the Commission that the situation has since improved.

The third directive to which we were referred was Council Directive No 77/96/EEC of 21 December 1976‘on the examination for trichinae (trichinella spiralis) upon importation from third countries of fresh meat derived from domestic swine’. This Directive was to be brought into force on 1 January 1979, but we were told by the Commission that, of the Member States, only the Federal Republic had so for informed the Commission that it had taken the measures necessary for that purpose. On behalf of the Federal Republic it was submitted that in any case, since the provisions of Directive No 77/96 were to some extent tied to those of Directive No 72/462, the ineffectiveness of the latter must entail the ineffectiveness of the former.

Since Directive No 72/462 and Directive No 77/96 are both exclusively concerned with imports from outside the Community, one might think that they were irrelevant to the present case. They were however referred to by the Government of the Federal Republic in support of arguments to which I shall have to advert.

Lastly we were referred to Council Directive No 77/99/EEC ‘on health problems affecting intra-Community trade in meat products’. That Directive is due to be brought into force on the last of next month, and we were told in some detail of the steps being taken in the Federal Republic to comply with its requirements. It seems that, when those steps have been taken, the rule in paragraph 12c of the FIG of which the Commission complains will be eliminated, in compliance with the provisions of the Directive (in particular Article 3 (1) (3) (a) (i) thereof). The Commission however emphasizes that the present proceedings are concerned with the past and present effect of paragraph 12c, not with what its effect may be in the future.

In its Defence and in its Rejoinder the Federal Republic put forward, in justification of the rule in paragraph 12c of the FIG, a number of arguments that have turned out to be of a subsidiary nature. In its written answer to a question put to it by the Court at the close of pleadings it broached, and at the hearing it put forward forcefully what appears to be its main argument.

That argument, as I understood it, is that, in the absence of any harmonization, in a particular sector, of the laws of the Member States concerning the protection of the health of consumers of meat or meat products, each Member State is entitled to maintain in force the provisions of its own law concerning that matter, whatever they may be. It may even go so far as to forbid importations from other Member States altogether. Thus, or so it was argued on behalf of the Federal Republic, the rule in paragraph 12c of the FIG was more liberal than it need have been, because it permitted imports of meat products from another Member State where those products were made from the meat of animals slaughtered in the same Member State. It was in support of that argument, particularly, that Article 6 of Directive No 64/433 was referred to on behalf of the Federal Republic.

In my opinion that argument was wholly misconceived. The absence of any harmonization of the laws of the Member States in such a sector entails that the legal position is governed entirely by Articles 30 and 36 of the Treaty. The law as laid down in those Articles cannot be overridden either by the absence of a Directive or by any proviso contained in a Directive. Article 30, as was very properly admitted on behalf of the Federal Republic, prima facie forbids rules of the kind here in question. Such a rule is only permissible if it can be ‘justified’ under Article 36.

As was pointed out by the Court in Case 35/76 Simmenthal v Italian Minister for Finance [1976] ECR 1871:

‘Since the restrictions authorized by Article 36 derogate from the fundamental principle of the free movement of goods, they only comply with the Treaty in so far as they are justified, that is to say, necessary for attainment of the objectives referred to by this provision and in particular to ensure the protection of health and life of humans and animals.

…

Article 36 is not designed to reserve certain matters to the exclusive jurisdiction of Member States but permits national laws to derogate from the principle of the free movement of goods to the extent to which such derogation is and continues to be justified for the attainment of the objectives referred to in that article.’ (Paragraphs 10 and 14 of the Judgment).

To the same effect are the Judgments in Case 5/77 Tedeschi v Denkavit [1977] 2 ECR 1555 (paragraph 34) and in Case 13/78 Eggers v Freie Hansestadt Bremen [1978] ECR 1935 (paragraph 30).

So the only question is whether the rule in paragraph 12c of the FIG is ‘necessary’ for the protection of the health or life of humans in the Federal Republic. I will say at once that it has not, to my mind, been demostrated on behalf of the Federal Republic that it is.

The arguments put forward on behalf of the Federal Republic in an endeavour to make that demonstration were these.

First it was said that the rule was necessary in order to reduce the risk of products being imported into the Federal Republic that contained meat from animals slaughtered outside the Community. As the Commission pointed out, however, that risk (in so far as it exists) is not lessened by requiring a certificate that the meat used in a product is from animals slaughtered in the Member State where the product has been manufactured rather than a certificate that the meat is from animals slaughtered in the Community. The mere fact that meat has, before being processed, crossed the frontier between two Member States does not increase the risk that it may have originated outside the Community. The form of certificate prescribed for meat consigned from one Member State to another identifies the slaughterhouse and any cutting plant whence it came — see Annex II to Directive No 64/433.

Secondly it was said on behalf of the Federal Republic that the fact that meat crossed a frontier increased the risk of its being unwholesome. I confess to having found it difficult to follow most of the reasons put forward on behalf of the Federal Republic in support of that statement. Some of them seemed to amount to no more than general allegations that in some Member States the law was not adequately enforced. I have had occasion before to say that, in my opinion, that is not the sort of ground, on which a Member State is entitled to adopt measures having an effect equivalent to quantitative restrictions on intra-Community trade — see Cases 80 & 81/77 Commissionaires Réunis v Receveur des Douanes [1978] ECR 927 at p. 960.

…

I can understand, on the other hand, that the more meat is handled and transported, the more it may become liable to contamination. But here again I do not see how the mere fact that it crosses a frontier increases that risk. If meat from pigs slaughtered in Northern Ireland is transported by road,, sea and rail to South East England, there to be processed into pork pies, the resultant pork pies may be imported into the Federal Republic without any infringement of paragraph 12c. But sausages made in Belgium from the meat of pigs slaughtered nearby in the Netherlands, Luxembourg or even Germany itself may not. One could multiply such contrasting examples: the transportation of meat from Sardinia to the mainland of Italy for processing into salami is acceptable under paragraph 12c, but not its transportation thither from Corsica; and so on. Such examples suggest that the rule in paragraph 12c is not only unjustifiable, but that it constitutes a clear case of that ‘arbitrary discrimination’ of which Article 36 speaks.

Then it was said that the rule had the advantage that the authorities of a single Member State could be held responsible in a case where unwholesome meat products were in fact imported into the Federal Republic. That argument is, as the Commission pointed out, reminiscent of one that was rejected by the Court in Eggers v Freie Hansestadt Bremen (already cited). One can see, of course, that, in such a case, the rule facilitates administration, but that is a long way from saying that it is necessary for the protection of consumers.

Lastly attention was drawn on behalf of the Federal Republic to the absence, so far, of any harmonization of the law and practice in the Member States on the examination of pigmeat for trichinae. We were told that, in the opinion of the. Federal Government, only systematic examination of the carcase of every pig slaughtered was adequate; that in Denmark and Italy, as in the Federal Republic itself, such examinations were carried out; but that the practice in other Member States — Belgium, France, the Netherlands and the United Kingdom were mentioned — fell short of that standard. Assuming in favour of the Federal Republic that the opinion expressed on its behalf is correct (though it was supported by no evidence), I am not persuaded that the German consumer is in any way protected by a requirement that Belgian, French, Dutch and British processors of meat should confine themselves to using the (ex hypothesi inadequately examined) meat of pigs slaughtered in their own respective countries.

In the result I am of the opinion that Your Lordships should —

(1) declare that the Federal Republic of Germany has failed to fulfil an obligation under the Treaty in forbidding the importation from other Member States of products manufactured in any of them from meat originating in a different Member State; and