Opinion of Mr Advocate General Elmer delivered on 13 July 1995. - Criminal proceedings against Denis Gervais, Jean-Louis Nougaillon, Christian Carrard and Bernard Horgue. - Reference for a preliminary ruling: Tribunal de grande instance de Bergerac - France. - Artificial insemination of amimals of the bovine species - Territorial monopoly - Restrictions on activities of veterinary surgeons. - Case C-17/94.



European Court reports 1995 Page I-04353



Opinion of the Advocate-General

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1 In this case the Tribunal de Grande Instance de Bergerac has referred to the Court for a preliminary ruling a number of questions on the position of the French rules on artificial insemination centres as regards the rules of the Treaty on State monopolies, on the right of establishment and freedom to provide services together with various directives on the profession of veterinary surgeon and pure-bred breeding animals of the bovine species. In addition the case raises questions concerning the requirements for the description in an order for reference of the facts of the case and the position with regard to the Court's case-law on purely internal situations.

The national legislation

2 The French rules on artificial insemination of domestic animals are contained in Law No 66-1005 of 28 December 1966 on breeding and in a number of implementing provisions. According to Article 4 of the Law the collection and processing of semen only by heads of insemination centres or under their control. Similarly insemination may be undertaken only by heads of insemination centres or by approved inseminators.

The operation of an insemination centre is permitted only subject to prior authorization from the French Ministry of Agriculture (see Article 5 of the Law). Every insemination centre serves an area within which only that centre may operate (see the fourth and fifth subparagraphs of Article 5). Breeders residing within the area of an insemination centre may request the centre to deliver semen from production centres of their own choice. Infringement of the abovementioned rules is punishable under Article 9 of the Law.

3 Under Decree No 69-258 of 22 March 1969 on artificial insemination, an inseminator requires a licence to operate, issued by the French Minister for Agriculture. Insemination may be undertaken only under the control of insemination centres licensed by the Minister for Agriculture.

4 An order of 21 November 1991 regarding `training of inseminators and heads of insemination centres and the grant of the relevant licences' lays down further provisions for the implementation of the said Decree No 69-258. According to Article 1 of the order insemination is effected under the control of the competent insemination centre. The French Minister for Agriculture may issue a licence to operate as inseminator to holders of an inseminator's certificate on the basis of a document from the head of an insemination centre certifying that the applicant comes under his authority as regards the performance of insemination operations (see Article 2). According to Article 3 of the order, the certificate is granted to candidates who have passed an examination as inseminator and to veterinary surgeons amongst others.

The facts

5 The defendants in the main proceedings, Denis Gervais, Jean-Louis Nougaillon, Christian Carrard and Bernard Horgue are French nationals and residents of France. They have all passed an examination as veterinary surgeons in France. None of them is attached to an approved insemination centre. According to the information available it may be accepted that the defendants, with the exception of Denis Gervais, have a licence to operate as inseminators.

In March 1992 they were reported to the Public Prosecution Department in Bergerac by the Coopérative Périgorde Ageanise d'Elevage et d'Insémination Artificielle (hereinafter referred to as `the CPAEIA'), which holds the monopoly for inter alia the Arrondissement of Bergerac, for having, contrary to Article 5 of the said Law No 66-1005, practised as inseminators without being in possession of the necessary licences required by French law. The Public Prosecution Department thereupon brought a charge against Denis Gervais and Jean-Louis Nougaillon for effecting insemination without having been assigned an area in which they might lawfully inseminate, and against Christian Carrard and Bernard Horgue for operating insemination centres without a licence.

The defendants did not deny that they had infringed the French rules on practising insemination. They did however claim that no penalty could be imposed because in their view the system of licensing was contrary to Community law.

The questions referred to the Court

6 In those circumstances the Tribunal de Grande Instance de Bergerac, by order of 14 January 1994, referred to following questions to the Court:

`1) Do Article 59 of the EEC Treaty and Council Directives 78/1026/EEC and 78/1027/EEC of 18 December 1978, (1) for implementation in the sphere of the activities of veterinary surgeons, preclude the application of domestic legislation which, for the artificial insemination of animals of the bovine species, makes the issue of an insemination licence to veterinary surgeons conditional on the production of a certificate from the Director of the authorized Artificial Insemination Centre certifying that the applicant is answerable to him with regard to insemination, thus depriving veterinary surgeons of the freedom to provide services under threat of prosecution, simultaneously restraining their trade, by means of recognition of a territorial monopoly of that activity for the benefit of persons grouped in so-called artificial insemination "Centres" and not necessarily holders of the qualification of veterinary surgeon?

2) Do Article 52 of the EEC Treaty and Council Directives 78/1026/EEC and 78/1027/EEC of 18 December 1978, for implementation in the sphere of the activities of veterinary surgeons, preclude the application of domestic legislation which, for the artificial insemination of animals of the bovine species, in certain circumstances grants a licence for insemination to veterinary surgeons, but prohibits them, under threat of prosecution, from exercising that activity, and simultaneously eliminates their freedom of establishment, except the compulsory establishment under the authority of a so-called artificial insemination centre, which is made up of persons who do not necessarily hold the qualification of veterinary surgeon and on whom is conferred a territorial monopoly for the exercise of that activity, with the effect that in France, the freedom of establishment of veterinary surgeons cannot properly be exercised other than in connection with a centre?

3) Should Council Directives 77/504/EEC of 25 July 1977 on pure-bred breeding animals of the bovine species (2) and 87/328/EEC of 18 June 1987 on the acceptance for breeding purposes of pure-bred breeding animals of the bovine species, (3) adopted on grounds of health policy and which state that they seek to preserve freedom in intra-Community trade, be interpreted as enabling national legislation to institute a territorial monopoly in the exercise of artificial insemination which is of a clearly economic nature for the benefit of "Centres" which are staffed by persons who do not necessarily hold the qualification of veterinary surgeon?

4) Is national legislation which makes access to the occupation of inseminator conditional on the issue of a licence for artificial insemination of animals of the bovine species and which makes the issue of the licence conditional on the production of a certificate from the Director of the authorized Artificial Insemination Centre, certifying that the applicant is answerable to him with regard to insemination, thus prohibiting or restraining the exercise of that activity for veterinary surgeons on the ground that they must be answerable to the Director of the so-called Artificial Insemination Centre on which is conferred a territorial monopoly compatible with the relevant provisions of Council Directives 77/504/EEC and 87/328/EEC which do not provide for any restriction in the establishment and activities of veterinary surgeons?

5) Is a monopoly in the provision of services such as that brought about by the Law of 28 December 1966 on breeding and its implementing provisions compatible with Articles 37 and 59 of the EEC Treaty in so far as it prohibits insemination carried out by persons, even those duly qualified and skilled to do so, other than the staff of Artificial Insemination Centres which enjoy the monopoly?'

Admissibility

7 The Commission, the French Government and the CPAEIA, the civil party claiming damages in the main proceedings, have claimed that the court of reference has not even given a brief statement of the factual and legal background to the case. The substance of the questions referred to the Court should not therefore be considered.

8 The Court has stated that the need to provide an interpretation of Community law which will be of use to the national court makes it necessary that the national court define in the order for reference the factual and legislative context of the questions it is asking. (4) By the same token it is essential for the national court to explain the reasons for which it considers that a reply to its questions is necessary to enable it to give judgment. (5) The information provided in orders for reference moreover not only enables the Court to give helpful answers but also enables the governments of the Member States and other interested parties to submit observations. (6) It is therefore the Court's duty to ensure that that opportunity is maintained, bearing in mind that, by virtue of Article 20 of the Statute of the Court, only the decisions making references are notified to the interested parties. (7)

9 The order for reference does not meet the requirements which might rightly be imposed on the basis of that case-law. If the only information on the case were in the order, the reference for a preliminary ruling would in my view have to be regarded as inadmissible.

10 However, the Court has put to the defendants in the main proceedings a number of questions with a view to obtaining more information on the case. The answers to those questions mean, in my opinion, that it will now, in the circumstances be possible to give the national court a helpful answer to the questions raised. They should therefore be answered.

The first and second questions

11 By the first and second questions the court of reference wishes to be informed whether provisions such as the French provisions concerning the conditions for the pursuit of activities as an inseminator are compatible with Articles 52 and 59 of the Treaty and Directives 78/1026 and 78/1027.

12 According to Article 2 of Directive 78/1026, issued in pursuance of Articles 49, 57, 66 and 235 of the Treaty, each Member State is required to recognize the diplomas, certificates and other evidence of formal qualifications awarded to nationals of Member States by the other Member States in accordance with Article 1 of Directive 78/1027/EEC by giving such qualifications, as far as the right to take up and pursue the activities of a veterinary surgeon is concerned, the same effect in its territory as those which the Member State itself awards.

13 According to Article 1 of Directive 78/1027, which is also issued in pursuance of Articles 49, 57, 66 and 235 of the Treaty, Member States are to make the taking up and pursuit of the profession of veterinary surgeon conditional upon the holding of a diploma, certificate or other evidence of formal qualifications in veterinary medicine referred to in Article 3 of Directive 78/1026, which guarantees that during his complete training the person concerned has acquired various qualifications of importance for work as a veterinary surgeon. The other provisions of the directive lay down rules regarding the knowledge a veterinary surgeon must have acquired as a result of his training, and rules are laid down for the length of and requirements for acceptance for such training.

14 The defendants in the main action have contended that the requirement of a licence involves a territorial monopoly over the activity of insemination. The French rules therefore conflict with both the rules of the Treaty on freedom of movement and Directives 78/1026 and 78/1027. The Commission, the French Government and CPAEIA on the other hand have claimed that the main proceedings concern a purely internal situation which is not covered by the rules of the Treaty on freedom of movement. Directives 78/1026 and 78/1027 contain neither rules on operating as an inseminator nor on the activities which may be regarded as connected with the profession of veterinary surgeon.

15 The Court has consistently held that the provisions of the Treaty on freedom of establishment do not apply to purely internal situations in a Member State such as for example the conditions for nationals of a Member State carrying on within that State an independent occupation which they have previously trained for or performed in another Member State. (8) Correspondingly the rules in Articles 59 and 60 of the Treaty on freedom to provide services cannot be applied to activities which are confined in all respects within a single Member State. (9)

16 None of the defendants has a professional connection with another Member State. They cannot therefore avail themselves of the provisions of the Treaty on the right of establishment or freedom to provide services, irrespective of whether the French legislation at issue may conflict with the said provisions in situations involving a sufficiently pronounced Community element.

17 On those grounds my view is that as far as concerns the position with regard to Articles 52 and 59 of the Treaty the Court should answer the first and second questions to the effect that the provisions of the Treaty on freedom of establishment and freedom to provide services are not applicable to purely internal situations in a Member State such as for example the situation of nationals of a Member State who wish to pursue within that Member State an independent activity which they cannot claim to have trained for or previously practised in another Member State.

18 Directives 78/1026 and 78/1027 do not in my view contain any provisions of relevance for a decision in the main proceedings. According to Article 2 of Directive 78/1026 Member States are to recognize the diplomas and the like awarded to nationals of Member States by the other Member States in accordance with the rules in Directive 78/1027 by giving the same effect in their territory to the diplomas, certificates and other evidence of formal qualifications as those which the Member State itself awards as far as concerns the right to take up and pursue the activities of a veterinary surgeon. Directive 78/1027 is linked to Directive 78/1026 inasmuch as it lays down rules as to the knowledge and the like which must be acquired in order to qualify as a veterinary surgeon but contains no rules as to the occupation a trained veterinary surgeon may pursue or as to the relationship between a veterinary surgeon and the State in which he has passed his examination in veterinary medicine.

19 The two directives therefore apply only in situations in which the veterinary surgeon concerned possesses a qualification from a Member State other than that in which he wishes to apply the directives. On the other hand the directives do not govern the purely internal situation in a Member State in which the holder of a qualification issued by his own Member State wishes to use it to practise as a veterinary surgeon in that Member State.

20 I shall therefore propose that the Court should answer that part of the first and second questions which concerns the position with regard to Directives 78/1026 and 78/1027 to the effect that the holder of a qualification as veterinary surgeon cannot, as against the Member State which has issued the qualification concerned, rely upon Directive 78/1026 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services, or Directive 78/1027 concerning the co-ordination of provisions laid down by law, regulation or administrative action in respect of the activities of veterinary surgeons.

The third and fourth questions

21 By the third and fourth questions the court of reference wishes to be informed whether Directives 77/504 and 87/328 preclude national legislation which gives certain insemination centres a monopoly to effect insemination and makes the exercise of the activity of insemination conditional upon a licence from the head of an insemination centre.

22 By Directive 77/504 on pure-bred breeding animals of the bovine species, issued in pursuance of Articles 43 and 100 of the Treaty, the Council laid down various provisions to promote the production of and trade in pure-bred breeding animals. Article 2 of the directive requires the Member States to ensure that intra-Community trade in inter alia semen and embryos of pure-bred breeding animals of the bovine species is not prohibited, restricted or impeded on zootechnical grounds.

23 Under Article 3 of that directive the Council laid down, by Directive 87/328 on the acceptance for breeding purposes of pure-bred breeding animals of the bovine species, provisions for the approval of animals for breeding purposes. Member States may not accordingly prohibit, restrict or impede the acceptance for official testing of pure-bred bulls or the use of their semen within the limits of the quantities necessary for approved organizations or associations to carry out such official tests. Nor can Member States impede the acceptance for artificial insemination within their territory of pure-bred bulls or the use of their semen when those bulls have been accepted for artificial insemination in a Member State on the basis of tests carried out in accordance with Commission Decision 86/130/EEC of 11 March 1986 (10) (see Article 2(1) of the directive).

The directive further provides that to facilitate trade within the Community Member States shall ensure that the semen referred to in Article 2 is collected, treated and stored in an officially approved artificial insemination centre (see Article 4).

24 The defendants have argued that Directives 77/504 and 87/328 do not allow the Member States to grant specified persons or undertakings a monopoly to pursue the activity of insemination or to restrict the right to pursue such activity by imposing a requirement of prior authorization. Such legislation constitutes a restriction of free movement of goods contrary to Article 30 of the Treaty. The Commission, the French Government and the CPAEIA have stated on the contrary that the said directives do not prescribe the circumstances under which semen may be inseminated or which groups of persons may undertake insemination.

25 I agree with the Commission, the French Government and the CPAEIA that Directives 77/504 and 87/328, according to their wording and purpose, concern only national institutions of significance for trade in pure-bred breeding animals and including trade in semen to be used for breeding. Nothing in the directives gives any basis for assuming that they also affect the possibility for the Member States to reserve the activity of insemination to certain occupational groups or undertakings provided that such national rules do not involve directly or indirectly an unlawful restriction on trade in semen.

26 According to my information the French system does not forbid traders other than insemination centres from importing semen from other Member States (11) or moreover from trading in such goods. Nor do the rules give the inseminators the power to determine contrary to the breeder's wishes whether the insemination is to be effected with French or imported semen.

27 National legislation which prescribes only which undertakings and traders may lawfully effect insemination can therefore scarcely be regarded in itself as involving a restriction of trade in semen or embryos of pure-bred breeding animals contrary to Article 2 of Directive 77/504. Nor does such legislation constitute any restriction on the importation of semen in the quantities necessary for approved organizations or associations to carry out official tests (see Article 2 of Directive 87/328).

28 On those grounds I shall propose that the Court should answer the third and fourth questions to the effect that Directive 77/504 on pure-bred animals of the bovine species and Directive 87/328 on the acceptance for breeding purposes of pure-bred breeding animals of the bovine species do not preclude national legislation giving insemination centres or persons licensed to operate as inseminators who are not necessarily trained veterinary surgeons a monopoly to perform insemination.

The fifth question

29 By the fifth question the court of reference wishes to be informed whether a monopoly for the performance of services such as that in France complies with Articles 37 and 59 of the Treaty.

30 The defendants in the main proceedings have argued that the French legislation is contrary to Articles 37 and 59 of the Treaty in conjunction with Articles 5, 86 and 90. The Commission, the French Government and the CPAEIA have contended on the contrary that that question has already been decided in the judgment in Case 271/81 Mialocq. (12) The French Government and CPAEIA have further claimed that the fifth question depends upon an incorrect conception of the scope of French law, since even independent persons may obtain a licence from the centres to carry out insemination.

31 I do not think that with regard to the argument of the French Government and the CPAEIA the Court can refuse to answer the fifth question. The Court has no jurisdiction in giving a preliminary ruling to decide upon the correctness of an objection that a question referred to the Court is irrelevant because it is based upon an incorrect interpretation of national law. (13)

32 As far as the question regarding the position with regard to Article 59 of the Treaty is concerned I can refer to my answer to the first question.

33 In my view the Court has already decided in the said judgment in Case 271/81 Mialocq the relationship between Article 37 of the Treaty and national rules such as those at issue here. In that judgment the Court stated that Article 37 refers to trade in goods and not a monopoly over the provision of services. There was no ground for assuming that the French rules on insemination of cattle indirectly established a monopoly hindering the free movement of goods:

`In fact it is clear from those circumstances that, under the legislation applicable in France, any individual breeder is free to request the insemination centre for his area to supply him with semen from a production centre of his choice, whether situated in France or abroad. The French Government has stated that there is nothing in its legislation to prevent an insemination centre or even an individual breeder either from approaching a foreign centre directly with a view to purchasing semen from it or from obtaining the necessary import licence.

The answer to the first question must therefore be that Article 37, properly construed, does not apply to a monopoly over the provision of services, even if such a monopoly enables the Member States concerned to direct a branch of the national economy, provided that it does not contravene the principle of the free movement of goods by discriminating against imported products to the advantage of products of domestic origin' (paragraphs 12 and 13).

34 Nothing in this case gives any reason for reaching a different conclusion. As the Court stated in the said judgment in Case C-323/93 Centre d'Insémination de la Crespelle, it is within the national court's jurisdiction to decide whether the French legislation in practice leads to discriminatory treatment of imported semen. No information has been forthcoming in this case to the effect that there is discrimination to the advantage of domestic products.

35 It is my view that the Court should disregard the defendants' arguments with regard to Articles 5, 86 and 90 of the Treaty. In wishing to give the court of reference an appropriate answer to a question referred to it, the Court may certainly take account of Community rules which the national court has not discussed in its question, but the Court cannot at the request of a party deal with questions not raised by the national court. (14)

36 On those grounds I shall propose that the Court should answer the fifth question to the effect that Article 37 does not cover a monopoly over the provision of services unless the monopoly disregards the principle of the free movement of goods by discriminating against imported products to the advantage of domestic products.

Opinion

37 I shall accordingly recommend the Court to rule as follows:

1. The provisions of the Treaty on freedom of establishment and freedom to provide services are not applicable to purely internal situations in a Member State such as for example the situation of nationals of a Member State who wish to pursue within that Member State an independent activity which they cannot claim to have trained for or previously practised in another Member State.

2. The holder of a qualification as veterinary surgeon cannot, as against the Member State which has issued the qualification concerned, rely upon Directive 78/1026 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services or Directive 78/1027 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of veterinary surgeons.

3. Directive 77/504/EEC on pure-bred animals of the bovine species and Directive 87/328 on the acceptance for breeding purposes of pure-bred breeding animals of the bovine species do not preclude national legislation giving insemination centres or persons licensed to operate as inseminators who are not necessarily trained veterinary surgeons a monopoly to perform insemination.

4. Article 37 of the Treaty does not cover a monopoly over the provision of services unless the monopoly disregards the principle of the free movement of goods by discriminating against imported products to the advantage of domestic products.

(1) - OJ 1978 L 362, pp. 1 and 7 respectively.

(2) - OJ 1977 L 206, p. 8, as amended by Directive 91/174/EEC laying down zootechnical and pedigree requirements for the marketing of pure-bred animals and amending Directives 77/504/EEC and 90/425/EEC, OJ 1991 L 85, p. 37.

(3) - OJ 1987 L 167, p. 54.

(4) - See for example the judgment in Joined Cases C-320, C-321 and C-322/90 Telemarsicabruzzo and Others [1993] ECR I-393 at paragraph 6, and Order in Case C-386/92 Monin Automobiles [1993] ECR I-2049 at paragraph 6.

(5) - See the judgment in Case C-343/90 Lourenço Dias [1992] ECR I-4673 at paragraph 19, and the Order in Case C-378/93 La Pyramide [1994] ECR I-3999 at paragraph 13.

(6) - See in particular the judgment in Joined Cases 141, 142 and 143/81 Holdijk [1982] ECR 1299 at paragraph 6.

(7) - See the Order in Case C-458/93 Saddick [1995] ECR I-0000 and Case C-167/94 Grau Gomis and Others [1995] ECR I-0000 at paragraph 10.

(8) - See most recently the judgment in Joined Cases C-29 to C-35/94 Aubertin and Others [1995] ECR I-0000 at paragraph 9.

(9) - See the judgment in Case C-41/90 Hoefner and Elser [1991] ECR I-1979 at paragraph 37.

(10) - OJ 1986 L 101, p. 37.

(11) - See the judgment in Case C-323/93 Centre d'Insémination de la Crespelle [1994] ECR I-5077.

(12) - [1983] ECR 2057.

(13) - See the judgment in Case C-347/89 Eurim-Pharm [1991] ECR I-1747 at paragraphs 14 to 17.

(14) - See the judgment in Case 299/84 Neumann [1985] ECR 3663 at paragraph 12.