Judgment of the Court of 28 November 1989. - Commission of the European Communities v Federal Republic of Germany. - Failure of a State to fulfil its obligations - Health controls - Harmonization - Inspection on importation. - Case C-186/88.



European Court reports 1989 Page 03997



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Requirement to make a prior declaration for the purpose of ensuring that a veterinarian is involved in the completion of the administrative formalities upon the importation of fresh poultrymeat - Requirement going beyond administrative formalities for crossing frontiers - Not permissible

( EEC Treaty, Art . 30; Council Directives 71/118 and 83/643 )

Summary

A Member State which systematically requires carriers of fresh poultrymeat to make a prior declaration of the goods in order to ensure systematic veterinary inspection thereby fails to fulfil its obligations under Article 30 of the EEC Treaty, under Directive 71/118/EEC on health problems affecting trade in fresh poultrymeat and under Directive 83/643/EEC on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States .

Although the use of veterinarians rather than officials having general authority to inspect goods at the frontier for the completion of administrative formalities, which may themselves be systematic, is not prohibited, it is subject to the condition that the use of veterinarians neither delays the completion of the formalities on the crossing of the frontier nor transforms the administrative formalities into veterinary inspections, and that the formalities or constraints do not go beyond the normal requirements inherent in the crossing of the frontier by any goods, whatever their nature .

Parties

In Case C-186/88

Commission of the European Communities, represented by its Legal Adviser, Joern Sack, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre,

applicant,

v

Federal Republic of Germany, represented by Martin Seidel, Ministerial Adviser in the Federal Ministry of Economic Affairs, and Dietmar Knopp, Rechtsanwalt, Cologne, acting as Agents, with an address for service in Luxembourg at the German Embassy,

defendant,

APPLICATION for a declaration that, by subjecting fresh poultrymeat coming from other Member States to systematic inspections at frontiers ( entailing the requirement of a prior declaration ) involving more than straightforward checking to ensure that the documents and certificates accompanying the goods are in order and also a visual inspection of the goods, intended to ensure that they correspond to those documents, and carried out by officials having general authority to check goods at the frontier, the Federal Republic of Germany has failed to fulfil its obligations under Article 30 of the EEC Treaty, under Regulation ( EEC ) No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultrymeat ( Official Journal 1975, L 282, p . 77 ), under Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat ( Official Journal, English Special Edition 1971 ( I ), p . 106 ) and under Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States ( Official Journal 1983, L 359, p . 8 ),

THE COURT

composed of : C . N . Kakouris, President of Chamber, acting for the President, F . A . Schockweiler and M . Zuleeg ( Presidents of Chambers ), T . Koopmans, G . F . Mancini, J . C . Moitinho de Almeida and F . Grévisse, Judges,

Advocate General : M . Darmon

Registrar : B . Pastor, Administrator

having regard to the Report for the Hearing and further to the hearing on 20 September 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 19 October 1989,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 7 July 1988, the Commission of the European Communities brought an action under Article 169 of the EEC Treaty seeking a declaration that, by carrying out at its frontiers systematic inspections such as those provided for in Paragraph 24 of the Gefluegelfleischhygienegesetz ( Law on poultrymeat hygiene ) and in Paragraph 7 of the Gefluegelfleischuntersuchungsverordnung ( Regulation on the inspection of poultrymeat ), the Federal Republic of Germany has failed to fulfil its obligations under Article 30 of the EEC Treaty, under Regulation ( EEC ) No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultrymeat ( Official Journal 1975, L 282, p . 77 ), under Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat ( Official Journal, English Special Edition 1971 ( I ), p . 106 ) and under Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States ( Official Journal 1983, L 359, p . 8 ).

2 Under the legislation in force in the Federal Republic of Germany - the Gefluegelfleischhygienegesetz of 12 July 1973 and the Gefluegelfleischuntersuchungsverordnung of 3 November 1976, as amended by a regulation of 27 July 1978 - all imports of fresh poultrymeat into the Federal Republic of Germany are subject to a procedure which entails an obligation on the part of the importer to declare the goods in due time to the competent frontier office in order to be inspected, and to indicate the nature and quantity of the goods and the time at which the inspection is to take place . The purpose of the inspection is to check whether the consignment imported is accompanied by a valid health certificate, whether the goods contained in the consignment correspond to those indicated in the certificate and whether certain markings have been affixed . That inspection must be carried out by veterinary officials .

3 The Court, in its judgment of 20 September 1988 in Case 190/87 Oberkreisdirektor des Kreises Borken and Another v Handelsonderneming Moormann BV (( 1988 )) ECR 4689, in answer to a question referred to it by the Bundesverwaltungsgericht ( Federal Administrative Court ), ruled :

"1 . Systematic inspection of poultrymeat by a veterinarian or hygiene expert on importation into the country of destination constitutes a measure having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the EEC Treaty . In so far as such inspection is intended systematically to check compliance with the hygiene requirements laid down by Council Directive 71/118/EEC ..., it cannot be justified under Article 36 of the EEC Treaty .

2 . Article 11(2 ) of Regulation No 2777/75 ... concerns trade with non-member countries and does not apply to intra-Community trade .

...

4 . The term 'physical inspections' within the meaning of Council Directive 83/643/EEC ... must be understood as covering all inspections of goods which involve physical contact with them . The term 'administrative formalities' must be understood as covering all operations which involve the checking of documents and certificates accompanying goods and are intended to ensure by simple visual inspection that the goods correspond to the documents and certificates, where such operations may be carried out by officials having general authority to check goods at the frontier . On the basis of those definitions, it is for the national court to decide in which category the measures referred to in the fourth question should be classified, having regard to the manner in which they are carried out .

5 . The term 'inspections' in Article 2 of Directive 83/643 must be interpreted as meaning that only physical inspections within the meaning of Article 1(1 ) of the directive are to be carried out solely by means of spot checks, and no conclusion can be drawn from that article regarding the manner in which administrative formalities are to be completed ."

4 Following that judgment, the Commission, in its reply, defined the scope of its application more precisely by asking the Court for a declaration that, by subjecting fresh poultrymeat coming from other Member States to systematic inspections at frontiers, entailing the requirement of a prior declaration, involving more than straightforward checking to ensure that the documents and certificates accompanying the goods are in order and also a visual inspection of the goods, intended to ensure that they correspond to those documents, and carried out by officials having general authority to check goods at the frontier, the Federal Republic of Germany had failed to fulfil its obligations under Article 30 of the EEC Treaty, under Regulation No 2777/75, under Directive 71/118 and under Directive 83/643 .

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are referred to hereinafter only in so far as is necessary for the reasoning of the Court .

6 It appears from the written pleadings in the reply and the rejoinder, and from the oral arguments presented at the hearing, that the substance of the Commission' s complaint is that the Federal Republic of Germany carries out systematic veterinary inspections by requiring veterinary officials to be employed for the purpose of completing administrative formalities .

7 The Federal Republic of Germany has acknowledged that the requirement of a prior declaration of the goods derives from the need to ensure that veterinarians are present at the frontier crossing points and to coordinate their action . It denies, however, carrying out inspections involving more than the systematic completion of formalities within the meaning of Directive 83/643 as interpreted by the Court in its judgment in Moormann . It claims that the employment of veterinarians ensures that the systematic administrative formalities are completed more efficiently and more rapidly .

8 In contrast to what happens when other goods cross the frontier, the employment of veterinarians to complete the administrative formalities relating to the carriage of fresh poultrymeat is, in its view, in accordance with the system of the Community rules and is justified in view of the need to protect public health .

9 In order to assess the merits of the action brought by the Commission, it must be borne in mind that in its judgment in Moormann the Court stressed that Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat ( Official Journal, English Special Edition 1971 ( I ), p . 106 ) introduced a harmonized system of health inspections based on full inspection of the goods in the exporting State, which 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 ( paragraph 11 ). Consequently, the Court held that products covered by Directive 71/118 may no longer be made subject systematically to health inspections including, inter alia, any inspection carried out by the importing State in order to establish that the prescribed hygiene requirements were in fact complied with, where such inspection requires the intervention of a veterinarian or a hygiene expert ( paragraph 14 ).

10 The Court concluded that when products covered by Directive 71/118 cross an intra-Community frontier they may be made subject systematically only to the inspections of an administrative nature to which all goods crossing the frontier are subject ( paragraph 16 ).

11 In that judgment, the Court also held that the administrative formalities which may, under Directive 83/643, be systematically completed must be understood as operations which may be carried out by officials having general authority to inspect goods at the frontier ( paragraph 29 ).

12 The interpretation which the Court has given to the concept of administrative formalities does not in itself prohibit a Member State from having those formalities completed by more highly qualified officials, in this case by veterinary officials, provided, however, that the use of such officials neither delays the completion of the formalities on the crossing of the frontier nor transforms the administrative formalities into veterinary inspections .

13 The requirement of a prior declaration of the goods which the German legislation systematically imposes on carriers of fresh poultrymeat cannot be considered to be an administrative formality the systematic completion of which is authorized under Directive 83/643 .

14 That directive, the aim of which is, in view of the need to reinforce and develop further the internal market, to reduce to the minimum formalities and inspections at internal Community frontiers, does not permit formalities or constraints involving more than the normal requirements inherent in the crossing of the frontier by any goods, whatever their nature .

15 According to the explanations of the Government of the Federal Republic of Germany, the sole purpose of the prior declaration is to coordinate the systematic employment of veterinarians and to ensure that they are present at frontier posts when the goods cross the frontier . The Government of the Federal Republic of Germany attempts to justify the compulsory use of veterinarians not only by a concern for efficiency but also by the special nature of the goods carried and by the responsibilities of the veterinary authorities with regard to the carriage of fresh meat, particularly in view of the essential requirement of protecting public health .

16 In the light of the harmonized system of health inspections set up by Community legislation and based, as the Court pointed out in its judgment in Moormann, on full inspection of the goods in the exporting State, which replaces inspection in the State of destination, considerations based on the need to protect health cannot justify additional specific constraints placed on carriers when they cross a frontier .

17 It must therefore be held that, by systematically requiring carriers of fresh poultrymeat to make a prior declaration of such goods in order to ensure systematic veterinary inspection, the Federal Republic of Germany has failed to fulfil its obligations under Article 30 of the EEC Treaty, under Directive 71/118 and under Directive 86/643 .

Decision on costs

Costs

18 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the Federal Republic of Germany has failed in its submissions, it must be ordered to pay the costs .

Operative part

On those grounds,

THE COURT

hereby :

( 1 ) Declares that, by systematically requiring carriers of fresh poultrymeat to make a prior declaration of such goods in order to ensure systematic veterinary inspection, the Federal Republic of Germany has failed to fulfil its obligations under Article 30 of the EEC Treaty, under Council Directive 71/118 of 15 February 1971 on health problems affecting trade in fresh poultrymeat and under Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States;

( 2 ) Orders the Federal Republic of Germany to pay the costs .