Opinion of Mr Advocate General Tesauro delivered on 7 March 1990. - Alimenta SA v Doux SA. - Reference for a preliminary ruling: Tribunal de commerce de Quimper - France. - Restrictions on intra-Community trade in poultrymeat - Animal-health grounds - Legal effect of an opinion given by a veterinary expert. - Case C-332/88.



European Court reports 1990 Page I-02077



Opinion of the Advocate-General

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Mr President,

Members of the Court,

1 . In the present proceedings for a preliminary ruling under Article 177 of the EEC Treaty, the tribunal de commerce ( Commercial Court ), Quimper, has submitted a question on the interpretation of Article 10 of Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat . ( 1 )

2 . The legislative background is as follows . The Council directive just cited, which has been amended several times, in particular by Council Directive 75/431/EEC of 10 July 1975, ( 2 ) lays down rules concerning the health aspects of domestic and intra-Community trade in fresh poultrymeat .

Article 9(1 ) of the directive confers in particular on each Member State the right to prohibit on its territory the release into free circulation of fresh poultrymeat from another Member State if at the time of the health inspection carried out in the country of destination it is found that the meat is unfit for human consumption .

Pursuant to Article 9(3 ), any decision imposing such a prohibition must be communicated to the consignor or his representative together with the reasons for its adoption . If so requested, the reasoned decision must be communicated to him forthwith in writing with an indication of what appeals against it are open under current legislation and the form and time-limits in which they must be commenced .

With respect to the decisions adopted under Article 9(1 ), Article 10 provides that each Member State is to grant to the consignor concerned the right to obtain the opinion of a veterinary expert who is a national of a Member State other than the exporting country or country of destination . The expert must have an opportunity to determine whether the conditions laid down in Article 9(1 ) are satisfied before the competent authorities take any other measures such as destroying the meat .

The last paragraph of Article 10 requires the Commission, acting on a proposal from the Member States, to draw up a panel of veterinary experts who may be instructed to formulate such opinions and, after consulting the Member States, to lay down general rules applicable in particular to the procedure for formulation of the opinions .

3 . The facts are as follows . In May 1987 Doux SA entered into a contract with Alimenta SA for the supply of a number of chickens .

After despatch from France, the goods were seized at the port of Piraeus because they were found to be, in the opinion of the representative of the Greek veterinary authorities, unfit for human consumption . That decision was subsequently confirmed by two committees made up of three and five veterinary experts respectively .

Doux was then authorized, pursuant to Article 10 of Directive 71/118, to request the opinion of a veterinary expert on the aforesaid panel . The expert in question examined the goods and concluded that there were no grounds for not declaring them to be in conformity with the requirements of the directive .

The Greek authorities, to whom that opinion was notified, nevertheless confirmed the earlier seizure and thus prevented the marketing of the goods .

Legal proceedings were then commenced against Doux by Alimenta, which claimed compensation for the damage suffered as a result of failure to supply the goods . In response, the defendant objected that it had fully discharged its obligations under the contract of sale, contending in particular that Article 10 of the directive in question was binding on the national authorities, so that it could not be accused of any breach of contract .

Considering that the decision to be given in the dispute might depend on the interpretation of Article 10 of Directive 71/118, the tribunal de commerce, Quimper, stayed the proceedings and asked the Court for a ruling on the legal effect of the opinion of the veterinary expert appointed under Article 10, according to which "there is no indication that the consignment mentioned above is not certified in conformity with Directive 71/118/EEC", having regard to the fact that the Greek authorities took the opposite view .

A more detailed account of the legislative background and of the facts of the case is given in the Report for the Hearing, to which I refer the Court .

4 . I shall start by saying that, contrary to what was suggested in the observations submitted by the parties to the main proceedings and by the Greek Government, it is not my intention to enter into an examination of the merits of the opinions issued by the Greek veterinary authorities and the veterinary expert appointed under the provision of which an interpretation is sought in these proceedings .

When called on to give a ruling under Article 177 of the EEC Treaty, the Court has no jurisdiction to apply the Community provision concerned to a specific case but must confine itself to giving the national court, on the basis of the information contained in the file on the case, the information necessary to allow it to decide the dispute . ( 3 )

Furthermore, the question submitted by the national court is correctly formulated in general terms concerning the legal effect of the opinion, without touching on the merits of the opinion itself .

5 . With regard, on the other hand, to the specific problem of interpretation involved in this case, it must be emphasized in the first place that Article 9 of the directive in question expressly reserves to the Member States the right to prohibit the release into circulation within its territory of meat which is found to be unfit for human consumption .

It is also true that Article 10 of the directive, for its part, provides that the importer is entitled, in the event of a dispute, to obtain the opinion of a veterinary expert . However, that provision says nothing about the legal effect of such an opinion and still less does it contain anything to show that such an opinion is to prevail over any differing assessment by the health authorities of a Member State .

It should also be noted that, in the procedure provided for under Article 10, the Commission' s role is limited to drawing up the panel of veterinary experts proposed by the Member States and that such expert as may from time to time be consulted is to be chosen directly by the trader concerned, who must also bear the expenses associated with the report .

Nor does it seem to me that sufficient support for the interpretation of the provision in question advocated by the plaintiff in the main proceedings is to be found in the wording of the first paragraph of Article 10, according to which each Member State is to ensure that, before the competent authorities take any other measures such as destroying the meat, the expert has an opportunity to determine whether the conditions of Article 9(1 ) are fulfilled .

By using those words, it seems to me that the legislature merely sought to make it clear that the Member State must allow the expert to make the necessary inquiries and, rather than determine the final and irrefutable position, to arrive at his own conclusion, particularly in the event of its becoming necessary to order subsequent destruction of the meat .

It also seems logical to conclude that, if the legislature had wished to make the opinion in question final, as is claimed, such an important intention would have had to appear much more clearly from the text of the directive .

In other words I do not consider that in the present case we are dealing with a lacuna in the text which the Court, as interpreter, must fill . On the contrary, if the legislature did not specifically indicate that the opinion referred to in Article 10 was to be binding on the national authorities, that was simply because it did not wish to attribute that effect to the opinion .

It should then be borne in mind that, in the event of a Member State making use of the right to prohibit imports conferred on it by Article 9 of the directive in an abusive or discriminatory manner, creating unjustified obstacles to trade, the usual remedies provided for in the Treaty and in the national legal systems themselves would be available . More particularly, the Commission could initiate the Treaty-infringement proceedings provided for in Article 169 of the EEC Treaty and the aggrieved trader could have recourse to the national judicial authorities, possibly relying on the direct applicability of Article 30 of the Treaty .

6 . Before concluding, I should like however to reply to an objection raised by the plaintiff in the main proceedings that any interpretation of the provision at issue which did not uphold the binding nature of the opinion provided for in Article 10 would deprive that provision of any useful effect .

That assertion is, in my opinion, without foundation . Even if it is not binding on the national authorities, the expert' s opinion continues to be of specific benefit from many points of view . In the first place, precisely because it is issued by an expert who is of a nationality different from that of the directly interested parties and has no connection with the dispute, the opinion may prompt the parties to review their positions, thus fostering the possibility of settlement of the dispute without recourse to legal proceedings; moreover, the opinion may certainly be an important factor, if not necessarily the decisive one, in enabling any court before which the matter may be brought to make its assessment; and finally, it may provide the Commission with important information concerning the possibility that the measures adopted by the national authorities might be discriminatory, for the purpose of deciding whether to commence infringement proceedings under Article 169 of the EEC Treaty . Moreover, that eventuality actually materialized in the present case since, as the Commission itself stated at the hearing, it took the view, on the basis in particular of the conclusions reached by the expert, that the measures adopted by the Greek authorities were unjustified and it sent a letter to the Greek Government formally calling for its observations, followed by a reasoned opinion on 28 September 1989 .

7 . For the foregoing reasons, I therefore propose that the Court give the following answer to the question submitted to it by the tribunal de commerce, Quimper :

"Article 10 of Council Directive 71/118/EEC, properly construed, means that the opinion issued by the veterinary expert referred to in that article is not binding on the national authorities of the Member States ."

(*) Original language : Italian .

( 1 ) OJ, English Special Edition 1971 ( I ), p . 106 .

( 2 ) OJ 1975, L 192, p . 6 .

( 3 ) See judgments of 11 July 1985 in Case 137/84 Ministère public v Mutsch (( 1985 )) ECR 2681, paragraph 6, and of 26 January 1977 in Case 49/76 Gesellschaft fuer UEberseehandel v Handelskammer Hamburg (( 1977 )) ECR 41, paragraph 4 .