OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 22 SEPTEMBER 1983 ( 1 )

Mr President,

Members of the Court,

1. The scope of the questions

In all the written and oral observations submitted in these proceedings attention has for various reasons been given to matters which were not even raised by the national court. In the light of the Court's case-law on the division of tasks between the national courts and the Court of Justice in the context of the preliminary ruling procedure and in order to avoid prejudicing the national appeal proceedings which are still in progress, in this opinion I shall go beyond the limits of the questions submitted to the Court only in so far as is necessary to ensure that the Court's answer to those questions is properly understood.

Accordingly, I shall begin by recalling the questions referred to the Court. Read together, the questions in the three joined cases are as follows : ( 2 )

1. Does a (systematic) public health inspection on importation of meat, which was the subject-matter of Council Directives 64/432, 64/433 and 71/118 on animal-health problems affecting intra-Community trade in bovine animals and swine, in fresh meat and in fresh poultry-meat respectively, carried out to ascertain any changes in the condition of the meat goods whilst in transit from the exporting country and their state of preservation on entering Belgian territory, fall within the scope of the public health inspection carried out in the exporting country in accordance with the aforementioned directives?

2. If not, is that inspection compatible with Article 30 et seq. of the EEC Treaty and may it possibly be justified by virtue of Article 36 of the EEC Treaty?

I have certain observations to make regarding the scope of those questions. At the same time I would like to refer to the factual explanation relating to those questions which was given by the national court itself.

(a) Clearly the first question is concerned exclusively with the scope of the applicable directives and with the question whether the duties of inspection which they impose upon the exporting country in relation to the condition of the goods in transit are intended to ensure that those goods were in good condition only at the time of shipment or also during transportation and at the time and place of arrival. As is clear from the documents before the Court, the plaintiffs in the main action and the Commission consider that question should be answered in the affirmative, whilst in the opinion of the Belgian and French Governments it should be answered in the negative. However, in contrast to the Belgian Government, the French Government on the basis of its interpretation of the Court's case-law concerning Article 36 of the Treaty comes to the same conclusion as the Commission.

(b) With regard to the repercussions of the answer to the first question on the importing country's powers of inspection, the national court has asked a supplementary question, but only in the event of the first question being answered in the negative. The national court apparently considers that, if the first question is answered in the affirmative, it is clear that systematic inspections are prohibited by the directives in question. In view of the differences of opinion concerning the concept of “systematic inspection” which emerged during the oral procedure, I consider that in that connection it is more appropriate to speak of “systematic inspections, not restricted to samples taken from a small proportion of consignments”. I share the view that it is unnecessary to consider in detail the legal effects of an affirmative answer to the first question.

(c) Since in the oral procedure the Belgian Government stated without being challenged that at the relevant time the systematic inspections were carried out not at the frontier but within the State, it is significant that the questions themselves are not confined to inspections at the frontier.

(d) It is clear from the first subparagraph on page 7 of its judgment that the national court has expressly refrained from asking the Court whether the systematic inspections carried out may possibly be justified on the basis of provisions of national law for the elimination of residues of substances with bacteriostatic, hormonal or anti-hormonal action, that is to say substances which are not covered by the directives in question. For the reasons stated earlier, in its answer the Court should consider the limits set by Community law in those circumstances only in so far as is necessary in order to avoid any misunderstandings concerning the scope of its answer.

(e) There is of course even less need for the Court to consider in its answer the question of the payment of inspection charges, which constitutes the real issue in the main proceedings, since the national court has not submitted any questions thereon to the Court. In that connection I would merely observe that, even if the first question submitted to the Court is answered in the negative, it does not by any means follow automatically in the light of the case-law of the Court concerning public health inspection charges that such charges may be imposed.

(f) In the final part of the judgment making the reference there is a further observation, added to clarify the questions submitted, to the effect that “in considering the question raised regard should be had to the fact that the Belgian public health inspection on importation involves, on the one hand, measures which merely repeat the inspection carried out in the exporting country in accordance with the requirements of the relevant directives and, on the other hand, measures intended, as stated above, to ascertain any changes in the condition of the goods concerned whilst in transit from the exporting State and also their state of preservation on entering Belgian territory”. I have already observed that, according to the Belgian Government, that explanation regarding the question submitted is based on a misconception, in so far as the inspection takes place not when the goods enter Belgian territory but only upon their arrival at a national customs office situated in the place of destination. Moreover, it must be borne in mind in connection with that explanation that the question itself does not raise the matter of the repetition of the inspection carried out in the exporting country. This Court may not of course decide within the framework of the preliminary ruling procedure, whether the facts specified in the explanation arc correct.

(g) Finally, I would observe that Directive 64/432, which was mentioned by the national court, is of less importance in the present case since it is concerned with the transport of live cattle, and that Directive 64/433 was amended, according to the information provided by the Commission during the oral procedure, by Directive 69/349/EEC (Official Journal, English Special Edition 1969 (II), p. 431).

(h) Although none of the main actions was concerned with live cattle, the national court clearly took the view that Directive 64/432 was indirectly relevant to the questions submitted.

2. Answer to the questions submitted

In answering the questions seen in those terms, I wish to state first and foremost that, according to the case-law of the Court, even if no harmonization directive concerning public health inspections are in force within the Community, Article 36 of the EEC Treaty by no means unconditionally allows systematic national inspections to be carried out in the importing country. Apart from the principle of proportionality and the duty in such circumstances to take account of equivalent inspections carried out in the exporting country, the prohibition of arbitrary discrimination and of disguised restrictions on trade is also relevant. In my opinion, unlawful discrimination exists where an inspection to ascertain the condition of goods following transportation within the State takes place less frequently or is carried out in the actual place where the goods are marketed, whilst the inspection of imported meat is carried out within the State at a place other than its actual destination and the imported products, having undergone inspection, must then be reloaded, with all the risks to the quality of the meat which results from the break in transit and to which the Commission rightly drew attention during the oral procedure. In order to avoid the misunderstanding that, where there are no relevant provisions in the directives, any form of national inspection is compatible with Community law, it is advisable in my view that in its answer the Court should also define in general terms the limits set by Community law in those circumstances. That strikes me as all the more advisable since harmonizing directives such as those at issue in this case can in no way have as their purpose or effect to replace Articles 30 to 36 inclusive with other restrictions on the freedom of inspection enjoyed by the Member States. On the contrary, their only effect can be to restrict still further national inspection measures which restrict trade, but are still permitted by Article 36 (see the judgment of the Court in Case 104/75 de Peijper [1976] ECR 613).

As far as the first question which was submitted by the national court and which I clarified earlier is concerned, I share the Commission's view that it follows unequivocally from the text, the scheme and the objectives of the three directives in question that the guarantees regarding the preservation of the meat during transportation which the duty of inspection imposed on the exporting country is intended to provide remain valid throughout transportation and therefore extend to transportation between the frontier and the place of destination in the importing country. In that respect I would refer not only to the detailed and, by their nature, permanent safeguards contained in the other paragraphs of the relevant chapter, but in particular also to paragraph 50 of Chapter XIII in Annex I to Directive 69/349, which was in force at the material time and which amended Directive 61/433 of 26 June 1964 on health problems affecting intra-Community trade in fresh meat. Paragraph 50 expressly states that the purpose is to provide safeguards throughout transportation. The same applies to paragraph 36 of Chapter XI in Annex I to Directive 71/118 of 15 February 1971 concerning poultry-meat and the safeguards regarding transportation contained in Directive 64/432.

Furthermore, unlike the Belgian Government, I share the view of the plaintiffs and the Commission that the Court's judgment in Case 35/76 Simmenthal [1976] ECR 1871 and its judgment of 12 July 1979 in Case 153/78 Commission v Germany [1979] ECR 2555 are relevant for the purposes of the reply to be given to the question submitted in this case. I would refer in that connection in particular to paragraphs 15, 16, 19 and 20 of the decision in the Simmenthal case. It follows from paragraph 16 that the legal considerations relating to the transfer in principle of the responsibility for inspections to the exporting Member State, and to the fact that as a result systematic inspections in the importing country are no longer justified under Article 36 of the EEC Treaty, also apply to measures adopted to ensure compliance with the safeguards relating to transportation in the exporting country. The view expressed by the Belgian Government that the present case, in contrast to paragraph 19 of that judgment, is concerned not with inspections at the frontier but with inspections within the State can in no way detract from the relevance of that paragraph since Article 36 of the EEC Treaty applies to all import restrictions and not only to import restrictions at the frontier. The same therefore holds true as regards the scope of that paragraph. As far as the Court's judgment in Case 153/78 is concerned, I consider paragraph 11 thereof to be particularly significant since it clearly implies that, in the Court's view, the safeguards regarding the condition of the meat which are contained in the directive are applicable throughout transportation and the question whether or not an intra-Community frontier is crossed during transit does not affect their importance.

3. Conclusion

On the basis of those considerations I suggest that the answer to the first question referred to the Court should be as follows:

“The duties in the matter of inspections imposed on the exporting Member State by Council Directives 64/432/EEC, 64/433/EEC (as amended by Directive 69/349/EEC) and 71/118/EEC and the restrictions which those duties, considered in conjunction with Articles 30 and 36 of the EEC Treaty, entail for the powers of the importing countiy to cany out systematic public health inspections — that is to say, inspections which are not restricted to samples taken from a small proportion of consignments — also extend to any changes in the condition of the goods throughout transportation from the exporting country and to their state of preservation on arrival (at their destination) in Belgian territory.”

In the light of that answer, the second question, which was submitted by the national court only in the event of a negative answer to the first question, need not be considered.

( 1 ) Translated from the Dutch.

( 2 ) Directive 71/118/EEC is not relevant to all three cases.