Opinion of Mr Advocate General La Pergola delivered on 4 July 1996. - Woodspring District Council v Bakers of Nailsea Ltd. - Reference for a preliminary ruling: High Court of Justice, Bristol Mercantile Court - United Kingdom. - Ante-mortem health inspections in slaughterhouses - Validity - Role of official veterinarians - Charges passed on to slaughterhouse operators. - Case C-27/95.



European Court reports 1997 Page I-01847



Opinion of the Advocate-General

1 The questions submitted by the High Court of Justice (Bristol Mercantile Court) by order of 20 January 1995 concern the validity of certain provisions of the Community legislation governing health inspections of cattle.

2 The proceedings which have given rise to the questions referred to the Court are briefly summarized below.

Woodspring District Council (hereinafter `Woodspring'), the plaintiff in the main proceedings, is a local authority in the south-west of England. Bakers of Nailsea Limited (hereinafter `Bakers'), the defendant in the main proceedings, owns a slaughterhouse in Nailsea, a town in the Woodspring District.

Under the Community legislation now in force, (1) a veterinary surgeon regularly attended at the defendant's premises and conducted the prescribed health inspections. The charges for that service were invoiced to the plaintiff, which then passed them on to the defendant at the same rate. However, Bakers declined to pay the charges, contending before the national court that the applicable Community rules were invalid. In particular, it challenged the legality of the provisions requiring a veterinary surgeon to perform the inspections and other rules providing for ante-mortem inspections and the passing on of the fees to the slaughterhouse operator. The national court therefore referred the following questions to the Court of Justice for a preliminary ruling:

`1. Is a private party in the circumstances of this case entitled to rely in the national court upon Articles 39 and 40(3) of the EC Treaty, and/or the general principles of proportionality and equal treatment, as grounds for challenging the validity of Community legislation?

2. Is Directive 64/433/EEC as amended and replaced by Directive 91/497/EEC invalid, having regard to Articles 39 and 40(3) of the EC Treaty and the general principle of proportionality, in so far as it requires and/or permits Member States to require health inspections at slaughterhouses to be carried out by veterinary surgeons and/or in so far as it requires ante-mortem inspections to be carried out?

3. If the answer to question 2 is in the affirmative:

(a) What if any temporal limitation is to be placed upon such invalidity and/or upon its effects?

(b) In the circumstances of this case, is a national competent authority prohibited by Community law from enforcing a provision of domestic legislation requiring health inspections at slaughterhouses to be carried out by or under the supervision of veterinary surgeons when that provision purports to implement Directive 64/433/EEC as amended but which also has or purports to have another, independent legal basis in national law?

4. Is it contrary to Articles 39 and/or 40(3) of the EC Treaty, or the general principles of equality and/or proportionality, for the costs of health inspections by veterinary surgeons of animals intended for slaughter to be borne by the slaughterhouse at which the animals are to be slaughtered?'

The first question

3 The aim of the first question is, essentially, to determine whether a private individual challenging the validity of a Community legislative provision may allege infringement of Articles 39 and 40 of the Treaty and breach of the general principles of proportionality and equal treatment.

In my opinion, that question must be answered in the affirmative. I do not see any reason for which the Court might be precluded from examining the validity of a Community provision which has a direct impact on the area of activity of the person concerned in the same way as the basic provisions referred to above. It is unnecessary to go into further detail on this point.

The second question

4 By its second question, the national court seeks a ruling from the Court of Justice on the validity of the Community provisions which require the involvement of a veterinary surgeon in the course of health inspections and of the other provisions which require ante-mortem inspections of animals to be slaughtered. (2)

Bakers's view is that those provisions are invalid because, in adopting them, the Council misused the discretion available to it. Accordingly, neither the status of veterinary surgeon nor the requirement of an ante-mortem control is conducive to the objectives laid down in Article 39 of the Treaty in relation to the common agricultural policy.

I am not persuaded by that argument. First, I would point out that pursuit of the objectives of the common agricultural policy cannot, as the Court has made clear on other occasions, (3) disregard requirements in the public interest, such as protection of consumers, of health, and of the life of people and the animals themselves. However, the legislative provisions at issue in this case conform precisely with those objectives. Both are intended to ensure the proper and timely diagnosis of any diseases which might render meat unfit for consumption, the aim being to uphold the unrelinquishable values of public health and consumer protection. The fact of having introduced an appropriate system of hygiene and health controls for meat also makes a decisive contribution to ensuring in the marketplace confidence in the quality and healthiness of the product. Furthermore, the only possible consequence thereof is an increase in consumption and, therefore, in the volume of trade and production. And that is the way to attain the fundamental objectives laid down in Article 39, namely an increase in productivity, rational development of production, the guarantee of a fair standard of living for the agricultural community and security of supplies.

5 Bakers also contends that the legislative provisions at issue in this case contravene the principle of proportionality. Recourse to a veterinary surgeon, it claims, is unjustified and excessive, since abnormal states of health in animals to be slaughtered could be effectively diagnosed by other persons with appropriate experience in the sector. Similarly disproportionate, it maintains, is the requirement of an ante-mortem inspection, since the quality of the meat from the hygiene and health point of view is assumed to be sufficiently ensured by the post-mortem inspection.

It is not clear how that criticism differs from the one considered earlier. In this case too, the Bakers alleges - on the ground that the prescribed measures lack proportionality - that the Community legislature has gone beyond the limits placed on it by the Treaty in exercising its discretionary powers. That criticism, even assuming that it can be considered separately, likewise does not deserve to be upheld. The provisions of the directive referred to earlier are inspired by the intention to safeguard public health and promote trade in and consumption of meat. To that end, it is provided that health inspections of animals are to be carried out by the person who is not only fully qualified but, more than that, is the person, let me go so far as to say, who is naturally qualified to carry it out, namely a veterinary surgeon. Frankly, I do not see how such a choice can be criticized, particularly since the legislation in question was adopted in connection with the elimination of veterinary controls at frontiers: they are now carried out in the country of dispatch and cannot be repeated in the country of destination. For that reason too, it is of fundamental importance that controls should be entrusted to particularly well-qualified persons, as can be seen from the sixth recital in the preamble to Directive 64/433/EEC: `the issue of a health certificate prepared by an official veterinarian of the exporting country is ... the best way of assuring the competent authorities of the country of destination that a consignment of meat complies with the provisions of this directive'.

As far as the ante-mortem inspection is concerned, it too fulfils a fundamentally important function. It need only be borne in mind that certain illnesses can only be effectively diagnosed if the animal is alive. (4)

That said, it is clear that the legislative machinery created by the directive, far from contravening the principle of proportionality, embodies it: inspections are carried out by the person whose competence is best assured and they are carried out both before and after slaughter of the animal. The Community directive adopted a uniform criterion according to which the inspection in the State of dispatch is carried out by a person who can reasonably be assumed, by virtue of his qualification and professional experience, to be competent to carry it out. To provide otherwise would fall short of the requirements which, in this case, were satisfied specifically in accordance with the very principle of proportionality invoked by Bakers. The measure criticized is properly commensurate with the aim which the legislature sought to pursue.

6 I therefore consider that in this case there is no evidence of any abuse by the Council of its discretionary power. That is so particularly because, as the Court has repeatedly held, the margin of discretion enjoyed by the Community legislature in connection with the common agricultural policy is broad and its exercise is open to criticism only if the Council's assessment `appears manifestly incorrect in the light of the information available to the legislature at the time of the adoption of the rules in question'. (5) That is clearly not the case in the present instance.

The third question

7 The third question needs to be dealt with only if the second question is answered in the affirmative and will not therefore be considered.

The fourth question

8 The fourth question concerns the validity of the Community rules on the obligation to bear the charges for veterinary inspections. Bakers's view is that those provisions are invalid, in so far as the charges in question are payable by the slaughterhouse operator. That, in Bakers's view, is contrary to the settled case-law of the Court, (6) according to which the charges should be borne by the public as a whole, who enjoy the benefits of the free movement of goods.

That argument is without foundation. In the first place, it must be pointed out that the national court has submitted its question on the premise that the Community provisions at issue are to be interpreted as requiring slaughterhouses to bear the charges. However, that is not the case. Article 4 of Directive 85/73, as amended by Directive 93/118/EC, provides: `The fees shall be payable by the operator or owner of the establishment carrying out the operations ... who shall have the option of passing on the cost of the fee for the operation concerned to the natural or legal person on whose behalf the said operations are carried out.' (7) Also, as the United Kingdom noted in its written observations, the national legislation applicable in the main proceedings certainly does not prevent the veterinary inspection charges being transferred by the slaughterhouse operator to those who request slaughtering. The premise on which Bakers alleges that the provisions in question are invalid thus fails.

I therefore consider that the legislative provisions at issue here are not in any way invalid. The charges for veterinary inspections are initially borne by the slaughterhouse manager, and may then be transferred by the latter to those who request the service. In short, those charges - which, it must be repeated, are necessary to guarantee the healthiness and quality of the product - affect the economic agent who places the product on the market. This is a fair solution, which does not conflict with any objective of the common agricultural policy. I do not think that there is any good reason for challenging it.

Conclusion

In view of the foregoing considerations, I suggest that the Court give the following ruling in response to the questions referred to it by the High Court of Justice (Bristol Mercantile Court):

(1) A private party who challenges the validity of Community legislation may allege infringement of Articles 39 and 40 of the Treaty, and breach of the general principles of proportionality and equal treatment.

(2) and (4) Having regard to the information provided in the order for reference, it does not appear that Directives 91/497/EEC and 93/118/EC can be regarded as rendered in any way unlawful by the provisions thereof pursuant to which veterinary inspections are to be carried out by a veterinary surgeon, ante-mortem health checks are to be carried out on the animal to be slaughtered and the cost of such inspections is to be borne initially by the owner and/or operator of the slaughterhouse where the slaughtering takes place.

(1) - The applicable legislation is Council Directive 64/433/EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat (OJ, English Special Edition 1963-1964, p. 185), as amended by Council Directive 91/497/EEC of 29 July 1991 amending and consolidating Directive 64/433/EEC on health problems affecting intra-Community trade in fresh meat to extend it to the production and marketing of fresh meat (OJ 1991 L 268, p. 69). The financing of health inspections is governed by Council Directive 85/73/EEC of 29 January 1985 on the financing of health inspections and controls of fresh meat and poultrymeat (OJ 1985 L 32, p. 14), as amended by Council Directive 88/409/EEC of 15 June 1988 laying down the health rules applying to meat intended for the domestic market and the levels of the fees to be charged pursuant to Directive 85/73/EEC, in respect of the inspection of such meat (OJ 1988 L 194, p. 28), and by Council Decision 88/408/EEC of 15 June 1988 on the levels of the fees to be charged for health inspections and controls of fresh meat pursuant to Directive 85/73/EEC and Council Directive 93/118/EC of 22 December 1993 amending Directive 85/73 on the financing of health inspections and controls of fresh meat and poultrymeat (OJ 1993 L 340 p. 15).

(2) - See Article 3(1)(A)(b) and (d), Chapters VI and VIII of Annex I, and Article 9 of Directive 64/433/EEC, as amended by Directive 91/497/EEC.

(3) - Case C-131/86 United Kingdom v Council [1988] ECR 905.

(4) - Furthermore, by virtue of paragraph 27(c) of Annex I to Directive 64/433/EEC, as amended by Directive 91/497/EEC, the ante-mortem inspection is intended to make it possible to determine whether the animals `are tired, agitated or injured'. If they are found to be so, it is laid down that slaughter is to be deferred for a sufficient time to allow the animal in question to rest. Clearly, such an examination can only be carried out on a live animal: `tiredness' and `agitation' cannot of course be identified in a carcass.

(5) - See Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle v Council and Commission [1981] ECR 3211 and Joined Cases C-267/88 to C-285/88 Wuidart & Others [1990] ECR I-435, paragraph 14. Emphasis added.

(6) - See Case 87/75 Bresciani [1976] ECR 129 and Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Carni [1993] ECR I-6621. It need hardly be pointed out that those decisions, relied on by Bakers in support of its views, have absolutely no bearing on the decision to be given in this case. Those cases concerned pecuniary charges imposed unilaterally by a Member State in order to finance veterinary inspections. The Court was thus called on to determine whether those charges constituted barriers to the free movement of goods, prohibited by the Treaty. This case, on the other hand, concerns rules adopted by the Community which are applicable uniformly in all the Member States. Furthermore, as I shall make clear below, the charges for veterinary inspections are initially borne by the slaughterhouse operators and may subsequently be transferred by them to the person requesting that service. Therefore, as rightly pointed out by the British Government and Woodspring, those charges are ultimately borne by the consumer of the meat and thus become a component of the cost of the product. This satisfies the requirement, to which the Court drew attention in the abovementioned cases, that such charges should be borne by the public as a whole, who enjoy the advantages deriving from health inspections.

(7) - Emphasis added.