Judgment of the Court (Second Chamber) of 6 October 1983. - SA Delhaize Frères "Le Lion" and others v Belgian State. - References for a preliminary ruling: Tribunal de première instance de Bruxelles - Belgium. - Public health inspections at the frontier - Harmonization directives - Articles 30 and 36. - Joined cases 2/82, 3/82 and 4/82.



European Court reports 1983 Page 02973



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . PRELIMINARY RULINGS - JURISDICTION OF THE COURT - LIMITS - OBJECTIONS RAISED ON APPEAL AGAINST THE JUDGMENT MAKING THE REFERENCE - CONSIDERATION BY THE COURT - EXCLUSION

( EEC TREATY , ART . 177 )

2.FREE MOVEMENT OF GOODS - DEROGATIONS - PROTECTION OF HEALTH - PUBLIC HEALTH INSPECTIONS ON IMPORTATION - LAWFULNESS - LIMITS - HARMONIZATION OF PUBLIC HEALTH LEGISLATION ON TRADE IN FRESH MEAT AND FRESH POULTRY-MEAT

( EEC TREATY , ART . 36 ; COUNCIL DIRECTIVES 64/433 AND 71/118 )

3.FREE MOVEMENT OF GOODS - DEROGATIONS - PROTECTION OF HEALTH - PUBLIC HEALTH INSPECTIONS ON IMPORTATION - LIMITS - HARMONIZATION OF HEALTH LEGISLATION ON TRADE IN FRESH MEAT AND FRESH POULTRY-MEAT - SCOPE

( COUNCIL DIRECTIVES 64/433 AND 71/118 )

Summary

1 . ARTICLE 177 OF THE EEC TREATY , WHICH IS BASED ON A DIVISION OF TASKS BETWEEN THE NATIONAL COURT AND THE COURT OF JUSTICE AS REGARDS THE APPLICATION OF COMMUNITY LAW , DOES NOT PERMIT THE COURT EITHER TO APPRAISE THE FACTS OF THE CASE OR TO QUESTION THE REASONS WHICH LED TO THE REQUEST FOR INTERPRETATION .

THE QUESTIONS SUBMITTED BY THE NATIONAL COURT MUST THEREFORE BE ANSWERED WITHOUT REGARD TO OBJECTIONS WHICH HAVE LED ONE OF THE PARTIES TO APPEAL AGAINST THE JUDGMENT MAKING THE REFERENCE .

2.THE HARMONIZED SYSTEM OF PUBLIC HEALTH INSPECTIONS , INTRODUCED IN PARTICULAR BY DIRECTIVE 64/433 , HAS AS ITS PURPOSE THE ABOLITION OF BARRIERS TO INTRA-COMMUNITY TRADE IN FRESH MEAT BY THE HARMONIZATION OF PUBLIC HEALTH MEASURES . THAT SYSTEM , WHICH IS BASED ON THE PRINCIPLE THAT THE PUBLIC HEALTH GUARANTEES REQUIRED BY ALL THE MEMBER STATES ARE EQUIVALENT , ACCORDINGLY HAS AS ITS PURPOSE TO TRANSFER SUPERVISION TO THE EXPORTING MEMBER STATE AND TO REPLACE IN THIS WAY THE SYSTEMATIC MEASURES OF PROTECTION AT THE FRONTIER WITH A UNIFORM SYSTEM SO AS TO MAKE MULTIPLE FRONTIER INSPECTIONS UNNECESSARY , WHILST AT THE SAME TIME GIVING THE MEMBER STATE OF DESTINATION THE OPPORTUNITY OF ENSURING THAT THE GUARANTEES PROVIDED BY THE SYSTEM OF INSPECTIONS THUS STANDARDIZED ARE IN FACT GIVEN .

IN THOSE CIRCUMSTANCES , SYSTEMATIC PUBLIC-HEALTH INSPECTIONS AT THE FRONTIER OF THE PRODUCTS REFERRED TO IN THE ABOVE-MENTIONED DIRECTIVE ARE NO LONGER NECESSARY OR , CONSEQUENTLY , JUSTIFIED UNDER ARTICLE 36 OF THE TREATY .

ONLY OCCASIONAL INSPECTIONS ARE PERMISSIBLE , PROVIDED THAT THE NUMBER IS NOT INCREASED TO SUCH AN EXTENT AS TO CONSTITUTE A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES .

THOSE CONSIDERATIONS MUST BE EXTENDED , FOR THE SAME REASONS , TO THE PRODUCTS COVERED BY DIRECTIVE 71/118 ON PROBLEMS AFFECTING TRADE IN FRESH POULTRY-MEAT .

3.IT FOLLOWS FROM THE PROVISIONS OF DIRECTIVES 64/433 AND 71/118 , TAKEN AS A WHOLE , THAT THE PUBLIC HEALTH INSPECTIONS CARRIED OUT IN THE EXPORTING COUNTRY ALSO RELATE TO THE TRANSPORT OF MEAT AND POULTRY AND , CONSEQUENTLY , EXTEND TO THEIR STATE OF PRESERVATION THROUGHOUT TRANSPORTATION , INCLUDING THEREFORE THE TIME AT WHICH A FRONTIER IS CROSSED .

CONSEQUENTLY , A SYSTEMATIC PUBLIC HEALTH INSPECTION ON THE OCCASION OF THE IMPORTATION OF MEAT AND POULTRY , CARRIED OUT IN ORDER TO ASCERTAIN ANY CHANGES IN THEIR CONDITION WHILST IN TRANSIT FROM THE EXPORTING STATE AND THEIR STATE OF PRESERVATION ON ENTERING THE TERRITORY OF THE STATE OF DESTINATION , FALLS WITHIN THE SCOPE OF THE PUBLIC HEALTH INSPECTION CARRIED OUT IN THE EXPORTING COUNTRY IN ACCORDANCE WITH DIRECTIVES 64/433 AND 71/118 .

Parties

IN JOINED CASES 2 TO 4/82

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL DE PREMIERE INSTANCE ( COURT OF FIRST INSTANCE ), BRUSSELS , FOR A PRELIMINARY RULING IN THE THREE ACTIONS PENDING BEFORE THAT COURT BETWEEN

SA DELHAIZE FRERES ' ' LE LION ' ' , HAVING ITS REGISTERED OFFICE IN BRUSSELS ( CASE 2/82 ),

SA G.B.-INNO-BM , HAVING ITS REGISTERED OFFICE IN BRUSSELS ( CASE 3/82 ),

SA METSDAGH , HAVING ITS REGISTERED OFFICE IN GOSSELIES ( CASE 4/82 ),

AND

THE BELGIAN STATE , REPRESENTED BY THE MINISTER FOR PUBLIC HEALTH AND THE ENVIRONMENT , BRUSSELS ,

Subject of the case

ON THE INTERPRETATION OF COUNCIL DIRECTIVES 64/432/EEC OF 26 JUNE 1964 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-64 , P . 164 ), 64/433/EEC OF 26 JUNE 1964 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION , 1963-64 , P . 185 ) AND 71/118/EEC OF 15 FEBRUARY 1971 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 106 ) AND OF ARTICLES 30 AND 36 OF THE EEC TREATY ,

Grounds

1 BY JUDGMENTS OF 8 OCTOBER 1981 , WHICH WERE RECEIVED AT THE COURT ON 7 JANUARY 1982 , THE TRIBUNAL DE PREMIERE INSTANCE ( COURT OF FIRST INSTANCE ), BRUSSELS , REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY TWO QUESTIONS , ONE ON THE INTERPRETATION OF THREE DIRECTIVES CONCERNING PUBLIC HEALTH INSPECTIONS OF BUTCHER ' S MEAT AND POULTRY-MEAT ( COUNCIL DIRECTIVES 64/432 OF 24 JUNE 1964 , OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-64 , P . 164 ; 64/433 OF 26 JUNE 1964 , OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-1964 , P . 185 ; AND 71/118 OF 15 FEBRUARY 1971 , OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( I ), P . 106 ) AND THE OTHER , WHICH WAS SUBMITTED IN THE EVENT OF A NEGATIVE ANSWER TO THE FIRST QUESTION , CONCERNING THE INTERPRETATION OF ARTICLES 30 AND 36 OF THE EEC TREATY .

2 THOSE QUESTIONS WERE RAISED IN THE CONTEXT OF PROCEEDINGS INSTITUTED AGAINST THE BELGIAN STATE BY THREE BELGIAN UNDERTAKINGS ENGAGED IN THE IMPORTATION OF BUTCHER ' S MEAT AND POULTRY-MEAT IN CONNECTION WITH PUBLIC HEALTH INSPECTIONS AND THE CHARGES RELATING THERETO PAID BY THOSE UNDERTAKINGS .

3 IT IS CLEAR FROM THE JUDGMENTS MAKING THE REFERENCE THAT THE INSPECTIONS IN QUESTION WERE CARRIED OUT IN ACCORDANCE WITH THE APPLICABLE BELGIAN LEGISLATION . HOWEVER , THE PLAINTIFFS CONTENDED THAT THE INSPECTIONS WERE MERELY A REPETITION OF THE FIRST INSPECTION CARRIED OUT BY THE EXPORTING STATE AND WERE THEREFORE INCOMPATIBLE WITH THE PROVISIONS OF THE RELEVANT COMMUNITY DIRECTIVES . THE PLAINTIFFS THEREFORE CLAIMED REPAYMENT OF THE INSPECTION CHARGES PAID TO THE BELGIAN STATE .

4 IN THE PROCEEDINGS BEFORE THE NATIONAL COURT , THE GOVERNMENT OF THE KINGDOM OF BELGIUM CHALLENGED THE PLAINTIFFS ' ARGUMENT ON THE GROUND THAT THE BELGIAN INSPECTION FELL OUTSIDE THE SCOPE OF THE DIRECTIVES , INASMUCH AS IT DIFFERED FROM THAT CARRIED OUT IN THE EXPORTING STATE . IN ITS VIEW , THE MAIN PURPOSE OF THAT INSPECTION WAS FIRST OF ALL TO ASCERTAIN WHETHER ANY CHANGES HAD OCCURRED IN THE CONDITION OF THE MEAT OR POULTRY WHILST IN TRANSIT AND ITS STATE OF PRESERVATION AND , SECONDLY , TO DETECT ANY RESIDUES OF BACTERIOSTATIC SUBSTANCES WITH HORMONAL OR ANTI-HORMONAL ACTION WHICH THE MEAT MIGHT CONTAIN .

5 IN ITS ANALYSIS OF THE INSPECTION CARRIED OUT BY THE BELGIAN AUTHORITIES , THE NATIONAL COURT FIRST TOOK THE VIEW THAT , IN SO FAR AS THE PURPOSE OF THE INSPECTION WAS TO DETERMINE WHETHER THE IMPORTED GOODS WERE IN CONFORMITY WITH THE BELGIAN LEGISLATION , IT MANIFESTLY CONSTITUTED , IN THE CIRCUMSTANCES , A SYSTEMATIC REPETITION OF THE FIRST INSPECTION CARRIED OUT IN THE EXPORTING COUNTRY AND WAS THUS INCOMPATIBLE WITH THE RELEVANT PROVISIONS OF COMMUNITY LAW .

6 HAVING COME TO THAT CONCLUSION , THE NATIONAL COURT CONSIDERED THAT IT REMAINED TO BE DETERMINED WHETHER A SYSTEMATIC INSPECTION , IN SO FAR AS ITS PURPOSE WAS TO ASCERTAIN ANY CHANGES IN THE CONDITION OF THE GOODS WHILST IN TRANSIT FROM THE EXPORTING STATE AND THEIR STATE OF PRESERVATION ON ENTERING BELGIAN TERRITORY , WAS COMPATIBLE WITH THE PROVISIONS OF COMMUNITY LAW APPLICABLE IN THE PRESENT CASE . IT TOOK THE VIEW THAT IT WAS NECESSARY , BEFORE GIVING JUDGMENT , TO REFER TWO QUESTIONS TO THE COURT FOR A PRELIMINARY RULING ON THAT POINT .

7 THE GOVERNMENT OF THE KINGDOM OF BELGIUM AGAIN DENIED BEFORE THE COURT THAT THE PUBLIC HEALTH INSPECTIONS CARRIED OUT BY IT ON BOTH BUTCHER ' S MEAT AND POULTRY-MEAT WERE MERELY A REPETITION OF THE FIRST INSPECTION PERFORMED IN THE EXPORTING STATE . IT ALSO STATED THAT SUCH INSPECTIONS WERE NOT CARRIED OUT SYSTEMATICALLY AT THE FRONTIER BUT IN CUSTOMS OFFICES OR SUB-OFFICES DESIGNATED FOR THAT PURPOSE .

8 IT THEREFORE EXPRESSED DOUBTS REGARDING THE RELEVANCE OF THE QUESTIONS RAISED AND ASKED THE COURT TO STAY THE PROCEEDINGS PENDING THE JUDGMENT OF THE COUR D ' APPEL ( COURT OF APPEAL ), BRUSSELS , WITH WHICH THE BELGIAN GOVERNMENT HAD LODGED AN APPEAL AGAINST THE JUDGMENT MAKING THE REFERENCE .

9 WITH REGARD TO THOSE ARGUMENTS , IT MUST BE REMEMBERED THAT ARTICLE 177 OF THE EEC TREATY , WHICH IS BASED ON A DIVISION OF TASKS BETWEEN THE NATIONAL COURT AND THE COURT OF JUSTICE AS REGARDS THE APPLICATION OF COMMUNITY LAW , DOES NOT PERMIT THE COURT EITHER TO APPRAISE THE FACTS OF THE CASE OR TO QUESTION THE REASONS WHICH LED TO THE REQUEST FOR INTERPRETATION . THE QUESTIONS SUBMITTED BY THE NATIONAL COURT MUST THEREFORE BE ANSWERED WITHOUT REGARD TO THE OBJECTIONS WHICH LED THE BELGIAN GOVERNMENT TO APPEAL AGAINST THE JUDGMENT MAKING THE REFERENCE .

10 THE FIRST QUESTION ASKS WHETHER A SYSTEMATIC PUBLIC HEALTH INSPECTION ON THE OCCASION OF THE IMPORTATION OF MEAT AND POULTRY , CARRIED OUT IN ORDER TO ASCERTAIN ANY CHANGES IN THEIR CONDITION WHILST IN TRANSIT FROM THE EXPORTING STATE AND THEIR STATE OF PRESERVATION ON ENTERING BELGIAN TERRITORY , FALLS WITHIN THE SCOPE OF THE PUBLIC HEALTH INSPECTION CARRIED OUT IN THE EXPORTING STATE IN ACCORDANCE WITH THE AFOREMENTIONED DIRECTIVES .

11 IT MUST IN THE FIRST PLACE BE POINTED OUT THAT , AS FAR AS FRESH MEAT IS CONCERNED , THE COURT HAS ALREADY STATED IN ITS JUDGMENT OF 15 DECEMBER 1976 IN CASE 35/76 SIMMENTHAL ( 1976 ) ECR 1871 THAT THE HARMONIZED SYSTEM OF PUBLIC HEALTH INSPECTIONS , INTRODUCED IN PARTICULAR BY DIRECTIVE 64/433 , HAS AS ITS AIM THE ABOLITION OF BARRIERS TO INTRA-COMMUNITY TRADE IN FRESH MEAT BY THE HARMONIZATION OF PUBLIC HEALTH MEASURES . THAT SYSTEM , WHICH IS BASED ON THE PRINCIPLE THAT THE PUBLIC HEALTH GUARANTEES REQUIRED BY ALL THE MEMBER STATES ARE EQUIVALENT , ACCORDINGLY HAS AS ITS PURPOSE TO TRANSFER SUPERVISION TO THE EXPORTING MEMBER STATE AND TO REPLACE IN THIS WAY THE SYSTEMATIC MEASURES OF PROTECTION AT THE FRONTIER WITH A UNIFORM SYSTEM SO AS TO MAKE MULTIPLE FRONTIER INSPECTIONS UNNECESSARY , WHILST AT THE SAME TIME GIVING THE MEMBER STATE OF DESTINATION THE OPPORTUNITY OF ENSURING THAT THE GUARANTEES PROVIDED BY THE SYSTEM OF INSPECTIONS THUS STANDARDIZED ARE IN FACT GIVEN .

12 THE COURT ALSO ADDED THAT , IN THOSE CIRCUMSTANCES , SYSTEMATIC PUBLIC HEALTH INSPECTIONS AT THE FRONTIER CARRIED OUT ON THE PRODUCTS REFERRED TO IN DIRECTIVE 64/433 WERE NO LONGER NECESSARY OR , CONSEQUENTLY , JUSTIFIED UNDER ARTICLE 36 OF THE TREATY AND THAT ONLY OCCASIONAL INSPECTIONS WERE PERMISSIBLE , PROVIDED THAT THEY WERE NOT INCREASED TO SUCH AN EXTENT AS TO CONSTITUTE A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES .

13 THOSE CONSIDERATIONS MUST BE EXTENDED , FOR THE SAME REASONS , TO THE PRODUCTS COVERED BY DIRECTIVE 71/118 ON PROBLEMS AFFECTING TRADE IN FRESH POULTRY-MEAT .

14 IT SHOULD BE OBSERVED , MOREOVER , THAT IN ORDER TO ENSURE COMPLETE FREEDOM OF MOVEMENT FOR THE PRODUCTS REFERRED TO , THE TWO AFOREMENTIONED DIRECTIVES DO NOT MERELY ESTABLISH UNIFORM PUBLIC HEALTH REQUIREMENTS FOR THE TREATMENT OF MEAT AND POULTRY-MEAT IN SLAUGHTERHOUSE AND CUTTING PLANTS , BUT ALSO COVER STORAGE AND TRANSPORT .

15 BOTH DIRECTIVES PROVIDE , IN ARTICLE 3 ( SUBPARAGRAPHS ( G ), ( H ) AND ( I ) IN THE CASE OF DIRECTIVE 64/433 AND SUBPARAGRAPHS ( E ), ( F ) AND ( G ) IN THE CASE OF DIRECTIVE 71/118 ), THAT THE MEAT MUST BE ACCOMPANIED BY A HEALTH CERTIFICATE OR BEAR A HEALTH MARKING , MUST BE STORED AFTER POST MORTEM INSPECTION UNDER SATISFACTORY HYGIENIC CONDITIONS IN SLAUGHTERHOUSES , CUTTING PLANTS OR COLD STORES APPROVED AND SUPERVISED WITHIN THE MEANING OF THE RELEVANT PROVISIONS OF EACH DIRECTIVE AND MUST BE TRANSPORTED UNDER SATISFACTORY HYGIENIC CONDITIONS .

16 THE ANNEXES TO THE TWO DIRECTIVES SPECIFY IN DETAIL THE CONDITIONS UNDER WHICH THE HEALTH MARK MUST BE STAMPED ON THE MEAT , THE TEMPERATURE AT WHICH THE MEAT MUST BE STORED , THE REQUIREMENTS FOR PACKAGING POULTRY AND THE RULES GOVERNING TRANSPORT . THUS , THE GOODS MAY BE TRANSPORTED ONLY IN REFRIGERATED VEHICLES WHICH MUST REMAIN SEALED THROUGHOUT TRANSPORTATION AND THE OFFICIAL VETERINARIAN MUST ENSURE BEFORE SHIPMENT THAT VEHICLES AND LOADING CONDITIONS SATISFY THE HYGIENE REQUIREMENTS LAID DOWN IN THE CHAPTER ON TRANSPORT .

17 IT FOLLOWS FROM THE PROVISIONS , TAKEN AS A WHOLE , THAT THE INSPECTIONS CARRIED OUT IN THE EXPORTING COUNTRY ALSO RELATE TO THE TRANSPORT OF MEAT AND POULTRY AND , CONSEQUENTLY , EXTEND TO THEIR STATE OF PRESERVATION THROUGHOUT TRANSPORTATION , INCLUDING THEREFORE THE TIME AT WHICH A FRONTIER IS CROSSED .

18 THE ANSWER TO THE QUESTION SUBMITTED MUST THEREFORE BE THAT A SYSTEMATIC PUBLIC HEALTH INSPECTION ON THE OCCASION OF THE IMPORTATION OF MEAT AND POULTRY , CARRIED OUT IN ORDER TO ASCERTAIN ANY CHANGES IN THEIR CONDITION WHILST IN TRANSIT FROM THE EXPORTING STATE AND THEIR STATE OF PRESERVATION ON ENTERING THE TERRITORY OF THE STATE OF DESTINATION , FALLS WITHIN THE SCOPE OF THE PUBLIC HEALTH INSPECTION CARRIED OUT IN THE EXPORTING COUNTRY IN ACCORDANCE WITH DIRECTIVES 64/433 AND 71/118 .

19 IN VIEW OF THAT ANSWER THE SECOND QUESTION , WHICH WAS SUBMITTED ONLY IN THE EVENT OF A NEGATIVE ANSWER TO THE FIRST QUESTION , NO LONGER SERVES ANY PURPOSE .

Decision on costs

COSTS

20 THE COSTS INCURRED BY THE FRENCH GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL DE PREMIERE INSTANCE , BRUSSELS , BY JUDGMENTS OF 8 OCTOBER 1981 , HEREBY RULES :

A SYSTEMATIC PUBLIC HEALTH INSPECTION ON THE OCCASION OF THE IMPORTATION OF MEAT AND POULTRY , CARRIED OUT IN ORDER TO ASCERTAIN ANY CHANGES IN THEIR CONDITION WHILST IN TRANSIT FROM THE EXPORTING STATE AND THEIR STATE OF PRESERVATION ON ENTERING THE TERRITORY OF THE STATE OF DESTINATION , FALLS WITHIN THE SCOPE OF THE PUBLIC HEALTH INSPECTION CARRIED OUT IN THE EXPORTING COUNTRY IN ACCORDANCE WITH DIRECTIVES 64/433 AND 71/118 .