CELEX: 61991CC0235
Language: en
Date: 1992-10-14
Title: Opinion of Mr Advocate General Gulmann delivered on 14 October 1992. # Commission of the European Communities v Ireland. # Failure to fulfil obligations - Restrictions concerning the importation of semen originating from bovine and porcine animals which is intended to be used for artificial insemination. # Case C-235/91.

OPINION OF ADVOCATE GENERAL
      GULMANN
      delivered on 14 October 1992 (
            *1
         )
      Mr President,
      Members of the Court,
      
               1. 
            
            
               The Commission has brought this case against Ireland in order to obtain a declaration that Irish legislation and administrative practice in connection with the importation of animal semen from other Member States is contrary to Community law.
               The relevant Irish rules are to be found in a 1947 statute, the Live Stock (Artificial Insemination) Act. That Act provides inter alia that the importation of semen from animals to which the act applies may only take place under a licence to which conditions may be attached. The rules in the Act are supplemented by regulations laid down in 1948 in respect of bovines and corresponding regulations laid down in 1965 in respect of swine. Those regulations provide inter alia that bull or boar semen may only be distributed or sold under a licence and that the operation of insemination with imported semen may only be performed subject to approval by the Minister. It appears from the documents before the Court that at least until a few years ago it was the case that semen could only be imported for use in nine approved insemination centres and that import licences were made conditional on compliance with various conditions, including endorsement of the export certificate accompanying the imported semen by an authorized agent and the obligation to put imported semen into quarantine for one month.
            
         
               2. 
            
            
               The Commission's claim is split up into two parts. First the Commission requests that the Court declare that ‘by subjecting all importation of semen to a licence’ Ireland has infringed Article 30 of the EEC Treaty. (
                     1
                  ) The second part of the claim relates to ‘restrictive conditions upon the importation of animal semen’ which the Commission regards as contrary to Council Directive 77/504 and Commission Decision 88/124, on which see further below.
               It is quite clear that the Commission's view that the Irish rules in force constitute an infringement of Article 30 of the Treaty is correct. That is not really disputed by the Irish Government, which has accepted the need for it to adopt new rules which will involve the abolition of the import licensing system and its replacement by a certification procedure in accordance with the relevant directives and decisions on the matter.
               The Irish Government contends, however, that even before the case was lodged it had brought administrative practice into line with the requirements of Community law. Applications for import licences are dealt with within a matter of days; the licences issued are valid for six month periods and the quarantine regulations that previously existed were abolished as long ago as 1987. The Irish Government further contends that a licence requirement is not per se a breach of the applicable Community rules.
            
         
               3. 
            
            
               The Commission's claim causes me certain difficulties which are to a certain degree more a matter of form.
               In the first place, both parts of the claim concern the importation of animal semen in general. Both the administrative procedure before the case was lodged and the statements in the application show, however, that the claim must apply solely to semen from bulls and boars. (
                     2
                  )
               Secondly, and more importantly, it is clear from the Court's judgment in Case 161/82 Commission v France (
                     3
                  ) that at the time that case arose the Commission did not dispute that the French authorities were entitled to make the importation of semen for the insemination of cattle conditional on an import licence provided no stricter conditions were imposed on imported semen than applied to domestically produced semen. That decision was probably based on the fact that the licence requirement could be justified on veterinary and zootechnical grounds. The Commission has, however, rightly pointed out in this case that since that time a number of directives and decisions have been adopted with a view to the harmonization of national requirements based on those grounds. Nevertheless, the Commission referred to such legislation only in connection with bovines.
            
         
               4. 
            
            
               As far as bull semen is concerned, I have no difficulty in agreeing on that basis that the retention of a licensing system such as that in force in Ireland is contrary to Community law.
               There is room for doubt, however, whether the same is true as far as swine semen is concerned. Since Article 30 prohibits in principle national provisions which contain even a purely formal requirement of an import licence or other similar systems, and since such systems may therefore only be approved when the conditions in Article 36 are met, it is incumbent on the Irish Government to show that the import licensing system as far as swine semen is concerned is justified on veterinary and zootechnical grounds. (
                     4
                  ) In my opinion the Irish Government has not shown sufficiently clearly that there are reasons for treating swine semen any differently from bull semen. As mentioned, the Irish Government has, on the contrary, stated that it accepts that its legislation must be amended and a certification procedure introduced. Thus I must agree with the Commission that the import licensing system in operation is contrary to Article 30 as far as swine semen is concerned as well, even though the harmonization on which the Commission relies applies to bovines alone and not to pigs.
            
         
               5. 
            
            
               My third difficulty with the Commission's application concerns the second part of the claim, that is to say, the restrictive conditions connected with the importation of animal semen which, in the Commission's view, are contrary to Directive 77/504 and Decision 88/124. (
                     5
                  ) In introduction I should mention that it seems to me that properly any restrictive conditions connected with import licences should be found to be an infringement of Article 30 of the Treaty and not of provisions in directives and decisions whose purpose is to remove the possibility of Member States relying on Article 36 of the Treaty. (
                     6
                  )
               Moreover, it is not clear to me to which restrictive conditions the Commission is referring in that part of its claim. The Irish Government has, as stated, contended that even before the proceedings were instituted it had begun to apply the licensing system in conformity with the relevant Community rules. That submission is, to be sure, not supported by evidence, but on the other hand the Commission has not shown that it is incorrect. I find it difficult on the above basis to assess whether the administrative practice operating in Ireland at the present time is contrary to Community law. Since the burden of proof lies on the Commission, it seems to me doubtful whether it can be said that restrictive measures are in operation that are contrary to Community law in connection with the actual administration of the licence system.
               On the other hand — and this is in fact more important than what has just been stated — I agree with the Commission that the import licensing system administered in Ireland is contrary to Community law because it is founded upon legislation which empowers the Minister to lay down conditions for import licences without any indication of what conditions are imposed. That is particularly unfortunate in a situation where it is clear that a number of conditions under earlier administrative practice were patently contrary to Community law. It is especially necessary in such a situation that a change in practice should be notified to those concerned in a binding and clear manner. The legal situation which, according to the Irish Government's evidence, obtains in Ireland is per se contrary to Article 30 because for those concerned it is not sufficiently transparent, constituting a real restriction on the free movement of goods between Member States, on which see inter alia the judgment in Case 168/85 Commission v Italy [1986] ECR 2945, in particular paragraph 13.
               If the Commission's claim is rendered more precise in those respects I consider that its case may in principle be upheld.
            
         Conclusion
      
               6.
            
            
               I therefore propose that the Court declare that by maintaining a general import licensing system applicable to the importation of semen from bulls and swine and by not laying down in a binding and clear manner the conditions which are to apply to the importation of those goods, the Irish Government has failed to fulfil its obligations under Article 30 of the EEC Treaty. I also consider that Ireland should pay the costs.
            
         (
            *1
         )	Original language: Danish.
      (
            1
         )	That part of the Commission's claim also refers to the said requirement's being an infringement of provisions in Regulation No 827/68 on the common organization of the market in certain products Usted in Annex II to the Treaty (OJ, English Special Edition 1968 (1), p. 209) and Regulation No 805/68 on the common organization of the market in beef and veal (OJ, English Special Edition 1968 (1), p. 187). The provisions in question contain a prohibition corresponding to the prohibition in Article 30 of the Treaty. It appears to me to be superfluous to refer to those two regulations separately in the claim. Both were adopted before 1970 and since Article 30 of the Treaty only became directly applicable in 1970 independent legal effect was therefore dependent on inclusion in the regulations of the prohibition against obstacles to trade corresponding to the prohibition in Article 30. Specific prohibition in the regulations is no longer necessary after 1970 and is not included in the regulations adopted since then. The Commission has not, moreover, explained why, in addition to the first of the two regulations mentioned which covers bull semen directly, it also included a reference to the second regulation concerning the market organization for beef and veal.
      (
            2
         )	This is shown most clearlv in the reasoned opinion, where it is stated: ‘Given the fact that the present procedure only concerns semen of domestic bovine animals and swine ...’.
      (
            3
         )	[1983] ECR 2079.
      (
            4
         )	See the judgment in Case 124/81 Commission v United Kingdom [1983] ECR 203, at paragraph 9 et seq.
      (
            5
         )	Council Directive 77/504/EEC of 25 July 1977 on pure-bred breeding animals of the bovine species, OJ 1977 L 206, p. 8, and Commission Decision 88/124/EEC of 21 January 1988 laying down the specimen pedigree certificates for the semen and embryos of pure-bred breeding animals of the bovine species and the particulars to be entered on those certificates, OJ 1988 L 62, p. 32.
      (
            6
         )	It is, moreover, hard to understand the Commission's claim inasmuch as, on its wording, it covers restrictive conditions in connection with the import of semen whether the semen originates from bulls, swine, or other animals, whereas the legislation which is alleged to be infringed is a directive and a decision which concern only bovines.