Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.
Date: 1983-02-08
6 AS THE COURT HELD IN CASE 232/78 ( COMMISSION V FRANCE ( 1979 ) ECR 2729 ), EVEN THOUGH ARTICLE 42 OF THE RULES OF PROCEDURE ALLOWS FRESH ISSUES TO BE RAISED IN CERTAIN CIRCUMSTANCES A PARTY MAY NOT ALTER THE ACTUAL SUBJECT-MATTER OF THE DISPUTE DURING THE PROCEEDINGS . CONSEQUENTLY , THE SUBSTANCE OF THE APPLICATION MUST BE EXAMINED SOLELY WITH REFERENCE TO THE CONCLUSIONS CONTAINED IN THE APPLICATION INSTITUTING THE PROCEEDINGS . FURTHERMORE , IN THE CONTEXT OF PROCEEDINGS BROUGHT BY THE COMMISSION UNDER ARTICLE 169 OF THE TREATY , THE LETTER ADDRESSED BY THE COMMISSION TO THE MEMBER STATE INVITING IT TO SUBMIT ITS OBSERVATIONS AND THEN THE REASONED OPINION ISSUED BY THE COMMISSION DELIMIT THE SUBJECT-MATTER OF THE DISPUTE , WHICH CANNOT THEREAFTER BE EXTENDED . IN FACT THE OPPORTUNITY FOR THE STATE CONCERNED TO BE ABLE TO SUBMIT ITS OBSERVATIONS , EVEN IF IT CHOOSES NOT TO AVAIL ITSELF THEREOF , CONSTITUTES AN ESSENTIAL GUARANTEE INTENDED BY THE TREATY , ADHERENCE TO WHICH IS AN ESSENTIAL FORMAL REQUIREMENT OF THE PROCEDURE UNDER ARTICLE 169 .
9 THE COURT HAS ALREADY HELD THAT ARTICLE 30 PRECLUDES THE APPLICATION TO INTRA-COMMUNITY TRADE OF NATIONAL PROVISIONS WHICH REQUIRE , EVEN AS A PURE FORMALITY , IMPORT LICENCES OR ANY OTHER SIMILAR PROCEDURE .
10 THE UNITED KINGDOM STATES THAT THERE IS MUCH FLEXIBILITY IN THE GRANT OF SUCH IMPORT LICENCES . HOWEVER , THE COURT HAS CONSISTENTLY HELD ( CF . JUDGMENTS OF 24 JANUARY 1978 IN CASE 82/77 VAN TIGGELE ( 1978 ) ECR 25 AND 19 FEBRUARY 1981 IN CASE 130/80 KELDERMANN ( 1981 ) ECR 527 ) THAT PROVISIONS CAUGHT BY THE PROHIBITION LAID DOWN IN ARTICLE 30 OF THE EEC TREATY DO NOT ESCAPE THAT PROHIBITION SIMPLY BECAUSE THE COMPETENT AUTHORITY ENJOYS A DISCRETIONARY POWER IN THE APPLICATION OF THOSE PROVISIONS . FREEDOM OF MOVEMENT IS A RIGHT WHOSE ENJOYMENT MAY NOT BE DEPENDENT UPON A DISCRETIONARY POWER OR ON A CONCESSION GRANTED BY THE NATIONAL AUTHORITIES .
16 WHILST THE PROTECTION OF THE HEALTH OF ANIMALS IS ONE OF THE MATTERS JUSTIFYING THE APPLICATION OF ARTICLE 36 , IT MUST NONE THE LESS BE ASCERTAINED WHETHER THE MACHINERY EMPLOYED IN THE PRESENT CASE BY THE UNITED KINGDOM CONSTITUTES A MEASURE WHICH IS DISPROPORTIONATE IN RELATION TO THE OBJECTIVE PURSUED , ON THE GROUND THAT THE SAME RESULT MAY BE ACHIEVED BY MEANS OF LESS RESTRICTIVE MEASURES , OR WHETHER , ON THE OTHER HAND , REGARD BEING HAD TO THE TECHNICAL CONSTRAINTS ALREADY MENTIONED , SUCH A SYSTEM IS NECESSARY AND HENCE JUSTIFIED UNDER ARTICLE 36 .
30 AS THE FRENCH GOVERNMENT CORRECTLY STATED IN ITS INTERVENTION IN SUPPORT OF THE COMMISSION ' S APPLICATION , THE COURT HAS CONSISTENTLY HELD ( CF . JUDGMENT OF 20 . 5 . 1976 IN CASE 104/75 DE PEIJPER ( 1976 ) ECR 613 AND 8 . 11 . 1979 IN CASE 251/78 DENKAVIT ( 1979 ) ECR 3369 ) THAT , WHERE COOPERATION BETWEEN THE AUTHORITIES OF THE MEMBER STATES MAKES IT POSSIBLE TO FACILITATE AND SIMPLIFY FRONTIER CHECKS , THE AUTHORITIES RESPONSIBLE FOR HEALTH INSPECTIONS MUST ASCERTAIN WHETHER THE SUBSTANTIATING DOCUMENTS ISSUED WITHIN THE FRAMEWORK OF THAT COOPERATION RAISE A PRESUMPTION THAT THE IMPORTED GOODS COMPLY WITH THE REQUIREMENTS OF DOMESTIC HEALTH LEGISLATION THUS ENABLING THE CHECKS CARRIED OUT UPON IMPORTATION TO BE SIMPLIFIED . THE COURT CONSIDERS THAT IN THE CASE OF UHT MILK THE CONDITIONS ARE SATISFIED FOR THERE TO BE A PRESUMPTION OF ACCURACY IN FAVOUR OF THE STATEMENTS CONTAINED IN SUCH DOCUMENTS .
35 IT HAS NEITHER BEEN SHOWN NOR EVEN ALLEGED THAT THOSE PROVISIONS WERE ADOPTED OUT OF A CONCERN FOR THE PROTECTION OF PUBLIC HEALTH . THEREFORE , THEY CANNOT BE JUSTIFIED UNDER ARTICLE 36 OF THE TREATY .