Nationale Raad van Dierenkwekers en Liefhebbers VZW and Andibel VZW v Belgische Staat.
Date: 2008-06-19
18. It is common ground that Regulation No 338/97 does not contain a general prohibition on importing, and trading in, species other than those which are referred to in Annex A thereto.
23. The Court has also held that legislation which requires for the marketing of certain goods prior inclusion of those goods on an ‘authorised list’ makes the marketing of those goods more difficult and more expensive, and consequently hinders trade between the Member States (see, to that effect, inter alia, Case C-24/00 Commission  v France  [2004] ECR I-1277, paragraph 23).
27. In that regard, it should be noted, first, that the protection of animal welfare is a legitimate objective in the public interest, the importance of which was reflected, in particular, in the adoption by the Member States of the Protocol on the protection and welfare of animals, annexed to the Treaty establishing the European Community (OJ 1997 C 340, p. 110). Moreover, the Court has held on a number of occasions that the interests of the Community include the health and protection of animals (see Joined Cases C-37/06 and C-58/06 Viamex Agrar Handel and ZVK  [2008] ECR I-0000, paragraphs 22 and 23, and the case-law cited).
28. Secondly, it must be borne in mind that, according to Article 30 EC, the provisions of Articles 28 EC and 29 EC are not to preclude prohibitions or restrictions justified on grounds, inter alia, of the protection of the health and life of humans or animals, provided that such prohibitions or restrictions do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States, and that the Court has held that the protection of the health and life of animals constitutes a fundamental requirement recognised by Community law (see, to that effect, Case C‑350/97 Monsees  [1999] ECR I-2921, paragraph 24).
29. As regards the risk that specimens, once they have escaped into the wild, may continue to exist there and may therefore constitute an ecological threat, it must be borne in mind, thirdly, that the Court has consistently held that restrictions on the free movement of goods may be justified by imperative requirements such as the protection of the environment (see Case C-341/95 Bettati  [1998] ECR I-4355, paragraph 62, and Case C-314/98 Snellers  [2000] ECR I-8633, paragraph 55).
30. Although the principle of proportionality, which underlies the last sentence of Article 30 EC, requires that the power of the Member States to prohibit imports of animals from other Member States in which they are legally traded should be restricted to what is necessary to achieve the objectives of protection being legitimately pursued (see, to that effect, inter alia, Harpegnies , paragraph 34), it is necessary, for the application of that principle in a context such as that of the case in the main proceedings, to take into account the specific nature of the species concerned and the interests and requirements noted in paragraphs 27 to 29 of this judgment.
32. Contrary to the submission of the applicants in the main proceedings, a negative list system – which entails limiting the prohibition to the species of mammals included in that list – might not suffice to achieve the objective of protecting or complying with the interests and requirements mentioned in paragraphs 27 to 29 of this judgment. Reliance on such a system could mean that, as long as a species of mammal is not included in the list, specimens of that species may be freely held even though there has been no scientific assessment capable of guaranteeing that that holding entails no risk to the protection of those interests and requirements (see, by analogy, Joined Cases C-154/04 and C-155/04 Alliance for Natural Health and Others  [2005] ECR I-6451, paragraph 70).
33. However, the Court has consistently held that legislation, such as that referred to in the main proceedings, which makes the holding of mammals subject to the prior inclusion of the species to which they belong in a positive list and which also applies to specimens of species which are legally held in other Member States is in compliance with Community law only if a number of conditions are satisfied (see, by analogy, inter alia, Case C‑344/90 Commission  v France  [1992] ECR I-4719, paragraphs 8 and 16, and Case C-24/00 Commission  v France , paragraph 25).
34. First, the drawing up of such a list and the subsequent amendments to it must be based on objective and non-discriminatory criteria (see, to that effect, inter alia, Case C-192/01 Commission  v Denmark  [2003] ECR I‑9693, paragraph 53).
35. Secondly, that legislation must make provision for a procedure enabling interested parties to have new species of mammals included in the national list of authorised species. The procedure must be one which is readily accessible, which presupposes that it is expressly provided for in a measure of general application, and can be completed within a reasonable time, and, if it leads to a refusal to include a species – it being obligatory to state the reasons for that refusal – the refusal decision must be open to challenge before the courts (see, by analogy, Case C-344/90 Commission  v France , paragraph 9, and Case C-24/00 Commission  v France , paragraphs 26 and 37).
36. Lastly, an application to obtain the inclusion of a species of mammal in that national list may be refused by the competent administrative authorities only if the holding of specimens of that species poses a genuine risk to the protection of or compliance with the interests and requirements mentioned in paragraphs 27 to 29 of this judgment (see, by analogy, inter alia, Case C-344/90 Commission  v France , paragraph 10, and Case C-24/00 Commission  v France , paragraph 27).
37. In any event, an application to have a species included in the list of species of mammal which may be held may be refused by the competent authorities only on the basis of a full assessment of the risk posed to the protection of the interests and requirements mentioned in paragraphs 27 to 29 of this judgment by the holding of specimens of the species in question, established on the basis of the most reliable scientific data available and the most recent results of international research (see, by analogy, inter alia, Alliance for Natural Health and Others , paragraph 73).
39. Furthermore, derogations such as those provided for in Article 3 bis (2) of the animal welfare law must not lead to the favouring of domestic products, because that would constitute arbitrary discrimination against or a disguised restriction on products imported from other Member States (see, inter alia, Case 27/80 Fietje  [1980] ECR 3839, paragraph 14).
41. It is clear that the assessment to be made of the proportionality of a body of rules such as that at issue in the main proceedings, in particular as regards the question whether the objective sought could be achieved by measures having less effect on intra-Community trade, cannot be carried out in the present case without additional information on that body of rules and on the implementation thereof. The assessment of the criteria established and of their application, of the scope of the derogations provided for in Article 3 bis (2) of the animal welfare law and of the characteristics of the procedure for inclusion in the list, such as its accessibility and the possibilities of review where there is a refusal to include a species, requires a specific analysis on the basis, inter alia, of the various applicable provisions, previous practice and scientific studies, it being for the national court to make that analysis (see, to that effect, Tridon , paragraph 58).