Ligur Carni Srl and Genova Carni Srl v Unità Sanitaria Locale n. XV di Genova and Ponente SpA v Unità Sanitaria Locale n. XIX di La Spezia and CO.GE.SE.MA Coop a r l.
Date: 1993-12-15
16 It is common ground that the President of the Tribunale di Genova carries out a judicial function within the meaning of Article 177 of the Treaty and that he considered that an interpretation of Community law was necessary for him to give his judgment. As the Court stated in Case 70/77 Simmenthal v Amministrazione delle Finanze dello Stato [1978] ECR 1453, paragraphs 10 and 11, although Article 177 does not make reference to the Court subject to the proceedings during which the national court frames a question for a preliminary ruling being inter partes, it may, in some circumstances, prove to be in the interests of the proper administration of justice that a question should be referred for a preliminary ruling only after both sides have been heard, but it is for the national court alone to assess whether that is necessary (see also Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3611, paragraph 8).
Questions 1 and 2
25 In Case 35/76 Simmenthal v Italian Minister for Finance [1976] ECR 1871 and in Joined Cases 2/82, 3/82 and 4/82 Delhaize Frères v Belgian State [1983] ECR 2973, the Court had already acknowledged, before the amendment of Article 10 by Directive 83/90 came into force, 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. According to those judgments, Directive 64/433 established a harmonized system of health inspections, based on the principle that the public health guarantees required by all the Member States are equivalent, which ensures the protection of health and at the same time the equal treatment of products. The purpose of that system is to transfer supervision to the exporting Member State.
33 In its last two questions, raised in the context of the dispute between Ponente SpA and CO.GE.SE.MA. (Case C-318/91), the national court is essentially asking whether a prohibition laid down by the rules of a municipality of a Member State on an importer of fresh meat from using its own means to transport and deliver its goods within the territory of the municipality in question, unless it pays a local undertaking the amount corresponding to the services which that undertaking provides under an exclusive concession for handling in the municipal slaughterhouse and transporting and delivering the goods in question, is contrary to Articles 30, 52 and 59 of the Treaty and whether those provisions have direct effect.
36 The fact that rules of a municipality in a Member State oblige traders importing fresh meat into the municipality to go through the municipal slaughterhouse to entrust the transport and delivery of their goods to their final destination to a local undertaking holding an exclusive concession for that work and that those rules allow those traders to carry out the transport and delivery of their goods themselves upon payment of a certain sum to the undertaking holding that concession does constitute such a barrier to imports.
37 That conclusion is not affected by the fact that the measure in question is limited to the territory of a municipality within a Member State. As the Court stated in Joined Cases C-1/90 and C-176/90 Aragonesa de Publicidad and Publivía v Departamento de Sanidad y Seguridad Social [1991] ECR I-4179, paragraph 24, when a national measure has limited territorial scope because it applies only to a part of the national territory, it cannot escape being categorized as discriminatory or protective for the purposes of the rules on the free movement of goods on the ground that it affects both the sale of products from other parts of the national territory and the sale of products imported from other Member States.
38 Nor is it material that the measure in question is generally applicable without distinction to national and imported products since its effect is to make importation of goods from other Member States more burdensome and more difficult (see the judgments in Aragonesa, cited above, and in Case C-179/90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR 5889).