Firma Denkavit Futtermittel GmbH v Minister für Ernähung, Landwirtschaft und Forsten des Landes Nordrhein-Westfalen.
Date: 1979-11-08
11 THE CONCEPT OF A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ALSO APPLIES TO THE OBLIGATION TO PRODUCE A CERTIFICATE TO THE EFFECT THAT THE IMPORTED FEEDING-STUFFS HAVE UNDERGONE SPECIFIED TREATMENT IN THE EXPORTING COUNTRY . THE FACT THAT THERE ARE OFTEN PROVISIONS IN COMMUNITY DIRECTIVES WHICH ARE DESIGNED TO HARMONIZE AND BRING TO AN END AS FAR AS POSSIBLE NATIONAL VETERINARY AND PUBLIC HEALTH INSPECTIONS AT THE FRONTIER DOES NOT RESULT IN THE REQUIREMENT UNDER NATIONAL LAW IN THE IMPORTING MEMBER STATE TO PRODUCE A CERTIFICATE FROM THE AUTHORITIES OF THE EXPORTING STATE NO LONGER BEING TREATED AS A MEASURE HAVING EQUIVALENT EFFECT . AS FAR AS THEIR RESTRICTIVE EFFECT ON INTRA-COMMUNITY TRADE IS CONCERNED IT IS IN FACT IMPOSSIBLE TO COMPARE A LEGAL REQUIREMENT LAID DOWN UNILATERALLY BY A MEMBER STATE TO PRODUCE A CERTIFICATE , TO THE PRODUCTION OF WHICH IT ATTACHES     SUCH LEGAL EFFECTS AS IT DEEMS ADVISABLE , WITH THE OBLIGATION IMPOSED BY A DIRECTIVE ON ALL THE MEMBER STATES TO ISSUE , IN ORDER TO FACILITATE INTRA-COMMUNITY TRADE , A STANDARD VETERINARY AND PUBLIC HEALTH CERTIFICATE IN A SYSTEM THE AIM OF WHICH IS TO TRANSFER SUPERVISION TO THE EXPORTING MEMBER STATE AND TO REPLACE IN THIS WAY THE SYSTEMATIC PROTECTIVE MEASURES AT THE FRONTIER WITH A UNIFORM SYSTEM SO AS TO MAKE MULTIPLE FRONTIER INSPECTIONS UNNECESSARY AND AT THE SAME TIME TO GIVE THE MEMBER STATE OF DESTINATION THE OPPORTUNITY OF ENSURING THAT THE GUARANTEES PROVIDED BY THE SYSTEM OF INSPECTION THUS STANDARDIZED ARE IN FACT GIVEN .
14 THE COURT OF JUSTICE HAS HELD IN ITS JUDGMENT OF 5 OCTOBER 1977 IN CASE 5/77 CARLO TEDESCHI V DENKAVIT COMMERCIALE S . R . L . ( 1977 ) ECR 1556 THAT ARTICLE 36 IS NOT DESIGNED TO RESERVE CERTAIN MATTERS TO THE EXCLUSIVE JURISDICTION OF MEMBER STATES BUT ONLY PERMITS NATIONAL LAWS TO DEROGATE FROM THE PRINCIPLE OF THE FREE MOVEMENT OF GOODS TO THE EXTENT TO WHICH SUCH DEROGATION IS AND CONTINUES TO BE JUSTIFIED FOR THE ATTAINMENT OF THE OBJECTIVES REFERRED TO IN THAT ARTICLE . CONSEQUENTLY WHEN , IN APPLICATION OF ARTICLE 100 OF THE TREATY , COMMUNITY DIRECTIVES PROVIDE FOR THE HARMONIZATION OF THE MEASURES NECESSARY TO GUARANTEE THE PROTECTION OF ANIMAL AND HUMAN HEALTH AND WHEN THEY ESTABLISH PROCEDURES TO CHECK THAT THEY ARE OBSERVED , RECOURSE TO ARTICLE 36 IS NO LONGER JUSTIFIED AND THE APPROPRIATE     CHECKS MUST BE CARRIED OUT AND THE PROTECTIVE MEASURES ADOPTED WITHIN THE FRAMEWORK OUTLINED BY THE HARMONIZING DIRECTIVE .
23 THE COURT HELD IN ITS JUDGMENT OF 20 MAY 1976 IN CASE 104/75 , ADRIAAN DE PEIJPER , MANAGING DIRECTOR OF CENTRAFARM BV ( 1976 ) ECR 613 , AT P . 636 THAT ' ' NATIONAL RULES OR PRACTICES DO NOT FALL WITHIN THE EXCEPTION SPECIFIED IN ARTICLE 36 IF THE HEALTH AND LIFE OF HUMANS CAN BE EFFECTIVELY PROTECTED BY MEASURES WHICH DO NOT RESTRICT INTRA-COMMUNITY TRADE SO MUCH ' '  AND THAT ' ' IN PARTICULAR , ARTICLE 36 CANNOT BE RELIED ON TO JUSTIFY RULES OR PRACTICES WHICH , EVEN THOUGH THEY ARE BENEFICIAL , CONTAIN RESTRICTIONS WHICH ARE EXPLAINED PRIMARILY BY A CONCERN TO LIGHTEN THE ADMINISTRATION ' S BURDEN OR REDUCE PUBLIC EXPENDITURE , UNLESS , IN THE ABSENCE OF THE SAID RULES OR PRACTICES , THIS BURDEN OR EXPENDITURE CLEARLY WOULD EXCEED THE LIMITS OF WHAT CAN REASONABLY BE REQUIRED ' ' . MOREOVER THAT JUDGMENT SHOWS THAT IF CO-OPERATION BETWEEN THE AUTHORITIES OF THE MEMBER STATES MAKES IT POSSIBLE TO FACILITATE AND SIMPLIFY FRONTIER CHECKS , WHICH CONTINUE TO BE PERMISSIBLE BY VIRTUE OF THE EXCEPTION PROVIDED FOR BY ARTICLE 36 OF THE EEC TREATY , THE AUTHORITIES RESPONSIBLE FOR VETERINARY AND PUBLIC HEALTH INSPECTIONS MUST ASCERTAIN WHETHER THE SUBSTANTIATING DOCUMENTS ISSUED AS PART OF SUCH CO-    OPERATION DO NOT RAISE A PRESUMPTION THAT THE IMPORTED GOODS COMPLY WITH THE REQUIREMENTS OF NATIONAL VETERINARY AND PUBLIC HEALTH LEGISLATION INTENDED TO SIMPLIFY THE CHECKS CARRIED OUT WHEN THE GOODS PASS FROM ONE MEMBER STATE TO ANOTHER .
24 IT IS IN EACH CASE FOR THE NATIONAL COURTS TO APPLY THESE CRITERIA IN THE LIGHT OF ALL THE CIRCUMSTANCES RELATING TO THE ACTIONS BROUGHT BEFORE THEM TAKING INTO ACCOUNT THE FACT THAT IT MUST ALWAYS BE THE DUTY OF A NATIONAL AUTHORITY RELYING ON ARTICLE 36 TO PROVE THAT THE MEASURES WHICH IT ENFORCES SATISFY THESE CRITERIA .