Müller Fleisch GmbH v Land Baden-Württemberg.
Date: 2010-02-25
32. Secondly, it must be pointed out that Regulation No 999/2001 has, in accordance with its legal basis, namely Article 152(4)(b) EC, as its direct objective the protection of public health. According to settled case-law, the health and life of humans rank foremost among the assets and interests protected by the EC Treaty and it is for the Member States to determine the level of protection which they wish to afford to public health and the way in which that level is to be achieved, which implies that Member States must be allowed discretion (see, to that effect, Case C-141/07 Commission  v Germany  [2008] ECR I-6935, paragraph 51; Case C-169/07 Hartlauer [2009] ECR I-0000, paragraph 30; and Joined Cases C-171/07 and C-172/07 Apothekerkammer des Saarlandes and Others  [2009] ECR I-0000, paragraph 19).
38. It must be observed at the outset that that clarification is not to be understood as referring to all disruptions in trade. First, any screening procedure is liable to result in some such disruptions, such as delays for example, however minor they may be.
40. It is also important to point out that the issue of disruptions in trade is not explicitly mentioned in the enacting terms of Regulations Nos 999/2001 and 1248/2001. As the preamble to a Community act has no binding legal force (Case C-134/08 Tyson Parketthandel  [2009] ECR I‑0000, paragraph 16 and the case-law cited), the clarification in recital 7 to Regulation No 1248/2001 must, as the Commission of the European Communities maintained at the hearing, be interpreted as a reference to primary law and, in particular, to the principle of proportionality.
41. The Member States must, in exercising the discretion described in paragraphs 32 to 35 of this judgment, comply with the provisions of the Treaty on the free movement of goods where applicable. Those provisions prohibit the Member States from introducing or maintaining, as regards the objective of the protection of public health, unjustified restrictions on the exercise of that freedom (see, by analogy, Case C‑372/04 Watts  [2006] ECR I-4325, paragraph 92; Commission  v Germany , paragraph 23; and Apothekerkammer des Saarlandes and Others , paragraph 18).
42. With regard to the screening tests that a Member State decides to carry out on a part of the bovine population in pursuit of that objective, it cannot be accepted that there is a disproportionate disruption in trade.
43. In accordance with the principle of proportionality, which is one of the general principles of European Union law, the lawfulness of such screening tests is subject to the condition that they are appropriate and necessary in order to attain the objectives legitimately pursued; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see, by analogy, Case C‑220/01 Lennox  [2003] ECR I-7091, paragraph 76).
45. Furthermore, as regards the necessity of that measure, it must be borne in mind that Member States have a discretion in that field. Therefore, the fact that one Member State imposes less strict rules than another Member State does not mean that the latter’s rules are disproportionate ( Commission  v Germany , paragraph 51)