Commission of the European Communities v French Republic.
Date: 2008-07-17
45. First of all, it is settled case-law that the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in that Member State at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-168/03 Commission v Spain  [2004] ECR I-8227, paragraph 24, and Case C-23/05 Commission  v Luxembourg  [2005] ECR I-9535, paragraph 9). Thus, the national legislative process after that period has ended cannot be included in the Court’s examination.
49. As regards the case at the origin of the judgment in Case C-17/94 Gervais and Others  [1995] ECR I-4353, the Court held that the provisions of the Treaty on freedom of establishment and the freedom to provide services do not apply to purely internal situations in a Member State (paragraphs 24, 28 and 39). It also examined the compatibility of the national legislation only with Directives 77/504 and 87/328 (paragraph 33).
52. In this respect, it must be recalled that Article 43 EC requires the elimination of restrictions on the freedom of establishment and that it is settled case-law of the Court that all measures which prohibit, impede or render less attractive the exercise of that freedom must be regarded as restrictions within the meaning of that article (see Case C‑442/02 CaixaBank France  [2004] ECR I-8961, paragraph 11 and the case-law cited).
56. The fact that those measures are applicable without distinction to national operators and to those of other Member States does not preclude that finding, given that such national measures, even though applicable without discrimination on grounds of nationality, are liable to hamper or to render less attractive the exercise by Community nationals, including those of the Member State which enacted the measure, of a fundamental freedom guaranteed by the Treaty (see, to that effect, Kraus , paragraph 32).
57. Secondly, concerning the freedom to provide services, it is settled case-law that Article 49 EC requires not only the elimination of all discrimination on grounds of nationality against service providers, but also the abolition of any restriction, even if it applies without distinction to national service providers and to those of other Member States, which is liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where he lawfully provides similar services (Case C-433/04 Commission  v Belgium  [2006] ECR I-10653, paragraph 28, and Case C-208/05 ITC  [2007] ECR I-181, paragraph 55).
64. Cross-border service providers wishing to carry out insemination in French territory in accordance with the freedom to provide services must obtain, in France, an inseminator’s licence. The requirement to obtain that licence, regardless of the conditions under which it is issued, is a restriction on the freedom to provide services, since it is liable to impede or render less attractive the provision of the insemination service in France by operators established and already lawfully operating in other Member States (see, to that effect, Case C‑355/98 Commission  v Belgium  [2000] ECR I-1221, paragraph 35, and Case C‑134/05 Commission  v Italy  [2007] ECR I-6251, paragraph 23).
73. First, as is apparent from the provisions of Directives 77/504, 87/328 and 91/174, referred to in paragraphs 3 to 6 and 15 above and paragraph 33 of Centre d’insémination de la Crespelle , the pedigree conditions, so far as intra‑Community trade in bovine semen from pure-bred animals is concerned, have been fully harmonised at Community level.
93. As the Commission observes, in the case of an authorisation procedure for carrying out an activity, in its application of the national provisions the Member State concerned must take into account the knowledge and qualifications already acquired by the party concerned in another Member State (see, to that effect, Vlassopoulou , paragraph 15). In the context of this authorisation procedure, the examination of abilities and qualifications must be carried out by the national authorities in accordance with a procedure in conformity with the requirements of Community law concerning the effective protection of the fundamental rights conferred by the Treaty on Community subjects. Consequently, reasons must be given for a decision taken following that examination and it must be capable of being made the subject of judicial proceedings (see, to that effect, Case 222/86 Heylens and Others  [1987] ECR 4097, paragraph 17, and Vlassopoulou , paragraph 22).
94. Moreover, a prior administrative authorisation scheme must be based on objective non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily (see Analir , paragraph 38).
97. Consequently, it must be held that the legislation at issue, even if it is appropriate for ensuring the protection of animal health and the health of the operator carrying out the insemination, goes beyond what is necessary to attain the objective pursued (see, to that effect, Case C-347/04 Rewe Zentralfinanz  [2007] ECR I‑2647, paragraph 37, and Case C-464/05 Geurts and Vogten  [2007] ECR I‑9325, paragraph 24).