Société Civile Agricole du Centre d'Insémination de la Crespelle v Coopérative d'Elevage et d'Insémination Artificielle du Département de la Mayenne.
Date: 1994-10-05
15 So far as concerns the relevant provisions of the Treaty, Article 5 requires Member States to carry out their Community obligations in good faith. However, the Court has consistently held that that provision cannot be applied independently when the situation concerned is governed by a specific provision of the Treaty, as in the present case (see the judgment in Joined Cases C-78/90 to C-83/90 Compagnie Commerciale de l' Ouest and Others [1992] ECR I-1847, paragraph 19). The question must therefore be considered in the light of Articles 90(1) and 86 of the Treaty.
17 In this case, by making the operation of the insemination centres subject to authorization and providing that each centre should have the exclusive right to serve a defined area, the national legislation granted those centres exclusive rights. By thus establishing, in favour of those undertakings, a contiguous series of monopolies territorially limited but together covering the entire territory of a Member State, those national provisions create a dominant position, within the meaning of Article 86 of the Treaty, in a substantial part of the common market.
18 The mere creation of such a dominant position by the granting of an exclusive right within the meaning of Article 90(1) is not as such incompatible with Article 86 of the Treaty. A Member State contravenes the prohibitions contained in those two provisions only if, in merely exercising the exclusive right granted to it, the undertaking in question cannot avoid abusing its dominant position (see the judgments in Case C-41/90 Hoefner and Elser [1991] ECR I-1979, paragraph 29, and, most recently, in Case C-179/90 Merci Convenzionali Porto di Genova [1991] ECR I-5889, paragraph 17).
25 As the Court has already held, an undertaking abuses its dominant position where it has an administrative monopoly and charges for its services fees which are disproportionate to the economic value of the service provided (see the judgments in Case 26/75 General Motors v Commission [1975] ECR 1367, paragraph 12, and Case 226/84 British Leyland v Commission [1986] ECR 3263, paragraph 27).
30 Article 36 of the Treaty provides that the prohibition of restrictions on imports, exports and goods in transit is not to preclude measures of this nature if they are justified on grounds of the protection of health and life of humans and animals (see the judgment in Case 35/76 Simmenthal [1976] ECR 1871, paragraph 10).
31 However, the Court has consistently held that where, in application of Article 100 of the EEC Treaty, Community directives provide for the harmonization of the measures necessary to ensure inter alia the protection of animal and human health and establish Community procedures to check that they are observed, invoking Article 36 is no longer justified and the appropriate checks must be carried out and protective measures adopted within the framework outlined by the harmonizing directive (see the judgments in Case 5/77 Tedeschi v Denkavit [1977] ECR 1555, paragraph 15, Case 148/78 Ratti [1979] ECR 1629, paragraph 36, Case 251/78 Denkavit [1979] ECR 3369, paragraph 14, and Case 190/87 Moormann [1988] ECR 4689, paragraph 10).
33 As regards the reasons relating to the genetic improvement of bovine stock, it should be borne in mind that Article 2(1) of Directive 87/328, which is designed to remove zootechnical obstacles to intra-Community trade in bovine semen, requires Member States to remove all barriers to entry into, or use within, their territory of bovine semen imported from other Member States in accordance with the conditions laid down in Article 4 of the directive (see paragraph 9 above). Secondly, Article 2 of Directive 91/174 provides that marketing of semen of pure-bred animals may not be prohibited, restricted or impeded on pedigree grounds. It follows from those provisions that zootechnical and pedigree requirements have been fully harmonized at Community level.
36 In order to ascertain that the restrictive effects on intra-Community trade of the rules at issue do not exceed what is necessary to achieve the aim in view, it must be considered whether those effects are direct, indirect or purely speculative and whether those effects do not impede the marketing of imported products more than the marketing of national products (see the judgment in Case C-169/91 B & Q [1992] ECR I-6635, paragraph 15).
39 The question whether the operation of the approved centres, so far as the conditions for storing semen are concerned, entails in practice discrimination against the imported product is one of fact which the national court must determine.