1. By its application, the Commission of the European Communities seeks a declaration from the Court that, by having laid down in its national legislation a requirement that stallions are to be subject to an assessment of their genetic value in Sweden in order to be used for off-farm mating, the Kingdom of Sweden has failed to fulfil its obligations under Article 3 of Council Directive 90/427/EEC of 26 June 1990 on the zootechnical and genealogical conditions governing intra-Community trade in equidae (OJ 1990 L 224, p. 55) (‘the Directive’) or, in the alternative, under Article 28 EC. Legal context Community legislation
2. The second and sixth recitals in the preamble to the Directive state: ‘Whereas in order to ensure the rational development of equidae production, thereby increasing productivity in that sector, rules governing the marketing of equidae in intra-Community trade must be laid down at Community level; … Whereas intra-Community trade in registered equidae should be progressively liberalised; whereas complete liberalisation of trade requires further additional harmonisation, in particular as regards approval for the purpose of off-farm mating and the use of semen and ova in accordance with the characteristics of each studbook’.
3. The first paragraph of Article 3 of the Directive provides: ‘Intra-Community trade in equidae and their semen, ova and embryos may not be prohibited or restricted on zootechnical or genealogical grounds other than those resulting from application of this Directive.’
4. Article 7 of the Directive empowers the Commission, in so far as may be necessary to ensure uniform application of the provisions of the Directive, to determine, in accordance with a procedure and in compliance with principles laid down in the Directive: ‘(a) the methods of monitoring performance and assessing the genetic value of breeding animals; (b) on the basis of the methods referred to in (a), the general criteria for the approval of a male breeding animal or, if appropriate, of a female breeding animal for the purposes of breeding and using their semen, ova or embryos’. National legislation
5. In Sweden, the requirement for a breeding stallion to be assessed as to its genetic value and the rules relating to that requirement are laid down in the Statens jordbruksverks föreskrifter (SJVFS 1994:82) om hästdjur som används till avel och om identifiering av hästdjur (Rules of the State Board of Agriculture on equidae used for breeding and the identification of equidae) (‘the rules on equidae’).
6. Article 29 of the rules on equidae provides: ‘For a stallion to be used for off-farm mating, it must be assessed as to its genetic value in Sweden. An assessment of genetic value conferring entitlement to the use of a stallion shall be deemed to have taken place if its performance has been monitored in accordance with Articles 20 to 22 or if the stallion’s progeny only has been tested and such a test has taken place in accordance with Articles 24 to 26 and a certificate of genetic value has been issued in accordance with Article 27.’
7. Articles 20 and 21 of those rules set out the assessment criteria to be used in monitoring the performance of equidae. Those criteria include, inter alia, the genealogy, performance, external appearance, robustness and health of each individual equid. Under Article 22 of those rules, information concerning a foreign equid communicated by a recognised foreign breeders’ organisation or association maintaining stud-books must also be taken into account.
8. Articles 24 and 25 of those rules lay down rules governing the testing of equine progeny. Article 26 of those rules provides that information concerning a foreign stallion’s progeny communicated by a recognised foreign breeders’ organisation or association maintaining stud-books must also be taken into account.
9. Pursuant to Article 27 of the rules on equidae, a certificate of genetic value is to be issued in respect of any equid whose genetic value has been assessed. In respect of each equid, that certificate must contain, inter alia, the name, identification, genealogy, results of the performance monitoring test and, where appropriate, of any progeny test. The pre-litigation procedure
10. A complaint was made to the Commission concerning Article 29 of the rules on equidae, which lay down a requirement that stallions must be assessed as to their genetic value in Sweden in order to be used for off‑farm mating.
11. As it considered that that provision was incompatible with the Directive and, in any event, with Articles 28 EC and 30 EC, the Commission commenced an action against the Kingdom of Sweden under Article 226 EC for failure to fulfil obligations by sending that Member State a letter of formal notice dated 18 July 2002 requesting it to submit its observations. As it found the latter’s response unsatisfactory, on 25 July 2003 the Commission issued a reasoned opinion maintaining its position that the national provision at issue was incompatible with Community law and calling upon the Kingdom of Sweden to take the measures necessary to comply with that opinion within two months of its notification.
12. In its reply to that reasoned opinion of 22 September 2003, the Swedish Government contended that the system set up at national level for the breeding of equidae was not inconsistent with Community law. It stated, however, that following a review and an assessment that had been carried out, it had been able to establish that the Swedish legislation in question could be amended so as to make it less restrictive.
13. During 2004, representatives of the Swedish Government and the Commission met on two occasions to examine a proposal for new legislation. However, as the Commission was not convinced that that proposal was compatible with Community law, it decided to bring the present action. The action Arguments of the parties
14. The Commission maintains that Article 29 of the rules on equidae constitutes a restriction on intra-Community trade in equidae prohibited under the first paragraph of Article 3 of the Directive. Under Article 29, a stallion from a Member State other than the Kingdom of Sweden that has been approved for the purposes of breeding in accordance with the provisions applicable in that State is required to undergo an assessment of its genetic value in Sweden in order to be used for breeding. It follows that an additional cost is to be borne by the owner of the stallion or the owner of the mare, as the case may be.
15. The Commission states that the contested national provision must be regarded as establishing a criterion for the approval of stallions for the purposes of breeding within the meaning of Article 7 of the Directive. The provision thus falls within the scope of the Directive and forms part of the area harmonised by its provisions.
16. The Commission points out that it is expressly empowered by Article 7 of the Directive, in so far as may be necessary to ensure uniform application of the provisions of the Directive and in compliance with the principles laid down in Article 4(1), to determine the methods of monitoring performance and assessing the genetic value of breeding animals and, on the basis of those methods, to determine the general criteria for the approval of breeding animals for the purposes of breeding.
17. The Commission states that it did not deem it necessary to adopt measures based on Article 7 of the Directive and points out that the fact that it did not lay down such provisions does not mean that a Member State may enact provisions of that kind, such as those in question, which constitute a restriction on intra-Community trade in equidae.
18. The Commission concludes that the contested national provision does not result from application of the Directive and is incompatible with the first paragraph of Article 3 thereof.
19. In the alternative, the Commission submits that if the Court were to find that that national provision is not inconsistent with the Directive, it is in any event inconsistent with Article 28 EC and cannot be justified on the basis of Article 30 EC.
20. In that connection, the Commission maintains, in particular, that it is apparent from both the provisions of national law and the explanations provided by the Swedish Government that the requirement under Article 29 of the rules on equidae is intended to improve the characteristics of each breed rather than to protect the health and life of animals. The fact that it is apparent from Article 29 that the requirement for stallions to be assessed as to their genetic value does not apply to stallions used for on‑farm mating lends support to that argument. If the purpose of that requirement were truly to protect the health and life of equidae, it should be applied equally to the latter category.
21. Moreover, the Commission observes that it is clear from Article 29 of the rules on equidae that the assessment of a stallion’s genetic value does not have to produce any specific result in order for it to be approved for the purposes of breeding but that it is sufficient that such an assessment takes place. To protect the health and life of equidae, it would have been necessary to provide that a stallion which fails to achieve a satisfactory result be precluded from breeding in order to prevent the transmission of serious genetic defects to its progeny.
22. The Swedish Government accepts that the Commission’s application for a declaration that the contested national provision is inconsitent with Article 3 of the Directive is well founded and that the Commission’s application that it should be ordered to pay the costs of the proceedings is also well founded. Findings of the Court
23. Article 29 of the rules on equidae, which lays down a criterion for the approval of breeding animals for the purposes of breeding within the meaning of Article 7 of the Directive, falls within the scope of that directive.
24. In accordance with Article 3 of the Directive, Member States may not prohibit or restrict intra-Community trade in equidae and their semen, ova and embryos on zootechnical or genealogical grounds other than those resulting from application of the Directive.
25. Article 29 of the rules on equidae has a restrictive effect. It is apparent from the Commission’s observations, which are not contested by the Swedish Government, that equidae from another Member State must undergo an assessment of their genetic value in Sweden in order to be used there for off-farm mating, which entails an additional cost for their users that is likely to hinder intra-Community trade in equidae intended for use in Sweden.
26. In accordance with Article 7 of the Directive, the Commission is entrusted with the task of laying down, in so far as may be necessary to ensure uniform application of the Directive, the methods of monitoring performance and assessing the genetic value of breeding animals and establishing the general criteria for the approval of a male breeding animal or, if appropriate, of a female breeding animal for the purposes of breeding and using their semen, ova or embryos.
27. There is no need to examine whether, and, if so, to what extent, that provision has left the Member States with powers to introduce or maintain rules which do not constitute a prohibition or restriction on intra-Community trade in equidae, in particular where the Commission has not availed itself of its powers, and it is in any event apparent from the clear wording of the first paragraph of Article 3 of the Directive that any rules introducing such a prohibition or restriction cannot result from application of the Directive. The Swedish legislation at issue, which, as is apparent from paragraph 25 above, contains such a restriction, does not result from application of the Directive.
28. The Kingdom of Sweden accepts that the Commission’s application for a declaration that Article 29 of the rules on equidae is incompatible with Article 3 of the Directive is well founded.
29. The Commission’s action must therefore be held to be well founded.
30. It must therefore be held that, by having laid down in its national legislation a requirement that stallions are to be subject to an assessment of their genetic value in Sweden in order to be used for off-farm mating, the Kingdom of Sweden has failed to fulfil its obligations under Article 3 of the Directive. Costs
31. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the Kingdom of Sweden has been unsuccessful, the latter must be ordered to pay the costs.