JUDGMENT OF 8. 11. 1979 — CASE 251/78 DENKAVIT FUTTERMITTEL v MINISTER FÜR ERNÄHRUNG, LANDWIRTSCHAFT UND FORSTEN

In Case 251/78 REFERENCE to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht [Administrative Court] Münster for a preliminary ruling in the action pending before that court between

THE COURT composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents of Chambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart and G. Bosco, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and procedure

Article 1

Article 2

Article 9

II — Observations under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A — Observations of the plaintiff in the main action (Denkavit)

Article 30 of the Treaty

Article 36 of the Treaty

(a) The double veterinary check

(b) The need for an exemption accompanied by conditions and obligations

Articles 9, 12 and 13 of the EEC Treaty

B — Observations of the defendant in the main action (Minister für Ernährung)

C — Observations of the Commission

Article 30 of the Treaty

Article 36 of the EEC Treaty

Article 9 of the Treaty

Decision

I — Articles 30 and 36 of the EEC Treaty

A — Article 30 of the Treaty

B — The applicability of Article 36 of the Treaty

C — The concept of a justified restriction within the meaning of Article 36 of the Treaty

II — Article 9 of the EEC Treaty

Costs

I —. Facts and procedure

1. In the main action before the Verwaltungsgericht [Administrative Court] Münster, the plaintiff, Denkavit Futtermittel GmbH, Warendorf, calls in question the compatibility with Community law, in particular Articles 9, 30 and 36 of the EEC Treaty, of certain provisions of the legislation enacted inter alia for the prevention of salmonellosis by the Land of North Rhine-Westphalia in the field of veterinary inspections of imports of feeding-stuffs containing products of animal origin, and of measures adopted in implementation of that legislation.

2. In the Federal Republic of Germany the organization of the veterinary health inspection of feeding-stuffs, based on the Viehseuchengesetz [Law on infectious diseases of animals] 1909, is governed by two different systems, one dealing with feeding-stuffs manufactured in the Federal Republic of Germany and the other dealing with imported feedingstuffs. Until very recently these matters were within the jurisdiction of the Länder.

3. For feeding-stuffs manufactured in the Federal Republic of Germany, Article 49 of the regulation of the Land in question, the Viehseuchenverordnung zur Ausführung des Viehseuchengesetzes [regulation on infectious diseases of animals issued in implementation of the Law on infectious diseases of animals] of 24 November 1964, Gesetz- und Verordnungsblatt für das Land Nordrhein-Westfalen, Ausgabe A [Journal of Laws and Regulations for the Land of North Rhine-Westphalia, Edition A] of 17 December 1964, provides:

4. As regards imported feeding-stuffs, veterinary inspection was governed in the Land of North Rhine-Westphalia by the Viehseuchenverordnung über die Einfuhr und Durchfuhr von Futtermitteln tierischer Herkunft aus dem Auslande [regulation on infectious diseases of animals relating to the importation and transit of feeding-stuffs of animal origin from abroad] of 18 September 1957, hereinafter referred to as the Viehseuchenverordnung, Gesetz- und Verordnungsblatt für das Land Nordrhein-Westfalen, 1957, Ausgabe A, p. 247. Such inspection is primarily directed at the detection of salmonellae in feedingstuffs.

5. Owing to the disadvantages inherent in these inspections, the plaintiff in the main action had by a letter of 18 October 1976 applied for an exemption under Article 9 of the Viehseuchenverordnung, permitting it to import the feeding-stuffs in question, essentially from the Netherlands and from Denkavit Nederland B.V., without the certificate provided for in Article 1 and without inspection upon importation.

6. The plaintiff provided the evidence requested and, by a letter of 15 March 1977, obtained from the Ministry concerned a licence to import for a period of three months specified quantities of the said feeding-stuffs in new plastic bags via certain customs posts named in the said licence. There licence was, however, made subject to production of the certificate at the frontier customs post. At the same time the Ministry concerned put the plaintiff under an obligation to destroy the plastic bags after they had been emptied, and charged a fee of DM 50 for the licence under the Allgemeine Verwaltungsgebührenordnung [general regulation on administrative fees] of 9 January 1973.

II —. Observations under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC

A —. Observations of the plaintiff in the main action (Denkavit)

(a). The double veterinary check

(b). The need for an exemption accompanied by conditions and obligations

B —. Observations of the defendant in the main action (Minister für Ernährung)

C —. Observations of the Commission

(a). Applicability of Article 36

(b). Justification of the measure under Article 36 of the Treaty

1. A national legislative provision which

2. The competent authority must observe the limits laid down in Article 36 of the EEC Treaty in the exercise of its discretion to grant exemptions. If undertakings which manufacture feeding-stuffs containing products of animal origin in the exporting Member State are subject to official inspection not provided for by law but at least comparable to the inspection carried out in the importing Member State pursuant to its law in installations for the industrial manufacture of similar feeding-stuffs, the exercise of the discretion may constitute an arbitrary restriction on trade between Member States where the importer is exempted from the obligation to submit the feedingstuffs to bacteriological analysis before each importation but is made subject to other restrictions which do not apply to domestic products and which are not counterbalanced by other national measures relating to domestic products.

1. By an order of 13 September 1978, which was received at the Court on 10 November 1978, the Verwaltungsgericht [Administrative Court] Münster referred the following question to the Court of Justice for a preliminary ruling, under Article 177 of the EEC Treaty:

2. This question has been raised in an action brought by a trader who imports into the Federal Republic of Germany from the Netherlands feeding-stuffs containing products of animal origin — in this case substitute milk-based feeding-stuffs (Milchaustauschfutter) — against the Minister für Ernährung, Landwirtschaft und Forsten des Landes Nordrhein-Westfalen [Minister for Food, Agriculture and Forestry of the Land of North Rhine-Westphalia]. This trader calls in question the compatibility of certain provisions of the regulation of 18 September 1957 of the Land in question on animal health measures applicable on the importation and transit of feeding-stuffs containing products of animal origin from abroad (hereinafter referred to as the Viehseuchenverordnung [regulation on infectious diseases of animals] 1957 with Articles 30 and 36 and also with Article 9 of the Treaty relating respectively to the prohibition of measures having an effect equivalent to quantitative retrictions and of charges having an effect equivalent to customs duties in intra-Community trade and also with the provisions of Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organization of the market in milk and milk products (Official Journal, English Special Edition 1968 (I), p. 176) and of Regulation (EEC) No 2725/75 of the Council of 29 October 1975 on the common organization of the market in cereals (Official Journal L 281, p. 1) which enact or imply the same prohibitions.

3. It must be stressed that since 31 December 1969, the date when the transitional period came to an end, Articles 9 and 30 of the Treaty have direct effect and create by themselves individual rights which national courts must protect. Consequently on and after 1 January 1970 it was no longer necessary to reproduce in regulations establishing common organizations of the market the prohibitions enacted by those articles, since Article 38 (2) of the Treaty provides that Save as otherwise provided in Articles 39 to 46, the rules laid down for the establishment of the Common Market shall apply to agricultural products. That is the reason why Article 22 of Regulation No 804/68, which dates back to 1968, expressly provides that any quantitative restriction or measure having equivalent effect shall be prohibited whereas in Regulation No 2727/75 this prohibition is only specifically enacted in relation to trade with non-member countries. In these circumstances the Court may confine itself to interpreting the provisions of the Treaty which are at issue.

4. The Viehseuchenverordnung 1957, the compatibility whereof with Community law has been called in question in the main action, has been repealed and replaced with effect from 1 April 1979 by a Federal regulation. It was however in force when the events occurred which have given rise to the disputes brought before the national court. The specific aim of this regulation, which is one of the measures to combat salmonellosis, is to detect and destroy salmonellae in feeding-stuffs imported into the Federal Republic of Germany.

5. The particular features of this regulation as far as concerns the obstacles which it might place in the way of intra-Community trade are described as follows by the national court. Pursuant to Articles 1 and 2 of the Viehseuchenverordnung 1957 the feeding-stuffs in question may only be imported if two conditions are fulfilled, first that when they are imported a certificate from the competent authorities in the exporting country is produced confirming that the goods have undergone a heating process during or after dehydration whereby any salmonellae which may have been present were destroyed (Article 1 thereof) and secondly that the said feeding-stuffs shall all be subject upon importation to a preliminary inspection in the form of samples taken for inspection purposes by veterinary experts of the importing country and examined in an official veterinary inspection institute, their importation only being possible when it has been established by bacteriological analysis that the goods are free from salmonellae (Article 2 (1) thereof). According to Article 9 thereof the responsible Minister may grant exemption from the provisions of this regulation, especially from those relating to systematic inspection at the frontier, where there is no reason to fear that the importation and transit of the feeding-stuffs in question are a source of introduction or propagation of epizootic disease germs. He may grant an exemption upon certain conditions. This is what happened in this case where the exemption for which the plaintiff in the main action applied was granted in consideration of its accepting the conditions set out in the question raised by the national court.

6. The national court has stated that the requirements of Articles 1 and 2 of the Viehseuchenverordnung 1957, the obligation to apply for exemption within the meaning of Article 9 and the conditions to which this exemption is made subject are measures having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty, the dispute only being concerned with the question whether those restrictions are covered by the exception provided for in Article 36 of the Treaty according to which the provisions of Articles 30 to 34 shall not preclude restrictions on imports justified on grounds of the protection of health and life of humans and animals, provided that these restrictions do not however constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. It also inclines to the view that the requirement that a fee must be paid for granting the exemption is incompatible with Article 9 of the Treaty which prohibits the levying of charges having an effect equivalent to customs duties.

7. With reference to the veterinary and public health measures provided for by the domestic regulation at issue the plaintiff in the main action submits in the first place that Article 36 can no longer be invoked to justify such measures because in consequence of the Community directives adopted in the feedingstuffs sector for the purpose of harmonizing national laws recourse by national authorities to Article 36 is no longer justified. In the second place it submits in the alternative that not only the measures imposed by the Viehseuchenverordnung 1957 itself but also the fact that an application has to be made for an exemption and the conditions attached to the grant thereof represent an accumulation, in its view unnecessary and therefore unjustified, of restrictions on the free movement of the goods at issue, such restrictions not being covered by the exception provided for in Article 36 having regard to the fact that in the exporting Member State the production of feeding-stuffs by the undertakings concerned — although there are no mandatory provisions in this respect — is nevertheless subjected to inspections comparable to those which the laws of the importing Member State require undertakings on its own territory to undergo. It is also of the opinion that the fee of DM 50, to the payment of which the granting of an exemption is linked, is incompatible with Article 9 of the Treaty.

8. It is primarily in order to be able to resolve the problems raised by the plaintiff in the main action that the question of interpretation before the Court has been referred to it by the national court.

9. The Court will first consider the interpretation to be put on Articles 30 and 36 which deal with measures having an effect equivalent to quantitative restrictions and then the construction to be put on Article 9 which must be considered in its relation to the obligation to pay a fee.

I —. Articles 30 and 36 of the EEC Treaty

A —. Article 30 of the Treaty

10. As the national court has rightly pointed out the Court in its decided cases continues to interpret the concept of measures having an effect equivalent to quantitative restrictions in Article 30 of the Treaty as applying to systematic veterinary and public health inspections carried out at the intra-Community frontiers. The same interpretation applies, as the Court has acknowledged in its judgment of 24 January 1978 in Case 82/77 Openbaar Ministerie of the Kingdom of the Netherlands v Jacobus Philippus Van Tiggele [1978] ECR 25, to a system under which a trader finds that he has to apply to be exempted or to derogate from a domestic measure which is itself a quantitative restriction or a measure having equivalent effect.

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.

12. It follows from the foregoing considerations that the concept of a measure having an effect equivalent to quantitative restrictions covers national measures such as those provided for by Articles 1, 2 and 9 of the Viehseuchenverordnung 1957 and that such measures fall within the prohibition in Article 30 of the Treaty unless they fall within the exception provided for in Article 36.

B —. The applicability of Article 36 of the Treaty

13. As far as concerns the field of application of Article 36 the national court asks, in the first place, whether that provision may still be invoked by a Member State even though Community directives or regulations make arrangements for supervision having the same objectives as those provided for by the national provisions adopted in accordance with the said Article 36.

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.

15. Consideration of the directives referred to by the plaintiff and considered by the national court shows — as moreover that court rightly believes — that they do not deal with, and in any case at the time when the events giving rise to the main action occurred did not deal with, the harmonization of veterinary and public health prevention and supervision of the presence of salmonellae in feeding-stuffs of animal origin and especially in compound feeding-stuffs including milk products and animal fats.

16. This is in the first place the position in the case of Council Directive No 70/524/EEC of 23 November 1970 concerning additives in feeding stuffs (Official Journal, English Special Edition 1970 (III), p. 840) and of Council Directive No 74/63/EEC of 17 December 1973 on the fixing of maximum permitted levels for undesirable substances and products in feeding-stuffs (Official Journal 1974, L 38, p. 31). In fact the wording of those directives as well as the objectives which they seek to attain show that they are in no way concerned with the presence of pathogenic agents in the feeding-stuffs in question since the said agents clearly can neither be regarded as additives nor as undesirable substances and products in respect of which a maximum level would be permitted.

17. The same applies to Council Directive No 70/373/EEC of 20 July 1970 on the introduction of Community methods of sampling and analysis for the official control of feeding-stuffs (Official Journal, English Special Edition 1970 (II), p. 535) and of the various Commission directives adopted for the implementation thereof. In fact the heading and content of those directives indicate that they do not relate to the physical requirements which are contemplated for the harmonization of national animal health measures relating to feeding-stuffs but only to the Community methods making it possible to check whether the feeding-stuffs comply with the physical requirements which have been or are to be laid down in the future.

18. These physical requirements are inter alia dealt with in Council Directive No 77/101/EEC of 23 November 1976 on the marketing of straight feedingstuffs (Official Journal 1977, L 32, p. 1) and Council Directive No 79/373/EEC of 2 April 1979 on the marketing of compound feeding-stuffs (Official Journal 1979, L 86, p. 30). It is the second of those directives which deals with the type of feeding-stuffs the importation whereof gave rise to the main action. In any case neither of them was in force when the main action originated and the second of them moreover allows Member States a period not expiring until 1 January 1981 within which to adopt the laws, regulations and administrative provisions necessary to comply therewith. The consequence is therefore that those directives cannot in fact have overridden or override the powers which Article 36 confers on the Member States to except the goods at issue from free circulation. There is the further consequence that it is unnecessary to consider the question whether those directives deal with the presence of pathogenic elements in feeding-stuffs or not.

19. The Court must also reject the argument of the plaintiff in the main action that it follows from the Council Resolutions of 12 March 1968 and 22 July 1974 on the veterinary, plant health and animal feeding-stuffs sectors (Journal Officiel 1968, C 22, p. 18 and Official Journal 1974, C 92, p. 2) that the harmonization programme introduced by these resolutions shows that the Council did not think there was any point in adopting specific measures to combat salmonellosis and that the various directives taken together are exhaustive and the effect of their implementation is to forbid Member States in the entire field of animal health measures concerning feeding-stuffs to have recourse to Article 36. This argument fails to take into account the gradual and methodical action taken by the Council for the harmonization of national veterinary and public health laws and, on the other hand, the fact that in any case at the time when the events which gave rise to the dispute occurred the whole of the harmonization programme had not yet been completed.

20. It follows from the foregoing considerations that the conditions making it impossible for Member States to justify having recourse to the exceptions permitted by Article 36 of the EEC Treaty were not present when the events occurred which gave rise to the main action relating to compound animal feeding-stuffs of animal origin, as regards in particular measures against pathogenic agents.

C —. The concept of a justified restriction within the meaning of Article 36 of the Treaty

21. Having regard to the foregoing considerations it is necessary, with reference to the question put by the national court, to ascertain next whether the restrictions of the kind laid down by the Viehseuchenverordnung 1957 keep within the restrictions placed by Article 36 of the Treaty on the exceptions to the free movement of goods permitted by that provision. In fact it is clear from the wording thereof that the prohibitions or restrictions which it permits must be justified, that is to say necessary for attainment of its objective and may not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

22. In this connexion the first question is whether a double check, which consists on the one hand of the requirement of a certificate from the competent authority in the exporting country to the effect that the animal feeding-stuffs in question have been subjected to a process whereby salmonellae have been destroyed and, on the other hand, of a systematic inspection at the frontier following which importation is only permitted after confirmation that the goods are free of salmonellae, exceeds what Article 36 permits.

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 cooperation 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 cooperation 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.

25. The national court also wishes to know whether a system of granting import licences, the issue whereof is left to the discretion of the competent authority and is subject to the conditions described in the question put by the national court may be regarded as keeping within the limits laid down by Article 36.

26. The Court held in its judgment of 15 December 1976 in Case 41/76 (Suzanne Criel, née Donckerwolcke and Henri Schou v Procureur de la République au Tribunal de Grande Instance, Lille and Director General of Customs [1976] ECR 1921, at p. 1936) that the application to intra-Community trade of a national provision which requires, even purely as a formality, import licences or any other similar procedure is a measure having an effect equivalent to a quantitative restriction and is consequently prohibited. Nevertheless this prohibition does not apply to those cases where prohibitions or restrictions on trade may in fact be kept in being under the terms of Article 36 of the Treaty provided that they are justified within the meaning of that provision. The special licence at issue in the main action is an exception to the general rule of a double check laid down by Articles 1 and 2 of the Viehseuchenverordnung 1957 and is by definition deemed to be less restrictive than the general rule from which it derogates. Consequently a system of import licences which derogates to a large extent from a general system of veterinary and public health restrictions which is compatible with Article 36 complies itself with that provision. If it only made possible a relaxation of a general supervisory system which went beyond what Article 36 permits is would be necessary to consider it on its own merits in the light of the exceptions permitted by Article 36 of the Treaty to the prohibition of measures having an effect equivalent to quantitative restrictions.

27. From this it follows that Article 26 of the Treaty cannot be interpreted as meaning that it forbids in principle a national authority, which has imposed by a general rule veterinary and public health restrictions on imports of animal feeding-stuffs, from providing that it will be possible to derogate therefrom by individual measures left to the discretion of the administration if such derogations assist the simplification of the restrictions imposed by the general rules and if this power of derogation does give rise to arbitrary discrimination between traders of different Member States.

28. Nevertheless it does not automatically follow that each of the conditions to which the national authority subjects the grant of such authorization itself complies with what is permitted by Article 36. It is in each case for the national courts, as has been indicated above, to determine whether these conditions are necessary to attain the objective which Article 36 allows to be sought, taking into account the rule already mentioned above that it must be the duty of a national authority relying on Article 36 to prove that the measures which it imposes satisfy these criteria.

II —. Article 9 of the EEC Treaty

29. Finally the national court asks the Court to interpret the application of Article 9 of the Treaty in relation to the fact that the plaintiff in the main action has to pay a fee for the grant of the above-mentioned exemption from the Viehseuchenverordnung 1957.

30. Article 9 of the Treaty contains the prohibition between Member States of customs duties and of all taxes having equivalent effect. Since that prohibition does not admit of any distinction according to the aim in view in levying the pecuniary charges for the abolition of which it provides, it also includes fees demanded for veterinary and public health inspections carried out by reason of the importation of goods. The position would be different only if the pecuniary charges related to a general system of internal dues applied systematically in accordance with the same criteria to domestic products and imported products alike or if those charges were remuneration for a service actually rendered to the importer. Fees such as those provided for by the licence obtained in this case apply only to imported products. They are not remuneration for a service rendered to the importer either, because the operations of a State administration which are designed to maintain in the public interest a system of veterinary and health inspections — even if that system was organized in the form of measures which are individual, derogatory and more flexible than a general supervisory system — cannot be regarded as a service rendered to the importer of such a kind as to justify the levy of a pecuniary charge in consideration thereof.

31. It follows that Article 9 of the Treaty must be interpreted as meaning that a pecuniary charge levied for reasons connected with veterinary and public health checks, even if such checks take the form of a system of individual import licences and even if this system is justified within the meaning of Article 36 of the Treaty is a charge having an effect equivalent to a customs duty and consequently prohibited.

32. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT, in answer to the question referred to it by the Verwaltungsgericht, Münster by order of 13 September 1978, registered at the Court on 10 November 1978, hereby rules:

1 The concept of a measure having an effect equivalent to quantitative restrictions covers national measures such as those provided for by Articles 1, 2 and 9 of the North Rhine-Westphalian regulation of 18 September 1957 relating to animal health measures applicable on the importation and transit of feeding-stuffs containing products of animal origin from abroad. Such measures fall within the prohibition in Article 30 of the EEC Treaty unless they fall within the exception provided for by Article 36 of the EEC Treaty.

2 Conditions making it impossible for Member States to justify having recourse to the exceptions permitted by Article 36 of the EEC Treaty were not present when the events occurred which gave rise to the main action relating to compound animal feeding-stuffs of animal origin, as regards in particular measures against pathogenic agents.

3 A double check of the kind described in the question is more than Article 36 of the EEC Treaty permits if the health and life of humans and animals can be protected as effectively by measures which are not so restrictive of intra-Community trade. 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.

4 Article 36 of the EEC Treaty cannot be interpreted as meaning that it forbids in principle a national authority, which has imposed by a general rule veterinary and public health restrictions on imports of animal feeding-stuffs, from providing that it will be possible to derogate therefrom by individual measures left to the discretion of the administration if such derogations assist the simplification of the restrictions imposed by the general rules and if this power of derogation does not give rise to arbitrary discrimination between traders of different Member States. Nevertheless it does not automatically follow that each of the conditions to which the national authority subjects the grant of such authorization itself complies with what is permitted by Article 36 of the EEC Treaty.

5 It is in each case for the national courts to apply these criteria in the ligth 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 of the EEC Treaty to prove that the measures which it imposes satisfy these criteria.

6 Article 9 of the EEC Treaty must be interpreted as meaning that a pecuniary charge levied for reasons connected with veterinary and public health checks, even if such checks take the form of a system of individual import licences and even if this system is justified within the meaning of Article 36 of the EEC Treaty is a charge having an effect equivalent to a customs duty and consequently prohibited.

1 On 2 April 1979 the Council adopted a directive on the marketing of compound feeding-stuffs (Official Journal 1979 L 86, p. 30). According to Article 16, Member States shall bring into force on 1 January 1981 the laws, regulations and administrative provisions necessary to comply with this directive and shall forthwith inform the Commission thereof.