Report for the Hearing delivered in Case C-131/87

I — Legal framework and facts of the case

Council Directive 72/461/EEC of 12 December 1972 on health problems affecting intra-Community trade in fresh meat (Official Journal, English Special Edition 1972 (31 December), p. 3), as amended in particular by Council Directive 85/322/EEC of 12 June 1985 (Official Journal 1985, L 168, p. 41), lays down the health requirements which must be fulfilled by animals from which fresh meat is obtained for intra-Community trade. Council Directive 72/462/EEC of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries (Official Journal, English Special Edition 1972 (31 December), p. 7), as amended in particular by Council Directive 83/91/EEC of 7 February 1983 (Official Journal 1983, L 59, p. 34), lays down health and veterinary inspection requirements for the importation of those products from nonmember countries.

The Council adopted both those directives on the basis of Articles 43 and 100 of the EEC Treaty, whereas the proposal of the Commission was based on Article 43 alone.

Directive 87/64, which is challenged in these proceedings, amends the aforesaid Directives 72/461/EEC and 72/462/EEC. It is based on Articles 100 and 113 of the Treaty, whereas the Commission had based its proposal (Official Journal 1985, C 68, p. 5) on Article 43.

Under Article 1(2) of Directive 72/461/EEC and Article 2 of Directive 72/462/EEC, all parts of domestic animals which are fit for human consumption are considered to be meat covered by those directives. According to the second recital in the preamble to the contested Directive 87/64, glands and organs, including blood, are within the scope of the abovementioned directives.

The preamble to the contested directive states that, since those products are required in large quantity by the pharmaceutical manufacturing industries of Member States to ensure the availability of extracts and enzymes for human and veterinary medicine (second recital), Member States should be afforded the possibility of authorizing on a more liberal basis the importation [of those products] for pharmaceutical manufacturing purposes from third countries ... (third recital).

According to the fourth recital, ... in order to maintain Community preference, the same facilities should be applied in intra-Community trade of glands and organs, including blood, for pharmaceutical manufacturing purposes ... .

To that end, Article 1 of Directive 87/64 adds the following paragraph to Article 3 of Directive 72/461/EEC:

Moreover, Article 2 of the contested directive amends Article 16 of Directive 72/462, which provides as follows:

Under the contested directive the above provision became paragraph 1 and the following paragraph 2 was added:

The Commission had proposed a different approach, whereby glands, organs and blood intended as raw materials for the pharmaceutical industry were to be excluded from the scope of Directives 72/461 and 72/462 and their importation was to be made subject to certain conditions.

II — Written procedure and conclusions of the parties

The Commission's application was lodged at the Court Registry on 22 April 1987.

By orders of 30 September 1987, the Court granted the Kingdom of the Netherlands leave to intervene in support of the Commission's conclusions and also granted the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Denmark leave to intervene in support of the Council's conclusions.

The procedure followed the normal course. By a decision under Article 42(2) of the Rules of Procedure, the President of the Court allowed the Commission to lodge its answer on a fresh issue raised by the Council in its rejoinder and by the United Kingdom in its written observations.

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

The Commission and the Kingdom of the Netherlands claim that the Court should:

In addition the Commission asked that the defendant be ordered to pay the costs.

The Council, the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Denmark contend that the Court should:

III — Submissions and arguments of the parties

1. The Commission, supported by the Netherlands Government, whilst approving of the content of Directive 87/64, takes the view that it should be declared void because the choice of Articles 100 and 113 as legal bases constitutes an infringement of an essential procedural requirement and an infringement of the Treaty. The directive should have been based on Article 43 alone.

2. The Council, supported by the United Kingdom and, in the main, by the Danish Government, takes the view that Articles 100 and 113 constitute the correct legal basis. In their opinion Article 43 is ruled out because Directive 87/64 does not relate solely to products included in Annex II and does not pursue the objectives set out in Article 39 of the Treaty.

1 Language of the case: German.

2 These paragraphs lay down the conditions (regarding the minimum period of stay within the Community and restrictions in connection with certain diseases) to be fulfilled by fresh meat in intra-Community trade

3 This article, containing restrictions relating to swine fever, was inserted into Directive 72/461/EEC by Directive 85/322, cited above.

4 As amended by Directive 83/91, cited above.

5 These articles lay down general conditions (regarding the minimum period of stay in the country of exportation and restrictions in connection with certain diseases) governing importation into the Community

6 As amended by Regulation No 1014/73 (OJ 1973, L 106, p. 1): offal intended for the manufacture of pharmaceutical products.