Opinion of Mr Advocate General Darmon
Mr President,
Members of the Court,
1. In these Article 169 proceedings against the Kingdom of Belgium, the Commission seeks a declaration that a system requiring prior authorization for the importation of live animals is incompatible with Community law. It had initially also sought a declaration concerning that system as it applied to imports of meat, but withdrew that head of claim at the hearing following the adoption of an amendment of the Belgian legislation during the course of the procedure.
2. A distinction must be drawn between the requirement of a prior import authorization for bovine animals and swine and the requirement of a prior import authorization for other animals, in particular sheep, goats, poultry and solipeds. In the first case, the Commission claims that Belgian law is incompatible with Directive 64/432/EEC, while in the second it alleges an infringement only of Article 30 of the Treaty. I shall consider the two cases in turn.
3. In the Commission's submission, Directive 64/432 has brought about complete harmonization of the measures which importing Member States may adopt with regard to the species to which it applies. Member States may therefore no longer rely on Article 36; they may merely examine the certificate issued by the official veterinarian of the exporting State and, possibly, carry out spot checks, without prejudice to the application, where appropriate, of the safeguard provisions in Article 9 of the directive. The completeness of that system precludes any requirement of import authorizations, even if they are issued automatically.
4. The Belgian Government maintains, first of all, that the authorization in issue does not introduce any health inspection or restriction of intra-Community trade over and above the health inspection provided for in Directive 64/432. The authorization system is, moreover, intended to make up for the absence of any harmonized information system within the framework of Directive 64/432. Until such a system is set up, the Belgian arrangements will remain necessary in order to achieve two objectives:
5. Since Belgium appears to be contesting the restrictive effects of the system in question, it should be pointed out first of all that the Court has considered import authorizations to constitute an infringement of Article 30 of the Treaty. It has held that
6. If, as the Commission contends, the harmonization achieved in this field is complete, the Kingdom of Belgium may no longer rely on Article 36 and must confine itself to the procedures laid down in Directive 64/432.
7. Let us first consider the Court's analysis in Simmenthal with regard to Directive 64/432. After pointing out that the approximation of national legislation consisted
8. It then explained that
9. The Court concluded that
10. Those extracts show unambiguously that Directive 64/432 has brought about complete harmonization of intra-Community trade in bovine animals and swine. Any system of import authorizations established unilaterally by Member States appears, therefore, to be contrary to the very system of that directive.
11. But Belgium justifies the authorization system in issue by pointing out inter alia that there is no harmonized information system in the directive.
12. In that regard, I cannot but point out that Article 6(2) of the directive authorizes the Member States to require importers to give up to 48 hours' advance notice of importation. That procedure enables the States of destination to ensure, if necessary, the supervision of the animals' health after importation, a point to which the Belgian Government has attached great importance.
13. Furthermore, the arguments put forward by the Belgian Government do not, in my opinion, in any way bear out the view that harmonization is not complete.
14. In that connection, it refers to the explanatory memorandum prefacing the proposals for regulations concerning veterinary checks in which the Commission proposes inter alia that veterinary checks at internal frontiers should be eliminated. With that in view, the Commission states that this general approach implies recourse to and the development of a mutual information system, from which the Kingdom of Belgium concludes that the information system is not harmonized as the law now stands.
15. I cannot find that argument convincing. Perusal of the document in question reveals that it envisages a modification of all the provisions governing veterinary checks in intra-Community trade.
16. The proposal does indeed contain ad hoc provisions concerning information to be provided by the State of dispatch to the State of destination, but it must be noted that such arrangements are to be seen as a quid pro quo both for the elimination of all frontier veterinary checks, which are still possible under Directive 64/432 in the form of spot checks, and for the repeal of Article 6(2) of that directive, under which advance notification of importation may be required.
17. It is not, therefore, a question of harmonizing an information system which is inadequate as Community law now stands but of envisaging measures appropriate to a new context in which frontier checks, at present possible in trade in bovine animals and swine to the extent specified above, are eliminated.
18. The Belgian Government's arguments clearly ignore the overall balance of the draft regulation in question. They in no way prove that Directive 64/432 is incomplete as regards the information to be provided to the State of destination.
19. Finally, the justification of the import authorization by the check required under Directive 81/389/EEC is entirely irrelevant. The sole aim of that directive is to provide for frontier checks on the conditions in which live animals are transported; in no way does it provide that importation may be made conditional on prior authorization.
20. I therefore propose that the Court should declare that the system set up by the Kingdom of Belgium is incompatible with Directive 64/432 in so far as it concerns bovine animals and swine.
21. Let us now consider whether, in the light of Article 36, the import authorization is compatible with the Treaty as regards other live animals. I shall be brief.
22. The Court has held that
23. The disproportion between those aims and a system of authorizations is obvious. Doubt may even be cast on the relevance of the system: does it not purport, in the final analysis, to inform the importer of a right which he enjoys under Article 30 of the Treaty? Moreover, as the Court has already held, measures less restrictive of trade, such as the completion of a declaration by the importer or the production of the certificates issued in the exporting Member State, would undoubtedly suffice to enable the importing Member State to obtain the information which is of use to it. It is thus clear that, under this head too, Belgium has failed to fulfil its obligations.
24. I therefore propose that the court should declare that by subjecting imports of live animals coming from other Member States to the requirement of a prior import authorization, whether issued automatically or otherwise, the Kingdom of Belgium has failed to fulfil its obligations under Article 30 of the EEC Treaty and under Directive 64/432.
25. I also propose that the Kingdom of Belgium should be ordered to pay all the costs, including those relating to the head of claim withdrawn by the Commission, in so far as the necessary measures were adopted during the course of the proceedings.
1 Original language: French.
2 Council Directive 64/432/EEC of 26 June 1964 on animal health problems affecting intra-Community trade in bovine animals and swine (OJ, English Special Edition 1963-64, p. 164).
3 Judgment in Case 124/81 Commission v United Kingdom [1983] ECR 203, paragraph 9, emphasis added.
4 Ibidem, paragraph 10.
5 Judgment in Case 35/76 Simmenthal SpA v Italian Minister for Finance [1976] ECR 1871.
6 Ibidem, paragraph 27.
7 Ibidem, paragraph 29.
8 Ibidem, paragraphs 30 and 32. emphasis added
9 Ibidem, paragraphs 35 and 36
10 COM(88) 383 final.
11 See, in that connection, Anicle 14(2) of the proposal for a regulation.
12 Council Directive 81/389/EEC of 12 May 1981 establishing measures necessary for the implementation of Directive 77/489/EEC on the protection of animals during international transport (OJ L 150, 6.6.1981, p. 1).
13 Case 124/81 Commisíion v United Kingdom, cited above, paragraph 18.
14 Case 124/81 Commission v United Kingdom, cited above