Report for the Hearing delivered in Case C-186/88
I — Summary of the facts
1. The common organization of the market in poultrymeat is governed by Regulation No 2777/75 of the Council of 29 October 1975 (Official Journal 1975, L 282, p. 77).
2. In order to counteract the barriers resulting from disparities between national legislation on health requirements, on 15 February 1971 the Council adopted Directive 71/118 on health problems affecting trade in fresh poultrymeat (Official Journal, English Special Edition 1971 (I), p. 106), which was designed to ensure uniformity of the health conditions for poultrymeat in abattoirs and for storage and transport thereof. The directive provides in particular for the issue of a health certificate drawn up in the country of despatch which must accompany the consignment of meat until it reaches its destination.
3. Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States (Official Journal 1983, L 359, p. 8), as amended by Council Directive 87/53 of 15 December 1986 (Official Journal 1987, L 24, p. 33) applies, by virtue of Article 1(1) thereof, to physical inspections and administrative formalities concerning the transport of goods which have to cross an internal frontier within the Community or an external frontier, where carriage between Member States involves crossing a third country. Article 2 provides that the Member States are to take the necessary measures to ensure that in the course of any carriage operation the various inspections and formalities are carried out with the minimum delay necessary and, as far as possible, in one place, with the inspections being carried out by means of spot checks, except in duly justified circumstances.
4. The inspection of poultrymeat imports into the Federal Republic of Germany is governed by the Geflügelfleischhygienegesetz (Law on poultrymeat hygiene) of 12 July 1973 (BGBl I, p. 776) and by the Geflügelfleischuntersuchungsverordnung (Regulation on the inspection of poultrymeat) of 3 November 1976 (BGBl I, p. 3077), as amended by a regulation of 27 July 1978 (BGBl I, p. 1150). Under Article 24 of the law, every import of fresh poultrymeat and prepared poultrymeat into the Federal Republic of Germany must be declared in due time to the appropriate frontier office in order to be inspected. For that purpose, the nature and quantity of the goods must be indicated, and also the time at which the inspection is to take place. According to Article 7 of the regulation, the inspection is intended to determine whether the imported consignment is accompanied by a valid health certificate, whether the goods contained in the consignment correspond to those indicated in the certificate and whether certain markings have been affixed. The inspection is carried out by veterinary officers.
5. By order of 26 February 1987, the Bundesverwaltungsgericht (Federal Administrative Court) referred to the Court for a preliminary ruling a number of questions on the interpretation of Article 30 of the EEC Treaty, of Regulation No 2777/75 and Directive 83/643, to enable it to determine whether the German inspection procedures were compatible with Community law (Case 190/87).
6. On 12 June 1987, the Commission sent to the Federal Republic of Germany a letter of formal notice, drawing its attention to the fact that the German rules were contrary to Community law.
7. In its reply of 10 August 1987, the Government of the Federal Republic of Germany asked the Commission not to proceed with its action in view of the fact that a preliminary ruling was awaited from the Court.
8. On 16 March 1988, the Commission sent the German Government a reasoned opinion, alleging that it had failed to fulfil its obligations under Article 30 of the EEC Treaty, under Regulation No 2777/75 and under Directives 71/118 and 83/643.
9. In its reply of 19 April 1988, the German Government contended that it had not contravened Community law.
10. By judgment of 20 September 1988 in Case 190/87 Oberkreisdirektor des Kreises Borken and Another v Handelsonderneming Moorman 5K[1988] ECR 4689, the Court ruled, in reply to the questions referred to it by the Bundesverwaltungsgericht that:
11. Following that judgment, the Commission, which, in its application, had claimed that all the systematic inspections carried out in the Federal Republic of Germany were contrary to Community law, abandoned some of its initial conclusions. It now criticizes the Federal Republic of Germany only for carrying out systematic inspections (entailing a requirement to make a prior declaration) which involve more than a simple check that the documents accompanying the goods are in order, and a visual inspection thereof, intended to ensure that they conform with the said documents and carried out by officers having general authority to inspect goods.
II — Written procedure and conclusions of the parties
1. By application lodged at the Court Registry on 10 October 1988, the Commission brought the present action, in which it claims that the Court should:
2. The Federal Republic of Germany, the defendant, claims that the Court should:
3. 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.
III — Submissions and arguments of the parties
1. In support of its amended conclusions, the Commission puts forward the following submissions and arguments.
2. The Federal Republic of Germany criticizes the Commission for refusing to stay the present Treaty-infringement proceedings pending the judgment to be given by the Bundesverwaltungsgericht having regard to the judgment of the Court of Justice of 20 September 1988.
1 Language of the case: German.