Opinion of Mr Advocate General Van Gerven delivered on 20 March 1990

1 Original language: Dutch.

2 Lagopus lagopus scoticus. Apart from this quotation, the term red grouse will henceforth be used in accordance with the terminology employed in the relevant provisions of Community law.

3 OJ 1979, L 103, p. 1.

4 It has not been disputed, cither in the written observations or at the hearing, that the bird in question is not a migratory bird within the territory of the Community: see Cramp and Simmons, Handbook of the Birds of Europe, the Middle East and North Africa, Part II, 1980, p. 391, at p. 394

5 The text of Article 14 of the directive contains the verb introduce, from which it could be inferred that only newly introduced measures or newly adopted rules, and not old rules or measures which have been retained, are meant

6 See the case-law cited in footnote 12.

7 OJ 1982, L 384, p. 1.

8 Ibid, p. 7.

9 For the classification of an absolute prohibition on the marketing and importation of a product as a measure having an effect equivalent to a quantitative restriction, see the Court's judgment of 23 February 1988 in Case 216/84 Commission v France [1988] ECR 793, paragraph 7.

10 It follows that the case-law of the Court according to which environmental protection — a different, somewhat broader concept than the ‘protection of health and life of humans, animals or plants Veferred to in Article 36 — constitutes an interest worthy of protection in accordance with the rule of reason (see the Court's judgment of 20 September 1988 in Case 302/86 Commission v Denmark [1988] ECR 4607, in which reference is made to the judgment of 7 February 1985 in Case 240/88 Procureur de la République v ABDHU [1985] ECR 531) is inapplicable here. See also footnotes 10 and 11 below.

11 The question submitted for a preliminary ruling concerns exclusively Article 36 of the EEC Treaty in so far as it is aimed at the protection of the health and life of animals and, indirectly therefore, at the protection of the environment. When questioned at the hearing about the relationship between those two interests worthy of protection (protection of health and life and environmental protection, now referred to as an objective in Article 100a(3) of the EEC Treaty) none of the parties present argued in favour of a separate assessment of the Netherlands measure in question from the point of view of environmental protection. Such an assessment would be based on the premiss that environmental protection either already falls within the scope of the protection of health and life in Article 36, or needs to be added pursuant to Article 100a(4) to the list of justifying grounds set out therein. Even so, however, it is or course necessary to satisfy the criteria laid down by Article 36, which would not seem to be the case here, as is made clear below (in paragraph 10). Consideration of the scope of Article 36 in conjunction with Article 100a(4), from the point of view of environmental protection, can therefore be left aside. See also footnote 11.

12 It is clear from that wording that in this specific case the question would not differ substantially if the interest worthy of protection under Article 36 were environmental protection and not the protection of bird life (see the previous footnote): in the case of a bird species which is not endangered and does not migrate across national frontiers, the protection of ... lire of ... animals, a justifying ground which draws no distinction between the greater or lesser environmental value of the species concerned, strikes me as leaving just as much scope for ecological considerations as a justifying ground aimed specifically at environmental protection.

13 Judgment of 20 May 1976 in Case 104/75 De Peijper [1976] ECR 613, paragraph 32.

14 Judgment of 30 November 1983 in Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 35.

15 See, for example, Case 104/75, cited above in footnote 12, paragraphs 21 and 22, and the judgment of 8 February 1983 in Case 124/81 Commission v United Kingdom [1983] ECR 203, paragraph 16.

16 See, for instance, the judgment of 22 March 1983 in Case 42/82 Commission v France [1983] ECR 1013, paragraphs 55 to 57.

17 Judgments of 16 December 1980 in Case 27/80 Fietje [1980] ECR 3839, paragraph 12, first sentence, and of 22 June 1982 in Case 220/81 Robertson [1982] ECR 2349, paragraph 12

18 Judgment of 10 March 1983 in Case 172/82 Fabricants raffineim d'hutle de gramage v Inter-Husles [1983] ECR 555, paragraph 14, final sentence.

19 For the same view, see the commentary by J. H. Jans on the judgment of the Raad van State, Afdeling Rechtspraak (Netherlands Council of Slate, Administrative Appeal Section) of 20 March 1984, Milieu en Recht, 1985, p. 86, at p. 89.

20 As briefly indicated earlier, at the end of paragraph 2, no such appraisal of interests seems to have taken place since the question whether the bird may be hunted in the Netherlands does not arise there.

21 [1988] ECR 4607.

22 See the judgment of 31 January 1984 in Case 40/82 Commimon v United Kingdom [1984] ECR 283. paragraphs 14 to 21 The reasoning can be summarized as follows since a given disease had occurred with decreasing frequency in the Community in the previous six years, and the vaccination used against it, which might have had adverse effects at home, was not normally practised on animals intended for slaughter, an absolute prohibition on the importation of meat from slaughtered animals from Member Stales which practised vaccination was not justified See, in particular, the end of paragraph 18, in which the Court stated that its assessment was based on the abtence in certain categories of any risk of infection (emphasis added)