Opinion of Mr Advocate General Darmon delivered on 5 March 1991

1 Original language: French.

2 Regulation of 2 January 1987 (BGBl. I, pp. 94 and 423).

3 Observations submitted by Denkavit, p. 5 of the French translation.

4 Council Directive of 2 April 1979 on the marketing of compound feedingstuffs (OJ 1979 L 86, p. 30), amended, for the first time, by Council Directive 86/354/EEC of 21 July 1986 (OJ 1986 L 212, p. 27); those amendments have no bearing on the present case.

5 BGBl. I, p. 869.

6 Denkavit, written observations, p 7 of the French translation

7 Written observations, paragraph 12.

8 Council Directive of 22 January 1990 amending Directive 79/373/EEC on the marketing of compound feedingstuffs (OJ 1990 L 27, p 35).

9 Save in respect of compound feedingstuffs for pets other than dogs or cats for which the indication is optional (Article 5(3)(g) and 1(d)).

10 The new Article 5c 2(a) of Directive 79/373.

11 The new Article 5(1) of Directive 79/373.

12 Judgment in Case 218/82 Commission v Council [1983] ECR 4063, paragraph 15; see also the judgment in Case 104/75 De Peijper [1976] ECR 613; judgment in Case 179/78 Rivoira [1979] ECR 1147.

13 Judgment in Case 15/83 Denkavit Nederland [1984] ECR 2171, paragraph 15, where Article 34 of the EEC Treaty was invoked; see also judgment in Joined Cases 80/77 and 81/77 Commissionnaires Reunis v Receveur des Douanes [1978] ECR 927, paragraph 35.

14 Case 10/73 Rewe-Zentrale [1973] ECR 1175.

15 Paragraph 20.

16 For another application of that criterion, see the judgment in Case 5/77 Tedeschi [1977] ECR 1555, paragraphs 51 to 57.

17 Judgment in Case 46/76 [1977] ECR 5.

18 Directive on animal health problems affecting intra-Community trade in bovine animals and swine (OJ, Special English Edition 1963-64, p. 164).

19 Paragraph 27.

20 Paragraph 29.

21 Paragraph 28

22 Paragraph 30.

23 On thai point, see the judgment in Case 251/78 Denkavit Futtermittel [1979] ECR 3369, paragraph II, from which it emerges that the same measure will be assessed differently according to whether it is unilateral or whether it is the result of a harmonization directive.

24 This case-law has been applied, mutatis mutandis, to inspection fees established by the United Nations international agreement on the protection of vegetables of 6 December 1951; judgment in Case 89/76 Commission v Netherlands [1977] ECR 1355.

25 Judgment in Case 37/83 Rewe-Zentrale [1984] ECR 1229.

26 Directive on protection measures against the introduction into the Member States of organisms harmful to vegetables or vegetable products (OJ 1977 L 26, p. 20).

27 Paragraph 19, emphasis added.

28 Paragraph 20, emphasis added.

29 For an identical opinion, see Curral, J.: Some Aspects of the Relation between Articles 30-36 and Article 100 of the EEC Treaty, with a Closer Look at Optional Harmonization, Yearbook of European Law, 1984, p. 169, see p. 195.

30 Oliver, P.: free Movement of Goods in the EEC, Second Edition, 1988, 4-13, p. 46.

31 To the criteria to which I have referred, academic legal writers add observance of the principle of proportionality (Oliver, P., op. cit., 4-16, p. 51; Curral, J, , op. cit., p. 194) and equality of treatment between the Member States (Curral, J., op. cit., p. 194); certain writers take the view that the burden of proof should be reversed to the advantage of Community measures, which would be presumed to be compatible (with Community law), while national measures which create obstacles to intra-Community trade would be presumed to be unjustified (Oliver, P., op. cit., 4-17, p. 51).

32 Judgment in Case 120/78 Rewe-Zentrale [1979] ECR 649.

33 Case 10/73, above.

34 Case 46/76, above.

35 Case 37/83, above, paragraph 19.

36 Case 104/75, above.

37 Sec p 653.

38 Judgment in Case 27/80 nette [1980] ECR 3839, paragraphs 8 to 10; judgment in Case 94/82 De Kikvonch [1983] ECR 947, paragraph 10.

39 Case 28/84 Commission v Germany [1985] ECR 3097

40 Paragraph 11

41 Judgment in Case 73/84 Denkavn Futtermittel/[l985] ECR 1013.

42 Paragraph 12

43 Paragraph 12, emphasis added.

44 Judgment in Case C-150/88 [1989] ECR 3891.

45 Paragraph 18.

46 It will be recalled that Denkavit also refers to Article 36 of the Treaty.

47 Cases 10/73. 46/76 and 37/83, above.

48 Case 120/78, above, paragraph 8.

49 Case 37/83, above.

50 Paragraph 20.