Opinion of Advocate General
Mr President,
Members of the Court,
1. During 1987, the Commission received several complaints from a French company, alleging that the Greek authorities had imposed unjustified restrictions on the importation of frozen chickens from France.
2. The Commission considered the facts thus brought to its attention and concluded that the measures adopted by the Greek authorities constituted an infringement of Community law; it therefore first requested the Greek Government to authorize the importation and marketing of the goods and then — when its request was refused — decided to initiate the procedure laid down in Article 169 of the EEC Treaty.
3. The Commission regarded such a reply as unsatisfactory and decided to bring the matter before the Court and to seek a declaration that by: (a) prohibiting the importation of a consignment of 90 tonnes of frozen chickens from France because of the presence of salmonella on the surface of certain carcasses; (b) prohibiting the importation of more than 40 tonnes of chickens on the pretext that they contained excessive amounts of extraneous water; (c) systematically and repeatedly delaying the importation of several consignments of frozen chickens, the Hellenic Republic had failed to fulfil its obligations under Directive 71/118/EEC, Directive 83/643/EEC, as amended by Directive 87/53/EEC, Regulations (EEC) Nos 2967/76 and 2777/75 and Articles 30 to 36 of the EEC Treaty.
4. I propose to consider the three complaints against the Greek Government separately, in the order listed.
5. The Commission first points out that under Directive 71/118/EEC the import prohibition extends only to consignments of chickens which are found to include birds suffering from an infectious disease. However, it considers that the presence of a limited number of salmonella bacteria on the surface of the carcasses, probably resulting from post mortem contamination, does not imply that the chickens have contracted an infectious disease such as salmonellosis.
6. In these circumstances it should first be recalled that to facilitate intra-Community trade in fresh poultry meat the Council adopted Directive 71/118/EEC in the early 1970's with the intention of harmonizing the health requirements of the various Member States.
7. In this connection, it should be made clear at once that the Commission — as it expressly stated itself at the hearing — is not claiming that the Hellenic Republic employed methods of analysis or discriminatory criteria with regard to imported products but merely that it refused to authorize the importation of poultry which, in the Commission's opinion, did not constitute a danger to human health.
8. In those circumstances I would point out that a consideration of the scientific literature produced by the Commission and the Greek Government does indeed show that the presence of salmonella on the carcasses of chickens is a fairly widespread phenomenon in the Community. However, contrary to what the Commission maintains, that literature stresses that there is a real risk to human health not only in cases where salmonella are found in the muscular tissue of poultry but also, and to a significant extent, where such microorganisms are present only on the carcass of the bird.
9. These considerations regarding the risk involved in the presence of salmonella on poultry carcasses are further confirmed by the fact that the Commission first appeared to admit that certain limit values must in any case be respected even as concerns the presence of salmonella on the surface of carcasses (point 7 of the application) but then abandoned its earlier view that limit values should be laid down for the quantity of salmonella to be accepted in intra-Community trade in favour of a policy of prevention, that is, reducing the presence of salmonella in holdings and conducting a consumer information campaign (Commission reply to the third question put by the Court).
10. In the light of the foregoing, it seems to me that the Greek authorities might justifiably fear that the importation of the chickens in question might constitute a danger to human health and I do not think it is reasonable to require them to expose the population to a risk — albeit a limited one — which might arise if the poultry were handled incorrectly.
11. Nor am I convinced by the Commission's statements that the Greek veterinary authorities in fact found only six salmonella bacteria on six chickens and that the quantity of salmonella found in the consignments in question was consequently below the danger threshold.
12. Moreover, it is clear from the Commission's reply to the first question put by the Court that Greece is not the only Community country to carry out checks on the skin of poultry and even the French Government, intervening in support of the applicant, recognizes that the Greek health authorities are entitled, in the absence of specific Community provisions on the subject, to carry out tests on samples consisting of a mixture of skin and muscle (statement in intervention, p. 4).
13. In its second complaint, the Commission claims that the Greek authorities raised unjustified obstacles to the importation of two consignments of chickens on the pretext that they contained excessive amounts of extraneous water.
14. Both during the pre-litigation procedure and in the application, the Commission claimed that the Greek authorities employed two different types of analysis in succession, first the rapid detection method described in Annex II and then the method described in Annex HI of the regulation in question.
15. As regards the first point, I must observe that it is clear from the documents in the case that, from the pre-litigation procedure onwards, the Greek Government resolutely denied having carried out two successive analyses using different methods and stressed that, on the contrary, it had used the method described in Annex III for both the first and the second analyses. The consignment of poultry at issue was, it stated, examined in accordance with the method described in Annex II on the occasion of a further analysis of the consignment in question and then only at the request of the expert, to whom it had been explained that in any case the result of such an analysis was not considered relevant because the different method described in Annex III had been employed for the purposes of the first analysis.
16. That statement was not duly challenged by the Commission, which — it should be remembered — bears the onus of proving that the alleged infringement took place and this complaint too must therefore be rejected.
17. Similarly, the Commission's statement that, by employing the method described in Annex III, the Greek authorities failed to comply with the prescribed technical standards does not appear to be adequately substantiated in the light of the relevant details provided by the Greek Government, which complains in particular that the Commission mentioned the data established on the basis of a single specimen only in connection with the calculation to determine the average protein content, whilst none of the values established on the basis of the other six carcasses analysed exceeds the limits laid down in the ISO 937 method. The defendant adds that if the result is based on those six birds, the consignment examined clearly exceeds the limits laid down in Annex III to Regulation No 2967/76.
18. Finally, we come to the Commission's third complaint against the Greek Government, namely that there were systematic and repeated delays in the importation of several consignments of frozen chickens.
19. The Commission's complaint is based principally on Article 30 of the EEC Treaty and Article 6 of Directive 83/643/EEC, as amended by Directive 87/53/EEC, which requires Member States to take the measures necessary to ensure that waiting time caused by the various inspections and formalities does not exceed the time required for their proper completion. To that end, they must organize the business hours of the departments which are to carry out inspections and formalities, the staff available and the practical arrangements for processing goods and documents associated with the carrying out of the inspections and formalities in such a way as to reduce waiting time in the flow of traffic to a minimum.
20. I must say at once that, with respect to this last complaint too, the evidence for the applicant's allegations does not seem to me to be based on sufficiently firm evidence; on the contrary, I have the impression that having first decided to bring an action for infringement designed essentially to challenge the methods employed by the Greek authorities to check for salmonella and the extraneous water content, the Commission then merely added a number of other complaints from the exporter in question to the main charges.
21. It is true that with respect to one of the consignments of 22 tonnes, the Greek authorities justified the delay on the ground that the equipment used to conduct the examination pursuant to Annex III of Regulation No 2967/76 had broken down and had had to be replaced.
22. Lastly, there remains the consignment of 112 tonnes, held up for roughly a month in April 1987. In that case, it does not seem to me that there is any valid reason for the delay and the Greek Government's replies in this connection, explaining that the goods in question were not correctly labelled and that the Easter holidays may have added to the delay, were vague and altogether unsatisfactory.
Conclusion
23. In the light of the foregoing, I therefore propose that the Court should:
1 Original language: Italian.
2 Council Directive of 15 February 1971 on health problems affecting trade in fresh poultry meat (OJ, English Special Edition 1971 (I), p. 106).
3 Council Directive of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States (OJ 1983 L 359, p. 8).
4 OJ 1987 L 24, p. 33.
5 Council Regulation of 23 November 1976 laying down common standards for the water content of frozen and deepfrozen chickens, hens and cocks (OJ 1976 L 339, p. 1).
6 Regulation of the Council of 29 October 1975 on the common organization of the market in poultry meat (OJ 1975 L 282, p. 77).
7 It should be remembered that, as appears from the judgment in Case C-332/88 Alimenta [1990] ECR I-2077, paragraph 21, the opinion delivered by a veterinary expert provided for under Article 10 of Directive 71/118/EEC is not decisive or binding but does represent an important factor to be taken into account by the national authorities and any national courts before which proceedings are brought.
8 Judgment in Alimenta, paragraph 17.
9 Case 97/83 Melkunie [1984] ECR 2367, paragraph 18, Case 174/82 Sandoz [1983] ECR 2445, paragraph 16, and Case 272/80 Biologische Produkten [1981] ECR 3277, paragraph 12.
10 See, most recently, Case C-157/91 Commission v Netherlands [1992] ECR I-5899, paragraph 12.
11 Commission Regulation of 30 October 1980 introducing detailed rules for implementing Regulation (EEC) No 2967/76 (OJ 1980 L 288, p. 13).
12 Case 21/84 Commission v France [1985] ECR 1355, paragraph 13, and Case 35/84 Commission v Italy [1986] ECR 545, paragraph 11.