Report for the Hearing in Joined Cases C-277/91, C-318/91 and C-319/91
I — The national rules at issue, the procedure before the national court and the questions submitted for a preliminary ruling
1. Article 40 of Italian Royal Decree No 3298 of 20 December 1928, concerning the approval of the regulation on health checks on meat (Gazzetta Uffìaale del Regno d'Italia No 36 of 12 February 1929), provides as follows:
2. On the basis of that royal decree, the Ligurie region adopted Regional Law No 31 of 22 August 1989 making provision for the payment of charges by individuals using the local health authority's veterinary services (Official Bulletin No 15 of the Ligurie region, 6 September 1989, Part I, p. 1439).
3. Article 1 of the law in question provides that:
4. Article 2 provides that:
5. As regards the amount of the charge, Article 3 of the Law lays down that it is for the Giunta regionale (Regional Authority), having heard the regional health committee, to approve the list of services incurring a charge and set the amount payable for each service. Furthermore, the Giunta regionale draws up the criteria for the flat-rate payment of the charge which is owed.
6. It is apparent from the order for reference that Ligur Carni, Ponente SA and Genova Carni, the plaintiffs in the main proceedings, are undertakings which import fresh beef and veal from Denmark and the Netherlands.
7. In accordance with the abovementioned Law No 31 of the Ligure Region, the undertakings in question have paid to the competent local health authorities various sums by way of inspection charges for the period 1990 to 1991.
8. Considering that those payments were not owed by virtue of the fact that they constituted charges prohibited by Council Directives 64/433, 89/662 and 90/425, those undertakings applied to the Tribunale di Genova for an injunction against the local health authorities for the repayment of the sums levied.
9. Furthermore, Ponente SA had to pay to a cooperative company, CO. GÈ. SE. MA, a certain amount for charges relating to services rendered in the context of the carriage of goods, pursuant to an exclusive concession granted to CO. GÈ. SE. MA by the Local Health Authority. In the opinion of Ponente SA, those payments were also not owed, since they stemmed from charges prohibited under Articles 30, 52 and 59 of the Treaty.
10. The Tribunale di Genova observed that the Court of Justice in its judgment in Joined Cases 2/82 to 4/82 Delhaize and Others v Belgian State [1983] ECR 2973 ruled that the health certificate, given by the official veterinarian in the exporting State, constituted the most appropriate means of giving a sufficient safeguard to the competent authority in the importing country. Therefore, it was clear from the text, the scheme and objectives of the directives in question that the safeguards concerning the state of preservation of meat during carriage would be valid throughout the whole period of carriage and therefore also for the part of the journey between the frontier and the place of destination in the country of import.
11. In its judgment in Case 87/75 Bresciani [19761 ECR 129 the Court of Justice held that legislation concerning State administrative proceedings, intended to support a health inspection scheme, could not be regarded as a service rendered to the importer justifying the levying of a pecuniary charge in return.
12. The abusive nature of the payments made pursuant to these checks was confirmed by the Court in its judgment in Case 186/88 Commission v Germany [1989] ECR 3997. In the Community legal order there is only an amount corresponding to a public service carried out for the benefit of private economic business in the case of a corresponding charge, which is not disproportionate, for an optional and well-defined service which is in the interests of the individual who applies for it.
13. As regards the payments made by Ponente in return for CO. GÈ. SE. MA's services, the Tribunale di Genova observed that such services were neither requested, nor carried out in Ponente's interests and that a public-tender contract entered into between the public authority and a private undertaking which, directly or indirectly, imposes an obligation on all the undertakings concerned to use the staff and services of the undertaking which has been awarded the tender is not justified on any of the public interest grounds envisaged by the Community legal order.
14. In the light of those considerations, the national court, by orders dated 21 October and 25 November 1991, stayed the proceedings and referred the following questions (the first four of which are common to the three cases, whilst the fifth and sixth concern only Case C-318/91) to the Court for a preliminary ruling:
15. The orders for reference were received at the Court Registry on 28 October and 10 December 1991.
II. Written procedure
16. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 17 February 1992 and 15 April 1992 by Ligur Carni, Ponente SpA and Genova Carni, the plaintiffs in the main proceedings, represented by G. Conte, G. M. Giacomini and M. F. Schiaffino, of the Genoa Bar, on 24 and 27 April 1992, by the Local Health Authority No XV, the defendant in the main proceedings, represented by L. Parodi of the Genoa Bar, on 21 April 1992, by CO. GE. SE. MA, represented by R. Giromini, of the La Spezia Bar, on 22 April 1992, by the Italian Government, represented by E Favara, Avvocato dello Stato, acting as Agent, and on 14 February and 25 March 1992 by the Commission of the European Communities, represented by J. L. Iglesias Buhigues, Legal Adviser, and A. Arcsu, of its Legal Service, acting as Agents.
17. 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. By order of the Court, since they concerned the same subject-matter, Cases C-277/91, C-318/91 and C-319/91 were joined for the purpose of the oral procedure and the judgment, in accordance with Article 43 of the Rules of Procedure.
III — Written observations submitted to the Court
Questions 1 and 2
18. The plaintiffs in the main proceedings point out that the health inspection at issue docs not constitute an optional service requested by the economic operator con cerned, but is an obligation which is more often than not a pure administrative formality.
19. They maintain that those mandatory, systematic and permanent health inspections, which are carried out in the municipality through which the goods transit or to which they are bound, on meat which has already been subject to inspections in compliance with the Community rules in the country of dispatch, are contrary to Directives 64/433, 89/662 and 90/425, which introduce a harmonized system and lay down the principle of mutual trust between Member States as regards inspections carried out in the country of dispatch. Those directives only allow sporadic and sample checks to be carried out in the country of transit or destination for very specific reasons.
20. The Local Health Authority observes that Directive 64/433 concerns harmonization of national rules relating to health conditions in slaughter houses and industrial butchers; where it refers to inspections performed by the State of import as to the conditions which the exported meat is bound to fulfil, it appears to have as its sole point of reference the passing of the goods through customs (seventh recital) and not the transport within the Member State in question. This directive is largely nonspecific and therefore cannot be recognized as having direct effect.
21. Directives 89/662 and 90/425 were not applicable at the material time. In any event, these directives only prohibit discriminatory checks in the places of destination, which is not the case in this instance.
22. The Italian Government points out that the proceedings before the court making the reference were summary proceedings and were not inter partes and that there are therefore uncertainties regarding the facts; for example the questions for a preliminary ruling refer to goods in transit coming into the municipality of destination, whereas transit is not envisaged by the national rules at all.
23. The directives in question are intended to protect human health and, therefore, to promote and not to abolish inspections.
24. In the Italian Government's opinion the first question referred for preliminary ruling is not relevant inasmuch as the regional rules in question neither concern imports nor intra-Community trade and in so far as the facts relate to a period before the deadline for implementation of Directives 89/662 and 90/425.
25. The second question essentially concerns the rules which are currently being drawn up in relation to checks in the places of destination. The relevant directives envisage in particular nondiscriminatory veterinary inspections by sampling.
26. The Commission states that Directive 64/433 is the fundamental text concerning trade in the sector in question. The full and harmonized system of inspections it laid down replaces inspection in the country of destination, which should merely check the health certificates which accompany the goods.
27. On the basis of this harmonized system of inspections, which is founded on the equivalence of health safeguards required in all the Member States, only sporadic inspections can still be carried out at the place of destination or transit, that is to say checks which are neither permanent nor mandatory nor systematic and are carried out by way of sampling or in the event of a serious presumption of irregularity, in a nondiscriminatory manner, in order to ascertain the quality of the goods. However, the system put in place by the Ligurie region amounts to casting prior suspicion over all goods and certificates issued by the exporting States and is thus contrary to Directive 64/433.
28. According to the Commission, Directive 89/662, which came into force on 1 July 1992, does not amend the system established by Directive 64/433, whereby inspections in the place of destination should always be by way of exception. Thus, the Ligurie region's system is also contrary to that directive.
29. Directive 90/425, for its part, has no relevance to the movement of fresh meat.
Question 3
30. According to the plaintiffs in the main proceedings, the concept of measures having equivalent effect, within the meaning of Article 30 of the Treaty, should be construed widely to include systematic health inspections carried out not just at intra-Community frontiers but within a Member State.
31. In this case, the objection that the inspection in question is carried out regardless of whether the meat is domestic or foreign is purely formal in view of the higher consumption of imported meat and the greater amount of transits from municipality to municipality of imported meat in the chain from importer to retailer.
32. Article 36 of the Treaty does not come into play here. A double check in the exporting country and the importing country, when health requirements can be satisfied equally effectively by measures less restrictive of intra-Community trade, goes beyond what is allowed by Article 36.
33. In the Local Health Authority's opinion, Article 30 has not been infringed in this case, since the health checks in question arc carried out without distinction on imported and domestic goods. In any event, the measures have proved to be useful and appropriate and therefore are justified under Article 36, since they have often made it possible to detect meat which was unfit for human consumption.
34. The Italian Government states that the rules in question are in no way concerned with national frontiers and intra-Community trade. They apply without distinction to domestic and imported meat and are not contrary to Article 30.
35. The Commission points out that the checks in issue, in so far as they arc also systematically applied to goods imported from other Member States, constitute measures having equivalent effect, and that this assessment cannot be rebutted by the fact that the inspections take place within the country. The fact that the inspections in question are applicable without distinction is not enough to rule out the possibility of the free movement of goods being hindered, since there is no doubt that importers sustain a definite loss.
36. It is not possible to rely upon imperative requirements, given that it does not appear that the rules in question are due to any objective reasons of urgency or to extraordinary circumstances which could have justified them. Moreover, Article 36 is not applicable in this case, since a harmonized health inspection system has been laid down at Community level.
Question 4
37. The plaintiffs in the main proceedings claim that according to the Court's case-law, a pecuniary charge not exceeding the actual cost of inspection, levied on the basis of health inspections imposed by a Community rule, which are uniform and have to be carried out in the Member State of export, can be categorized as a sum corresponding to a service rendered. Moreover, a charge by way of remuneration is compatible with the Community legal order only if it is proportionate and it is levied for an optional service rendered in the exclusive interest of the individual requesting it.
38. The Local Health Authority maintains that the cost, mandatorily set down by the national administrative authorities for inspections of the standard of products intended for sale, comply with Community principles.
39. The Italian Government points out that, in this case, health certificates are requested solely in the private interest. Thus, an individual who requests a service is bound to pay in order to contribute to the cost thereof. In this case, the contribution is less than the actual cost.
40. The Commission maintains that the charges levied for health inspections at the place of destination do not constitute remuneration for a service for the benefit of the economic operator, since this would only be the case where the operator obtained a specific and definite benefit in his interest, which is not the case where, as in this case, the inspections serve to ensure public health. Consequently, the levying of a charge under the rules at issue constitutes a further hinderance to the free movement of goods within the Community.
Questions 5 and 6
41. Panente maintains that where the economic operator in question does not use the services of CO. GE. SE. MA, his goods will not undergo an on-the-spot inspection and they will be unmarketable. Furthermore, utilization of CO. GE. SE. M A's services entails serious prejudice to users because of delays. This system is contrary to the principles set out under Articles 30, 52 and 59 of the Treaty. Application of these provisions can only be restricted on the grounds of public interest, which is not the case in these circumstances.
42. The Local Health Authority and the Italian Government have not made any observations on these questions.
43. CO. GE. SE. MA points out that it carries on its business on the basis of specifications approved by decision of La Spezia municipal council. That decision, taken on the basis of the applicable national rules, is guided by public interest grounds, that is to say the protection of citizens' health. CO. GE. SE. MA's services have always been sought by the economic operators in question.
44. The Commission points out that, to its knowledge, no health problems exist in the municipality of La Spezia justifying such an exclusive concession, which involves a real monopoly.
45. The Commission claims that is difficult to conclude that the Italian scheme in question is incompatible with Article 52, for lack of any evidence that La Spezia municipality granted an exclusive concession to CO. GE. SE. MA as an Italian undertaking, to the exclusion of any Community competitors. As regards Article 59, considered in relation to Articles 60 and 61 of the Treaty, it would not apply in this case, which involves the provision of services relating to goods transport.
46. Finally, the Commission contends that the national rules at issue constitute a real hinderance to the free movement of goods, although the effect on intra-Community trade in meat is minimal. In accordance with the principles set out in the Court's case law, the fact that the measure in question is applicable without distinction does not, in this case, preclude the application of Article 30. The Commission points out that the circumstances of this case relate to a type of hindrance to trade which has not yet been subject to review by the Court.
47. The Commission has not submitted any observations concerning the measure in question from the point of view of Article 90 of the Treaty.
1 Language of the case. Italian.