Opinion of Advocate General Van Gerven delivered on 18 May 1994
1 Original language: Dutch.
2 Bundesgesetzblatt (BGBl) I 1989, p. 1525. The full title of the Bundesartenschutzverordnung is Verordnung zum Schutz wildlebender Tier- und Pflanzarten (Regulation on tlie Protection of Wild Animal and Plant Species; for the relevant version, see BGBl I 1989, p. 1677.
3 The full title of this Law is Gesetz über Naturschutz und Landschaftspflege (Law on the Protection of Nature and the Countryside); see the version published in BGBl I 1987, p. 889.
4 Council Regulation (EEC) No 3796/81 of 29 December 1981 on the common organization of the market in fishery products (OJ 1981 L 379, p. 1).
5 See the judgment in Joined Cases 3/76, 4/76 and 6/76 Kramer [1976] ECR 1279, paragraphs 53 and 54, confirmed by the judgment in Case C-228/91 Commission v Italy [1993] ECR I-2701, paragraph 11.
6 Judgment in Case 8/74 Dassonville [1974] ECR 837, paragraph 5.
7 See, inter alia, the judgment in Case 41/76 Donckerwolcke [1976] ECR 1921, paragraph 18, and the judgment in Case C-128/89 Commission v Italy [1990] ECR I-3239, paragraph 12.
8 Judgment in Case 124/81 Commission v United Kingdom [1983] ECR 203, paragraphs 9 and 10.
9 Judgment in Case 257/86 Commission v Italy [1988] ECR 3249, paragraph 12; see also the judgment in Case C-307/89 Commission v France [1991] ECR I-2903, paragraph 13, in which the Court held that the maintenance of national legislation which is in itself incompatible with Community law, even if the Member State concerned acts in accordance with Community law, gives rise to an ambiguous state of affairs by maintaining, as regards those subject to the law who are concerned, a sute of uncertainty as to the possibilities available to them of relying on Community law. This uncertainty can only be reinforced by the internal character of the purely administrative directions to waive the application of the national law.
10 Council Directive 91/67/EEC of 28 January 1991 concerning the animal health conditions governing tne placing on the market of aquaculture animals and products (Ol 1991 L 46, p.1
11 In its rejoinder the German Government explains that the procedure to amend the Bundesartenschutzverordnung has been commenced. Attached to its rejoinder is a draft second regulation to amend the Bundesartenschutzverordnung.
12 Judgment in Case C-228/91, cited in footnote 4, paragraph 16 (words added by me); see also the judgment in Case C-205/89 Commission v Greece [1991] ECR I-1361, paragraph 8; and the judgment in Case 178/84 Commission v Germany [1987] ECR 1227, paragraph 41. For an application of this case-law to national measures for the protection of the health and life of animals, see the judgment in Case 40/82 Commission v United Kingdom [1982] ECR 2793, paragraphs 33 and 34.
13 Judgment in Case 124/81, cited in footnote 7, paragraph 16.
14 See the judgment in Case C-128/89, cited in footnote 6, paragraph 18, and the judgment in Case C-228/91, cited in footnote 4, paragraph 18.
15 The Commission makes it quite clear that it has no objection to national protective measures which concern the importation of non-European crayfish, which often carry crayfish plague but are resistant to it.
16 Referring to Article 413-1° of the Code Rural and Decree No 85-1189 of 8 November 1985, the Commission mentions in particular procambarus clarkii, pacifastacus leniuscultts and orconectes limosus. It also points out that, for the purpose of determining which live crayfish may be imported, the French Ministry of Agriculture has laid down the essential characteristics and distinguishing criteria in a circular of 30 November 1988.
17 OJ 1982 L 384, p. 1, as last amended by Commission Regulation (EEC) No 1534/93 of 22 June 1993 (OJ 1993 L 151, p. 22).
18 See also the ninth recital of the preamble to Regulation
19 The German Government admits that at the federal level the two other native species of crayfish, namely Dohlenkrebs and the American crayfish, are not subject to protective measures. The explanation it gives is that the first of those two species is not marketed commercially and is not therefore threatened whilst the second was not a native species in the old Länder.
20 Judgment in Case 34/79 Regina v Henn and Darby [1979] ECR 3795, paragraph 21; judgment ¡n Case 40/82, cited in footnote 11 above, paragraph 36; and judgment in Case C-317/91 Deutsche Renault [1993] ECR I-6227, paragraph 19.