Opinion of Advocate General Gulmann delivered on 4 May 1994

1 Original language: Danish.

2 JORF of 29 December 1966, p. 11619.

3 The Crespelle Centre chimed that the geographical monopoly was contrary to Articles 3, 5, 85, 30 and 59 of the EEC Treaty. The Cour d'Appel rejected that claim, stating: first, that Article 85 of the Treaty was inapplicable because any measures likely to distort competition were not contained in an agreement but in a law; secondly, neither Article 85 nor Article 3 or 5 is applicable as the Law contains no provisions encouraging the conclusion of agreements between undertakings contrary to Article 85; thirdly. Article 30 is inapplicable because the French legislation docs not preclude the importation of bovine semen but merely prescribes that importation shall take place through an insemination centre and that requirement complies with the Community directives on the subject; fourthly. Article 59 is inapplicable as the case concerns purely internal conditions and there is thus no trans-frontier factor.

4 OJ 1977 L 206, p. 8.

5 OJ 1987 L167, p. 54.

6 See the committee report submitted at the time of consideration of the draft Law in the Assemblée Nationale — Documents de l'Assemblée Nationale, Première Session Ordinaire de 1966-1967, Document No 2168, p. 909.

7 The development of stock breeding has led in all countries to a quite remarkable improvement of productivity as regards both milking cows and beef cattle. Insemination, which was fully developed only after the Second World War, has made a considerable contribution to the success of stock breeding. It is of particular importance that bovine semen can be frozen and stored for long periods, and this makes it possible to use semen from one single bull for insemination in numerous cases — in practice already more than 10000 inseminations per annum.

8 JORF of 23 March 1969, p. 2948.

9 The government has stated that the approved insemination centres are exclusively agricultural co-operative societies governed by the Law of 10 September 1947 ... In accordance with Article L 521.1 of the Rural Code they arc special groups, either general or commercial societies whose object is the joint use by farmers of all means appropriate for facilitating or developing their operations. Their objective is therefore not to make a profit but to offer their members advantageous conditions of supply and marketing.

10 Sec the report of the committee on economic affairs submitted at the time of the consideration of the draft Law in the Senate — Documents de l'Assemblée Nationale, Sénat, Première Session Ordinaire de 1966-1967, Document No 63, p. 33.

11 It is stated in Annex 3 to the French Government's observations that although in practice the great majority of artificial inseminations are carried out by inseminators employed by the approved cooperative, the rules allow the breeders themselves on their own holdings (decree of 1 June 1978, amended by the decree of 31 May 1983) and veterinary surgeons (decree of 21 November 1991) to practise insemination subject to a contractual agreement with the insemination centre of the area concerned. The rules make it possible to ensure that the head of the insemination centre may at all times carry out (zootechnical and sanitary) supervision of insemination within a given area.

12 See the French Government's explanation of this, as mentioned in paragraph 12 of Case 161/82 Comnmsion v Fmnce, discussed infra.

13 JORF of 30 April 1969, p. 4349.

14 Article 2 of the decree of 24 January 1989, JORF of 31 January 1989, p. 1469.

15 Article 12 of the decree provides that:Each insemination centre shall conclude contracts with one or more production centres. Such contracts shall guarantee regular supplies of semen in the area concerned, regard being had to the requirements arising, and for sufficiently long periods to conclude testing activities successfully. Such contracts shall include an undertaking on the part of the insemination centre to take part in testing programmes implemented by the production centres to which it is linked. That undertalting shall take into account the possibilities available within the area for the implementation of test programmes and an estimate of the medium-term requirements of approved breeding animals within the area.

16 It may be seen from the expert report used for calculating damages in the main proceedings that in 1987 CEIAM effected more than a quarter of a million inseminations and that in the same year the Crespelle Centre effected some 100000 in the department of Mayenne alone.

17 [1983] ECR 2079 and 2057 respectively.

18 In relation to the application of Article 90(1), Article 5 of the Treaty has no independent significance.

19 See inter alia the judgment in Case C-320/91 Corbeau [1993] ECR I-2533.

20 [1991] ECR I-1979 and I-5889 respectively.

21 This makes it unnecessary to consider whether the centres have a dominant position in a substantial part of the common market and whether any abuse affects trade between Member States. In case the Court were to come to a conclusion other than that which I suggest, it may be mentioned that an individual insemination centre can hardly have a dominant position in a substantial part of the common market but that the centres considered together undoubtedly have and that — if the French system is regarded as leading to abuse — it would be appropriate to consider the comprehensive effect of the centres' exclusive rights, for which purpose the condition of Article 86 on this point would be met. If the Court finds that the system leads to abuse the reason will undoubtedly be inter alia the system's restrictive effect on breeders' opportunities to obtain semen from alternative sources, for which purpose the condition of Article 86 with regard to trade will also be met.

22 Thai requirement must therefore in my view be regarded as one of the requirements which, according to the Court's judgment in Joined Cases C-267 and 268/91 Keck and Miwoitard [1993] ECR I-6097, may be regarded as impeding trade in the manner referred to in Article 30 only if the abovementioned conditions are not met. It is not a question of one of the requirements covered by the Cassis de Dijon case-law, according to which in the absence of harmonization of legislation, measures of equivalent effect prohibited by Article 30 include obstacles to the free movement of goods where they arc the consequence of applying rules that lay down requirements to be met by such goods (such as requirements as to designation, form, size, weight, composition, presentation, labelling and packaging) to goods from other Member States where they are lawfully manufactured and marketed, even if those rules apply without distinction to all products unless their application can be justified by an objective of public interest taking precedence over the free movement of goods (paragraph 15).

23 The Commission has contended that the requirement of an individual written application to the centre if breeders wish for an alternative supplier and the right to demand additional payment for extra costs may constitute an infringement of Article 30 of the Treaty. The Commission has not provided any information indicating that this creates obstacles to trade contrary to Article 30. For the reasons already stated I do not think, on the basis of the information available on the interpretation and application of the rules that the French rules on this matter conflict with Article 30.