C-35/76

1. Article 177 of the EEC Treaty is based attainment of the objectives referred on a distinct separation of functions to in that article. between national courts and tribunals 5. Although systematic veterinary and on the one hand and the Court of public health inspections at the Justice on the other hand and it does frontier of the products mentioned in not give the Court jurisdiction to take Directives Nos 64/432 and 64/433 are cognizance of the facts of the case or no longer necessary or, consequently, to criticize the reasons for the justified under Article 36 as from the reference. The Court is entitled to latest dates specified in the directives pronounce on the interpretation of for the entry into force of the national the Treaty and of acts of the provisions which are necessary in institutions but cannot apply them to order to comply with the said the case in question since such directives and although, in principle, a application falls within the mere examination of the documents jurisdiction of the national court. (health certificates) which are required 2. Veterinary and public health to accompany the products should inspections at the frontier, whether disclose whether the conditions with carried out systematically or not, on regard to health have been fulfilled, the occasion of the importation of occasional veterinary or public health goods constitute measures having an inspections are not ruled out, provided effect equivalent to quantitative that they are not increased to such an restrictions within the meaning of extent as to constitute a disguised Article 30 of the Treaty, which are restriction on trade between Member prohibited by that provision, subject States. It is for the national courts, to the exceptions laid down by before which such cases may be Community law and in particular by brought, to determine, in the event of Article 36 of the Treaty. a dispute, whether the procedures 3. As far as concerns the products adopted for the inspections, on which referred to in Regulation Nos 14/64 they are asked to give a ruling, are and 805/68 on the common incompatible with the requirements organization of the market in beef and of Article 36. veal the prohibition of veterinary and 6. Pecuniary charges imposed by reason public health inspections, subject to of veterinary or public health the exceptions laid down by inspections of products on the Community law, took effect on the occasion of their crossing the frontier date when the said regulations entered are to be regarded as charges having into force. an effect equivalent to customs duties. 4. Article 36 of the EEC Treaty is not 7. Charges imposed by the various designed to reserve certain matters for public authorities on the occasion of the exclusive jurisdiction of Member veterinary and public health inspections States but permits national laws to carried out within Member States on derogate from the principle of the free both domestic and imported products movement of goods to the extent to constitute internal taxation to which which such derogation is and the prohibition of discrimination in continues to be justified for the Article 95 of the Treaty applies.

on the interpretation of Article 9 et seq., 30 et seq. and 95 of the EEC Treaty and also of Article 12 of Regulation No 14/64/EEC of the Council and

Article 22 of Regulation (EEC) No 805/68 of the Council,

THE COURT

composed of: H. Kutscher, President A. M. Donner and P. Pescatore, President of Chambers, J. Mertens de Wilmars, M. Sørensen, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and A. Touffait, Judges,

Advocate-General: G. Reischl

Registrar: A. Van Houtte

President of the Republic, Official I — Facts and procedure Gazette No 142 of 24. 6. 1954) which

provides that veterinarians employed or

In accordance with Article 32 of the appointed by the State shall issue, after

consolidated Italian health laws (Royal completing the examination, a special Decree No 1265 of 27. 7. 1934 - form of laissez-passer to be handed over Official Gazette No 186 of 9. 8. 1934), to the customs which must not allow any imported animals, meat and animal of the goods to enter until they have

products, offals of animals, are subject, at received this laissez-passer.

JUDGMENT OF 15. 12. 1976 - CASE 35/76

Italian Republic (Regio Decreto No On 26 July 1973 the plaintiff in the 1265 of 27 July 1934) is still main action imported from France via "justified"

Modina a consignment of beef and veal following the adoption of

the directives on the harmonization for human consumption. The fees of health laws quoted above several charged for the veterinary and public times: health inspection of these goods (c) in the event of a negative answer to amounted to Lit 581 480. the foregoing questions, whether

Since it took the view that the veterinary recourse must be had to the

and public health inspections at the time provisions of Article 9 et seq. of the

of the crossing of the frontier and the EEC Treaty or else to those of

EEC Treaty, to the Court of Justice charged on the occasion of internal of the European Communities the inspections of similar domestic following questions: goods or goods treated as such and

(a) whether Article 30 et seq. of the EEC which are distinguished by the

Treaty, Article 12 of Regulation No following characteristics: 14/64/EEC as well as Article 22 of — me inspections at the frontier are

Regulation (EEC) No 805/68 - additional to the domestic ones

having regard to the harmonization and to the relevant fees; provisions of the legislation adopted — for the domestic inspections "fee"

to give full effect to the common there is no fixed duty but a organization of the market in beef for the issue of the inspection and veal by Council Directives Nos certificate; 64/432/EEC and 64/433/EEC - are — the frontier duties are of a fixed "fees"

exports, and if so, as from which cording to quantity and number

date; and are reduced in inverse

(b) whether in case ot an affirmative proportion to the increase in the

to the foregoing quantity.'

answer question, number and

SIMMENTHAL v ITALIAN MINISTER FOR FINANCE

factors necessary for the purpose of

In accordance with Article 20 of the resolving by analogy the problem of the Protocol on the Statute of the Court of public health inspections of beef and Justice of the EEC written observations veal and of the fees charged for them

were lodged by the Commission and the (Case 45/75,Rewe, [1976] ECR 181; Case plaintiff in the main action. 87/75, Bresciani, [1976] ECR 129; Case 104/75, Centrafarm, [1976] ECR 613). After hearing the report of the

Judge-Rapporteur and the views of the Although the Italian court was reluctant

Advocate-General the Court decided to to take this it is the Com­ course, open the oral procedure without any mission's view that this reluctance is to

preparatory inquiry. be attributed to judgment No 232/75 of

systematic inspections at the Italian Court must be given punctually.

frontier of the beef and veal imported from the other Member States pursuant After reviewing the Italian provisions on to Article 32 of the consolidated health veterinary and public health supervision laws and of Article 45 of the regulations the Commission points out that in fact

for animal health are justified under imported meat undergoes three kinds of

Article 36 of the EEC Treaty, having inspection: regard to the fact that intra-Community — an administrative inspection dealing trade in the same goods is specifically with the authenticity of the health governed by the following measures certificate of origin issued by the

adopted by institutions of the authorities of the country from which

Community: the goods are despatched and which

of view of hygiene. This inspection, — Council Directive No 72/461 of 12 carried out pursuant to the December 1972 (OJ English Special regulations for animal health, only Edition 1972, 31. 12. 1972, p. 3) applies specifically to imported which also applies to all the meat goods, but it still does not constitute permitted to enter in connexion with a substitute for the inspections which intra-Community trade and lays domestic meat must undergo; down very strict guarantees for — once imported meat has been animal health: it thus complements 'nationalized' it must undergo a the provisions of Directive No further veterinary and public health 64/433; inspection when it arrives at its — Council Directive No 72/462 of 12 destination, similar to the inspection December 1972 (OJ English Special of domestic meat which is carried out Edition 1972, 31. 12. 1972, p. 7) before it can be offered for sale. which institutes the Community system for the importation of bovine animals, swine and fresh meat So far as the fees relating to veterinary coming from third countries and and public health inspections are concerned the Commission calls provides, for the importation of these goods to be subject to specific attention to the fact that since they are veterinary and public health and connected with veterinary and public administrative conditions which are health inspections at the frontier they do very strict. not form part of a general system of charges and are only levied on goods The aim of these directives is to which are imported or exported and not contribute to the implementation of the on domestic goods. common agricultural policy by means of the harmonization of domestic laws on

SIMMENTHAL v ITALIAN MINISTER FOR FINANCE

The aim of these directives is, on the one have been carried out as protective

hand, to prevent epizootic diseases and, measures, in which case they are not

on the other hand, to combat these general but specific inspections duly epizootic diseases and to bring safeguard approved or authorized by the

clauses into operation, and they have Commission; harmonized national inspections not by (d) inspections, even of a systematic

abolishing them but by making them nature, of a specific, separate

Community regulations, which is to Member States. The effect of the secure equality of treatment of domestic substitution of a Community system of goods and goods coming from other animal health for the national systems is Member States, would be jeopardized that Member States can no longer take Com­ simply by reason of the inspections still unilaterally and in disregard of carried out at the Italian frontier. munity procedures the steps referred to

in Article 36. In short, the inspections complained of The Commission then considers the — are in addition to those which

question of the extent to which the domestic products carried to the

country of destination may still carry out interior of the peninsula have to

later inspections when the exporting undergo; intra- country has to carry out compulsory and constitute an obstacle to —

systematic veterinary and public health Community trade; inspections and confines such later — amount to arbitrary discrimination

—

constitute the negation of the refers to the judgment of the Court of fundamental harmoni­ Justice 5 1976 (Case principle of of February zation of laws which is the mutual 87/75, Bresciani). recognition of inspections carried out

by the authorities of the exporting The alternative postulated in the third Member State and of the EEC question between the provisions of the certificate accompanying the goods; —

are not justified on the ground that Treaty relating to charges having an

effect equivalent to customs duties there is the risk of the germs of a (Article 9 and 13) and those prohibiting particular disease spreading; discriminatory internal taxation (Article — so tar as meat is concerned should

not even be 95) has no legal foundation since Italian strictly speaking law does not provide either for veterinary permitted in so far as they consist of and public health inspections or for random checks, since Italian law duties to be levied on domestic products provides in fact that meat from other at the same stage of production as Member States, like domestic meat, imported products. has to undergo a compulsary and

which stem from the provisions of

As far as the fees for the inspections are the same directives laying down concerned the Commission points out safeguard clauses.

that they: The prohibition on the application of —

are charged at the frontier; measures having an effect equivalent —

are only charged on imported goods; to quantitative restrictions takes

are not related to a general system or effect, in the case of products subject —

in so far as they are levied on goods 2. A pecuniary charge, whatever its

coming from other Member States designation and mode of application,

they constitute an obstacle to the free which is imposed unilaterally on

movement of goods and as such are products forming the subject of

incompatible with the provisions of intra-Community trade by reason of

Articles 9 and 13 (2) of the Treaty the fact that they cross a frontier and Article 12 of Regulation No constitutes a charge having an effect duties.'

inspections in destina­ the country of and 2, asks whether Community law still tion, such inspections can however allows Member States to carry out

only be optional, carried out now and veterinary and public health inspections then and not systematically and at the frontier, within what limits and in according to the system of sample accordance with what criteria, while the checks. aim of the second (question No 3 in the order making the reference) is to procure The approximation of laws is a concept the further development of the case-law which includes the principle of the of the Court on the legality of collecting mutual recognition by Member States veterinary and public health charges. both of inspections and the appropriate

certificates. In order to answer the first of these

questions the plaintiff in the main action According to the plaintiff in the main reviews the applicable Italian provisions action the Italian measures adopted for and calls attention to the fact that the the purpose of the ensuring Italian laws relating to veterinary and implementation of the directives for the public health inspections of imported harmonization of animal health in animals and meat provide for intra-Community trade in animals and

compulsory and systematic inspection, meat the only outwardly comply with that is to say, of each head of cattle and requirements of these directives. each consignment of meat, the

examination being carried out at the Although the provisions of the texts of frontier and followed by the issue, which these implementing measures provide is obligatory, of a special document, form that the veterinary surgeons at the No 9, called a laissez-passer. The frontier must issue document No 9 purpose of this inspection at the frontier prescribed in the regulation for animal is to protect animal health. Protection of health and approve it by appending their the health of humans, especially in the signature upon the health certificates case of products intended for human 'without the need for any other consumption, is secured by other formality', it is the manifest intention of provisions, namely the 'Regulation for these measures, having regard to the the veterinary and public health reference made by them to document No inspection for meat'

restriction, as emerges from Commission gradually as a result of the harmonization Directive No 70/50/EEC of 22 of laws which alone can secure the

December 1969 (OJ English Special effective elimination of every restriction

Edition 1970 (I), p. 17). on trade.

The fact the The problem at issue therefore is that matter under

concerned with the thoroughness of the examination is dealt with in rules

harmonized harmonization and its solution is at a Community level which introduced a comprehensive system of relatively easy when, as in this case, one inspections is confronted with a harmonization and certificates replacing the

forbid entry does not imply that the out again that, although veterinary systematic and compulsory inspection and public health inspection at the is lawful. Moreover the power thus frontier applies to imported only conferred upon Member States is it amounts for this to products, reason

certainly not discretionary, as the reasons discrimination'

'arbitrary and is for its exercise must be stated and private consequently prohibited by the second traders may criticize the way it is used. sentence of Article 36 of the EEC Treaty. The directives even provide for a special It is impossible to raise the objection, in Community procedure providing for the reliance on the judgment of the Court of opinion of a veterinary expert if the Justice in Case 4/75 (Rewe ECR [1975] validity of the prohibition is challenged. it is 860, ground 8) that possible that So far as the date as from which different treatment could not amount to inspections at the frontier must be prohibited discrimination, because, even

regarded as a measure having equivalent if there is a real danger of pathogenic

effect is concerned the plaintiff in the agents spreading in the absence of any main action takes the view that this date inspections at the frontier, the should be the same as the time-limit Community procedures laid down by the prescribed by the directives in question directives (the second paragraph of

for the adoption of national Article 8 Council Directive of 64/432) implementing measures. preclude recourse being had to Article 36. With regard to the question whether

differ from the payments which tives mentioned above veterinary and

represent the consideration for the public health supervision at the

services rendered by the veterinary frontier can no longer be justified surgeon of the commune for inspections under Article 36 in the case of the

carried out within national territory despatch of animals and meat

before the meat is released for coming from other Member States; it consumption on the market for which it amounts in any event to arbitrary was intended. discrimination within the meaning of the second sentence of Article 36. Veterinary and public health fees: levied on the (c) pecuniary charges — ao not represent consideration for a occasion of veterinary and public service rendered since the service is health inspections of animals and performed in the public interest; meat coming from Member States — nave the same protective effect as a carried out at the frontier are charges customs duty: having an effect equivalent to are charged on they only —

customs duties whatever the basis imported goods; imposed.'

64/433/EEC a veterinary and public systematically inspected. The method

health inspection at the frontier of adopted is to carry out sample surveys

animals and meat coming from other which is the only possible way having Member States is a measure having regard to the enormous number of

an effect equivalent to a quantitative bovine animals, swine and meat

restriction within the meaning of imported into Italy each year. The Italian Article 30 et seq. of the Treaty and Government produced in this connexion

Article 22 of Regulation No a containing figures which compare note

Law

1 By an order of 6 April 1976, which was received at the Court Registry on the following 22 April, the Pretura di Susa referred to the Court, pursuant to Article 177 of the EEC Treaty, several questions relating to the interpretation of Articles 9 to 17, 30 to 36 and 95 of the EEC Treaty, of Article 12 of

Regulation No 14/64/EEC of the Council of 5 February 1964 on the

progressive establishment of a common organization of the markets in beef and veal (JO 34 of 27. 2. 1964) and of Article 22 of Regulation (EEC) No 805

of the Council of 27 June 1968 on the common organization of the market

in beef and veal (OJ English Special Edition 1968 (I), p. 187) and also of the provisions of the two Council Directives Nos 64/432/EEC (OJ English Special Edition 1963-1964, p. 164) and No 64/433/EEC (OJ English Special Edition 1963-1964, p. 185) both of 26 June 1964 on animal health problems,

SIMMENTHAL v ITALIAN MINISTER FOR FINANCE

and systematic veterinary and public health inspections — which are

concerned in the present case —

since the implementation of the veterinary and public health directives of 26 June 1964 has been a measure having an

effect equivalent to a quantitative restriction prohibited by the Treaty, which is the reason why the imposition of fees on this occasion was unlawful and,

on the other hand any event, the charging of fees for such because, in inspections is an infringement of Articles 9 and 13 of the Treaty which

unnecessary and, consequently, unjustifiable under Article 36 of the Treaty.

3 The Government of the Italian Republic has denied that the veterinary and

public health inspections of the products referred to in the directives which it documents in systematically"

organized were carried out and produces support

of its view that this is not the case. Consequently it has expressed doubts as to the relevance of the questions referred.

4 Article 177 of the EEC Treaty is based on a distinct separation of functions between national courts and trubunals on the one hand and the Court of

having regard to the provisions on the harmonization of laws adopted in order to give full effect to the common organization of the market

in beef and veal, by Council Directives Nos 64/432/EEC and 64/433/EEC —

are to be interpreted as meaning that a veterinary and public health inspection at the frontier, of a compulsory and systematic nature, constitutes a measure having an effect equivalent to a quantitative restriction on imports and on exports, and if so, as from which date.

JUDGMENT OF 15. 12. 1976 - CASE 35/76

6 Article 30 of the Treaty prohibits quantitative restrictions on imports and all

measures having equivalent effect between Member States.

compulsory, veterinary and public health inspections are carried out at the

frontiers of a Member State. As a result in particular of the delays inherent in the inspections and the additional transport costs which the importer may incur thereby, the inspections in question are likely to make importation

more difficult or more costly.

8 It follows that veterinary and public health inspections at the frontiers —

whether carried out systematically or not on the occasion of the —

importation of animals or meat intended for human consumption constitute

The second question

9 The national court asks whether, in the event of an affirmative answer being given to the first question, Article 36 of the EEC Treaty is to be interpreted as

meaning that a compulsory and systematic veterinary and public health inspection of the type carried out within the meaning of Article 31 of the 'justified' consolidated health laws of the Italian Republic is still following the adoption of the directives mentioned above for harmonizing health laws.

SIMMENTHAL v ITALIAN MINISTER FOR FINANCE

10 Article 36 of the Treaty excepts from the prohibition restrictions on imports, exports and goods in transit if measures of this nature are justified on grounds

of the protection of health and life of humans and animals. Since the

compulsory and systematic veterinary and public health inspection at the

frontier on the importation of bovine animals and swine and of certain fresh

meat is still justified within the meaning of Article 36 since the expiration of the period prescribed by Directives No 64/432/EEC and No 64/433/EEC for the harmonization of animal health measures adopted by the various Member States, complemented inter alia by Council Directives Nos 72/461 and

72/462 of 12 December 1972 (OJ English Special Edition 1972 (31

December), pp. 3 and 7).

bovine 12 With a view to eliminating obstacles to intra-Community trade in animals and swine and fresh meat the Council by the directives mentioned

this field cannot imply the surrender by Member States of their powers or

take those powers away from them.

14 The fifth recital Directive No 64/432/EEC correctly states: 'Whereas the of

right of Member States under Article 36 of the Treaty to continue to apply

prohibitions or restrictions on imports, exports or goods in transit justified on

grounds of the protection of health and life of humans and animals

jurisdiction of Member States but permits national laws to derogate from the

principle of the free movement of goods to the extent to which such

derogation is and continues to be justified for the attainment of the objectives

referred to in that article.

15 According to the second and third recitals of each of the directives of 26 June 1964 their aim is to increase the effectiveness of the regulations on the

organizations of the markets in beef and veal and pigmeat by substituting 'for the numerous traditional means of protection at the frontier a single system

prescribed veterinary and public health requirements the directives lay down that the imported goods must be accompanied by a health certificate

certifying that relating the rules to veterinary and public health inspections have been complied with and the inspections carried out.

17 However Article 6 of Directive No 64/432 (animals) allows the country of

destination to prohibit the introduction of bovine animals into its territory if

an examination made at the frontier post by an official veterinarian reveals that the animals are affected by, or suspected of being affected by, or of being

contaminated by a compulsorily notifiable disease or that the provisions of

health inspection carried out in the country of destination such meat is found

to be unfit for human consumption or if the provisions of Article 3 have not

been observed.

19 It is apparent from all these considerations that the harmonized system of

veterinary and public by the directives is based health inspections introduced on the principle that the veterinary and public health guarantees required by

each of the Member States are equivalent in nature and it is this principle

by the system of inspections thus standardized are in fact given. It follows that systematic veterinary and public health inspections at the frontier of the

products referred to in the directives mentioned above are no longer

necessary or, consequently, justified under Article 36 as from the latest dates specified in the directives for the entry into force of the national provisions

which are necessary in order to comply with the said directives.

20 However it appears from Article 6 of Directive No 64/432 and from Article 5 of Directive No 64/433 that the latter articles give the Member State of

destination a discretion as far as the inspections necessary to ensure that the

provided that they are not increased to such an extent as to constitute a

disguised restriction on trade between Member States. Moreover, in addition

to the safeguard clauses laid down by Article 9 of Directive No 64/432 and by Article 8 (2) of Directive No 64/433, which according to the Commission do not come under Article 36, the directives leave to Member States the whole of the supervision in those cases which they do not cover (Article 8 of Directive

No 64/432, Article 6 (1) of Directive No 64/433). It is for the national courts,

before which such cases may be brought, to determine, in the event of a

dispute, whether the procedures adopted for the inspections, on which they are asked to give a ruling, are incompatible with the requirements of Article 36.

22 As the Court has already held in its judgments of 14 December 1972 (Case

29/72, Marimex, [1972] ECR 1309) and of 5 February 87/75, 1976 (Case

Bresciani, [1976] ECR 129) pecuniary charges imposed by reason of veterinary or public health inspections of goods on the occasion of their crossing the

frontier are to be regarded as charges having an effect equivalent to customs duties. The position would be different only if the pecuniary charges related

to a general system of internal dues applied systematically in accordance with

the same criteria to domestic products and imported products alike.

authorities on the occasion of veterinary and public health inspections within

Member States on both domestic and imported products constitute internal

taxation to which the prohibition of discrimination in Article 95 of the Treaty applies.

Costs

24 The costs incurred by the Government of the Italian Republic and by the

Commission of the European Communities, which have submitted their

of the importation of animals or meat intended for human consumption constitute measures having an effect

equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty, which are prohibited by that

provision, subject to the exceptions laid down by Community law and in particular by Article 36 of the

Treaty.

(b) As far as concerns the products referred to in Regulations Nos 14/64 and 805/68 on the common organization of the

market in beef and veal the prohibition of such measures, subject to the exceptions mentioned above, took effect on

said directives and although, in principle, a mere examination

of the documents (health certificates) which are required to

accompany the products should disclose whether the

conditions with regard to health have been fulfilled, occasional veterinary or public health inspections are not ruled out,

provided that they are not increased to such an extent as to

constitute a disguised restriction on trade between Member

systematically in accordance with the same criteria to

domestic products and imported products alike.

4. Charges imposed by the various public authorities on the

occasion of veterinary and public health inspections carried

out within Member States on both domestic and imported products constitute internal taxation to which the prohibition

of discrimination in Article 95 of the Treaty applies.