C-153/78

APPLICATION for a declaration that the Federal Republic of Germany has failed to fulfil its obligations under Articles 30 and 36 of the EEC Treaty by imposing restrictions on the import of certain meat products from other Member States,

COMMISSION v GERMANY

THE COURT

composed of H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Presidents of Chambers, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco, A. Touffait and T. Koopmans, Judges,

Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT OF 12. 7. 1979 — CASE 153/78

manufacturer concerned had complained Commission submitted an application to to the Commission, the latter sent a the Court of Justice on 6 July 1978, letter dated 18 May 1973 informing the which was registered on 11 July of the Federal Republic of Germany that it same year. considered those rules to be in breach of Article 30 of the EEC Treaty. The After hearing the report of the Judge- Federal Republic of Germany rejected Rapporteur and the views of the that argument in a letter dated 20 Advocate General, the Court decided to September 1973, and on 13 October open the oral procedure without any 1976 the Commission set in motion the preparatory inquiry. procedure provided for in Article 169 of the Treaty for failure to fulfil obligations under the Treaty. II — Conclusions of the parties

When it ascertained that the Federal As the parties were agreed on the fact Republic of Germany had not taken any that the above-mentioned provisions of measures to comply with the reasoned the Fleischbeschaugesetz constitute a opinion within the time allowed, the measure having an effect equivalent to a

COMMISSION v GERMANY

quantitative restriction on imports within coming from slaughterhouses or cutting the meaning of Article 30 of the Treaty, plants recognized by the Federal the arguments centered on the interpret­ Republic. It is a fan that the latter are ation of Article 36 of the Treaty. Relying not allowed to despatch meat to on the first sentence of the article, the Germany unless it fulfils the Federal Republic of Germany asserts that requirements laid down in Directive No the restriction is justified on the ground 64/433 of 26 July 1964 on health of protection of human health and life, problems affecting intra-Community whereas the Commission is of the trade in fresh meat (Official Journal, opinion that it is not necessary to decide English Special Edition 1963-1964, p. whether the German measures are 185) and in the Mindestanfor­ actually necessary within the meaning of derungen-Verordnung. the first sentence of Article 36 for the protection of health because in any case they constitute a means of arbitrary discrimination or a. disguised restriction (2) The disputed measures are not on trade between Member States within appropriate to eliminate a health hazard, the meaning of the second sentence of since the risk of the presence of live Article 36 of the Treaty. Consequently, trichinae in products processed from the Commission's commentary on the meat — supposing that such a risk exists first sentence of Article 36 is submitted — is the same whether the establishment only in the alternative in relation to its producing the meat products and the main argument. slaughterhouse where the animal from which the meat for processing has come was slaughtered and cut are situated in the same or in different Member States. A — justification on the ground of Crossing a border within the Community protection of health (Article 36, first does not increase that risk in comparison sentence) with transportation inside a given country.

To support this point of view it claims, December 1976 on health problems in first, that controls on imports of fresh intra-Community trade in meat products meat within the Community are inad­ (Official Journal 1977, L 26, p. 85). equate and that therefore import Emphasizing the fact that Community restrictions are still necessary even with legislation in the sector of health control regard to meat products coming from is still fragmentary, the Government of other Member States. Relying on the the Federal Republic of Germany judgment of the Court in Case 70/77 maintains that Council Directive 77/96 Simmenthal, of 28 June 1978 ([1978] of 21 December 1976 on the examin­ ECR 1453), according to which ation for trichinae (trichinella spiralis) Directive No 72/462 of 12 December upon importation from third countries of 1972 on health and veterinary inspection fresh meat derived from domestic swine problems upon importation of bovine (Official Journal 1977, L 26, p. 67) and animals and swine and fresh meat from its entry into force, due on 1 January third countries (Official Journal, English 1979, will not alter the situation. Special Edition 1972 (31 December), p. 7) is not yet applicable, the German Government takes the view that It is to be feared that pigmeat from third the Member States have no countries is entering the Community alternative but to continue controlling without having undergone examination imports of fresh meat from third for. trichinae. When it modified the regu­ countries provisionally on the basis of lation concerning examination on im­ their respective internal laws. Owing to portation (Einfuhruntersuchungs-Ver­ the variation between the laws applicable ordnung) and the regulation on in the Member States, on one hand, and minimum standards (Mindestanfor­ the impossibility of guaranteeing the derungen-Verordnung), referred to identity of meat products from other above, in a decree dated 27 July 1978 Member States or the Federal Republic (BGBl. 1978, I, p. 1140) which came into of Germany, on the other hand, the force on 1 January 1979, the German Government is compelled, in the Government of the Federal Republic interests of the protection of health, to ensured that in future only pigmeat prohibit the importation from Member which had already been examined for States of meat products which have been trichinae by the health authorities in the manufactured from foreign meat exporting country could be imported imported into that country. into the Federal Republic of Germany.

defendant relies in its arguments are not slaughtered is the same as that where the at issue in the dispute, and that the finished product was produced. application states clearly that the infringement of which it complains In response to the argument concerning relates solely to imports from Member overall responsibility, the Commission is States of meat products processed from of the opinion that the question to be meat which itself comes from other answered is not who is to be made Member States. As far as the measures responsible for inadequate health which should be taken by the Federal standards but only whether the fact that Republic of Germany are concerned, the a number of national supervisory auth­ Commission considers that to declare orities have powers in the matter creates that it intends to amend the national a danger for health. legislation — an amendment which is Since the common market makes it anyway required by Directive No 77/99 — does not amount to a measure taken possible to conduct the production by the addressee to comply with a process in different Member States, it is reasoned opinion. the supplier of the finished product who is answerable to consumers for the quality of his products. Referring to the The Commission is of the opinion that judgment of the Court in the Eggers case the statistics quoted by the defendant are (judgment of 12 October 1978 in Case of little probative value, in the first place 13/78 [1978] ECR 1935), the Com­ because the figures embrace all kinds of mission concludes that the concept of meat considered to present a health risk "undivided responsibility" cannot be and not just meat products containing used to justify a measure having an effect trichinae, in the second place because the equivalent to a quantitative restriction on figures represent the annual total amount imports. of meat products imported into Germany from both Member States and third countries, and lastly because it is In its reply the German Government impossible to discern in these figures the points out, first, that in manufacturing grounds for the defendant's claim that meat products meat coming from a third the number of suspect imports must be country is mixed with meat of greater when the Member State where Community origin, and secondly, that it the animals were slaughtered is not the is impossible to identify and check the Member State where the meat derived quality of the meat coming from third from them was processed. Moreover, the countries after that mixing. It is therefore establishments which are involved in the of the opinion that in those circum­ manufacturing process have all been stances the present system of control approved by the Federal Republic of under paragraph 12 (c) of the Germany. Fleischbeschaugesetz is justified.

(Eggers, mentioned above) is irrelevant pigs' tongues from the same slaugh­ because that judgment refers expressly terhouses is allowed to import his only to "undivided responsibility" with products into Germany. regard to quality control and does not, therefore, apply to controls designed to protect the health and life of consumers. In the present case, the provisions laid The German measures also constitute a down for health protection must take disguised restriction on trade, first priority over the principle of the free because it is impossible to deliver raw movement of goods. materials (fresh meat) to the processing plant which is manufacturing the product in the other Member State for export to Germany, and secondly because trade in processed products between the Federal Republic and the other Member States is restricted. In its Reply the Commission adds, on the interpretation of Article 6 of B — Arbitrary discrimination or a Directive No 64/433, that that provision disguised restriction (Article 36, permits national measures restricting second sentence) imports to be maintained only to a certain extent. If, notwithstanding that possibility, a Member State allows meat to be imported then by virtue of the last sentence of Article 6 (1) A that meat The Commission is of the opinion that if, must satisfy the Community's contrary to its view, the first sentence of requirements set out in Article 3 of the Article 36 of the Treaty is held to apply, directive. Consequently there is no the second sentence of the same article, objective justification for treating the which provides that the restrictions shall processor of meat imported from another not constitute a means of arbitrary Member State which satisfies the discrimination or a disguised restriction conditions laid down by that directive on trade between Member States, makes differently to the processor of meat it quite impossible to rely on that produced in the Member State where the provision. processing is carried out.

3 The application concerns the conformity with the provisions of the Treaty on the free movement of goods of the requirement that the slaughtering and processing must have been carried out in the same Member State. It was pointed out by the Commission, in fact, that the only hypothesis under consideration in these proceedings is that where the animals are killed in slaughterhouses in the Community and their meat processed in establishments situated in the territory of a Member State, the problem of the movement of products made with meat from animals slaughtered in third countries being entirely reserved. It is also agreed by the parties that the contested measure constitutes a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the Treaty.

4 According to the German Government the national provision in question, while constituting a measure having an effect equivalent to a quantitative restriction, is justified under Article 36 of the Treaty on grounds relating to the protection of human health. According to the Commission, however,

JUDGMENT OF 12. 7. 1979 — CASE 153/78

Article 36 cannot be relied upon in this case both because there is no danger to human health and because, even if there were such a danger, the disputed measure is not such as to eliminate it. In any event, the disputed measure is not such as to eliminate it. In any event, the disputed provision is said to be excessive in relation to the objective pursued, so that it must be considered as constituting arbitrary discrimination and a disguised restriction on trade within the meaning of the second sentence of article 36 of the Treaty.

7 That argument must be rejected. It should be observed, first, that Directive No 64/433 concerns trade in fresh meat and not trade in meat products. Moreover, Article 6, cited above, which states that "... this Directive shall not affect" Member States' national provisions concerning certain types of

COMMISSION v GERMANY

fresh meat, even if it were applicable to intra-Community trade in meat products, could not have the purpose or effect of modifying the scope of the obligations imposed on Member States by Articles 30 and 36 of the Treaty.

8 The only question to be answered is therefore whether the requirement laid down in paragraph 12 (c) of the Fleischbeschaugesetz is justified within the meaning of Article 36 of the Treaty, that is to say "necessary" for the protection of health or life of humans in the Federal Republic of Germany.

9 On this point the defendant argues, first, that the disputed measure is designed to avoid the danger that meat products manufactured in another Member State are derived in fact from animals slaughtered outside the Community, whereas, on the one hand, the judgment of the Court of 28 June 1978 (Case 70/77, Simmenthal [1977] 2 ECR 1453) shows that Council Directive No 72/462 of 12 December 1972 (Official Journal, English Special Edition 1972 (31 December), p. 7) on health and veterinary inspection problems upon importation of, in particular, fresh meat from third countries, is not yet applicable because the Community institutions have not issued the necessary implementing measures, and, on the other hand,, the Commission acknowledges that the Member States remain free to take protective measures in relation to meat products derived from animals slaughtered in third countries.

11 Secondly, the German Government claims that the crossing of a frontier increases the risk that fresh meat which is to be processed into a meat product is unwholesome. This argument is equally unacceptable. Whilst it is true that when fresh meat is transported the risk of its being rendered unwholesome by contamination, by handling or by alterations in the conditions under which it is transported is liable to increase in proportion to the distance and duration of the transportation, the fact that the meat does or does not cross a frontier within the Community while in transit does not -affect the risk in question. This is especially true in view of the fact that the Directive of 26 June 1964, to which reference has already been made, on health problems in intra-Community trade in fresh meat imposes in Chapters X and XIII of Annex I particularly strict conditions regarding packaging and transport.

14 Here, too, the Court is unable to endorse the views expressed by the defendant. Apart from the fact that the disputed requirement concerns the entire range of meat products, and not merely those derived from domestic swine, there is no reason to accept that the risk of the presence of trichinae in meat products is increased merely by the fact that the fresh meat crossed a Community frontier prior to being processed, or. to accept that that circumstance makes detection of the presence of trichinae at the time of entry into the Federal Republic of Germany more difficult or less reliable. It should be noted, moreover, that the German provisions relating to inspection for trichinae do not distinguish between meat products coming from an establishment situated in the Member State where the animal was slaughtered and those coming from an establishment situated in a Member State other than that in which the slaughtering took place.

THE COURT

hereby:

1. Declares that, by prohibiting the import from other Member States of meat products manufactured in one of those States from meat deriving from animals slaughtered in a different Member State, the Federal Republic of Germany has failed to fulfil its obligations under Articles 30 and 36 of the EEC Treaty.

2. Orders the defendant to pay the costs.

Kutscher Mertens de Wilmars Mackenzie Stuart Pescatore Sørensen

O'Keeffe Bosco Touffait Koopmans