C-251/78

DENKAVIT FUTTERMITTEL v MINISTER FÜR ERNÄHRUNG, LANDWIRTSCHAFT UND FORSTEN

health legislation intended to simplify Nevertheless it does not automatically the checks carried out when the follow that each of the conditions to

goods pass from one Member State to which the national authoritiy subjects another. the grant of such authorization itself 4. Article 36 of the Treaty cannot be complies with what is permitted by Article 36. It is in each case for the interpreted as meaning that it forbids national courts to determine whether in principle a national authority, which has imposed by a general rule these conditions are necessary for veterinary and public health attainment of the objective which restrictions on imports of animal Article 36 permits to be sought. feeding-stuffs, from providing that it will be possible to derogate therefrom 5. A pecuniary charge levied for reasons by individual measures left to the connected with veterinary and public discretion of the administration if health checks, even if such checks such derogations assist the take the form of a system of simplification of the restrictions individual import licences and even if imposed by the general rules and if this system is justified within the this power of derogation does not meaning of Article 36 of the Treaty is give rise to arbitrary discrimination a charge having an effect equivalent between traders of different Member to a customs duty and prohibited by States. the Treaty.

In Case 251/78

REFERENCE to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht [Administrative Court] Münster for a preliminary ruling in the action pending before that court between

composed of: H. Kutscher, President, A. O'Keeffe and A. Touffait (Presidents ofChambers), J. Mertens de Wilmars, P. Pescatore, Lord Mackenzie Stuart and G. Bosco, Judges,

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

gives the following

JUDGMENT

Facts and Issues

The order making the reference to the 2. In the Federal Republic of Germany Court and the written observations the organization of the veterinary health submitted under Article 20 of the inspection of feeding-stuffs, based on the Protocol on the Statute of the Court of Viehseuchengesetz [Law on infectious Justice of the EEC may be summarized diseases of animals] 1909, is governed by as follows: two different systems, one dealing with feeding-stuffs manufactured in the Federal Republic of Germany and the other dealing with imported feeding- stuffs. Until very recently these matters were within the jurisdiction of the Länder. I — Facts and procedure

feedingstuffs of animal origin shall be Articles 1, 2 and 9 of the Viehseu- subject to inspection by the official chenverordnung read as follows: veterinary surgeon; the latter is also Article 1 empowered to take samples for purposes of bacteriological analysis". "Feeding-stuffs containing products of animal origin (Article 3) may be With effect from 5 August 1977 that imported into the customs territory only legislation was replaced by Federal upon production on importation of a legislation, namely the Verordnung über certificate from the competent authorities die Behandlung von Futtermitteln in the exporting country confirming that tierischer Herkunft bei gewerbsmäßiger the goods have undergone a heating Herstellung [regulation on the treatment process during or after dehydration of feeding-stuffs of animal origin where whereby any salmonellae which may they are manufactured commercially] of have been present were destroyed." 28 July 1977 — short title, Futtermit- telbehandlungs-Verordnung — Bundes- Article 2 gesetzblatt [Federal Journal of Laws] I, p. 1457. "(1) Feeding-stuffs shall be subject upon importation to an official inspection According to Article 2 of that regulation carried out by veterinary experts in feeding-stuffs must undergo treatment an official veterinary inspection allowing the germs of contagious institute. They may be imported diseases to be destroyed. That provision only when it has been established does not apply where the ingredients of by bacteriological analysis that the the product have already undergone goods are free from salmonellae. similar treatment. Furthermore, under Article 2 (2), exemptions may be granted Samples shall be taken for subject to certain reservations where in inspection purposes in the following proportions: general or in a particular case there is no danger of contagion; whilst under Article — for consignments of 1 to 100 7 "installations for the industrial manu- bags, in 5°/o thereof, facture of feeding-stuffs which contain — for consignments of 101 to 500 products of animal origin shall be bags, in 3°/o thereof, inspected by the authorized veterinary surgeon". — for consignments of over 500 bags, in 2°/o thereof.

regulation where there is no reason to (5) the consignee of the goods, fear that the importation and transit of the goods mentioned in Article 3 are a (6) the packaging of the goods; source of introduction or propagation of and that in addition, when the goods epizootic disease germs." were given customs clearance at the The legislation in question was repealed frontier customs post, it produced a certificate in German or accompanied by and replaced with effect from 1 April a certified German translation from the 1979 by Federal legislation: the Verordnung über die Einfuhr und official veterinary surgeon having Durchfuhr von Futtermitteln tierischer authority for the place where the milk- Herkunft und von Knochenmaterial based feeding-stuffs were manufactured. That certificate also had to state that [regulation on the importation and transit of feeding-stuffs of animal origin (1) the feeding-stuffs contained no and of bone material] hereinafter constituents of animal origin other referred to as "the Einfuhrverordnung", than milk products in powdered Bundesgesetzblatt 1978 I, p. 1375. form and animal fat, However, the main action concerns only the Land's legislation on imports of (2) the milk products were manu- feeding-stuffs as in force until 1 April factured exclusively from pasteurized 1979. milk,

(3) the customs post through which the Taking the view that the fee charged and goods were to be imported, certain of the conditions and obligations to which the grant of the licence was (4) the destination of the goods, made subject were incompatible with the

DENKAVIT FUTTERMITTEL v MINISTER FÜR ERNÄHRUNG, LANDWIRTSCHAFT UND FORSTEN

or by the plaintiff in the main action, represented for this purpose by its to leave special licences granting Counsel D. Ehle, by the defendant in the exemption from this to the discretion of main action, represented for this purpose the competent authority (das Ermessen by Dr Erbert and by the Commission of der zuständigen Behörde) and thereby the European Communities, represented give that authority the power to grant by Manfred Beschel, a member of its those special licences provided that: Legal Department, acting as Agent.

— the licence is granted only for a Upon hearing the report of the Judge- limited period, may be revoked Rapporteur and the views of the without compensation at any time for Advocate General the Court decided to

JUDGMENT F 8. 11. 1979 — CASE 251/78

open the oral procedure without any requires, even purely as a formality, preparatory inquiry. import or export licences or any other similar procedure.

II — Observations under Article Article 36 of the Treaty 20 of the Protocol on the Statute of the Court of Basing itself on the judgment of the Justice of the EEC Court of 5 October 1977 in Case 5/77

Tedeschi [1977] ECR 1555, the plaintiff takes the view that where, pursuant to A — Observations of the plaintiff in the Article 100 of the EEC Treaty, main action (Denkavit) Community directives have provided for the harmonization of measures intended

DENKAVIT FUTTERMITTEL v MINISTER FÜR ERNÄHRUNG, LANDWIRTSCHAFT UND FORSTEN

scribed in Articles 1 and 2 of the Articles 30 and 36 of the Treaty, the Viehseuchenverordnung and (b) cannot carrying out of a health or veterinary justify the requirement of a licence inspection in intra-Community trade to accompanied by conditions and be certified by a document. Basing itself obligations. on the judgment of the Court of 20 May 1976 in Case 104/75 De Peijper [1976] 1 ECR 613, it takes the view that infor- mation about the nature of the (a) The double veterinary check supervision of Denkavit Nederland BV. in the Netherlands could, if necessary, be obtained by the defendant by direct Basing itself on the findings of the contact with the Netherlands veterinary national court, the plaintiff argues that authorities. The obligation to produce a the inspection of Denkavit Nederland's certificate from the exporting country — feeding-stuffs factory by the Netherlands a fortiori for each consignment — veterinary authorities is neither less constitutes an arbitrary discrimination thorough nor less reliable than the within the meaning of the second inspection to which German under- sentence of Article 36 because, when the takings are subject. In these circum- plaintiff obtains products of the same stances the answer to the first part of the kind as the products in question from a question should be to the effect that in German manufacturer, it does not have any case systematic bacteriological to produce such a certificate. inspection upon importation violates the principle of free movement of goods and cannot be justified by Article 36 of the As regards the conditions and obligations EEC Treaty where the manufacture of attached to the licence (laying down of a the feeding-stuffs is subject in the time-limit, specified quantities, statement exporting country to actual and reliable of the consignee, and so on), the plaintiff bacteriological inspection by the considers that they are neither appro- veterinary authorities. The question priate nor necessary to prevent epizootic whether in this connexion there are diseases. express legal provisions imposing such inspection in the exporting country is irrelevant if it is shown that such

52 and 55/65 Federal Republic of Community health standards by means Germany v Commission [1966] ECR of a health certificate issued by an 159). Furthermore, the charging of a fee official veterinary surgeon to accompany in itself infringes Articles 9, 12 and 13 of each consignment. As an example one the Treaty, because it does not constitute may cite Article 3 (2) (i) of Council the consideration for a service provided Directive No 64/432 of 26 June 1964 on and does not form part of a body of animal health problems affecting intra- general national rules since it is charged Community trade in bovine animals and only for the issue of an import licence. swine (Official Journal 1975, C 189, p. 1). Article 7 of that directive justifies requiring a licence to be granted where it is a question of derogating from the Community rule, and by determining the frontier crossing-points to be used B — Observations of the defendant in Article 6 of the directive also takes the main action (Minister für account of the need in intra-Community Ernährung) trade for inspections upon crossing the frontier.

After stressing the danger of salmonellosis for human health and the

DENKAVIT FUTTERMITTEL v MINISTER FÜR ERNÄHRUNG, LANDWIRTSCHAFT UND FORSTEN

name of the consignee serve to facilitate Article 36 of the EEC Treaty any epidemiological inquiries which may have to be undertaken. The Commission states that in cases such

as the present one (a) there is nothing to prohibit Article 36 of the Treaty being C — Observations of the Commission invoked, but that (b) it is therefore essential to consider whether the Interpreting the question referred to the measures in question can be regarded as Court for a preliminary ruling, the justified for the purposes of Article 36 of Commission observes on the one hand the Treaty. that the Verwaltungsgericht seeks a definition of the scope of the prohibition (a) Applicability ofArticle 36 of measures having an effect equivalent to quantitative restrictions (Articles 30 Constituting an exception to the and 36 of the Treaty) and of charges principle of free movement of goods, having an effect equivalent to customs Article 36 of the Treaty can no longer be duties (Article 9 of the Treaty) and, on invoked when the Community legislature the other hand, that the question draws a has adopted harmonized rules in an area

JUDGMENT OF 8. 11. 1979 — CASE 251/78

concerning the protection of human and must consider what inspections imports animal health. However, this is not the of the goods in question undergo in the case as regards the health protection for other Member States and what protective compound feeding-stuffs, the products measures are applied to domestic which form the subject-matter of the products of the same kind. According to dispute in the main action. Since the the Commission's information, all the problem of pathogenic germs in feeding- other Member States draw a distinction stuffs will have to be the subject of between feeding-stuffs manufactured specific legislation, the Commission from milk and heated animal fats and concludes that the Member States are those manufactured from other animal

Examining the animal health measures laid down in the Viehseuchenver- (b) Justification of the measure under Article 36 of the Treaty ordnung, the Commission observes that, as regards milk substitutes, those provisions go markedly further than is considered necessary by the other The Commission first considers the Member States. Moreover, comparison question of the circumstances in which a of the Viehseuchenverordnung with the legislative provision (Rechtsnorm) can be German rules applicable to the manu- regarded as justified for the purposes of facture and sale of German feeding- Article 36 of the EEC Treaty, and then stuffs shows that Federal law, at least as considers the question of the circum- laid down in the Federal Futtermit- stances in which the exercise of telbehandlungs-Verordnung of 28 July discretion by the administration (das 1977, no longer provides for systematic Ermessen der zuständigen Behörde) may bacteriological analyses of those feeding- be regarded as justified within the stuffs or for special certificates meaning of Article 36 of the EEC accompanying consignments. Treaty.

As regards national legislative measures, In these circumstances it is open to it observes that although the Member question whether legislation making States have discretion, they can adopt imports of milk substitutes always and only such measures as are necessary and without exception subject to production appropriate to achieve the protective aim of a certificate issued by the veterinary in view. administration and to bacteriological examination is still justified or whether, on the contrary, it should be regarded as an arbitrary restriction on trade. The When each Member State assesses the Commission does not however develop need for inspections upon importation, it this point because the legislation at issue

1969 (Official Journal, English Special Edition 1970 (I), p. 17) and on the As regards the administration's discretion judgment of the Court of 8 July 1975 in to grant exemptions, it is a question not Case 4/75 Rewe [1975] 1 ECR 843, the of passing judgment on each measure in Commission assesses the expediency and particular but of setting forth the appropriateness of the measures applied Community law criteria upon which the to imports by asking whether and to discretionary decisions must be founded what extent similar domestic products and of imposing limits upon the exercise are subject to similar restrictions. If of the discretion which must not be domestic feeding-stuffs are not treated in exceeded. the same way, the measures restricing imports cannot be regarded as justified unless it is proved that the health protection thereby sought is ensured by other measures as far as domestic One of the essential issues in this context is whether and to what extent the auth- products are concerned. In the present case the defendant attached conditions orities in the importing country must to the exemption granted, whereas no have regard to the actual veterinary similar provision applies in the treatment health inspection provisions applied in of domestic goods. the exporting State. In the Federal Republic of Germany undertakings manufacturing feeding-stuffs are subject to official inspection provided for in the Federal Futtermittelbehandlungs-Verord- Article 9 of the Treaty nung of 1977, whilst no such control is mandatory in the Netherlands. In a situation of this kind, the principle of free movement of goods and the Member States' duty to assist in the For the purpose of assessing the legality implementation of their obligations under Community law of the fee at issue under the Treaty pursuant to Article 5 of the question of the scope of the the EEC Treaty none the less require the prohibition of charges having an effect authority in the importing Member State equivalent to customs duties arises only if to have proper regard, for example by the measures complained of are not contacting the authority in the exporting themselves invalid and do not require to country, to anything which may be be withdrawn. Even if those measures

view that the charge in question cannot principle compatible with be regarded as consideration for a Community law. service rendered to the importer because it does not procure him individually any measurable ecconomic advantage. Fur- thermore the fees do not come within a 2. The competent authority must general system of internal taxation observe the limits laid down in applying systematically and according to Article 36 of the EEC Treaty in the the same criteria to domestic products exercise of its discretion to grant and imported products alike. exemptions. If undertakings which manufacture feeding-stuffs contain- ing products of animal origin in the exporting Member State are subject In view of the foregoing considerations, to official inspection not provided the Commission submits that the Court for by law but at least comparable to should give the following answer to the the inspection carried out in the question referred to it for a preliminary importing Member State pursuant to ruling: its law in installations for the industrial manufacture of similar

feeding-stuffs, the exercise of the discretion may constitute an "1. A national legislative provision arbitrary restriction on trade which between Member States where the

"Must Articles 9, 30 and 36 of the EEC Treaty, Regulation (EEC) No 804/68 (regulation on the common organization of the market in milk and milk products) and Regulation (EEC) No 2727/75 (regulation on the common organization of the market in cereals) be interpreted as meaning that it is prohibited

either

to make, by legislative provision in a Member State, the importation of feeding-stuffs of animal origin from another Member State subject, in respect of each consignment, to a certificate from the competent authority in the exporting country showing that the feeding-stuffs have undergone a process to destroy salmonellae and, in addition to authorize importation only if the competent national authority in the importing country has established by bacteriological examination that the goods contain no salmonellae

or

to leave special licences granting exemption from this to the discretion of the competent authority and thereby give that authority the power to grant those special licences provided that:

— the licence is granted only for a limited period, may be revoked without compensation at any time for reasons of the veterinary authority, is, in addition, valid in accordance with the application only for goods of a specific quantity and origin and only for transportation via specific customs posts to specific consignees,

2 This question has been raised in an action brought by a trader who imports into the Federal Republic of Germany from the Netherlands feeding-stuffs containing products of animal origin — in this case substitute milk-based feeding-stuffs (Milchaustauschfutter) — against the Minister für Ernährung, Landwirtschaft und Forsten des Landes Nordrhein-Westfalen [Minister for Food, Agriculture and Forestry of the Land of North Rhine-Westphalia]. This trader calls in question the compatibility of certain provisions of the regulation of 18 September 1957 of the Land in question on animal health measures applicable on the importation and transit of feeding-stuffs containing products of animal origin from abroad (hereinafter referred to as the "Viehseuchenverordnung [regulation on infectious diseases of animals] 1957" with Articles 30 and 36 and also with Article 9 of the Treaty relating respectively to the prohibition of measures having an effect equivalent to quantitative retrictions and of charges having an effect equivalent to customs duties in intra-Community trade and also with the provisions of Regulation (EEC) No 804/68 of the Council of 27 June 1968 on the common organi- zation of the market in milk and milk products (Official Journal, English Special Edition 1968 (I), p. 176) and of Regulation (EEC) No 2725/75 of the Council of 29 October 1975 on the common organization of the market in cereals (Official Journal L 281, p. 1) which enact or imply the same prohibitions.

3 It must be stressed that since 31 December 1969, the date when the transitional period came to an end, Articles 9 and 30 of the Treaty have direct effect and create by themselves individual rights which national courts must protect. Consequently on and after 1 January 1970 it was no longer necessary to reproduce in regulations establishing common organizations of the market the prohibitions enacted by those articles, since Article 38 (2) of the Treaty provides that "Save as otherwise provided in Articles 39 to 46, the rules laid down for the establishment of the Common Market shall apply to agricultural products". That is the reason why Article 22 of Regulation No 804/68, which dates back to 1968, expressly provides that any quantitative

5 The particular features of this regulation as far as concerns the obstacles which it might place in the way of intra-Community trade are described as follows by the national court. Pursuant to Articles 1 and 2 of the Viehseu- chenverordnung 1957 the feeding-stuffs in question may only be imported if two conditions are fulfilled, first that when they are imported a certificate from the competent authorities in the exporting country is produced confirming that the goods have undergone a heating process during or after dehydration whereby any salmonellae which may have been present were destroyed (Article 1 thereof) and secondly that the said feeding-stuffs shall all be subject upon importation to a preliminary inspection in the form of samples taken for inspection purposes by veterinary experts of the importing country and examined in an official veterinary inspection institute, their importation only being possible when it has been established by bacterio- logical analysis that the goods are free from salmonellae (Article 2 (1) thereof). According to Article 9 thereof the responsible Minister may grant exemption from the provisions of this regulation, especially from those relating to systematic inspection at the frontier, where there is no reason to fear that the importation and transit of the feeding-stuffs in question are a source of introduction or propagation of epizootic disease germs. He may grant an exemption upon certain conditions. This is what happened in this case where the exemption for which the plaintiff in the main action applied was granted in consideration of its accepting the conditions set out in the question raised by the national court.

7 With reference to the veterinary and public health measures provided for by the domestic regulation at issue the plaintiff in the main action submits in the first place that Article 36 can no longer be invoked to justify such measures because in consequence of the Community directives adopted in the feeding- stuffs sector for the purpose of harmonizing national laws recourse by national authorities to Article 36 is no longer justified. In the second place it submits in the alternative that not only the measures imposed by the Viehseuchenverordnung 1957 itself but also the fact that an application has to be made for an exemption and the conditions attached to the grant thereof represent an accumulation, in its view unnecessary and therefore unjustified, of restrictions on the free movement of the goods at issue, such restrictions not being covered by the exception provided for in Article 36 having regard to the fact that in the exporting Member State the production of feeding-stuffs by the undertakings concerned — although there are no mandatory provisions in this respect — is nevertheless subjected to inspections comparable to those which the laws of the importing Member State require undertakings on its own territory to undergo. It is also of the opinion that the fee of DM 50, to the payment of which the granting of an exemption is linked, is incompatible with Article 9 of the Treaty.

8 It is primarily in order to be able to resolve the problems raised by the plaintiff in the main action that the question of interpretation before the Court has been referred to it by the national court.

JUDGMENT OF 8. 11. 1979 — CASE 251/78

such legal effects as it deems advisable, with the obligation imposed by a directive on all the Member States to issue, in order to facilitate intra- Community trade, a standard veterinary and public health certificate in a system the aim of which is to transfer supervision to the exporting Member State and to replace in this way the systematic protective measures at the frontier with a uniform system so as to make multiple frontier inspections unnecessary and at the same time to give the Member State of destination the opportunity of ensuring that the guarantees provided by the system of inspection thus standardized are in fact given.

12 It follows from the foregoing considerations that the concept of a measure having an effect equivalent to quantitative restrictions covers national measures such as those provided for by Articles 1, 2 and 9 of the Viehseu- chenverordnung 1957 and that such measures fall within the prohibition in Article 30 of the Treaty unless they fall within the exception provided for in Article 36.

B — The applicability ofArticle 36 ofthe Treaty

13 As far as concerns the field of application of Article 36 the national court asks, in the first place, whether that provision may still be invoked by a Member State even though Community directives or regulations make arrangements for supervision having the same objectives as those provided for by the national provisions adopted in accordance with the said Article 36.

14 The Court of Justice has held in its judgment of 5 October 1977 in Case 5/77 Carlo Tedeschi Denkavit Commerciale s. r. l. [1977] ECR 1556 that Article 36 is not designed to reserve certain matters to the exclusive jurisdiction of Member States but only 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. Consequently when, in application of Article 100 of the Treaty, Community directives provide for the har- monization of the measures necessary to guarantee the protection of animal and human health and when they establish procedures to check that they are observed, recourse to Article 36 is no longer justified and the appropriate

JUDGMENT OF 8. II. 1979 — CASE 251/78

18 These physical requirements are inter alia dealt with in Council Directive No 77/101/EEC of 23 November 1976 on the marketing of straight feeding- stuffs (Official Journal 1977, L 32, p. 1) and Council Directive No 79/373/EEC of 2 April 1979 on the marketing of compound feeding-stuffs (Official Journal 1979, L 86, p. 30). It is the second of those directives which deals with the type of feeding-stuffs the importation whereof gave rise to the main action. In any case neither of them was in force when the main action originated and the second of them moreover allows Member States a period not expiring until 1 January 1981 within which to adopt the laws, regulations and administrative provisions necessary to comply therewith. The consequence is therefore that those directives cannot in fact have overridden or override the powers which Article 36 confers on the Member States to except the goods at issue from free circulation. There is the further consequence that it is unnecessary to consider the question whether those directives deal with the presence of pathogenic elements in feeding-stuffs or not.

19 The Court must also reject the argument of the plaintiff in the main action that it follows from the Council Resolutions of 12 March 1968 and 22 July 1974 on the veterinary, plant health and animal feeding-stuffs sectors (Journal Officiel 1968, C 22, p. 18 and Official Journal 1974, C 92, p. 2) that the harmonization programme introduced by these resolutions shows that the Council did not think there was any point in adopting specific measures to combat salmonellosis and that the various directives taken

22 In this connexion the first question is whether a double check, which consists on the one hand of the requirement of a certificate from the competent authority in the exporting country to the effect that the animal feeding-stuffs in question have been subjected to a process whereby salmonellae have been destroyed and, on the other hand, of a systematic inspection at the frontier following which importation is only permitted after confirmation that the goods are free of salmonellae, exceeds what Article 36 permits.

25 The national court also wishes to know whether a system of granting import licences, the issue whereof is left to the discretion of the competent authority and is subject to the conditions described in the question put by the national court may be regarded as keeping within the limits laid down by Article 36.

26 The Court held in its judgment of 15 December 1976 in Case 41/76 (Suzanne Criel, née Donckerwolcke and Henri Schou v Procureur de la République au Tribunal de Grande Instance, Lille and Director General of Customs [1976] ECR 1921, at p. 1936) that the application to intra- Community trade of a national provision which requires, even purely as a formality, import licences or any other similar procedure is a measure having an effect equivalent to a quantitative restriction and is consequently prohibited. Nevertheless this prohibition does not apply to those cases where prohibitions or restrictions on trade may in fact be kept in being under the terms of Article 36 of the Treaty provided that they are justified within the meaning of that provision. The special licence at issue in the main action is an exception to the general rule of a double check laid down by Articles 1 and 2 of the Viehseuchenverordnung 1957 and is by definition deemed to be less restrictive than the general rule from which it derogates. Consequently a system of import licences which derogates to a large extent from a general system of veterinary and public health restrictions which is compatible with Article 36 complies itself with that provision. If it only made possible a relax- ation of a general supervisory system which went beyond what Article 36

30 Article 9 of the Treaty contains the prohibition between Member States of customs duties and of all taxes having equivalent effect. Since that

JUDGMENT OF 8. 11. 1979 — CASE 251/78

prohibition does not admit of any distinction according to the aim in view in levying the pecuniary charges for the abolition of which it provides, it also includes fees demanded for veterinary and public health inspections carried out by reason of the importation of goods. 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 or if those charges were remuneration for a service actually rendered to the importer. Fees such as those provided for by the licence obtained in this case apply only to imported products. They are not remuneration for a service rendered to the importer either, because the operations of a State administration which are designed to maintain in the public interest a system of veterinary and health inspections — even if that system was organized in the form of measures which are individual, derogatory and more flexible than a general supervisory system — cannot be regarded as a service rendered to the importer of such a kind as to justify the levy of a pecuniary charge in consideration thereof.

31 It follows that Article 9 of the Treaty must be interpreted as meaning that a pecuniary charge levied for reasons connected with veterinary and public health checks, even if such checks take the form of a system of individual import licences and even if this system is justified within the meaning of Article 36 of the Treaty is a charge having an effect equivalent to a customs duty and consequently prohibited.

1. The concept of a measure having an effect equivalent to quantitative restrictions covers national measures such as those provided for by Articles 1, 2 and 9 of the North Rhine-Westphalian regulation of 18 September 1957 relating to animal health measures applicable on the importation and transit of feeding-stuffs containing products of animal origin from abroad. Such measures fall within the prohibition in Article 30 of the EEC Treaty unless they fall within the exception provided for by Article 36 of the EEC Treaty.

2. Conditions making it impossible for Member States to justify having recourse to the exceptions permitted by Article 36 of the EEC Treaty were not present when the events occurred which gave rise to the main action relating to compound animal feeding-stuffs of animal origin, as regards in particular measures against pathogenic agents.

3. A double check of the kind described in the question is more than Article 36 of the EEC Treaty permits if the health and life of humans and animals can be protected as effectively by measures which are not so restrictive of intra-Community trade. If co-operation between the authorities of the Member States makes it possible to facilitate and simplify frontier checks, which continue to be permissible by virtue of the exception provided for by Article 36 of the EEC Treaty, the auth- orities responsible for veterinary and public health inspections must ascertain whether the substantiating documents issued as part of such co-operation do not raise a presumption that the imported goods comply with the requirements of national veterinary and public health legislation intended to simplify the checks carried out when the goods pass from one Member State to another.

Kutscher O'Keeffe Touffait

Mertens de Wilmars Pescatore Mackenzie Stuart Bosco

Delivered in open court in Luxembourg on 8 November 1979.

A. Van Houtte H. Kutscher

Registrar President