C-2/82

JUDGMENT OF 6. 10. 1983 — JOINED CASES 2 TO 4/82

2. The harmonized system of public is not increased to such an extent as health inspections, introduced in to constitute a disguised restriction on particular by Directive 64 / 433 , has as trade between Member States. its purpose the abolition of barriers to Those considerations must be intra-Community trade in fresh meat extended, for the same reasons, to the by the harmonization of public health products covered by Directive 71/118 measures. That system, which is based on problems affecting trade in fresh on the principle that the public health poultry-meat. guarantees required by all the Member States are equivalent, 3. It follows from the provisions of accordingly has as its purpose to Directives 64/433 and 71/118, taken transfer supervision to the exporting as a whole, that the public health Member State and to replace in this inspections carried out in the way the systematic measures of exporting country also relate to the protection at the frontier with a transport of meat and poultry and, uniform system so as to make multiple consequently, extend to their state of frontier inspections unnecessary, preservation throughout transpor­ whilst at the same time giving the tation, including therefore the time at Member State of destination the which a frontier is crossed. opportunity of ensuring that the Consequently, a systematic public guarantees provided by the system of health inspection on the occasion of inspections thus standardized are in the importation of meat and poultry, fact given. carried out in order to ascertain any In those circumstances, systematic changes in their condition whilst in public-health inspections at the transit from the exporting State and frontier of the products referred to in their state of preservation on entering the above-mentioned directive are no the territory of the State of longer necessary or, consequently, destination, falls within the scope of justified under Article 36 of the the public health inspection carried Treaty. out in the exporting country in Only occasional inspections are accordance with Directives 64/433 permissible, provided that the number and 71/118.

and

the BELGIAN STATE, represented by the Minister for Public Health and the Environment, Brussels,

on the interpretation of Council Directives 64 / 432 / EEC of 26 June 1964 (Official Journal, English Special Edition 1963-64, p. 164), 64 / 433 / EEC of 26 June 1964 (Official Journal, English Special Edition, 1963-64, p. 185) and 71 / 118 / EEC of 15 February 1971 (Official Journal, English Special Edition 1971 (I), p. 106) and of Articles 30 and 36 of the EEC Treaty,

THE COURT (Second Chamber)

composed of: P. Pescatore, President of Chamber, O. Due and K. Bahlmann, Judges,

Advocate General: P. VerLoren van Themaat Registrar: H . A. Rühi, Principal Administrator

BFR 9 201 270 in the case of Delhaize, a system for intra-Community trade BFR 3 450 000 in the case of G.B.- in butcher's meat and poultry-meat Inno-BM and BFR 4 164 544 in the case prohibiting in particular any public of Metsdagh. health inspection by the authorities of the importing Member State and a fortiori the collection of any charge in respect thereof. The inspections and the payment of the charges relating thereto were effected in accordance with the following provisions The plaintiffs contended in the national of national law: proceedings that the inspection carried out by the Belgian authorities was merely a repetition of the first inspection As regards the importation of butcher's performed in the exporting State in meat, the Law of 5 September 1952 on accordance with the requirements of the inspection of and trade in meat the relevant Community directives. The (Moniteur Belge of 16/17 March 1953) plaintiffs maintained that such an and the Royal Decree of 12 March 1965 inspection was incompatible with the on the importation of meat (Moniteur provisions of those directives, as was Belge of 25 May 1965, p. 6256), as sub­ clear from the Court's judgment of sequently amended, most recently by the 15 December 1976 in Case 35/76 Royal Decree of 21 June 1979 (Moniteur Simmenthal[l976] ECR 1871. Belge of 23 June 1979, p. 7221).

DELHAIZE FRÈRES / BELGIAN STATE

tifiable on objective grounds relating to poultry, which was the subject-matter of the protection of health and life of Council Directives 64/432, 64/433 and humans, although such inspections 71/118 on animal health problems should not in any case be systematic affecting intra-Community trade in where the imported product had been bovine animals and swine, in fresh meat the subject of harmonization directives, and in fresh poultry-meat respectively, as was the case in these proceedings. In carried out to ascertain any changes in any event, an inspection of that kind the condition of the meat and poultry should not be tantamount to a disguised whilst in transit from the exporting restriction on intra-Community trade. country and their state of preservation According to the court making the on entering Belgian territory, fall within reference, such a restriction occurred the scope of the public health inspection almost unavoidably where the inspection carried out in the exporting country in carried out in the country of destination accordance with the aforementioned was the same as that performed in the directives? exporting country.

JUDGMENT OF 6. 10. 1983 — JOINED CASES 2 TO 4/82

The reason for such the Brussels Bar, and, on 31 March 1982 incompatibility, in their view, lies in the by the French Government, represented system established by the directives and by G. Legras, Deputy Secretary General in the interpretation placed thereon of the Secretariat General of the Inter- by the Court, in particular in the Ministerial Committee on Questions of Simmenthal judgment, cited earlier. European Economic Cooperation, acting Furthermore, a general reply in those as Agent. terms would be appropriate inasmuch as it would avoid prolonging the

However, it requested the Belgian Government to inform the Court at the hearing whether First argument: It is clear from the any further public health inspections Simmenthal judgment that any systematic were carried out after the entry into public health inspection on importation force of the Royal Decree of 21 June of the products covered by Directive 1979 amending the Royal Decree of 12 64/433 is incompatible with Community March 1965 relating to the importation law since the entry into force of that of meat. directive. Occasional inspections are not prohibited provided that they do not By order of 23 March 1983, the Court, constitute a disguised restriction on in accordance with Article 95 (1) and (2) intra-Community trade.

main action other Member States after the Commission addressed a reasoned The plaintiffs in the main action refer to opinion to Belgium and instituted the rules of national and Community law

Fourth argument: The United Foods judgment does not reflect a trend in the Court's case-law towards acceptance of Second argument: The aforementioned the compatibility with Community law of incompatibility with Community law also systematic public health inspections on extends to the systematic inspection of importation. In contrast to the present meat and poultry in order to ascertain case, the dispute in the United Foods case any changes in their condition whilst in was concerned with fish imports, an area transit from the exporting State and their in which there were no harmonized state of preservation on entering Belgian rules. Accordingly, that judgment is not territory. It is apparent first of all from indicative of a change of direction by the the Simmenthal judgment that the Court from its decisions based on the harmonization effected by the directives Simmenthal judgment. in question extends to compliance with uniform public health requirements regarding storage and transport, with the result that multiple checks at the frontier to ascertain the condition of the meat in In conclusion the plaintiffs suggest that transit and its state of preservation is the answer to the question submitted neither necessary nor justified within the should be as follows: meaning of Article 36. Furthermore, in its judgment of 12 July 1979 in Case 153/79 Commission v Federal Republic of Germany [1979] ECR 2555 the Court "Any systematic public health inspection also refused to accept the argument that on the importation of the products the crossing of a frontier entails an referred to in Directive 64 / 433 / EEC is increase in the risk that fresh meat may incompatible with the EEC Treaty since deteriorate. the entry into force of the directives in question (Simmenthal judgment), and the same rule applies, for the same reasons, in the case of the products referred to in Directive 71/118/EEC. Systematic Third argument: The fact that certain inspections carried out in order to provisions of the Belgian legislation fall ascertain any changes in the condition of outside the scope of the directives meat and poultry whilst in transit from concerned cannot be relied upon by the the exporting country and their state of

preservation on entering Belgian territory the possible presence of substances are also incompatible with the EEC harmful to the health of humans. Treaty. The same applies to systematic inspections to determine whether goods comply with national provisions on Finally, it is also premature because it public health, whether such provisions does not raise the issue of whether it is have been harmonized by Community compatible with Community law to directives or fall outside the scope of the impose a levy to cover the cost of public harmonization directives, such as the health inspection. provisions of Directives 64 / 433 / EEC and 71 / 118 / EEC relating to contagious diseases, reserved areas and safeguard (b) It is merely in the alternative that clauses." the Belgian State adopts a position on the question submitted. However, before suggesting an answer to the question, it reviews the provisions in force. B — Observations of the Belgian Government As far as the provisions of Community law are concerned, it considers that (a) The Belgian Government contends Directive 64/433 fist of all allows the primarily that the question was referred State of destination to carry out an to the Court by the national court inspection in order to ascertain whether prematurely and the Court should the meat has not become unfit for therefore stay the proceedings. consumption and whether the require­ ments imposed in the exporting State have been satisfied and, secondly, The question was submitted prematurely excludes from its scope provisions because, in the opinion of the Belgian concerning certain harmful substances. State, the inspection carried out by it is Directives 64/432 and 71/118 also in no way a repetition of that performed contain similar provisions. by the exporting State. Since the question whether or not the Belgian public health inspection is a repetition of The Belgian State goes on to examine that carried out in the exporting country the Belgian legislation at issue in the is the decisive issue for the purpose of present case and takes the view that the answering the national court's question, legislation requires systematic inspections the proceedings should be stayed; this is to be carried out in order to detect any particularly so since a ruling by the residues of bacteriostatic substances and Court at the present stage of the main substances with hormonal or anti- proceedings may either influence the hormonal action. appeal court or subsequently become unnecessary or legally inappropriate if the appeal court reviews the point at According to the Belgian State, its own issue. legislation is compatible with the relevant Community directives since it is those directives themselves which provide for Moreover, the question is also premature systematic public health inspection on the because it is concerned with only public occasion of the importation of meat and health inspections carried out within the poultry. The legality of the inspection framework of the relevant directives and carried out by the authorities is therefore not with inspections designed to detect not in doubt since the inspection is not a

repetition of that performed in the inspection provided for by the Com exporting State and relates only to the munity directives and is not detrimental condition of the goods whilst in transit to the goods in spite of their perishable and to their state of preservation on nature. entering Belgium. Furthermore, such an inspection is compatible with Community law for the further reason that the Belgian State is still empowered to carry The Belgian Government is therefore of out a public health inspection, in relation the opinion that the answer to the to intra-Community trade in the meat question submitted for a preliminary and poultry referred to in the afore ruling should be as follows: mentioned directives, in order to detect the presence, if any, of the above-

In that regard the Belgian Government That public health inspection is not a considers that the detailed rules relating repetition of the public health inspection to the public health inspection at issue carried out in the exporting State; the are justified inasmuch as Belgian public latter is covered by the documents which health requirements cannot be satisfied are drawn up in the exporting State and as effectively by measures which are less which may be required by the State of restrictive of intra-Community trade. destination. Accordingly, since the public health inspection in question is justified exclusively on grounds of the protection of public health, it must be possible to If an additional public health inspection carry it out in the absence of common or is carried out in compliance with

JUDGMENT OF 6. 10. 1983 — JOINED CASES 2 TO 4/82

On the other hand, inasmuch as the purpose of the inspection is to ascertain After reviewing the provisions of any changes in the condition of the national and Community law applicable goods whilst in transit, the inspection in the present case, the Commission may be justified by Article 36 of the points out in limine that its observations Treaty on condition that it is carried out are confined to· the question; of the occasionally. However, since the detailed compatibility with Community law of the rules introduced by the Belgian auth­ Belgian public health inspection on

DELHAIZE FRÈRES / BELGIAN STATE

That is clear from the Simmenthal judgment as far as the products covered by Directives 64/432 and 64/433 are concerned and, The Commission emphasizes in that for the same reasons, as regards those connection that the purpose of the covered by Directives 71/118 and 77/99. directives was to transfer supervision in The State of destination may carry out matters of public health to the exporting occasional inspections only on condition Member State and thus to replace that they are not so numerous as to systematic measures of protection at the constitute a disguised restriction on trade frontier with a uniform system so as to

It is clear in which is both compulsory and particular from Article 3 of Directive systematic, carried out at the frontier by 64/433 that fresh meat must be the Member State of destination, cannot transported under satisfactory hygienic be regarded a priori as incompatible conditions, in accordance with the with Community law". Moreover, an provisions of Chapter XIII of Annex I inspection of that kind must be necessary (subparagraphs (h) and (f)), That for the protection of health and life directive also contains detailed require of humans and animals. In the ments concerning the packaging of meat Commission's view, in the absence of cut up in pieces (Chapter X) and the detailed information regarding the manner in which the various pieces of inspections in question and their meat are to be transported.

JUDGMENT OF 6. 10. 1983 — JOINED CASES 2 TO 4/82

Similar provisions also apply in the case preservation on entering the territory of fresh poultry-meat. of the State of destination are to The Commission maintains that, in the be regarded as incompatible with light of all those provisions, an Community law since the provisions of inspection such as that which is at issue Directives 64/433, 71/118 and 77/99 in these proceedings is neither necessary and the inspections carried out in the nor, therefore, justified within the exporting Member State in accordance meaning of Article 36. Finally, the with those directives also apply to the Commission adds that the crossing of a conditions in which the meat and meat frontier is scarcely relevant to the products are transported." question of the state of preservation of the meat or meat products transported since, under the system established by III — Oral procedure the Community directives in question, all that matters is whether the product is At the sitting on 30 June 1983 oral wholesome on arrival at its destination. argument was presented and answers to The Commission therefore suggests that questions put by the Court were given by the answer to the questions submitted by the following: Mr Vandencasteele and the Tribunal de Première Instance, Mr Waelbroeck, of the Brussels Bar, for Brussels, should be as follows : the plaintiffs in the main action; Mr "As a rule, systematic public health Leurquin, of the Brussels Bar, for the inspections at the frontier carried out on Belgian Government, the defendant in the products referred to in Directives the main action; Mr Carnelutti, 64/432, 64/433, 71/118 and 77/99 are Secretary at the Ministry of Foreign no longer necessary or, consequently, Relations, acting as Agent, for justified within the meaning of Article 36 the French Government; and Mr of the Treaty. Lamou reux, assisted by Mr Hartvig, acting as Agents, for the Commission of In particular, systematic inspections the European Communities. carried out in order to ascertain any changes in the condition of fresh meat The Advocate General delivered his and meat products whilst in transit from opinion at the sitting on 22 September the exporting State and their state of 1983.

4 In the proceedings before the national court, the Government of the Kingdom of Belgium challenged the plaintiffs' argument on the ground that the Belgian inspection fell outside the scope of the directives, inasmuch as it differed from that carried out in the exporting State. In its view, the main purpose of that inspection was first of all to ascertain whether any changes had occurred in the condition of the meat or poultry whilst in transit and its state of preservation and, secondly, to detect any residues of bacteriostatic substances with hormonal or anti-hormonal action which the meat might contain.

5 In its analysis of the inspection carried out by the Belgian authorities, the national court first took the view that, in so far as the purpose of the inspection was to determine whether the imported goods were in conformity with the Belgian legislation, it manifestly constituted, in the circumstances, a systematic repetition of the first inspection carried out in the exporting country and was thus incompatible with the relevant provisions of Community law.

6 Having come to that conclusion, the national court considered that it remained to be determined whether a systematic inspection, in so far as its purpose was to ascertain any changes in the condition of the goods whilst in transit from the exporting State and their state of preservation on entering Belgian territory, was compatible with the provisions of Community law applicable in the present case. It took the view that it was necessary, before giving judgment, to refer two questions to the Court for a preliminary ruling on that point.

11 It must in the first place be pointed out that, as far as fresh meat is concerned, the Court has already stated in its judgment of 15 December 1976 in Case 35/76 Simmentbal [1976] ECR 1871 that the harmonized system of public health inspections, introduced in particular by Directive 64/433, has as its aim the abolition of barriers to intra-Community trade in fresh meat by the harmonization of public health measures. That system, which is based on the principle that the public health guarantees required by all the Member States are equivalent, accordingly has as its purpose to transfer supervision to the exporting Member State and to replace in this way

DELHAIZE FRÈRES / BELGIAN STATE

the systematic measures of protection at the frontier with a uniform system so as to make multiple frontier inspections unnecessary, whilst at the same time giving the Member State of destination the opportunity of ensuring that the guarantees provided by the system of inspections thus standardized are in fact given.

12 The Court also added that, in those circumstances, systematic public health inspections at the frontier carried out on the products referred to in Directive 64/433 were no longer necessary or, consequently, justified under Article 36 of the Treaty and that only occasional inspections were permissible, provided that they were not increased to such an extent as to constitute a disguised restriction on trade between Member States.

13 Those considerations must be extended, for the same reasons, to the products covered by Directive 71/118 on problems affecting trade in fresh poultry-meat.

18 The answer to the question submitted must therefore be that a systematic public health inspection on the occasion of the importation of meat and poultry, carried out in order to ascertain any changes in their condition whilst in transit from the exporting State and their state of preservation on entering the territory of the State of destination, falls within the scope of the public health inspection carried out in the exporting country in accordance with Directives 64/433 and 71/118.

19 In view of that answer the second question, which was submitted only in the event of a negative answer to the first question, no longer serves any purpose.

Costs

20 The costs incurred by the French Government and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber)

H . A. Rühl P . Pescatore Principal Administrator President of the Second Chamber

OPINION OF MR ADVOCATE GENERAL VERLOREN VAN THEMAAT DELIVERED ON 22 SEPTEMBER 1983 1

Mr President, Court of Justice in the context of the Members of the Court, preliminary ruling procedure and in order to avoid prejudicing the national appeal proceedings which are still in 1. The scope of the questions progress, in this opinion I shall go In all the written and oral observations beyond the limits of the questions submitted to the Court only in so far as submitted in these proceedings attention is necessary to ensure that the Court's has for various reasons been given to answer to those questions is properly matters which were not even raised by understood. the national court. In the light of the Court's case-law on the division of tasks Accordingly, I shall begin by recalling between the national courts and the the questions referred to the Court. Read

I —Translated from the Dutch.