C-116/86
ECLI:EU:C:1987:420
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O P I N I O N OF M R M I S C H O — CASE 116/86
OPINION OF MR ADVOCATE GENERAL MISCHO deliveredon 1 October 1987*
Mr President, States by the third paragraph of Article 189 Members of the Court, of the EEC Treaty. 4
4. It is in the light of those principles that I 1. In this case, the Court is called upon to now wish to consider whether the Italian decide whether the Italian Republic has Republic has correctly transposed Directive correctly implemented Council Directive 79/109/EEC into national law. 7 9 / 1 0 9 / E E C 1 of 24 January 1979 amending as regards brucellosis Directive 64/432/EEC. 2 5. Let me point out first that during the oral procedure the defendant's Agent admitted that the killed 45/20 adjuvant 2. As the Court has already held, the trans- vaccine referred to in the second indent of position of a directive into domestic law Annex A (II) (A) (2) (b), inserted in does not necessarily require that its Directive 64/432 by Article 6, has not yet provisions be incorporated formally and been registered in Italy and that that verbatim in express, specific legislation; a provision has therefore not been transposed general legal context may, depending on the into national law. content of the directive, be adequate for the purpose provided that it does indeed 6. The other problems raised by this case guarantee the full application of the may be grouped under two headings, directive in a sufficiently clear and precise namely the provisions contained in the manner so that, where the directive is administrative circulars and the rules applied intended to create rights for individuals, the to animals imported from other Member persons concerned can ascertain the full States. extent of their rights and, where appro- priate, rely on them before the national A — The provisions contained in the admin- courts. 3 istrative circulars
7. It can be seen from the information 3. On the other hand, mere administrative provided by the Italian authorities and in practices, which by their nature may be particular, from the table drawn up by them changed as the authorities see fit and which at the Court's request that the amendments lack appropriate publicity cannot be to Directive 64/432 contained in the regarded as constituting a valid implemen- following articles of Directive 79/109 have tation of the duty imposed on Member been the subject of Administrative Circulars N o 65, of 16 April 1973, No 25, of 23 June * Translated from the French. 1 — Official Journal L 29 of 3 February 1979, p. 20. 1981 and No 32, of 30 April 1986: 2 — Council Directive 64/432/EEC of 26 June 1984 on animal health problems affecting intra-Community trade in bovine 4 — See, in particular, the judgment of 15 December 1982 in animals and swine, Official Journal, English Special Case 160/82 Commission v Kingdom of the Netherlands Edition 1963-64. p. 164. [1982] ECR 4637, paragraph 4; the judgment of 15 March 3 — Judgment of 23 May 1985 in Case 29/84 Commission v 1983 in Case 145/82 Commission v Italian Republic [1983] Federai Republic of Germany [1985] ECR 1661; judgment ECR 711, paragraph 10; and more recently, the judgment of 9 April 1987 in Case 363/85 Commission v ¡talian of 15 October 1986 in Case 168/85 Commission v Italian Republic [1987] ECR 1733, paragraph 7. Republic [1986] ECR 2945, paragraph 13.
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Article 5: subparagraph (ii), second indent; 11. However, the description of the method does not appear in the ministerial decree but in Circular No 25 of 23 June 1981. The Article 7: paragraph (c), first indent; Commission takes note of that fact but it has not told the Court whether it considers that to be sufficient. However, that appears Article 8; to be its view because it made no further mention of Article 9 at the hearing.
Article 9: Section D.
12. I admit that it could be asked if it is 8. It was said at the hearing that the really necessary for the technical definition circulars involved are secundum legem and of a method of analysis to be transposed by not contra legem. However, besides the fact a law or regulation or whether a circular that the Court has never to my knowledge would not be sufficient for the purpose. accepted such a distinction, it can be seen Those methods are used only by approved from a close reading of the provisions at laboratories or official veterinarians and not issue that they either amend the basic by traders. directive (64/432/EEC) directly or permit alternative tests to be carried out which were not provided for in that directive, which amounts to amending it. 13. On the other hand, however, as the Court had said in previous decisions, circulars may be changed as the authorities 9. The 1964 directive was transposed into see fit and therefore do not provide all the the Italian legal order by a law, namely Law guarantees of legal certainty. It should also N o 397 of 30 April 1976 (published in the be noted that the descriptions of methods of GURI of 11 June 1976, N o 153). The analysis to be found in the annex to the provisions of Directive 79/109/EEC must basic 1964 directive were published in Italy therefore be transposed in domestic as an annex to the Law of 30 April 1976. provisions of the same legal rank as those which they are intended to amend (judgment of 6 May 1980 in Case 102/79 Commission v Belgium [1980] ECR 1473, at 14. It therefore seems to me that the new p. 1486, paragraph 10). method of analysis, which has the same status as that published in 1976, should also be transposed into domestic law by a legis- 10. I must however admit that Section D, lative provision. inserted by Article 9, is a borderline case. That article supplements Annex C to Directive 64/432/EEC by adding thereto a description of three methods of analysis or 15. To sum up, therefore, I propose that tests only one of which has been adopted in the Court should follow its previous Italy under the option which Member States decisions and hold that the articles have in that regard. The test in question is mentioned above have not been transposed the buffered brucella antigen test (to be adequately and definitively into national law found in Section D, inserted by Article 9), and that the Italian Republic has failed to made applicable in Italy by the Ministerial fulfil its obligations under the EEC Treaty Decree of 15 April 1981. in that regard.
OPINION OF MR MISCHO —CASE 116/86
B — The application of the provisions of the 20. The Commission also mentions Article 3 directive to animals imported from other of Directive 79/109/EEC. That article Member States amends Annex A (II) (A) (1) of Directive 64/432/EEC which defines the circum- stances in which 'bovine animals and herds are to be considered brucellosis-free'. 16. The Commission considers that in regard to certain rules which have been put into effect in Italy concerning the checks to be carried out on animals bred in Italy, or 21. Whereas under the former version of which did not need to be put into effect in paragraph (c) (i) of that section, the sero- the national territory because the Member agglutination method could be replaced States had an option in that regard, Italy only by three ring-tests, it can now also be none the less ought to have adopted an replaced by a bufferred brucella antigen test. express provision to the effect that the importation of animals tested in accordance with the rules of the country from which they come must be allowed. 22. As I have already pointed out, that new method was made applicable in Italy by the Ministerial Decree of 15 April 1981. However, the Commission claims that that 17. The first problem is the failure to Ministerial Decree carries the title 'National introduce the concept of 'region'. Article 1 prophylactic plan to combat bovine of Directive 79/109/EEC amended Article brucellosis' and that the provision in 2 of Directive 64/432/EEC by introducing question applies only to imports. that new concept into it.
18. Article 2, read together with Article 4 of 23. Finally, Article 5 of Directive Directive 79/109/EEC, makes it possible, 79/109/EEC introduced in Annex A (II) under certain conditions, to simplify the (A) (1) (c) (ii) and (iii) four serological tests brucellosis tests to be carried out in 'a part which may be used according to choice. of a Member State comprising several Italy, in the Ministerial Decree of 15 April adjacent regions'. For that to be possible, 1981, adopted, for the purposes of checks the Commission must adopt a decision in carried out on its national territory, the accordance with the opinion of the standing sero-agglutination test or the brucella veterinary committee (procedure laid down antigen test. It did not provide for the use in Article 12 of Directive 64/432/EEC, of the plasmo-agglutination test or the inserted by Directive 71/285/EEC, Official plasma ring-test. Journal, English Special Edition 1971 (II), p. 649).
24. If I correctly understand the Commission's point of view, it argues that 19. The Commission considers that, as it Italy should have expressly provided in a now stands, the Italian legislation does not law or regulation that the importation of permit the importation of animals from a bovine animals tested by one of the two part of the territory of another Member methods not provided for in regard to tests State in which the tests have been thus carried out within the country should none simplified. the less be permitted.
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25. However, I am not convinced by the tested in accordance with rules identical in Commission's argument on that point and I every respect to those adopted for testing in would like to refer in that regard to Italian Italy, even in areas in which the directive Law N o 397 of 30 April 1976, to which I leaves the Member State an option. have already referred, which implemented Directive 64/432/EEC. According to Article 29. That impression could be reinforced by 11 of that law, 'bovine animals and swine penultimate paragraph of Administrative sent to Italy from other Member States of Circular N o 32 of 30 April 1986, which the European Economic Community must states that 'the provisions laid down in provide the same guarantees in regard to respect of brucellosis for bovine animals health as those prescribed in the case of shipped from Italy to the European shipment from Italy to other Member Economic Community also apply to bovine States. However, the said animals must be animals for breeding or production presented for the veterinary check carried imported from other Member States'. out at the frontier and be accompanied by certificates conforming to models I to IV set out in Annex F, drafted in the Italian 30. In my opinion, however, such a language'. conclusion is not necessarily correct because: 26. According to Article 15 of the abovementioned law, 'veterinarians assigned (i) by the Commission's own admission, to the frontiers shall prohibit the intro- there has hitherto been no obstacle t o duction into Italian territory of bovine trade (with regard to the consequences animals and swine coming from other of the absence of practical difficulties Member States of the European Economic see the judgment of 10 July 1986 in Community: Case 235/84 Commission v Italy [1986] ECR 2291, paragraph 14);
(a) if the animals are affected by, or (ii) the provisions of the law must take suspected of being affected by, or of precedence over the terms of the being contaminated by a contagious circular; disease;
(iii) the law, by using the expression 'the (b) if the examination carried out at the same guarantees' must be interpreted as frontier reveals that the guarantees meaning that any test carried out in the which the certificate is intended to country of origin which is in provide have not been provided in accordance with the directive fulfils respect of those animals.' that condition;
27. What conclusions may be drawn from (iv) the Operational' part of the law of those measures? 1976 is constituted by Article 15 thereof which sets out restrictively the 28. The general statement of principle that grounds on which access to Italian 'animals sent to Italy ( . . . ) must provide the territory may be prohibited. same guarantees in regard to health as those prescribed in the case of shipment from Italy 31. It is true that the said Article 15 is not to other Member States' could give rise to worded in exactly the same terms as Article the belief that Italy allows on to its territory 6 (3) of Directive 64/432/EEC, which reads only animals from herds which have been as follows:
OPINION OF MR MISCHO — CASE 116/86
'Each country of destination may prohibit 35. Furthermore, Directive 64/432/EEC the introduction of bovine animals and provides that animals being exported must swine into its territory if an examination be accompanied by health certificates. The made at the frontier post by an official models for those certificates annexed to the veterinarian reveals: Italian law conform to those provided for under the abovementioned directive, as amended by Directive 71/285/EEC of 19 July 1971 (Official Journal, English Special (a) that the animals are affected by, or Edition 1971 (II), p. 649). suspected of being affected by, or of being contaminated by a compulsorily notifiable disease; 36. In my opinion, it follows from the abovementioned articles of the Italian law and from the way in which the health (b) that the provision of Articles 3 and 4 certificates are drafted that a veterinarian have not been observed as regards these employed by the Italian administration animals'. cannot refuse to permit the entry into the national territory of animals coming from a 'part of a Member State composed of several adjacent regions' (Article 2 of the 32. According to the directive, the 1979 directive) in respect of which the tests 'examination made at the frontier post' have been simplified or which have been concerns both hypotheses (a) and (b), tested by one of the methods not adopted in whereas in the Italian law that examination Italy. is concerned only with subparagraph (b). However, it is difficult to imagine that an Italian official veterinarian could conclude 37. The health certificates do not mention that animals were contaminated without the concept of 'region' but merely that of having examined them. 'an officially brucellosis-free bovine herd' or 'a brucellosis-free bovine herd'.
33. Furthermore, subparagraph (b) of the Italian law is more restrictive in scope than 38. It is when a herd may be so described subparagraph (b) of the directive, which that the concept of 'region' or the covers all cases in which the examination application of an alternative method of carried out revealed that the provisions of analysis comes into play. However, it is Articles 3 and 4 of the directive had not clear than an Italian veterinarian cannot do been observed. The Italian law, on the other anything other than accept the assessment hand, appears to refer only to cases in made in that regard by the veterinarian in which the certificate contains omissions or the exporting country. errors. 39. The entire system is clearly based on the principle of mutual confidence between 34. In any event, to my knowledge, the official departments. conformity of the abovementioned provisions of the Italian law with those of Directive 64/432/EEC has never been 40. That follows in particular from the contested by the Commission. It is therefore seventh recital in the preamble to the basic possible to suppose that that law has not directive (64/432/EEC), which reads as provoked criticism. follows :
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'. . . so that Member States may be sure that and a complement fixation reaction (Article these requirements are satisfied, provision 3 (4), as amended by Directive must be made for the issue by an official 71/285/EEC). veterinarian of a health certificate which will accompany the animals to their desti- 44. Those two types of test are the only nation'. ones mentioned on the health certificates. Both were brought into effect in Italy by the Law of 30 April 1976. 41. The certificate thus constitutes a sort of presumption of health which may be 45. It therefore seems to me that it is not rebutted only by the result of an exam- possible for an Italian veterinary official, ination carried out at the frontier. unless he infringes the law of his own country, to refuse to permit the importation of an animal into the national territory on 42. It should also be noted that in addition the ground that the animal has come from a to tests which permit a herd to be classified 'part of a Member State composed of as Officially brucellosis-free' or several adjacent regions' in which the tests 'brucellosis-free', Article 3 of Directive have been simplified or from a herd tested 64/432/EEC provides that animals intended by one of the methods of analysis newly to be exported must undergo additional introduced by Directive 79/109/EEC. tests during the 30 days before loading. 46. It may therefore be concluded that even in its present state, the Italian legislation 43. With regard to bovine animals, the test does not prevent the directive from involved is a sero-agglutination test (Article achieving the desired result in regard to 3 (3) (c), as amended by Directives importations into Italy. That is confirmed by 66/600/EEC and 71/285/EEC) and, in the fact that no difficulty has arisen in regard to swine, a sero-agglutination test practice.
Conclusion
47. F o r all the reasons set o u t above, I propose that the C o u r t should hold that, by failing to a d o p t within the prescribed period the provisions needed t o comply with the second indent of subparagraph (ii), contained in Article 5, the second indent of p a r a g r a p h (b), contained in Article 6, the first indent of p a r a g r a p h (c), contained in Article 7, the provisions contained in Article 8 and Section D , contained in Article 9 of Council Directive 7 9 / 1 0 9 / E E C of 24 J a n u a r y 1979 a m e n d i n g Directive 6 4 / 4 3 2 / E E C as regards brucellosis, the Italian Republic has failed to fulfil its obligations u n d e r the T r e a t y .
For the rest, the application should be dismissed.
Since the Commission has been successful only in part, I w o u l d p r o p o s e that the C o u r t o r d e r it to bear o n e - t h i r d of the costs.