C-190/87

OBERKREISDIREKTOR DES KREISES BORKEN A N D ANOTHER v MOORMANN

O P I N I O N O F M R ADVOCATE GENERAL D A R M O N delivered on 14 June 1988 *

Mr President, 3. However, the question then arises Members of the Court, whether the measures in question can be justified under Article 36 of the Treaty. In this respect it should be pointed out that the Court has consistently held that recourse 1. In proceedings concerning the compati- may not be had to this provision once the bility with Community law of national sphere in question has been harmonized. 3 provisions requiring systematic inspection on the importation of fresh poultrymeat 4. As regards Community trade in fresh from another Member State, the Bundesver- poultrymeat, which is the subject of waltungsgericht has referred to the Court Directive 71/118, the Court considered in six questions for a preliminary ruling on the its judgment in Delhaize 4that a harmonized interpretation of various instruments of system of health inspections had been secondary law. 1 However, the Court is also introduced. More specifically, that decision requested to state which provisions of the extended to the matter in question the EEC Treaty form the basis for an individual solution adopted in the Simtnenthal case; 5 citizen's right to rely on a directive where indeed, it repeated the following remarks the State to which it is addressed has failed from that case: to fulfil its obligations under that directive.

OPINION OF MR DARMON — CASE 190/87

the Member State of destination the oppor- poultrymeat trade have been harmonized. It tunity of ensuring that the guarantees follows that veterinary inspections may be provided by the system of inspections thus carried out only occasionally. Inspections of standardized are in fact given. 6 documents, even where they are systematic, are not prohibited. In so far as the detailed rules for their completion have not been the The Court also added that, in those circum- subject of harmonizing legislation, I think stances, systematic public health inspections they may derive their justification from at the frontier carried out on the products Article 36. referred to in Directive 64/433 were no longer necessary or, consequently, justified 7. It therefore falls to the national court to under Article 36 of the Treaty and that only determine whether the measures in question occasional inspections were permissible, are 'justified, that is to say necessary for the provided that they were not increased to attainment of [the] objective [pursued]', 1 0it such an extent as to constitute a disguised being understood that they 'may not restriction on trade between Member constitute a means of arbitrary discrimi- States. 7 nation or a disguised restriction on trade between Member States'. 11 More speci- fically, since the matter in question has not Those considerations must be extended, for been harmonized, the indications given in the same reasons, to the products covered the Court's judgment in United Foods 12 by Directive 71/118 on problems affecting concerning certain health inspections may, trade in fresh poultrymeat'. 8 where appropriate, provide guidelines for the consideration of the manner in which documents are checked. However, I would add three comments, having regard to the 5. For the sake of completeness it should be existence of various provisions of secondary added that in the judgment in Simmenthal law. the Court stated that:

OBERKREISDIREKTOR DES KREISES BORKEN A N D ANOTHER v M O O R M A N N

references in the health certificate bears a mark proving that the meat comes correspond to the goods, without possessing from animals slaughtered in approved features which would bring them, in slaughter houses . . . " (my emphasis). substantive terms, within the category of health inspections. In particular, the fact that a veterinarian has to carry out the inspection may be such as to reflect a surreptitious shift towards an unlawful 'grey It would considerably diminish the value of zone'. the certificate if the statements which it contained were to be the subject of systematic verification. 9. Furthermore, although there has been no harmonization of the manner in which documents relating to trade in fresh poul- trymeat are to be checked, it must be borne 10. Finally, there is the question of the in mind nevertheless that the documents possible effects of Directive 83/643 in this themselves are Community documents and matter, but as I wish to observe the order uniform in nature. Directive 71/118 states in adopted by the national court I shall this respect: consider this question at a later stage.

'as regards intra-Community trade, the issue of a health certificate drafted by an official 11. The second question seeks to establish veterinarian of the exporting country is whether the expression 'measure having considered to be the best way of assuring equivalent effect' in Article 11 (2) of Regu- the competent authorities of the country of lation (EEC) No 2777/75 of the Council of destination that a consignment of poul- 29 October 1975 must be interpreted in the trymeat complies with the provisions of this same way as the corresponding expression directive; . . . this certificate must ac- in Article 30 of the EEC Treaty. company the consignment of poultrymeat to the place of destination'. 13

13. Finally, and above all, in the judgments enable [the national court] to decide [the] in the Wigeiu and Leonelli 15 cases various case'. 17 Does this mean, however, that it is aspects of Article 11 (2) of Regulation No necessary to give an interpretation which 123/67 on the common organization of the has not been requested? The legal precision market in poultrymeat (repealed and of the mechanism set up under Article 177 replaced by Regulation N o 2777/75), and the need to ensure that the respective identical in substance to the provision in jurisdictions of the Court of Justice and the question, were interpreted without its even national courts do not encroach on each being envisaged that it could apply to situ- other suggests that in this case it would be ations other than trade with non-member preferable not to do so. countries. I therefore propose that in reply to the question put by the national court it should be stated that the provision in 16. I am led to make a further observation question does not concern intra-Community by the passage in the reasons for judgment trade. of the Bundesverwaltungsgericht in which that Court states that it based its reasoning on the principle of good faith (Treu und 14. By the third question, the national Glauben) contained in Paragraph 242 of the court, according to its own reasons for BGB in order to enable an individual citizen judgment, seeks to rely before the courts on a directive where the State has failed to fulfil its obli- 'to clarify on the basis of which provision of gations thereunder. Without referring in Community law there is a requirement not detail here to the cardinal principles of the to apply a provision of national law on the Community legal system, let me simply note ground that it is incompatible with a that the status and the scope of its rules Community directive'. 16 cannot be derived from rules of national law. Such an approach would weaken simultaneously the autonomy and the unity Two preliminary remarks are called for in of Community law, which is 'independent this respect. of the legislation of the Member States'. 18

OBERKREISDIREKTOR DES KREISES BORKEN A N D ANOTHER v MOORMANN

of Community measures can under no gericht, which expressly refers to the fourth circumstances depend on their conformity sentence (in other words the third with national rules, including constitutional paragraph) of Article 189 and Article 5 of rules, 21 and their effects cannot be based on the Treaty. such rules, whatever their status in the domestic system. It is necessary always to maintain the unity of the law derived from the Treaties. 21. Let me say at once that these two provisions constitute the corner-stone on which the solution to this question rests. 18. Subject to these observations, I shall now try to identify the factors on the basis of which a reply to the question put may be 22. Article 189 provides that directives are given. The decision of the national court, binding on the Member States. Article 5 which examined the established case-law, 22 imposes on them a positive and negative obliges us to review that case-law from a obligation whose scope and complexity have point of view which significantly restricts been analysed as a combination of the prin- the possibilities, in so far as the Court has ciples of good faith and Community loyalty developed the law in this respect without and the duty not to adopt conflicting resigning itself to a literal or formalistic provisions, linked together in a principle of interpretation. cooperation. 23

19. We must therefore bear in mind, first of 23. Consideration of the case-law reveals all, the Court's desire to give full effect to two interrelated themes: the provisions of Community law and to afford individuals complete and effective judicial protection. Even though the national court clearly wishes the Court of (i) the binding effect of directives; Justice to state which textual provision or which Community legal rule provides the basis for the solution in question, the Court's reply must remain within the (ii) the rule that States cannot rely as approach adopted in previous cases. against individuals on their own failure to comply with their obligations.

'It would be incompatible with the binding 26. It should be stressed right away that the effect which Article 189 ascribes to directives possibility for an individual to rely in the to exclude on principle the possibility of the courts on a directive is the exception rather obligations imposed by them being relied on than the rule. It presupposes a 'pathological' by persons concerned; 2 6 context, 35 where the Member State which is bound in any event by the obligation to Particularly in cases in which the achieve the result laid down in the directive, Community authorities have, by means of a fails to implement it or to implement it directive, placed Member States under a correctly. 36 'Only in (these) specific circum- duty to adopt a certain course of action, the stances' 37 may an individual rely on the effectiveness of such an act would be directive. Where a directive is correctly weakened if persons were prevented from implemented by the Member States 38 there relying on it in legal proceedings and is no need to have recourse to what the national courts prevented from taking it into Court has called a 'minimum guarantee'. 39 consideration as an element of Community This possibility has been accurately law. 27 described as the 'reflection', 40 the 'corollary' 41 of the obligation to achieve the Consequently a Member State which has not result set out in the directive, which arises adopted the implementing measures required for the Member State 42 upon notification of by the directive in the prescribed periods may the directive as provided for in Article 191 not rely, as against individuals, on its own of the Treaty, so that it cannot rely on its failure to perform the obligations which the directive entails'. 28

and Kolpinghuis, 32 and the opinions of the 36 — '. .. special problems arise where a Member State has failed to implement a directive correctly and, more particularly, Advocates General 33 set out the key themes where the provisions of the directive have not been implemented by the end of the period prescribed for that leading to that conclusion, based on purpose' (Case 8/81, cited above, at paragraph 20). 37 — Case 102/79 Commission v Belgium [1980] ECR 1473; see also Case 8/81 Becker, cited above, paragraph 19; 'the principle that directives are binding on judgment of 15 May 1986 in Case 227/84 Johnston [1986] the Member States and on the principle that ECR 1651, paragraph 53. a Member State which has not taken 38 — 'Directives are intended to take effect through the adoption of national legislation, although they cannot with impunity measures to implement the directive within be blocked by failure on the pan of the State.' R. Kovar: Observations sur l'intensité normative des directives', Liber the prescribed period may not, as against Amicorum Pierre Pescatore, p. 359, paragraph 5; judgment individuals, plead its own failure to fulfil of 15 July 1982 in Case 270/81 Felicitas Ridtmers-Linie [1982] ECR 2771, at p. 2787, paragraph 26: ' . . . i n this such obligations'. 34 case the effects of the directive can reach individuals through the intermediary of the implementing measures adopted by the Member State concerned. Therefore it is 26 — Paragraph 20, my emphasis. unnecessary to examine the question whether Article 5 (2) 27 — Paragraph 21, my emphasis. meets the conditions which must be fulfilled for individuals to be able to rely upon it before a national court in the 28 — Paragraph 22, my emphasis. event of the directive not being correctly implemented.' 29 — Case 8/81, cited above. 39 — Commission v Belgium, cited above. 30 — Judgment of 4 December 1986 in Case 71/85 [1986] ECR 40 — P. Pescatore: L'effet des directives communautaires: une 3855. tentative de démythification, Dalloz (1980), p. 171, in 31 — Judgment of 24 March 1987 in Case 286/85 [1987] ECR particular p. 175; Y. Galmot and J.-C. Bonichot, op. cit. 1453, at paragraph 12. 41 — Ibid. 32 — Judgment of 8 October 1987 in Case 80/86 [1987] ECR 42 — And arises with regard to the State exclusively: judgment 3969. of 26 February 1986 in Case 152/84 Marshall [1986] ECR 33 — See the Opinion of Mr Advocate General Reischl in Ratti, 723; judgment of 12 May 1987 in Joined Cases 372 to cited above, and the Opinion of Advocate General Sir 374/84 Traen and Others [1987] ECR 2141; judgment of Gordon Slynn in Becker, cited above. 11 June 1987 in Case 14/86 Pretore di Salò [1987] ECR 34 — Case 286/85, cited above, paragraph 12, my emphasis. 2545.

29. In the first place, certain clarifications 31. The distinction between inspections and are called for regarding the scope of this formalities should in my view be as follows. directive inasmuch as, according to Article If there is any physical contact whatsoever 1, it applies 'without prejudice to individual with the goods or the means of transport by provisions in force in the framework of means of a check which may entail the general or specific Community rules . . . '. opening of lorries, handling, taking of On the basis of this provision, the German samples, scraping of the product and so on, Government argues that the directive, in it will amount to an inspection. On the particular Article 2, 'takes precedence' over other hand, the simple examination of documents and a request for information 43 — Pescatore, op. cit., p. 176. concerning the circumstances of the 44 — See Vlad Constantinesco, op. cit., p. 109 et seq. 45 — Case 14/83 Von Cohan [1984] ECR 1891, at p. 1909, in transport will constitute formalities. relation to another possibility, in which it was stated, and I consider it worthwhile to cite this passage: ' . . . the Member Sutes' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article5 of the Treaty to take all appropriate measures, 32. In the light of this distinction, I propose whether general or particular, to ensure the fulfilment of that the Court should hold that the obli- that obligation, is binding on all the authorities of Member States, including, for matters within their jurisdiction, the gation to declare the goods and the exam- courts', (paragraph 26); see also judgment of 10 April 1984 ination of the documents accompanying in Case 79/83 Harz [1984] ECR 1921, at paragraph 26; Case 222/84 Johnston, cited above, at paragraph 26. them constitute formalities. However, verifi- 46 — Pescatore, op. cit. cation that the goods indicated in the

33. The last question seeks to establish 35. In these circumstances it must be whether, first, the meaning of the term concluded that the directive has not ruled 'inspection' in Article 2 of the directive is out the possibility of the systematic impo- identical to its meaning in Article 1 and, sition of such formalities. However, a consequently, whether administrative further comment is called for: although the formalities are subject to the restriction laid systematic imposition of administrative down in Article 2, namely that they be formalities is not prohibited under the carried out only in the form of spot checks. directive, that does not mean that all the formalities required to be completed are ipso 34. Although Article 2 refers to facto lawful from the point of view of 'inspections', whereas Article 1 speaks of Community law. In this respect I would 'physical inspections', no great significance refer to my observations concerning the first can be attached to this difference. Indeed, it question.

36. C o n s e q u e n t l y , I propose t h a t the C o u r t should hold as follows:

'(1) P r o c e d u r e s for systematic i m p o r t inspections in i n t r a - C o m m u n i t y t r a d e in fresh p o u l t r y m e a t constitute measures having an effect equivalent to quanti- tative restrictions within the m e a n i n g of Article 30 of the E E C T r e a t y w h e r e they involve:

(a) the obligation for the i m p o r t e r t o declare p r o m p t l y all the g o o d s which he is importing to a national customs office responsible for carrying o u t import inspection;

(2) Article 11 (2) of Regulation N o 2777/75 does not concern intra-Community trade but trade with non-member countries.

(3) An individual citizen's right to rely on a directive before the Courts as against a Member State which has not fulfilled the obligations laid down in that directive within the prescribed period is based on Article 5, the third paragraph of Article 189 and Article 191 of the EEC Treaty.

(4) The measures described above under (d) and (e) constitute physical inspections within the meaning of Article 1 of Directive 83/643.

(5) The measures described under (a), (b) and (c) constitute administrative formalities within the meaning of that article.

(6) The meaning of the term "inspection" in Article 2 of Directive 83/643 is identical to its meaning in Article 1 of that directive; it follows that the rule that inspections may be carried out only in the form of spot checks does not concern administrative formalities within the meaning of Article 1 of the directive.'