C-186/88
ECLI:EU:C:1989:394
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COMMISSION v GERMANY
OPINION OF MR ADVOCATE GENERAL DARMON delivered on 19 October 1989*
Mr President, inspections of an administrative nature to Members of the Court, which all goods crossing the frontier are subject', 2
1. In the present application for a declaration that the Federal Republic of Germany has failed to fulfil its obligations, having first pointed out that the Court is asked to decide whether the German rules in force governing the importation of fresh poultrymeat, which it has already considered in connection with 'only occasional health inspections carried the questions referred to it for a preliminary out by the State of destination are ruling by the Bundesverwaltungsgericht in permissible', 3 the Moormann case, are compatible with Community law.
a 'health inspection' being defined as 2. Following the Court's judgment in that case, 1 the Commission withdrew some of its conclusions, maintaining only the two following complaints: 'any inspection carried out by the importing State in order to establish that the prescribed hygiene requirements were in (i) the import inspections are carried out fact complied with, where such inspection by veterinarians; requires the intervention of a veterinarian or a hygiene expert'. 4
(ii) a prior declaration is required.
The Court added that I shall consider those aspects in turn.
3. With regard to the first point, it must be 'these health inspections must be distin borne in mind that, in its judgment in the guished from general verification that the Moormann case, the Court held that goods transported correspond to the accom panying documents'. 5
'when products covered by Directive 71/118 cross an intra-Community frontier they may be made subject systematically only to the 4. The Court also stated that
* 2 — Paragraph 16 Original language French. 1 — Judemem of 20 September 1988 in Case 190/87 Oberkren- 3 — Paragraph 13. threktor dei Kreneš Borken and Another v Handeiionder- 4 — Paragraph 14 neming Moormann BV[1988] ECR 4689 5 — Paragraph 15
OPINION OF MR DARMON —CASE C-186/88
'the expression "administrative formalities" 7. It must be said that that solution does must be understood as referring to all oper not correspond precisely to the one which I ations which involve the checking of had suggested that the Court should adopt, documents and certificates accompanying since I considered that the concept of the goods and are intended to ensure by 'physical inspection' included any physical simple visual inspection that the goods contact with the goods or the means of correspond to the documents and transport. The visual inspection involved in certificates, where such operations may be the conformity check requires the opening carried out by officials having general of lorries, handling of cases, etc., and authority to inspect goods at the frontier'. 6 therefore seemed, in my view, to extend beyond the concept of 'administrative formalities' within the meaning of Directive 83/643 so as to constitute an inspection 5. The Court then held that which can be carried out solely by means of spot checks, again within the meaning of the directive. That view, apparently, did not 'the expression "physical inspections" must sway the Court. The Commission has modified its action accordingly; it no longer be understood as referring to all inspections claims, as it did in its original action — and of goods which involve physical contact in its observations in the Moormann with them' 7 case — that the conformity check is unlawful in principle.
and that
8. The Commission now asks the Court to '[the term "inspections" in Article 2 of] find that the fact that the inspection is Directive 83/643 must be interpreted as carried out by veterinarians constitutes an meaning that only physical inspections infringement of Community law. within the meaning of Article 1(1) of the directive are to be carried out solely by means of spot checks, and no conclusion can be drawn from that article regarding the 9. I should like to state unambiguously that manner in which administrative formalities I do not believe that the terms of the are to be completed'. 8 Court's judgment in Moormann can provide a firm basis for such a view. In that case, it was held that inspections which require the intervention of a veterinarian or hygiene 6. Those statements may, I think, be expert and inspections which cannot be summarized as follows: the 'conformity carried out by officials having general check' provided for in the German legis authority are contrary to Community law. lation constitutes an administrative formality In other words, the Court took, as a the systematic completion of which is not criterion of lawfulness, the nature or import rendered unlawful either by Directive of the checks themselves rather than the 83/643 or by Directive 71/118, provided type of staff who carry them out. that its nature is such that it may be carried out by officials having general authority.
6 — Paragraph 29. 7 — Paragraph 28. 10. The German legislation, however, 8 — Paragraph 35. provides for systematic inspections intended
COMMISSION v GERMANY
to ensure that the documents correspond to by a Minister of a Land, from which it the goods designated therein, and that might be inferred that the inspections in certain markings have been affixed. Such question go beyond mere conformity measures certainly do not constitute checks. Likewise, but without being able to veterinary inspections the systematic car provide any specific details, the Commission rying out of which is prohibited by the has referred — again for the first time at the effect of Directive 71/118 and of the hearing — to complaints from importers. harmonization achieved thereby. That is the The vagueness of those allegations, raised, solution which the Court has endorsed in its moreover, at that stage in the procedure, judgment in Moormann. renders them insufficient to enable the Court to find that the true nature of the inspections systematically carried out at the frontier goes beyond that of conformity checks. That being so, I propose that the
11. Obviously, the fact that those checks Court should dismiss the application on that are carried out by veterinarians raises the specific point. question whether the fact that the staff used are 'overqualified' is not likely to give rise, under cover of 'conformity checks', to the carrying out of systematic, and not occa 13. I do not consider, on the other hand, sional, veterinary inspections. This is, of that the requirement that importers must course, the crux of the question on which make a prior declaration should escape the the Court must rule and those are the Court's censure. In that regard, I should considerations with which the Commission like first to dismiss the textual arguments is concerned when it asks the Court to find submitted by the German Government. that the Federal Republic of Germany has Despite the ambiguity which may be found failed to fulfil its obligations. in the German version, 9 it cannot be assumed, as it is maintained in the rejoinder, from Article 6a of Directive 83/643, as amended by Council Directive 87/53/EEC
10 of 15 December 1986, that the prior 12. But I have not been able clearly to declaration is lawful. It is clear from all the 11 discern the legal grounds on which the other language versions, which mention Commission relies in support of the 'the necessary documents, checking the argument that Community law prohibits the validity and authenticity thereof and making carrying out of conformity checks by a summary check on the identity of the officials whose qualifications are higher goods declared in such documents, that they than those which would normally suffice. I refer to the description contained in the would, obviously, nevertheless propose that accompanying documents.
There is no the Court should find that the Federal allusion to any prior declaration of Republic of Germany had failed to fulfil its importation. obligations if, in such a situation, it were proven that veterinary inspections were 9 — 'Die summarische Kontrolle der angemeldeten Waren'. 10 — OJ L 24, 27.1.1987, p 33. carried out otherwise than occasionally. 11 — 'Le contròle sommaire de l'identité des marchandises Here, however, the Commission has clearly déclarées dans ces documents'; 'en summarisk Kontrol af not provided the Court with any evidence of identiteten af det disse dokumenter angivne gods', 'el control somero de la identidad de las mercancias such a situation the existence of which, declarados en dichos documentos', 'kai synoptikó èlegxo thw taytóthtaw tvn emporeymatvn poy dhloyntai s'aytá', 'il though it may be suspected, cannot be controllo sommario dell'identità delle merci dichiaretenegli presumed. It has merely referred — and for stessi', 'en een snelle identificane van de in die documenten aangegeven goederen', 'ao controlo sumario da identidade the first time at the hearing — to statements das mercadorias declaradas nesses documentos'
OPINION OF MR DARMON —CASE C-186/88
14. Furthermore, the prior declaration must checks which can be carried out systemat be interpreted as a formality within the ically. The Federal Republic of Germany meaning of Directive 83/643, which cannot admitted at the hearing that the prior therefore serve as a basis for concluding declaration is intended to coordinate the that it is unlawful. But that does not mean carrying out of the checks and did not deny that it cannot be prohibited under other that it might also serve to ensure that veter provisions of Community law — most inarians were present at those frontier posts importantly, by Article 30 et seq. of the EEC where they were not permanently on duty. Treaty. 17. I, for my part, am convinced that no 15. I have no hesitation in considering that valid argument can be based on the need to the requirement of a prior declaration arrange for the presence of 'qualified' staff, constitutes a measure having an effect equi even if it is maintained that the real aim is valent to a quantitative restriction on trade to facilitate the crossing of the frontier, within the meaning of the Court's judgment when the only systematic inspections which in Dassonville:12it does not appear to me to may lawfully be carried out must be capable be possible seriously to call into question the of being carried out by Ordinary' staff. In reality of the restriction of trade to which it other words, the complication of the oper gives rise. ations involved in crossing the frontier caused by the need to organize veterinary 16. And I firmly maintain that such a staff whose level of qualification is higher restriction cannot be justified by the need to than that required for the only systematic arrange for the presence of veterinarians inspections which may lawfully be carried whose qualifications are, in any event, out must be regarded as disproportionate greater than those required for the only and unjustified.
18. I therefore propose that the Court should:
(i) declare that, by requiring a prior declaration for the importation of fresh poultrymeat from other Member States, the Federal Republic of Germany has failed to fulfil its obligations under Article 30 et seq. of the EEC Treaty;
(ii) dismiss the remainder of the application;
(iii) order each of the parties to bear its own costs.
12 — Judgment of 11 July 1974 in Case 8/74 Procureur au Roi v Dassonville [1974] ECR 837.