C-304/88

COMMISSION v BELGIUM

OPINION OF MR ADVOCATE GENERAL DARMON delivered on 20 March 1990 *

Mr President, with regard to the species to which it Members of the Court, applies. Member States may therefore no longer rely on Article 36; they may merely examine the certificate issued by the official veterinarian of the exporting State and, possibly, carry out spot checks, without 1. In these Article 169 proceedings against prejudice to the application, where appro- the Kingdom of Belgium, the Commission priate, of the safeguard provisions in Article seeks a declaration that a system requiring 9 of the directive. The completeness of that prior authorization for the importation system precludes any requirement of import of live animals is incompatible with authorizations, even if they are issued auto- Community law. It had initially also sought matically. a declaration concerning that system as it applied to imports of meat, but withdrew that head of claim at the hearing following the adoption of an amendment of the Belgian legislation during the course of the 4. The Belgian Government maintains, first procedure. of all, that the authorization in issue does not introduce any health inspection or restriction of intra-Community trade over and above the health inspection provided for in Directive 64/432. The authorization 2. A distinction must be drawn between the system is, moreover, intended to make up requirement of a prior import authorization for the absence of any harmonized infor- for bovine animals and swine and the mation system within the framework of requirement of a prior import authorization Directive 64/432. Until such a system is set for other animals, in particular sheep, goats, up, the Belgian arrangements will remain poultry and solipeds. In the first case, the necessary in order to achieve two objectives: Commission claims that Belgian law is incompatible with Directive 64/432/EEC, 1 while in the second it alleges an infringement only of Article 30 of the (i) to inform the importer that importation Treaty. I shall consider the two cases in is not prohibited on health grounds; turn.

The fact that an import authorization may 8. It then explained that be issued automatically does not, therefore, exempt it from the prohibition in Article 30 of the Treaty. 'Article 6 of Directive 64/432 (animals) allows the country of destination to prohibit the introduction of bovine animals into its 6. If, as the Commission contends, the territory if an examination made at the harmonization achieved in this field is frontier post by an official veterinarian complete, the Kingdom of Belgium may no reveals that the animals are affected by, or longer rely on Article 36 and must confine suspected of being affected by, or of being itself to the procedures laid down in contaminated by a compulsorily notifiable Directive 64/432. disease or that the provisions of Articles 3 and 4 have not been observed;

7. Let us first consider the Court's analysis … ; in Simmenthal 4 with regard to Directive 64/432. After pointing out that the approxi- mation of national legislation consisted Furthermore the same provision with a view 2 — Judgment in Case 124/81 Commission v United Kingdom to facilitating these inspections permits each [1983] ECR 203, paragraph 9, emphasis added. 3 — Ibidem, paragraph 10. 4 — Judgment in Case 35/76 Simmenthal SpA v Italian Minister 5 — Ibidem, paragraph 27. for Finance [1976] ECR 1871. 6 — Ibidem, paragraph 29.

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Member State to designate the frontier posts appears, therefore, to be contrary to the to be used for the introduction of the very system of that directive. animals into its territory, and to require advance notification of the entry of such animals'. 7 11. But Belgium justifies the authorization system in issue by pointing out inter alia that there is no 'harmonized information system' in the directive. 9. The Court concluded that

it follows that systematic veterinary and public-health inspections at the frontier of 14. In that connection, it refers to the ex- the products referred to in the directives planatory memorandum prefacing the mentioned above are no longer necessary proposals for regulations 9 concerning or, consequently, justified under Article 36 veterinary checks in which the Commission as from the latest dates specified in the proposes inter alia that veterinary checks at directives for the entry into force of the internal frontiers should be eliminated. With national provisions which are necessary in that in view, the Commission states that this order to comply with the said directives'. 8 general approach 'implies recourse to and the development of a mutual information system', from which the Kingdom of Belgium concludes that the information system is not harmonized as the law now 10. Those extracts show unambiguously stands. that Directive 64/432 has brought about complete harmonization of intra- Community trade in bovine animals and swine. Any system of import authorizations 15. I cannot find that argument convincing. established unilaterally by Member States Perusal of the document in question reveals that it envisages a modification of all the 7 — Ibidem, paragraphs 30 and 32. emphasis added 8 — Ibidem, paragraphs 35 and 36 9 — COM(88) 383 final.

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18. The Belgian Government's arguments clearly ignore the overall balance of the Such a system therefore constitutes a serious draft regulation in question. They in no way infringement of the principle of free prove that Directive 64/432 is incomplete as movement of goods, and the principle of regards the information to be provided to proportionality is, in my view, totally the State of destination. ignored if, as the Belgian Government claims, the aim of the system is to inform importers inter alia that the importation is not prohibited and to record information of 19. Finally, the justification of the import an administrative nature. authorization by the check required under Directive 81/389/EEC11 is entirely irrelevant. The sole aim of that directive is 23. The disproportion between those aims 10 — See, in that connection, Anicle 14(2) of the proposal for a and a system of authorizations is obvious. regulation. Doubt may even be cast on the relevance of 11 — Council Directive 81/389/EEC of 12 May 1981 estab- lishing measures necessary for the implementation of Directive 77/489/EEC on the protection of animals during 12 — Case 124/81 Commisíion v United Kingdom, cited above, international transport (OJ L 150, 6.6.1981, p. 1). paragraph 18.

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the system: does it not purport, in the final certificates issued in the exporting Member analysis, to inform the importer of a right State, would undoubtedly suffice to enable which he enjoys under Article 30 of the the importing M e m b e r State to obtain the Treaty? Moreover, as the Court has already information which is of use to it. It is thus held, 13 measures less restrictive of trade, clear that, under this head too, Belgium has such as the completion of a declaration by failed to fulfil its obligations. the importer or the production of the