C-332/88
ECLI:EU:C:1990:101
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OPINION OF MR TESAURO — CASE C-332/88
O P I N I O N OF MR A D V O C A T E GENERAL TESAURO delivered on 7 M a r c h 1990*
Mr President, its adoption. If so requested, the reasoned Members of the Court, decision must be communicated to him forthwith in writing with an indication of what appeals against it are open under current legislation and the form and time- 1. In the present proceedings for a limits in which they must be commenced. preliminary ruling under Article 177 of the EEC Treaty, the tribunal de commerce (Commercial Court), Quimper, has submitted a question on the interpretation With respect to the decisions adopted under of Article 10 of Council Directive Article 9(1), Article 10 provides that each 71/118/EEC of 15 February 1971 on health Member State is to grant to the consignor problems affecting trade in fresh poultry- concerned the right to obtain the opinion of meat. ' a veterinary expert who is a national of a Member State other than the exporting country or country of destination. The expert must have an opportunity to 2. The legislative background is as follows. determine whether the conditions laid down The Council directive just cited, which has in Article 9(1) are satisfied before the been amended several times, in particular by competent authorities take any other Council Directive 75/431/EEC of 10 July measures such as destroying the meat. 1975, 2 lays down rules concerning the health aspects of domestic and intra- Community trade in fresh poultrymeat.
The last paragraph of Article 10 requires the Commission, acting on a proposal from the Article 9(1) of the directive confers in Member States, to draw up a panel of particular on each Member State the right veterinary experts who may be instructed to to prohibit on its territory the release into formulate such opinions and, after free circulation of fresh poultrymeat from consulting the Member States, to lay down another Member State if at the time of the general rules applicable in particular to the health inspection carried out in the country procedure for formulation of the opinions. of destination it is found that the meat is unfit for human consumption.
3. The facts are as follows. In May 1987 Doux SA entered into a contract with Pursuant to Article 9(3), any decision Alimenta SA for the supply of a number of imposing such a prohibition must be chickens. communicated to the consignor or his representative together with the reasons for
* Original language: Italian. 1 — OJ, English Special Edition 1971 (I), p. 106. After despatch from France, the goods were 2 — OJ 1975, L 192, p. 6. seized at the port of Piraeus because they
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were found to be, in the opinion of the indication that the consignment mentioned representative of the Greek veterinary auth- above is not certified in conformity with orities, unfit for human consumption. That Directive 71/118/EEC', having regard to decision was subsequently confirmed by two the fact that the Greek authorities took the committees made up of three and five opposite view. veterinary experts respectively.
A more detailed account of the legislative Doux was then authorized, pursuant to background and of the facts of the case is Article 10 of Directive 71/118, to request given in the Report for the Hearing, to the opinion of a veterinary expert on the which I refer the Court. aforesaid panel. The expert in question examined the goods and concluded that there were no grounds for not declaring them to be in conformity with the requirements of the directive. 4. I shall start by saying that, contrary to what was suggested in the observations submitted by the parties to the main proceedings and by the Greek Government, it is not my intention to enter into an exam- The Greek authorities, to whom that ination of the merits of the opinions issued opinion was notified, nevertheless confirmed by the Greek veterinary authorities and the the earlier seizure and thus prevented the veterinary expert appointed under the marketing of the goods. provision of which an interpretation is sought in these proceedings.
Legal proceedings were then commenced against Doux by Alimenta, which claimed When called on to give a ruling under compensation for the damage suffered as a Article 177 of the EEC Treaty, the Court result of failure to supply the goods. In has no jurisdiction to apply the Community response, the defendant objected that it had provision concerned to a specific case but fully discharged its obligations under the must confine itself to giving the national contract of sale, contending in particular court, on the basis of the information that Article 10 of the directive in question contained in the file on the case, the infor- was binding on the national authorities, so mation necessary to allow it to decide the that it could not be accused of any breach dispute. 3 of contract.
Furthermore, the question submitted by the Considering that the decision to be given in national court is correctly formulated in the dispute might depend on the interpre- general terms concerning the legal effect of tation of Article 10 of Directive 71/118, the the opinion, without touching on the merits tribunal de commerce, Quimper, stayed the of the opinion itself. proceedings and asked the Court for a ruling on the legal effect of the opinion of 3 — See judgments of 11 July 1985 in Case 137/84 Ministere the veterinary expert appointed under public v Mutsch [1985] ECR 2681, paragraph 6. and of 26 January 1977 in Case 49/76 Gesellschaft fitr Überseehandel v Article 10, according to which 'there is no Handelskammer Hamburg [1977]ECR 41, paragraph 4
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OPINION OF MR TESAURO — CASE C-332/88
5. With regard, on the other hand, to the By using those words, it seems to me that specific problem of interpretation involved the legislature merely sought to make it in this case, it must be emphasized in the clear that the Member State must allow the first place that Article 9 of the directive in expert to make the necessary inquiries and, question expressly reserves to the Member rather than determine the final and irre- States the right to prohibit the release into futable position, to arrive at his own circulation within its territory of meat which conclusion, particularly in the event of its is found to be unfit for human consumption. becoming necessary to order subsequent destruction of the meat.
It is also true that Article 10 of the directive, for its part, provides that the importer is It also seems logical to conclude that, if the entitled, in the event of a dispute, to obtain legislature had wished to make the opinion the opinion of a veterinary expert. in question final, as is claimed, such an However, that provision says nothing about important intention would have had to the legal effect of such an opinion and still appear much more clearly from the text of less does it contain anything to show that the directive. such an opinion is to prevail over any differing assessment by the health auth- orities of a Member State. In other words I do not consider that in the present case we are dealing with a lacuna in the text which the Court, as interpreter, must fill. On the contrary, if the legislature It should also be noted that, in the did not specifically indicate that the opinion procedure provided for under Article 10, the referred to in Article 10 was to be binding Commission's role is limited to drawing up on the national authorities, that was simply the panel of veterinary experts proposed by because it did not wish to attribute that the Member States and that such expert as effect to the opinion. may from time to time be consulted is to be chosen directly by the trader concerned, who must also bear the expenses associated with the report. It should then be borne in mind that, in the event of a Member State making use of the right to prohibit imports conferred on it by Article 9 of the directive in an abusive or Nor does it seem to me that sufficient discriminatory manner, creating unjustified support for the interpretation of the obstacles to trade, the usual remedies provision in question advocated by the provided for in the Treaty and in the plaintiff in the main proceedings is to be national legal systems themselves would be found in the wording of the first paragraph available. More particularly, the of Article 10, according to which each Commission could initiate the Treaty- Member State is to ensure that, before the infringement proceedings provided for in competent authorities take any other Article 169 of the EEC Treaty and the measures such as destroying the meat, the aggrieved trader could have recourse to the expert has an opportunity to determine national judicial authorities, possibly relying whether the conditions of Article 9(1) are on the direct applicability of Article 30 of fulfilled. the Treaty.
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6. Before concluding, I should like however settlement of the dispute without recourse to reply to an objection raised by the to legal proceedings; moreover, the opinion plaintiff in the main proceedings that any may certainly be an important factor, if not interpretation of the provision at issue necessarily the decisive one, in enabling any which did not uphold the binding nature of court before which the matter may be the opinion provided for in Article 10 would brought to make its assessment; and finally, deprive that provision of any useful effect. it may provide the Commission with important information concerning the possi- bility that the measures adopted by the national authorities might be discriminatory, for the purpose of deciding whether to commence infringement proceedings under That assertion is, in my opinion, without Article 169 of the EEC Treaty. Moreover, foundation. Even if it is not binding on the that eventuality actually materialized in the national authorities, the expert's opinion present case since, as the Commission itself continues to be of specific benefit from stated at the hearing, it took the view, on many points of view. In the first place, the basis in particular of the conclusions precisely because it is issued by an expert reached by the expert, that the measures who is of a nationality different from that of adopted by the Greek authorities were the directly interested parties and has no unjustified and it sent a letter to the Greek connection with the dispute, the opinion Government formally calling for its obser- may prompt the parties to review their vations, followed by a reasoned opinion on positions, thus fostering the possibility of 28 September 1989.
7. For the foregoing reasons, I therefore propose that the C o u r t give the following answer to the question submitted to it by the tribunal de commerce, Q u i m p e r :
'Article 10 of Council Directive 7 1 / 1 1 8 / E E C , properly construed, means that the opinion issued by the veterinary expert referred to in that article is not binding on the national authorities of the M e m b e r States.'
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