C-169/89

1. The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) has referred to the Court the following question 2. The Hoge Raad der Nederlanden has for a preliminary ruling: submitted that question concerning the interpretation of Article 36 of the EEC Treaty in connection with the criminal 'May the prohibition applicable in the proceedings instituted against Gourmetterie Netherlands by virtue of Article 7 of the Van den Burg BV (hereinafter referred to as Vogelwet (Law on Birds) 1936 on the 'Van den Burg') whose registered office is importation and keeping of red grouse, shot in The Hague. and killed in the United Kingdom without any breach of the law applicable in that country, be regarded as a prohibition which is justified under Article 36 of the EEC Treaty on grounds of the protection of health and life of animals, regard being had to the fact that: Van den Burg is a trader in poultry and game. In December 1984 it was reported to the authorities for offering for sale dead red grouse originating in the United Kingdom. in the first place, the exception referred to It was prosecuted on the ground that red in Article 6(2) of the Directive of the grouse are protected under the Vogelwet Council of the European Communities of 2 (Law on Birds), which has been in force in April 1979 (79/409/EEC) applies to red the Netherlands since 1936 and therefore grouse, which are referred to in Annex III/1 greatly predates the entry into force of the to the directive as the Lagopus lagopus EEC Treaty. Article 1(2) of the Vogelwet scoticus; 1936 defines 'protected birds' as meaning 'all birds which belong to one of the species of birds occurring in the wild state in secondly, the purpose of the prohibition laid Europe, except for tame pigeons, tame mute down in Article 7 of the Vogelwet is the swans and the birds referred to in Article 2 preservation of wild birds and in particular of the Jachtwet (Law on Hunting)'. Article the protection of all species of birds 5 of the Vogelwet 1936 imposes a occurring in the wild state in Europe, prohibition on 'killing, attempting to kill, subject to certain exceptions which do not, capturing or attempting to capture protected however, include the red grouse?' 1 birds'. Article 7 prohibits the 'keeping, offering to purchase, purchase, offering for * Original language: Dutch. sale, sale, delivery, transport, offering to 1 — Lagopus lagopus scoticus. Apart from this quotation, the transport, import, transit or export' of such term 'red grouse' will henceforth be used in accordance birds. Article 28 makes infringements of with the terminology employed in the relevant provisions of Community law. those prohibitions punishable offences.

3. It should be possible to find a relevant rule of Community law in Council Directive 2. The species referred to in Annex II/1 79/409 of 2 April 1979 on the conservation may be hunted in the geographical sea and of wild birds; 2 in the third recital to the land area where this directive applies.' preamble thereto, it is stated, with regard to migratory birds occurring in the wild state, that they constitute a common heritage of the Member States. As has been stated in the written obser- vations, it cannot be inferred from the provisions of the directive that it is forbidden to kill and/or trade in red grouse. Article 14 of the directive in fact provides That directive on wild birds imposes on the that: Member States a number of obligations with regard to different bird species. The red grouse is referred to in Annexes 11/1 and III/1. This means that a number of articles in the directive apply to it. According to 'Member States may introduce stricter Article 6(2) 'the sale, transport for sale, protective measures than those provided for keeping for sale on the offering for sale of under this directive.' live or dead birds and of any readily recog- nizable parts or derivatives of such birds' are not prohibited if the birds referred to in Annex HI/1 have been legally killed or captured or otherwise legally acquired. On Essentially, the national court proceeds on the other hand, the sale of birds referred to the assumption that the measures in force in in Annex III/2 is prohibited by Article 6(1). the United Kingdom are no stricter than those prescribed by the directive. The 2 — OJ 1979, L 103, p. 1. prohibition under Netherlands law on sale

(a) improvement of conditions of survival of living specimens in recipient It is quite clear that the red grouse does not countries; fall within either the aforesaid regulation or the Treaty since that bird is not referred to in any of the different annexes to the (b) the conservation of native species; Convention. Moreover, it is not disputed that the species in question is not 'endangered'. In other words, the exhaustive nature of the annexes is not contested, at (c) the conservation of a species or a popu- lation of a species in the country of 3 — It has not been disputed, cither in the written observations origin.' or at the hearing, that the bird in question is not a migratory bird within the territory of the Community: see Cramp and Simmons, Handbook of the Birds of Europe, the Middle East and North Africa, Part II, 1980, p . 391, at p. 394 It is thus possible to argue, as the 4 — The text of Article 14 of the directive contains the verb Commission does in its observations and the 'introduce', from which it could be inferred that only newly introduced measures or newly adopted rules, and Advocate General of the Hoge Raad in his not old rules or measures which have been retained, are meant Opinion delivered in connection with the 5 — See the case-law cited in footnote 12. order of reference, that the Netherlands 6 — OJ 1982, L 384, p. 1. may adopt 'measures similar' to those 7 — Ibid, p. 7. referred to in Article 15 of Regulation No

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OPINION OF MR VAN GERVEN — CASE C-169/89

10 — The question submitted for a preliminary ruling concerns 6. Consequently, the assessment will focus exclusively Article 36 of the EEC Treaty in so far as it is aimed at the protection of the health and life of animals exclusively on the applicability of the dero- and, indirectly therefore, at the protection of the envi- ronment. When questioned at the hearing about the relationship between those two interests worthy of 8 — For the classification of an absolute prohibition on the protection (protection of health and life and environmental marketing and importation of a product as a measure protection, now referred to as an objective in Article having an effect equivalent to a quantitative restriction, see 100a(3) of the EEC Treaty) none of the parties present the Court's judgment of 23 February 1988 in Case 216/84 argued in favour of a separate assessment of the Commission v France [1988] ECR 793, paragraph 7. Netherlands measure in question from the point of view of 9 — It follows that the case-law of the Court according to environmental protection. Such an assessment would be based on the premiss that environmental protection either which 'environmental protection' — a different, somewhat already falls within the scope of 'the protection of health broader concept than the 'protection of health and life of and life' in Article 36, or needs to be added pursuant to humans, animals or plants Veferred to in Article Anicie 100a(4) to the list of justifying grounds set out 36 — constitutes an interest worthy of protection in therein. Even so, however, it is or course necessary to accordance with the 'rule of reason' (see the Court's satisfy the criteria laid down by Article 36, which would judgment of 20 September 1988 in Case 302/86 not seem to be the case here, as is made clear below (in Commission v Denmark [1988] ECR 4607, in which paragraph 10). Consideration of the scope of Anicie 36 in reference is made to the judgment of 7 February 1985 in conjunction with Article 100a(4), from the point of view of Case 240/88 Procureur de la République v ABDHU [1985] environmental protection, can therefore be left aside. See ECR 531) is inapplicable here. See also footnotes 10 and also footnote 11. 11 below.

The Commission's final argument in support of the view that Article 36 is applicable in connection with the protection of interests wholly situated in another Member State is Neither do I understand the Commission's derived from the 'transfrontier nature of the reference to paragraph 45 of the judgment protection of birds', which is expressly of 25 January 1977 in Case 46/76 Bauhuis v recognized both by Directive 79/409 and by Netherlands [1977] ECR 5, in which the the Washington Convention annexed to Court purportedly stated that the interests Regulation No 3626/82. Although the referred to in Article 36 may also be Commission's argument cannot strictly situated in a Member State other than that speaking be based on those two measures which adopts the measure in question. In for the purposes of the assessment of this my view, the judgment in Bauhuis does not case — since neither of them is directly state anything of the kind. Quite the applicable but only on the basis of an contrary, for it is expressly stated in several extension of its scope determined by a grounds of the judgment (paragraphs 27 to Member State — nevertheless I consider it 30) that a veterinary inspection which is sufficient to assume that a Member State imposed by a directive on the exporting can rely on the concern for animal life in Member State (paragraph 27) is not a another Member State to justify a restriction measure unilaterally laid down by each on the free movement of goods. It is quite Member State but a measure made obli- clear, however, in my view, that the gatory and uniform in the case of all the requirements of necessity and propor- products in question, whichever the tionality, which I shall discuss in due course,

must in such a case be assessed with the which closely revolves around the facts customary rigour. The fact that this case is relied upon in support and the legal circum- concerned with a non-migratory bird is stances themselves. The assessment of the relevant in connection with that assessment. first requirement involves ascertaining whether there is a relationship of necessity between the measure adopted and the attainment of the objective pursued. This 8. Hence it is now necessary to ascertain has two implications: in the first place, the whether the measure provided for by the existence of a causal connection between Vogelwet 1936 is justified within the the measure adopted and the aim pursued, meaning of Article 36 of the EEC Treaty, that is to say the measure is relevant or that is to say whether, in the case of the pertinent, and secondly there is no alter- Netherlands, it constitutes a measure which native to it which is less restrictive of the is proportionate to the aim of protecting the free movement of goods. 15 The second life of the red grouse, which occurs in the requirement is concerned with the existence United Kingdom (and is exported to the of a relationship of proportionality between Netherlands only once shot and killed). 11 the obstacle introduced, on the one hand, and, on the other, the objective pursued thereby and its actual attainment. In the light of Article 14 of the directive on the conservation of wild birds (referred to in paragraph 3), which leaves to the Member States the possibility of adopting stricter protective measures, the most relevant 9. As regards the relevance or pertinence of judgments are those to the effect that the the measure, it cannot be ruled out, as existence of harmonizing directives cannot stated earlier (in paragraph 7), that in the extend the remaining powers left to the case pending before the national court that Member States by Article 36, 12 but can in requirement is satisfied.

It 12 — Judgment of 20 May 1976 in Case 104/75 De Peijper [1976] ECR 613, paragraph 32. is discussed by the Commission in its obser- 13 — Judgment of 30 November 1983 in Case 227/82 Van vations; in its view, the fact that the red Bennekom [1983] ECR 3883, paragraph 35. 14 — See, for example, Case 104/75, cited above in footnote 12, paragraphs 21 and 22, and the judgment of 8 February 15 — See, for instance, the judgment of 22 March 1983 in Case 1983 in Case 124/81 Commission v United Kingdom [1983] 42/82 Commission v France [1983] ECR 1013, paragraphs ECR 203, paragraph 16. 55 to 57.

grouse does not occur in the Netherlands Council, in which all the Member States are means that the requirement of propor- represented, considered that the bird in tionality (requirement of necessity strikes question occurs in such large numbers in the me as more correct) is automatically areas in which it is found that it is not fulfilled — the only conceivable measure endangered by hunting as regulated by the which the Netherlands can adopt with Member State of origin. In the context of regard to a bird which is not found there is harmonization, another Member State must a prohibition on importation and sale. be able to adduce powerful reasons before it can be assumed that a prohibition on imports, that is to say a breach of the fundamental principle of the free movement of goods, constitutes the only, or at any rate I have some doubts with regard to the the least restrictive measure for the conser- Commission's reasoning which was vation of a bird species occurring in the first endorsed by the Netherlands Government at Member State. Admittedly, the directive

interests. 17 18 Member State, it seems to me that the Kingdom of the Netherlands, in the present context of Community cooperation, has at its disposal a less far-reaching measure. This consists in gathering regular information on However, the point of departure for the the red grouse population by means of the assessment of necessity in this case lies, in reports referred to in Article 12 of Directive my view, primarily in the system established 79/409 and then submitting proposals, as by the directive on the conservation of wild far as is necessary, to the Committee set up

paragraph 12 species. That strikes me as being more 17 — Judgment of 10 March 1983 in Case 172/82 Fabricants raffineim d'hutle de gramage v Inter-Husles [1983] ECR consistent with the principle of mutual 555, paragraph 14, final sentence. confidence now applied between Member 18 — For the same view, see the commentary by J. H. Jans on the judgment of the Raad van State, Afdeling Rechtspraak States than is the case where use is made of (Netherlands Council of Slate, Administrative Appeal Section) of 20 March 1984, Milieu en Recht, 1985, p. 86, a provision in the Vogelwet 1936, which at p. 89. was adopted on the basis of an appraisal of

interests in which it was as yet impossible to measure in question or resign itself to a less take into account the 'acquis commu- effective one, where the restrictive effect of nautaire', still less the views of the Member the first measure is disproportionate so far State in which the bird species in question as the free movement of goods is concerned actually occurs. That is all the more to the objective pursued by the measure or important since, in the appraisal of the to the result actually achieved thereby. interests in question carried out in the Netherlands with regard to the relevant bird species, certain interests cannot be taken into consideration (such as, for instance, the advisability of authorizing hunting so as to protect agricultural crops), 19 which, in the case of the Member State in which the bird in question occurs, may well have been That situation is illustrated by the Court's relevant. judgment of 20 September 1988 in Case 302/86 Commission v Denmark;20 although it involved the assessment of a mandatory requirement in the light of Article 30 of the EEC Treaty, that judgment may never- theless be relied upon here as a precedent in connection with the criterion of propor- tionality. In that case, the Court considered that a comprehensive system of approved A Member State may consider the adoption reusable containers for beer and fresh drinks of a more far-reaching measure only if such was justified in the interests of environ- a less restrictive alternative should appear to mental protection. Another measure autho- offer no solution, but even in those circum- rizing non-approved (non-metal) containers, stances it must be established that the provided an independent deposit-and-return measure adopted satisfies the requirement of system was established, but imposing a limit proportionality, to which I now turn. of 3 000 hectolitres a year per producer, was held by the Court to be unjustified and contrary to Article 30, inasmuch as the restrictive effect on intra-Community trade was disproportionate to the lesser guarantee which an independent system of returnable containers offers as against the compre- hensive system (under which empty 10. A measure which has a causal containers can be returned to any retailer). connection with the objective it pursues, and to which there is no less restrictive alter- native, must subsequently be assessed in the light of the criterion of proportionality between the obstacle introduced and the objective pursued and/or the result actually achieved thereby. As a result of the application of that criterion, a Member Similarly, in the case of measures in relation State may be obliged to dispense with the to which the protection of animal health was relied upon, the Court considered that 19 — As briefly indicated earlier, at the end of paragraph 2, no it was excessive to take steps against risks so such appraisal of interests seems to have taken place since the question whether the bird may be hunted in the Netherlands does not arise there. 20 — [1988] ECR 4607.

21 — See the judgment of 31 January 1984 in Case 40/82 Commimon v United Kingdom [1984] ECR 283. para- graphs 14 to 21 The reasoning can be summarized as follows since a given disease had occurred with decreasing frequency in the Community in the previous six years, and the vaccination used against it, which might have had adverse effects at home, was not normally practised on animals intended for slaughter, an absolute prohibition on the importation of meat from slaughtered animals from Member Stales which practised vaccination was not justified See, in particular, the end of paragraph 18, in which the Court stated that its assessment was 'based on the abtence in certain categories of any risk of infection ' (emphasis added)

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