C-277/91

O P I N I O N O F MR D A R M O N — J O I N E D CASES C-277/91, C-318/91 A N D C-319/91

OPINION OF ADVOCATE GENERAL DARMON delivered on 25 May 1993 *

Mr President, (a) that it bears the health inspection mark Members of the Court, (stamp) of the municipality of origin;

(b)that it is accompanied by a certificate 1. Are rules applicable in a region of a Mem- issued by the municipal authorities in ber State, which make importation and mar- accordance with the model annexed to keting of fresh meat into a municipality sub- this regulation (model no 1), with a state- ject to a compulsory health check and to the ment from the municipal veterinary payment of charges, whatever the origin of showing that the meat bearing the health that product, compatible with the relevant inspection mark (stamp), printed or Community rules? described on the certificate itself is from an animal which was perfectly healthy and was slaughtered in compliance with the applicable rules; 2. That is essentially the main question which the President of the Tribunale di Genova (District Court, Genoa) refers to (c) that it undergoes a further inspection by the Court in the three cases brought the municipal veterinary at the municipal- by Ligur Carni Sri (C-277/91), Ponente ity of destination'. 2 SpA (C-318/91) and Genova Carni Sri (C-319/91).

4. Regional Law No 31 of 22 August 1989 on the 'provisions relating to the pay- ment of charges owed by individuals using 3. Article 40 of Royal Decree N o 3298 of the Local Health Authority's veterinary ser- 20 December 1928, concerning the approval vices', 3 provides that veterinary inspections of the regulation on health checks on meat ' and checks carried out by the unità sanitarie provides that: locale (local health authority — USL) give rise to the levying of charges.

— a compulsory second check is carried out 9. In the course of 1990-1991, Ligur Carni by the USL in the municipality of desti- and Genova Carni, on the one hand, and nation; Ponente SpA, on the other, paid considerable sums of money to USL No XV of Genoa and to USL N o XIX of La Spezia respec- — it gives rise to the levying of a charge. 4 tively for inspection charges. Moreover, Ponente has to pay LIT 70 511 609 to CO. GÈ. SE. MA, even though according to the 6. Those rules present two features: they importer, C O . GÈ. SE. MA, which denies apply without distinction to fresh meat such allegation, never took part in the distri- imported from other Member States and to bution of the goods. that which comes from other regions of Italy. They provide for a health inspection, not at the time of crossing the intra- Community frontier, but in the municipality of destination. 10. The plaintiffs in the main proceedings before the president of the Tribunale di Gen- 7. Furthermore, for meat marketed in the ova, seek repayment of the sums paid to the municipality of La Spezia there is a manda- USL (and to C O . GĽ. SE. MA in the case of tory requirement that use be made of the ser- Ponente) on the grounds that such sums are vices of C O . GÈ. SE. MA (a cooperative for 'charges' prohibited by Council Directives the management of the butchery services of 64/433/EEC of 26 June 1964 on health prob­ the municipality of La Spezia) which has lems affecting intra-Community trade in been given an exclusive concession by the fresh meat, 5 83/90/EĽC of 7 February municipal authority to carry out the loading, 1983, <· 89/662/EEC of 11 December 1989 ' unloading and transport of fresh meat. and 90/425/EEC of 26 June 1990. 8

11. The President of the Tribunale di Gen- paragraph of Article 177 of the Treaty are ova basically raises six questions 9 which not met; the decision to be made by the may be grouped together as follows, with the President of the Tribunale di Genova has to last two relating only to Case C-318/91, be made following summary proceedings, by Ponente SpA. way of an 'injunction', on the sole basis of the plaintiff's contentions and without there having prior debate between the parties, — Is such a health inspection system con- therefore without observing the inter partes trary to the abovementioned directives in principle. 10 that it imposes 'systematic and costly' health inspections on meat upon dispatch and at the time of its arrival in the municipality of destination? (Questions 13. In the Politi case, n concerning a ques- 1 and 2) tion from the President of the Tribunale di Torino also in the context of 'injunction pro- ceedings', the Court considered that the fact — Are those inspections measures having that those proceedings were not inter partes equivalent effect to quantitative restric- did not prevent the Court from being seised tions prohibited by Article 30; may they of the case in so far as: be justified under Article 36? (Ques- tion 3)

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15. Before dealing with the questions sub­ 19. It therefore follows that any interpreta­ mitted for a preliminary ruling themselves, a tion that might be given by the Court on further preliminary remark is necessary. those directives would have no bearing upon the application of the domestic legislation in question to the facts in this case. ' 8

16. I am assuming that, as seems to follow from the orders for reference and the Italian Government's observations, u the Italian national law implementing Directive 20. What is the position regarding Directive 64/433/EEC has not led to the abolition of 64/433/EEC? the Royal Decree of 20 December 1928 and Liguria Regional Law No 31 of 22 August 1989.

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O P I N I O N O F MR D A R M O N — J O I N E D CASES C-277/91, C-318/91 A N D C-319/9I

check that every consignment of fresh meat to such an extent as to constitute a disguised is accompanied by a health certificate. 24 restriction on trade between Member States. 2S

22. Thus, the Court in Simmenthal25 held that: 25. By Directive 83/643/EEC, » the Council laid down the principle of mutual recogni- tion of inspections by the Member States 30 'the aim of the [harmonised system of veter- and extended the scheme already laid down inary and public health inspections] is to for fresh meat by Directive 64/433/EEC to transfer supervision to the exporting Mem- carriage of goods not yet governed by spe- ber State and to replace in this way the sys- cific Community rules. In this regard, the tematic measures of protection at the frontier eighth recital in the preamble to Directive with a uniform system so as to make multi- 83/643/EEC is particularly worthy of note: ple frontier inspections unnecessary and at the same time to give the Member State of destination the opportunity of ensuring that the guarantees provided by the system of inspections thus standardized are in fact giv- '... in order to ensure a smooth flow of en'. 26 means of transport engaged in the carriage of goods between Member States, it is desirable to centralise the various inspections in one place, preferably the place of departure or 23. Article 10(2) and (3) of Directive destination of the goods;' 31 64/433/EEC 2 7 reserves the possibility, if irregularities are seriously suspected for the State of destination to carry out, in a non- discriminatory manner, inspections to check compliance with the requirements of the 26. Under that Directive, the inspection car- Directive. Those inspections must not ried out by one Member State and recog- unduly delay the passage of the goods or nized by others precludes any second check their placing on the market or cause delays or any other inspection except by way of which might adversely affect the quality of sampling.32 the meat.

are valid throughout the whole journey and 30. Directive 64/433/EEC must therefore be in particular when a frontier is crossed. 33 interpreted as precluding all systematic health inspections within the country of des- tination, whether the goods are in transit or 28. It is with that scheme set up by Directive have arrived at their destination. 64/433/EEC that the national rules described by the court making the reference must be compared. Under the national rules inspec- tions in the municipality of destination are 31. The actions brought by the plaintiffs in compulsory, systematic and permanent and the main proceedings are directed, as regards are a precondition of marketing the product the application of Directive 64/433/EEC, in the municipality of destination. Nor may against Genova USL No XV (Cases the product be marketed without payment of C-277/91 and C-319/91) and La Spezia USL charges determined on a discretionary basis No XIX (Case C-318/91). by the public authority. 34 As has been men- tioned, a specific feature of that legislation is that health inspections are carried out not at the time when the frontier is crossed, but in the Member State of destination itself. 32. However, the question arises whether the plaintiffs in the main action may rely on that Directive against such bodies. 29. The principle of mutual recognition of inspections by Member States rules out any additional checks, at any place whatsoever. Under the principle of equivalence of health guarantees, the inspection carried out by the 33. As is well known a Directive has direct exporting country replaces any other check, effect only where: whether at the frontier or within the country of destination. Such a scheme, which intends the first inspection to be valid for all the Member States, would be undermined if 1) the Member State has not implemented it what was prohibited at the frontier was not within the prescribed period, prohibited at a distance from it. Furthermore it should be noted that where the municipal- ity of destination is a port, the crossing of 2) its provisions are sufficiently clear, precise the frontier and the entry into the municipal- and unconditional, ity imposing a health check 'on arrival' occur at the same time. In certain cases such a check is carried out at the time when the frontier is crossed. 3) those provisions are relied upon against a State or one of its subdivisions.

38. Moreover, the Court has stated that: 41. However, the Court has held that

'each Member State should implement the 'a body, whatever its legal form, which has directives in question in a way which fully been made responsible, pursuant to measure meets the requirements of clarity and adopted by the State, for providing a public service under the control of the State and has

35 — GURI N o 319 of 18 December 1981. 36 — GURI N o 68 of 20 March 1985, p. 2153, amended by Decree of the President of the Republic N o 312/91, GURI 38 — Case 102/79 Commission v Belgium [1980] ECR 1473, N o 233 of 4 October 1991. para. 11. 37 — Case 103/88 Fratelli Costanzo [1989] ECR 1839, para. 29, 39 — See Case 152/84 Marshall [1986] ECR 723, para. 48, and emphasis added. Case C-221/88 ECSC v Bussent [1990] ECR 1-495, para. 23.

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for that purpose special powers beyond 'where, in application of Article 100 of the those which result from the normal rules Treaty, Community directives provide for applicable in relations between individuals is the harmonization of the measures necessary included in any event among the bodies to ensure inter alia the protection of animal against which the provisions of a directive and human health and establish Community capable of having direct effect may be relied procedures to check that they are observed, upon'. 40 recourse to Article 36 is no longer justified and the appropriate checks must be carried out and protective measures adopted within the framework outlined by the harmonizing directive.

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OPINION OF MR DARMON — JOINED CASES C-277/91, C-318/9I AND C-3I9/91

services such as inspections, health checks system of internal dues applied systemati- and issue of licences for marketing. cally in accordancce with the same criteria to domestic products and imported products alike. 49

49. Since the systematic inspections carried out by those bodies infringe Directive 64/433/EEC, it is said, the charges levied at the time of those inspections infringe Com- 54. It should be noted that the rules at issue munity law. may discriminate against imported products: fresh meat from the municipality's slaughter- house which is marketed in that town is sub- ject to a single health inspection. It is not 50. Such charges would also infringe Com- 'slaughtered elsewhere' within the meaning munity law if they were levied at the time of of Royal Decree No 3298 and will therefore checks by sampling. not be subject to charges in the municipality of destination.

51. The legality under Directive 64/433/EEC of checks by sampling at the place of destination does not necessarily jus- 55. In addition, the inspections carried out tify the levy, at that time, of a charge on the in the municipality of destination affect all importer, even though the directive is silent imported products and have the same effect on that point. as an inspection carried out at the frontier; moreover they may coincide where the municipality of destination is a port.

52. It is apparent from the Court's judgment in Simmenthal47 which, in particular, related to the interpretation of Directive 64/433/EEC, that pecuniary charges 56. Finally, those charges do not cease to be imposed by reason of veterinary or public charges having equivalent effect merely health inspections of goods on the occasion because they have an impact not only on of their crossing the frontier are charges hav- goods imported from another Member State, ing an equivalent effect to customs duties. but also on those brought into that munici- That is the case even if that charge is not lev- pality from another part of that State. ied for the benefit of the State. 4S

62. The first of those questions (Question 5) relates to whether Articles 30, 52 and 59 of the Treaty preclude national rules from pro- hibiting an undertaking which imports goods 59. Charges may be levied on the occasion from carrying out in a municipality of the of health inspections at the place of destina- importing Member State the loading, unload- tion only where such charges constitute pay- ing and delivery of goods with its own ment for a service rendered to the economic means. operator. 51

70. The prohibition on measures having equivalent effect to quantitative restrictions on imports applies to any type of obstacle to 67. Although that situation is close to that in free movement of goods in the Community. the Mera54 case, it cannot be treated in the same way: Article 86 of the Treaty is not manifestly applicable since it has not been proved that the market affected by that municipal concession represents a substantial part of the common market. 55 On the basis 71. The question is, therefore, whether Arti- of the information available to the Court, cle 30 is applicable to a situation with the there is not a body of municipal monopolies following four specific features: granted to one group of undertakings whose activities have effects on the import of goods from other Member States. 56 If it were proved that such exclusive concessions were (l)the measure of prohibition applies with- widespread in a Member State, it would be out distinction, for the court making the reference to draw the appropriate conclusions having regard to Articles 86 and 90, as to whether a substan- tial part of the common market was affected. (2) it covers only the territory of a munici- pality,

68. The concession in question — and the (3) it has only a marginal effect on intra- ensuing ban on transport of meat by under- Community trade,

54 — Case C-179/90 [1991] ECR 1-5889. 57 — Denkavit, paragraph 3, cited in footnote 49. See also Joined 55 — Ibidem, see paragraph 15. Cases 314-316/81 and 83/82 Waterkeyn [1982] ECR 56 — Sec Case 30/87 Bodmn [1988] ECR 2479. 4337 and Mera, paragraph 23, cited in footnote 54.

78. Moreover, it would be paradoxical to 75. Whilst not directly affecting imports, allow rules restricting trade where they only such rules are liable to limit their volume by applied with territorial scope on a municipal increasing the cost of transport. The result or regional level, whereas they were prohib­ therefore is market rigidity representing an

S9 Joined (ases C !.">: anei C I 6 9 : 1991 I C R I -1IÍ1 ís Sec in this respect \tctn. paragraph 22. cued in tootnotc S4 (>C Paragraph 24

I - 6643

O P I N I O N O F MR D A R M O N — J O I N E D CASES C-277/91, C-3I8/91 A N D C-319/91

ited on a national level. What would happen permissible for those operations to be carried if all the regions or municipalities in a Mem- out by the importer himself, subject to him ber State adopted the same rules? paying the undertaking holding the conces- sion a sum which in that case does not relate to services performed.

81. The existence of such an object and, therefore, the need for such an exclusive con- cession may be questioned since, according to the court making the reference, it is 85. The further question arises as to whether the prohibition on an importer of goods into the municipality from carrying out himself

61 — Case 16/83, [1984] ECR 1299. 62 — Case C-126/91 [1993] ECR 1-2361. 63 — Paragraph 21. 65 — Sec on that point, the Commission's observations, p. 17 of 64 — Sec its observations, at p. 3 of the French translation. the French translation.

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the loading or unloading of those goods in granted the concession. However, that is not that municipality is contrary to Article 52 of the situation before the Court. the Treaty.

86. Whereas concessions granted by private 91. I am therefore of the opinion that, in the undertakings to other private undertakings, absence of any foreign element, Article such as beer-supply contracts, 66 undoubt- 52 does not apply in this case. edly fall under the competition rules, a con- cession granted by a public authority, in this case a municipal administration, falls in cer- tain circumstances within the scope of Arti- 92. Is Article 59 applicable? cle 52.

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O P I N I O N O F MR D A R M O N — J O I N E D CASES C-277/91, C-3I8/91 A N D C-319/91

96. The freedom to provide services in the accepted that the liberalization of road trans- transport sector presupposes the elimination port cabotage activities could be imple- of any discrimination against a provider of mented gradually. services by reason of his nationality or the fact that he is established in a Member State other than the one in which the service is 100. It follows that carriers residing in provided. another Member State, and authorized for the activity of carrier in that State alone, can- not rely upon Articles 59, 60 and 61 in order 97. As is well known, freedom in this sector to gain access to those activities in another has not yet been fully achieved. A transi- Member State. tional cabotage system has been laid down pending adoption of permanent rules. 101. Specifically, Council Regulation (EEC) No 4059/89 of 21 December 1989 laying 98. In its judgment of 22 May 1985 in the down the conditions under which non- Parliament v Council case, 67 the Court resident carriers may operate national road noted the Council's failure to ensure the haulage service within a Member State 69 freedom of services in the international allows Community carriers of goods by road transport sector and to lay down the condi- to carry out domestic carnage of goods in tions for the admission of non-resident carri- another State only within the framework of a ers to domestic carriage within a Member Community cabotage quota. State.

102. Accordingly, Article 61 does not create 99. In its judgment of 7 November 1991 in any right in favour of an importing under- the Pinaud Wieger case, 6S the Court taking which may be directly relied on.

(b) Such a prohibition can be directly relied u p o n by an individual as against a b o d y which, whatever its legal form, the national court considers to be entrusted, under a public authority measure and under the public author- ity's control, with a public interest service and which, for that purpose, has exceptional powers going b e y o n d the rules applying in relations between individuals.

(2) In view of the answer given to the first t w o questions, the third is devoid of purpose.

(3) Both Articles 9 and 12 of the E E C Treaty and Directive 6 4 / 4 3 3 / E E C preclude the levying of charges for systematic health inspections of fresh meat from another M e m b e r State carried out by the veterinary officers in the municipal- ities of transit or destination of the importing Member State.

(4) (a) Article 30 of the E E C Treaty prohibits a domestic measure or administra- tive practice prohibiting an undertaking which imports goods into the municipality from there carrying out itself loading, unloading and delivery of such goods or authorizing it to carry out such operations subject to paying charges, without consideration, to a municipal concession-holder.

(b) Article 52 of the Treaty does not apply to a purely domestic situation in a Member State such as where a national of that State is disputing the exist- ence of a concession granted on its territory by a municipality of that State.

(c) Article 61 of the Treaty docs not establish rights which an individual can rely upon directly.