C-131/93

COMMISSION v GERMANY

OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 18 May 1994 *

Mr President, regulation having been adopted on Members of the Court, 24 July 1989 and having entered into force on 1 August 1989, Germany made the importation of all species of live crayfish subject to the issue of an import licence by the competent German authorities pursuant to Paragraph 21(b) of the Bundesnaturs- chutzgesetz (hereinafter referred to as 'the 1. In this action for a declaration that a BNatSchG'). 2 According to that provision, Member State has failed to fulfil its obliga- an import licence can only be issued for tions the Commission is asking the Court to research or teaching purposes. O n the other declare that by adopting rules which prohibit hand, the importation of live crayfish for the importation for commercial purposes of commercial purposes, in particular for con- live European freshwater crayfish which sumption or for release into private waters, is originate from another Member State or a in principle prohibited, subject to Para- non-member country but which have graph 31(1) of the BNatSchG, according to already been imported into the Community which the Bundesamt für Ernährung und (hereinafter referred to as 'the rules'), Ger- Forstwirtschaft (Federal Office for Food and many has failed to fulfil its obligations under Forestry, hereinafter referred to as 'the Articles 30 and 36 of the EC Treaty. Bundesamt') may on application grant a der- ogation from that prohibition if application of the relevant provision 'could lead to unin- tended hardship'.

follows. In Germany, as in other central measures of precaution and disinfection, so European countries, because of water pollu- as to prevent imported crayfish from being tion and, above all, crayfish plague, or apha- released into the wild and to ensure that the nomycosis — which is mainly due to the water used to keep the crayfish is disinfected importation of infected crayfish from North before being disposed of. A licence may be America — there are hardly any natural revoked if those conditions are not observed. stretches of water in which wild crayfish are to be found. Under the BArtSchV native species were therefore treated as specially protected or endangered species. Since stocks of native species (Edelkrebs, Steinkrebs and Dohlenkrebs) were not sufficient to cover its needs, Germany had for years imported some tens of thousands of kilograms of live freshwater crayfish every year. Incompatibility of the rules with Article 30 of the EC Treaty

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COMMISSION v GERMANY

The German Government submits in reply rules amount to a direct, actual restriction of that (i) in view of the derogations granted by the importation into Germany of crayfish the authorities, the Commission has wrongly from other Member States and of crayfish analysed the effects of the rules, (ii) the rules originating from non-member countries and are in any event justified until the end in free circulation, which directly discrimi- of 1992 in accordance with Article 36 of nates against those products. This is all the the EC Treaty and are proportionate, and more so since, except where crayfish are (iii) they do not form a disguised restriction imported for research or teaching purposes, of trade. the ban in question is an absolute ban on importation for commercial purposes of live crayfish, whether for consumption or for release into private waters.

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O P I N I O N OF MR VAN GERVEN — CASE C-131/93

The Court has consistently held ... that pro- national courts to ensure that those rights visions caught by the prohibition laid down and obligations are observed.' 8 in Article 30 of the EEC Treaty do not escape that prohibition simply because the competent authority enjoys a discretionary power in the application of those provisions. Freedom of movement is a right whose enjoyment may not be dependent upon a discretionary power or on a concession granted by the national authorities.' 7 Are the rules justified on one of the grounds mentioned in Article 36?

The fact that the number of licences issued 8. The question to be examined is, accord- increased between 1989 and 1993 and that ingly, whether the rules may nevertheless be the importing undertakings did not use them regarded as permissible under Article 36 of to the full is not, in my view, a tenable argu- the EC Treaty, according to which Article 30 ment, especially since the Bundesamt's prac- does not preclude prohibitions or restric- tice regarding the issue of licences is contrary tions on imports justified on the grounds of, to the prohibition of imports laid down in inter alia, 'the protection of health and life of the statutory rules and may therefore be ... animals ...'. altered at any time pursuant to those rules. This seems hardly compatible with the con- sistent case-law of the Court, according to which:

freshwater crayfish which might carry cray- health and life of humans [in this case, ani- fish plague. It was not until 28 January 1991 mals], whilst taking account of the require- that the Council adopted Directive ment of the free movement of goods within 91/67/EEC. 9 That directive introduced a the Community.' n general system of animal health conditions for the breeding, transport and placing on the market of aquaculture animals and prod- ucts which applies to both deliveries from the Member States and imports from non- member countries. The German Government has accepted that, since 1 January 1993, the date by which Directive 91/67 had to be transposed (see Article 29(1)), the rules no longer have any raison d'être as regards the risk of epizootic disease. 10 9. The German Government claims that the aim of the rules is to protect native crayfish in Germany from crayfish disease. Since European species may also carry this disease, an import ban limited to non-European spe- cies would not, in its view, exclude the risk of transmission of the disease. It also main- tains that the purpose of the rules is to restrict the spreading of non-indigenous crayfish in natural German waters in order to protect the genetic identity of local cray- Since the Community still had no common fish stocks from faunal distortion arising or harmonized rules at the relevant time, it from the presence of the same species but was, according to consistent case-law, for the originating from other areas. Member States,

The Commission does not deny the risk of '... to decide on the level of protection which they wish to accord to the protection of the crayfish plague and accepts that protection

10. Putting aside the complaint that there is 11. Let me briefly summarize the arguments a disguised restriction of trade (see point 16 of the parties. According to the Commission, below), I assume that the Commission, too, in order to achieve the aims pleaded, Ger- considers that the rules were introduced for many could have merely placed a ban on the purpose of protecting the health and life imports of non-European species of crayfish, of animals, which is a justified aim under such as procambarus clarkii from North Article 36. Consequently, the rest of my America. Therefore, the action is directed analysis will focus on the question of propor- only against the ban on the importation of tionality. The Court has consistently held European species of crayfish. 14 In the case of that it is not sufficient for a Member State to these species, the Commission considers that rely on an aim justified under Article 36 of an absolute import ban goes too far. As an the EC Treaty: it must also be examined example of a country with acceptable rules it whether mentions France, which is in a similar situa- tion regarding the protection of native fresh- water crayfish but prohibits only imports of crayfish from non-member countries. 15

13. Let us consider the last point first. It is true that Article 15(3) of Regulation N o 3626/82 allows Member States, for the purpose of protecting the life and health of animals and plants, to take 'measures similar to those provided for in the regulation' in Finally, according to the Commission, Ger- respect of species not covered by the regula- many could have confined itself to regulating tion — such as the freshwater crayfish con- internal trade in crayfish by subjecting to the cerned here. However, as the Commission issue of a licence the release into certain rightly points out, Article 15(1) of the regu- inland waters of species which might carry lation must be observed in this regard. That crayfish plague or by prohibiting their provision allows Member States, in particular release in areas in which native species live. for the purpose of conserving native species, The conditions to which import permits to maintain or take stricter measures than issued to German importers are now subject those provided for by the regulation, on con- (see above, point 3) show that it is possible dition, however, that 'they comply with the to apply less restrictive provisions to intra- Treaty, and in particular Article 36 there- Community trade for the purpose of pro- of'. 17 In other words, even where a Member tecting German crayfish stocks. State relies on this regulation when taking more far-reaching measures to protect its native species, the requirement attaching to Article 36 that such measures should be pro- portionate applies in full.

rules are not in proportion to the aim in 'Animals and plants of non-regional origin view. As regards the prevention of the ("gebietsfremde") may be released into the spreading of crayfish pUgue, the German wild or grown in the wild only with autho- Government, in imposing an absolute import rization from the authority having compe- ban, is using a very heavy weapon indeed. tence under the laws of the Land. This rule The adoption of rules like the French rules does not apply to the growing of plants for mentioned by the Commission or the laying agricultural or forestry purposes. Authoriza- down of conditions governing the handling tion shall be refused if the risk of distortion of, and trade in, live freshwater crayfish on of native flora or fauna or a threat to the national territory for the purpose of prevent- existence or propagation of native species of ing the spreading of crayfish plague in Ger- plants and animals or populations of such many seem to me to be an appropriate, non- species cannot be excluded.' discriminatory alternative which is much less restrictive of intra-Community trade. Proof of this is to be found in the current adminis- trative practice in Germany, which is con- fined to prohibiting the release of crayfish into the wild and the re-stocking of private waters and to imposing a duty to take pre- cautions when disposing of water in which crayfish have been kept.

Is there a disguised restriction of trade? Despite that explanation the Commission has maintained its complaint of a disguised restriction óf trade. It bases its view on an analysis of the applicable German provisions, which, in its view, shows that the ban on keeping and marketing freshwater crayfish applies only to wild crayfish and then only to the Edelkrebs and Steinkrebs species. According to its analysis, all the other spe- cies of crayfish, including bred crayfish, are freely marketed in Germany whilst their 16. At the pre-litigation stage the Commis- importation for commercial purposes is pro- sion had the impression that the German hibited. rules had not been adopted for the purpose of protecting native species of crayfish but for economic reasons, namely to protect German breeders of these species against imports from other countries and that they therefore amounted to a disguised restriction of trade within the meaning of the second sentence of Article 36 of the EC Treaty. After the German Government had clarified 17. These last findings — which the German this issue, the Commission stated that it was Government did not challenge in its rejoin- prepared to withdraw this complaint. How- der 18 — again illustrate the disproportionate ever, it did require the German Government character of the German rules. However, in to explain one point which it had not my view, they do not show that the rules included in its application, namely the exist- constitute a disguised restriction of trade ence of trade in so-called American freshwa- between Member States, within the meaning ter crayfish (Kamberkrebse) originating from of the second sentence of Article 36 of the the new Länder. EC Treaty. As the Court has repeatedly held, the aim of that provision is to

Conclusion

18. In view of the foregoing observations I p r o p o s e that the C o u r t should grant the C o m m i s s i o n ' s application and o r d e r the Federal Republic of G e r m a n y t o p a y the costs.

19 — Judgment in Case 34/79 Regina v Henn and Darby [1979] E C R 3795, paragraph 21; judgment ¡n Case 40/82, cited in footnote 11 above, paragraph 36; and judgment in Case C-317/91 Deutsche Renault [1993] ECR 1-6227, paragraph 19.

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