C-17/94

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GERVAIS AND OTHERS

4. An order of 21 November 1991 regarding In March 1992 they were reported to the 'training of inseminators and heads of insem- Public Prosecution Department in Bergerac ination centres and the grant of the relevant by the Coopérative Périgorde Ageanise licences' lays down further provisions for the d'Elevage et d'Insémination Artificielle implementation of the said Decree N o (hereinafter referred to as 'the CPAEIA'), 69-258. According to Article 1 of the order which holds the monopoly for inter alia the insemination is effected under the control of Arrondissement of Bergerac, for having, the competent insemination centre. The contrary to Article 5 of the said Law N o French Minister for Agriculture may issue a 66-1005, practised as inseminators without licence to operate as inseminator to holders being in possession of the necessary licences of an inseminator's certificate on the basis of required by French law. The Public Prosecu- a document from the head of an insemina- tion Department thereupon brought a charge tion centre certifying that the applicant against Denis Gervais and Jean-Louis N o u - comes under his authority as regards the per- gaillon for effecting insemination without formance of insemination operations (see having been assigned an area in which they Article 2). According to Article 3 of the might lawfully inseminate, and against order, the certificate is granted to candidates Christian Carrard and Bernard Horgue for who have passed an examination as insemi- operating insemination centres without a nator and to veterinary surgeons amongst licence. others.

14 January 1994, referred to following ques- certain circumstances grants a licence tions to the Court: for insemination to veterinary surgeons, but prohibits them, under threat of prosecution, from exercising that activ- ity, and simultaneously eliminates their freedom of establishment, except the compulsory establishment under the '1) D o Article 59 of the EEC Treaty and authority of a so-called artificial insem- Council Directives 78/1026/EEC and ination centre, which is made up of per- 78/1027/EEC of 18 December 1978, 1 sons who do not necessarily hold the for implementation in the sphere of the qualification of veterinary surgeon and activities of veterinary surgeons, pre- on whom is conferred a territorial clude the application of domestic legis- monopoly for the exercise of that activ- lation which, for the artificial insemina- ity, with the effect that in France, the tion of animals of the bovine species, freedom of establishment of veterinary makes the issue of an insemination surgeons cannot properly be exercised licence to veterinary surgeons condi- other than in connection with a centre? tional on the production of a certificate from the Director of the authorized Artificial Insemination Centre certifying that the applicant is answerable to him with regard to insemination, thus depriving veterinary surgeons of the freedom to provide services under threat of prosecution, simultaneously restraining their trade, by means of rec- ognition of a territorial monopoly of that activity for the benefit of persons grouped in so-called artificial insemina- 3) Should Council Directives 77/504/EEC tion "Centres" and not necessarily of 25 July 1977 on pure-bred breeding holders of the qualification of veterinary animals of the bovine species 2 and surgeon? 87/328/EEC of 18 June 1987 on the acceptance for breeding purposes of pure-bred breeding animals of the bovine species, 3 adopted on grounds of health policy and which state that they seek to preserve freedom in intra- 2) Do Article 52 of the EEC Treaty and Community trade, be interpreted as Council Directives 78/1026/EEC and enabling national legislation to institute 78/1027/EEC of 18 December 1978, for a territorial monopoly in the exercise of implementation in the sphere of the artificial insemination which is of a activities of veterinary surgeons, pre- clearly economic nature for the benefit clude the application of domestic legis- lation which, for the artificial insemina- tion of animals of the bovine species, in 2 — OJ 1977 L 206, p. 8, as amended by Directive 91/174/EEC laying down zootechnical and pedigree requirements for the marketing of pure-bred animals and amending Directives 77/504/EEC and 90/425/EEC, OJ 1991 L 85, p. 37. 1 — O J 1978 L 362, pp. 1 and 7 respectively. 3 — OJ 1987 L 167, p. 54.

7. The Commission, the French Govern- ment and the CPAEIA, the civil party claim- 4) Is national legislation which makes ing damages in the main proceedings, have access to the occupation of inseminator claimed that the court of reference has not conditional on the issue of a licence for even given a brief statement of the factual artificial insemination of animals of the and legal background to the case. The sub- bovine species and which makes the stance of the questions referred to the Court issue of the licence conditional on the should not therefore be considered. production of a certificate from the Director of the authorized Artificial Insemination Centre, certifying that the applicant is answerable to him with regard to insemination, thus prohibiting or restraining the exercise of that activ- 8. The Court has stated that the need to pro- ity for veterinary surgeons on the vide an interpretation of Community law ground that they must be answerable to which will be of use to the national court the Director of the so-called Artificial makes it necessary that the national court Insemination Centre on which is con- define in the order for reference the factual ferred a territorial monopoly compati- and legislative context of the questions it is ble with the relevant provisions of asking. 4 By the same token it is essential for Council Directives 77/504/EEC and the national court to explain the reasons for 87/328/EEC which do not provide for which it considers that a reply to its ques- any restriction in the establishment and tions is necessary to enable it to give judg- activities of veterinary surgeons? ment. 5 The information provided in orders for reference moreover not only enables the Court to give helpful answers but also enables the governments of the Member States and other interested parties to submit observations. 6 It is therefore the Court's duty to ensure that that opportunity is main- 5) Is a monopoly in the provision of ser- tained, bearing in mind that, by virtue of vices such as that brought about by the Article 20 of the Statute of the Court, only Law of 28 December 1966 on breeding and its implementing provisions com- patible with Articles 37 and 59 of the 4 — See for example the judgment in Joined Cases C-320, EEC Treaty in so far as it prohibits C-321 and C-322/90 Telemarsicabruzzo and Others [1993] E C R I-393 at paragraph 6, and Order in Case insemination carried out by persons, C-386/92 Monin Automobiles [1993] ECR I-2049 at para- even those duly qualified and skilled to graph 6. 5 — See the judgment in Case C-343/90 Lourenço Dias [1992] do so, other than the staff of Artificial E C R I-4673 at paragraph 19, and the Order in Case Insemination Centres which enjoy the C-378/93 La Pyramide [1994] ECR I-3999 at paragraph 13. 6 — See in particular the judgment in Joined Cases 141, 142 and monopoly?' 143/81 Holdijk [1982] ECR 1299 at paragraph 6.

The first and second questions 13. According to Article 1 of Directive 78/1027, which is also issued in pursuance of Articles 49, 57, 66 and 235 of the Treaty, Member States are to make the taking up and pursuit of the profession of veterinary sur- geon conditional upon the holding of a 11. By the first and second questions the diploma, certificate or other evidence of for- court of reference wishes to be informed mal qualifications in veterinary medicine whether provisions such as the French provi- referred to in Article 3 of Directive 78/1026, sions concerning the conditions for the pur- which guarantees that during his complete training the person concerned has acquired various qualifications of importance for 7 — See the Order in Case C-458/93 Saddick [1995] ECR work as a veterinary surgeon. The other pro- I-511 and Case C-167/94 Grau Gomis and Others [1995] ECR I-1023 at paragraph 10. visions of the directive lay down rules

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GERVAIS AND OTHERS

regarding the knowledge a veterinary sur- on freedom to provide services cannot be geon must have acquired as a result of his applied to activities which are confined in all training, and rules are laid down for the respects within a single Member State. 9 length of and requirements for acceptance for such training.

8 — See most recently the judgment in Joined Cases C-29 to C-35/94 Aubertin and Others [1995] E C R I-311 at para- 9 — See the judgment in Case C-41/90 Höfner and Elser [1991] graph 9. ECR I-1979 at paragraph 37.

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OPINION OF MR ELMER — CASE C-17/94

According to Article 2 of Directive qualification as veterinary surgeon cannot, as 78/1026 Member States are to recognize the against the Member State which has issued diplomas and the like awarded to nationals the qualification concerned, rely upon Direc- of Member States by the other Member tive 78/1026 concerning the mutual recogni- States in accordance with the rules in Direc- tion of diplomas, certificates and other evi- tive 78/1027 by giving the same effect in dence of formal qualifications in veterinary their territory to the diplomas, certificates medicine, including measures to facilitate the and other evidence of formal qualifications effective exercise of the right of establish- as those which the Member State itself ment and freedom to provide services, or awards as far as concerns the right to take up Directive 78/1027 concerning the and pursue the activities of a veterinary sur- co-ordination of provisions laid down by geon. Directive 78/1027 is linked to Direc- law, regulation or administrative action in tive 78/1026 inasmuch as it lays down rules respect of the activities of veterinary sur- as to the knowledge and the like which must geons. be acquired in order to qualify as a veteri- nary surgeon but contains no rules as to the occupation a trained veterinary surgeon may pursue or as to the relationship between a veterinary surgeon and the State in which he The third and fourth questions has passed his examination in veterinary medicine.

23. Under Article 3 of that directive the movement of goods contrary to Article 30 of Council laid down, by Directive 87/328 on the Treaty. The Commission, the French the acceptance for breeding purposes of Government and the CPAEIA have stated pure-bred breeding animals of the bovine on the contrary that the said directives do species, provisions for the approval of ani- not prescribe the circumstances under which mals for breeding purposes. Member States semen may be inseminated or which groups may not accordingly prohibit, restrict or of persons may undertake insemination. impede the acceptance for official testing of pure-bred bulls or the use of their semen within the limits of the quantities necessary for approved organizations or associations to carry out such official tests. N o r can Mem- ber States impede the acceptance for artificial insemination within their territory of pure- bred bulls or the use of their semen when those bulls have been accepted for artificial insemination in a Member State on the basis 25. I agree with the Commission, the French of tests carried out in accordance with Com- Government and the CPAEIA that Direc- mission Decision 86/130/EEC of 11 March tives 77/504 and 87/328, according to their 1986 10 (see Article 2(1) of the directive). wording and purpose, concern only national institutions of significance for trade in pure- bred breeding animals and including trade in semen to be used for breeding. Nothing in the directives gives any basis for assuming that they also affect the possibility for the The directive further provides that to facili- Member States to reserve the activity of tate trade within the Community Member insemination to certain occupational groups States shall ensure that the semen referred to or undertakings provided that such national in Article 2 is collected, treated and stored in rules do not involve directly or indirectly an an officially approved artificial insemination unlawful restriction on trade in semen. centre (see Article 4).

27. National legislation which prescribes only which undertakings and traders may lawfully effect insemination can therefore scarcely be regarded in itself as involving a restriction of trade in semen or embryos of 30. The defendants in the main proceedings pure-bred breeding animals contrary to Arti- have argued that the French legislation is cle 2 of Directive 77/504. N o r does such leg- contrary to Articles 37 and 59 of the Treaty islation constitute any restriction on the in conjunction with Articles 5, 86 and 90. importation of semen in the quantities neces- The Commission, the French Government sary for approved organizations or associa- and the CPAEIA have contended on the tions to carry out official tests (see Article contrary that that question has already been 2 of Directive 87/328). decided in the judgment in Case 271/81 Mia¬ locq. 12 The French Government and CPAEIA have further claimed that the fifth question depends upon an incorrect concep- tion of the scope of French law, since even independent persons may obtain a licence from the centres to carry out insemination.

28. O n those grounds I shall propose that the Court should answer the third and fourth questions to the effect that Directive 31. I do not think that with regard to the 77/504 on pure-bred animals of the bovine argument of the French Government and the species and Directive 87/328 on the accep- CPAEIA the Court can refuse to answer the tance for breeding purposes of pure-bred fifth question. The Court has no jurisdiction breeding animals of the bovine species do in giving a preliminary ruling to decide not preclude national legislation giving upon the correctness of an objection that a insemination centres or persons licensed to operate as inseminators who are not neces- sarily trained veterinary surgeons a monop- oly to perform insemination. 12 — [1983] ECR 2057.

32. As far as the question regarding the pos- ition with regard to Article 59 of the Treaty is concerned I can refer to my answer to the The answer to the first question must there- first question. fore be that Article 37, properly construed, does not apply to a monopoly over the pro- vision of services, even if such a monopoly enables the Member States concerned to direct a branch of the national economy, provided that it does not contravene the principle of the free movement of goods by 33. In my view the Court has already discriminating against imported products to decided in the said judgment in Case the advantage of products of domestic ori- 271/81 Mialocq the relationship between gin' (paragraphs 12 and 13). Article 37 of the Treaty and national rules such as those at issue here. In that judgment the Court stated that Article 37 refers to trade in goods and not a monopoly over the provision of services. There was no ground for assuming that the French rules on insem- ination of cattle indirectly established a 34. Nothing in this case gives any reason for monopoly hindering the free movement of reaching a different conclusion. As the Court goods: stated in the said judgment in Case C-323/93 Centre d'Insémination de la Cre- spelle, it is within the national court's juris- diction to decide whether the French legisla- tion in practice leads to discriminatory treatment of imported semen. N o infor- 'In fact it is clear from those circumstances mation has been forthcoming in this case to that, under the legislation applicable in the effect that there is discrimination to the France, any individual breeder is free to advantage of domestic products. request the insemination centre for his area to supply him with semen from a production centre of his choice, whether situated in France or abroad. The French Government has stated that there is nothing in its legisla- tion to prevent an insemination centre or 35. It is my view that the Court should dis- regard the defendants' arguments with 13 — See the judgment in Case C-347/89 Eurim-Pharm [1991] regard to Articles 5, 86 and 90 of the Treaty. ECR I-1747 at paragraphs 14 to 17. In wishing to give the court of reference an

2. The holder of a qualification as veterinary surgeon cannot, as against the Member State which has issued the qualification concerned, rely upon Directive 78/1026 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services or Directive 78/1027 concerning the coordination of provisions laid down by law, regulation or administrative action in respect of the activities of veterinary surgeons.

3. Directive 77/504/EEC on pure-bred animals of the bovine species and Directive 87/328 on the acceptance for breeding purposes of pure-bred

14 — See the judgment in Case 299/84 Neumann [1985] ECR 3663 at paragraph 12.

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breeding animals of the bovine species do not preclude national legislation giving insemination centres or persons licensed to operate as inseminators who are not necessarily trained veterinary surgeons a monopoly to perform insemination.