C-27/95

O P I N I O N O F MR LA PERGOLA — CASE C-27/95

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 4 July 1996 *

1. The questions submitted by the High main proceedings, owns a slaughterhouse in Court of Justice (Bristol Mercantile Court) Nailsea, a town in the Woodspring District. by order of 20 January 1995 concern the validity of certain provisions of the Commu- nity legislation governing health inspections of cattle.

Under the Community legislation now in force, ' a veterinary surgeon regularly attended at the defendant's premises and conducted the prescribed health inspections. The charges for that service were invoiced to the plaintiff, which then passed them on to the defendant at the same rate. However, 2. The proceedings which have given rise to Bakers declined to pay the charges, contend- the questions referred to the Court are ing before the national court that the appli- briefly summarized below. cable Community rules were invalid. In par- ticular, it challenged the legality of the provisions requiring a veterinary surgeon to perform the inspections and other rules pro- viding for ante-mortem inspections and the

passing on of the fees to the slaughterhouse (b) In the circumstances of this case, is a operator. The national court therefore national competent authority prohibited referred the following questions to the Court by Community law from enforcing a of Justice for a preliminary ruling: provision of domestic legislation requir- ing health inspections at slaughterhouses to be carried out by or under the super- vision of veterinary surgeons when that provision purports to implement Direc- tive 64/433/EEC as amended but which also has or purports to have another, '1. Is a private party in the circumstances of independent legal basis in national law? this case entitled to rely in the national court upon Articles 39 and 40(3) of the EC Treaty, and/or the general principles of proportion- ality and equal treatment, as grounds for challenging the validity of Community legis- lation?

4. Is it contrary to Articles 39 and/or 40(3) of the EC Treaty, or the general principles of equality and/or proportionality, for the costs of health inspections by veterinary surgeons 2. Is Directive 64/433/EEC as amended and of animals intended for slaughter to be borne replaced by Directive 91/497/EEC invalid, by the slaughterhouse at which the animals having regard to Articles 39 and 40(3) of the are to be slaughtered?' EC Treaty and the general principle of pro- portionality, in so far as it requires and/or permits Member States to require health inspections at slaughterhouses to be carried out by veterinary surgeons and/or in so far as it requires ante-mortem inspections to be carried out? The first question

In my opinion, that question must be I am not persuaded by that argument. First, I answered in the affirmative. I do not see any would point out that pursuit of the objec- reason for which the Court might be pre- tives of the common agricultural policy can- cluded from examining the validity of a not, as the Court has made clear on other Community provision which has a direct occasions, 3 disregard requirements in the impact on the area of activity of the person public interest, such as protection of con- concerned in the same way as the basic pro- sumers, of health, and of the life of people visions referred to above. It is unnecessary to and the animals themselves. However, the go into further detail on this point. legislative provisions at issue in this case conform precisely with those objectives. Both are intended to ensure the proper and timely diagnosis of any diseases which might render meat unfit for consumption, the aim being to uphold the unrelinquishable values The second question of public health and consumer protection. The fact of having introduced an appropriate system of hygiene and health controls for meat also makes a decisive contribution to ensuring in the marketplace confidence in the quality and healthiness of the product. Furthermore, the only possible consequence thereof is an increase in consumption and, 4. By its second question, the national court therefore, in the volume of trade and seeks a ruling from the Court of Justice on production. And that is the way to attain the validity of the Community provisions the fundamental objectives laid down in which require the involvement of a veteri- Article 39, namely an increase in productivity, nary surgeon in the course of health inspec- rational development of production, the tions and of the other provisions which guarantee of a fair standard of living for require ante-mortem inspections of animals the agricultural community and security of to be slaughtered. 2 supplies.

As far as the ante-mortem inspection is con- cerned, it too fulfils a fundamentally impor- tant function. It need only be borne in mind that certain illnesses can only be effectively It is not clear how that criticism differs from diagnosed if the animal is alive. 4 the one considered earlier. In this case too, the Bakers alleges — on the ground that the prescribed measures lack proportionality — that the Community legislature has gone beyond the limits placed on it by the Treaty in exercising its discretionary powers. That criticism, even assuming that it can be con- sidered separately, likewise does not deserve to be upheld. The provisions of the directive That said, it is clear that the legislative referred to earlier are inspired by the inten- machinery created by the directive, far from tion to safeguard public health and promote contravening the principle of proportional- trade in and consumption of meat. To that ity, embodies it: inspections are carried out end, it is provided that health inspections of by the person whose competence is best animals are to be carried out by the person assured and they are carried out both before who is not only fully qualified but, more and after slaughter of the animal. The Com- than that, is the person, let me go so far as to munity directive adopted a uniform criterion say, who is naturally qualified to carry it out, according to which the inspection in the namely a veterinary surgeon. Frankly, I do State of dispatch is carried out by a person not see how such a choice can be criticized, who can reasonably be assumed, by virtue of particularly since the legislation in question his qualification and professional experience, was adopted in connection with the elimina- to be competent to carry it out. To provide tion of veterinary controls at frontiers: they otherwise would fall short of the require- are now carried out in the country of dis- ments which, in this case, were satisfied spe- patch and cannot be repeated in the country cifically in accordance with the very prin- of destination. For that reason too, it is of ciple of proportionality invoked by Bakers. fundamental importance that controls should be entrusted to particularly well-qualified persons, as can be seen from the sixth recital 4 — Furthermore, by virtue of paragraph 27(c) of Annex I to in the preamble to Directive 64/433/EEC: Directive 64/433/EEC, as amended by Directive 91/497/EEC, the ante-mortem inspection is intended to 'the issue of a health certificate prepared by make it possible to determine whether the animals 'arc tired, an official veterinarian of the exporting coun- agitated or injured'. If they arc found to be so, it is laid down that slaughter is to be deferred for a sufficient time to try is ... the best way of assuring the compe- allow the animal in question to rest. Clearly, such an exami- nation can only be carried out on a live animal: 'tiredness' tent authorities of the country of destination and 'agitation' cannot of course be identified in a carcass.

6 — Sec Case 87/75 Bresciani [1976] ECR 129 and Joined Cases C-277/91, C-318/91 and C-319/91 Ligur Cami [1993] ECR 1-6621. It need hardly be pointed out that those decisions, The fourth question relied on by Bakers in support of its views, have absolutely no bearing on the decision to be given in this case. Those cases concerned pecuniary charges imposed unilaterally by a Member S u t e in order to finance veterinary inspections. The Court was thus called on to determine whether those charges constituted barriers to the free movement of goods, prohib- ited by the Treaty. This case, on the other hand, concerns rules adopted by the Community which arc applicable uni- 8. The fourth question concerns the validity formly in all the Member States. Furthermore, as I shall make clear below, the charges for veterinary inspections arc of the Community rules on the obligation to initially borne by the slaughterhouse operators and may sub- sequently be transferred by them to the person requesting that service. Therefore, as righdy pointed out by the British Government and Woodspring, those charges arc ultimately borne by the consumer of the meat and thus become a com- ponent of the cost of the product. This satisfies the require- 5 — Sec Joined Cases 197/80 to 200/80, 243/80, 245/80 and ment, to which the Court drew attention in the abovemen- 247/80 Ludwigshafener Walzmühle v Councä and Commis- tioncd cases, that such charges should be borne by the public sion [1981] ECR 3211 and Joined Cases C-267/88 to as a whole, who enjoy the advantages deriving from health C-285/88 Wuidan & Others [1990] ECR 1-435, paragraph inspections. 14. Emphasis added.

(2) and (4) H a v i n g regard t o the information p r o v i d e d in the o r d e r for reference, it d o e s n o t appear t h a t Directives 9 1 / 4 9 7 / E E C a n d 9 3 / 1 1 8 / E C can b e regarded as r e n d e r e d in any w a y unlawful b y t h e p r o v i s i o n s thereof p u r s u a n t to w h i c h

7 — Emphasis added.

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OPINION OF MR LA PERGOLA — CASE C-27/95

veterinary inspections are to be carried out by a veterinary surgeon, ante- mortem health checks are to be carried out on the animal to be slaughtered and the cost of such inspections is to be borne initially by the owner and/or operator of the slaughterhouse where the slaughtering takes place.

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