C-105/95
ECLI:EU:C:1996:408
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O P I N I O N O F MR RUIZ-JARABO C O L O M E R — CASE C-105/95
OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 24 October 1996 *
1. The questions referred to the Court in ments in relation to meat, ' which categori- this case arise from a dispute between Paul cally prohibits the importation and the Daut GmbH&Co. KG ('Daut GmbH') and bringing into German territory of, inter alia, the Oberkreisdirektor des Kreises Gütersloh, mechanically recovered meat. The German the German authority responsible for veteri- authority then also brought criminal pro- nary inspections, concerning imports from ceedings in respect of that offence against Belgium of fresh meat, mechanically recov- Paul Daut, the legal representative of Daut ered and frozen. GmbH, which led to a conviction by the Amtsgericht Rheda-Wiedenbriick and a fine of DM 13 500. Daut GmbH, for its part, brought an action before the Verwaltungs- gericht for a declaration that the importation of frozen mechanically recovered meat for heat treatment and subsequent processing was lawful, and applied for an interim order 2. Daut G m b H has a meat-processing to that effect. The criminal proceedings were establishment in Rheda-Wiedenbriick which stayed by order of the Amtsgericht Rheda- holds the authorization required by Com- Wiedenbriick of 26 October 1994 pending munity legislation. On 3 August 1993 the determination of the action before the Ver- Oberkreisdirektor carried out an inspection waltungsgericht. The application for an of those premises, as a result of which he interim order was originally dismissed by the seized approximately 2 tonnes of frozen Verwaltungsgcricht Minden by decision of 8 mechanically recovered meat which had been November 1994, against which Daut G m b H imported from Belgium and which was to lodged an appeal to the Oberverwaltungsger- have been subjected to heat treatment and icht für das Land Nordrhein-Westfalen, then marketed. The meat had been purchased which considered it necessary to refer the from a Belgian company, Distriporc, which following questions to the Court: had an authorized establishment for the pro- duction of mechanically recovered meat.
'Is it compatible with Articles 30 and 36 of 3. The Oberkreisdirektor seized the meat in the EC Treaty in conjunction with Council question pursuant to Paragraph 17 of the Regulations concerning hygiene require- 1 — Verordnung über die hygienischen Anforderungen und amtlichen Untersuchungen beim Verkehr mit Fleisch, 30 October 1986 {Bundesgesetzblatt I, p. 1678), last amended by the Law of 27 April 1993 (Bundesgesetzblatt I, pp. 512, * Original language: Spanish. 552).
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Directive 64/433/EEC on health require- tion applicable to intra-Community trade in ments and the marketing of fresh meat ("the fresh meat. Fresh Meat Directive") in the consolidated version annexed to Council Directive 91/497/EEC of 29 July 1991, as amended by Council Directive 92/5/EEC of 10 February 1992 and in conjunction with Directive 77/99/EEC on health problems affecting intra-Community trade in meat products Legislative context ("the Meat Products Directive") in the ver- sion annexed to Directive 92/5/EEC if the respondent — on the basis of Paragraph 17(1)(2) of the Verordnung über die hygien- ischen Anforderungen und amtlichen Unter- suchungen beim Verkehr mit Fleisch (Regu- lation on hygiene requirements and official inspections relating to trade in meat, "the F1HV") of 30 October 1986, BGBI. I 1678, as last amended by the EWR- 5. The Community institutions have laid Ausführungsgesetz (EEA implementation down minimum health conditions for the law) of 27 April 1993, BGBl. I 512, 552 — production and marketing of fresh meat objects to the importation of frozen throughout the Community with the object mechanically recovered meat in the case of of protecting public health. Harmonization an EC-authorized German establishment of the requirements for the production and which is in a position to carry out heat treat- sale of meat was necessary in order to ensure ment within the meaning of the Meat Prod- the free movement of meat products in the ucts Directive and obtains frozen mechani- common market, particularly after the dis- cally recovered meat from an EC-authorized continuance of veterinary controls at the Belgian establishment designated by the Bel- frontiers of the Member States. The Com- gian EC veterinarian in order to subject it to munity measures prescribe compliance with heat treatment within the meaning of the uniform health conditions in intra- Meat Products Directive and further process Community trade in meat and meat prod- it and, if not, is coordinated action with the ucts, replacing the former national rules competent German Veterinary Office neces- applied by the Member States, with the sary and between whom?' object of reducing or removing the technical obstacles to trade in those products arising from different national health requirements.
4. Before considering the problem raised by 6. The main Community measures applying the national court and replying to its ques- to trade in meat products are as follows: tions, I shall refer to the Community legisla- Directive 91/497/EEC, which amends and
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consolidates Directive 64/433/EEC 2 and there are strict health requirements to pre- applies to fresh meat intended for human vent the consumption of this fresh meat consumption from domestic bovine animals, from affecting consumers' health. swine, sheep, goats and domestic solipede; Directive 71/118/EEC 3 on the marketing of poultrymeat; Directive 91/495/EEC 4 con- cerning rabbit meat and farmed game meat; Directive 77/99/EEC, as amended and updated by Directive 92/5/EEC, 5 which deals with health requirements relating to the production, storage and transport of meat products, and Directive 94/65/EC, 6 which 8. With regard to mechanically recovered applies to minced meat and meat prepara- fresh meat from domestic bovine animals, tions. swine, sheep, goats and domestic solipeds, Article 6(1) of Directive 64/433 provides that the Member States must ensure that:
7. One type of fresh meat is that known as mechanically recovered meat. It consists of the small pieces of meat which are left on the '(c) mechanically recovered meat undergoes bones of an animal after it has been cut up heat treatment in accordance with and after the meat has been removed and Directive 77/99/EEC; which, after being separated mechanically from the bones, is used for human consump- tion. Mechanically recovered meat is a type of fresh meat which is highly perishable because it has a large area exposed to the air and, therefore, to contaminants. This is why
2 — Council Directive 91/497/EEC of 29 July 1991 amending [•·•] and consolidating Directive 64/433/EEC on health problems affecting intra-Community trade in fresh meat to extend it to the production and marketing of fresh meat (OJ 1991 L 268, p. 69). 3 — Council Directive 71/118/EEC of 15 February 1971 on health problems affecting the production and placing on the market of fresh poultrymeat (OJ, English Special Edition 1971 (I), p. 106). 4 — Council Directive 91/495/EEC of 27 November 1990 con- cerning public health and animal health problems affecting the production and placing on the market of rabbit meat and farmed game meat (OJ 1991 L 268, p. 41). 5 — Council Directive 92/5/EEC of 10 February 1992 amending and updating Directive 77/99/EEC on health problems (g) the treatment provided for in the affecting intra-Community trade in meat products and preceding points is carried out in the amending Directive 64/433/EEC (OJ 1992 L 57, p. 1). 6 — Council Directive 94/65/EC of 14 December 1994 laying establishment of origin or in any other down the requirements for the production and placing on establishment designated by the official the market or minced meat and meat preparations (OJ 1994 L 368, p. 10). veterinarian.'
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9. With regard to mechanically recovered meat in the Community prior to heat treat- fresh meat from poultry, rabbits and farmed ment. game, Article 5(3) of Directive 71/118 and Article 6(4) of Directive 91/495, which were added by Article 17 of Directive 94/65, pro- vide in the same terms that:
11. Article 4 of Directive 77/99/EEC, as amended and updated by Directive 92/5, provides for the possibility of this type of treatment as follows:
'Member States shall ensure that mechani- cally recovered meat may be traded only if it has previously undergone heat treatment in 'Member States shall ensure that, in addition accordance with Directive 77/99/EEC in the to the general requirements laid down in establishment of origin or any other estab- Article 3: lishment designated by the competent auth- ority.'
1. meat products:
(a) have been prepared by heating, curing, 10. The requirement of heat treatment, marinating or drying [...].' which is essential because mechanically recovered meat is highly perishable, applies to the marketing of any kind of fresh meat. However, in the case of poultry, rabbits and farmed game, intra-Community trading in mechanically recovered meat is subject to the requirement of prior heat treatment. So far as beef, veal, pigmeat, sheepmeat, goatmeat and 12. As can be seen, there are still no general the meat of domestic solipeds are concerned, Community measures harmonizing health Directive 64/433 does not expressly preclude conditions for the production and marketing the movement of mechanically recovered of mechanically recovered meat, although
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Article 21 of Directive 94/65 expressly pro- The first question vides for the adoption of such rules:
'The Council, acting by a qualified majority 14. By its first question the German court on a proposal from the Commission, shall seeks to determine whether the total prohibi- before 1 January 1996 lay down the health tion imposed by German law on the impor- rules applicable to: tation of frozen mechanically recovered meat is compatible with Directive 64/433 or, in the alternative, with Articles 30 and 36 of the EC Treaty.
[...] Interpretation of Directive 64/433
(b) the production and use of mechanically recovered meat.'
15. In relation to domestic bovine animals, swine, sheep, goats and domestic solipeds, Article 6(1 )(c) and (g) of Directive 64/433 provide that mechanically recovered meat must undergo heat treatment in accordance 13. These substantive Community provi- with Directive 77/99, which is to be carried sions concerning trade in fresh meat have out in the establishment of origin or in any been supplemented, from the procedural other establishment designated by the official viewpoint, by Directive 89/608/EEC, 7 veterinarian. According to those provisions, which permits the competent veterinary this type of meat must always undergo heat authorities in the different Member States to treatment before being consumed in order to assist each other to ensure more effective protect the health of consumers. The treat- application of the veterinary legislation. ment may be carried out in the establishment where the mechanical recovery process is carried out or in 'any other establishment 7 — Council Directive 89/608/EEC of 21 November 1989 on designated by the official veterinarian.' In the mutual assistance between the administrative authorities of the Member States and cooperation between the latter and latter case it is possible for the mechanically the Commission to ensure the correct application of legisla- recovered meat to be traded, but not con- tion on veterinary and zootcchnical matters (OJ 1989 L 351, p. 34). sumed, before it undergoes heat treatment.
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16. The answer to the German court's ques- 18. In my opinion, that narrow interpreta- tion depends on whether the official veteri- tion of Directive 64/433 is unacceptable. As narian, when designating a slaughterhouse the Commission pointed out in its observa- other than that which recovered the meat to tions, Article 6(1 )(g) of Directive 64/433 carry out heat treatment, must confine him- requires proximity, as regards time and loca- self to establishments in the country of ori- tion, between the mechanical recovery and gin or whether the 'other establishment' may the heat treatment of meat. Therefore it lays be in any other Member State. down, as the preferred course of action, that both operations should be carried out in the same establishment, failing which, it autho- rizes the official veterinarian to designate another establishment •where mechanically recovered meat can undergo heat treatment. In the latter case, the requirement of geo- graphical proximity neutralizes the poten- tially harmful effects on health of transport- ing meat of that kind, which is highly perishable.
17. The German Government supports a narrow interpretation of Directive 64/433 and takes the view that the establishment designated by the official veterinarian must always be situated in the Member State of origin where the meat is mechanically recov- 19. Where the second alternative is resorted ered. In its opinion, the consignment of meat to, the official veterinarian is not under any from one Member State to another requires, obligation to designate a slaughterhouse in under Directive 77/99, an inspection by the the Member State of origin of the meat as the official veterinarian of the State of origin in place for carrying out heat treatment. Article order to certify that the meat is healthy. 6(1 )(g) of Directive 64/433 refers to 'any Mechanically recovered meat satisfies the rel- other establishment,' so that it may be evant health requirements only after heat located in the Member State of origin or the treatment, which logically must always be Member State of destination of the meat. carried out in the State of origin. Mere freez- When choosing the most suitable establish- ing does not result in mechanically recovered ment for the heat treatment of mechanically meat becoming safe for consumption for the recovered meat, the official veterinarian must purpose of intra-Community trade. Accord- be guided by the object of avoiding any ing to the German Government, this inter- health risk caused by transport. Accordingly, pretation is confirmed by Article 17 of a slaughterhouse in another Member State, Directive 94/65, which prohibits trade in normally close to the frontier, may offer mechanically recovered meat from poultry, more effective health safeguards in the heat rabbits and farmed game before it undergoes treatment of this kind of meat than other heat treatment. establishments in the Member State of the
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origin of the meat, which may be at a rather try, rabbits and farmed game before it under- greater distance. goes heat treatment. The heat treatment of such meat must always be carried out in an establishment in the country of origin, because intra-Community trading is not allowed before heat treatment. According to the Commission, the reason for that prohibi- 20. This interpretation of Directive 64/433 tion is the particular susceptibility of meat of permits trading in and the free movement in that kind, which arises from the difficulty of the Community of mechanically recovered monitoring the food supply of poultry, rab- meat before it undergoes heat treatment and bits and farmed game. Mechanically recov- is therefore the interpretation most appropri- ered meat from domestic bovine animals, ate to the principle of the free movement of swine, sheep, goats and domestic solipeds is goods, which according to the Court's case- less perishable than that of poultry, rabbits law is one of the fundamental principles of and farmed game and therefore intra- the Common Market. 8 Community trade is permitted before the heat treatment which must precede con- sumption.
Furthermore, the protection of public health is adequately ensured since the official veteri- narian of the Member State of origin of the mechanically recovered meat is empowered to permit or disallow heat treatment in an establishment in another Member State, depending on the circumstances of each case. To that end, cooperation between the veteri- 22. O n the basis of the foregoing consider- nary authorities of the Member States, regu- ations I consider that Directive 64/433 does lated by Directive 89/608, permits adequate not permit a Member State to prohibit monitoring of the health characteristics of totally the importation of meat which has mechanically recovered meat which is sent been mechanically recovered in another for heat treatment to another Member State Member State and is brought into its terri- by decision of the official veterinarian of the tory for heat treatment and subsequent mar- State of origin. keting. Therefore the German rules imposing that prohibition are incompatible with Directive 64/433, as amended and consoli- dated by Directive 91/497, the application of which must be ensured by the national courts in accordance with the Court's case- 21. The interpretation of Directive 64/433 law upholding the principle that individuals which I propose is not precluded by Article may rely on directives. 9 17 of Directive 94/65, which prohibits trade in mechanically recovered meat from poul- 9 — See Case 8/81 Becker [1982] ECR 53; Case 152/84 Marshall v Southampton and South West Hampshire Area Health Authority [1986] ECR 723; Case C-91/92 Faccini Dori v 8 — See Case C-205/89 Commission v Greece [1991] ECR Recreb [1994] ECR 1-3325; and Case C-62/93 BP Supergas 1-1361, paragraph 9. [1995] ECR 1-1883.
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Alternative answer: the compatibility of the application of Community rules. 10 The Directive 64/433 with Articles 30 and 36 of Court has consistently held that 'the prohi- the Treaty bition of quantitative restrictions and of all measures having equivalent effect applies not only to national measures, but also to mea- sures adopted by the Community institu- tions'. "
23. If my proposed interpretation of Article 6(1 )(g) of Directive 64/433 is adopted, the question whether the German authorities' prohibition on the importation of mechani- cally recovered meat is compatible with 25. A prohibition on the importation of Articles 30 and 36 of the Treaty does not mechanically recovered meat which has not arise. undergone heat treatment constitutes a quan- titative restriction on imports prohibited by Article 30 of the Treaty. Moreover, it is the most serious type of barrier to intra- Community trade because it is total.
That question would fall to be considered only if the Court were to find that heat treatment must always be carried out in an establishment in the country of origin of the meat and that Directive 64/433 consequently 26. That prohibition of imports is formally prohibits intra-Community trade in meat discriminatory because it affects only which has been mechanically recovered but mechanically recovered meat from other has not undergone heat treatment. In that Member States. Therefore the restriction eventuality, which I shall examine briefly, the may be justified only on the grounds laid German provisions would constitute a down by Article 36 of the Treaty and not by proper implementation of Directive 64/433 the imperative requirements developed by and it would be necessary to consider the the Court in the case-law beginning with the compatibility of that directive with Articles Cassis de Dijon judgment. 12 30 and 36 of the Treaty.
10 — Sec, among others, M. López Escudero, Los obstáculos téc- nicos al comercio en la Comunidad Económica Europea, Granada, 1991, pp. 241-247; P. Oliver, 'La législation com- munautaire et sa conformité avec la libre circulation des marchandises', Cahiers de Droit Européen, 1979, N o 2, p. 245. 11 — Sec Case C-51/93 Meyhui v Schott Zwiesel Glaswerke [1994] ECR 1-3879, paragraph 11; also Case 15/83 Den- 24. Article 30 of the Treaty prohibits quan- teava NederUnd [1984] ECR 2171, and Case 37/83 Rewe- Zentrale v Direktor der Landwirtschaftskammer Rheinland titative restrictions on imports and measures [1984] ECR 1229. having equivalent effect. The prohibition 12 — See Casc 120/78 REWE-Zentrale v Bundesmonopolverwal- tung für Branntwein [1979] ECR 649, 'Cassis de Dijon'; applies to obstacles created by Member Case 113/80 Commission v Ireland [1981] ECR 1625; States to the movement of goods in the C-196/89 Italy v Nespoli and Crippa [1990] ECR 1-3647, and Joined Cases C-l/90 and C-176/90 Aragonesa de Pub- Community and also barriers arising from licidad Exterior and Publivía [1991] ECR 1-4151.
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27. In the present case reference has been safe for consumption, without impeding made to the protection of the health and life trade in the Community before the meat of humans, mentioned in Article 36 of the undergoes heat treatment. Treaty, as justifying the prohibition on the importation of mechanically recovered meat •which has not undergone heat treatment. N o doubt the transport of this type of meat before heat treatment entails health risks because such meat is perishable and the pro- 29. I therefore consider that the prohibition tection of public health is a general interest on imports of meat of that kind, resulting which must not be affected by free trading in from Article 6(1 )(c) and (g) of Directive this type of meat in the Community. 64/433, is a quantitative restriction on imports contrary to Article 30 of the Treaty. That conclusion is not undermined by the fact that Directive 64/433 was adopted pur- suant to the Treaty provisions concerning agricultural policy. As the Court has observed, 14 the extensive powers granted to It is therefore necessary to ascertain, in the Community institutions in the conduct accordance with the Court's case-law, 13 of the Common Agricultural Policy must be whether the prohibition of imports is the exercised from the perspective of the unity only possible means of avoiding the above- of the market, to the exclusion of any meas- mentioned health risks or whether there are ure compromising the abolition between other means which are less restrictive of Member States of quantitative restrictions or intra-Community trade in mechanically measures having equivalent effect. The pro- recovered meat. hibition of imports of mechanically recov- ered meat, deriving from Directive 64/433, is a disproportionate quantitative restriction which cannot be regarded as an intermediate step towards the free movement of that product in the Community. 28. In my opinion, the prohibition of imports is a disproportionate means of obvi- ating potential health risks arising from intra-Community trade in mechanically recovered meat. As both the Commission and the German national court observe, the The second question protection of public health may be ensured by requiring such meat to be frozen and transported in that condition. That require- ment, together with supervision by the vet- erinarian of the country or origin in consul- tation with his counterpart in the country of 30. As I consider that Directive 64/433 per- destination, would ensure that the meat was mits the import of meat mechanically recov-
13 — Sec, among others, Case C-17/93 Openbaar Ministerie v 14 — See Joined Cases 80/77 and 81/77 Commissionnaires Réunis Van der Veldt [1994] ECR 1-3537, paragraph 30. v Receveur des Douanes [1978] ECR 927, paragraph 35.
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ered in Belgium for subsequent heat treat- recovery of meat is carried out and those ment and marketing in Germany, it is neces- where it undergoes heat treatment must sary to answer the second question from the address their requests for cooperation to the German court. It concerns the possibility of appropriate central authorities, and the lat- coordinated action by the Belgian veterinar- ter's cooperation, provided for by Directive ian and the competent German veterinary 89/608, may take the form of spontaneous authorities. assistance or assistance in response to a prior request.
31. The directives concerning the produc- tion and marketing of fresh meat and meat products do not provide for machinery for 34. Article 6 of Directive 89/608 provides as systematic cooperation between the veteri- follows: nary authorities of the State of origin and the State of destination of those products in rela- tion to imports of mechanically recovered meat that have not undergone heat treat- ment.
'At the request of the applicant authority, the requested authority shall keep a watch or arrange for a watch to be kept or to be rein- 32. However, Directive 89/608 lays down a forced within its operational area where such procedure for mutual assistance and coop- irregularities are suspected, in particular: eration between the administrative authori- ties of the Member States and the Commis- sion to ensure the correct application of legislation on veterinary and zootechnical matters in the internal market. That pro- (a) on establishments; cedure is undoubtedly applicable to cases of the importation of mechanically recovered meat, and the veterinary authorities of the Member States concerned can use it to ensure proper protection of public health. (b) on places where stocks of goods have been assembled;
33. Under Article 2(2) of the abovemen- tioned directive, each Member State must inform the other Member States and the Commission of the competent central auth- (c) on notified movements of goods; ority through which assistance and coopera- tion in the matter of veterinary and zootech- nical controls are to be channelled. Therefore the veterinarians responsible for inspection of the establishments where the mechanical (d) on means of transport.'
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The veterinary authorities of the State of ori- assistance necessary for preventing potential gin of mechanically recovered meat, as well health risks arising from the import of as those of the State of destination, may rely mechanically recovered meat before it under- on that provision in order to set in motion goes heat treatment. the assistance on request or the spontaneous
Conclusion
35. H a v i n g regard t o the foregoing considerations, I p r o p o s e that the C o u r t reply as follows t o the questions from t h e national court:
(1) T h e p r o v i s i o n of Article 6(l)(c) and (g) of Directive 6 4 / 4 3 3 / E E C , as a m e n d e d a n d consolidated b y Directive 9 1 / 4 9 7 / E E C , d o n o t p e r m i t a M e m b e r State t o p r o h i b i t an a u t h o r i z e d establishment from i m p o r t i n g meat mechanically recovered and frozen in an a u t h o r i z e d establishment of a n o t h e r M e m b e r State, w i t h a view t o s u b s e q u e n t heat t r e a t m e n t and processing, p r o v i d e d that the official veterinarian of t h e M e m b e r State of origin has designated t h e establish- m e n t of the M e m b e r State of destination in w h i c h that o p e r a t i o n is t o be car- ried out.
(2) T h e veterinary authorities of the M e m b e r State of origin of mechanically recovered meat and t h o s e of the M e m b e r State of destination may, u n d e r the p r o c e d u r e laid d o w n b y Directive 8 9 / 6 0 8 / E E C , assist each other, u p o n request o r spontaneously, in o r d e r t o obviate potential health risks arising from the i m p o r t of mechanically recovered meat w h i c h has n o t y e t u n d e r g o n e heat treatment.
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