C-102/96

COMMISSION v GERMANY

OPINION OF ADVOCATE GENERAL LA PERGOLA delivered on 3 February 1998

1. In this application the Commission is properly implemented. Directive 64/433 was seeking a declaration by the Court that the subject to a number of amendments which Federal Republic of Germany has failed to are now consolidated in Directive 91/497. It fulfil its obligations under Directive harmonises the health regulations of the 64/433/EEC (as amended by Directive Member States in the area of trade in fresh 91/497/EEC 1), Directive 89/662/EEC 2 and meat to prevent any disparities between Article 30 of the Treaty. In particular, it claims national rules from acting as an obstacle to that the practice followed by the relevant intra-Community trade. 3 The provisions of German authorities in connection with the the directive with which this case is concerned importation of pigmeat from other Member are Articles 5 and 6. States is contrary to those directives and, moreover, is a measure having equivalent effect to a quantitative restriction, which is prohib- ited by Article 30.

Community legislation

In particular, Article 5(1 )(o) provides that 'Member States shall ensure that the official veterinarian declares unfit for human con- sumption ... meat which gives off a pro- 2. Let me briefly summarise the Community nounced sexual odour.' 4 legislation which, it is alleged, has not been

' 1 . Member States of destination shall imple- ment the following measures:

(iii) without prejudice to the cases pro- vided for in Article 5(1)(o) uncas- trated male pigs with a carcase weight (a) The competent authority may, at the places in excess of 80 kilograms, except where of destination of goods, check by means the establishment is able to guarantee of non-discriminatory veterinary spot- by means of a method recognised by checks that the requirements of Article 3 the procedure laid down in Article have been complied with; it may take 16, or in the absence of such a method samples at the same time. by a method recognised by the com- petent authority concerned, that car- cases giving off a pronounced boar 5 — Emphasis added. taint may be detected, 6 — See fourth recital.

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Furthermore, where the competent authority consignor or his representative the choice of the Member State of transit or of the of: Member State of destination has information leading it to suspect an infringement, checks may also be carried out during the transport of goods in its territory, including checks on compliance as regards the means of transport; — destroying the goods, or

— using the goods for other purposes, including returning them with the autho- ...' risation of the competent authority of the country of the establishment of origin.

It shall inform the Member States of its find- Where the checks provided for in Article 7 ings. show repeated irregularities, the competent authority of the Member State of destination shall inform the Commission and the veteri- nary departments of the other Member States.

Where these measures are taken to deal with The Commission, at the request of the com- repeated irregularities on the part of an estab- petent authority of the Member State of des- lishment, the Commission shall charge any tination or on its own initiative, and taking expenses occasioned by the application of the into account the nature of the infringements indents of the foregoing subparagraph to the established, may: establishment involved.

— send a mission of inspection to the estab- lishment concerned; or

Pending the Commission's findings, the Member State of dispatch must, at the request of the Member State of destination, intensify — instruct an official veterinarian, whose checks on products coming from the estab- name shall be on a list to be prepared by lishment in question, and if there are serious the Commission at the suggestion of the animal health or public health grounds, sus- Member States, and who is acceptable to pend approval.

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Subject-matter of the proceedings

Finally, paragraph 3 provided that Article 6(l)(b) of Directive 64/433, as amended by Directive 91/497, 'is transposed into national law with a limit level of 0.5 g/g for andros- 4. I now turn to the subject-matter of these terone, irrespective of weight limit. If this proceedings and the substance of the national level is exceeded, the meat gives off a pro- measures in issue. nounced sexual odour and is unfit for human

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The Commission then brought an action before the Court limiting its application to paragraph 3 of the note in issue. More spe- cifically, the applicant institution seeks the following form of order:

This is the substance of the national legisla- tion in issue. Furthermore, it is of general application, in that the note applies to prod- ucts from all the Member States. However, the problems which gave rise to this applica- 'A declaration that the Federal Republic of tion relate exclusively to imports of pigmeat Germany has failed to fulfil its obligations from Denmark, in that — as will be explained under Articles 6(1)(b) and 5(1)(o) of Direc- below — the German authorities object to tive 64/433/EEC, as amended by Directive

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91/497/EEC, in conjunction with Articles The defendant Member State defended the 5(1), 7 and 8 of Directive 89/662/EEC and action calling for the dismissal of the applica- Article 30 of the Treaty, tion and an order requiring the Commission to pay the costs.

in imposing a particular requirement for spe- The harmonisation brought about by Direc- cial marking and heat treatment of carcases of tives 64/433 and 89/662 uncastrated male pigs pursuant to Article 6(1)(b) of the directive irrespective of the weight of the animal, as soon a concentration of androsterone over 0.5 g/g can be detected in the meat by applying Professor Claus's modified immuno-enzyme test

establish Community procedures to check between the health requirements of Member that they are observed, recourse to Article 36 States concerning meat'. The third recital is no longer justified and the appropriate points to the need to eliminate such differ- checks must be carried out and the measures ences by approximating the provisions of the of protection adopted within the framework Member States in this area; according to the outlined by the harmonising directive'. 7 following recital 'the object of this approxi- mation must be ... to standardise ...' the above health requirements. The recitals in the pre- amble to Directive 91/497 in this regard are even more explicit: the need to 'harmonise the conditions under which certain meat is declared unfit for human consumption' 8 is seen by the legislature as a direct consequence It is, therefore, my opinion that the investiga- of the abolition by Directive 89/662 of vet- tion into the question whether there has been erinary checks at the frontiers of the Member harmonisation holds the key to the correct States. The directive under consideration, then, interpretation of this case. In making this is included amongst the 'measures for the assessment, I believe we should consider gradual establishment of the internal mar- Directives 64/433 and 89/662 together: the ket'. 9 From that point of view Directive purpose of the first is to lay down rules in 89/662 complements Directive 64/433 in that respect of the health requirements for the its objective is to relocate veterinary checks in production and marketing of fresh meat; the the place of origin, so that goods which meet second lays down the rules relating to 'vet- Community requirements can be moved freely erinary checks in intra-Community trade with within the Community unhindered by obsta- a view to the completion of the internal mar- cles which might otherwise result from sub- ket'. Accordingly the Community rules con- sequent checks justified by the need to ensure cerning trade in pigmeat, in so far as they are the protection of public health. relevant here, derive from these two pieces of legislation read in conjunction with one another.

the judgment in the Delhaize Frères case 10 6. It now remains to be seen in the light of which seems to me to be of particular interest: the relevant substantive provisions of the '... as far as fresh meat is concerned, the Court directive whether it is possible to speak of has already stated in its judgment of 15 total harmonisation even in the specific cir- December 1976 in Case 35/76 Simmenthal cumstances of this case, that is to say the [1976] ECR 1871 that the harmonised system detection of a pronounced sexual odour which of public health inspections, introduced in renders meat unfit for consumption. The particular by Directive 64/433, has as its aim German Government argues that we cannot, the abolition of barriers to intra-Community on the ground that the Community legisla- trade in fresh meat by the harmonisation of tion has not established either a standard level public health measures. That system, which is at which it is agreed that a pronounced sexual based on the principle that the public health odour is given off or a common method for guarantees required by all the Member States measuring that level. O n that basis it con- are equivalent, accordingly has as its purpose cludes that, in the absence of a common ref- to transfer supervision to the exporting erence level, each Member State is free to set Member State and to replace in this way the its own. systematic measures of protection at the fron- tier with a uniform system so as to make multiple frontier inspections unnecessary, whilst at the same time giving the Member State of destination the opportunity of ensuring that the guarantees provided by the system of inspections thus standardised are in fact given'. However, I am not swayed by that argument. First of all, the objective of harmonisation, and thus liberalisation, which the Commu- nity legislature had in mind in drawing up the legislation in question would thereby be frus- trated. Elsewhere, 12 the Court has demon- strated its preference for the only interpreta- tion which is compatible with the fundamental principles of the single market and the free In the judgment in the Ligur Carni case 1 1the movement of goods. Court recognised that '... the directive estab- lished a harmonised system of health inspec- tions, based on the principle that the public health guarantees required by all the Member States are equivalent, which ensures the pro- tection of health and at the same time equal treatment of products. The purpose of that system is to transfer supervision to the exporting Member State'. Moreover, it would, in my view, be erroneous to maintain that harmonisation exists only where the legislature has laid down a uniform 10 — Joined Cases 2/82, 3/82 and 4/82 Delhaize Frères [1983] ECR 2973, paragraph 11. Emphasis added. 11 — Joined Cases C-277/91, C-318/91 and C-319/91 LigurCarni [1993] ECR I-6621, paragraph 25. Emphasis added. 12 — See Case C-105/95 Paul Daut [1997] ECR I-1877.

standard. It is true that, in the present case, in terms of absolute equivalence. Hence the there is no such standard, in the sense that the objective of approximating the relevant health legislature has not 'quantified' the pronounced regulations is achieved here through the sexual odour which renders meat unfit for Member States' agreeing, in adopting this consumption; and it is also true that Article directive, to assume the obligation to accept 6(l)(b)(iii) of the directive provided for the the decisions of the authorities of the country establishment of a common method for of origin. detecting such sexual odour. However, the same article provides that in the absence of a common method, that 'recognised by the com- petent authority concerned' is to apply, that is to say, the method adopted by the authori- ties of the country of origin. Now, for present purposes, it seems to me that this constitutes harmonisation. We must bear in mind that the work of the legislature aimed at harmon- ising health regulations for trade in meat is not an end in itself but a means of achieving an ultimate purpose: 13 in this case to allow the free movement of goods which meet the harmonised requirements. That purpose can be achieved by means of legislative techniques which are different but substantially equiva- lent as regards the final result. A common 7. Furthermore, Directive 89/662 provides for rule may be laid down to replace the corre- the possibility for the Member State of des- sponding national standards and that is the tination of the goods to carry out non- first possibility envisaged by Article 6(1)(b)(iii) discriminatory spot-checks to ensure the which refers to 'a method recognised by the goods conform to the health regulations in procedure laid down in Article 16'; or else, force. 14 This is obviously a provision intended and this is the possibility which concerns us, to safeguard public health through the system in the absence of such a method, the detec- set up by this directive: it makes it possible to tion of pronounced sexual odour may be a prevent the marketing of meat where irregu- matter for the competent authorities of the larities are found in the consignment. 15 In country of origin of the goods. For the pur- such a case, however, the State availing itself poses of this case, the two possibilities are of that option is required to set in motion equivalent. The above legislation purposely 'without delay' the special procedure set up makes provision for both as alternatives but by Article 8 to deal with any complaints which may be made regarding the conformity of the goods with health regulations.

9. I now turn to consider the Commission's 8. In the light of these preliminary observa- claim alleging a breach of Article 5(1)(o) of tions, I now turn to the alleged infringement Directive 91/497 in conjunction with Article of these directives. 8 of Directive 89/662. According to the appli- cant institution, the failure to fulfil obliga- tions lies in the fact that the German authori- ties refused to recognise that pigmeat imported from Denmark meets the relevant health requirements but did not set in motion the special procedure under Article 8. Here, too, the problem raised by the defendant govern- ment relates to the detection of a pronounced sexual odour in pigmeat: the German authori- In this connection, I do not believe there is ties do not recognise the validity of the Scatol any doubt that the requirements imposed by method used by the Danish authorities to the German authorities relating to the special detect pronounced sexual odour. Instead they marking and heat treatment of pigmeat are use Professor Claus's method and maintain, contrary to Article 6(1)(b)(iii). That provision as set out in paragraph 3 of the note in issue, is clear and unequivocal: only carcases that meat containing a level of androsterone weighing in excess of 80 kilograms must bear higher than 0.5 g/g gives off a pronounced the special mark and undergo heat treatment, sexual odour and is therefore not fit for human except where the establishment is able to consumption. guarantee by means of a common method or, in the absence of such a method, by means of a method recognised by the competent authority of the country of origin, that 'car- cases giving off a pronounced boar taint may be detected'. The German authorities on the other hand require special marking and heat treatment for carcases below the threshold of In my view, this claim by the Commission 80 kilograms. Moreover, they impose these should also be upheld. It turns on the failure requirements despite the fact that the authori- to set in motion the procedure required by ties of the country of origin are using a Article 8 and there is no doubt that the method suitable for detecting meat which German authorities did not use that proce- gives off a pronounced sexual odour; indeed, dure. The fact that the provision in question in the note in issue it is expressly stated that allows the Member State no discretion as to 'only the modified immuno-enzyme test of whether to set in motion the procedure in Professor Claus is recognised as a specific question is similarly beyond doubt: under

10. In my view, the arguments put forward by the defendant government cannot be upheld. As regards the allegation just consid- ered, the German Government confines itself to denying, without more, its failure to set in motion the procedure under consideration, but without furnishing any evidence to sub- stantiate the contention made in its own defence. Accordingly, for the purposes of these proceedings, the Federal Republic of Germany has not discharged the burden of 12. The defendant Member State argues fur- proof incumbent upon it; for that reason its ther that the Danish authorities use a method defence should be rejected as not proven. which is scientifically unsuitable for detecting sexual odour. In its written observations, the German Government argues that it is willing to accept the principle that checks for 'pro- nounced sexual odour' should be carried out by the authorities of the country of dispatch using methods recognised by those authori- ties, but they must none the less use suitable methods. This was allegedly not the case here, 11. As regards, then, the national legislation in issue under which the conformity with since the Scatol method used by the Danish health requirements of meat is only recogn- authorities does not allow the presence of ised if it has a level of androsterone of below sexual odour to be detected properly. In other words, the German Government appears to acknowledge, in the abstract, the power of the authorities of the countries of origin, but 16 — The wording used in the directive is 'the competent authority of the Member State of destination shall contact'; this makes denies that, in this case, that power was prop- plain that this course of action is compulsory and not erly exercised. optional.

However, that argument also strikes me as point out here that the Court has consistently unfounded. I concur with the German Gov- held that, if a Member State considers that ernment in the fact that the competent author- another Member State has failed to fulfil its ities of the country of origin must use 'suit- obligations under a directive, it must bring able methods', that is to say methods suited proceedings against the State allegedly in to achieving the result required by the provi- breach of its obligations for a declaration to sion in question, particularly as the system set that effect and to bring the infringement to an up by the directives is based precisely on the end. 18 However, I do not believe that the confidence which the authorities of the State concerned can act unilaterally and impose country of destination must have in the checks substantive requirements for the marketing of carried out by the State of dispatch; therefore pigmeat which are not provided for in the — as the sixth recital in the preamble to relevant Community legislation.

13. In any event, leaving aside the question methods to detect pronounced sexual odour. of recourse to the above procedure, I would If the defendant Member State considers that the Danish authorities are using unsuitable methods — and are not therefore properly implementing the directive — it can (and 17 — At the hearing the question was discussed whether the pro- cedure provided for in Article 8 could usefully be imple- mented in this use: in particular, it was said that there would be no 'irregularity' within the meaning of that article, since every Member State would be free to fix the limit level for sexual odour and the methods for detecting it.

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indeed, must) use the administrative and judi- Infringement of Article 30 cial mechanisms provided for by the system. The path followed by the German Govern- ment — that is to say, taking matters into its own hands by introducing requirements not provided for by the directive — is, on the other hand, contrary to the logic of the Com- munity legal order.

20 — See Case 8/74 [1974] ECR 837, paragraph 5.

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I would add with health regulations and thus to use that public health can be adequately protected methods which are objectively suitable for by means of the special procedure which, detecting the presence of any 'pronounced however, the defendant State unjustifiably sexual odour'. The special procedure pro- failed to use: according to the sixth subpara- vided for in Article 8 is specifically intended graph of Article 8(1), 'pending the Commis- to iron out speedily any possible disparities sion's findings, the Member State of dispatch in assessment which may arise between must, at the request of the Member State of national authorities regarding the conformity destination, intensify checks on products of meat with the health requirements in force. coming from the establishment in question, and if there are serious animal health or public health grounds, suspend approval'; the eighth subparagraph goes on to provide that 'at the request of one of the two Member States con- cerned — where the irregularities are con- firmed by the expert's opinion — the Com-

Obviously those require- ments include the absence of a pronounced sexual odour, which, according to Article 5(o) of Directive 64/433, renders meat unfit for human consumption. If the competent authority of a Member State finds that the goods do not meet those requirements it can, under Article 7(l)(b), give the consignor the choice of 'destroying the goods or using the goods for other purposes, including returning them with the authorisation of the competent To conclude, then, I do not consider that the authority of the country of the establishment grounds provided for in Article 36 can be

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intervention to guarantee the protection of obviate any breach by another Member State health to be dealt with. of rules of Community law'. 22

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rule of law the concept of 'rough justice' — remedies to which the Member States must on 'which the German Government has largely submit. For these reasons, I do not consider relied in the case now before the Court — is that I can endorse the position of the defen- necessarily subordinated to a structure of legal dant government in this case.

Conclusion

17. I n the light of the foregoing considerations, I therefore p r o p o s e that the C o m - mission's application s h o u l d b e u p h e l d in its entirety a n d that the defendant State s h o u l d be o r d e r e d t o p a y t h e costs.

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