C-67/97

BLUHME

OPINION OF ADVOCATE GENERAL FENNELLY delivered on 16 June 1998 *

1. This case concerns restrictions on the benefit from full compensation by the Danish 4 keeping of bees other than brown bees on the State. It is also forbidden to introduce onto small and remote Danish island of Læsø, situ­ the island any living domestic bees, any repro­ ated 22 km from the mainland. It raises, in ductive material for domestic bees or any used particular, the questions whether such restric­ apicultural equipment which has not been 5 tions come within the scope of application of cleaned. Failure to comply with the Deci­ 6 Article 30 of the Treaty regarding measures sion is subject to a fine. equivalent to a quantitative restriction on imports, and, if so, whether they are justified.

* Original language: English. 1 — Law No 267 of 6 May 1993 on bec-kecping (Lov om biavl), now codified by Law No 585 of 6 July 1995. 4 — Article 7 of the Decision. 2 — Article 1 of the Decision. 5 — Article 6 of the Decision. 3 — Article 2 of the Decision. 6 — Article 9 of the Decision.

I - 8035

OPINION OF MR FENNELLY — CASE C-67/97

The public prosecutor argued that Article 30 5. The national court decided to refer the fol­ was not applicable because the effects of the lowing questions to the Court for a prelimi­ Decision were entirely internal to Denmark nary ruling pursuant to Article 177 of the and were not restrictive of imports. Treaty:

I - 8036

BLUHME

(2) If a Member State can introduce such (ii) submits that the brown bees to be rules, the Court is requested to describe found on Læsø are not unique but in general the conditions governing those are found in many parts of the rules and in particular to answer the fol­ world; and lowing questions:

(a) Can a Member State introduce such rules as described in (1) on the ground that the rules concern solely such an island as described and that the effect (iii) submits that those bees are not of the rules is therefore geographi­ threatened with eradication. cally limited?

(b) Can a Member State introduce such rules as described in (1) if the reason for those rules lies in the desire to protect the bee strain Apis mellifera mellifera against eradication, an objec­ tive which, in the Member State's opinion, can be attained by excluding In its response, the Court is therefore all other bee strains from the island requested to indicate whether it is sufficient in question? that the Member State in question considers it appropriate or necessary to introduce the rules as a step in preserving the bee population in question, or whether it must be regarded as a further condition that the bee strain exists, and/or that it is unique, and/or In the criminal proceedings under­ that it is threatened with eradication if the lying this order for reference, the import ban is not valid or cannot be enforced. accused:

(i) disputes that there is at all any such bee strain as Apis mellifera mellifera and submits that the (c) If the grounds set out in (a) or in (b) bees at present to be found on cannot make it lawful to introduce Læsø are a mixture of different such rules, can a combination of those bee strains; grounds make it so lawful?

7. The defendant argues that intra-community trade in bees should be presumed to exist, as it is expressly regulated by Article 8 of Council Directive 92/65/EEC of 13 July 1992. 8 Fur­ thermore, Article 3 of that Directive provides (3) What constitutes a pedigree ground (Arti­ that trade is not to be restricted on animal cle 2)? health grounds other than those set out therein or in other Community legislation. The defen­ dant also contends that even restrictions on the marketing of goods which operate inter­ nally, or in only part of a Member State's ter­ ritory, are subject to the prohibition in Arti­ cle 30 of the Treaty of measures equivalent to quantitative restrictions on imports, whether (4) Must Directive 91/174 be understood as meaning that a Member State may, not­ withstanding the Directive, ban the impor­ tation onto an island such as that described 8 — Council Directive 92/65/EEC of 13 July 1992 laying down animal health requirements governing trade in and imports in Question (1) of Part I and the existence into the Community of animals, semen, ova and embryos not there of all bees other than bees belonging subject to animal health requirements laid down in specific Community rules referred to in Annex A(I) to Directive to the strain Apis mellifera melliferai 90/425/EEC, OJ1992 L 268, p. 54.

I - 8038

BLUHME

9. The defendant contends that Directive 91/174 does not apply to bees and that the choice by farmers of the animals which they wish to breed, whether cattle or bees, should not be subject to restrictions. 8. The defendant argues that the Court cannot consider the possible justification of the restriction under Article 36 of the Treaty, as this provision was not invoked by the national court. If it is to be applied, Denmark bears the burden of proof. There is no question of the health of bees on the island being threat­ ened by disease. The defendant submits evi­ dence that the brown bee is not a threatened subspecies: far from being restricted to small 10. Denmark argues that Directive 91/174 parts of the United Kingdom, Sweden, does not apply to the present case, as the Norway and Læsø, it can be found in large national rules in question are not restrictions numbers in South Africa, Tasmania and South on the marketing or reproduction of pure­ America. Furthermore, surveys of the brown bred animals. Moreover, as no detailed rules have been adopted regarding bees, the case falls to be decided under the general provi­ sions of the Treaty. Denmark contends that 9 — Joined Cases 177/82 and 178/82 Van de Haar and Kaveka de the effects of the Decision, whereby a person Meern [1984] ECR 1797, hereinafter 'Van de Haar'; Case 286/81 Oosthoek's Uitteversmaatsehappij [1982] may be sanctioned for keeping a particular ECR 4575, hereinafter 'Ooslhoek's'; Case 21/88 Du Pont de Nemours Italiana [1990] ECR I-889. subspecies of bees on a particular island which 10 — OJ 1992 L 206, p. 7. constitutes just 0.3% of national territory, arc

entirely internal. 1 Denmark requests the bee of Læsø remains a very pure example of Court not to follow its judgment in Pistre the subspecies Apis mellifera mellifera, with a 12 and Others in so far as it permits the appli distinct DNA pattern. However, it is becoming cation of Article 30 to such purely internal increasingly rare on the island, and the purity situations. The restriction is non of its genetic make-up is under threat due to discriminatory. As it only affects the keeping the recessive character of its genes relative to of bees rather than their import, and can, thus, those of the more common golden bee.

In any event, any non-discriminatory restriction of intra-community trade arising from the appli cation of the Decision would be justified by reference to the public interest in biological diversity, as evidenced by the adoption of Directive 92/43/EEC and by the Council's decision to conclude the Rio Convention on 15 biological diversity of 5 June 1992. The restrictions imposed by the Decision are con 11. Italy and Norway generally support the sistent with the Rio Convention principle of arguments of Denmark. Norway states that conservation in situ. According to a series of establishment of zones of pure stock within studies between 1986 and 1996, the brown a Member State to prevent inter-breeding is non-discriminatory and does not affect the

2 13 — Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097. 35 000 km breeding zone for the brown bee 14 — Case C-379/92 Peralta [1994] ECR I-3453; Joined Cases has been established on a voluntary basis. This C-140/94 to C-142/94 DIP and Others v Comune di Las- sano del Grappaand Comune di Chioggia [1995] ECR I-3257, hereinafter 'DIP'. 15 — Council Decision of 25 October 1993 concerning the con clusion of the Convention on Biological Diversity, OJ 1993 L 309, p . 1. The Convention is referred to hereinafter as 'the 16 — Case 75/81 Blesgen v Belgium [1982] ECR 1211. Rio Convention'. 17 — Peralta, loc. cit., and DIP, loc. cit.

12. The Commission argues that restrictions confined to only part of a Member State's ter­ ritory may be contrary to Article 30 of the 13. The Commission states that, although 1 Treaty. 8The restriction in question is, to use bees come within the scope of Directive the terms of the Keck and Mithouard judg­ 91/174, which applies to 'any animal for 23 ment, a product rule rather than a marketing breeding covered by Annex II to the Treaty', rule, and affects the competition between since no measures have been adopted regarding keepers of brown bees and keepers of golden bees under Article 6 of the Directive, the bees on the island. Thus, the effects of the matter must be judged by reference to the Decision on intra-community trade are more general rules, already discussed, in Articles 30 19 than merely hypothetical. Furthermore, the and 36 of the Treaty, application of Article 30 does not depend 20 upon the degree to which trade is affected. The reference in Article 36 of the Treaty to the health and life of animals should be under­ stood as extending to the protection of whole Analysis species or subspecies, or of subgroups within a species or subspecies, from extinction, or for scientific or breeding purposes. Even if the Commission believes that the brown bee of Læsø is not a genetically distinct subspe­ cies, it is for the Member States to determine Part II of the national court's questions the degree of protection of species, subspe­ 21 cies or subgroups. In order to benefit from the application of Article 36 of the Treaty, it

whether bees are pure-bred animals for the Member States which are capable of hin­ purposes of Directive 91/174. Since, as the dering, directly or indirectly, actually or poten­ Commission says, no detailed rules in respect tially, intra-Community trade are to be con­ of bees have been adopted pursuant to Arti­ sidered as measures having an effect equivalent cle 6 of the Directive, the final sentence of to quantitative restrictions'. The Court has Article 2 applies and 'national laws ... remain described a prohibition on imports as 'the 25 applicable with due regard for the general most extreme form of restriction'. It has provisions of the Treaty'. Accordingly, even if also been established by the case-law fol­ 26 bees fall within the scope of application of lowing 'Cassis de Dijon' that, 'in the absence Directive 91/174, the questions referred by of harmonisation of legislation, obstacles to the national court regarding that Directive free movement of goods which are the con­ should be interpreted as raising the same sequence of applying to goods coming from issues as the questions raised in Part I: firstly, other Member States where they are lawfully the question of whether the Danish rules manufactured and marketed, rules that lay come within the scope of Article 30 of the down requirements to be met by such goods Treaty and, secondly, whether they may be (such as those relating to designation, form, justified either by reference to Article 36 or as size, weight, composition, presentation, label­ mandatory requirements of national law pur­ ling and packaging) constitute measures of suing a public-interest objective. equivalent effect prohibited by Article 30. This is so even if those rules apply without dis­ tinction to all products unless their applica­ tion can be justified by a public-interest objec­ tive taking precedence over the free movement 27 of goods'.

18. It is also clear that the slight effect of the Decision, in volume terms, on trade cannot, in itself, prevent the application of Article 30 of the Treaty. As the Court stated in Van de Haar, 'Article 30 of the Treaty does not dis­ tinguish between measures having an effect equivalent to quantitative restrictions according to the degree to which trade between 29 Member States is affected'. Article 30 pro­ hibits national measures capable of hindering 17. The Court has indicated that a national imports 'even though the hindrance is slight rule which has limited territorial scope, and even though it is possible for imported 30 because it applies only to a municipality or to products to be marketed in other ways'. A legislative measure of general application a part of the national territory, 'cannot escape which affects the conduct of an economic being characterised as discriminatory or pro­ activity by all persons and undertakings in a tective for the purposes of the rules on the defined part of the national territory will free movement of goods on the ground that always, in my view, be capable of hindering it affects both the sale of products from other trade. parts of the national territory and the sale of products imported from other Member 28 States'. Thus, the fact that the Decision restricts the import and keeping of bees only in respect of the island of Læsø does not, in principle, prevent its examination in the light of the requirements of Article 30 of the Treaty. I agree with the statement made at the oral hearing by the agent for the Commission that

restrictive effects which [the Decision] might on intra-Community trade is, as already stated, have on the free movement of goods are too irrelevant. uncertain and indirect for the obligation which it lays down to be regarded as being of a nature to hinder trade between Member 31 States'. This argument should not be accepted, as it confuses scale with remoteness. The rules at issue in Peralta were argued to affect all Italian sea-borne trade in goods; in DIP to hinder retail sales generally throughout Italy; in Krantz to affect the supply of all goods in the Netherlands on the basis of instalment payments; and in CMC Motorrad- center to undermine all parallel trade in goods subject to guarantees which were not honoured by authorised dealers in the country 20. It has also been contended that the Deci­ of destination. However, the causal link sion is merely akin to a national rule on selling between these measures and any effect on arrangements, and that, therefore, by virtue intra-Community trade was a matter of pure of the judgment in Keck and Mithouard, it chance; in other words, it was too remote. falls outside the scope of Article 30 of the The Court was simply not prepared to accept Treaty. This contention seems to be founded that national rules on discharges from ships on the fact that the Decision does not restrict into the sea, on planning authorisation and the import of bees into Danish territory in licensing of shops, on the seizure of goods in general, but simply limits their distribution in the possession of tax defaulters and on the a part of that territory. In this regard, an provision of information in good faith when analogy has been proposed by Italy with the concluding contracts were liable to have a decision of the Court in Blesgen v Belgium discernible effect on trade. On the other hand, that restrictions on the marketing of certain the impact on trade of the Decision at issue alcoholic beverages on premises open to the in the present case is direct and immediate. public, which did not affect other forms of 33 The import of bees from other Member States marketing of the same drinks, were not to a part of Danish territory is directly pro­ contrary to Article 30. In my view, this argu­ hibited. In such a case, the scale of the effect ment should be rejected. Although the restric­ tion only affects a small part of Danish terri­ tory, it has the effect, in its area of application, of a total prohibition on marketing of bees other than the brown bee of the island itself. Although a prohibition on marketing may be

described, in literal terms, as a rule 'restrict­ event, it should by now be clear, I think, that ing or prohibiting certain selling arrange­ the Decision is capable of affecting the mar­ ments', it is equally well described in this case keting in Denmark of products from other as a product rule. Only products — bees — Member States. In these circumstances, it is of a certain colour, wing-span and origin can settled law that it is for the national court, be marketed or kept in Læsø. For the avoid­ within the system established by Article 177. ance of doubt, one need only look to the of the Treaty, to weigh the relevance of the overriding criterion which determined the questions referred by it to the Court, in the 37 Court's landmark decision in Keck and Mith- light of the facts of the case before it. The 34 ouard, that of market access. Such access is continued validity of this approach to the clearly blocked in the case of the Læsø market; relationship between the Court and the no alternative means of marketing non-Læsø national court is demonstrated by the deci­ 35 bees is permitted on the island. sion in Giloy v Hauptzollamt Frankfurt am Main-Ost, in which the Court confirmed its willingness to deal with references where Community-law provisions are employed in national law 'to determine the rules appli­ cable to a situation which is purely internal to 38 that State'.

34 — Loc. cit., paragraph 17. 37 — Case 298/87 Smanor [1988] ECR 4489, paragraphs 8 and 9. 35 — It can also be argued that the Decision does not 'affect in the 38 — Case C-130/95 [1997] ECR I-4291. Advocate General Jacobs same manner, in law and in fact, the marketing of domestic recommended that the Court refuse to address questions products and those from other Member States', as is required regarding the application of Article 30 in the contexe of a if restrictions on selling arrangements are to escape the reach purely internal situation, in Piilret loc. cit., paragraph 40 of of Article 30 of the Treaty; ibid., paragraph 16. See the dis­ his Opinion, in part because he had advocated a different cussion below of whether the Decision is discriminatory in approach in his Opinion in Giloy to that ultimately adopted character. by the Court in that case, which had not yet been decided. 36 — Oostboek's, loc. cit., paragraph 9; Joined Cases 314/81 to The interpretation of Article 30 may be relevant to a case 316/81 and 83/82 Procureur de la République v Waterkeyn which is internal to one Member State if, for example, [1982] ECR4337, paragraphs 11 and 12; Case 98/86 Min- national rules prohibit reverse discrimination: see the Opinion istère Public v Mathol [1987] ECR 809, paragraph 9. of Advocate General Jacobs in Pistre, ibid., paragraph 35.

I - 8045

OPINION OF MR FENNELLY — CASE C-67/97

23. In the alternative, one can argue on at least two grounds that the Decision is not discriminatory, at least in so far as it affects the defendant, but constitutes, instead, an indistinctly applicable restriction on imports.

39 — Du Pont de Nemours Italiana, loc. cit., paragraph 12. 40 — Ibid., paragraph 13. 41 — Aragonesa, loc. cit., paragraph 24. Sec also Case C-3/88 Commission v Italy [1989] ECR 4035, paragraph 9; Case 42 — See Case 113/80 Commission v Ireland [1981] ECR 1625; C-353/89 Commission y Netherlands [1991] ECR I-4069, Du Pont de Nemours Italiana, loc. cit., paragraph 14; Pistre, paragraph 25; Case C-360/89 Commission v Italy [1992] loc. cit., paragraph 52; Aragonesa, loc. cit., paragraph 13; ECR I-3401, paragraphs 8 and 9. Walloon Waste, loc. cit., paragraph 9.

I - 8046

BLUHME

favouring one subspecies over the other need order to limit as far as possible the transport not, if they serve a legitimate public-interest of waste.... It follows that having regard to objective related to that distinction, be the differences between waste produced in regarded as discriminatory. different places and to the connection of the waste with its place of production, the con­ tested measures cannot be regarded as dis­ 44 criminatory.'

43 —• Loc. cit. 44 — Ibid., paragraphs 34 and 36.

I - 8047

OPINION OF MR FENNELLY — CASE C-67/97

I - 8048

BLUHME

reinforced by the Community objective, under geographical scope of the Decision, as well as Article 13 Or of the Treaty, of 'prudent and to the defendant's contentions regarding the rational utilisation of natural resources'. degree of inter-breeding which has already occurred on Læsø, the allegedly non-unique character of the brown bee of Læsø and-the alleged absence of any danger of eradication of the brown bee world-wide.

28. Should the Court not accept such an interpretation of Article 36, it would, I think, be possible to justify an indistinctly appli­ cable restrictive measure imposed to protect a distinct animal population by reference to the mandatory requirement of environmental 30. The Court has stated that, in the absence 46 protection. Support for such a justification of harmonised standards, it is for the Member can be found in the Rio Convention. The States to decide the degree of protection of Contracting Parties affirm 'that the conserva­ human health under Article 36 as well as the tion of biological diversity is a common con­ way in which such protection is to be achieved, cern of humankind'. Article 2 of the Rio Con­ subject to the limits imposed by the Treaty, vention confirms that it also applies to 47 including the principle of proportionality. 'domestic or cultivated species', which are This means that restrictions must meet 'a 'species in which the evolutionary process has genuine need of health policy' and 'must be been influenced by humans to meet their restricted to what is actually necessary to needs'. secure the protection of public health', with due account being taken of the scientific evi­ 48 dence available.

be, the mandatory requirement of environ­ but merely a geographically and morphologi­ mental protection. Article 2 of the Rio Con­ cally distinctive population of the subspecies vention defines 'biological diversity' as 'vari­ Apis mellifera mellifera, which subspecies, it ability among living organisms from all has been argued, is found in a number of sources', including 'diversity within species'. countries. For the purposes of the present The Convention avoids confining its protec­ case, the brown bee of Læsø Apis mellifera tion to species or subspecies, preferring to use mellifera is clearly distinct from the golden more general descriptions of the diverse types bee favoured by the defendant, provided it is of organisms to which it relates. Thus, it established that the brown bee population has defines 'genetic resources' merely as 'genetic 49 been maintained in a relatively pure state. The material of actual or potential value', without degree of distinctiveness within subspecies reference to established taxonomie distinc­ would be material to the outcome only if the tions between species and subspecies, and defendant sought to import or keep brown refers simply to the 'distinctive properties' bees from outside Læsø. Furthermore, the developed by domesticated or cultivated spe­ 50 relevant framework for analysis must, in my cies. This is consistent with the approach of a number of other international instruments view, be the Danish population of the brown on the protection of wildlife. Article 1(a) of bee, so that the Danish authorities are entitled the Convention on International Trade in to respond to threats to the continued exist­ Endangered Species of Wild Fauna and Flora ence of that population even if brown bees signed in Washington on 3 March 1973 defines survive and thrive in a relatively pure state 'species', for its purposes, as 'any species, elsewhere in the Community or in the world. subspecies or geographically separate popula­ The population in question need not be in tion thereof'. Article I of the Bonn Conven­ immediate danger of eradication, although tion on the Conservation of Migratory Spe­ Denmark appears to take the view that such cies of Wild Animals defines 'migratory a danger exists in the present case. The Com­ species' as 'the entire population or any geo­ munity's own environmental policy empha­ graphically separate part of the population of sises, in Article 130r of the Treaty, the pre­ any species or lower taxon of wild animals'. cautionary principle and the principle that preventive action should be taken. Moreover, the Contracting Parties to the Rio Conven­ tion note 'that it is vital to antidpate, prevent and attack the causes of significant reduction 51 or loss of biological diversity at source', indicating that preemptive steps should, if necessary, be taken. This is for the national court to determine, in the light of the evi­ dence of the general dominance of the golden bee and relevant scientific evidence concerning the genetic character of the brown bee, in 32. It is, therefore, permissible for the Danish authorities to seek to conserve the brown bee of Læsø even if it is not a distinct subspecies

35. In assessing the proportionality of the 34. The effectiveness and appropriateness of Decision, the national court should also bear the measures adopted by Denmark in the in mind its limited geographical scope. The Decision must still be determined in the con­ restriction on the exercise of Community-law text of the present case. Thus, it is for the rights in Denmark is correspondingly reduced. national court to establish whether the brown The fact that the Decision imposes obliga­ bee of Læsø still survives in a relatively pure tions, rather than proceeding on a voluntary state. If the brown bee population of Læsø basis, does not establish that it is dispropor­ has already been substantially corrupted by tionate. It is clear that full compliance by bee­ inter-breeding with golden bees, the national keepers with the efforts to exclude alien bees

I - 8051

OPINION OF MR FENNELLY — CASE C-67/97

from the island is necessary if the objective of the Decision is also a factor to be taken into preventing inter-breeding is to be achieved. account in assessing whether the Decision is The fact that compensation is to be provided no more restrictive than necessary of for losses resulting from the application of Community-law rights.

Conclusion

36. In the light of the foregoing I recommend that the Court answer the questions referred by the national court as follows: