C-162/97
ECLI:EU:C:1998:199
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O P I N I O N OF MR MISCHO — CASE C-162/97
OPINION OF ADVOCATE GENERAL MISCHO delivered on 5 May 1998 *
1. A 'pure-bred breeding animal of the bovine 3. Directive 87/328/EEC, 4 which was taken species' is defined in Article 1(a) of Directive in application of Article 3 of that Directive, 77/504/EEC, 1 as amended by Directive and the interpretation of which and of Articles 91/174/EEC, 2 as 30 and 36 of the Treaty is the subject of the present case, is intended in particular, according to its preamble, to prevent
'any bovine animal [including buffalo] the parents and grandparents of which are entered 'national provisions relating to the acceptance or registered in a herd-book of the same for breeding purposes of pure-bred breeding breed, and 'which is itself either entered or animals of the bovine species and their semen registered and eligible for entry in such a from constituting a prohibition, restriction or herd-book'. impediment to intra-Community trade either in the case of natural service or artificial insemination'.
2. The second indent of Article 2 of Direc- tive 77/504, as amended by Directive 4. Consequently, Article 2 provides that: 94/28/EC, 3 obliges Member States to ensure that intra-Community trade in the semen, ova and embryos of pure-bred breeding animals of the bovine species is not prohibited, restricted or impeded on zootechnical grounds. ' 1 . A Member State may not prohibit, restrict or impede:
* Original language French. 1 — Council Directive of 25 July 1977 on pure-bred breeding ani- mals of the bovine species (OJ 1997 L 206, p. 8). 2 — Council Directive of 25 March 1991 laying down zootech- nical 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). 3 — Council Directive of 23 June 1994 laying down the principles relating to the zootechnical and genealogical conditions appli- cable to imports from third countries of animals, their semen, ova and embryos, and amending Directive 77/504/EEC on 4 — Council Directive of 18 June 1987 on the acceptance for pure-bred breeding animals of the bovine species (OJ 1994 breeding purposes of pure-bred animals of the bovine species L 178, p. 66). (OJ 1987 L 167, p. 54).
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— the acceptance for artificial insemination 7. On that basis, Mr Hagelgren is accused of within its territory of pure-bred bulls or having sold bovine semen to Mr Nilsson the use of their semen when those bulls without authorisation on 30 March 1996. have been accepted for artificial insemina- Mr Nilsson is accused of having four of his tion in a Member State on the basis of cows inseminated without authorisation on tests carried out in accordance with Deci- the same day. Ms Arrborn is charged with sion 86/130/EEC. 5 carrying out that insemination.
...'
8. Those three persons are also charged with contravening the Law on Protection of Ani- mals (1988: 534). The Public Prosecutor accuses them of acting together on 30 March 1996 to inseminate four cows belonging to 5. That Commission Decision of 11 March Mr Nilsson with the semen of four bulls 1986 lays down performance monitoring 'having the genetic defect of muscular hyper- methods and methods for assessing cattle's trophy of the Belgian Blue breed' and of genetic value for pure-bred breeding animals having thereby contravened the prohibition of the bovine species. It was amended by on 'breeding ... which may entail suffering for Commission Decision 94/515/EC. 6 animals and affect the natural behaviour of animals'.
6. The Helsingborgs Tingsrätten's reference for a preliminary ruling states that the Public Prosecutor has commenced proceedings against Mr Hagelgren, Mr Nilsson and Ms Arrborn for contravention of the Swedish Law on Control of Domestic Animals (1985: 9. It is also clear from the documents that the 342 and 1993: 1481). defendants admit the facts but deny the exist- ence of an offence. They consider that the national legislation is contrary to Community law both in requiring an authorisation for 5 — OJ 1986 L 101, p. 37. insemination and in prohibiting insemination 6 — Commission Decision of 27 July 1994 (OJ 1994 L 207, p. 30). with semen from Belgian Blue bulls.
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10. The requirement of authorisation for 13. Article 29 of the Regulations on Protec- insemination is based on Article 2 of the tion of Animals (1988: 539) prohibits breeding Regulations on the control of domestic ani- which may entail suffering for animals. Pur- mals (1985: 343) and on the Rules on insemi- suant to that regulation the national Board of nation of cattle (1994: 98), which were in force Agriculture adopted Rules on the keeping of at the material time. In addition to the actual animals for agricultural purposes (SJVFS 1993: insemination process the authorisation may 129), which prohibit 'the insemination of cover one or more of the operations involved, heifers and cows or the implant of embryos such as the collection, handling and distribu- if there is a probability of difficulties on calv- tion of semen. ing'.
14. The national Board of Agriculture's Rules 11. The authorisation application must on requirements for the protection of animals include information regarding the breeds in breeding activity (SJVFS 1995: 113) pro- involved, the operation(s) envisaged, the per- hibit the use of breeding animals which 'have sons who are to carry out the process and the fatal hereditary dispositions, defects or other veterinarian responsible, together with his characteristics entailing suffering for offspring written undertaking. or adverse effects on the natural behaviour of offspring'.
15. That prohibition also applies to charac- 12. The Rules also lay down the health teristics other than those listed in an annex to requirements and the tests to be carried out the rules if they entail suffering for the off- on bulls, which must be accepted and kept in spring or cause them to behave unnaturally. an insemination centre, but do not impose any provision controlling the import of animal sperm. The distribution of animal sperm in Sweden is subject to an authorisation to prac- tise insemination. The person receiving the semen is obliged to inform the distributor regarding inter alia the results of calving, the frequency of difficult calvings and the occur- rence of hereditary disease and malforma- 16. The second paragraph of Article 3 of tions. An owner may inseminate his own those Rules (SJVFS 1995: 181) also provides cattle provided he keeps a register. that cows
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'may not be used for breeding if the animal to prohibit or subject to conditions the presents, to all appearances, a hereditary dis- insemination and breeding of cattle position to frequent sickness, difficult calving or risks of stillbirth.
(a) liable, according to a national authority, to entail suffering for ani- A breeding animal which because of its ori- mals or affect their natural behaviour, gins may be a carrier of genes or hereditary or defects listed in paragraphs 1 and 2, the absence of which can be established by tests, may be used for breeding if it has been tested and the results are satisfactory'.
(b) using a certain breed which is regarded by a national authority as having genetic defects? 17. By order of 28 April 1997 the Helsing- borgs Tingsrätten, in which the proceedings were brought, referred the following ques- tions to the Court for a preliminary ruling:
3. (a) Does interpretation of the preamble to Directive 87/328 allow national exceptions to acceptance for artificial insemination in its territory with '1. D o Article 30 of the Treaty of Rome and respect to animals with an undesir- Directive 87/328 allow a national able pedigree, even where those authority to require authorisation for exceptions entail a prohibition in rela- insemination operations using bovine tion to animals which fulfil the semen, that is to say, the collection, han- requirements laid down in Article 2 dling and distribution of and insemina- of the directive? tion with semen, in the way indicated above?
(b) If so, can the individual Member State 2. Do Article 30 of the Treaty of Rome and be left to define "impairment of the Directive 87/328 allow a Member State pedigree" and "hereditary defects'"?
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The first question 21. However, the Court has consistently held 9 that where, in application of Article 100 of the EEC Treaty, Community directives pro- vide for the harmonisation of the measures necessary inter alia to protect the health of persons and animals and establish Commu- nity procedures to check that they are 18. The Court is asked, in substance, if the observed, reliance on Article 36 ceases to be requirement of authorisation for bovine justified, and the appropriate checks must be insemination operations is consistent with carried out and protective measures taken Article 30 of the Treaty and Directive thereafter within the framework of the har- 87/328/EEC. monising directive.
19. The Swedish Government specifies that 22. It must therefore be determined more the authorisation requirement may cover one precisely to what extent Directive or more stages in the use of semen. Under 87/328/EEC, cited above, affects a Member Article 1 of the Rules (1994: 98) on the State's right to require an authorisation for insemination of cattle, those stages are the the various stages of insemination described collection, handling and distribution of semen by the Swedish Government. and insemination.
23. The fourth recital in the preamble to the 20. As authorisation is required both for dis- directive reiterates the need to avoid any tribution and insemination, it is clear that impairment of the pedigree. To this end the trade between Member States may be affected, seventh recital states that: as is stated both by the Commission and by the governments which have presented obser- vations. As the Court held in La Crespelle 7 and again in Gervais, 8 the authorisation requirement may lead in practice to discrimi- nation against imported semen, a circum- stance which falls within the scope of Article 'the provision that semen must come from 30 and in some circumstances of Article 36 of officially approved centres responsible for arti- the Treaty. ficial insemination is capable of providing the guarantees necessary for attaining the desired end'. 7 — Case C-323/93 Centre d'Insémination de la Crespelle v Coop- érative de la Mayenne [1994] ECR I-5077. 8 — Case C-17/94 Gervais and Others [1995] ECR I-4353, para- graph 38. 9 — For example, see the two above judgments.
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24. Consequently, Article 4 of Directive 27. It follows, therefore, in the Court's view, 87/328/EEC specifies that: that:
'health conditions in intra-Community trade in bovine semen have not yet been fully har- 'Member States shall ensure that, for intra- monised at Community level in relation to Community trade, the semen referred to in the State for which the semen is destined.' Article 2 is collected, treated and stored in an officially approved artificial insemination cen- tre.'
28. The Court specified in paragraph 32 of the Gervais judgment, cited above, that:
25. It follows that the requirement of an authorisation for the collection and treatment of semen in the country of origin cannot be 'It is clear from the content and the objective regarded as contrary to that directive. of Directives 77/504 and 87/328 that those directives seek to harmonise the conditions of the acceptance for breeding purposes of pure- bred breeding animals of the bovine species and of their semen with a view to eliminating zootechnical impediments to the free move- ment of bovine semen. Those directives do not govern the conditions regarding actual 26. However, according to the Court's judg- insemination or the training of inseminators; ment in La Crespelle, 10 cited above, the frame- nor do they cover the issue of certificates or work established by Directive 87/328/EEC licences authorising the holders to carry out and by Council Directive 88/407/EEC of 14 the regulated functions of inseminators.' June 1988 laying down the animal health requirements applicable to intra-Community trade in and imports of deep-frozen semen of domestic animals of the bovine species 1 1does not include the storage or use of semen in the Member State of destination. 29. It must therefore be concluded that the harmonisation implemented by Directives 77/504/EEC, 87/328/EEC and 88/407/EEC 10 — Paragraphs 34 and 35. in particular does not go so far as to prevent 11 — OJ 1988 L 194, p. 10. the Member State of destination from
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requiring an authorisation for the distribution 34. Consequently, the measure in question of semen or insemination. falls within the prohibition of measures having equivalent effect to quantitative restrictions laid down in Article 30 of the Treaty. The question of the applicability of Article 36 of the Treaty thus arises.
30. That condition imposed by the national legislation must therefore be examined in the light of Articles 30 and 36 of the Treaty.
35. In this context the Finnish Government argues that 'the protection of health and life of humans and animals' referred to in that provision justifies the requirement of an autho- 31. In this context the Swedish Government risation for the distribution of and insemina- contends that the requirement of an authori- tion with the semen of pure-bred breeding sation for insemination does not fall -within animals of the bovine species. the scope of Article 30 as it neither aims to regulate nor has the effect of regulating trade in semen between Member States.
36. In support of this argument it relies on the La Crespelle judgment, cited above, where the Court held that: 32. As I pointed out earlier, the requirement of authorisation for distribution by its very nature may affect trade between Member States, in that it applies to imported semen. That is equally true of the authorisation required for the insemination itself; the right to import semen would be of little use to an 'Member States may therefore rely on health operator if he were refused an authorisation grounds in impeding the free movement of to inseminate cattle or to have them insemi- bovine semen, provided that the restrictions nated with that semen. on intra-Community trade are in proportion to the aim in view.'
33. This is all the more so in the present case, as it is apparent from the documents that in 37. It appears from the documents that the Sweden the grant of an import licence pre- authorisation requirement is not restricted to supposes that the applicant has obtained the imported products and does not seem to affect authorisation for insemination. them more than national products.
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38. In accordance with the Court's reasoning 41. The Finnish Government adds, quite in La Crespelle, it is, however, for the national rightly, that this case concerns the right to court to decide whether the authorisation provide artificial insemination services. Con- requirement for the distribution of and insem- sequently it should be examined, a priori, in ination with bovine semen has a restrictive the light of the Treaty's rules regarding the affect on trade disproportionate to the aim in freedom to provide services. view, which is the protection of public health.
42. However, the Finnish Government also argues, rightly, that this case concerns a Swedish service provider wishing to provide a service in Sweden. It is clear, therefore, that all aspects of the provision of services are 39. However, one point must be made clear. within this Member State's territory. The Trea- It is evident from the foregoing that if Member ty's rules regarding the freedom to provide States are able to impose this authorisation, services are therefore inapplicable and the that is for public health reasons, as specified national court is right to refer solely, as far as in Article 36 of the Treaty. the Treaty is concerned, to the rules on the free movement of goods.
43. I therefore propose the following reply to the first question referred by the Helsing- 40. This being so, I share the Commission's borgs Tingsrätten: opinion that the object of the authorisation conditions must therefore be to ensure the professional competence of the person car- rying out the insemination. They must not be used as a pretext for forbidding insemination in some cases, for example, on the grounds Article 30 of the Treaty of Rome and Direc- that some characteristics of the semen are tive 87/328/EEC do not preclude legislation regarded as undesirable. In that case, as we of a Member State requiring an authorisation will see, one would no longer be in the sphere for the handling and distribution of and insem- of public health within the meaning of Article ination with bovine semen from another 36, but of protecting the pedigree, a context Member State, where the object of that autho- where Community harmonisation is com- risation is to ensure that the person autho- plete and Articles 30 and 36 are therefore not rised has the necessary qualifications for the applicable. operation envisaged.
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The second question 46. O n the other hand, the Community har- monisation does not cover all aspects of the protection of animals' life and health. In par- ticular, those Governments consider that the applicable Community rules do not ensure the protection of animals in the context of breeding, with which they are not concerned. The directives regulate breeding by focusing 44. This question is worded as follows: exclusively on considerations of the produc- tion of animals rather than their health. Breeding stock could therefore have passed the tests laid down by the Community rules while presenting hereditary characteristics which are undesirable from the point of view Do Article 30 of the Treaty of Rome and of animal protection. N o specific Commu- Directive 87/328 allow a Member State to nity rule fixing the conditions for acceptance prohibit or subject to conditions the insemi- of bovine animals for breeding is intended to nation and breeding of cattle prevent the appearance of health problems which prevent animals from being born, growing or living normally without consider- able veterinary assistance.
(a) liable, according to a national authority, to entail suffering for animals or affect their natural behaviour, or
47. Those Governments therefore infer that (b) using a certain breed which is regarded national authorities may still take the mea- by a national authority as having genetic sures they deem necessary to protect animal defects? life and health, since the Community har- monisation does not cover all aspects of animal health.
45. The Swedish, Finnish and Norwegian Governments argue that the harmonisation effected by the directives is incomplete. They consider that these directives regulate matters such as the origin and the quality of semen from pure-bred breeding animals of the bovine 48. In the opinion of those Governments, species, or preventing the propagation of epi- measures such as these would be justified zootic disease. under Article 36 of the Treaty if they were to
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be regarded as being within the scope of negative trends in breeding activities in Article 30. Europe.' In its view, 'it would be unfortunate if the legal position were such that as soon as breeding from a particular breed was per- mitted in one Member State, this was auto- matically permitted in all other Member States on the grounds of ensuring freedom of com- petition'. 49. They submit that in the present case mea- sures are necessary because of the animal health problems with the Belgian Blue breed at issue in the main proceedings. Animals of that breed suffer from structural problems involving movement and behaviour. Their internal organs, in particular the heart and lungs, are too small in relation to their weight, 52. The Belgian Government, on the other which is a source of stress and infection. hand, considers that the Community direc- Calving is difficult, furthermore, often giving tives have achieved harmonisation such that it rise to Caesarean sections involving the exten- is no longer possible for the authorities of a sive use of antibiotics. Member State unilaterally to qualify a trait specific to one breed as a hereditary defect and to use it as a pretext to prohibit or attach conditions to the insemination or breeding of animals of that breed.
50. The Swedish Government states, how- ever, that the national measures in question are designed to combat the muscular hyper- trophy gene, regardless of the animal carrying the defect. The prohibition does not single out imported semen or any specific breed, either in law or in fact. There is therefore no 53. Furthermore, the experience in Belgian question of discrimination within the meaning breeding herds where Belgian Blue cattle are of Article 36 of the Treaty. numerous shows that the animal health pro- tection problems described by the above Gov- ernments do not arise in reality.
51. The Norwegian Government adds that even if the national rules for the protection of animal health are within the scope of Direc- tive 87/328 they do not contravene it. In this 54. The defendants in the main proceedings respect it argues that 'national provisions that also consider that the directives cited above prohibit or lay down conditions for breeding exclude the application of the national regula- on the basis of animal welfare considerations tions in question, since Community harmoni- can be an important instrument in preventing sation is complete.
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55. The French Government draws attention also arises in certain exceptional cases, to the Court's previous rulings that the depending on the result of the insemination. zootechnical and genealogical conditions applicable to trade in pure-bred bovine ani- mals have been fully harmonised. This being so, it believes that the presence of a gene in bovine semen which has been marketed in accordance with Community standards cannot justify a Member State's prohibiting its import. A Member State cannot qualify a gene as a 59. In the Commission's opinion, since Com- genetic defect solely on the basis of its own munity law does not regulate these situations, evaluation and without reference to the pro- Member States are entitled to apply national cedure laid down in Decision 86/130. rules to them. Articles 30 and 36 are then applicable. Finally, the Commission believes that it is for the national court to decide whether the national measures in question fulfil the conditions of application of Article 36. In particular, the national administration must show that those measures are necessary and are proportionate to their objective. 56. Finally, a Member State cannot rely on the provisions of Article 36 of the Treaty either, as Community harmonisation is com- plete.
Assessment
57. The Commission takes the view that Com- munity harmonisation prevents the importing country's national authority from deciding itself whether a pure-bred bovine animal pre- 60. The national court's question refers firstly sents a genetic trait or defect. Such a decision to the protection and health of animals and would require the application of the proce- secondly to genetic defects. I would like to dures specified in the relevant directives and start by examining this second aspect. It is decisions. clear that this falls within the scope of Direc- tive 87/328/EEC.
58. The Commission adds, however, that two spheres are outside the harmonisation. It may be necessary to take animal protection into 61. Action against genetic defects falls within account when the genetic evaluation is made. the scope of the genetic improvement of Moreover, the question of animal protection bovine stock. In this respect, in the case-law
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cited earlier 12 the Court has held that it fol- 64. That condition is regarded as being ful- lows from the provisions of Directive filled where the semen comes from an offi- 87/328/EEC and Directive 91/174/EEC that cially approved artificial insemination centre the zootechnical and genealogical conditions in another Member State and where the bulls for marketing the semen of pure-bred bovine in question have been accepted for artificial breeding animals have been fully harmonised insemination on the basis of tests carried out at Community level. in accordance with Decision 86/130.
65. Furthermore, if an animal is registered in a herd-book, another Member State cannot prevent this breed being entered in the herd- 62. As the Commission points out, the object books of officially recognised breeders' asso- of Directives 87/328/EEC and 77/504/EEC is ciations or organisations within its own ter- to harmonise all trade in pure-bred cattle and ritory (Article 4 of Directive 77/504/EEC). their semen. It follows from their provi- sions 13 that Member States may not prohibit, restrict or impede either intra-Community trade in semen and embryos from pure-bred breeding bulls or the acceptance of their semen for artificial insemination. 66. However, special rules are applicable where an individual animal has a genetic defect. The annex to Decision 94/515, cited above, reads as follows:
63. That prohibition of restrictive national measures is applicable where a number of 'Genetic peculiarities and genetic defects of conditions are satisfied, 14 their object being an animal defined by the bodies officially to ensure that the intra-Community liberali- appointed for the determination of these char- sation of trade in pure-bred bovine breeding acters, in agreement with the breeders' organi- stock applies only to animals of adequate sations or associations, recognised in confor- genetic value and without genetic defects. mity with Commission Decision 84/247/EEC of 27 April 1984 laying down the criteria for the recognition of breeders' organisations and 12 — For example, see paragraph 33 of the judgment in La Cre- associations which maintain or establish herd- spelle, cited above. 13 — Article 2 of Directive 77/504/EEC and Article 2 of Direc- books for pure-bred breeding animals of the tive 87/328/EEC. bovine species have to be published' (Annex 14 — See Directives 77/504/EEC and 87/328/EEC and Decision to the Decision, point III: Genetic evaluation, 86/130, all cited earlier, the latter amended by Decision 94/515. 1. Principles, in fine).
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67. The effect of this should normally be that — the criteria governing entry in herd-books, no cattle breeder, either in the bull's country of origin or in another Member State, would want to use its semen for artificial insemina- tion. in accordance with the Zootechnics Com- mittee procedure referred to in Article 8 of that Directive.
70. Article 2(2) of Directive 87/328/EEC specifies that when there are disputes regarding the acceptance of bulls for artificial insemina- 68. This system, based on the publication of tion, operators have the right to seek the genetic defects, necessarily implies that the opinion of an expert. In the light of the national authority in a country importing a expert's opinion, measures may be adopted at bull or its semen cannot substitute its own the request of a Member State, in accordance evaluation for that of the exporting country's with the procedure laid down in Article 8 of officially appointed bodies by deciding itself Directive 77/504/EEC. that an individual bull, much less a whole breed, presents a genetic defect.
71. It follows that if a national authority objects to the pedigree of animals registered in accordance with the above directives, that authority should resort to the procedures provided for the purpose in Community direc- tives and decisions. It may not decide on its own authority that the animals in question present genetic defects if these have not been 69. Finally, it must be pointed out that if a confirmed and published in accordance with Member State criticises the entry of a certain the specified procedures. breed in the herd-books of another Member State, it may call on the Commission to apply Article 6 of Directive 77/504/EEC, which includes the power to determine:
72. I therefore consider that the answer to Question 2(b) must be that the directives do not allow a Member State to prohibit or sub- ject to conditions the insemination and breeding of cattle of a particular breed which the national authority of that Member State — the performance monitoring methods and regards as having genetic defects, when this methods for assessing cattle's genetic value assessment is not supported by the national and authority in the country of origin.
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73. By Question 2(a) the national court asks 77. I suggest, therefore, that Question 2(a) if Article 30 of the Treaty and Directive and Question 2(b) do not call for separate 87/328/EEC authorise a Member State to replies. prohibit or subject to conditions the insemi- nation and breeding of cattle which a national authority believes might entail suffering for the animals or affect their natural behaviour.
78. I add the following observations as sub- sidiary points only.
74. Unlike Question 2(b), Question 2(a) refers to 'animals' rather than 'a certain breed'. Effec- tively, therefore, it asks if the breeding of ani- mals of any breed may be prohibited or 79. When the Council adopted Directives impeded in another Member State because it 77/504/EEC and 87/328/EEC it implicitly is liable to entail suffering for the animals or considered that breeding from pure-bred cattle affect their natural behaviour. as they were defined did not involve prob- lems from the point of view of animal health and well-being as a result of their genetic characteristics.
75. This question is doubtless explained by the fact that, apart from the Belgian Blue 80. Since then, the Council has adopted Deci- breed, Spain, France and Italy also have offi- sion 92/583/EEC of 14 December 1992 on cially recognised 'pure breeds' carrying the the conclusion of the Protocol of amendment muscular hypertrophy gene. This fact was not to the European Convention for the Protec- contested in the procedure before the Court. tion of Animals kept for Farming Purposes. 15
81. The single recital in the Protocol states 76. Question 2(a) and Question 2(b) are there- that it is 'desirable to extend explicitly the fore substantially the same, as the suffering of scope of the Convention to apply also to the animals and the effects on their natural certain aspects of developments in animal behaviour referred to in both questions are both presumed to arise from their genetic characteristics. 15 — OJ 1992 L 395, p. 21.
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husbandry techniques, in particular in respect sions implementing the protocol, as it is not of biotechnology'. yet bound by it. The Commission presented a proposal for a directive concerning the pro- tection of animals kept for farming purposes 16 to the Council on 18 May 1992, but this has not yet been adopted.
82. Article 1 of the Protocol provides that animals within the meaning of the Conven- tion include 'animals produced as a result of genetic modifications or novel genetic com- binations'.
85. Moreover, it is very difficult to infer pre- cise implications for the breeding of cattle subject to muscular hypertrophy from this protocol or from the Commission's proposal 83. The object of Article 2 is to insert a new for a directive, which uses the same wording. Article 3 into the Convention, worded as fol- lows:
'Natural or artificial breeding or breeding 86. By way of example I need only mention procedures which cause or are likely to cause the problem of Caesarean section operations, suffering or injury to any of the animals which was stressed by the Swedish Govern- involved shall not be practised; no animal ment. A standing committee of representa- shall be kept for farming purposes unless it tives of the signatories to the Council of can be reasonably expected, on the basis of its Europe's Convention agreed in an explana- phenotype or genotype, that it can be kept tory report that the above provision should without detrimental effects on its health or be interpreted as aiming to plan breeding welfare.' programmes so as to prevent animals from suffering or sustaining foreseeable injury, such as difficult calving and permanent deforma- tions; the committee recognised that that pro- vision is no obstacle to breeding practices which entail minor or temporary suffering or injury (for example, a natural calving or an 84. However, it must be stressed that this embryo transplant) or which involve a cae- Protocol of Amendment is not yet in force. sarean operation which is not likely to cause We cannot therefore infer either a legal obli- permanent damage. gation for the Community or the option for a Member State to rely on these provisions to evade its obligations under Community law. The Community has not yet enacted provi- 16 — OJ 1992 C 156, p. 11.
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87. It has by no means been established, The third question therefore, that the current rules for trade in pure-bred breeding stock are deficient because of the failure to take into consideration legiti- mate concerns for animal health or welfare, which would lead us to conclude that har- monisation was incomplete. 91. The Court is asked in the first place if an interpretation of the preamble to Directive 87/328/EEC allows national exceptions to acceptance for artificial insemination on national territory for animals with an unde- sirable pedigree, even if these exceptions entail a prohibition affecting bulls which meet the criteria in Article 2 of the Directive.
88. As the harmonisation process is complete, it follows that there is no place for national measures under the exceptions laid down in Article 36 of the Treaty.
92. As the Commission rightly points out, the preamble is not a rule of law. It cannot therefore be invoked to derogate from the rules laid down in the directive. The recitals in the preamble state the reasons for the con- tents of the rule and can sometimes help with its interpretation, but they cannot form the basis of a derogation from one of the direc- tive's express provisions. 89. It goes without saying, however, that the fact that a system of rules is complete does not mean that it is immutable. There is nothing to prevent a Member State which seeks to change the existing law from submitting its arguments to the relevant institutions. 93. Moreover, I see no contradiction between the preamble and Article 2 of the directive.
94. It should be borne in mind that the fourth 90. The second question must therefore be recital in the preamble to that directive pro- answered in the negative. vides that 'any impairment of the pedigree
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must be avoided, particularly with regard to 97. The question must therefore be answered male breeders, which must possess all guar- in the negative. antees of their genetic value and of their freedom from hereditary defects'.
98. There is no need, therefore, to answer the national court's Question 3(b), which was 95. The desired end can be attained, as the dependent on an affirmative reply to Ques- seventh recital states, by the provision that tion 3(a). the semen must come from officially approved centres responsible for artificial insemination.
99. I would simply add that the system estab- 96. O n that basis, therefore, it is logical that lished by the directives at issue in this case is Article 2 of the Directive forbids any Member demonstrably based on the principle of mutual State from prohibiting, restricting or impeding trust between Member States. In accordance the acceptance for artificial insemination with that principle, the responsibility for safe- within its territory of pure-bred bulls or the guarding the genetic value of male breeders use of their semen when those bulls have been and for the absence of hereditary defects is accepted for artificial insemination in (another) entrusted solely to the competent bodies of Member State on the basis of tests carried out the Member State where they are raised and in accordance with Decision 86/130/EEC. where their sperm is collected.
Conclusion
100. I p r o p o s e that t h e C o u r t s h o u l d reply t o t h e q u e s t i o n s referred b y the H e l s - ingborgs Tingsrätten as follows:
The first question
Article 30 of t h e Treaty and C o u n c i l Directive 8 7 / 3 2 8 / E E C of 18 J u n e 1987 o n the acceptance for b r e e d i n g p u r p o s e s of p u r e - b r e d breeding animals of the bovine spe- cies d o n o t p r e c l u d e legislation of a M e m b e r State requiring an authorisation for the h a n d l i n g a n d d i s t r i b u t i o n of a n d insemination w i t h b o v i n e s e m e n f r o m a n o t h e r
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Member State, where the object of that authorisation is to ensure that the person authorised has the necessary qualifications for the operation envisaged.
The second question
Council Directive 77/504/EEC of 25 July 1977 on pure-bred breeding animals of the bovine species and Council Directive 87/328/EEC do not allow a Member State to rely on considerations of the protection of the life and health of animals to prohibit or subject to conditions the insemination and breeding of cattle
(a) liable, according to a national authority, to entail suffering for the animals or affect their natural behaviour, or
(b) of a breed which is regarded by a national authority as having genetic defects.
The third question
Question 3(a)
As the preamble of a directive is not a rule of law, it cannot justify a derogation from the directive's provisions.
Question 3(b)
Given the reply to Question 3(a), there is no need to reply to this question.
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