C-350/97

MONSEES v UNABHÄNGIGER VERWALTUNGSSENAT FÜR KÄRNTEN

OPINION OF ADVOCATE GENERAL LÉGER delivered on 17 December 1998

1. In proceedings for infringement of Aus- exceed 130 km, unless a special derogation is trian legislation governing the transport of granted. animals by road the Verwaltungsgerichtshof, Austria, is asking the Court to determine whether the provisions of Community pri- mary law on the principle of the free move- ment of goods 1 and of secondary law on the protection of animals during transport 2pre- clude the imposition, at national level, of a 3. That provision reads as follows: time-limit, in terms of journey time, and geo- graphical limits, within national territory and fixing a maximum distance, for the transport of animals for slaughter.

'Animals shall be transported by road along the shortest route which is normally used by National legislation traffic, is justifiable with regard to consider- ations of veterinary medicine and is permis- sible under the provisions of law regarding motor vehicles and traffic regulation. The drivers shall drive in a careful and considerate manner, which shall in particular avoid injury to the animals transported. Loading and 2. Paragraph 5(1) and (2) of the unloading shall be carried out in a careful and Tiertransportgesetz-Straße (Law on the Trans- considerate way; injuries to the animals shall port of Animals by Road — hereinafter 'the be avoided. TGSt') 3 allows such transport to be effected only as far as the nearest suitable abattoir within Austrian borders, the total duration of the journey not to exceed six hours and the total distance, on the shortest route, not to

Facts and procedure

5. Mr Monsees, the accused in the main pro- 7. He contends in substance that the fact that ceedings, is being prosecuted for infringing his journey involved the international trans- this legislation. Starting at 11.00 a.m. on 23 port of animals precludes application of the August 1995 in Breitenwisch in Germany, where he loaded 31 bulls which were to be transported to Istanbul in Turkey, the driver carried on driving his lorry until 10.15 a.m. 4 — It is simply noted that the animals were fed at 4.45 on 24 August at Samerberg; it is not known whether a stop was on 24 August 1995 when he reached the necessary for this.

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Austrian legislation, otherwise 'every interna- no restriction on the transport of animals is tional shipment of cattle eastward out of Ger- laid down under that measure. many would end in the nearest abattoir in Salzburg'. 5

10. The Verwaltungsgerichtshof has therefore stayed proceedings until the Court has ruled on the following question:

5 — Fourth .paragraph of the grounds of the order for reference. 6 — The period for transposition, laid down in Article 2 of the directive, expired only on 31 December 1996. That period could even be extended until 31 December 1997 in order to 11. Three different sets of rules may be apply the provisions relating to extension of the maximum duration or the journey. relevant in the circumstances of this case.

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Article 30 et seq. of the Treaty 14. The accused in the main proceedings also relies on secondary law provisions relating to the protection of animals during transport.

12. The Verwaltungsgerichtshof first makes express reference in its question to Article 30 of the Treaty, which prohibits both quantita- tive restrictions on imports as well as other measures having equivalent effect '... which Directive 91/628 may impede, directly or indirectly, actually on potentially, intra-Community trade'. 7

— the question of fixing maximum journey times for certain types of animal; 7 — Judgment in Case 8/74 Dassonville [1974] ECR 837, para- graph 5. 8 — Judgment in Case 120/78 Rewe-Zentral ('Cassis de Dijon') [1979] ECR 649, paragraph 14. 9 — Page 5 of the English translation of the order for reference. 11 — Under Chapter 1, part A, point 2(d) of the Annex: 'During 10 — Here the Verwaltungsgerichtshof states:'...it may be doubted transport the animals must receive water and appropriate whether the measures specified in ... the TGSt are required food at suitable intervals. These intervals shall not exceed 24 in order to achieve the objective of the protection of ani- hours unless an extension of this period by not more than mals; more restrained means, such as more frequent rest two hours is required in specific cases in the animals' interest periods and watering and feeding the animals from time to in view in particular of the species being transported, the time would, instead be sufficient' (p. 5 of the English transla- means of transport used, and the proximity of the place of tion of the order for reference). unloading.'

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— the intervals, laid down [for feeding and in particular from the third recital of its watering animals] ... preamble:

— the length of the rest provided for [for journeys exceeding 24 hours, from the place of departure and taking into account 'Whereas some Member States have rules on the place of destination, along the itin- journey times, feeding and watering intervals, erary envisaged] ... resting periods and space allowances; whereas these rules are, in some cases, extremely detailed and are used by some Member States to restrict intra-Community trade in live ani- mals; whereas persons involved in the trans- port of animals need clearly defined criteria to enable them to operate on a Community- wide basis without coming into conflict with differing national provisions'.

20. The chapter in question fixes, in par- ticular, in points 1 and 2, the maximum dura- Finally, Member States are allowed, under tion of road journeys authorised for animals point 9, to adopt special arrangements for the of the bovine species as being no more than transport of animals destined for slaughter eight hours. taking place entirely on their own territory, for which the derogating provisions cannot apply. A maximum non-extendable journey time of eight hours may thus be provided for in the case of animals destined for slaughter transported exclusively from a place of a departure to a place of destination situated on the Member States' own territory, 'whilst complying with the general provisions of the However, point 3 allows a prolongation of Treaty', as it is stated in the fifth recital of the that period if the vehicle used for transport fulfils certain additional conditions. 14In that preamble to Directive 95/29. case, pursuant to point 4(d), the watering and feeding intervals, as well as the journey times and rest periods can be extended. First, cattle must then '... after 14 hours of travel, be given a rest period of at least one hour sufficient for them in particular to be given liquid and if necessary fed. After this rest period, they may be transported for a further 14 hours.' It is to be noted that those journey times may be extended yet again by two hours, under 21. As the Verwaltungsgerichtshof points out, point 8, in the interests of the animals, taking that directive is nevertheless inapplicable in principle rationae temporis to the facts of this case, its deadline for transposition having expired on the date of the facts in question. 13 — Article 1, point 3, of Directive 95/29. 14 — Those conditions are the following: However, as the Commission rightly empha- '— there is sufficient bedding on the floor of the vehicle, sises, it was already in force at the time of — the transporting vehicle carries appropriate feed for the animal species transported and for the journey time, those facts and 'its content may therefore be — there is direct access to the animals, — adequate ventilation is possible which may be adjusted taken into consideration in the legal assess- depending on the temperature (inside and outside), ment'. 15 — there are moveable panels for creating separate compart- ments, — vehicles are equipped for connection to a water supply during stops, — sufficient water is carried for watering during the jour- ney'. 15 — In point 11(3) of part 2 of its observations.

17 — See p. 10 of the observations in French of the Commission and paragraph 1(2) of the observations in French of the accused in the main proceedings. The Austrian Government itself focused its observations on the justifications which may be put forward to defend the obstacle to free move- ment in which the application of its legislation results, but 24. There is scarcely any doubt that the Aus- without necessarily addressing this point in any depth. It does accept that 'it does not appear to be completely ruled trian legislation, in making it obligatory, in out that a measure, such as that laid down in Paragraph 5(2) particular, for any international transport of of the TGSt, may be regarded as a measure having equiva- lent effect within the meaning of Article 30 of the Treaty ..." animals for slaughter to stop in Austria at the (point III.2 of its observations). 18 — Point 1(3) of his observations. 19 — Judgment in Case C-5/94 The Queen v MAFF, ex parte Hedley Lomas [1996] ECR I-2553, at paragraph 18. See also the judgment in Case C-1/96 Compassion in World Farming 16 — European Treaties Scries, N o 65. [1998] ECR I-1251, at paragraph 47.

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28. That is manifestly not the case with Direc- 30. However, it must be noted — quite inci- tive 91/628, which, as we have seen, lays down dentally, since this is not the subject of this no binding measure in relation to the Member reference — that, even after expiry of the States. The reference it makes elsewhere, in period for transposition of Directive 95/29, it Article 13, to the subsequent adoption of certainly could not be interpreted as autho- additional legislation, makes it clear that it rising, for international transport, a Member cannot constitute the complete harmonising State to impose, upon penalty of sanction, a instrument in relation to the national legisla- compulsory stop at the nearest slaughter- tion in this field. Moreover, Article 13(4) house within its frontiers, as the legislation in states, if this were needed, that: 'Pending question does. 22 Whilst such a compulsory implementation of the provisions referred to requirement is, it is true, provided for and in paragraphs 1 and 2, the relevant national authorised under that directive, the require- rules shall apply subject to the general rules ment provided for there is a special regime laid down by the Treaty.' put in place only in relation to national trans- port of animals for slaughter, from and to places located within the same national terri- tory, pursuant to point 9 of chapter VII of the Annex. For those journeys, only, a 29. As far as Directive 95/29 is concerned, maximum non-extendable journey time of although it does harmonise in particular the maximum journey time for the carriage of 21 — Judgments in Case 35/76 Simmenthal [1976] ECR 1871, paragraph 36, and Case 251/78 Denkavit Futtermittel [1979] ECR 3369, paragraphs 18 to 21. 20 — Ibid. See also the judgment in Compassion in World Farming, 22 — In this regard, see also p. 16 and 17 of the French transla- cited above, at paragraph 47. tion of the Commission's observations.

25 — Case 72/83 Campus Oil and Others [1984] ECR 2727, para- 23 — Judgment in Joined Cases C-1/90 and C-176/90 Aragonesa graph 44, and Case 54/85 Mirepoix [1986] ECR 1067, para- de Publicidad Exterior and Publivia [1991] ECR I - 4151, graph 13. paragraph 16. 26 — Case 174/82 Sandoz [1983] ECR 2445, paragraph 22, and 24 — Case 73/84 Denkavit Futtermittel [1985] ECR 1013, para- Case 227/82 Van Bennekom [1983] ECR 3883, paragraph 40. graph 14. 27 — Point III.3 of its observations.

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in particular the state of stress and exhaustion the Austrian Government tries to suggest, 28 which such transport might occasion. that no transport of animals, except of dead animals, is good, but there again I am not convinced that this is necessarily a solution which best reconciles protection of the health of animals with the requirements of the internal market.

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available space and the standards which must 43. I therefore conclude that the national be met by vehicles as regards the transport of measures in question, equivalent to quantita- certain types of animals. tive restrictions on trade, may not be justi- fied on the grounds of the protection of the health and life of animals pursuant to Article 36 of the Treaty.

41. As for the Convention, without going into the question of its enforceability in this case — which has hardly been touched upon in the legal argument 30 — I would merely 44. I have also pointed out that overriding point out that the draftsmen have suggested requirements relating to the general interest and adopted other means for guaranteeing the have been put forward during the national protection of the health and life of animals proceedings as well as before this Court as than those, more radical, adopted or proposed justification for those provisions. However, by the Austrian Government. As we have none of them appear to me to justify the seen, 31 it envisages provisions which are in obstacle to free movement found to exist. substance similar to those provided for in the Annex to Directive 95/29.

45. The twin aim of protecting the health of animals and ensuring the safety of road users, 42. Those two examples clearly illustrate how relied on as justification for the national meas- the aim of protecting the health and life of ures, whilst they may appear legitimate, do animals intended for slaughter, during their not appear to me to constitute an ‘overriding transport by road, may be attained by means requirement' capable, in the circumstances of more compatible with the requirements of this case, of removing the national legislation free movement than all those provisions in from the scope of the prohibition of measures the Austrian legislation. The latter does not in having equivalent effect, despite its restrictive fact exclude measures for attaining the aim in effect on trade. view whilst being reconcilable with the requirements of the common market, since it contains maximum time-limits.

out that the concern about road safety — tive 95/29, to Regulation (EEC) N o 3820/85, 33 notwithstanding the question whether it may adopted, precisely, for considerations of road constitute an overriding requirement within safety. 34 the meaning of Cassis de Dijon 32 — could have been met by means more compatible with the principle of free movement. It is suf- ficient to point out in this regard that the Community legislature, in the directives on the protection of animals during transport, 47. I accordingly consider that the national could have incorporated the aim of ensuring measures in question, equivalent to quantita- road safety, without this justifying a dispro- tive restrictions on trade, likewise cannot be portionate obstacle to trade. This concern justified as overriding requirements relating emerges, for example, through the reference, to the protection of the health of animals and in the second indent of Article 1(3) of Direc- to road safety.

Conclusion

48. O n the basis of the foregoing considerations I p r o p o s e that the question s u b - mitted t o the C o u r t b y the Verwaltungsgerichtshof be answered as follows:

Articles 30 t o 36 of the E C Treaty are t o be interpreted as precluding a M e m b e r State from restricting t h e t r a n s p o r t of live animals intended for slaughter b y p r o - viding that this t y p e of t r a n s p o r t m a y only be effected as far as the nearest suitable abattoir w i t h i n national t e r r i t o r y and that in any event such t r a n s p o r t m a y be effected o n l y if, in compliance w i t h the m o t o r vehicle and h i g h w a y regulations, the total d u r a t i o n of the t r a n s p o r t does n o t exceed six h o u r s and the distance covered does n o t exceed 130 k m , w i t h o n l y half the distance actually covered o n a m o t o r w a y being taken i n t o account for t h e p u r p o s e s of calculating t h e distance.