CJEC, July 12, 1979, No 153-78

The court

1 The Commission of the European Communities submitted an application to the court on 6 july 1978 under article 169 of the eec treaty for a declaration that ' ' by prohibiting the import from other member states of meat products manufactured from meat not coming from the country of manufacture of the finished product, the Federal Republic of Germany has failed to comply with its obligations under articles 30 and 36 of the eec treaty ' '.

2 Meat products, even those coming from other member states, may not be imported into the Federal Republic of Germany by virtue of paragraph 12 (a) and (b), and especially paragraph 12 (c), of the law on the inspection of meat (fleischbeschaugesetz) unless, inter alia, the product was manufactured in an establishment which has been approved by the appropriate federal ministry and which, moreover, must be situated in the country where the animals which provided the meat for the manufacture of the product were slaughtered. The provisions of those paragraphs read together with the regulation adopted to implement them (mindestanforderungen-verordnung) require every imported consignment to be accompanied by an official certificate to enable the customs authorities to ensure that those conditions have been complied with.

3 The application concerns the conformity with the provisions of the treaty on the free movement of goods of the requirement that the slaughtering and processing must have been carried out in the same member state. It was pointed out by the commission, in fact, that the only hypothesis under consideration in these proceedings is that where the animals are killed in slaughterhouses in the community and their meat processed in establishments situated in the territory of a member state, the problem of the movement of products made with meat from animals slaughtered in third countries being entirely reserved. It is also agreed by the parties that the contested measure constitutes a measure having an effect equivalent to a quantitative restriction on imports within the meaning of article 30 of the treaty.

4 According to the german government the national provision in question, while constituting a measure having an effect equivalent to a quantitative restriction, is justified under article 36 of the treaty on grounds relating to the protection of human health. According to the commission, however, article 36 cannot be relied upon in this case both because there is no danger to human health and because, even if there were such a danger, the disputed measure is not such as to eliminate it. In any event, the disputed measure is not such as to eliminate it. In any event, the disputed provision is said to be excessive in relation to the objective pursued, so that it must be considered as constituting arbitrary discrimination and a disguised restriction on trade within the meaning of the second sentence of article 36 of the treaty.

5 As the court has stated on various occasions, particularly in its judgments of 15 december 1976 (case 35-76, simmenthal (1976) 2 ecr 1871), 5 october 1977 (case 5-77, tedeschi (1977) 2 ecr 1555) and 12 october 1978 (case 13-78, eggers (1978) ecr 1935), the purpose of article 36 of the treaty is not to reserve certain matters to the exclusive jurisdiction of the member states; it merely allows national legislation to derogate from the principle of the free movement of goods to the extent to which this is and remains justified in order to achieve the objectives set out in the article. Since the restrictive measures authorized by article 36 derogate from the fundamental principle of the free movement of goods, they are in accordance with the treaty only in so far as they are ' ' justified ' ', that is to say, necessary in order, in this case, to ensure the protection of human health and life.

6 However, the conclusion drawn by the german government from article 6 of council directive n°64-433 of 26 june 1964 on health problems affecting intra-community trade in fresh meat (official journal, english special edition 1963-1964, p. 185, semi-official codification in official journal 1975, c 189, p. 31) is that as there is no harmonization of health legislation in the meat products sector, member states are entitled to maintain their own legislation in force, however restrictive it may be, since the absence of harmonization is due to the fact that council directive n°77-99 of 21 december 1976 (official journal 1977, l 26, p. 85) on health problems affecting intra-community trade in meat products obliges member states to comply with its provisions only with effect from 1 july 1979.

7 That argument must be rejected. It should be observed, first, that directive n°64-433 concerns trade in fresh meat and not trade in meat products. Moreover, article 6, cited above, which states that ' '... This directive shall not affect ' ' member states ' national provisions concerning certain types of fresh meat, even if it were applicable to intra-community trade in meat products, could not have the purpose or effect of modifying the scope of the obligations imposed on member states by articles 30 and 36 of the treaty.

8 The only question to be answered is therefore whether the requirement laid down in paragraph 12 (c) of the fleischbeschaugesetz is justified within the meaning of article 36 of the treaty, that is to say ' ' necessary ' ' for the protection of health or life of humans in the Federal Republic of Germany.

9 On this point the defendant argues, first, that the disputed measure is designed to avoid the danger that meat products manufactured in another member state are derived in fact from animals slaughtered outside the community, whereas, on the one hand, the judgment of the court of 28 june 1978 (case 70-77, simmenthal (1977) 2 ecr 1453) shows that council directive n°72-462 of 12 december 1972 (official journal, english special edition 1972 (31 december), p. 7) on health and veterinary inspection problems upon importation of, in particular, fresh meat from third countries, is not yet applicable because the community institutions have not issued the necessary implementing measures, and, on the other hand, the commission acknowledges that the member states remain free to take protective measures in relation to meat products derived from animals slaughtered in third countries.

10 In fact the possibility cannot be entirely eliminated that meat products have been manufactured from the meat of animals which have been slaughtered in third countries, but this is not sufficient to justify the restriction in question. That risk must be eliminated by means of evidence that the animal was slaughtered and the meat processed on community territory. But it is immaterial in this respect whether the slaughtering and processing were carried out in one and the same member state or whether the first operation happened in one member state and the second in another. Moreover, according to articles 3 and 4 of directive n°64-433 on intra-community trade in fresh meat, mentioned above, in order to be permitted to move between member states fresh meat must have come from animals which have been slaughtered in slaughterhouses which are approved and supervised in accordance with a community procedure. Each member state is able to supervise standards in the approved establishments as regards the efficacy of the health guarantees which they offer. Every meat processor established in the community who wishes to export to the Federal Republic of Germany is therefore in a position to ascertain whether the meat which he is processing derives from animals slaughtered in a slaughterhouse which has been approved by a member state, and the Federal Republic of Germany can require proof of the fact in the form of the appropriate certificate. Consequently the requirement that the animal should be slaughtered and its meat processed in one and the same member state is not necessary in order to counter the risk alleged to be present.

11 Secondly, the german government claims that the crossing of a frontier increases the risk that fresh meat which is to be processed into a meat product is unwholesome. This argument is equally unacceptable. Whilst it is true that when fresh meat is transported the risk of its being rendered unwholesome by contamination, by handling or by alterations in the conditions under which it is transported is liable to increase in proportion to the distance and duration of the transportation, the fact that the meat does or does not cross a frontier within the community while in transit does not affect the risk in question. This is especially true in view of the fact that the directive of 26 june 1964, to which reference has already been made, on health problems in intra-community trade in fresh meat imposes in chapters x and xiii of annex i particularly strict conditions regarding packaging and transport.

12 Thirdly, the german government asserts that the condition set out in paragraph 12 (c) of the fleischbeschaugesetz is designed to establish the principle of ' ' undivided responsibility ' ' with regard to the entire production sequence from slaughtering to processing, where a processed product unfit for consumption is imported into the Federal Republic of Germany. Considerations of this sort are not, however, such as to justify the contested measure. As the court has already declared in its judgment of 12 october 1978 (eggers, cited above), the desire to establish ' ' undivided responsibility ' ' is directed solely at facilitating the administrative controls which are considered to be necessary; it does not guarantee a higher standard of wholesomeness in the products and cannot therefore justify a derogation from the principle of the free movement of goods as great as that which results from the requirement that the entire production process for a given product must be accomplished in a single member state.

13 The german government lays particular emphasis on the danger of the presence of trichinae in products prepared from pigs ' offal and on the lack of harmonization of health control procedures in this sector, since council directive n°77-96 of 21 december 1976 on the examination for trichinae upon importation from third countries of fresh meat derived from domestic swine (official journal 1977, l 26, p. 67) requires the member states to introduce the measures for which it provides only with effect from 1 january 1979, that is to say, from a date later than that of the reasoned opinion addressed by the commission to the Federal Republic of Germany on 4 january 1978.

14 Here, too, the court is unable to endorse the views expressed by the defendant. Apart from the fact that the disputed requirement concerns the entire range of meat products, and not merely those derived from domestic swine, there is no reason to accept that the risk of the presence of trichinae in meat products is increased merely by the fact that the fresh meat crossed a community frontier prior to being processed, or to accept that that circumstance makes detection of the presence of trichinae at the time of entry into the Federal Republic of Germany more difficult or less reliable. It should be noted, moreover, that the german provisions relating to inspection for trichinae do not distinguish between meat products coming from an establishment situated in the member state where the animal was slaughtered and those coming from an establishment situated in a member state other than that in which the slaughtering took place.

15 It follows from the preceding considerations that the requirement imposed by paragraph 12 (c) of the fleischbeschaugesetz is not necessary either to diminish the risk of unwholesomeness of meat products imported into the federal republic germany coming from an establishment situated in another member state, or to ensure effective health controls with regard to such products at the time of importation. Thus the requirement constitutes both an obstacle to the free movement of meat products which is superfluous and in any event disproportionate to its objective, and discrimination against meat-processing establishments which import their raw material from another member state in comparison with their competitors who obtain supplies of fresh meat from slaughterhouses in their own country. Accordingly, the disputed provision is incompatible with article 30 of the treaty and is not covered by the exemption in article 36.

16 The result is that, by prohibiting the import from other member states of meat products manufactured in one of those states from meat deriving from animals slaughtered in a different member state, the Federal Republic of Germany has failed its obligations under articles 30 and 36 of the eec treaty.

Costs

17 Under article 69 (2) of the rules of procedure the unsuccessful party shall be ordered to pay the costs. As the defendant has failed in its submissions, it must be ordered to pay the costs.

On those grounds,

The court

Hereby:

1. Declares that, by prohibiting the import from other member states of meat products manufactured in one of those states from meat deriving from animals slaughtered in a different member state, the Federal Republic of Germany has failed to fulfil its obligations under articles 30 and 36 of the eec treaty.

2. Orders the defendant to pay the costs.