CJEC, 5th chamber, September 20, 1988, No 190-87

THE COURT (fifth chamber)

1 By an order of 26 February 1987, which was received at the Court on 16 June 1987, the Bundesverwaltungsgericht referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty six questions concerning the interpretation of Articles 30, 189 and 5 of the EEC Treaty, Article 11 (2) of Regulation (EEC) No 2777-75 of the Council of 29 October 1975 on the common organization of the market in poultrymeat (Official Journal 1975, L 282, p. 77) and Articles 1 and 2 of Council Directive 83-643-EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States (Official Journal 1983, L 359, p. 8).

2 These questions arose in proceedings between Handelsonderneming Moormann BV, a company incorporated under Netherlands law (hereinafter referred to as "Moormann ") and the Oberkreisdirektor des Kreises Borken (hereinafter referred to as the "Oberkreisdirektor "), supported by the Vertreter des oeffentlichen Interesses, concerning the compatibility with Community law of systematic inspections at the frontier of poultrymeat imported from the Netherlands into the Federal Republic of Germany.

3 Under the legislation in force in the Federal Republic, namely the Gefluegelfleischhygiene-Gesetz (Law on poultrymeat hygiene) of 12 July 1973 and the Gefluegelfleischuntersuchungs-Verordnung (poultrymeat inspection regulation) of 3 November 1976, as amended by a regulation of 27 July 1978, the following procedure applies to any importation of fresh poultrymeat into the Federal Republic of Germany: first, the importer must declare the goods to the appropriate national customs office and present them there for import inspection; the procedure then involves examination of the documents accompanying the goods, verification that the goods designated in the documents correspond to those actually imported and a check of the marking of the goods.

4 Following a decision of the Oberkreisdirektor no longer to carry out customs clearance formalities between 5.00 p.m. and midnight, which had hitherto been possible subject to payment of a 50% surcharge for the service provided, Moormann instituted proceedings in the appropriate German courts challenging the German legislation, which, it alleged, was contrary to Article 30 of the EEC Treaty and to Directive 83-643.

5 Following the decision of the Oberverwaltungsgericht allowing Moormann' s application, an appeal on a point of law against that decision was brought before the Bundesverwaltungsgericht, which stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

"(1) Is the expression 'measures having equivalent effect' in Article 30 of the EEC Treaty to be interpreted as precluding, in trade between Member States, systematic import inspections of goods in the country of destination after they cross the frontier, where such inspections involve:

(a) the obligation for the importer to declare promptly all the goods which he is importing to a national customs office responsible for carrying out import inspection;

(b) the obligation to present the goods declared for import inspection at the customs office;

(c) examination of the documents accompanying the goods, in particular the prescribed health certificate;

(d) verification that the goods referred to in the accompanying documents are identical to the goods actually imported;

(e) verification of the prescribed marking of the goods?

(2) Is the expression 'measure having equivalent effect' in the second indent of Article 11 (2) of Regulation (EEC) No 2777-75 of the Council of 29 October 1975 on the common organization of the market in poultrymeat to be interpreted in the same way as the corresponding expression in Article 30 of the EEC Treaty?

(3) Where a Member State applies in respect of a Community citizen a provision of national law which, under a Community directive binding on that State, it should no longer have retained, does the third paragraph of Article 189 or Article 5 of the EEC Treaty or another provision of Community law (and if so which) constitute the legal basis entitling the Community citizen to challenge the application of the national provision by the Member State on the ground that the Member State failed to fulfil within the prescribed period the obligation imposed upon it by the directive?

(4) Is the term 'inspections' in Article 1 (1) of Council Directive 83-643-EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States to be interpreted as covering:

(a) the obligation for the importer to declare promptly to a national customs office all the goods which he is importing;

(b) the obligation to present the goods declared at the customs office;

(c) examination of the documents accompanying the goods, in particular the prescribed health certificate;

(d) verification that the goods referred to in the accompanying documents are identical to the goods actually imported;

(e) verification of the prescribed marking of the goods?

(5) If question 4 (a), (b), (c), (d) or (e) is answered in the negative:

is the term 'formalities' in Article 1 (1) of Directive 83-643-EEC to be interpreted as covering the checks referred to in question 4 and held not to be 'inspections' ?

(6) Is the term 'inspections' in the second indent of Article 2 of Directive 83-643-EEC to be interpreted as meaning that only inspections within the meaning of Article 1 (1) of that directive are to be carried out exclusively by means of spot checks but that nothing can be inferred therefrom with respect to the extent to which systematic formalities are permissible?"

6 Reference is made to the Report for the Hearing for a more detailed account of the facts of the case, the course of the procedure and the observations submitted to the Court of Justice, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The first question

7 In order to reply to the first question submitted by the national court, concerning the interpretation of Article 30 of the EEC Treaty, it should be noted that, as the Court has consistently held (see, in the first instance, the judgment of 11 July 1974 in Case 8-74 Dassonville ((1974)) ECR 837), all trading rules enacted by Member States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade are to be regarded as measures having an effect equivalent to quantitative restrictions.

8 National legislation which provides for systematic inspection of goods on entry into the country of destination and imposes the measures described in the first question is capable, because of the constraints and delays which it entails, of making importation more difficult and must consequently be regarded as a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 of the EEC Treaty.

9 The Government of the Federal Republic of Germany, in its written observations submitted to the Court, argued that the German legislation was justified under Article 36 of the Treaty on grounds of the protection of health and life of humans and animals.

10 The Court has consistently held that where, in application of Article 100 of the Treaty, Community directives provide for the harmonization of the measures necessary to ensure inter alia the protection of animal and human health and establish Community procedures to check that they are observed, recourse to Article 36 is no longer justified and the appropriate checks must be carried out and protective measures adopted within the framework outlined by the harmonizing directive (judgments of 5 October 1977 in Case 5-77 Tedeschi v Denkavit ((1977)) ECR 1555; of 5 April 1979 in Case 148-78 Ratti ((1979)) ECR 1629; and of 8 November 1979 in Case 251-78 Denkavit ((1979)) ECR 3369).

11 As the Court has already held in its judgment of 6 October 1983 in Joined Cases 2 to 4-82 Delhaize ((1982)) ECR 2973, Council Directive 71-188-EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat (Official Journal, English Special Edition 1971 (I), p. 106) introduced a harmonized system of health inspections. This system of health inspections, harmonized at Community level and based on full inspection of the goods in the exporting State, replaces inspection in the State of destination and is intended to allow the free movement of the goods concerned under the same conditions as those of an internal market.

12 Consequently, with regard to trade in fresh poultrymeat, health inspection carried out systematically on goods when they cross the frontier can no longer be justified on grounds of the protection of health under Article 36 of the Treaty.

13 Only occasional health inspections carried out by the State of destination are permissible, provided that they are not increased to such an extent as to constitute a disguised restriction on trade between the Member States (see judgment of 6 October 1983 Delhaize, cited above).

14 The expression "health inspection" for the purposes of Directive 71-118 must be interpreted as meaning all health inspections carried out by an official veterinarian as listed in Annex I to the directive, the completion of which is certified by an official veterinarian in the health certificates contained in Annexes III and IV to the directive. The expression also covers any inspection carried out by the importing State in order to establish that the prescribed hygiene requirements were in fact complied with, where such inspection requires the intervention of a veterinarian or a hygiene expert.

15 These health inspections must be distinguished from general verification that the goods transported correspond to the accompanying documents, in particular by means of inspection of the documents, and health certificates which are required to accompany the products (see judgment of 15 December 1976 in Case 35-76 Simmenthal ((1976)) ECR 1871).

16 It follows that when products covered by Directive 71-118 cross an intra-Community frontier they may be made subject systematically only to the inspections of an administrative nature to which all goods crossing the frontier are subject.

17 Accordingly, in reply to the first question it must be stated that systematic inspection of poultrymeat by a veterinarian or hygiene expert on importation into the country of destination constitutes a measure having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the EEC Treaty. In so far as such inspection is intended systematically to check compliance with the hygiene requirements laid down by Directive 71-118-EEC, it cannot be justified under Article 36 of the EEC Treaty.

The second question

18 In its second question, the national court asks whether the expression "measure having equivalent effect" within the meaning of Article 11 (2) of Regulation No 2777-75 must be interpreted in the same way as the same expression in Article 30 of the EEC Treaty.

19 Article 11 (2) of Regulation No 2777-75 is one of a series of provisions concerning exclusively trade with non-member countries, whereas the main proceedings concern intra-Community trade.

20 Accordingly, in reply to the second question it must be stated that Article 11 (2) of Regulation No 2777-75, which prohibits measures having equivalent effect, concerns trade with non-member countries and does not apply to intra-Community trade.

The third question

21 In its third question, the national court raises the problem of the legal basis of the right of an individual Community citizen to rely, as against a Member State which has failed to implement or has not correctly implemented a directive, on a provision of the directive in question.

22 The third paragraph of Article 189 of the Treaty provides that directives are binding, as to the result to be achieved, upon each Member State to which they are addressed. Article 5 of the Treaty requires the Member States to take all appropriate measures to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions of the Community. It follows from the binding effect which the third paragraph of Article 189 ascribes to directives and the obligation of cooperation laid down in Article 5 that the Member State to which a directive is addressed cannot evade the obligations imposed by the directive in question.

23 As the Court has consistently held, whenever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon as against a State which has failed to implement or has not correctly implemented the directive within the prescribed period. In such circumstances the national court must give precedence to the provisions of the directive over those of the conflicting national legislation (see judgment of 5 April 1979 Ratti, cited above).

24 Accordingly, in reply to the third question it must be stated that the right of an individual Community citizen to rely on an unconditional and sufficiently precise provision of a directive against a Member State which has failed to implement it or has not correctly implemented it is based on the combined provisions of the third paragraph of Article 189 and Article 5 of the EEC Treaty.

The fourth and fifth questions

25 By its fourth and fifth questions the national court seeks to establish whether the checks required under the German legislation must be regarded as "physical inspections" or "administrative formalities" within the meaning of Directive 83-643.

26 The purpose of that directive is to lay down various rules for the carrying out of physical inspections of goods and the completion of the required administrative formalities upon crossing a frontier with a view, according to its preamble, to reducing the waiting time at frontiers and ensuring a smoother flow of goods traffic between Member States.

27 In accordance with its aim of making the crossing of a Community frontier less difficult and doing away with the systematic carrying out of costly verifications, the terms of the directive must be interpreted in such a manner as to ensure that they in fact contribute to that purpose.

28 Consequently, the expression "physical inspections" must be understood as referring to all inspections of goods which involve physical contact with them.

29 The expression "administrative formalities" must be understood as referring to all operations which involve the checking of documents and certificates accompanying the goods and are intended to ensure by simple visual inspection that the goods correspond to the documents and certificates, where such operations may be carried out by officials having general authority to inspect goods at the frontier.

30 Accordingly, in reply to the fourth and fifth questions it must be stated that the term "physical inspections" within the meaning of Directive 83-643 must be understood as covering all inspections of goods which involve physical contact with them. The term "administrative formalities" must be understood as covering all operations which involve the checking of documents and certificates accompanying the goods and are intended to ensure by simple visual inspection that the goods correspond to the documents and certificates, where such operations may be carried out by officials having general authority to inspect goods at the frontier. On the basis of these definitions, it is for the national court to decide in which category the measures referred to in the fourth question should be classified, having regard to the manner in which they are carried out.

The sixth question

31 In its sixth question, the national court seeks to establish whether Article 2 of Directive 83-643 must be interpreted as meaning that the rule to the effect that inspections may be carried out only by means of spot checks applies solely to physical inspections as referred to in Article 1 (1) of that directive and not to administrative formalities.

32 In order to reply to this question, it should be recalled that in order to facilitate the crossing of frontiers Article 2 provides that Member States are to ensure that the various inspections and formalities are carried out with the minimum delay necessary and, as far as possible, in one place. Article 2 stipulates that inspections may be carried out only by means of spot checks, except in duly justified circumstances.

33 Since Article 1 (1) expressly states that in the subsequent provisions of the directive physical inspections are referred to as "inspections" and administrative formalities as "formalities", it follows that the terms "inspections" and "formalities" in Article 2 have the same meaning as the terms "physical inspections" and "administrative formalities" in Article 1.

34 Consequently, inasmuch as Article 2 provides only that inspections must be carried out by means of spot checks, it relates solely to physical inspections within the meaning set out above and cannot cover the manner in which administrative formalities are completed.

35 Accordingly, in reply to the sixth question it must be stated that the term "inspections" in Article 2 of Directive 83-643 must be interpreted as meaning that only physical inspections within the meaning of Article 1 (1) of the directive are to be carried out solely by means of spot checks, and no conclusion can be drawn from that article regarding the manner in which administrative formalities are to be completed.

Costs

36 The costs incurred by the Government of the Federal Republic of Germany, the Government of the Kingdom of Spain and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, a step in the proceedings before the national court, the decision as to costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Bundesverwaltungsgericht, by an order of 26 February 1987, hereby rules:

(1) Systematic inspection of poultrymeat by a veterinarian or hygiene expert on importation into the country of destination constitutes a measure having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the EEC Treaty. In so far as such inspection is intended systematically to check compliance with the hygiene requirements laid down by Council Directive 71-118-EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat, it cannot be justified under Article 36 of the EEC Treaty.

(2) Article 11 (2) of Regulation No 2777-75 of the Council of 29 October 1975 on the common organization of the market in poultrymeat, which prohibits measures having an effect equivalent to quantitative restrictions, concerns trade with non-member countries and does not apply to intra-Community trade.

(3) The right of an individual Community citizen to rely on an unconditional and sufficiently precise provision of a directive against a Member State which has failed to implement it or has not implemented it correctly is based on the combined provisions of the third paragraph of Article 189 and Article 5 of the EEC Treaty.

(4) The term "physical inspections" within the meaning of Council Directive 83-643-EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States must be understood as covering all inspections of goods which involve physical contact with them. The term "administrative formalities" must be understood as covering all operations which involve the checking of documents and certificates accompanying goods and are intended to ensure by simple visual inspection that the goods correspond to the documents and certificates, where such operations may be carried out by officials having general authority to check goods at the frontier. On the basis of those definitions, it is for the national court to decide in which category the measures referred to in the fourth question should be classified, having regard to the manner in which they are carried out.

(5) The term "inspections" in Article 2 of Directive 83-643 must be interpreted as meaning that only physical inspections within the meaning of Article 1 (1) of the directive are to be carried out solely by means of spot checks, and no conclusion can be drawn from that article regarding the manner in which administrative formalities are to be completed.