CJEC, December 15, 1993, No C-277/91

THE COURT,

1 By three orders of 21 October and 25 November 1991, received at the Court on 28 October and 10 December 1991 respectively, the President of the Tribunale di Genova (District Court, Genoa), in the context of "injunction" proceedings, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty, six questions on the interpretation of Council Directive 64-433-EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat (OJ, English Special Edition 1963-1964 p. 185), Council Directive 89-662-EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to completion of the internal market (OJ 1989 L 395, p. 13), Council Directive 90-425-EEC of 26 June 1990 concerning zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to completion of the internal market (OJ 1990 L 224, p. 29), and of Articles 30, 36, 52 and 59 of the EEC Treaty.

2 Those questions were raised in proceedings between, in Cases C-277-91 and C-319-91, Ligur Carni Srl and Genova Carni Srl, two Italian companies, and Unità Sanitaria Locale (Local Health Authority) (hereinafter "USL") No XV di Genova, and, in Case C-318-91, Ponente SpA, an Italian company, and USL No XIX di La Spezia, together with CO.GE.SE.MA, a cooperative company operating in La Spezia municipality. Since they were linked, those three cases were joined for the purpose of the oral procedure and the judgment by orders of the President of the Court of 28 January 1992 and 27 January 1993.

3 The USL are responsible for carrying out health inspections in a particular geographical area. They fall within the jurisdiction of the regions and on this basis constitute public authorities.

4 As is apparent from the documents before the Court, Article 40 of Italian Royal Decree No 3298 of 20 December 1928, concerning the approval of the regulation on health checks on meat (Gazzetta Ufficiale del Regno d' Italia No 36 of 12 February 1929) provides that the bringing into a municipality of fresh meat for the purpose of marketing, after slaughter elsewhere, is authorized on condition, in particular, that the meat "undergoes a further inspection by the veterinarian at the municipality of destination", in addition to the one which has taken place in the municipality of origin.

5 On the basis of that Royal Decree, the Liguria Region adopted Regional Law No 31 of 22 August 1989 providing for the payment of charges by individuals using the USL' s veterinary services (Official Bulletin No 15 of the Liguria Region, 6 September 1989, I, p. 1439).

6 Article 1 of that Law provides that:

"private persons who use the services listed below are bound to pay a charge to the unità sanitaria locale (USL) for:

(a) inspections, checks and controls on foodstuffs of animal origin and on animals for the purpose of their marketing;

(b) certificates necessary for the marketing of foodstuffs of animal origin, animals and, in general animal products."

7 Article 2 of that same Law lays down that the charge owed to the USL for the health check shall be payable upon performance of the service and Article 3 thereof further provides that it is for the Giunta Regionale (Regional Authority) to set the amount of the charge in question, after consultation with the regional health committee.

8 Furthermore, it is apparent from the Italian provisions and the documents before the Court that a person who imports, even in transit, fresh meat into a municipality of the Liguria Region, whether from another Member State or another Italian municipality, must:

° submit his goods to a public health inspection, even where the meat is accompanied by a health certificate issued by an official veterinary of the exporting country or by the competent authority in the Italian municipality of origin. That inspection is carried out by the USL' s veterinary staff in the municipality of destination, and leads to the issuing of a certificate, which is essential for marketing the meat;

° pay to the USL, for the health service rendered, a sum by way of inspection charge, set on a flat-rate basis by the Regional Authority (Giunta Regionale).

9 It is also apparent from the documents before the Court that as regards, in particular the marketing of meat in La Spezia municipality, an importer has to use the services of CO.GE.SE.MA, a cooperative company to which the municipal authority has granted an exclusive concession for the handling of goods in the municipal slaughterhouse as well as their carriage to the places of final destination. The trader may have the goods distributed by his own means, provided that CO.GE.SE.MA is paid for such a service.

10 It is apparent from the order for reference that the aforesaid three Italian undertakings import fresh beef and veal from Denmark and the Netherlands. Pursuant to the abovementioned Italian legislation, they had to pay various sums to the competent USL by way of inspection charges for the period 1990 to 1991.

11 Considering that those payments were not owed since they constituted "charges" prohibited by Council Directives 64-433-EEC, 89-662-EEC and 90-425-EEC, cited above, those undertakings brought proceedings before the President of the Tribunale di Genova for an injunction for repayment of the sums levied by the USL concerned.

12 Over and above those charges, Ponente had to pay to the cooperative company, CO.GE.SE.MA., a certain amount for charges provided for in the context of the abovementioned exclusive concession granted to that company. In Ponente' s opinion, those payments were not owed either, since they constituted "charges" prohibited under Articles 30, 52 and 59 of the Treaty.

13 The President of the Tribunale di Genova entertained doubts as to the consistency of the Italian legislation in question with Community provisions. He therefore stayed the proceedings and referred the following six questions to the Court for a preliminary ruling:

"1. Whether, on the basis of the system of Community law in force and, in particular, the provisions of Council Directives 64-433-EEC, 89-662-EEC and 90-425-EEC on health problems affecting intra-Community trade in fresh meat and veterinary checks applicable in intra-Community trade with a view to the completion of the internal market, Community law is compatible with national legislation and national practices which, in the event of importation into one Member State of fresh meat from another Member State which has already undergone in the exporting State the inspections and checks provided for by the aforesaid directives, subject the goods within the territory of the State of destination both in transit and on arrival in the municipality for which they were bound to systematic veterinary checks and health inspections which entail charges for importers.

2. Whether, in intra-Community trade in goods (fresh meat) that are already subject to health inspections in the exporting State in conformity with Directives 64-433-EEC and 89-662-EEC, the veterinary checks which may still be carried out in the State of destination in conformity with those directives include a systematic veterinary check which is carried out in the place of destination upon entry into the municipality and which, in particular:

(a) consists in compulsory checks and inspections for the purpose of marketing the goods;

(b) involves the issue of a certificate attesting that meat from a Member State of the Community 'is in a good state of preservation and is fit for consumption' ;

(c) entails a charge for the importer, even calculated on a flat-rate basis, in accordance with rates laid down at the discretion of the public authorities.

3. Whether, in the event of a negative answer, a check exhibiting the aforesaid characteristics is to be regarded as a measure having equivalent effect which is incompatible with Article 30 et seq. of the EEC Treaty but may be justified under Article 36 of the Treaty.

4. Whether the principle of Community law laid down by the Court of Justice, to the effect that action by the State with a view to carrying out health inspections may not be regarded as a service rendered to importers such as to justify the imposition of a pecuniary charge, is to be regarded as compatible with national legislation and national practices which impose in respect of goods from other Member States charges for systematic veterinary checks similar to those provided for in the amount and in accordance with the procedure specified in Article 3 of Law No 31 of 22 August 1989, adopted by the Liguria Region.

5. Whether, under Community law as it stands at present, in the case of importation by land into the territory of a Member State of the Community of goods from another Member State of the Community, Articles 30, 52 and 59 of the EEC Treaty confer on individuals subject to Community law rights which the Member States are required to observe in a situation where an importing undertaking is prohibited from carrying out itself operations which involve the loading, unloading and delivery of goods with suitable equipment of its own within the territory of a municipality.

6. Whether an administrative practice is contrary to Articles 30, 52 and 59 of the EEC Treaty if, by reserving to a given undertaking the transportation and delivery of goods in a part of the national territory, it precludes traders from Member States from carrying out such operations themselves with their own staff and equipment, except where the undertaking so licensed is paid even for services which have neither been sought nor rendered."

The first four questions are common to the three cases. The last two concern only the dispute between Ponente SpA and CO.GE.SE.MA.

14 Reference is made to the Report for the Hearing for a fuller account of the facts of the three cases, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

15 It should be noted at the outset that the Italian Government raises the question of whether the conditions for the applicability of the second paragraph of Article 177 of the Treaty are fulfilled in this case since the questions referred to the Court for a preliminary ruling have been raised in the context of summary proceedings which take place without both sides having been heard. The Court might thus be led to give an inappropriate ruling on interpretation based on a possibly incorrect presentation of the facts.

16 It is common ground that the President of the Tribunale di Genova carries out a judicial function within the meaning of Article 177 of the Treaty and that he considered that an interpretation of Community law was necessary for him to give his judgment. As the Court stated in Case 70-77 Simmenthal v Amministrazione delle Finanze dello Stato [1978] ECR 1453, paragraphs 10 and 11, although Article 177 does not make reference to the Court subject to the proceedings during which the national court frames a question for a preliminary ruling being inter partes, it may, in some circumstances, prove to be in the interests of the proper administration of justice that a question should be referred for a preliminary ruling only after both sides have been heard, but it is for the national court alone to assess whether that is necessary (see also Case 199-82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3611, paragraph 8).

Questions 1 and 2

17 The first and second questions ask whether an inspection system under which imported goods, already accompanied by a health certificate issued by the authorities of the exporting Member State in accordance with Community rules, are subject to compulsory systematic and permanent health checks, not at the frontier, but in the municipality of transit or destination of the goods, and which requires the economic operators concerned to pay a charge therefor, is compatible with the said Directives 64-433, 89-662 and 90-425.

18 It should be noted at the outset that the facts at issue in the main proceedings relate to a period prior to 1 July 1992, the date when the time-limit for implementation of Directives 89-662 and 90-425 expired. Moreover, as the Commission rightly pointed out, the subject-matter of Directive 90-425 bears no relationship to the free movement of fresh meat. Consequently, only interpretation of Directive 64-433 is relevant for the decisions in the main proceedings.

19 Directive 64-433 was based on Articles 43 and 100 of the EEC Treaty and was last amended by Council Directive 83-90-EEC of 7 February 1983 (OJ 1983 L 59, p. 10). Its objective is to eliminate, by approximation of the provisions of Member States, the differences which exist concerning health provisions on meat and risk hindering intra-Community trade in that sector (third and fourth recitals in the preamble).

20 Such harmonization is designed, in particular, to standardize health requirements for meat in slaughterhouses and cutting plants in the exporting country and also as regards storage and transportation of meat. To that end Directive 64-433 has set up a system of approval by the competent authorities in the Member States of slaughterhouses, cutting plants and cold stores which meet the health requirements laid down by the directive (fifth recital, Article 3(1), Section (A) (a), (g), (h), Section B, (a), (c), Section C, and Annex I, Chapters I, II, III, XIV).

21 The health checks thus carried out in the exporting country in accordance with the detailed provisions of Directive 64-433 lead to the issue of a health certificate prepared by the official veterinarian of that country, which is the best way of assuring the competent authorities of the country of destination that the goods in question meet the requirements of the directive and which must accompany the consignment of meat to the place of destination (sixth recital, Article 3(1), Section A(f), Annex I, Chapter XII and Annex II).

22 The fifth recital in the preamble to Directive 83-90 refers to the need to introduce Community control measures to ensure that the standards laid down in Directive 83-90 are uniformly applied in all the Member States and to make sure that the procedure for carrying out such controls should be determined in accordance with the Community procedure.

23 Article 10(1) of Directive 64-433, as amended by Directive 83-90, provides that the country of destination may check that all consignments of fresh meat are accompanied by the prescribed health certificate.

24 It is only where irregularities are seriously suspected that, under Article 10(2), the country of destination may carry out non-discriminatory inspections to check that the requirements of Directive 64-433 have been met; however, Article 10(3) provides that such inspections must not unduly delay the passage of the goods and the placing on the market or cause delays which might adversely affect their quality. Article 10(3) also states that such checks or inspections are normally to be carried out at the place of destination of the goods but that they may be carried out at another suitable place instead, provided that the place chosen interferes as little as possible with the routing of the goods.

25 In Case 35-76 Simmenthal v Italian Minister for Finance [1976] ECR 1871 and in Joined Cases 2-82, 3-82 and 4-82 Delhaize Frères v Belgian State [1983] ECR 2973, the Court had already acknowledged, before the amendment of Article 10 by Directive 83-90 came into force, that only occasional inspections were permissible, provided that they were not increased to such an extent as to constitute a disguised restriction on trade between Member States. According to those judgments, Directive 64-433 established a harmonized system of health inspections, based on the principle that the public health guarantees required by all the Member States are equivalent, which ensures the protection of health and at the same time the equal treatment of products. The purpose of that system is to transfer supervision to the exporting Member State.

26 It should, therefore, be concluded that that complete, detailed and harmonized system of health inspections of fresh meat, based on public health guarantees being equivalent at Community level, replaces all other inspection systems existing within the country of destination, whatever the place where such inspections may be carried out.

27 The answer to the national court' s first two questions should therefore be that Directive 64-433, as amended by Directive 83-90, must be interpreted as precluding a domestic inspection system which makes imported goods already accompanied by a health certificate issued by the authorities of the exporting Member State in accordance with Community rules subject to compulsory, systematic and permanent health checks, not at the frontier, but in the municipality of transit or destination of the goods, and which requires the economic operators concerned to pay a charge therefor.

Question 3

28 This question was referred to the Court only in the event that national legislation like that at issue in the main proceedings was not within the scope of Directive 64-433. Having regard to the answer given to the first two questions, there is no need to answer the third question.

Question 4

29 The national court' s fourth question essentially asks whether the pecuniary charge levied on the importer concerned by way of a public health inspection charge in the context of legislation such as that at issue in the main proceedings is justified as consideration for services rendered.

30 It should be pointed out that in so far as the systematic, compulsory and permanent inspections in question are not authorized under the harmonized system established by Directive 64-433, the pecuniary charges levied in consideration for such inspections cannot be considered to be compatible with Community rules.

31 The same applies to charges levied at the time of health checks and inspections permitted under Directive 64-433. In such cases, the activity of the national authorities is carried out in the public interest and cannot be considered as a service rendered to the importer. Therefore, the expense occasioned by such inspections must be met by the general public which, as a whole, benefits from the free movement of Community goods (see the judgments in Case 87-75 Bresciani v Amministrazione Italiana delle Finanze [1976] ECR 129 and in Case 46-76 Bauhuis v Netherlands State [1977] ECR 5). The levying of such charges on importers therefore constitutes an obstacle to that free movement which is prohibited by the Treaty.

32 Accordingly, it should be stated in reply to the fourth question that the pecuniary charge levied on the importer concerned by way of a public health inspection charge in the context of national legislation such as that at issue in the main proceedings is not justified as consideration for services rendered.

Questions 5 and 6

33 In its last two questions, raised in the context of the dispute between Ponente SpA and CO.GE.SE.MA. (Case C-318-91), the national court is essentially asking whether a prohibition laid down by the rules of a municipality of a Member State on an importer of fresh meat from using its own means to transport and deliver its goods within the territory of the municipality in question, unless it pays a local undertaking the amount corresponding to the services which that undertaking provides under an exclusive concession for handling in the municipal slaughterhouse and transporting and delivering the goods in question, is contrary to Articles 30, 52 and 59 of the Treaty and whether those provisions have direct effect.

34 It should be pointed out at the outset that those questions do not concern the legality of the actual exclusive concession granted to a local undertaking in the relevant sector.

35 Article 30 of the Treaty prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States. According to the settled case-law, to fall under the prohibition laid down by that provision, it is enough that the measures in question are capable of hindering, directly or indirectly, actually or potentially, imports between Member States. That prohibition is therefore directed at all kinds of obstacles which are liable to have an adverse effect on the free movement of goods, even an indirect or potential effect.

36 The fact that rules of a municipality in a Member State oblige traders importing fresh meat into the municipality to go through the municipal slaughterhouse to entrust the transport and delivery of their goods to their final destination to a local undertaking holding an exclusive concession for that work and that those rules allow those traders to carry out the transport and delivery of their goods themselves upon payment of a certain sum to the undertaking holding that concession does constitute such a barrier to imports.

37 That conclusion is not affected by the fact that the measure in question is limited to the territory of a municipality within a Member State. As the Court stated in Joined Cases C-1-90 and C-176-90 Aragonesa de Publicidad and Publivía v Departamento de Sanidad y Seguridad Social [1991] ECR I-4179, paragraph 24, when a national measure has limited territorial scope because it applies only to a part of the national territory, it cannot escape being categorized as discriminatory or protective for the purposes of the rules on the free movement of goods on the ground that it affects both the sale of products from other parts of the national territory and the sale of products imported from other Member States.

38 Nor is it material that the measure in question is generally applicable without distinction to national and imported products since its effect is to make importation of goods from other Member States more burdensome and more difficult (see the judgments in Aragonesa, cited above, and in Case C-179-90 Merci Convenzionali Porto di Genova v Siderurgica Gabrielli [1991] ECR 5889).

39 It should be added that Article 30 of the Treaty has direct effect and creates, for individuals, rights which the national courts must protect (judgment in Case 251-78 Denkavit v Minister fuer Ernaehrung, Landwirtschaft und Forsten [1979] ECR 3369).

40 Article 52 lays down the freedom for nationals of a Member State, including undertakings established there, to establish themselves on the territory of another Member State under the conditions laid down for its own nationals by the law of the country where such establishment is effected.

41 In the main proceedings, the dispute is between an Italian undertaking which imports fresh meat from another Member State and another Italian undertaking which holds at local level an exclusive concession for the transport and delivery of the goods in question. There is hence nothing in this case going beyond a purely national context such as to permit valid reliance on Article 52. Consequently, interpretation of that provision is not relevant to the outcome of the main proceedings.

42 The same considerations apply as regards Article 59 of the Treaty on the freedom to provide services to be enjoyed by nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.

43 The plaintiffs in the main proceedings are not undertakings established in other Member States which seek to be able to provide transport services in the municipality in question. Nor do they seek to have recourse, as recipients, to the services of a carrier from another Member State. Interpretation of Article 59 is therefore not relevant to the outcome of the dispute in the main proceedings either.

44 Accordingly, it should be stated in reply to the last two questions that Article 30 of the Treaty precludes the prohibition laid down by the rules of a municipality of a Member State on a trader importing fresh meat into the municipality from using its own means to transport and deliver its goods within the territory of the municipality in question, unless it pays a local undertaking the amount corresponding to the services which that undertaking provides under an exclusive concession for handling in the municipal slaughterhouse and transporting and delivering the goods in question. Article 30 has direct effect and creates for individuals rights which the national courts must protect.

Costs

45 The costs incurred by the Italian Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the President of the Tribunale di Genova, by orders of 21 October and 25 November 1991, hereby rules:

1. Council Directive 64-433-EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat, as amended by Council Directive 83-90-EEC of 7 February 1983, must be interpreted as precluding a domestic inspection system which makes imported goods already accompanied by a health certificate issued by the authorities of the exporting Member State in accordance with Community rules subject to compulsory, systematic and permanent health checks, not at the frontier, but in the municipality of transit or destination of the goods, and which requires the economic operators concerned to pay a charge therefor.

2. The pecuniary charges levied on the importer concerned by way of a public health inspection charge in the context of national legislation such as that at issue in the main proceedings is not justified as consideration for services rendered.

3. Article 30 of the Treaty must be interpreted as precluding the prohibition, laid down by the rules of a municipality of a Member State on a trader importing fresh meat into the municipality from using its own means to transport and deliver its goods within the territory of the municipality in question unless it pays a local undertaking the amount corresponding to the services which that undertaking provides under an exclusive concession for handling in the municipal slaughterhouse and transporting and delivering the goods in question. Article 30 has direct effect and creates for individuals rights which the national courts must protect.