JUDGMENT OF 12. 7. 1979 — CASE 153/78 COMMISSION v GERMANY

In Case 153/78

THE COURT composed of H. Kutscher, President, J. Mertens de Wilmars and Lord Mackenzie Stuart, Presidents of Chambers, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco, A. Touffait and T. Koopmans, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

The facts of the case and the arguments submitted by the parties in the course of the written procedure may be summarized as follows:

I — Facts and procedure

Imports into the Federal Republic of Germany of prepared meat products are governed by the Law on the inspection of meat (Fleischbeschaugesetz) dated 29 October 1940, as amended by the Law dated 5 July 1973 (BGBl. 1973, I, p. 709). Paragraph 12 (c) (1) of that law provides that ‘meat products may be imported only if they fulfil the conditions listed below:

1) …

2) The meat must have been prepared in establishments processing for export in the exporting country in which the animals listed in paragraph 12 (a) (1) or 12 (a) (2) were slaughtered …; the establishments processing for export must be approved and their names published by the Federal Minister.

3) The consignment must be accompanied by the prescribed certificate of fitness for consumption issued by an official veterinarian.

…’

The content and form of the certificate are laid down by the regulation on minimum hygiene standards for meat whose intended destination is the Federal Republic of Germany, dated 11 November 1974 (Mindestanforderungen-Verordnung, BGBl. 1974, I, p. 3165).

Under this legislation the German authorities prohibited the importation of a consignment of sausages produced in the Netherlands by processing pigs' tongues coming from the United States. After the manufacturer concerned had complained to the Commission, the latter sent a letter dated 18 May 1973 informing the Federal Republic of Germany that it considered those rules to be in breach of Article 30 of the EEC Treaty. The Federal Republic of Germany rejected that argument in a letter dated 20 September 1973, and on 13 October 1976 the Commission set in motion the procedure provided for in Article 169 of the Treaty for failure to fulfil obligations under the Treaty.

In the observations which it submitted by memorandum dated 15 December 1976, the main point made by the Federal Republic of Germany was that the case fell within the ambit of the exemption contained in Article 36 of the Treaty and that consequently the national legislation did not infringe the Treaty.

On 4 February 1978 the Commission delivered a reasoned opinion to the Federal Republic of Germany under Article 169 of the Treaty to the effect that that Member State ‘had failed to fulfil its obligations under Articles 30 and 36 of the EEC Treaty by authorizing since 23 July 1965 imports from other Member States of meat-based products which are manufactured in factories recognized and approved by the German authorities and when the meat used to manufacture the various products comes from slaughterhouses or cutting plants approved by the German authorities, whilst prohibiting imports when the latter establishments are not situated in the country where the finished product is produced’ and inviting the German Government to adopt the measures required to comply with the opinion within a period of two months.

When it ascertained that the Federal Republic of Germany had not taken any measures to comply with the reasoned opinion within the time allowed, the Commission submitted an application to the Court of Justice on 6 July 1978, which was registered on 11 July of the same year.

After hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

II — Conclusions of the parties

The Commission claims that the Court should:

1) Declare 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) Order the Federal Republic of Germany to pay the costs.

The Government of the Federal Republic of Germany contends that the Court should:

1) Declare the application unfounded.

2) Order the applicant to pay the costs.

III — Submissions and arguments of the parties presented during the written procedure

As the parties were agreed on the fact that the above-mentioned provisions of the Fleischbeschaugesetz constitute a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the Treaty, the arguments centered on the interpretation of Article 36 of the Treaty. Relying on the first sentence of the article, the Federal Republic of Germany asserts that the restriction is justified on the ground of protection of human health and life, whereas the Commission is of the opinion that it is not necessary to decide whether the German measures are actually necessary within the meaning of the first sentence of Article 36 for the protection of health because in any case they constitute a means of arbitrary discrimination or a. disguised restriction on trade between Member States within the meaning of the second sentence of Article 36 of the Treaty. Consequently, the Commission's commentary on the first sentence of Article 36 is submitted only in the alternative in relation to its main argument.

A — justification on the ground of protection of health (Article 36, first sentence)

The Commission considers that the first sentence of Article 36 does not apply in this instance: because (1) the product in question does not constitute a danger to the interest to be protected, (2) the measures which have been adopted are not appropriate to eliminate it, and (3) supposing that such a danger exists, they exceed what would be required to avoid it.

1) Pigmeat products endanger health only if there is serious reason to believe that they contain trichinae. That is not the case where products have been manufactured in a processing establishment in another Member State, recognized by the Federal Republic of Germany, exclusively with fresh meat coming from slaughterhouses or cutting plants recognized by the Federal Republic. It is a fan that the latter are not allowed to despatch meat to Germany unless it fulfils the requirements laid down in Directive No 64/433 of 26 July 1964 on health problems affecting intra-Community trade in fresh meat (Official Journal, English Special Edition 1963-1964, p. 185) and in the Mindestanforderungen-Verordnung.

2) The disputed measures are not appropriate to eliminate a health hazard, since the risk of the presence of live trichinae in products processed from meat — supposing that such a risk exists — is the same whether the establishment producing the meat products and the slaughterhouse where the animal from which the meat for processing has come was slaughtered and cut are situated in the same or in different Member States. Crossing a border within the Community does not increase that risk in comparison with transportation inside a given country.

3) In the opinion of the Commission the means — that is to say, the prohibition of certain possible imports of meat products — is disproportionate to the objective. It would be sufficient to require a certificate from the producing country declaring that the product is free from trichinae.

In its defence the Government of the Federal Republic of Germany states that in view of the health hazard represented by meat products and the appropriateness of the measures adopted it is entitled to claim the full benefit of the provisions of the first sentence of Article 36 of the Treaty.

To support this point of view it claims, first, that controls on imports of fresh meat within the Community are inadequate and that therefore import restrictions are still necessary even with regard to meat products coming from other Member States. Relying on the judgment of the Court in Case 70/77 Simmenthal, of 28 June 1978 ([1978] ECR 1453), according to which Directive No 72/462 of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries (Official Journal, English Special Edition 1972 (31 December), p. 7) is not yet applicable, the German Government takes the view that the Member States have no alternative but to continue controlling imports of fresh meat from third countries provisionally on the basis of their respective internal laws. Owing to the variation between the laws applicable in the Member States, on one hand, and the impossibility of guaranteeing the identity of meat products from other Member States or the Federal Republic of Germany, on the other hand, the German Government is compelled, in the interests of the protection of health, to prohibit the importation from Member States of meat products which have been manufactured from foreign meat imported into that country.

As Community law stands at present, the processing of fresh meat coming from another Member State involves a measure of risk whenever the production of the fresh meat and the manufacture of the meat products occur in different countries, since none of the national authorities concerned is in a position to assume full and complete responsibility for all stages of production.

This overall responsibility, which is essential for effective supervision, will not be transferred until 1 July 1979 under Directive No 77/99 of 21 December 1976 on health problems in intra-Community trade in meat products (Official Journal 1977, L 26, p. 85). Emphasizing the fact that Community legislation in the sector of health control is still fragmentary, the Government of the Federal Republic of Germany maintains that Council Directive 77/96 of 21 December 1976 on the examination for trichinae (trichinella spiralis) upon importation from third countries of fresh meat derived from domestic swine (Official Journal 1977, L 26, p. 67) and its entry into force, due on 1 January 1979, will not alter the situation.

It is to be feared that pigmeat from third countries is entering the Community without having undergone examination for. trichinae. When it modified the regulation concerning examination on importation (Einfuhruntersuchungs-Verordnung) and the regulation on minimum standards (Mindestanforderungen-Verordnung), referred to above, in a decree dated 27 July 1978 (BGBl. 1978, I, p. 1140) which came into force on 1 January 1979, the Government of the Federal Republic ensured that in future only pigmeat which had already been examined for trichinae by the health authorities in the exporting country could be imported into the Federal Republic of Germany.

As to the Commission's claim that it had failed to take any steps to comply with the reasoned opinion, the German Government replies that it is prepared to amend the Fleischbeschaugesetz in view of the fact that at the date of the entry into force on 1 July 1979 of Directive No 77/99, the transfer of overall responsibility to the Commission will be a fait accompli.

The Commission's reply is that the arrangements for fresh meat coming from third countries on which the defendant relies in its arguments are not at issue in the dispute, and that the application states clearly that the infringement of which it complains relates solely to imports from Member States of meat products processed from meat which itself comes from other Member States. As far as the measures which should be taken by the Federal Republic of Germany are concerned, the Commission considers that to declare that it intends to amend the national legislation — an amendment which is anyway required by Directive No 77/99 — does not amount to a measure taken by the addressee to comply with a reasoned opinion.

The Commission is of the opinion that the statistics quoted by the defendant are of little probative value, in the first place because the figures embrace all kinds of meat considered to present a health risk and not just meat products containing trichinae, in the second place because the figures represent the annual total amount of meat products imported into Germany from both Member States and third countries, and lastly because it is impossible to discern in these figures the grounds for the defendant's claim that the number of suspect imports must be greater when the Member State where the animals were slaughtered is not the Member State where the meat derived from them was processed. Moreover, the establishments which are involved in the manufacturing process have all been approved by the Federal Republic of Germany.

According to the Commission the disputed measures are not such as to eliminate the health hazard because the prohibition against importing meat products does not ensure that the German consumer is protected against the risk which is deemed to be presented by trichinae, as the risk must equally be present in manufactured products when the Member State where the animal was slaughtered is the same as that where the finished product was produced.

In response to the argument concerning overall responsibility, the Commission is of the opinion that the question to be answered is not who is to be made responsible for inadequate health standards but only whether the fact that a number of national supervisory authorities have powers in the matter creates a danger for health.

Since the common market makes it possible to conduct the production process in different Member States, it is the supplier of the finished product who is answerable to consumers for the quality of his products. Referring to the judgment of the Court in the Eggers case (judgment of 12 October 1978 in Case 13/78 [1978] ECR 1935), the Commission concludes that the concept of ‘undivided responsibility’ cannot be used to justify a measure having an effect equivalent to a quantitative restriction on imports.

In its reply the German Government points out, first, that in manufacturing meat products meat coming from a third country is mixed with meat of Community origin, and secondly, that it is impossible to identify and check the quality of the meat coming from third countries after that mixing. It is therefore of the opinion that in those circumstances the present system of control under paragraph 12 (c) of the Fleischbeschaugesetz is justified.

Countering the Commission's argument that the measures are disproportionate to their objective, the German Government is of the opinion that import restrictions are the only measure appropriate to protect the population, as any rules affording less protection would be ineffective.

Lastly, the Commission's reference to the judgment of the Court in Case 13/78 (Eggers, mentioned above) is irrelevant because that judgment refers expressly only to ‘undivided responsibility’ with regard to quality control and does not, therefore, apply to controls designed to protect the health and life of consumers. In the present case, the provisions laid down for health protection must take priority over the principle of the free movement of goods.

B — Arbitrary discrimination or a disguised restriction (Article 36, second sentence)

The Commission is of the opinion that if, contrary to its view, the first sentence of Article 36 of the Treaty is held to apply, the second sentence of the same article, which provides that the restrictions shall not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States, makes it quite impossible to rely on that provision.

The measures are discriminatory because their effect is to produce different treatment in similar situations. What happens is that a sausage manufacturer in Member State A may not import his products into Germany for the sole reason that he processes, for instance, pigs' tongues from Member State B, whilst a manufacturer in that same Member State B who processes the same pigs' tongues from the same slaughterhouses is allowed to import his products into Germany.

The German measures also constitute a disguised restriction on trade, first because it is impossible to deliver raw materials (fresh meat) to the processing plant which is manufacturing the product in the other Member State for export to Germany, and secondly because trade in processed products between the Federal Republic and the other Member States is restricted. In its Reply the Commission adds, on the interpretation of Article 6 of Directive No 64/433, that that provision permits national measures restricting imports to be maintained only to a certain extent. If, notwithstanding that possibility, a Member State allows meat to be imported then by virtue of the last sentence of Article 6 (1) A that meat must satisfy the Community's requirements set out in Article 3 of the directive. Consequently there is no objective justification for treating the processor of meat imported from another Member State which satisfies the conditions laid down by that directive differently to the processor of meat produced in the Member State where the processing is carried out.

At the hearing on 5 June 1979 oral arguments was presented by the Commission of the European Communities, represented by its Agent, Götz zur Hausen, and by the Government of the Federal Republic of Germany, represented by Rudolf Morawitz, Ministerialdirigent at the Ministry for Economic Affairs.

The Advocate General delivered his opinion at the hearing on 20 June 1979.

Decision

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 No 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 No 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 No 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 No 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 No 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 clanger 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 No 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.