Simmenthal SpA v Ministero delle Finanze italiano (35/76)

B —Observations of the plaintiff in the main action

The plaintiff in the main action analyses the questions which have been referred and takes the view that they can be reduced to two.The first, comprising questions Nos 1 and 2, asks whether Community law still allows Member States to carry out veterinary and public health inspections at the frontier, within what limits and in accordance with what criteria, while the aim of the second (question No 3 in the order making the reference) is to procure the further development of the case-law of the Court on the legality of collecting veterinary and public health charges.In order to answer the first of these questions the plaintiff in the main action reviews the applicable Italian provisions and calls attention to the fact that the Italian laws relating to veterinary and public health inspections of imported animals and meat provide for compulsory and systematic inspection, that is to say, of each head of cattle and each consignment of meat, the examination being carried out at the frontier and followed by the issue, which is obligatory, of a special document, form No 9, called a laissez-passer. The purpose of this inspection at the frontier is to protect animal health. Protection of the health of humans, especially in the case of products intended for human consumption, is secured by other provisions, namely the ‘Regulation for the veterinary and public health inspection for meat’ adopted by Royal Decree No 3298 of 20 December 1928, under the terms of which all meat, irrespective of its origin, whether imported or domestic, must undergo a health examination before being released for consumption. This means that in any case imported products, after their veterinary and public health inspection at the frontier, are also subjected to a general inspection by the ‘veterinary and public health inspectorate’ if they are intended for human consumption.The plaintiff in the main action then analyses Community law on the public health supervision of the trade in bovine animals and the meat of bovine animals and concludes that, although the rule of Community law that an inspection at the outset is obligatory does not rule out the possibility that there may be subsequent inspections in the country of destination, such inspections can however only be optional, carried out now and then and not systematically and according to the system of sample checks.The approximation of laws is a concept which includes the principle of the mutual recognition by Member States both of inspections and the appropriate certificates.According to the plaintiff in the main action the Italian measures adopted for the purpose of ensuring the implementation of the directives for the harmonization of animal health in intra-Community trade in animals and meat only outwardly comply with the requirements of these directives.Although the provisions of the texts of these implementing measures provide that the veterinary surgeons at the frontier must issue document No 9 prescribed in the regulation for animal health and approve it by appending their signature upon the health certificates ‘without the need for any other formality’, it is the manifest intention of these measures, having regard to the reference made by them to document No 9, that the rules of the regulation on animal health and of the consolidated law laying down the requirement of a national and systematic inspection remain in force.After considering the inspections at the frontier in the light of the prohibition of quantitative restrictions or measures having equivalent effect the plaintiff in the main action finds that, quite apart from the question of harmonization, these inspections only apply to imported goods and are therefore measures having an effect equivalent to a quantitative restriction, as emerges from Commission Directive No 70/50/EEC of 22 December 1969 (OJ English Special Edition 1970 (I), p. 17).The fact that the matter under examination is dealt with in rules harmonized at a Community level which introduced a comprehensive system of inspections and certificates replacing the inspections and national certificates recognized by Member States on a reciprocal basis should mean that systematic inspection at the frontier is unquestionably a measure having equivalent effect.Even if the directives reserve to Member States the right to prohibit the entry into their terrritories of animals and meat in certain circumstances (Article 6 (3) of Directive No 64/432 and Article 5 (1) of Directive No 64/433) such a power to forbid entry does not imply that systematic and compulsory inspection is lawful. Moreover the power thus conferred upon Member States is certainly not discretionary, as the reasons for its exercise must be stated and private traders may criticize the way it is used. The directives even provide for a special Community procedure providing for the opinion of a veterinary expert if the validity of the prohibition is challenged. So far as the date as from which inspections at the frontier must be regarded as a measure having equivalent effect is concerned the plaintiff in the main action takes the view that this date should be the same as the time-limit prescribed by the directives in question for the adoption of national implementing measures.With regard to the question whether inspections at the frontier may possibly be justified under Article 36 having regard to the adoption of the harmonization directives the plaintiff in the main action submits that the limitations based on Article 36 have not been made permanent but, as the Rewe judgment makes clear (Case 4/75 [1975] ECR 843) are intended to disappear gradually as a result of the harmonization of laws which alone can secure the effective elimination of every restriction on trade.The problem at issue therefore is concerned with the thoroughness of the harmonization and its solution is relatively easy when, as in this case, one is confronted with a harmonization which is comprehensive and exhaustive and based on technical requirements and a uniform system of inspection.Since the harmonization directives replace a system of pre-existent national inspections with a system of uniform inspections and certificates it is no longer possible to invoke the first sentence of Article 36 of the Treaty in order to justify systematic veterinary and public health inspections at the frontier.The plaintiff in the main action points out again that, although the veterinary and public health inspection at the frontier only applies to imported products, it amounts for this reason to ‘arbitrary discrimination’ and is consequently prohibited by the second sentence of Article 36 of the EEC Treaty. It is impossible to raise the objection, in reliance on the judgment of the Court of Justice in Case 4/75 (Rewe [1975] ECR 860, ground 8) that it is possible that different treatment could not amount to prohibited discrimination, because, even if there is a real danger of pathogenic agents spreading in the absence of any inspections at the frontier, the Community procedures laid down by the directives (the second paragraph of Article 8 of Council Directive 64/432) preclude recourse being had to Article 36.As far as the charging of the fees for the inspections at the frontier is concerned the plaintiff in the main action considers that it is necessary to define the respective fields of application of Article 9 et seq., on the one hand, and Article 95 on the other. It points out that the veterinary and public health fees at issue differ from the payments which represent the consideration for the services rendered by the veterinary surgeon of the commune for inspections carried out within national territory before the meat is released for consumption on the market for which it was intended.Veterinary and public health fees:— do not represent consideration for a service rendered since the service is performed in the public interest;— have the same protective effect as a customs duty:— they are only charged on imported goods;— their imposition has a specific aim (protection of animal health) which differs from the object of the inspection carried out within national territory and is governed by special conditions and rules.The plaintiff in the main action therefore submits that the questions referred by the Pretura di Susa should be answered as follows:(a) As from the date of expiration of the time allowed for the adoption of the national measures implementing Council Directives 64/432/EEC and 64/433/EEC a veterinary and public health inspection at the frontier of animals and meat coming from other Member States is a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 et seq. of the Treaty and Article 22 of Regulation No 805/68/EEC.(b) After the expiry of the time allowed for the adoption of the national measures implementing the directives mentioned above veterinary and public health supervision at the frontier can no longer be justified under Article 36 in the case of the despatch of animals and meat coming from other Member States; it amounts in any event to arbitrary discrimination within the meaning of the second sentence of Article 36.(c) Pecuniary charges levied on the occasion of veterinary and public health inspections of animals and meat coming from Member States carried out at the frontier are charges having an effect equivalent to customs duties whatever the basis upon which they are imposed.’During the hearing on 26 October 1976 the plaintiff in the main action, represented by Mr Cappelli, Advocate of the Rome Bar, the Italian Government represented by its Agent, Mr Marzano, and the Commission of the European Communities, represented by its Agent, Mr Abate, submitted their oral observations.When the Italian Government submitted its oral observations it denied that live animals and imported meat are systematically inspected. The method adopted is to carry out sample surveys which is the only possible way having regard to the enormous number of bovine animals, swine and meat imported into Italy each year. The Italian Government produced in this connexion a note containing figures which compare imports in 1975 with the inspections carried out in 1974 and which can be summarized as follows:| Imports in 1975 | Number of inspections in 1974Bovine animals | 2082415 | 24068Swine | 431846 | 4633Meat | 4483250 quintals | 160994The Italian Government concludes on the strength of these figures that the questions referred are not relevant.Furthermore it calls attention to the fact that, in principle, the Treaty represents the constitutional law of the Community and that consequently the harmonization measures adopted by the Commission or the Council in the exercise of their regulatory powers do not imply that Member States have surrendered the powers which the Treaty and Article 36 in particular confer upon them in matters connected with veterinary and public health inspections or that these powers have been taken away from them.Contrary to the view put forward by the Commission Community rules relating to veterinary and public health inspections are not exhaustive: they represent the minimum which Member States can accomplish by adopting national measures.The Italian Government criticizes the Commission for maintaining that only occasional veterinary and public health inspections are authorized; although supervision is authorized the Member State is empowered to determine how to carry it out.The Advocate-General delivered his opinion at the hearing on 23 November 1976.