SA Delhaize Frères "Le Lion" and others v Belgian State (2/82, 3/82, 4/82)

I —Facts and procedure

The three undertakings Delhaize Frères “Le Lion” (hereinafter referred to as “Delhaize”), G.B.-Inno-BM and Metsdagh, the plaintiffs in the main action, imported on a regular basis butcher's meat and poultry-meat (Metsdagh imported only butcher's meat) from other Member States.At the time of those imports, the Belgian authorities carried out public health inspections which the national court described as systematic. By way of consideration for those inspections, the plaintiffs paid inspection charges of a total amount provisionally estimated at BFR 9201270 in the case of Delhaize, BFR 3450000 in the case of G.B.-Inno-BM and BFR 4164544 in the case of Metsdagh.The inspections and the payment of the charges relating thereto were effected in accordance with the following provisions of national law:— As regards the importation of butcher's meat, the Law of 5 September 1952 on the inspection of and trade in meat (Moniteur Belge of 16/17 March 1953) and the Royal Decree of 12 March 1965 on the importation of meat (Moniteur Belge of 25 May 1965, p. 6256), as subsequently amended, most recently by the Royal Decree of 21 June 1979 (Moniteur Belge of 23 June 1979, p. 7221).— As regards the importation of poultry, the Law of 15 April 1965 on the inspection of and trade in fish, poultry, rabbits and game, which amended the Law of 5 September 1952 on the inspection of and trade in meat (Moniteur Belge of 22 May 1965, p. 6173) and the Royal Decree of 21 September 1970 on the inspection of and trade in poultry-meat (Moniteur Belge of 30 October 1970, p. 10994), as subsequently amended, most recently by the Royal Decree of 29 September 1979.However, by summons of 5 April 1979 and by a further summons of 6 December 1979, the plaintiffs sued the Belgian State for reimbursement of the inspection charges paid on the ground that the payment of such charges was contrary to Community Directives 64/432/EEC, 64/433/EEC and 71/118/EEC (referred to above) which, according to the plaintiffs, established a system for intra-Community trade in butcher's meat and poultry-meat prohibiting in particular any public health inspection by the authorities of the importing Member State and a fortiori the collection of any charge in respect thereof.The plaintiffs contended in the national proceedings that the inspection carried out by the Belgian authorities was merely a repetition of the first inspection performed in the exporting State in accordance with the requirements of the relevant Community directives. The plaintiffs maintained that such an inspection was incompatible with the provisions of those directives, as was clear from the Court's judgment of 15 December 1976 in Case 35/76 Simmenthal[l976] ECR 1871.In the opinion of the Belgian Government, however, the second inspection was distinct from that carried out in the exporting State in so far as its purpose was to ascertain any changes in the condition of the meat or poultry whilst in transit and its state of preservation. Such an inspection therefore fell outside the scope of the directives in question and was justified in the light of the Court's judgment of 7 April 1981 in Case 132/80 United Foods [1981] ECR 995. Moreover, the inspection was intended, according to the Belgian Government, to detect residues of bacteriostatic substances with hormonal or anti-hormonal action, falling outside the scope of the EEC directives.The national court was of the opinion that Community law and, in particular, the principles laid down by the Court in the Simmenthal and United Foods judgments, cited above, permitted the Member States to carry out certain public health inspections which were justifiable on objective grounds relating to the protection of health and life of humans, although such inspections should not in any case be systematic where the imported product had been the subject of harmonization directives, as was the case in these proceedings. In any event, an inspection of that kind should not be tantamount to a disguised restriction on intra-Community trade. According to the court making the reference, such a restriction occurred almost unavoidably where the inspection carried out in the country of destination was the same as that performed in the exporting country.In its subsequent analysis of the inspection carried out by the Belgian authorities, the court making the reference considered in the first place that, in so far as the inspection related to compliance of the imported goods with the Belgian rules, it manifestly constituted a systematic repetition of the first inspection carried out in the exporting country and was in that respect incompatible with the applicable provisions of Community law. It remained to be determined whether or not this systematic inspection, in so far as its purpose was to ascertain any changes in the condition of the goods whilst in transit from the exporting State and their state of preservation on entering Belgian territory, was compatible with the provisions of Community law applicable in this case.In order to resolve that problem, the Tribunal de Première Instance, Brussels, by judgment of 8 October 1981, decided, pursuant to Article 177 of the EEC Treaty, to stay the proceedings pending a preliminary ruling by the Court of Justice on the following questions:“Does a (systematic) public health inspection on importation of meat and poultry, which was the subject-matter of Council Directives 64/432, 64/433 and 71/118 on animal health problems affecting intra-Community trade in bovine animals and swine, in fresh meat and in fresh poultry-meat respectively, carried out to ascertain any changes in the condition of the meat and poultry whilst in transit from the exporting country and their state of preservation on entering Belgian territory, fall within the scope of the public health inspection carried out in the exporting country in accordance with the aforementioned directives?If not, is that inspection compatible with Article 30 et seq. of the EEC Treaty and may it possibly be justified by virtue of Article 36 of the EEC Treaty?In considering the question raised regard should be had to the fact that the Belgian public health inspection on importation involves, on the one hand, measures which merely repeat che inspection carried out in the exporting country in accordance with the requirements of the relevant directives and, on the other hand, measures intended, as stated above, to ascertain any changes in the condition of the goods concerned whilst in transit from the exporting State and also their state of preservation on entering Belgian territory.”The three judgments of the Tribunal de Première Instance, Brussels, were lodged at the Court Registry on 7 January 1982.In accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, written observations were submitted on 16 March 1982 by the Commission of the European Communities, represented by H. P. Hartvig and F. Lamoureux, members of its Legal Department, acting as Agents, on 26 March 1982 by the plaintiffs in the main action, represented by Mr Waelbroeck, of the Brussels Bar, on 30 March 1982 by the Belgian State, the defendant in the main action, represented by the Secretary of State at the Ministry of Public Health and the Environment, advised and represented by J. Putzeys, of the Brussels Bar, and, on 31 March 1982 by the French Government, represented by G. Legras, Deputy Secretary General of the Secretariat General of the Inter-Ministerial Committee on Questions of European Economic Cooperation, acting as Agent.By order of 17 February 1982 the Court decided to join Cases 2/82, 3/82 and 4/82 for the purposes of the procedure and the judgment.On 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. However, it requested the Belgian Government to inform the Court at the hearing whether any further public health inspections were carried out after the entry into force of the Royal Decree of 21 June 1979 amending the Royal Decree of 12 March 1965 relating to the importation of meat.By order of 23 March 1983, the Court, in accordance with Article 95 (1) and (2) of the Rules of Procedure, assigned the case to the Second Chamber.