Contents
Judgment of the Court (Third Chamber)14 April 2011noteIn Joined Cases C-42/10, C-45/10 and C-57/10,REFERENCES for a preliminary ruling under Article 267 TFEU from the Raad van State (Belgium), made by decisions of 14 January 2010, received at the Court on 25 and 28 January 2010, in the proceedingsVlaamse Dierenartsenvereniging VZW (C_42/10, C_45/10 and C_57/10),Marc Janssens (C-42/10 and C-45/10)vBelgische Staat,Luk Vangheluwe (C-42/10),THE COURT (Third Chamber),composed of K. Lenaerts, President of the Chamber, D. Šváby (Rapporteur), G. Arestis, J. Malenovský and T. von Danwitz, Judges,Advocate General: Y. Bot,Registrar: M. Ferreira, Principal Administrator,having regard to the written procedure and further to the hearing on 3 February 2011,after considering the observations submitted on behalf of:— the Vlaamse Dierenartsenvereniging VZW, by R. Gielen, advocaat,— the Belgian Government, by J.-C. Halleux, acting as Agent, assisted by J.-F. De Bock, avocat,— the European Commission, by A. Marcoulli and B. Burggraaf, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following
Judgment
1These references for a preliminary ruling concern the interpretation of Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation (EC) No 998/2003 of the European Parliament and of the Council of 26 May 2003 on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC (OJ 2003 L 146, p. 1), of Commission Decision 2003/803/EC of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets (OJ 2003 L 312, p. 1) and of Article 1 of Directive 98/34/EC of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18; ‘Directive 98/34’).
2The references have been made in the course of proceedings between, firstly, the Vlaamse Dierenartsenvereniging VZW (‘the VDV’) and Mr Janssens (Cases C-42/10 and C-45/10) and the Belgische Staat, and secondly, the VDV and the Belgische Staat (Case C-57/10), seeking annulment of the Royal Decree of 21 September 2004 amending the Royal Decree of 10 February 1967 regulating the veterinary control of rabies (Moniteur belge, 24 September 2004, p. 69208; ‘the Decree of 21 September 2004’) (Case C-42/10), of the Royal Decree of 28 May 2004 on the identification and registration of dogs (Moniteur belge, 7 June 2004, p. 43185; ‘the Decree of 28 May 2004’) (Case C-45/10) and of the Royal Decree of 5 May 2004 on the model and methods of distribution of passports for the intra-Community movement of cats and ferrets (Moniteur belge, 24 May 2004, p. 40130; ‘the Decree of 5 May 2004’) (Case C-57/10).
3By order of the President of the Court of 2 March 2010, Cases C-42/10, C-45/10 and C-57/10 were joined for the purposes of the written and oral procedure and the judgment, on account of the connection between them, in accordance with Article 43 of the Rules of Procedure of the Court.
Legal context
European Union legislation
Regulation No 998/2003
4Article 3 of Regulation No 998/2003 provides:‘For the purposes of this Regulation:…(b) “passport” means any document enabling the pet animal to be clearly identified and including the points that enable its status with regard to this Regulation to be checked, which is to be drawn up in accordance with the second paragraph of Article 17;…’.
5Article 4(2) of that regulation is worded in the following terms:‘Whatever form the animal identification system takes, provision shall also be made for the indication of details identifying the name and address of the animal’s owner.’
6Article 5 of that regulation reads as follows:‘‘When being moved, pet animals of the species listed in parts A and B of Annex I must, without prejudice to the requirements laid down in Article 6:(a) be identified in accordance with Article 4, and(b) be accompanied by a passport issued by a veterinarian authorised by the competent authority certifying valid anti-rabies vaccination, or revaccination if applicable, in accordance with the recommendations of the manufacturing laboratory, carried out on the animal in question with an inactivated vaccine of at least one antigenic unit per dose (WHO standard).2. Member States may authorise the movement of animals listed in parts A and B of Annex I which are under three months old and unvaccinated, if they are accompanied by a passport and have stayed in the place in which they were born since birth without contact with wild animals likely to have been exposed to the infection or are accompanied by their mothers on whom they are still dependent.’
7The second paragraph of Article 17 of Regulation No 998/2003 states:‘The model passports which must accompany animals of the species listed in parts A and B of Annex I which are being moved shall be drawn up in accordance with the procedure laid down in Article 24(2).’
8Annex I, parts A and B, to that regulation refers to dogs, cats and ferrets.
Decision 2003/803
9Pursuant to Article 1 thereof, Decision 2003/803 establishes the model passport for the movement of dogs, cats and ferrets between Member States.
10By a reference to Article 2 of that decision, Annex I thereto requires the cover and the first to third pages of that model passport to be in the following format:
11Article 3 of Decision 2003/803 provides that the model passport must comply with the additional requirements set out in Annex II thereto.
12In that regard, Annex II, A, point 1 states:‘The format of the model passport shall be uniform.’
13Annex II, B, point 2(c) reads as follows:‘The number of the model passport, comprising the ISO code of the Member State of issue followed by a unique number, shall be printed on the cover of the model passport.’
14Annex II, C, point 4 states that the size and the shape of the boxes of the model passport set out in Annex I are indicative and not binding.
Directive 98/34
15Article 1 of Directive 98/34 provides:‘For the purposes of this Directive, the following meanings shall apply:(1) “product”, any industrially manufactured product and any agricultural product, including fish products;(2) “service”, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.…(3) “technical specification”, a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures.…(4) “other requirements”, a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing;…(11) “technical regulation”, technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article 10, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider.…’
16Article 8 of Directive 98/34 states:1.Subject to Article 10, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where these have not already been made clear in the draft.Where appropriate, and unless it has already been sent with a prior communication, Member States shall simultaneously communicate the text of the basic legislative or regulatory provisions principally and directly concerned, should knowledge of such text be necessary to assess the implications of the draft technical regulation.Member States shall communicate the draft again under the above conditions if they make changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive.…The Commission shall immediately notify the other Member States of the draft and all documents which have been forwarded to it; it may also refer this draft, for an opinion, to the Committee referred to in Article 5 and, where appropriate, to the committee responsible for the field in question.…3.Member States shall communicate the definitive text of a technical regulation to the Commission without delay.…’
National legislation
17Article 3(2) of the Decree of 5 May 2004 provides:‘All passports shall bear a unique number. That number shall consist of 13 characters, namely, the ISO code for Belgium, “BE”, followed by the identification number of the distributor consisting of two digits and a serial number consisting of nine digits.’
18The second subparagraph of Article 2(2) of the Decree of 28 May 2004 states:‘Proof of identification and registration of dogs identified and registered after the entry into force of this Decree shall be provided by the passport, the model for which is laid down in Annex II to this Decree, supplied with the definitive certificate of identification and registration referred to in Article 19. The model definitive certificate of identification and registration is laid down in Annex III to this Decree.’
19By a reference from Article 2 thereof to Annex II of that Decree, the format of the model passport of 32 pages for pet animals is established. The second and third pages thereof are in the following format:
20Article 20 of the Decree of 28 May 2004 reads as follows:‘The definitive certificate of identification and registration consists of two self-adhesive stickers which are affixed to pages 2 and 3 of the passport.’
21Article 21 of that Decree provides:‘Following receipt of the yellow copy of the temporary certificate of identification, the holder of the central register shall register the dog’s details and those of its owner in the central register and shall send the owner a definitive certificate of identification and registration and an insert entitled “Change of owner/Amendment of details/Death”, the model of which is laid down in Annex IV to this Decree. Immediately upon receipt, the owner shall affix the definitive certificate of identification and registration in the passport.’
22Article 22 of that Decree states:‘If ownership of a dog is transferred, the original owner shall complete the insert “Change of owner/Amendment of details/Death” and shall send it within eight days to the holder of the central register. The passport shall immediately be passed to the new owner. The holder of the central register shall send proof of the change to the new owner, together with an insert “Change of owner/Amendments of details/Death”. Immediately upon receipt, the new owner shall affix the new definitive certificate of identification and registration in the passport.’
23Under Article 23 of that Decree:‘In the situations set out in Article 6 or 7, the identifying person shall send, as soon as possible and in any event within eight days, the insert “Change of owner/Amendment of details/Death”, stating the new identification mark, to the holder of the central register. As proof of registration under that new identification mark, the holder shall send to the owner a new definitive certificate of identification and registration, together with an insert “Change of owner/Amendment of details/Death”.’
24Article 1 of the Decree of 21 September 2004 amends Article 14 of the Royal Decree of 10 February 1967 regulating the veterinary control of rabies (Moniteur belge, 25 February 1967, p. 1966; ‘the Decree of 10 February 1967’), the amended wording of which is as follows:Paragraph 1. The authorised veterinarian who has administered any vaccination shall issue a certificate in the format of the model annexed to the present Decree.Paragraph 2. For a dog, cat or ferret bearing a tattoo or readable microchip or which is identified at the time of vaccination, the authorised veterinarian shall issue a passport which, as appropriate, has been distributed by an authorised legal entity pursuant to the provisions of [the Decree of 5 May 2004] or by the holder of the central register for the identification of dogs, designated pursuant to Article 27 of [the Decree of 28 May 2004]. After identification or after verification of the identification, the authorised veterinarian shall state in the abovementioned passport which vaccination he has administered.If the dog, cat or ferret already has a passport as referred to in the first subparagraph, the authorised veterinarian who has administered the vaccination shall, after checking the identification data, add to that passport the necessary information concerning the vaccination administered.Paragraph 3. The owners and keepers of animals which must be vaccinated shall be required to present, as appropriate, the vaccination certificate or the passport referred to above upon request of one of the authorities referred to in Article 27.’
The actions in the main proceedings and the questions referred for a preliminary ruling
Case C-42/10
25Brought on 5 November 2004 by the VDV and Mr Janssens, the action in the main proceedings in Case C-42/10 seeks annulment of the Decree of 21 September 2004 in so far as it requires, in Article 14 of the Decree of 10 February 1967 as amended, vaccination against rabies to be entered in a pet passport meeting the conditions laid down in the Decree of 5 May 2004 or those laid down in the Decree of 28 May 2004.
26In that regard, the applicants in the main proceedings submit that the Decree of 21 September 2004 infringes the principles of free movement of persons, goods and services and the principle of free competition by creating a monopolistic position for the Belgische Vereniging voor Identificatie en Registratie van Honden (‘the BVIRH’), and also infringes Regulation No 998/2003 and Decision 2003/803.
27On that point, the applicants argue that the Decree of 21 September 2004 prevents the entry of vaccinations in a foreign pet passport or in the pet passport distributed by the VDV. They also submit that the reference to the Decrees of 5 and 28 May 2004 should not have been made, since the latter contain requirements additional to those set out in the pet passport, as defined by Regulation No 998/2003. Those Decrees link to that passport a duty to register and the notion of traceability. The passport referred to in that regulation has, however, a purely health-related purpose. Moreover, such a supplementary purpose was never part of the intentions of the European Union legislature since the identification of the animal is necessary only for the purposes of linking it with a health certificate. Furthermore, the affixing of stickers by third parties to a health document, as provided for in the Decree of 28 May 2004, is not permitted. By providing that passports issued in Belgium must bear a unique number of 13 digits, the Decree of 5 May 2004 introduces an obligation not required at European Union level.
28The defendant in the main proceedings contends that the passport referred to in Regulation No 998/2003 is, above all, an identification document and that it is perfectly logical that it should have taken measures to ensure a consistent and uniform policy making obligatory a single document which, in Belgium, acts as an identification and registration document and, for intra-Community movements, as a health and identification document. It submits, with regard to the alleged monopolistic position held by the BVIRH, that that association is not the only one recognised by the State.
29It was in those circumstances that the Raad van State (Council of State) (Belgium) decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:1. Do Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of [Regulation No 998/2003] and the articles of and annexes to [Decision 2003/803] preclude national legislation regulating passports for cats and ferrets from … referring to the model and the additional requirements laid down in [Decision 2003/803], yet … also prescribing that every passport must bear a unique number consisting of 13 characters, namely, “BE”, being the ISO code for Belgium, followed by the identification number of the distributor consisting of two digits and a serial number consisting of nine digits?2. Do Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of [Regulation No 998/2003] and the articles of and annexes to [Decision 2003/803] preclude national legislation from also using the model of the European pet passport as proof of both the identification and the registration of dogs and, in that connection, making provision for third parties to insert changes with regard to the identification of the owner and the animal in Parts I to III of a European pet passport attested by an authorised veterinarian by means of identification stickers which are superimposed on the previous identification details?’
Case C-45/10
30Brought on 30 July 2004 by the VDV and Mr Janssens, the action in the main proceedings in Case C-45/10 seeks annulment of the Decree of 28 May 2004.
31To that end, the applicants in the main proceedings argue, firstly, that that Decree creates a monopolistic situation in favour of the BVIRH as regards the distribution of passports for dogs, which has the consequence of preventing veterinarians from having their pet passports printed in a Member State other than the Kingdom of Belgium. That Decree is also a source of fraud and gives rise to discrimination by linking the identification of dogs contained in the passports at issue in the main proceedings to an obligation to register and a notion of traceability, when that obligation does not exist in respect of cats or ferrets, and despite the fact that the European Union legislation treats those animal species identically. In addition, the direct effect of that legislation requires the VDV to take all necessary steps to ensure that its members are able to comply with that legislation and also, as a consequence, renders the Decree of 28 May 2004 inapplicable. Next, those applicants submit that the use of self-adhesive stickers runs counter to the objective pursued by Decision 2003/803, which is to enable ease of monitoring by the competent authorities. Finally, they argue that the principle of subsidiarity cannot be relied on by the Member State concerned.
32Furthermore, the applicants in the main proceedings submit that the provisions of the Decree of 28 May 2004, which use the model of the pet passport laid down in Decision 2003/803 as proof of the identification and registration of dogs, which provide for the affixing of self-adhesive stickers in the passport for the purposes of identifying the owner and the animal and which depart from that model passport as regards the space provided for information concerning a new owner, constitute technical regulations within the meaning of Directive 98/34 which, under Article 8 of thereof, should have been communicated to the European Commission prior to their adoption. In that regard, those applicants submit that dogs, together with their passport, must be regarded as goods.
33In a judgment of 9 January 2006 (No 153 336), dismissing the application for the suspension of the enforcement of the contested Decree, the national court held that the mere fact that a particular matter is regulated by directly binding provisions at the European Union level does not prevent the competent national authority, with a view to promoting the general domestic interest, from enacting a supplementary legislative measure of its own in respect of aspects not contained in the European Union legislative measure or when that measure does not preclude a supplementary domestic legislative measure. The defendant in the main proceedings could, therefore, in the view of that court, enact a domestic legislative measure provided that the latter did not prevent the European Union legislation from being wholly effective. Since neither Regulation No 998/2003 nor Decision 2003/803 contained any provision relating to the production and distribution to veterinarians of passports for dogs, the Decree of 28 May 2004 does not depart from the framework created by that decision. Similarly, as regards the affixing of self-adhesive stickers in the passports, that court observed that neither Regulation No 998/2003 nor Decision 2003/803 prohibits the recording of individualised data in the passport by means of self-adhesive stickers provided that in so doing there is no deviation from the model passport laid down in Decision 2003/803.
34Since the applicants in the main proceedings maintained their arguments as to the incompatibility of the Decree of 28 May 2004 with the European Union legislation, the Raad van State decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:1. Do Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of [Regulation No 998/2003] and the articles of and annexes to [Decision 2003/803] preclude a national legislative measure which also uses the model of the European pet passport as proof of the identification and registration of dogs and in so doing makes provision for third parties to make changes regarding the identification of the owner and the animal in Parts I to III of a European pet passport attested by an authorised veterinarian by means of identification stickers which are superimposed on the previous identification details?2. Are national provisions which also use the model of the European pet passport, as contained in [Decision 2003/803], as proof of the identification and registration of dogs and in so doing make provision for third parties to make changes regarding the identification of the owner and the animal in Parts I to III of such a passport by means of identification stickers, technical regulations within the meaning of Article 1 of [Directive 98/34], which under Article 8 of that directive must be communicated to the European Commission before they are enacted?’
Case C-57/10
35Brought on 7 June 2004 by the VDV, the action in the main proceedings in Case C-57/10 seeks annulment of the Decree of 5 May 2004.
36In that regard, the applicant in the main proceedings submits that that Decree infringes Articles 3(g) EC, 30 EC, 81 EC and 82 EC, the principles of free movement of goods, services, persons and capital, Regulation No 998/2003, Decision 2003/803 and Directive 98/34.
37By setting a more detailed method for determining the unique number of the pet passport than that provided for by the European Union legislation, the Decree of 5 May 2004, firstly, fails to have regard to the direct effect of European Union regulations and decisions laid down in Article 249 EC and, secondly, constitutes a technical standard which, in disregard of Directive 98/34, has not been communicated to the Commission.
38The defendant in the main proceedings submits that, in accordance with Regulation No 998/2003, the national authorities have some discretion as regards determination of that unique number which authorises them to adopt supplementary decisions with a view to establishing an appropriate procedure for identification. It also takes the view that the Decree of 5 May 2004 does not fall within the scope of Directive 98/34.
39In a judgment of 9 January 2006 (No 136 163), dismissing the application for suspension of the enforcement of that Decree, the national court held that the mere fact that a particular matter is regulated by directly binding provisions at the European Union level does not prevent the competent national authority, with a view to promoting the general domestic interest, from enacting supplementary legislative measures of its own in respect of aspects which are not contained in the European Union legislative measure or when that measure does not preclude a supplementary domestic legislative measure. The defendant in the main proceedings was able therefore, in the view of that court, to enact a domestic legislative measure provided that the latter did not prevent the European Union legislation from being wholly effective. Since neither Regulation No 998/2003 nor Decision 2003/803 contained any provision relating to the production and distribution to veterinarians of passports for cats and ferrets, the Decree of 28 May 2004 does not depart from the framework created by that decision.
40Since the applicant in the main proceedings maintained its arguments as to the incompatibility of the Decree of 5 May 2004 with the European Union legislation, the Raad van State decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:1. Do Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of [Regulation No 998/2003] and the articles of and annexes to [Decision 2003/803] preclude national legislation regulating passports for cats and ferrets from referring to the model and the additional requirements laid down in [Decision 2003/803], yet also prescribing that every passport must bear a unique number consisting of 13 characters, namely, “BE”, being the ISO code for Belgium, followed by the identification number of the distributor consisting of two digits and a serial number consisting of nine digits?2. Is national legislation which in regard to the passport for cats and ferrets refers to the model and the additional requirements laid down in [Decision 2003/803], yet in addition prescribes that every passport must bear a unique number consisting of 13 characters, namely, “BE”, the ISO code for Belgium, followed by the identification number of the distributor consisting of two digits and a serial number consisting of nine digits, a technical regulation within the meaning of Article 1 of [Directive 98/34] which, under Article 8 of that Directive, must be communicated to the … Commission before its enactment?’
Consideration of the questions referred
Preliminary observations
41In its observations, the VDV, the applicant in the three sets of main proceedings, sets out two additional questions on which, because of their importance, it also wishes the Court to rule.
42In that regard, it must be borne in mind that, in the context of the cooperation between the Court and the national courts provided for by Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, to that effect, Case C-138/08 Hochtief and Linde-Kca-Dresden [2009] ECR I-9889, paragraph 20 and the case-law cited).
43The right to determine the questions to be put to the Court thus devolves upon the national court alone and the parties may not change their tenor (Hochtief and Linde-Kca-Dresden, paragraph 21 and the case-law cited).
44In addition, to alter the substance of the questions referred for a preliminary ruling, or to answer the additional questions mentioned by the applicants in the main proceedings in their observations, would be incompatible with the Court’s function under Article 267 TFEU and with its duty to ensure that the governments of the Member States and the parties concerned are given the opportunity to submit observations under Article 23 of the Statute of the Court of Justice, bearing in mind that under that provision only the order of the national court is notified to the interested parties (see, to that effect, Hochtief and Linde-Kca-Dresden, paragraph 22 and the case-law cited).
45It follows that the Court cannot undertake an analysis of the additional questions raised by the VDV.
The first questions in Cases C-42/10 and C-57/10
46In its first questions in Cases C-42/10 and C-57/10, the national court asks, in essence, whether Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation No 998/2003 and the articles of and annexes to Decision 2003/803 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which lays down a numbering system for pet passports comprising a unique number consisting of the two-letter ISO code for the Kingdom of Belgium (BE) followed by the identification number of the authorised distributor consisting of two digits and a serial number consisting of nine digits.
47In that regard, it must be borne in mind that, by virtue of the very nature of regulations and of their function in the system of sources of European Union law, the provisions of regulations generally have immediate effect in the national legal systems without it being necessary for the national authorities to adopt measures of application or without it being necessary for the European Union legislature to adopt supplementary legislation (Case C-367/09 SGS Belgium and Others [2010] ECR I-10761, paragraph 32 and the case-law cited).
48Some of the provisions of a regulation, even if supplemented by an implementing decision, may, however, necessitate, for their implementation, the adoption of national measures of application (see, by analogy, Case C-403/98 Monte Arcosu [2001] ECR I-103, paragraph 26).
49That is manifestly the case of Article 5(1)(b) of Regulation No 998/2003, read in conjunction with Annex II, B, point 2(c) to Decision 2003/803.
50Apart from the obligation to state the ISO code of the Member State of issue at the head of the series of digits comprising the unique number to be entered on the pet passport, those provisions of Regulation No 998/2003 and of Decision 2003/803 do not lay down any specific method for determining that number. They therefore place on the Member States the obligation of defining the method for determining that number.
51It must be held that the national legislation at issue in the main proceedings meets the requirements concerning the numbering of the passports laid down in Article 5(1)(b) of Regulation No 998/2003, read in conjunction with Annex II, B, point 2(c) to Decision 2003/803. That national legislation provides, firstly, that each passport is to have a unique number and, secondly, that the first two characters of that number are to consist of the two-letter ISO code for the Kingdom of Belgium (BE). The national legislation at issue, by implementing the provisions of European Union law referred to above and by specifying, in addition, the numbering system for the other characters comprising the passport number, ensures that those provisions have their full effect.
52It follows from the foregoing that the answer to the first questions in Cases C-42/10 and C-57/10 is that Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation No 998/2003 and the articles of and annexes to Decision 2003/803 must be interpreted as meaning that they do not preclude national legislation which lays down a numbering system for pet passports comprising a unique number consisting of the two-letter ISO code for the Member State concerned followed by the identification number of the authorised distributor consisting of two digits and a serial number consisting of nine digits.
The second question in Case C-42/10 and the first question in Case C-45/10
53By its second question in Case C-42/10 and its first question in Case C-45/10, the national court asks, in essence, whether Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation No 998/2003 and the articles of and annexes to Decision 2003/803 preclude legislation, such as that at issue in the main proceedings, under which, firstly, a pet passport is used not only as a travel document pursuant to the European Union legislation but also as proof of identification and registration of dogs at a national level and, secondly, the format of the identifying details of the owner and the animal entered therein differ from that provided for in Decision 2003/803 and the amendment thereof is carried out by affixing the new details over the old using self-adhesive stickers.
54Firstly, with regard to the use of a pet passport as proof of identification and registration of dogs at the national level, it is appropriate to point out that what is at issue is the use of that passport for parallel purposes different from those underlying the European Union legislation, that is to say, the harmonisation of animal health requirements applicable to the non-commercial intra-Community movement of pet animals.
55In that regard, it must be noted that neither the letter nor the spirit of Regulation No 998/2003 and Decision 2003/803 permits the conclusion that a pet passport has the unique and exclusive function of meeting the objectives pursued by the European Union legislation or that, therefore, use of that passport, at national level, for other purposes is prohibited. On the contrary, it is apparent from recitals (3) and (4) in the preamble to Decision 2003/803 and from the model passport annexed to that decision that it includes pages enabling the inscription of data unconnected to the European Union legislation. Thus, it provides for certifications of vaccinations not required under Regulation No 998/2003 and sections entitled ‘clinical examination’ and ‘legalisation’ so that the pet passports can also be used for the movement of animals outside the European Union.
56Accordingly, use of that passport for purposes other than those referred to in the European Union legislation cannot, in principle, be prohibited.
57Nevertheless, it is important that that use does not adversely affect either the effective application of Regulation No 998/2003 or Decision 2003/803 or the objectives which they pursue. It is neither shown nor even alleged by the parties to the main proceedings or by the interested parties referred to in Article 23 of the Statute of the Court who have submitted observations that use of the passport for purposes of identification and registration of dogs at a national level would have such an effect.
58Secondly, as regards entry of the identifying details of the owner and the animal, which are amended by affixing the new details over the old using self-adhesive stickers, it must be held that legislation such as that at issue in the main proceedings has the effect of establishing a pet passport which differs in its format from that of the model passport provided for in Decision 2003/803.
59Thus, while Annex I to Decision 2003/803 provides that the first page of the model passport is to comprise three fields for entry of the identity and address of three successive owners of the animal, the legislation at issue in the main proceedings provides that the first page of the pet passport is to have only one field, over which self-adhesive stickers must be successively affixed when the address or identity of the animal’s owner changes.
60In that regard, it must be borne in mind that, pursuant to the fourth paragraph of Article 288 TFEU, a Commission decision addressed to the Member States is to be binding in its entirety.
61In addition, it follows from the very object of Decision 2003/803, from the model passport set out in Annex I thereto and from Annex II, A, point 1, to that decision, which states that ‘[t]he format of the model passport shall be uniform’, that the purpose of that decision is to establish a uniform document, no matter which Member State issues it, and the format and content of which the Member States are required to follow, subject to minor adaptations exhaustively listed in Annex II, C, point 4, to that decision.
62By laying down the format of the first page of the pet passport on which there is only one field available for entry of the identity and address of the first owner of the animal and to which any later amendments are made by affixing self-adhesive stickers, legislation such as that at issue in the main proceedings fails to have regard to the requirement for a uniform format provided for in the form of the model passport, which requires in particular that the first page of the pet passport have fields and a format enabling the identity and address of three successive owners of the animal to be entered.
63Furthermore, as the Commission submitted at the hearing, placing self-adhesive stickers one on top of the other prevents identification of the successive owners of the animal when such identification is decisive in the field of animal health and Regulation No 988/2003 and Decision 2003/803 specifically lay down requirements in that regard.
64Similarly, the use of self-adhesive stickers such as those provided for in the legislation at issue in the main proceedings, which gives rise to a change to the format laid down in the model passport, also has the effect of hindering the transfer of pets outside the Member State of origin by requiring, in such situations, the issue of a new passport in the Member State of destination.
65Having regard to the foregoing considerations, the answer to the second question in Case C-42/10 and the first question in Case C-45/10 is that Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation No 998/2003 and the articles of and annexes to Decision 2003/803 must be interpreted as:— not precluding legislation, such as that at issue in the main proceedings, under which a pet passport is used not only as a travel document pursuant to European Union legislation but also as proof of identification and registration of dogs at a national level,— precluding legislation, such as that at issue in the main proceedings, under which only one field is available in the pet passport for entry of the identity and address of the owner of the animal and to which any later amendments are made by affixing self-adhesive stickers.
The second questions in Cases C-45/10 and C-57/10
66By its second questions in Cases C-45/10 and C-57/10, the national court asks, in essence, whether national provisions, such as those in the Belgian legislation concerning the pet passport and relating to the use thereof as proof of identification and registration of dogs, and to the use of self-adhesive stickers to amend the identity details of the owner and the animal, on the one hand, and to those relating to the determination of a unique number for cats and ferrets, on the other, must be regarded as technical standards within the meaning of Directive 98/34.
67In that regard, it must be borne in mind, as is apparent from the legal basis of Directive 98/34, namely, Article 100a of the EC Treaty (now, after amendment, Article 95 EC), and from recitals (2) and (4) in the preamble to that directive, that the European Union legislation laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services contributes to the proper functioning of the internal market by ensuring, in particular, the free movement of goods.
68In addition, the Court has had occasion to point out that only products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions fall within the scope of the free movement of goods (see, to that effect, inter alia, Case 7/68 Commission v Italy [1968] ECR 617, 626, and Case C-65/05 Commission v Greece [2006] ECR I-10341, paragraphs 23 to 25).
69It is not in dispute that pet passports, since they bear a unique number and identify a specific animal, cannot, as such, be the object of commercial transactions.
70Those passports cannot therefore be classified as ‘products’ within the meaning of the case-law of the Court; nor can Directive 98/34 apply to them. Consequently, specifications such as those contained in the Belgian legislation at issue in the main proceedings cannot be classified as technical specifications which, in accordance with Article 8 of that directive, must be communicated in advance to the Commission and, failing that, must not be applied by the national court (see, to that effect, Case C-20/05 Schwibbert [2007] ECR I-9447, paragraphs 33 and 44 and the case-law cited).
71It follows from the foregoing considerations that the answer to the second questions in Cases C-45/10 and C-57/10 is that national provisions, such as those in the legislation at issue in the main proceedings, concerning the pet passport and relating to its use as proof of identification and registration of dogs, and to the use of self-adhesive stickers to amend the identity details of the owner and the animal, on the one hand, and to those relating to the determination of a unique number for cats and ferrets, on the other, do not constitute technical standards within the meaning of Article 1 of Directive 98/34 which, in accordance with Article 8 thereof, must be communicated in advance to the Commission.
Costs
72Since 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. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Third Chamber) hereby rules:
1.Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation No 998/2003 of the European Parliament and of the Council of 26 May 2003 on the animal health requirements applicable to the non-commercial movement of pet animals and amending Council Directive 92/65/EEC and the articles of and annexes to Commission Decision 2003/803/EC of 26 November 2003 establishing a model passport for the intra-Community movements of dogs, cats and ferrets must be interpreted as meaning that they do not preclude national legislation which lays down a numbering system for pet passports comprising a unique number consisting of the two-letter ISO code for the Member State concerned followed by the identification number of the authorised distributor consisting of two digits and a serial number consisting of nine digits, provided that that legislation guarantees the uniqueness of that identification number.
2.Articles 3(b), 4(2), 5 and the second paragraph of Article 17 of Regulation No 998/2003 and the articles of and annexes to Decision 2003/803 must be interpreted as:— not precluding legislation, such as that at issue in the main proceedings, under which a pet passport is used not only as a travel document pursuant to European Union legislation but also as proof of identification and registration of dogs at a national level,— precluding legislation, such as that at issue in the main proceedings, under which only one field is available in the pet passport for entry of the identity and address of the owner of the animal and to which any later amendments are made by affixing self-adhesive stickers.
3.National provisions, such as those in the legislation at issue in the main proceedings, concerning the pet passport and relating to its use as proof of identification and registration of dogs, and to the use of self-adhesive stickers to amend the identity details of the owner and the animal, on the one hand, and to those relating to the determination of a unique number for cats and ferrets, on the other, do not constitute technical standards within the meaning
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