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	Číslo (Kód CELEX): Number (CELEX Code):		61988J0304

	Název: Title:		ECJ Judgment of 5 July 1990 Case C-304/88 Commission of the European Communities v. Kingdom of Belgium Proceeding concerning failure by Member States [1990] ECR I-2801

	Publikace: Publication:

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:		31964L0432; 31964L0433

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		Case 124/81 Commission v United Kingdom [1983] ECR 203 – the ”UHT milk” case


	Plný text: Fulltext:		Ne

Fakta:
Under Belgian law the importation of live bovine animals, swine and other animals coming from other Member States was subjected to prior authorization by the Minister of Agriculture.
The Commission, considering that regulation to be contrary to Council Directives 64/432/EEC Council Directive 64/432/EEC of 26 June 1964 on animal-health problems affecting intra-Community trade in bovine animals and swine, OJ (English Special Edition) 1963-64, p. 164 and 64/433/EEC Council Directive 64/433/EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat, OJ (English Special Edition) 1963-64, p. 185 in the case of bovine animals and swine as well as to be contrary to Article 28 (ex Art. 30) of the EEC Treaty in the case of other animals, issued a formal notice to the Belgian Government to inform it about those observations.
The Belgian authorities, however, replied that they intended to adhere to the requirement of prior authorization, which they regarded to be lawful as no restrictive effect was caused because the authorisations were issued automatically. The Belgian Government even maintained its position after the delivery of a reasoned opinion by the Commission calling for compliance with Belgium’s obligations within one month.
Subsequently, the Commission brought an action under Article 226 (ex Art. 169) of the EEC Treaty before the Court applying for a declaration that through the relevant law concerning live animals, Belgium had infringed the Treaty in failing to fulfil its obligations under Article 28 (ex Art. 30) and Council Directives 64/432/EEC as well as 64/433/EEC.
During the proceedings before the Court, however, the Commission stated that the requirement of an authorization had been discontinued with regard to fresh meat, and that it therefore withdrew that claim.

Názor soudu a komentář:
”A system of authorisations is, in principle, contrary to Article 30 of the EEC Treaty.” With that statement the Court rejects the Belgian Government’s argument that the requirement of authorization could not constitute a restrictive measure since the authorization would be issued automatically.
Next, the Court turns to the Belgian claim that the system set up would provide information to the importer that the import is not prohibited on health grounds. Quite briefly, it is pointed out that no information was required of a right which an importer knows he has under Article 28 (ex Art. 30) of the Treaty since bovine animals and swine are already accompanied by a health certificate issued by the authorities of the exporting Member State.
Addressing the final defensive argument, claiming that the requirement of an authorization would enable the national authorities to check the health of the animals after importation, the Court draws a distinction according to animals, the importation of which has already been harmonised in Council Directives pursuant to Article 94 (ex Art. 100) of the EEC Treaty (bovine animals and swine), and to other animals.
With regard to animals, which do not fall under regulations of Council Directives, the Court applies Article 30 (ex Art. 36) of the Treaty which contains grounds on which infringements upon the free movement of goods can be justified. However, instead of an authorization system, a less restrictive measure would achieve the objective of protecting health and life of humans and animals (Case 124/81). Therefore, the Court rules that the Belgian law is disproportionate and cannot be justified under Article 30 (ex Art. 36).
As far as animals covered by the relevant Council Directives are concerned, the Court points at its consistent opinion that, where Community directives provide for the harmonisation of the measures necessary to insure among other things the protection of animal and human heath, Article 30 (ex Art. 36) cannot longer justify a protective (and restrictive) measure (Case 190/87 Oberkreisdirektor des Kreises Borken and Another v Handelsonderneming Moormann BV [1988] ECR 4689). The Court, therefore, investigates whether the relevant directives provide such harmonisation in a comprehensive form in regard to health-protecting measures. Since the directives contain regulations on all possible aspects related to importation and health-protection, the Court holds, that a complete system is already in place, and that consequently no Member State of destination may adopt measures other than those laid down by that system. Such a system furthermore does not become incomplete due to the fact that further proposals for liberalising the movement of goods are being discussed which would require appropriate measures at the time that those proposals are implemented into EEC law.
Therefore, no derogation from Article 28 (ex Art. 30) is possible for the authorization required by Belgian law for the importation of live bovine animals and swine.
As a result the Court declares that requiring prior authorization for the importation of live animals coming from other Member States infringes Article 28 (ex Art. 30) of the EEC Treaty no matter if such authorization is issued automatically or otherwise.

Shrnutí (Summary of the Judgment):

Plný text judikátu (Entire text of the Judgment):