JUDGMENT OF THE COURT (Fifth Chamber)

11 May 1999 (1)

(Articles 30, 34 and 36 of the EC Treaty (now, after amendment, Articles 28, 29and 30 EC) — Free movement of goods — Prohibition of quantitative restrictionsand measures having equivalent effect — Derogations — Protection of health andlife of animals — International transport of live animals for slaughter)

In Case C-350/97,

REFERENCE to the Court under Article 234 EC (ex Article 177) by theVerwaltungsgerichtshof, Austria, for a preliminary ruling in the proceedings pendingbefore that court between

Wilfried Monsees

and

Unabhängiger Verwaltungssenat für Kärnten,

Joined party:

Bundesminister für Wissenschaft und Verkehr ,

on the interpretation of Articles 30, 34 and 36 of the EC Treaty (now, afteramendment, Articles 28, 29 and 30 EC) and other provisions of Community lawrelating to the transport of live animals for slaughter,

THE COURT (Fifth Chamber),

composed of: J.-P. Puissochet, President of the Chamber, J.C. Moitinho deAlmeida, C. Gulmann, D.A.O. Edward and L. Sevón (Rapporteur), Judges,

Advocate General: P. Léger,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

—    Mr Monsees, by Arnold Köchl, Rechtsanwalt, Villach,

—    the Austrian Government, by Wolf Okresek, Sektionschef in the FederalChancellor's Office, acting as Agent, and

—    the Commission of the European Communities, by Claudia Schmidt, of itsLegal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Mr Monsees, represented by Arnold Köchl;the Austrian Government, represented by Christine Pesendorfer, Oberrätin in theFederal Chancellor's Office, acting as Agent; and the Commission, represented byKlaus-Dieter Borchardt, of its Legal Service, acting as Agent, at the hearing on26 November 1998,

after hearing the Opinion of the Advocate General at the sitting on17 December 1998,

gives the following

Judgment

1.

    By order of 24 September 1997, received at the Court on 13 October 1997, theVerwaltungsgerichtshof (Administrative Court) referred to the Court for apreliminary ruling under Article 234 EC (ex Article 177) a question on theinterpretation of Articles 30, 34 and 36 of the EC Treaty (now, after amendment,Articles 28, 29 and 30 EC) and other provisions of Community law relating to thetransport of live animals for slaughter.

2.

    That question has been raised in proceedings between Mr Monsees and theUnabhängiger Verwaltungssenat für Kärnten (Independent Administrative Board

for Carinthia) concerning the application of legislation governing maximum journeytimes and distances for the transport of live animals for slaughter.

3.

    Under Article 1(1)(a) and the first indent of Article 1(2)(b) of Council Directive91/628/EEC of 19 November 1991 on the protection of animals during transportand amending Directives 90/425/EEC and 91/496/EEC (OJ 1991 L 340, p. 17),Directive 91/628 applies to the transport of domestic animals of the bovine specieson a journey of more than 50 kilometres counted from the start of their transportto the place of destination.

4.

    So far as concerns the detailed rules for the transport of bovine animals, and thejourney time in particular, point 2(d) of Chapter I of the Annex to Directive 91/628provides that, during transport, they are to receive water and appropriate food atsuitable intervals. Those intervals are not to exceed 24 hours unless an extensionof that period by not more than two hours is required in specific cases in theanimals' interest.

5.

    Under the first indent of Article 13(1) of that directive, the Commission was tosubmit, before 1 July 1992, any proposals it had on the fixing of maximum journeytimes for certain types of animal. Article 13(4) provided that, pendingimplementation of that provision, the relevant national rules were to continue toapply, subject to the general rules laid down by the Treaty.

6.

    According to the third recital in the preamble to Council Directive 95/29/EC of29 June 1995 amending Directive 91/628 (OJ 1995 L 148, p. 52), 'some MemberStates have rules on journey times, feeding and watering intervals, resting periodsand space allowances; ... these rules are, in some cases, extremely detailed and areused by some Member States to restrict intra-Community trade in live animals ...‘.

7.

    The fourth recital in the preamble to that directive states that 'in order toeliminate technical barriers to trade in live animals and to allow the marketorganisations in question to operate smoothly, while ensuring a satisfactory level ofprotection for the animals concerned, it is necessary in the context of the internalmarket to modify the rules of Directive 91/628/EEC with a view to harmonisingtravelling times and resting periods, feeding and watering intervals, and spaceallowances, for certain types of animal‘.

8.

    Directive 95/29 inserted a new subparagraph (aa) in Article 3(1) of Directive91/628. Under the second indent of that subparagraph, the Member States are toensure that 'travelling times and rest periods and feeding and watering intervalsfor certain types of animals comply with those laid down in Chapter VII of theAnnex‘ to Directive 91/628.

9.

    That annex, as supplemented by Directive 95/29, lays down in particular, in points 1and 2 of Chapter VII, that the maximum permissible journey time by road foranimals of the bovine species is to be eight hours.

10.

    However, point 3 allows that period to be extended where the transporting vehiclemeets certain additional requirements. In those circumstances, point 4(d) providesthat the bovine animals 'must, after 14 hours of travel, be given a rest period ofat least one hour sufficient for them in particular to be given liquid and if necessaryfed. After this rest period, they may be transported for a further 14 hours.‘

11.

    Under point 8, those journey times may 'in the interests of the animals ... beextended by two hours, taking account in particular of proximity to the place ofdestination‘.

12.

    Point 9, finally, allows the Member States to 'provide for a maximumnon-extendable journey time of eight hours for the transport of animals destinedfor slaughter, where the transport is carried out exclusively from a place ofdeparture to a place of destination both situated on their own territory‘.

13.

    In accordance with the first subparagraph of Article 2(1) of Directive 95/29, theMember States were to bring into force the provisions necessary to comply withthat directive by 31 December 1996. However, for the transposition of certainprovisions they had an extension which expired on 31 December 1997.

14.

    As regards Austrian legislation, Paragraph 5(1) and (2) of the Tiertransportgesetz-Straße (Law on the Transport of Animals by Road, Bundesgesetzblatt No 411/1994;'the TGSt‘) contains the following provisions governing the transport of animals:

'Animals shall be transported by road along the shortest route which is normallyused by traffic, is justifiable with regard to considerations of veterinary medicineand is permissible under the provisions of law regarding motor vehicles and trafficregulation ...

Animals may be transported for slaughter only as far as the nearest suitableabattoir in Austria; if the provisions of law regarding motor vehicles and trafficregulation are observed and a total journey time of six hours and a distance of 130kilometres are not exceeded, animals may be transported for slaughter in any event. In calculating the distance, account shall be taken of only half of the kilometresactually travelled on a motorway.‘

15.

    Under Paragraph 16(3)(4) of the TGSt, any person who transports animals orcauses animals to be transported contrary to Paragraph 5(1) or (2) of that Lawcommits an administrative offence and is liable to a fine ranging from ATS 10 000to ATS 50 000.

16.

    Mr Monsees, a haulage contractor, was charged with an offence under thatlegislation. It is apparent from the order for reference that he took the wheel at11.00 a.m. on 23 August 1995 at Breitenwisch, Germany, after loading 31 heads ofcattle bound for Istanbul, Turkey, and continued on his way until 10.15 a.m. thenext day when he was checked by the customs authorities at the border post atArnoldstein, on the Austro-Italian border. The total journey time was then 23hours and 15 minutes and the total distance travelled more than 300 kilometres.

17.

    Since Mr Monsees had not transported the animals to the nearest suitable abattoirin Austria, but had continued the journey, without authorisation, beyond themaximum time and distance laid down by Paragraph 5(2) of the TGSt, he wasordered, by an administrative decision of a penal nature ('Straferkenntnis‘) of9 January 1996, to pay a fine, subject to imprisonment in the event of non-payment. His appeal to the Unabhängiger Verwaltungssenat für Kärnten challenging thatdecision was dismissed on 26 June 1996.

18.

    Mr Monsees brought proceedings before the Verwaltungsgerichtshof, contendingthat the international nature of the transport precluded application of the nationallegislation, whose effect was to prevent any cattle being transported eastwards outof Germany unless it was accepted that their journey would necessarily end at thenearest suitable abattoir in Austria.

19.

    Since the Verwaltungsgerichtshof took the view that the outcome of the case beforeit turned on the interpretation of Community law, it decided to stay proceedingsand to refer the following question to the Court of Justice:

'Are Articles 30 to 36 of the EC Treaty (provisions on the freedom of movementof goods) and the other provisions of applicable Community law to be interpretedas preventing a Member State from restricting the transport of animals forslaughter so that animals may be transported for slaughter only as far as thenearest suitable abattoir in that State, and may be transported for slaughter in anyevent only if, upon observance of the motor vehicle and traffic regulations, a totaljourney time of six hours and a distance of 130 kilometres are not exceeded,account being taken of only half of the kilometres actually travelled on amotorway?‘

20.

    Mr Monsees maintains that Paragraph 5(2) of the TGSt constitutes a measurehaving an effect equivalent to a quantitative restriction within the meaning ofArticle 30 of the Treaty. He submits that, because of the adoption ofDirectives 91/628 and 95/29, the Austrian legislation cannot be justified underArticle 36 of the Treaty. Even if it were accepted that it is justified on the groundof the protection of the health of animals, it does not satisfy the criterion ofproportionality under Article 36, since less restrictive alternative measures areavailable. He adds that the TGSt, as is apparent from its drafting history, also hadthe objective of reducing road traffic and thus of increasing the safety of road users.

Finally, that legislation amounts to an arbitrary means of discrimination, since itfavours the export of animals for slaughter from Austria — such animals beingallowed to leave the country, subject to the restrictions laid down by the TGSt —whereas it prevents the transit of animals coming from and bound for otherMember States or non-member countries.

21.

    According to the Austrian Government, even if Paragraph 5(2) of the TGStconstitutes a measure having an effect equivalent to a quantitative restriction withinthe meaning of Article 30 of the Treaty, it is justified under Article 36 as it servesto protect the health of animals. Since Directive 95/29 was not yet applicable whenthe facts in the main proceedings arose, the Austrian legislation should beexamined solely by reference to Article 36. The Austrian Government maintainsthat Paragraph 5(2) of the TGSt is necessary in order to avoid the mistreatment ofanimals when transported by road. It satisfies the criterion of proportionality sincethe distances laid down correspond to assessments of average distances, and thepenalties are proportionate since animals are never seized from the haulier. Finally, the provision at issue in the main proceedings is not discriminatory sinceno distinction is drawn between animals for slaughter according to whether theycome from Austria or from another Member State.

22.

    The Commission states that Paragraph 5(2) of the TGSt constitutes a measurehaving an effect equivalent to a quantitative restriction within the meaning ofArticle 30 of the Treaty, which cannot be justified by the objective of protecting thehealth of animals under Article 36. Paragraph 5(2) is not proportionate to theobjective pursued since it effectively precludes the international transport ofanimals for slaughter even if their health is cared for. Furthermore, referenceshould be made to Directive 95/29 to determine whether a measure may beregarded as proportionate to the objective pursued.

23.

    The Court finds that, in so far as it lays down short maximum journey times anddistances for the transport of animals for slaughter and also provides that all suchtransport in Austria must end at the nearest suitable abattoir in order for theanimals to be killed, Paragraph 5(2) of the TGSt constitutes an obstacle tointernational transport as regards both journeys to or from Austria and transitthrough that country. That provision therefore constitutes a measure having aneffect equivalent to a quantitative restriction, on both imports and exports,prohibited by Articles 30 and 34 of the Treaty.

24.

    Before considering whether there is a justification based on the protection ofanimals under Article 36 of the Treaty, it is first necessary to establish whetherharmonising directives applied in this area. While Article 36 allows themaintenance of restrictions on the free movement of goods, justified on grounds ofthe protection of the health and life of animals, which constitutes a fundamentalrequirement recognised by Community law, recourse to Article 36 is no longerpossible where Community directives provide for harmonisation of the measuresnecessary to achieve the specific objective which would be furthered by reliance

upon this provision (Case C-5/94 The Queen v MAFF ex parte Hedley Lomas [1996]ECR I-2553, paragraph 18).

25.

    Directive 91/628 does not lay down any limit on journey time or distance for thetransport of live animals by road. Article 13(1) merely required the Commissionto draw up a report before 1 July 1992 dealing, inter alia, with that matter and gaveit the opportunity to put forward proposals.

26.

    Directive 95/29, on the other hand, contains a number of specific provisionsregarding maximum journey times, conditions of transport, animals' feeding andwatering intervals, minimum rest periods and loading densities.

27.

    However, while that directive was adopted before the facts of the main proceedingsarose, the time-limit for its transposition had still not expired as the Member Stateshad, in principle, until 31 December 1996 to comply with it. Until that date,therefore, a Member State was entitled to rely on Article 36 of the Treaty in orderto retain restrictions on the free movement of goods justified on grounds of theprotection of health and life of animals.

28.

    It must accordingly be determined whether the national legislation was suitable forachieving the objective of protecting the health of animals and whether it wentbeyond what was necessary to achieve it (see, to that effect, Case C-84/94 UnitedKingdom v Council [1996] ECR I-5755, paragraph 57).

29.

    The effect of Paragraph 5(2) of the TGSt is, in fact, to make all internationaltransit by road of animals for slaughter almost impossible in Austria.

30.

    Furthermore, measures appropriate to the objective of protecting the health ofanimals and less restrictive of the free movement of goods were conceivable, as theprovisions contained in Directive 95/29 demonstrate.

31.

    In view of the considerations set out above, the answer to the question submittedto the Court must be that, on a correct interpretation of Articles 30, 34 and 36 ofthe Treaty, a Member State is prevented from restricting the transport by road ofanimals for slaughter by requiring such transport to be carried out only as far asthe nearest suitable abattoir within national territory and under conditions suchthat, upon observance of the motor vehicle and traffic regulations, a total journeytime of six hours and a distance of 130 kilometres are not exceeded, account beingtaken of only half of the kilometres actually travelled on a motorway.

Costs

32.

    The costs incurred by the Austrian Government and the Commission, which havesubmitted observations to the Court, are not recoverable. Since these proceedings

are, for the parties to the main proceedings, a step in the action pending before thenational court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Fifth Chamber),

in answer to the question referred to it by the Verwaltungsgerichtshof by order of24 September 1997, hereby rules:

On a correct interpretation of Articles 30, 34 and 36 of the EC Treaty (now, afteramendment, Articles 28, 29 and 30 EC), a Member State is prevented fromrestricting the transport by road of animals for slaughter by requiring suchtransport to be carried out only as far as the nearest suitable abattoir withinnational territory and under conditions such that, upon observance of the motorvehicle and traffic regulations, a total journey time of six hours and a distance of130 kilometres are not exceeded, account being taken of only half of the kilometresactually travelled on a motorway.

PuissochetMoitinho de Almeida Gulmann             Edward                        Sevón

Delivered in open court in Luxembourg on 11 May 1999.

R. Grass

J.-P. Puissochet

Registrar

President of the Fifth Chamber

1: Language of the case: German.