OPINION OF ADVOCATE GENERAL
FENNELLY
delivered on 16 June 1998 (1)
Case C-67/97
Anklagemyndigheden
v
Ditlev Bluhme
- 1.
- This case concerns restrictions on the keeping of bees other than brown
bees on the small and remote Danish island of Læsø, situated 22 km from the
mainland. It raises, in particular, the questions whether such restrictions come
within the scope of application of Article 30 of the Treaty regarding measures
equivalent to a quantitative restriction on imports, and, if so, whether they are
justified.
- 2.
- The Danish Minister for Agriculture and Fisheries, pursuant to his power
under the relevant Danish legislation (2) to adopt measures designed to ensure the
proper keeping of bees, issued Decision No 528 of 24 June 1993 on the keeping of
bees on the island of Læsø (Bekendtgørelse om biavl på Læsø, hereinafter 'the
Decision). The Decision prohibits the keeping of nectar-gathering bees on the
island other than those of 'the subspecies Apis mellifera mellifera (brown bee of
Læsø). (3) Existing swarms were to be destroyed or removed from the island by
15 August 1993, unless the queen was replaced by an inseminated queen of the
specified brown bee subspecies. (4) All losses resulting from the destruction of a
swarm pursuant to the Decision benefit from full compensation by the Danish
State. (5) It is also forbidden to introduce onto the island any living domestic bees,
any reproductive material for domestic bees or any used apicultural equipment
which has not been cleaned. (6) Failure to comply with the Decision is subject to a
fine. (7)
- 3.
- Mr Ditlev Bluhme (hereinafter 'the defendant) was accused before the
Kriminalretten i Frederikshavn (hereinafter 'the national court) of continuing to
keep a swarm of bees on the island of a subspecies other than Apis mellifera
mellifera (brown bee of Læsø) after the entry into force of the Decision, without
having substituted an inseminated queen of that subspecies. The defendant argued
that the Decision constituted a measure having an effect equivalent to a
quantitative restriction on imports, contrary to Article 30 of the Treaty establishing
the European Community (hereinafter 'the Treaty). He contended, furthermore,
that the brown bee in question was not a pure-bred subspecies which was unique
to the island and threatened with extinction, but was, in fact, to be found
throughout the world, so that Article 36 of the Treaty could not be relied upon to
justify the restriction. The public prosecutor argued that Article 30 was not
applicable because the effects of the Decision were entirely internal to Denmark
and were not restrictive of imports.
- 4.
- The national court also examined the possible relevance of Council Directive
91/174/EEC of 25 March 1991 laying down zootechnical and pedigree requirements
for the marketing of pure-bred animals and amending Directives 77/504/EEC and
90/425/EEC. (8) Article 1 of Directive 91/174 defines as a 'pure-bred animal 'any
animal for breeding covered by Annex II to the Treaty the trade in which has not
yet been the subject of more specific Community zootechnical legislation and which
is entered or registered in a register or pedigree record kept by a recognised
breeders' organisation or association. Under Article 2 of the Directive, Member
States are required to ensure that 'the marketing of pure-bred animals and of the
semen, ova and embryos thereof is not prohibited, restricted or impeded on
zootechnical or pedigree grounds and that criteria governing such matters as
approval of breeders' organisations, registration in pedigree registers, and approval
for reproduction for pure-bred animals and for the use of their semen, ova and
embryos are established in a non-discriminatory manner. However, '[p]ending the
implementation of detailed rules for application as provided for in Article 6 [of the
Directive], national laws shall remain applicable with due regard for the general
provisions of the Treaty.
- 5.
- The national court decided to refer the following questions to the Court for
a preliminary ruling pursuant to Article 177 of the Treaty:
'I. Concerning the interpretation of Article 30 of the EC Treaty:
(1) Can Article 30 be interpreted as meaning that a Member State may, under
certain circumstances, introduce rules prohibiting the keeping and
consequently the importation of all bees other than bees belonging to the
species Apis mellifera mellifera (brown Læsø bee) with regard to a specific
island in the country in question, for example, an island of 114 km2, one half
of which consists of country villages and small ports, and is used for
purposes of tourism or agriculture, while the other half consists of
uncultivated land, that is to say, plantations, moorland, meadows, tidal
meadows, beaches and dunes, which had on 1 January 1997 a population of
2 365, and which is an island on which opportunities for gainful activity are
in general limited but where beekeeping constitutes one of the few forms
of gainful activity by reason of the island's special flora and high proportion
of uncultivated and extensively used land?
(2) If a Member State can introduce such rules, the Court is requested to
describe in general the conditions governing those rules and in particular to
answer the following questions:
(a) Can a Member State introduce such rules as described in (1) on the ground
that the rules concern solely such an island as described and that the effect
of the rules is therefore geographically limited?
(b) Can a Member State introduce such rules as described in (1) if the reason
for those rules lies in the desire to protect the bee strain Apis mellifera
mellifera against eradication, an objective which, in the Member State's
opinion, can be attained by excluding all other bee strains from the island
in question?
In the criminal proceedings underlying this order for reference, the accused:
(i) disputes that there is at all any such bee strain as Apis mellifera mellifera
and submits that the bees at present to be found on Læsø are a mixture of
different bee strains;
(ii) submits that the brown bees to be found on Læsø are not unique but are
found in many parts of the world; and
(iii) submits that those bees are not threatened with eradication.
In its response, the Court is therefore requested to indicate whether it is sufficient
that the Member State in question considers it appropriate or necessary to
introduce the rules as a step in preserving the bee population in question, or
whether it must be regarded as a further condition that the bee strain exists, and/or
that it is unique, and/or that it is threatened with eradication if the import ban is
not valid or cannot be enforced.
(c) If the grounds set out in (a) or in (b) cannot make it lawful to introduce
such rules, can a combination of those grounds make it so lawful?
II Concerning Council Directive 91/174/EEC of 25 March 1991 laying down
zootechnical and pedigree requirements for the marketing of pure-bred
animals et al:
(1) Under what circumstances can a bee be a pure-bred animal within the
meaning attached to those words by Article 2 of Directive 91/174? Is a
golden bee, for example, a pure-bred animal?
(2) What constitutes a zootechnical ground (Article 2)?
(3) What constitutes a pedigree ground (Article 2)?
(4) Must Directive 91/174 be understood as meaning that a Member State may,
notwithstanding the Directive, ban the importation onto an island such as
that described in Question (1) of Part I and the existence there of all bees
other than bees belonging to the strain Apis mellifera mellifera?
If a Member State can do so under certain conditions, the Court is requested to set
out those conditions.
Observations
- 6.
- Written and oral observations have been submitted by the defendant, the
Kingdom of Denmark, the Italian Republic and the Commission of the European
Communities. The Kingdom of Norway submitted written observations.
- 7.
- The defendant argues that intra-community trade in bees should be
presumed to exist, as it is expressly regulated by Article 8 of Council Directive
92/65/EEC of 13 July 1992. (9) Furthermore, Article 3 of that Directive provides
that trade is not to be restricted on animal health grounds other than those set out
therein or in other Community legislation. The defendant also contends that even
restrictions on the marketing of goods which operate internally, or in only part of
a Member State's territory, are subject to the prohibition in Article 30 of the Treaty
of measures equivalent to quantitative restrictions on imports, whether actual or
potential, direct or indirect. (10) The case is not purely internal because the
defendant is himself licensed to import and export bees, and the greater
productivity and resistance to illness of golden bees means that switching to brown
bees would seriously affect his livelihood. The restriction is not required by Council
Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and
of wild fauna and flora, (11) even though Læsø is a designated habitat, because the
brown bee is not listed in the annexes and is, in any event, a domestic animal.
- 8.
- The defendant argues that the Court cannot consider the possible
justification of the restriction under Article 36 of the Treaty, as this provision was
not invoked by the national court. If it is to be applied, Denmark bears the burden
of proof. There is no question of the health of bees on the island being threatened
by disease. The defendant submits evidence that the brown bee is not a threatened
subspecies: far from being restricted to small parts of the United Kingdom,
Sweden, Norway and Læsø, it can be found in large numbers in South Africa,
Tasmania and South America. Furthermore, surveys of the brown bee population
of Læsø have shown it to be a hybrid rather than a pure example of Apis mellifera
mellifera. Even if Community law could countenance measures by Denmark to
preserve the brown bee of Læsø, the restriction imposed by the Decision is
disproportionate, both because it is a compulsory rather than a voluntary scheme
(as in Norway) and because it excludes even the introduction of genetically identical
brown bees from places other than Læsø, thereby giving rise to discrimination.
- 9.
- The defendant contends that Directive 91/174 does not apply to bees and
that the choice by farmers of the animals which they wish to breed, whether cattle
or bees, should not be subject to restrictions.
- 10.
- Denmark argues that Directive 91/174 does not apply to the present case,
as the national rules in question are not restrictions on the marketing or
reproduction of pure-bred animals. Moreover, as no detailed rules have been
adopted regarding bees, the case falls to be decided under the general provisions
of the Treaty. Denmark contends that the effects of the Decision, whereby a
person may be sanctioned for keeping a particular subspecies of bees on a
particular island which constitutes just 0.3% of national territory, are entirely
internal. (12) Denmark requests the Court not to follow its judgment in Pistre and
Others (13) in so far as it permits the application of Article 30 to such purely internal
situations. The restriction is non-discriminatory. As it only affects the keeping of
bees rather than their import, and can, thus, be likened to a marketing rule,
Article 30 of the Treaty does not apply, by virtue of the Court's judgment in Keck
and Mithouard. (14) In the alternative, the effects of the Decision on
intra-community trade are too indirect and uncertain, (15) as there is no evidence
that imports of other subspecies would rise if the restrictions regarding bee-keeping
in Læsø were lifted, and only a very small number of professional bee-keepers is
affected. In any event, any non-discriminatory restriction of intra-community trade
arising from the application of the Decision would be justified by reference to the
public interest in biological diversity, as evidenced by the adoption of Directive
92/43/EEC and by the Council's decision to conclude the Rio Convention on
biological diversity of 5 June 1992. (16) The restrictions imposed by the Decision are
consistent with the Rio Convention principle of conservation in situ. According to
a series of studies between 1986 and 1996, the brown bee of Læsø remains a very
pure example of the subspecies Apis mellifera mellifera, with a distinct DNA
pattern. However, it is becoming increasingly rare on the island, and the purity of
its genetic make-up is under threat due to the recessive character of its genes
relative to those of the more common golden bee. The Decision is proportionate,
as the option of replacing queens with inseminated brown queens is less restrictive
than requiring the removal of all swarms other than those of the brown bee of
Læsø.
- 11.
- Italy and Norway generally support the arguments of Denmark. Norway
states that establishment of zones of pure stock within a Member State to prevent
inter-breeding is non-discriminatory and does not affect the general freedom to
trade (17) except in an indirect and uncertain fashion. (18) Should Article 30 be
applicable, the Decision is justified by reference to both Article 36 and the
mandatory requirement of environmental protection. The European dark honey
bee Apis mellifera mellifera is in danger of extinction, its numbers having fallen by
two-thirds in Norway between 1980 and 1997. The steps taken are no more
restrictive than necessary, and are similar to those taken in Norway, where a
35 000 km2 breeding zone for the brown bee has been established on a voluntary
basis. This is consistent with Article 8 of the Rio Convention.
- 12.
- The Commission argues that restrictions confined to only part of a MemberState's territory may be contrary to Article 30 of the Treaty. (19) The restriction in
question is, to use the terms of the Keck and Mithouard judgment, a product rule
rather than a marketing rule, and affects the competition between keepers of
brown bees and keepers of golden bees on the island. Thus, the effects of the
Decision on intra-community trade are more than merely hypothetical. (20)
Furthermore, the application of Article 30 does not depend upon the degree to
which trade is affected. (21) The reference in Article 36 of the Treaty to the health
and life of animals should be understood as extending to the protection of whole
species or subspecies, or of subgroups within a species or subspecies, from
extinction, or for scientific or breeding purposes. Even if the Commission believes
that the brown bee of Læsø is not a genetically distinct subspecies, it is for the
Member States to determine the degree of protection of species, subspecies or
subgroups. (22) In order to benefit from the application of Article 36 of the Treaty,
it is for a Member State to prove (23) that a national measure is effective in attaining
its protective objective and that there is no less restrictive means of achieving one
of the objectives specified therein. The national measure in question is
discriminatory and unjustifiable, however, to the extent that it excludes the import
of genetically similar brown bees from outside Læsø.
- 13.
- The Commission states that, although bees come within the scope of
Directive 91/174, which applies to 'any animal for breeding covered by Annex II
to the Treaty, (24) since no measures have been adopted regarding bees under
Article 6 of the Directive, the matter must be judged by reference to the general
rules, already discussed, in Articles 30 and 36 of the Treaty.
Analysis
Part II of the national court's questions
- 14.
- In responding to Part II of the questions referred, it is not necessary to
determine whether bees are pure-bred animals for the purposes of
Directive 91/174. Since, as the Commission says, no detailed rules in respect of
bees have been adopted pursuant to Article 6 of the Directive, the final sentence
of Article 2 applies and 'national laws ... remain applicable with due regard for the
general provisions of the Treaty. Accordingly, even if bees fall within the scope
of application of Directive 91/174, the questions referred by the national court
regarding that Directive should be interpreted as raising the same issues as the
questions raised in Part I: firstly, the question of whether the Danish rules come
within the scope of Article 30 of the Treaty and, secondly, whether they may be
justified either by reference to Article 36 or as mandatory requirements of national
law pursuing a public-interest objective.
Part I of the national court's questions
(i) Article 30 of the Treaty
- 15.
- The Court has consistently confirmed, since its judgment in Procureur du Roi
v Dassonville, (25) that '[a]ll trading rules enacted by Member States which are
capable of hindering, directly or indirectly, actually or potentially, intra-Community
trade are to be considered as measures having an effect equivalent to quantitative
restrictions. The Court has described a prohibition on imports as 'the most
extreme form of restriction. (26) It has also been established by the case-law
following 'Cassis de Dijon (27) that, 'in the absence of harmonisation of legislation,
obstacles to free movement of goods which are the consequence of applying to
goods coming from other Member States where they are lawfully manufactured and
marketed, rules that lay down requirements to be met by such goods (such as those
relating to designation, form, size, weight, composition, presentation, labelling and
packaging) constitute measures of equivalent effect prohibited by Article 30. This
is so even if those rules apply without distinction to all products unless their
application can be justified by a public-interest objective taking precedence over
the free movement of goods. (28)
- 16.
- Before considering whether the Decision constitutes a measure having an
effect equivalent to a quantitative restriction on imports, and, in particular, whether
it constitutes a discriminatory or an indistinctly applicable restriction, it is necessary
for me to deal with a number of preliminary objections to the application of
Article 30 of the Treaty in this case. These relate to the Decision's limited
territorial scope, its slight effect, in volume terms, on trade and the allegedly
uncertain and indirect character of any effect on trade, the application of the
decision in Keck and Mithouard, and the allegedly internal character of the present
case.
- 17.
- The Court has indicated that a national rule which has limited territorial
scope, because it applies only to a municipality or to a part of the national
territory, 'cannot escape being characterised as discriminatory or protective for the
purposes of the rules on the free movement of goods on the ground that it affects
both the sale of products from other parts of the national territory and the sale of
products imported from other Member States. (29) Thus, the fact that the Decision
restricts the import and keeping of bees only in respect of the island of Læsø does
not, in principle, prevent its examination in the light of the requirements of
Article 30 of the Treaty. I agree with the statement made at the oral hearing by
the agent for the Commission that the correct approach to a restriction in part of
a Member State is to consider what the position would be if the restriction applied
to the whole national territory.
- 18.
- It is also clear that the slight effect of the Decision, in volume terms, on
trade cannot, in itself, prevent the application of Article 30 of the Treaty. As the
Court stated in Van de Haar, 'Article 30 of the Treaty does not distinguish between
measures having an effect equivalent to quantitative restrictions according to the
degree to which trade between Member States is affected. (30) Article 30 prohibits
national measures capable of hindering imports 'even though the hindrance is
slight and even though it is possible for imported products to be marketed in other
ways. (31) A legislative measure of general application which affects the conduct
of an economic activity by all persons and undertakings in a defined part of the
national territory will always, in my view, be capable of hindering trade.
- 19.
- It has also been argued, in the light of the decisions in Peralta and other
cases, that 'the restrictive effects which [the Decision] might have on the free
movement of goods are too uncertain and indirect for the obligation which it lays
down to be regarded as being of a nature to hinder trade between Member
States. (32) This argument should not be accepted, as it confuses scale with
remoteness. The rules at issue in Peralta were argued to affect all Italian sea-borne
trade in goods; in DIP to hinder retail sales generally throughout Italy; in Krantz
to affect the supply of all goods in the Netherlands on the basis of instalment
payments; and in CMC Motorradcenter to undermine all parallel trade in goods
subject to guarantees which were not honoured by authorised dealers in the country
of destination. However, the causal link between these measures and any effect on
intra-Community trade was a matter of pure chance; in other words, it was too
remote. The Court was simply not prepared to accept that national rules on
discharges from ships into the sea, on planning authorisation and licensing of shops,
on the seizure of goods in the possession of tax defaulters and on the provision of
information in good faith when concluding contracts were liable to have a
discernible effect on trade. On the other hand, the impact on trade of the Decision
at issue in the present case is direct and immediate. The import of bees from
other Member States to a part of Danish territory is directly prohibited. In such
a case, the scale of the effect on intra-Community trade is, as already stated,
irrelevant. (33)
- 20.
- It has also been contended that the Decision is merely akin to a national
rule on selling arrangements, and that, therefore, by virtue of the judgment in Keck
and Mithouard, it falls outside the scope of Article 30 of the Treaty. This
contention seems to be founded on the fact that the Decision does not restrict the
import of bees into Danish territory in general, but simply limits their distribution
in a part of that territory. In this regard, an analogy has been proposed by Italy
with the decision of the Court in Blesgen v Belgium that restrictions on the
marketing of certain alcoholic beverages on premises open to the public, which did
not affect other forms of marketing of the same drinks, (34) were not contrary to
Article 30. In my view, this argument should be rejected. Although the restriction
only affects a small part of Danish territory, it has the effect, in its area of
application, of a total prohibition on marketing of bees other than the brown bee
of the island itself. Although a prohibition on marketing may be described, in
literal terms, as a rule 'restricting or prohibiting certain selling arrangements, it
is equally well described in this case as a product rule. Only products bees of
a certain colour, wing-span and origin can be marketed or kept in Læsø. For the
avoidance of doubt, one need only look to the overriding criterion which
determined the Court's landmark decision in Keck and Mithouard, that of market
access. (35) Such access is clearly blocked in the case of the Læsø market; no
alternative means of marketing non-Læsø bees is permitted on the island. (36)
- 21.
- Finally, it has been submitted that the Court should not answer the
questions referred by the national court because the case concerns an entirely
internal situation. I do not agree. It is true that Article 30 of the Treaty cannot
affect the application of the Decision to the marketing or keeping on Læsø of bees
from other parts of Denmark. (37) However, it appears from the pleadings that the
defendant possesses a licence granted by the Danish authorities for the import and
export of bees. Thus, it cannot be excluded that the Decision prevents him from
importing bees from outside Denmark for use in his Læsø bee-keeping
undertaking, or that the existing queens or swarms which he is required to replace
were themselves imported. In any event, it should by now be clear, I think, that the
Decision is capable of affecting the marketing in Denmark of products from other
Member States. In these circumstances, it is settled law that it is for the national
court, within the system established by Article 177 of the Treaty, to weigh the
relevance of the questions referred by it to the Court, in the light of the facts of the
case before it. (38) The continued validity of this approach to the relationship
between the Court and the national court is demonstrated by the decision in Giloy
v Hauptzollamt Frankfurt am Main-Ost, in which the Court confirmed its willingness
to deal with references where Community-law provisions are employed in national
law 'to determine the rules applicable to a situation which is purely internal to that
State. (39)
- 22.
- It is possible to argue that the Decision imposes a discriminatory restriction
on trade, if it is analysed with regard to the marketing of bees of the bee species
Apis mellifera taken as a whole. The Decision favours the keeping of bees on Læsø
drawn from the Danish population that of Læsø of a particular subspecies of
bee, the brown bee Apis mellifera mellifera, by excluding all bees, whether brown
or golden, imported onto the island from other parts of Denmark, other Member
States or other Contracting Parties to the EEA Agreement. It is immaterial, on
this approach, that the Decision excludes from Læsø Danish golden bees, including
those originally kept and bred on Læsø itself, as well as such Danish brown bees
as may exist outside Læsø. There is ample support in the Court's case-law for this
approach. The existence of discrimination 'is not affected by the fact that the
restrictive effects of a preferential system of the kind at issue are borne in the same
measure both by products manufactured by undertakings from the Member State
in question which are not situated in the region covered by the preferential system
and by products manufactured by undertakings established in other Member
States. (40) '[T]he fact remains that all the products benefiting by the preferential
system are domestic products .... (41) 'For such a measure to be characterised as
discriminatory or protective, it is not necessary for it to have the effect of favouring
national products as a whole or of placing only imported products at a disadvantage
and not national products. (42)
- 23.
- In the alternative, one can argue on at least two grounds that the Decision
is not discriminatory, at least in so far as it affects the defendant, but constitutes,
instead, an indistinctly applicable restriction on imports. This is important because
only indistinctly applicable restrictions can be justified by reference to mandatory
requirements in the public interest, such as environmental protection. (43)
Discriminatory measures, in contrast, benefit only from derogations under
Article 36 of the Treaty. First, if the effect of the Decision on trade in each of the
various subspecies of bee is analysed separately, it appears that it discriminates in
favour of Danish in particular, Læsø production of the brown bee Apis mellifera
mellifera relative to non-Danish production of brown bees, but is indistinctly
applicable in respect of the golden bee (chiefly Apis mellifera ligustica). Golden
bees are prohibited from Læsø irrespective of their origin, including origin in Læsø
itself. Although the Decision does not distinguish expressly between subspecies in
prohibiting the introduction of all bees on Læsø from outside the island, the factors
affecting the applicability of the Decision, in the light of Article 30 of the Treaty,
differ in respect of brown bees and golden bees. As regards the former, somejustification for excluding bees of the same subspecies as the brown bee of Læsø
must be established on the basis of special characteristics of the Læsø brown bee
which have not, as yet, resulted in a distinct taxonomic classification. On the other
hand, golden bees, as members of a separate subspecies, can more readily be
recognised as materially different in character, so that rules favouring one
subspecies over the other need not, if they serve a legitimate public-interest
objective related to that distinction, be regarded as discriminatory.
- 24.
- A further argument can be drawn from the Court's judgment in Walloon
Waste. (44) That case concerned Belgian regional rules prohibiting the import of
waste from other regions of Belgium or from abroad. The rules in question would,
I think, normally have been deemed to be directly discriminatory. However, the
Court drew attention in its judgment to special factors which may apply in respect
of national environmental rules:
'[I]n assessing whether the barrier in question is discriminatory, account must be
taken of the particular nature of waste. The principle that environmental damage
should as a matter of priority be remedied at source, laid down by Article 130r(2)
of the Treaty as the basis for action by the Community relating to the environment,
entails that it is for each region, municipality or other local authority to take
appropriate steps to ensure that its own waste is collected, treated and disposed of;
it must accordingly be disposed of as close as possible to the place where it is
produced, in order to limit as far as possible the transport of waste ... . It follows
that having regard to the differences between waste produced in different places
and to the connection of the waste with its place of production, the contested
measures cannot be regarded as discriminatory. (45)
- 25.
- In the present case, the Decision seeks to protect a particular population of
the subspecies Apis mellifera mellifera in its native geographical area, where it has
allegedly developed a number of distinctive morphological characteristics. It seeks
to do so by way of preventive action against inter-breeding with the golden bee and
even with brown bees from non-local populations. This can be taken to be an
attempt to rectify at source the environmental damage arising from such
inter-breeding and to preserve local biological diversity. In the light of these
legislative objectives, it can be argued that there are relevant differences between
the Læsø brown bee population and other populations of bees, both brown and
golden. Acceptance of the existence of such material differences between Læsø
brown bees and other bees excluded from Læsø pursuant to the Decision would
imply that the exclusion of the latter was not discriminatory in character. As I have
said, such material differences are more readily established in the case of the
golden bee, which is excluded from Læsø regardless of its origin. Such an exclusion
would still, of course, constitute an indistinctly applicable restriction on trade in
non-Læsø bees. Although it is uncertain whether the Læsø brown bee population
is sufficiently distinctive to merit protection against inter-breeding with all other bee
populations, both brown and golden, I think that the Decision can be treated, for
the purposes of an analysis of its effect on trade in golden bees, as an indistinctly
applicable measure.
- 26.
- I conclude, therefore, that the Decision constitutes a measure equivalent to
a quantitative restriction within the meaning of Article 30 of the Treaty, which, in
so far as it affects trade in golden bees, is indistinctly applicable in character.
(ii) Justification
- 27.
- Irrespective of whether the Decision is indistinctly applicable or
discriminatory, the possibility of a derogation under Article 36 of the Treaty must
be considered before the possibility of justification by reference to a mandatory
requirement in the public interest. (46) The central question regarding the
compatibility of the Decision with the Treaty is, thus, whether it can benefit from
the derogation in Article 36 of the Treaty in respect of 'prohibitions or restrictions
on imports ... justified on grounds of ... the protection of health and life of ...
animals. In my view, this derogation extends to the protection, in the sense of
conservation, of a particular distinctive population of animals, be it a species,
subspecies or other subgroup. Thus, for example, national measures to prevent the
eradication of such a population through disease or hunting could benefit, if
necessary, from the derogation permitted by Article 36. The threat that a
distinctive population will disappear through inter-breeding and the consequent loss
of its distinct character raises rather different considerations. This is a slower,
probably painless process. It will not necessarily endanger the life of any individual
member of the population in question, although this will depend on how effectively
the surviving members of the original group and the members of the inter-bred
group compete for territory and scarce resources. None the less, I think that
national measures to safeguard the distinctive character of certain animal
populations should also fall within the scope of Article 36 of the Treaty, if the
other, normal conditions for the invocation of a derogation are satisfied. The
public interest in the protection of the health and life of animals and plants is as
ill served when species or other subgroups in an animal population gradually
disappear or are irrevocably altered through an uncontrolled breeding process as
when the actual living members of that species or other subgroup die or suffer
illness or injury in a more immediate fashion. The existence of such a public
interest under Article 36 in the protection of the continued existence of different
animal populations as such is reinforced by the Community objective, under
Article 130r of the Treaty, of 'prudent and rational utilisation of natural
resources.
- 28.
- Should the Court not accept such an interpretation of Article 36, it would,
I think, be possible to justify an indistinctly applicable restrictive measure imposed
to protect a distinct animal population by reference to the mandatory requirement
of environmental protection. (47) Support for such a justification can be found in the
Rio Convention. The Contracting Parties affirm 'that the conservation of
biological diversity is a common concern of humankind. Article 2 of the Rio
Convention confirms that it also applies to 'domestic or cultivated species, which
are 'species in which the evolutionary process has been influenced by humans to
meet their needs.
- 29.
- The fact that the Community has concluded the Rio Convention, regarding
such subject-matter of the Convention as lies within its competence, does not mean
that any and every restrictive measure adopted by a Member State pursuant to the
Convention is justified, whether by reference to Article 36 or to the general interest
in environmental protection. Regarding the issue of justification in this particular
case, the national court draws attention in particular to the limited geographical
scope of the Decision, as well as to the defendant's contentions regarding the
degree of inter-breeding which has already occurred on Læsø, the allegedly
non-unique character of the brown bee of Læsø and the alleged absence of any
danger of eradication of the brown bee world-wide.
- 30.
- The Court has stated that, in the absence of harmonised standards, it is for
the Member States to decide the degree of protection of human health under
Article 36 as well as the way in which such protection is to be achieved, subject to
the limits imposed by the Treaty, including the principle of proportionality. (48) This
means that restrictions must meet 'a genuine need of health policy and 'must be
restricted to what is actually necessary to secure the protection of public health,
with due account being taken of the scientific evidence available. (49)
- 31.
- I am satisfied that the Member States should also enjoy some margin of
appreciation regarding the protection of animal life, and that the protection of a
distinctive animal population even below the level of a subspecies is a legitimate
aim for the purposes of Article 36 of the Treaty or, as the case may be, the
mandatory requirement of environmental protection. Article 2 of the Rio
Convention defines 'biological diversity as 'variability among living organisms
from all sources, including 'diversity within species. The Convention avoids
confining its protection to species or subspecies, preferring to use more general
descriptions of the diverse types of organisms to which it relates. Thus, it defines
'genetic resources merely as 'genetic material of actual or potential value, (50)
without reference to established taxonomic distinctions between species and
subspecies, and refers simply to the 'distinctive properties developed by
domesticated or cultivated species. (51) This is consistent with the approach of a
number of other international instruments on the protection of wildlife. Article I(a)
of the Convention on International Trade in Endangered Species of Wild Fauna
and Flora signed in Washington on 3 March 1973 defines 'species, for its
purposes, as 'any species, subspecies or geographically separate population
thereof. Article I of the Bonn Convention on the Conservation of Migratory
Species of Wild Animals defines 'migratory species as 'the entire population or
any geographically separate part of the population of any species or lower taxon
of wild animals.
- 32.
- It is, therefore, permissible for the Danish authorities to seek to conserve
the brown bee of Læsø even if it is not a distinct subspecies but merely a
geographically and morphologically distinctive population of the subspecies Apis
mellifera mellifera, which subspecies, it has been argued, is found in a number of
countries. For the purposes of the present case, the brown bee of Læsø Apis
mellifera mellifera is clearly distinct from the golden bee favoured by the defendant,
provided it is established that the brown bee population has been maintained in a
relatively pure state. The degree of distinctiveness within subspecies would be
material to the outcome only if the defendant sought to import or keep brown bees
from outside Læsø. Furthermore, the relevant framework for analysis must, in my
view, be the Danish population of the brown bee, so that the Danish authorities are
entitled to respond to threats to the continued existence of that population even
if brown bees survive and thrive in a relatively pure state elsewhere in the
Community or in the world. The population in question need not be in immediate
danger of eradication, although Denmark appears to take the view that such a
danger exists in the present case. The Community's own environmental policy
emphasises, in Article 130r of the Treaty, the precautionary principle and the
principle that preventive action should be taken. Moreover, the Contracting Parties
to the Rio Convention note 'that it is vital to anticipate, prevent and attack the
causes of significant reduction or loss of biological diversity at source, (52) indicating
that preemptive steps should, if necessary, be taken. This is for the national court
to determine, in the light of the evidence of the general dominance of the golden
bee and relevant scientific evidence concerning the genetic character of the brown
bee, in particular its recessive genes, as well as of whether there is a sufficient
threat to the continued existence of a distinctive Læsø brown bee population to
justify the Decision.
- 33.
- Article 8 of the Rio Convention also casts light on the sorts of measures
which are appropriate to achieve the objective of the conservation of biological
diversity through in situ conservation. It provides that '[e]ach Contracting Party
shall, as far as possible and as appropriate, (a) establish a system of protected
areas or areas where special measures need to be taken to conserve biological
diversity and '(h) prevent the introduction of, control or eradicate those alien
species which threaten ecosystems, habitats or species. Thus, measures to exclude
certain animal types from an area which threaten the existence of another animal
type are, in principle, within the scope of the Convention and, therefore, reflect
internationally recommended practice in this field.
- 34.
- The effectiveness and appropriateness of the measures adopted by Denmark
in the Decision must still be determined in the context of the present case. Thus,
it is for the national court to establish whether the brown bee of Læsø still survives
in a relatively pure state. If the brown bee population of Læsø has already been
substantially corrupted by inter-breeding with golden bees, the national court may
form the view that the Decision is not effective to achieve its stated objective,
because the situation has already deteriorated beyond repair. In that case, the
continued restriction on the keeping of golden bees on the island could be
considered to be disproportionate. If, on the other hand, the Læsø population is
relatively pure, but is not morphologically distinguishable from other populations
of Apis mellifera mellifera, the restriction on the introduction of other brown bees
on the island will not be justifiable. Furthermore, if, as Denmark has indicated, the
brown bee of Læsø is morphologically distinctive from other populations of Apis
mellifera mellifera, but shares its distinctive features with other Scandinavian brown
bees, the exclusion of these bees must be seen as overly restrictive. However, the
latter two points only concern trade in brown bees, and need not, in themselves,
affect the continued restriction of the import or keeping of golden bees, which is
the immediate subject-matter of the present case.
- 35.
- In assessing the proportionality of the Decision, the national court should
also bear in mind its limited geographical scope. The restriction on the exercise of
Community-law rights in Denmark is correspondingly reduced. The fact that the
Decision imposes obligations, rather than proceeding on a voluntary basis, does not
establish that it is disproportionate. It is clear that full compliance by bee-keepers
with the efforts to exclude alien bees from the island is necessary if the objective
of preventing inter-breeding is to be achieved. The fact that compensation is to be
provided for losses resulting from the application of the Decision is also a factor
to be taken into account in assessing whether the Decision is no more restrictive
than necessary of Community-law rights.
Conclusion
- 36.
- In the light of the foregoing I recommend that the Court answer the
questions referred by the national court as follows:
(1) National rules prohibiting the keeping and importation of bees other than
bees belonging to the population, of a particular subspecies, found in the
defined part of the national territory which is subject to those rules
constitute a measure having an effect equivalent to a quantitative restriction
on imports within the meaning of Article 30 of the Treaty;
(2) In so far as bees of another subspecies are excluded from a defined part of
national territory by such national rules, those rules may be justified on
grounds of protection of the health and life of animals pursuant to
Article 36 of the Treaty where they are intended to protect a distinctive and
relatively pure population of the specified subspecies which is found in that
part of national territory, even if bees of that subspecies are also found
elsewhere in the Community or the world. Such rules may be justified as
preventive measures even in the absence of an immediate threat of
eradication of the protected population.
1: Original language: English.
2:
Law No 267 of 6 May 1993 on bee-keeping (Lov om biavl), now codified by Law No 585
of 6 July 1995.
3:
Article 1 of the Decision.
4:
Article 2 of the Decision.
5:
Article 7 of the Decision.
6:
Article 6 of the Decision.
7:
Article 9 of the Decision.
8:
OJ 1991 L 85, p. 37.
9:
Council Directive 92/65/EEC of 13 July 1992 laying down animal health requirements
governing trade in and imports into the Community of animals, semen, ova and embryos
not subject to animal health requirements laid down in specific Community rules referred
to in Annex A(I) to Directive 90/425/EEC, OJ 1992 L 268, p. 54.
10:
Joined Cases 177/82 and 178/82 Van de Haar and Kaveka de Meern [1984] ECR 1797,
hereinafter 'Van de Haar; Case 286/81 Oosthoek's Uitgeversmaatschappij [1982]
ECR 4575, hereinafter 'Oosthoek's; Case 21/88 Du Pont de Nemours Italiana [1990]
ECR I-889.
11:
OJ 1992 L 206, p. 7.
12:
Oosthoek's, loc. cit.; Case C-55/94 Gebhard v Consiglio dell'Ordine degli Avvocati e
Procuratori di Milano [1995] ECR I-4165; Case C-415/93 Bosman and Others [1995]
ECR I-4921.
13:
Joined Cases C-321/94 to C-324/94 [1997] ECR I-2343, hereinafter 'Pistre.
14:
Joined Cases C-267/91 and C-268/91 [1993] ECR I-6097.
15:
Case C-379/92 Peralta [1994] ECR I-3453; Joined Cases C-140/94 to C-142/94 DIP and
Others v Comune di Bassano del Grappa and Comune di Chioggia [1995] ECR I-3257,
hereinafter 'DIP.
16:
Council Decision of 25 October 1993 concerning the conclusion of the Convention on
Biological Diversity, OJ 1993 L 309, p. 1. The Convention is referred to hereinafter as
'the Rio Convention.
17:
Case 75/81 Blesgen v Belgium [1982] ECR 1211.
18:
Peralta, loc. cit., and DIP, loc. cit.
19:
Du Pont de Nemours Italiana, loc. cit.; Cases C-1/90 and C-176/90 Aragonesa de Publicidad
Exterior et Publivía [1991] ECR I-4151, hereinafter 'Aragonesa; Cases C-277/91, C-318/91
and C-319/91 Ligur Carni and Others [1993] ECR I-6621, hereinafter 'Ligur Carni.
20:
Peralta, loc. cit.; DIP, loc. cit.; Case C-69/88 Krantz [1990] ECR I-583; Case C-93/92
CMC Motorradcenter [1993] ECR I-5009.
21:
Van de Haar, loc. cit.; Case C-412/93 Leclerc-Siplec v TF1 Publicité and M6 Publicité [1995]
ECR I-179.
22:
Case 178/84 Commission v Germany [1987] ECR 1227.
23:
Case 251/78 Denkavit Futtermittel v Minister für Ernährung Landwirtschaft und Forsten
[1979] ECR 3369, paragraph 24.
24:
Article 1 of Directive 91/174.
25:
Case 8/74 [1974] ECR 837, paragraph 5.
26:
Case 34/79 Regina v Henn and Darby [1979] ECR 3795, paragraph 12.
27:
Case 120/78 REWE-Zentral v Bundesmonopolverwaltung für Branntwein [1979] ECR 649,
'Cassis de Dijon.
28:
See, for example, Keck and Mithouard, loc. cit., paragraph 15.
29:
Aragonesa, loc. cit., paragraph 24; see also Ligur Carni, loc. cit., paragraph 37. This is also
implicit in the judgment in Case C-2/90 Commission v Belgium [1992] ECR I-4431,
hereinafter 'Walloon Waste.
30:
Loc. cit., paragraph 13, emphasis added.
31:
Ibid.
32:
Peralta, loc. cit., paragraph 24; see also DIP, loc. cit., paragraph 29; Krantz, loc. cit.,
paragraph 11; CMC Motorradcenter, loc. cit., paragraph 12.
33:
Furthermore, the national rules which are deemed to have too indirect and uncertain an
effect on trade are invariably indistinctly applicable; see Peralta, loc. cit., paragraph 24;
DIP, loc. cit., paragraph 29; Krantz, loc. cit., paragraph 10; CMC Motorradcenter, loc. cit.,
paragraph 10. As will be seen below, it can be argued that the Decision is at least partially
discriminatory.
34:
Case 75/81, loc. cit., paragraph 9.
35:
Loc. cit., paragraph 17.
36:
It can also be argued that the Decision does not 'affect in the same manner, in law and
in fact, the marketing of domestic products and those from other Member States, as is
required if restrictions on selling arrangements are to escape the reach of Article 30 of the
Treaty; ibid., paragraph 16. See the discussion below of whether the Decision is
discriminatory in character.
37:
Oosthoek's, loc. cit., paragraph 9; Joined Cases 314/81 to 316/81 and 83/82 Procureur de
la République v Waterkeyn [1982] ECR 4337, paragraphs 11 and 12; Case 98/86 Ministère
Public v Mathot [1987] ECR 809, paragraph 9.
38:
Case 298/87 Smanor [1988] ECR 4489, paragraphs 8 and 9.
39:
Case C-130/95 [1997] ECR I-4291. Advocate General Jacobs recommended that the Court
refuse to address questions regarding the application of Article 30 in the context of a
purely internal situation, in Pistre, loc. cit., paragraph 40 of his Opinion, in part because
he had advocated a different approach in his Opinion in Giloy to that ultimately adopted
by the Court in that case, which had not yet been decided. The interpretation of Article 30
may be relevant to a case which is internal to one Member State if, for example, national
rules prohibit reverse discrimination: see the Opinion of Advocate General Jacobs in
Pistre, ibid., paragraph 35.
40:
Du Pont de Nemours Italiana, loc. cit., paragraph 12.
41:
Ibid., paragraph 13.
42:
Aragonesa, loc. cit., paragraph 24. See also Case C-3/88 Commission v Italy [1989]
ECR 4035, paragraph 9; Case C-353/89 Commission v Netherlands [1991] ECR I-4069,
paragraph 25; Case C-360/89 Commission v Italy [1992] ECR I-3401, paragraphs 8 and 9.
43:
See Case 113/80 Commission v Ireland [1981] ECR 1625; Du Pont de Nemours Italiana,
loc. cit., paragraph 14; Pistre, loc. cit., paragraph 52; Aragonesa, loc. cit., paragraph 13;
Walloon Waste, loc. cit., paragraph 9.
44:
Loc. cit.
45:
Ibid., paragraphs 34 and 36.
46:
Aragonesa, loc. cit., paragraph 13.
47:
On the existence of this mandatory requirement, see, for example, Case 302/86 Commission
v Denmark [1988] ECR 4607; Walloon Waste, loc. cit.
48:
Aragonesa, loc. cit., paragraph 16; Commission v Germany, loc. cit., paragraph 41;
Case 174/82 Sandoz [1983] ECR 2445, paragraph 16.
49:
Commission v Germany, loc. cit., paragraphs 42 and 44.
50:
Article 2 of the Rio Convention.
51:
See the definition of 'in situ conditions in Article 2 of the Rio Convention.
52:
Preamble to the Rio Convention, emphasis added.