Keywords
Summary

Keywords

1. Freedom of movement for persons – Freedom of establishment – Restrictions

(Art. 43 EC)

2. Freedom to provide services – Restrictions

(Art. 49 EC)

3. Agriculture – Harmonisation of laws – Intra-Community trade of semen from bovine pure-bred animals

(Arts 43 EC and 49 EC; Council Directives 77/504, 87/328 and 91/174)

4. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Restrictions

(Arts 43 EC and 49 EC)

Summary

1. The exclusive rights over a geographical area conferred by a Member State on authorised insemination centres to provide the service of artificial insemination of bovine animals in a determined territory, restricting the overall number of operators permitted to open and manage such centres in that State’s territory, and the unlimited duration of those exclusive rights hamper the access of other operators, including those from other Member States, to the insemination market. The fact that the geographical areas covered by those exclusive rights can be adjusted or divided cannot affect that assessment.

In the absence of the possibility of acquiring rights over a determined geographical area, an operator who seeks to carry on an activity in the artificial insemination sector is required to conclude an agreement with the territorially competent insemination centre in order to obtain an inseminator’s licence. Since the conclusion of such an agreement depends on the managing directors of authorised centres, that requirement is likely to prevent such an objective from being attained.

Such measures render it difficult, if not impossible or, in any event, less attractive, to exercise freedom of establishment with a view to carrying on, in the territory of the Member State concerned, the distribution and insemination of bovine semen. The fact that those measures are applicable without distinction to national operators and to those of other Member States does not preclude that finding, given that such national measures, even though applicable without discrimination on grounds of nationality, are liable to hamper or to render less attractive the exercise by Community nationals, including those of the Member State which enacted the measure, of a fundamental freedom guaranteed by the Treaty such as the freedom of establishment.

(see paras 50, 53-56)

2. The fact that a Member State requires cross-border service providers wishing to carry out the artificial insemination of bovine animals on that State’s territory to obtain an inseminator’s licence and the fact that it requires, after that licence has been obtained, that those operators may carry out the insemination of bovine semen only under the authority of a territorially competent insemination centre is, regardless of the conditions under which that licence is issued, a restriction on the freedom to provide services, since those requirements are liable to impede or render less attractive the provision of the insemination service by operators established and already lawfully operating in other Member States.

The same is true so far as concerns the obligation to store semen in authorised artificial insemination centres which alone are authorised to deliver it to breeders. Even if breeders may request the centre to which they are affiliated to order specific semen originating from a producer established in another Member State, the obligation to store the semen in that centre, after its dispatch, is likely to impede or render less attractive the provision of the distribution service by the producer.

(see paras 61, 64-65)

3. Directives 77/504 on pure-bred breeding animals of the bovine species, 87/328 on the acceptance for breeding purposes of pure-bred breeding animals of the bovine species, and 91/174 on zootechnical and pedigree requirements for the marketing of pure-bred animals and amending Directives 77/504 and 90/425 have fully harmonised at Community level the pedigree conditions so far as intra-Community trade in bovine semen from pure-bred animals is concerned.

An overriding reason in the public interest cannot be relied upon where there is harmonisation at Community level providing for measures necessary to ensure that that interest is protected. Therefore, the aim of protecting the pure-bred bovine stock by national pedigree requirements cannot justify obstacles to intra-Community trade in semen from those bovine animals not laid down by the Community legislation harmonising the field concerned.

(see paras 73-75)

4. A Member State which allows only authorised artificial insemination centres, with exclusive rights over determined geographical areas, and persons holding an inseminator’s licence, the issue of which is subject to the conclusion of an agreement with one of those centres, to provide the service of artificial insemination of bovine animals, has failed to fulfil its obligations under Articles 43 EC and 49 EC.

Admittedly, it is legitimate for a Member State, in order to verify an applicant’s ability to carry out the tasks of an inseminator, to require a licence for the exercise of that activity. In the case of an authorisation procedure for carrying out an activity, in its application of the national provisions, the Member State concerned must take into account the knowledge and qualifications already acquired by the party concerned in another Member State. Moreover, a prior administrative authorisation scheme must be based on objective non-discriminatory criteria known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily.

Legislation which makes the issue of an inseminator’s licence subject to the conclusion of an agreement with an artificial insemination centre which is in potential competition on the insemination market with the same operator whose competence as an inseminator it is supposed to check and which, in addition, leaves the conclusion of that agreement to the discretion of the managing directors of those centres, who are not required to sign it even if the candidate fulfils the objective non-discriminatory selection criteria known in advance and even if it is appropriate for ensuring the protection of animal health and the health of the operator carrying out the insemination, goes beyond what is necessary to attain the objective pursued.

(see paras 91-95, 97, 108, operative part)