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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Commission v Austria (Freedom to provide services) [2007] EUECJ C-393/05 (29 November 2007) URL: https://www.bailii.org/eu/cases/EUECJ/2007/C39305.html Cite as: [2007] EUECJ C-393/5, [2007] EUECJ C-393/05, [2007] ECR I-10195 |
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(Regulation (EEC) No 2092/91 ' Organic production of agricultural products Private inspection bodies Requirement of an establishment or permanent infrastructure in the Member State where the services are provided Justifications Connection with the exercise of official authority Article 55 EC Consumer protection)
In Case C-393/05,
ACTION under Article 226 EC for failure to fulfil obligations, brought on 4 November 2005,
Commission of the European Communities, represented by E. Traversa and G. Braun, acting as Agents, with an address for service in Luxembourg,
applicant,
Republic of Austria, represented by C. Pesendorfer, acting as Agent, with an address for service in Luxembourg,
defendant,
composed of P. Jann, President of the Chamber, A. Tizzano, A. Borg Barthet, M. Ilešič and E. Levits (Rapporteur), Judges,
Advocate General: E. Sharpston,
Registrar: R. Grass,
having regard to the written procedure,
after hearing the Opinion of the Advocate General at the sitting on 12 July 2007,
gives the following
Legal background
Community legislation
'1. Any operator who produces, prepares or imports from a third country products as specified in Article 1 for the purpose of marketing them shall:
(a) notify this activity to the competent authority of the Member State in which the activity is carried out; such notification shall include the information specified in Annex IV;
(b) submit his undertaking to the inspection system referred to in Article 9.
2. Member States shall designate an authority or body for the reception of notifications.
Member States may provide for the communication of any additional information which they consider to be necessary for effective supervision of the operators concerned.
3. The competent authority shall ensure that an updated list containing the names and addresses of operators subject to the inspection system is made available to interested parties.'
'1. Member States shall set up an inspection system operated by one or more designated inspection authorities and/or by approved private bodies to which the operators producing, preparing or importing from third countries products as referred to in Article 1 shall be subject.
2. Member States shall adopt the measures necessary to ensure that an operator who complies with the provisions of this Regulation and pays his contribution to inspection expenses has access to the inspection system.
3. The inspection system shall comprise at least the application of the precautionary and inspection measures specified in Annex III.
4. For the application of the inspection system operated by private bodies, Member States shall designate an authority responsible for the approval and supervision of such bodies.
5. For the approval of a private inspection body, the following shall be taken into account:
(a) the standard inspection procedure to be followed, containing a detailed description of the inspection measures and precautions which the body undertakes to impose on operators subject to its inspection;
(b) the penalties which the body intends to apply where irregularities and/or infringements are found;
(c) the availability of appropriate resources in the form of qualified staff, administrative and technical facilities, inspection experience and reliability;
(d) the objectivity of the inspection body vis-à -vis the operators subject to its inspection.
6. After an inspection body has been approved, the competent authority shall:
(a) ensure that the inspections carried out by the inspection body are objective;
(b) verify the effectiveness of its inspections;
(c) take cognisance of any irregularities and/or infringements found and penalties applied;
(d) withdraw approval of the inspection body where it fails to satisfy the requirements referred to in (a) and (b) or no longer fulfils the criteria indicated in paragraph 5 or fails to satisfy the requirements laid down in paragraphs 7, 8, 9 and 11.
6a. Before 1 January 1996, Member States shall issue a code number to each inspection body or authority approved or designated in accordance with the provisions of this Article. They shall inform the other Member States and the Commission thereof; the Commission shall publish the code numbers in the list referred to in the last subparagraph of Article 15.
7. The inspection authority and the approved inspection bodies referred to in paragraph 1 shall:
(a) ensure that at least the inspection measures and precautions specified in Annex III are applied to undertakings subject to their inspection;
(b) not disclose information and data they obtain in their inspection activity to persons other than the person responsible for the undertaking concerned and the competent public authorities.
8. Approved inspection bodies shall:
(a) give the competent authority, for inspection purposes, access to their offices and facilities, together with any information and assistance deemed necessary by the competent authority for the fulfilment of its obligations pursuant to this Regulation;
(b) send to the competent authority of the Member State by 31 January each year a list of operators subject to their inspection on 31 December of the previous year and present to the said authority a concise annual report.
9. The inspection authority and inspection bodies referred to in paragraph 1 shall:
(a) ensure that, where an irregularity is found regarding the implementation of Articles 5, 6 and 7 or of the measures referred to in Annex III, the indications provided for in Article 2 referring to the organic production method are removed from the entire lot or production run affected by the irregularity concerned;
(b) where a manifest infringement, or an infringement with prolonged effects is found, prohibit the operator concerned from marketing products with indications referring to the organic production method for a period to be agreed with the competent authority of the Member State.
...
11. As from 1 January 1998 and without prejudice to the provisions of paragraphs 5 and 6, approved inspection bodies must satisfy the requirements laid down in the conditions of standard EN 45011.
...'
'1. Where a Member State finds irregularities or infringements relating to the application of this Regulation in a product coming from another Member State and bearing indications as referred to in Article 2 and/or Annex V it shall inform the Member State which designated the inspection authority or approved the inspection body and the Commission [thereof].
2. Member States shall take whatever measures and action are required to prevent fraudulent use of the indications referred to in Article 2 and/or Annex V.'
The Austrian legislation
The pre-litigation procedure
The action
Arguments of the parties
Findings of the Court
Costs
On those grounds, the Court (First Chamber) hereby:
1. Declares that, by requiring of private inspection bodies of organically'farmed products approved in another Member State that they maintain an establishment in Austria in order to be able to provide inspection services there, the Republic of Austria has failed to fulfil its obligations under Article 49 EC;
2. Orders the Republic of Austria to pay the costs.
[Signatures]
* Language of the case: German.