Judgments of Court of Justice of the European Communities nº C-389/05, of July 17, 2008

In Case C-389/05,

ACTION under Article 226 EC for failure to fulfil obligations, brought on 27 October 2005,

Commission of the European Communities, represented by A. Bordes and E. Traversa, acting as Agents,

applicant,

v

French Republic, represented by G. de Bergues, A. Colomb and G. Le Bras, acting as Agents,

defendant,

THE COURT (Fourth Chamber),

composed of K. Lenaerts, President of the Chamber, G. Arestis, R. Silva de Lapuerta, E. Juhász (Rapporteur) and J. Malenovský, Judges,

Advocate General: P. Mengozzi,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the written procedure and further to the hearing on 3 May 2007,

after hearing the Opinion of the Advocate General at the sitting on 3 April 2008,

gives the following

Judgment

1         In its application the Commission of the European Communities seeks a declaration by the Court that, by allowing only bovine insemination centres authorised in France to carry out activities related to the artificial insemination of bovine animals, inter alia by establishing a general system of exclusive rights over a defined geographical area in favour of those centres and by making the activity of artificial insemination subject to the possession of an inseminator-s licence, the French Republic has failed to fulfil its obligations under Articles 43 and 49 EC.

 Legal context

 Community legislation

2         Articles 43 EC and 49 EC concern, respectively, the freedom of establishment and the freedom to provide services.

3         Under Article 2 of Council Directive 77/504/EEC of 25 July 1977 on pure-bred breeding animals of the bovine species (OJ 1977 L 206, p. 8), as amended by Council Directive 94/28/EC of 23 June 1994 (OJ 1994 L 178, p. 66; -Directive 77/504-), the Member States shall ensure that intra-Community trade in the semen, ova and embryos of pure-bred breeding animals of the bovine species shall not be prohibited, restricted or impeded on zootechnical grounds.

4         Under Article 5 of Directive 77/504, Member States may require that pure-bred breeding animals of the bovine species and the semen or ova and embryos from such animals shall be accompanied, in intra-Community trade, by a pedigree certificate which complies with a specimen drawn up in accordance with the procedure laid down in Article 8 of that directive, particularly with regard to zootechnical performance.

5         The first, second, fourth and seventh recitals in the preamble to Council Directive 87/328/EEC of 18 June 1987 on the acceptance for breeding purposes of pure-bred breeding animals of the bovine species (OJ 1987 L 167, p. 54), state:

-Whereas Directive 77/504 ... was intended gradually to liberalise intra-Community trade in pure-bred breeding animals of...

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