CELEX: 61996CJ0147
Action for annulment
Commission's refusal to include an overseas country in the provisional list of third countries established by Article 23 of Directive 92/46/EEC
Actionable measure

Grounds
1 By application lodged at the Court Registry on 3 May 1996, the Kingdom of the Netherlands brought an application pursuant to the first paragraph of Article 173 of the EC Treaty (now, after amendment, the first paragraph of Article 230 EC) for annulment of the Commission's decision communicated in its letter of 26 February 1996 to the Prime Minister of the Netherlands Antilles (hereinafter the letter at issue) refusing to include the Netherlands Antilles in the provisional list of third countries drawn up in accordance with Article 23(3)(a) of Council Directive 92/46/EEC of 16 June 1992 laying down the health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products (OJ 1992 L 268, p. 1, hereinafter the Directive).
The applicable legislation
2 Chapter II of the Directive contains certain rules which apply to Community produce intended for use in the manufacture of milk-based products or heat-treated drinking milk. Article 3(1) of the Directive lays down the requirements that must be satisfied in the case of raw milk used for the manufacture of such products. In particular, Article 3(1)(a) provides that Member States must ensure that raw milk is not used for the manufacture of milk-based products or heat-treated drinking milk unless it comes from animals and holdings which are checked at regular intervals by the competent authorities.
3 Chapter III of the Directive contains provisions designed to ensure that, before being placed on the Community market, imports of raw milk, heat-treated milk and milk-based products from third countries meet the same health protection requirements.
4 To that end, Article 22 of the Directive, which appears in Chapter III, provides that the conditions applicable to imports from third countries of raw milk, heat-treated milk and milk-based products covered by this Directive must be at least equivalent to those laid down in Chapter II for Community production.
5 As regards the importation of dairy products from third countries referred to in Article 22, Article 23 provides as follows:
1. For the purposes of uniform application of Article 22, the provisions of the following paragraphs shall apply.
2. In order to be imported into the Community, milk or milk-based products must:
(a) come from a third country on the list to be drawn up in accordance with paragraph 3(a);
...
3. The following shall be established in accordance with the procedure laid down in Article 31:
(a) a provisional list of third countries or parts of third countries able to provide Member States and the Commission with guarantees equivalent to those provided for in Chapter II and a list of the establishments for which they are able to give these guarantees.
This provisional list shall be compiled from the lists of establishments approved and inspected by the competent authorities, once the Commission has checked that these establishments comply with the principles and general rules laid down in this Directive;
(b) updates of that list in the light of the checks provided for in paragraph 4;
...
4. Experts from the Commission and the Member States shall carry out on-the-spot inspections to verify whether the guarantees given by the third country regarding the conditions of production and placing on the market can be considered equivalent to those applied in the Community.
...
6 Article 31 of the Directive lays down a procedure for the referral of matters to the Standing Veterinary Committee (hereinafter the veterinary committee) set up under Council Decision 68/361/EEC of 15 October 1968 (OJ, English Special Edition 1968 (II), p. 473). Article 31(2) and (3) provides as follows:
2. The representatives of the Commission ... shall submit to the [veterinary committee] a draft of the measures to be taken. The [veterinary committee] shall deliver its opinion on such measures within a time-limit which the Chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of decisions which the Council is required to adopt on a proposal from the Commission. ...
3. (a) The Commission shall adopt the measures envisaged and implement them immediately if they are in accordance with the opinion of the [veterinary committee].
(b) Where the measures envisaged are not in accordance with the opinion of the [veterinary committee], or if no opinion is delivered, the Commission shall without delay submit to the Council a proposal relating to the measures to be taken. The Council shall act by a qualified majority.
...
7 The provisional list referred to in Article 23(3)(a) of the Directive (the provisional list) was established by Commission Decision 94/70/EC of 31 January 1994 drawing up a provisional list of third countries from which Member States authorise imports of raw milk, heat-treated milk and milk-based products (OJ 1994 L 36, p. 5). Decision 94/70/EC was revoked and replaced by Commission Decision 95/340/EC of 27 July 1995 (OJ 1995 L 200, p. 38). It is common ground that the Netherlands Antilles, which enjoy a special relationship with the Netherlands and are one of the overseas countries and territories (OCTs), were not included in either version of the provisional list.
8 The regime governing OCTs is laid down in Part Four of the EC Treaty entitled Association of the Overseas Countries and Territories. Included within Part Four are Articles 131 (now, after amendment, Article 182 EC), 132 (now Article 183 EC), 133 (now, after amendment, Article 184 EC), 134 and 135 (now Articles 185 EC and 186 EC) and 136 of the EC Treaty (now, after amendment, Article 187 EC).
9 On the basis of the second paragraph of Article 136 of the Treaty, the Council adopted a series of decisions concerning the association of the OCTs with the European Economic Community. Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community (OJ 1991 L 263, p. 1, hereinafter the Decision) was applicable for a period of 10 years from 1 March 1990.
10 Within Part Three of the Decision entitled The Instruments of EEC-OCT Cooperation, Title I deals with trade cooperation. General trade arrangements are laid down in Chapter 1 of Title I, and in particular Articles 101 to 103.
11 Article 102 provides that the Community may not apply to imports originating in the OCTs any quantitative restrictions or other measures having equivalent effect.
12 Furthermore, Article 103 provides as follows:
1. Article 102 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality or public policy, the protection of health and life of humans, animals and plants ...
2. Such prohibitions or restrictions shall in no case constitute a means of arbitrary discrimination or a disguised restriction of trade generally.
...
The application
13 In its application, the Netherlands Government points out that, unless and until the Netherlands Antilles are included in the provisional list, dairy products from that country cannot be imported into the Community. It submits that, for that reason, it entered into informal discussions with the Commission and that it subsequently sought a partnership meeting within the meaning of the second paragraph of Article 234 of the Decision. That partnership is in substance a forum for consultation between the Commission, the Member State responsible for the OCT and the local authorities of the OCT. According to the Netherlands Government, during the partnership meeting, which was held on 27 April 1995, the Netherlands Antilles asked the Commission to arrange a veterinary inspection in order to evaluate health and hygiene conditions in the Netherlands Antilles.
14 Subsequently, by letter of 7 July 1995, the Netherlands Antilles Government formally called upon the Commission to include the Netherlands Antilles in the provisional list.
15 Following an exchange of letters between the Netherlands Antilles Government and the Commission, the veterinary inspection requested by the former was carried out in late November 1995. An inspection report was drawn up and the Commission sent this under cover of its letter of 29 January 1996 to the Netherlands Antilles Government for comment.
16 Following receipt of the inspection report, on 7 February 1996 the Netherlands Antilles adopted a ministerial order of general application (ministeriële beschikking, PB, 1996 No 34, hereinafter the ministerial order) pursuant to Article 6 of the Landsverordening In- en Uitvoer (PB, 1968 No 42). As the Netherlands Government states, that order was notified to the Commission the same day by letter of the Prime Minister of the Netherlands Antilles. The Netherlands Government also submits that the ministerial order prohibits the exportation of dairy products from the Netherlands Antilles to the customs territory of the Community without a licence from the Minister for Public Health and Hygiene. The ministerial order provides that a licence is to be granted only where production is in conformity with the requirements laid down in Chapter II of the Directive and in establishments equivalent to those described in that chapter in connection with Community production. Furthermore, licences are reserved to products made from ingredients coming from the Community or from a third country included in the provisional list. Moreover, a health and hygiene certificate issued by the health department of the Netherlands Antilles must be attached to applications for a licence. The ministerial order entered into force immediately.
17 The veterinary committee referred to the inspection report at its meetings on 13 and 14 February 1996, at which the Commission's representative also mentioned the ministerial decision. However, it is common ground that, during those meetings, the veterinary committee failed to express any opinion on the request for inclusion of the Netherlands Antilles in the provisional list.
18 On being informed of the ministerial order, the Commission sent the Prime Minister of the Netherlands Antilles the letter at issue, signed by the Director-General for Agriculture. That letter was worded as follows:
Re: Report of a veterinary mission to the Dutch Antilles as regards possible authorisation for imports of milk products into the Communities
Thank you for your letter dated 7 February 1996 on the above subject.
... I should like to provide you with the following comments:
Concerning your request to delete from the report the findings in respect of animal health and public health ... I would like to emphasise the following:
...
Consequently, there is no reason why these aspects of the findings of the mission should be deleted. Your letter having been received too late, the whole report was presented to the Member States ... during the Standing Veterinary Committee of 14 February 1996.
It was noted that the authorities have promulgated [an order] setting up health ... requirements for ... milk products ... Unfortunately, for an unknown reason, no copy was included in the letter despite it being stated that it was enclosed ... It would be appreciated [if] a copy [could] be sent to the Commission.
It was none the less considered that it was necessary to provide details of the means which could be used to ensure that the abovementioned [order] is fully implemented and that there is no risk ... of products not fulfilling the European requirements [being used] in the approved establishments ...
...
Therefore, it is not appropriate, at [this] stage, to ... [include] the Dutch Antilles [in the provisional list] unless additional appropriate guarantees [can] be provided by the authorities.
...
I look forward to your reply.
...
19 The Netherlands Government's action is directed against that letter, which it regards as constituting a decision of the Commission, in that it amounts to a refusal to include the Netherlands Antilles in the provisional list.
20 The Netherlands Government puts forward seven pleas in law in support of its action for annulment: infringement of Articles 3(1)(a) and 31 of the Directive and, in the alternative, Article 190 of the EC Treaty (now Article 253 EC), breach of the audi alteram partem rule and the principle that Community acts must be prepared diligently, infringement of Article 2(2) of the Agreement on the Application of Sanitary and Phytosanitary Measures, which forms Annex 1A to the Agreement Instituting the World Trade Organisation, breach of the principle of proportionality and infringement of Article 103 of the Decision.
21 The French Republic and the Council applied for leave to intervene in support of the form of order sought by the Commission and were granted leave by orders of the President of the Court of Justice of 14 and 19 November 1996 respectively.
Admissibility
22 By separate document lodged at the Court Registry on 5 July 1996, the Commission raised an objection of inadmissibility under Article 91(1) of the Rules of Procedure on the ground that the letter at issue cannot in any way be regarded as stating a definitive position adopted by the Commission, and is merely a preparatory step in the procedure leading to the adoption of a decision. As such, in accordance with the settled case-law of the Court of Justice, it does not produce legal effects and is thus not open to challenge under Article 173 of the Treaty.
23 The Netherlands Government on the other hand maintains that the letter at issue amounts to a decision producing legal effects and is thus an actionable measure adversely affecting the interests of the Netherlands Antilles. First, it constitutes a refusal to include the Netherlands Antilles in the provisional list. Secondly, it prevents the export of dairy products to the Member States of the Community, even though the inspection report shows that dairy products are treated in the Netherlands Antilles in accordance with the health rules laid down by the Directive.
24 The French Republic and the Council, as interveners, have made no submissions regarding the admissibility of the action.
25 As regards the merits of the Commission's objection of inadmissibility, it should be observed at the outset that the Court has consistently held that only a measure whose legal effects are binding on the applicant and are capable of affecting his interests is an act or decision which may be the subject of an action for annulment under Article 173 of the Treaty (see, inter alia, the orders in Cases C-66/91 and C-66/91 R Emerald Meats v Commission [1991] ECR I-1143, paragraph 26, and in Case C-50/90 Sunzest v Commission [1991] ECR I-2917, paragraph 12, and the judgment in Case C-308/95 Netherlands v Commission [1999] ECR I-6513, paragraph 26).
26 It is also settled case-law that, in the case of acts adopted by a procedure involving several stages, and particularly where they are the culmination of an internal procedure, it is in principle only those measures which definitively determine the position of the Commission or the Council upon the conclusion of that procedure which are open to challenge and not intermediate measures whose purpose is to prepare for the final decision (see Case 60/81 IBM v Commission ECR 2639, paragraph 10). Furthermore, according to the same case-law, an act which is neither capable of producing nor intended to produce any legal effects cannot form the basis of an action for annulment (see, inter alia, Case 133/79 Sucrimex and Westzucker v Commission [1980] ECR 1299, the order in Case 151/88 Italy v Commission [1989] ECR 1255, paragraph 22, and Netherlands v Commission, cited above, paragraph 27).
27 In order to ascertain whether or not a measure which has been challenged produces such effects it is necessary to look to its substance (see IBM v Commission, cited above, paragraph 9).
28 In the present case, first of all, the Commission began the letter at issue by answering the Netherlands Antilles' request for certain findings recorded in the inspection report to be deleted. After commenting upon that request, the author of the letter concluded that there was no reason why the contested parts of the report should be deleted, and informed the Netherlands Antilles Government that, because its letter of 7 February 1996 had not arrived in time, the inspection report had already been presented to the veterinary committee at its meetings on 13 and 14 February 1996.
29 That part of the Commission's letter is not in issue in the present proceedings, which simply concern the Commission's refusal to include the Netherlands Antilles in the provisional list.
30 Next, in the letter at issue the Commission states, without being contradicted on the point by the Netherlands Government, that the ministerial order (under which, according to the latter, a licence must be obtained from the Minister for Public Health and Hygiene if dairy products are to be exported to the Community, failing which any such export is prohibited) was not annexed to the Netherlands Antilles Government's letter to the Commission of 7 February 1996. As the Commission states, when it sent the letter at issue it was unable to evaluate the content of the ministerial order.
31 That finding is corroborated by three further aspects of the letter at issue. First, the letter asks for a copy of the ministerial order, together with information on its implementation. Secondly, there is the proviso in the Commission's statement that it [was] not appropriate, at that stage to [include] the Dutch Antilles unless additional appropriate guarantees could be provided by the authorities. Lastly, the closing words clearly indicate that the letter's author was awaiting a reply. The Commission states that, in those circumstances, it was unable to take a decision, with full knowledge of all the relevant facts and circumstances, on the inclusion of the Netherlands Antilles in the provisional list.
32 In this connection, it should be added, as indeed the Netherlands Government admits, both in its observations upon the objection of inadmissibility and in its response to a written question put to it by the Court, that the Netherlands Antilles Government only informed the Commission of the manner in which the ministerial order was implemented by letter of 20 May 1996, that is to say, after the date of the letter at issue in the present proceedings.
33 The Netherlands Government also maintains that the fact that the veterinary committee referred at its meetings on 13 and 14 February 1996 to the inspection report indicates that the Commission felt that it was in a position to reach a definitive view and adopt a decision accordingly. According to the Netherlands Government, it is clear from the Directive that the veterinary committee may only be consulted once the Commission has defined its position on the question placed before the committee.
34 On this point, suffice it to say that the inspection report was simply referred to at the veterinary committee's meetings, and that this was at a stage prior to the adoption of any decision. The parties are agreed that, when the report was presented to the veterinary committee, neither did the representative of the Commission place before the committee a draft of the measures to be adopted, pursuant to Article 31(2) of the Directive, nor did the committee express any qualified majority opinion, pursuant to that same provision. The absence of any draft of the measures to be adopted and of any opinion of the veterinary committee indicates that, when the inspection report was presented to the committee, the Commission had not yet reached a definitive view.
35 That being the case, it must be held that the letter at issue amounts to no more than a preparatory step and, accordingly, is neither capable of producing legal effects nor intended to produce such effects. It does not, therefore, constitute a definitive decision challengeable by way of an action for annulment. It is only after the veterinary committee has given its opinion that a definitive decision can be adopted.
36 Given that it produced no binding legal effects as regards the inclusion of the Netherlands Antilles in the provisional list, the letter at issue cannot constitute a legal measure open to challenge in accordance with the case-law mentioned in paragraphs 25 and 26 of the present judgment.
37 The application must therefore be dismissed as inadmissible.
Decision on costs
Costs
38 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and the Kingdom of the Netherlands has been unsuccessful, the latter must be ordered to pay the costs. Furthermore, in accordance with the first paragraph of Article 69(4) of the Rules of Procedure, Member States and institutions which intervene in proceedings are to bear their own costs.
Operative part
On those grounds,
THE COURT (Fifth Chamber),
hereby:
1. Dismisses the application as inadmissible;
2. Orders the Kingdom of the Netherlands to pay the costs;
3. Orders the French Republic and the Council of the European Union to bear their own costs.