CELEX: 62003CJ0511
Human and animal health
Protection against bovine spongiform encephalopathy (mad cow disease)
Feeding of ruminants with proteins derived from species other than ruminants
Liability of a Member State for damage caused to individuals by breaches of Community law for which it may be held responsible
Applicable law
Obligation to bring an action against the Commission for failure to act

1       The reference for a preliminary ruling relates essentially to the interpretation of Community law concerning the liability
of a Member State arising from the fact that it refrained from bringing an action against the Commission of the European Communities
before the Court of Justice of the European Communities.
2       The questions referred have arisen in the course of a dispute between the Netherlands State and Ten Kate Holding Musselkanaal
BV, Ten Kate Europrodukten BV and Ten Kate Produktie Maatschappij BV (‘Ten Kate and Others’), which are companies producing
proteins used in the manufacture of milk substitute for calves and obtained through the processing of pig fat.  The action
seeks to have liability imposed on the Netherlands State in respect of the harm suffered by Ten Kate and Others by reason
of the fact that it was impossible for them to market those proteins.

Legal context

Community legislation
3       The Commission adopted Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to bovine spongiform
encephalopathy and the feeding of mammalian derived protein (OJ 1994 L 172, p. 23) as a step in its fight against that disease
(hereinafter referred to as ‘BSE’).  Article 1 of that decision provides:
‘1.      Within 30 days of notification of the present Decision, Member States shall prohibit the feeding of protein derived from mammalian
tissues to ruminant species.
2.      However, Member States which enforce a system that makes it possible to distinguish between animal protein from ruminant and
non-ruminant species shall be authorised by the Commission, under the procedure provided for by Article 17 of Directive 90/425/EEC,
to permit the feeding of protein from species other than ruminants to ruminants.’
4       Article 17 of Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-
Community trade in certain live animals and products with a view to the completion of the internal market (OJ 1990 L 224,
p. 29) provides:
‘Where reference is made to the procedure provided for in this Article, the Standing Veterinary Committee set up by Decision
68/361/EEC shall take decisions in accordance with the rules established in Article 17 of Directive 89/662/EEC.’
5       Article 17 of  Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with
a view to the completion of the internal market (OJ 1989 L 395, p. 13), as amended by corrigendum (OJ 1990 L 151, p. 40),
provides as follows:
‘1.      Where the procedure laid down in this Article is to be used, matters shall without delay be referred by the Chairman, either
on his own initiative or at the request of a Member State, to the Standing Veterinary Committee (hereinafter called the “Committee”)
set up by Decision 68/361/EEC.
2.      The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall
deliver its opinion on the draft within two days.  The opinion shall be delivered by the majority laid down in Article 148(2)
of the Treaty [now Article 205(2) EC] in the case of decisions which the Council is required to adopt on a proposal from the
Commission.  The votes of the representatives of the Member States within the Committee shall be weighted in the manner set
out in that Article.  The Chairman shall not vote.
3.      The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the Committee.
4.      If the measures envisaged are not in accordance with the opinion of the 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.
If, on the expiry of a period of 15 days from the date of referral to the Council, the Council has not acted, the Commission
shall adopt the proposed measures, save where the Council has decided against the said measures by a simple majority.’
6       In its judgment, the Hoge Raad cites the original version of the text of Article 17, prior to the corrigendum made in 1990.
The original version of Article 17(2) provided as follows: ‘The Committee shall deliver its opinion on the draft within a
time-limit which the Chairman may lay down according to the urgency of the matter’.
7       Commission Decision 96/449/EC of 18 July 1996 on the approval of alternative heat treatment systems for processing animal
waste with a view to the inactivation of spongiform encephalopathy agents (OJ 1996 L 184, p. 43) prohibited the processing
of mammalian animal waste with the exception of processing carried out in accordance with a specified process, in particular
heat treatment.  In order to allow undertakings to adapt or replace equipment, the date for the entry into force of Decision
96/449 was fixed for 1 April 1997.

National legislation
8       The judgment making the reference states that, for the purpose of obtaining the authorisation of the Commission provided for
under Article 1(2) of Decision 94/381, and after consultation between the traders concerned and the competent authorities,
the inter-professional public-law Product Board for Livestock Feed (Productschap voor veevoeder) (‘the Productschap’) established,
in a ‘protein separation’ protocol annexed to the 1994 Order regulating the incorporation of animal products into animal feeds
of 9 November 1994 (Verordening Vvr regeling verwerking dierlijke produkten in diervoeders 1994) (‘the 1994 Order’), a production
and control system under which proteins from ruminant species could be distinguished from those of non-ruminant species, such
as pigs.
9       By letter of 29 November 1994, the Netherlands Government sought authorisation from the Commission, pursuant to the procedure
under Article 17 of Directive 90/425, in accordance with Decision 94/381, to apply the protein separation protocol.
10     Pending receipt of authorisation from the Commission, the competent Minister did not approve the 1994 Order.  Ten Kate adapted
its production process to comply with the protein separation protocol.  The National Meat and Livestock Inspectorate (Rijksdienst
voor de keuring van Vee en Vlees) (‘the RVV’) authorised it to carry out its activity in that manner.
11     By letter of 18 December 1995, the Netherlands Government urged the Commission to initiate the authorisation procedure.  It
renewed that request by letter of 27 June 1997, in which it stressed the importance of giving a definitive answer in order
to enable the Netherlands to provide undertakings with clear replies in that connection.
12     Following the adoption of Decision 96/449, the Netherlands legislation was amended by the Regulation of 25 March 1997 on heat
treatment systems and end products (Regeling warmtebehandelingssystemen en eindprodukten,
Staatscourant
1997, No 61), which entered into force on 30 July 1997.  In view of the significant investments necessitated by the heat treatment
provided for under the new legislation, and in view of the fact that there was not yet any indication that Commission authorisation
would be granted pursuant to Decision 94/381, Ten Kate suspended its production of proteins derived from pig fat.
13     By letter of 9 March 1998, the Minister requested the Productschap to bring the 1994 Order into line with Decision 94/381
in view of the fact that the European Community authorities were not expected to take a decision in the short term on the
protein separation protocol.  On 30 June 1998 the Chairman of the Productschap adopted a new decree prohibiting the manufacture
of meat-and-bone meal in accordance with the protocol.
14     On 22 February 1999 the State Secretary for Agriculture, Nature Management and Fisheries adopted the Regulation banning meat-and-bone
meal in animal feedstuffs (Regeling verbod diermelen in diervoeders,
Staatscourant
1999, No 37), which came into force on 1 March 1999.

The dispute in the main proceedings and the questions referred for preliminary ruling
15     On 24 February 1998 Ten Kate and Others brought an action before the Rechtbank te ’s-Gravenhage (District Court, The Hague)
in which they sought an order requiring the Netherlands State to compensate them for the harm which they had suffered by reason
of the fact that they were no longer manufacturing proteins derived from pig fat since 30 July 1997 and that the stocks established
prior to 30 July 1997 could no longer be sold after that date.  In support of this action, they argued that the State erred
in regard to the measures which had to be taken in order to ensure that the Commission would grant the authorisation requested.
They submitted in particular that the State ought to have brought proceedings against the Commission under Article 175 of
the EC Treaty (now Article 232 EC) on grounds of failure to act.
16     The first instance court dismissed the application.  The Gerechtshof te ’s‑Gravenhage (Regional Court of Appeal, The Hague)
allowed the appeal brought against that decision.
17     It is common ground among the parties to the main proceedings that Ten Kate and Others were unable themselves to bring an
action against the Commission for failure to act as they were not individually concerned.  Moreover, an action for compensation
under Article 215 of the EC Treaty (now Article 288 EC) would not have enabled Ten Kate and others to continue their production
activity.
18     The Hoge Raad der Nederlanden (Supreme Court of the Netherlands) is unsure as to the degree of latitude which a State has
in deciding whether or not to bring an action for failure to act.  It notes that, in circumstances touching on policy in regard
to international relations, the State enjoys a broad discretion.  The Hoge Raad takes the view that, in order to assess State
liability, it is first of all necessary to determine whether the rules of Netherlands law or those of Community law fall to
be applied.  Support for the application of Community law rules may be found in the fact that a decision based on rules of
national law could give rise to legal inequality as between citizens in different Member States in situations in which the
matter at issue concerns precisely the rights and claims of the Member States – and indirectly those of their citizens – vis-à-vis
the authorities of the European Community.
19     The Hoge Raad is also unsure as to whether the Commission enjoys an exclusive right of initiative to submit draft measures
for adoption to the Standing Veterinary Committee under the procedure set out in Article 17 of Directive 90/425 in conjunction
with Article 17 of Directive 89/662.  The existence of such a right would indeed mean that the Commission could not be required
to act and that an action for failure to act could not be successful.
20     In those circumstances, the Hoge Raad der Nederlanden decided to stay the proceedings and to refer the following questions
to the Court for a preliminary ruling:
‘1.       Must the question whether, in a case such as this, the State has an obligation towards a citizen who has an interest in it,
such as Ten Kate, to make use of the legal remedies available to it under Article 175 of the EC Treaty … or Article 173 of
the EC Treaty (now Article 230 EC) and, in the event of failure to comply with such an obligation, to pay compensation for
the damage sustained as a consequence by the citizen concerned, be answered by reference to rules of Netherlands national
law or by reference to rules of Community law?
2.       If Question 1 must be answered wholly or partly by reference to rules of Community law:
(a)      Are there circumstances in which Community law can entail an obligation and liability as referred to in that question?
(b)      If the answer to Question 2(a) is in the affirmative, which rules of Community law must be used as the criterion when answering
Question 1 in a specific case such as this?
3.      Must Article 1(2) of Decision 94/381/EC, read as far as necessary in conjunction with the provisions of Article 17 of Directive
90/425/EEC and Article 17 of Directive 89/662/EEC, be interpreted as giving rise to an obligation for the Commission or the
Council to grant an authorisation as referred to therein if the system which the requesting Member State applies or intends
to apply is in fact suitable for distinguishing between protein from ruminant and non-ruminant species?
4.      To what extent does the answer to Question 3 entail a restriction of the State’s right, or of its obligation referred to in
Question 1, to challenge a failure to grant an authorisation such as that at issue in this case under Article 175 of the EC
Treaty …, or to challenge a refusal to grant such an authorisation under Article 173 of the EC Treaty …?’
21     The Hoge Raad points out that Question 3 is relevant whether or not Question 1 is to be answered according to Netherlands
national law or according to Community law, in the latter case unless the answer to Question 2(a) is in the negative. Question
4, it states, is relevant only in the light of an answer to Question 2(b).

The questions referred for preliminary ruling

The first two questions
22     By the first two questions, which it is appropriate to examine together, the Hoge Raad seeks essentially to ascertain which
law is applicable for the purpose of determining whether a Member State is under an obligation towards one of its citizens
to bring an action for annulment under Article 230 EC or an action under Article 232 EC for failure to act, and whether that
Member State may incur liability by reason of not having done so.  The Hoge Raad also asks whether Community law imposes an
obligation of that kind and whether it may give rise to such liability.
23     It should be noted that, in accordance with Article 5 EC, the Community is required to act within the limits of the powers
conferred upon it by the Treaty and of the objectives assigned to it therein.
24     Furthermore, Article 234 EC provides that the Court of Justice has jurisdiction to give preliminary rulings on the interpretation
of the EC Treaty, of acts of the institutions of the Community and of the ECB, and of the statutes of bodies established by
an act of the Council, where those statutes so provide.
25     It follows that the Court of Justice does not have jurisdiction to interpret the internal law of a Member State (order in
Case C-307/95
Max Mara
[1995] ECR I‑5083, paragraph 5; judgment in Case C-58/98
Corsten
[2000] ECR I-7919, paragraph 24; and order in Case C-391/00
Colapietro
, not published in the ECR, paragraphs 8 and 9).
26     The Court cannot therefore reply to the questions whether, under the rules of Netherlands law, the State may be under an obligation
towards one of its citizens to bring an action for annulment or an action for failure to act and whether it may incur liability
by reason of not having done so.
27     So far as the interpretation of Community law is concerned, it must first of all be stated that neither the wording of Article
230 EC nor that of Article 232 EC imposes any obligation on a Member State to bring an action.  On the contrary, Article 232 EC
indicates that Member States ‘may’ bring an action before the Court of Justice in order to have the latter establish an infringement
of the Treaty consisting in the failure by one of the institutions referred to in the first paragraph of Article 232 EC to
act.
28     Nor can any such obligation be inferred from Article 10 EC, on which the respondents in the main proceedings rely in support
of their contention.  The principle to which Article 10 EC gives expression imposes on Member States and on the institutions
mutual duties of sincere cooperation (Case 230/81
Luxembourg
v
Parliament
[1983] ECR 255, paragraph 37; order in Case C-2/88 Imm.
Zwartveld and Others
[1990] ECR I-3365, paragraph 17), but it cannot be construed as meaning that a Member State may be obliged, vis-à-vis one
of its citizens, to bring an action for annulment or an action in respect of a failure to act.
29     By contrast, taking into consideration the conditions set out in the Treaties governing admissibility of actions and the right
to effective judicial protection, the Court has interpreted that principle of sincere cooperation as meaning that national
courts are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights
of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other
national measure relative to the application to them of a Community act of general application, by pleading the invalidity
of such an act (Case C-50/00 P
Unión de Pequeños Agricultores
v
Council
[2002] ECR I-6677, paragraph 42).  The same holds true where a natural or legal person invokes a failure to take a decision,
within the meaning of Article 232 EC, which it considers to be contrary to Community law.
30     While Community law does not impose any obligation on a Member State to bring an action for annulment or failure to act for
the benefit of one of its citizens, it is none the less necessary, in order to provide the Hoge Raad with a useful answer,
to ascertain whether Community law precludes a national law which contains such an obligation or which provides that liability
may be imposed on a Member State for not having acted in that regard.
31     It is in this connection not apparent how Community law could be infringed if national law contained such an obligation or
provided that the Member State would be liable in such a case.  A Member State could, however, breach the obligation of sincere
cooperation laid down in Article 10 EC if it did not retain a degree of discretion as to the appropriateness of bringing an
action, thereby giving rise to a risk that the Community Courts might be inundated with actions, some of which would be patently
unfounded, thus jeopardising the proper functioning of the Court of Justice.
32     In the light of these factors, the answer to the first two questions must be that Community law does not impose any obligation
on a Member State to bring an action for annulment or failure to act for the benefit of one of its citizens.  Community law
does not, however, in principle preclude national law from containing such an obligation or providing for liability to be
imposed on the Member State for not having acted in such a way.

The third question
33     By its third question, the Hoge Raad asks whether Article 1(2) of Decision 94/381, read in conjunction, so far as is necessary,
with Article 17 of Directive 90/425 and Article 17 of Directive 89/662, is to be construed as giving rise to an obligation
on the part of the Commission or the Council to grant the authorisation in question if the system which the requesting Member
State applies or will apply is indeed appropriate for distinguishing between protein of ruminant and that of non-ruminant
species.
Observations submitted to the Court
34     Ten Kate and Others lay stress on the term ‘shall be authorised’ in Article 1(2) of Decision 94/381, which in their view leaves
no scope for discretion on the Commission’s part.  This interpretation, they contend, is reinforced by the mandatory terms
of the sixth recital in the preamble to that decision, which provides that ‘where a Member State can enforce a system allowing
it to distinguish between protein from ruminants and that of non-ruminant species it shall be authorised by the Commission
…’.
35     By contrast, the Netherlands Government and the Commission take the view that, having regard to the circumstances of the case,
the Commission was not obliged to grant such authorisation.  They point out that, contrary to what the Hoge Raad suggests,
the matter was put before the Standing Veterinary Committee during its meeting on 7 and 8 March 1995.  The Committee did not,
however, adopt a position.  Nor did the Commission submit a proposal to the Council.  They set out the developments in the
understanding of BSE, which, they argue, justify the fact that no decision was taken. The Netherlands Government also cites
the judgments in Case C-151/98 P
Pharos
v
Commission
[1999] ECR I‑8157, paragraph 25, and in Case C-352/98 P
Bergaderm and Goupil
v
Commission
[2000] ECR I‑5291, paragraph 66, and contends that, while ordering the Commission to act quickly, the Community legislature
left the Commission with some degree of latitude and that the expression ‘shall, without delay, submit to the Council’ depends
on the specific circumstances.
36     The Commission also points out that, even before it received the application of 29 November 1994 from the Netherlands seeking
authorisation, it had, by letter of 11 November 1994, put a number of questions to the Netherlands authorities concerning
the implementation of Decision 94/381.  It repeated those questions in letters dated 21 March and 20 June 1995, but did not
receive any satisfactory reply.  Moreover, following the announcement on 20 March 1996 of the possible existence of a link
between BSE and Creutzfeldt-Jacob disease by the United Kingdom’s Spongiform Encephalopathy Advisory Committee, an inspection
programme was implemented in the Member States.  An inspection was conducted in the Netherlands from 9 to 13 December 1996.
This established that the controls relating to the application of Decision 94/381 were inadequate in that Member State, in
particular on the ground that they did not include laboratory tests on the finished products.  On 7 July 1997 the Commission,
by the dispatch of a letter of formal notice, instituted Treaty-infringement proceedings against the Netherlands.  Those proceedings
were terminated after an exchange of information which continued into 1998 and 1999.
Reply of the Court
37     Decision 94/381, which prohibits the use of protein derived from mammalian tissue in the feed of ruminant species, is a measure
adopted in the context of the fight against BSE, which was considered at that time to be a disease affecting only animals.
Article 1(2) of Decision 94/381 provides that, by way of exception to that prohibition, Member States which enforce a system
making it possible to distinguish between animal protein from ruminant and from non-ruminant species are authorised by the
Commission, under the procedure provided for by Article 17 of Directive 90/425, which refers to Article 17 of Directive 89/662,
to permit ruminants to be fed with protein from species other than ruminants.
38     Article 17 of Directive 89/662 provides for referral to the Standing Veterinary Committee, the submission by the Commission
of a draft of measures to be taken, the opinion of the Committee, the decision of the Commission, when it is in accordance
with the opinion, or referral of the matter by the Commission to the Council in the case where the measures envisaged are
not in accordance with the opinion of the Committee, or where no opinion has been delivered.
39     It appears from the observations of the Netherlands Government and the Commission, and from the documents submitted to the
Court, that, contrary to what the Hoge Raad assumed, the requests for authorisation were referred to the Standing Veterinary
Committee, which discussed them during its meeting of 7 and 8 March 1995 but did not take a position on them.
40     Regard being had to that fact, it is necessary to recast the question as seeking to ascertain whether, if the Standing Veterinary
Committee has not taken a position, the Commission is none the less under an obligation to submit to the Council a proposal
relating to the measures to be taken.
41     The Court has in this connection already ruled, with regard to a legislative procedure comparable to that provided for by
Decision 94/381, that the Commission must be given a discretion which is sufficient to allow it to determine, on a fully informed
basis, the measures that are necessary and appropriate for the protection of public health (Case C-198/03 P
Commission
v
CEVA Santé animale
[2005] ECR I‑0000, paragraph 80).
42     If, as in the facts of the main proceedings in the present case, the material available to the Commission does not make it
possible to establish that the controls carried out within the framework of a system allowing a distinction to be drawn between
animal protein of ruminant origin and that of non-ruminant origin, submitted for its appraisal with a view to authorisation
by a Member State, offer adequate guarantees in regard to the protection of public health, and if the matter has been referred
to the Standing Veterinary Committee at the request of a Member State but that Committee has not taken a position, particularly
by reason of new information altering the perception of the risk to public health, it must be held that the Commission is
not obliged to submit to the Council a proposal relating to the measures to be taken (see, in this regard,
Pharos
, cited above, paragraphs 23 and 24).  The Council can take a decision only when a proposal has been referred to it by the
Commission.
43     The answer to the third question must therefore be that Article 1(2) of Decision 94/381, read in conjunction with Article
17 of Directive 90/425 and with Article 17 of Directive 89/662, must be construed as meaning that, if the material available
to the Commission does not enable it to establish that the controls carried out within the framework of a system which makes
it possible to distinguish between animal protein of ruminant origin and that of non-ruminant origin, submitted for its appraisal
by a Member State with a view to obtaining authorisation, offer adequate guarantees in regard to the protection of public
health, and if the matter has been referred to the Standing Veterinary Committee at the request of a Member State but that
Committee has not taken a position, particularly by reason of new information altering the perception of the risk to public
health, the Commission is not obliged to submit to the Council a proposal relating to the measures to be taken.

The fourth question
44     By its fourth question, the Hoge Raad asks to what extent the reply to the third question entails a restriction of the right
or the obligation of the State referred to in the first question to challenge a refusal to grant authorisation such as that
in the present case or to challenge a failure to grant such authorisation.
45     In the light of the answers to the first three questions, it is unnecessary to reply to the fourth question in so far as the
interpretation of Community law is concerned.  Furthermore, as has been pointed out in paragraph 25 of this judgment, the
Court does not have jurisdiction to reply to that question in so far as it concerns the interpretation of national law.

Costs
46     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court.  Costs incurred in submitting observations to the Court, other than the
costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
1.
Community law does not impose any obligation on a Member State to bring an action for annulment, pursuant to Article 230 EC,
or for failure to act, pursuant to Article 232 EC, for the benefit of one of its citizens.  Community law does not, however,
in principle preclude national law from containing such an obligation or providing for liability to be imposed on the Member
State for not having acted in such a way.
2.
Article 1(2) of Commission Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to bovine
spongiform encephalopathy and the feeding of mammalian derived protein, read in conjunction with Article 17 of Council Directive
90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live
animals and products with a view to the completion of the internal market  and with Article 17 of Council Directive 89/662/EEC
of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market,
must be construed as meaning that, if the material available to the Commission does not enable it to establish that the controls
carried out within the framework of a system which makes it possible to distinguish between animal protein of ruminant origin
and that of non-ruminant origin, submitted for its appraisal by a Member State with a view to obtaining authorisation, offer
adequate guarantees in regard to the protection of public health, and if the matter has been referred to the Standing Veterinary
Committee at the request of a Member State but that Committee has not taken a position, particularly by reason of new information
altering the perception of the risk to public health, the Commission is not obliged to submit to the Council a proposal relating
to the measures to be taken.
[Signatures]
*
Language of the case: Dutch.