CELEX: 62002CJ0216
Free movement of goods
Intra-Community trade in equidæ
Procedure for the approval or recognition of organisations and associations which maintain or establish stud-books for registered equidæ
Article 2(2) of Decision 92/353/EEC

This reference for a preliminary ruling turns on the interpretation of the first indent of Article 2(2) of Commission Decision
92/353/EEC of 11 June 1992 laying down the criteria for the approval or recognition of organisations and associations which
maintain or establish stud-books for registered equidæ (OJ 1992 L 192, p. 63).
This reference has been made in proceedings between the Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen
(‘Zuchtverband für Ponys’, the Austrian association of breeders of ponies, small horses and special breeds) and the Government
of the Burgenland concerning the decision taken by the latter to recognise in the territory of that Austrian Land the Österreichischer
Shetlandponyzuchtverband (‘the Ö.SZV’), as an organisation of breeders of Shetland Island ponies.  The Ö.SZV has the status
of intervener in the main proceedings.
The legal framework
The relevant provisions of Community law
Council Directive 90/427/EEC of 26 June 1990 on the zootechnical and genealogical conditions governing intra-Community trade
in equidæ (OJ 1990 L 224, p. 55) defines the conditions applicable to intra-Community trade in equidæ, including their sperm,
ova and embryos.  It appears from the second and third recitals in the preamble to that directive that the latter is designed
to lay down at Community level rules on the marketing of equidæ, in order to ensure rational development of equidæ production,
thereby increasing productivity in that sector, which constitutes a source of income for part of the farming population.
According to the fourth recital in the preamble to that directive, satisfactory results in that respect depend largely on
the use of equidæ registered in stud-books maintained by officially approved organisations or associations.  The fifth recital
in the preamble to that directive emphasises that complete liberalisation of trade calls for further harmonisation of the
rules governing entry in those books.
Article 4(2) of Directive 90/427 provides for the Commission to adopt decisions fixing, in particular, the criteria for the
approval or recognition of organisations and associations which maintain or establish stud-books.  Article 4(1) defines the
principles to be taken into account in the adoption of those decisions, which are to be taken following the procedure laid
down in Article 10 of that directive.
That is the context in which the Commission adopted Decision 92/353, which lays down the criteria for the approval or recognition
of organisations and associations which maintain or establish stud-books for registered equidæ.  Under Article 1 of that decision,
in order to be officially approved or recognised, the organisations or associations concerned must submit an application to
the authorities of the Member State in the territory of which their headquarters are situated.
Article 2 of Decision 92/353 provides:
‘1.
The authorities of the Member State concerned must grant official approval or recognition to any organisation or association
which maintains or establishes a stud-book, provided it meets the conditions laid down in the Annex.
2.
However, in a Member State where one or more officially approved or recognised organisations or associations already exist
in respect of a given breed, the authorities of that Member State may refuse to recognise a new organisation or association:
–
if it endangers the preservation of the breed or jeopardises the operation or the improvement or selection programme of an
existing organisation or association, or
–
if equidæ of that breed may be entered or registered in a specific section of a stud-book maintained by an organisation or
association which applies in particular for that section the principles laid down in accordance with point 3(b) of the Annex
by the organisation or association which maintains the stud-book of the origin of that breed.
3.
Member States shall inform the Commission of any official approval or recognition granted, as well as contested refusals.
4.
Where an organisation or association in a Member State is refused official approval or recognition, the reasons for the refusal
must be communicated in writing to the association or organisation.’
In addition, Article 3 of Decision 92/353 provides that where an organisation or association which maintains a stud-book no
longer consistently meets the conditions laid down in the annex to that decision, the authorities of the Member State in question
are to withdraw official approval or recognition from that body.
The relevant provisions of national law
In Austria, both the transposition of Directive 90/427 and the implementation of decisions of the Commission taken on the
basis of that directive fall within the competence of the Länder.
Paragraph 9 of the third section of the Burgenländischen Tierzuchtgesetz (the Law of the Burgenland on the breeding of animals,
‘the Tierzuchtgesetz’) of 2 March 1995 (LGBl 1995/33, in the version in LGBl 2001/32) governs recognition of breeders’ organisations.
That paragraph provides, in particular:
‘(1) The Government of the Land shall be required to recognise a breeders’ organisation where:
1.

its breeding programme is likely to encourage breeding within the meaning of Paragraph 1(2),
2.

the pre-existing population is large enough for the purposes of implementing the breeding programme,
3.
the staff and equipment needed for high-quality breeding are available,
4.
it is certain, especially with regard to staffing, technical and organisational conditions, that
(a)
the breeders’ organisation has its registered office in the Burgenland;
(b)
the breeding animals are identified in a long-lasting manner so that their identity may be established;
c)
the stud-book or -register is kept in the prescribed manner and the holdings make the registrations required;
(d)
in an association, any animal that, having regard to its lineage and quality – including its external appearance –, fulfils
the conditions for registration shall be registered or noted on request and may be registered in the stud-book; animals brought
into the Burgenland shall not be subject to more stringent conditions than animals native to that Land, and
5.
any breeder in the substantive and geographic sphere of activity of a breeders’ association falling within its legal system,
who satisfies the condition as to due exercise of such activity, may be a member of that association.
(2)

The application for recognition shall include the following documents:
…
3.

the breeding programme, showing the purpose and method of breeding, its dimension, and also the kind and quantity of performance
tests carried out and the manner in which they are used;
4.

information concerning the predicted number of animals kept by the farms or breeders taking part in the breeding programme;
5.

in the case of an association of breeders:
a)

documentary evidence concerning the legal basis and stating the association’s substantive and geographical sphere of activity;
b)

the stud-book rules showing the conditions to be fulfilled for entry in the various headings of the stud-book;
…
(3)

Associations of breeders of which the substantive and geographical sphere of activity overlaps in whole or in part that referred
to in Paragraph 9(2)(5)(a) shall be entitled to a hearing in recognition proceedings.
…
5)

If, for a particular breed, there already exists a recognised organisation, or there already exist several recognised organisations,
of breeders, the Government of the Land shall refuse to recognise a new organisation of breeders if doing so would endanger
the preservation of the breed or the breeding programme of an organisation already in existence.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
The Zuchtverband für Ponys has since 14 August 1997 been recognised in the Burgenland, in accordance with the provisions of
the Tierzuchtgesetz.
In 1997 the Ö.SZV too applied to the Government of the Burgenland, the competent authority in that sphere, for recognition
as an organisation of breeders of Shetland ponies.
The Zuchtverband für Ponys stated its views in the course of the administrative proceedings that followed. It argued against
recognition of the Ö.SZV, contending that such recognition would endanger the preservation of the breed, its own operation
as an already existing organisation and its programme of improvement and selection.
By a decision of 30 April 2001 the Ö.SZV was recognised in the Burgenland, pursuant to Paragraph 9 of the Tierzuchtgesetz,
according to a specified breeding programme for a period of 10 years.
The Zuchtverband für Ponys has challenged that decision before the Verwaltungsgerichtshof (Higher Administrative Court). According
to the Government of the Burgenland, however, it does not have standing as a party to the proceedings concerning recognition
of the Ö.SZV or any right to challenge that decision at law.
The Verwaltungsgerichtshof explains that, in order to rule on the admissibility of the action, it must first consider whether
the applicant in the main proceedings has a judicially protected right to ensure that a new organisation of breeders be refused
recognition, if certain conditions are fulfilled.
It states that, if national law alone is applied, the action must be dismissed and it is not possible to consider whether
recognition of the Ö.SZV as an organisation of breeders endangers the preservation of the breed or the breeding programme
of the applicant in the main proceedings.  Indeed, the Verwaltungsgerichtshof has consistently held, apropos of other legislation,
that if a provision confers on a person only the right to be heard in administrative proceedings, the person concerned has
not the status of a party to those administrative proceedings.  Now, in the Austrian law of administrative procedure the status
of a party is the procedural means by which legal claims are set in motion.  The result of denying a person the status of
party to the proceedings is that that person is not entitled to request from the administration a decision to a particular
effect or, subsequently, to challenge before the courts the decision taken by the administration.
The Zuchtverband für Ponys contends that Community law confers on it a judicially protected right both to have it ascertained
whether or not recognition of the Ö.SZV endangers the preservation of the breed or the breeding programme of an already existing
organisation and, if that question receives an affirmative answer, to have that recognition refused by the administrative
authority.  In support of its position it relies on Directive 90/427 and Decision 92/353.
The Verwaltungsgerichtshof does not state that it is impossible for the Zuchtverband für Ponys to rely on Decision 92/353.
It notes, in this regard, that since the judgment in Case 9/70
Grad
[1970] ECR 825, the Court’s established case-law has made it possible for individuals to rely, before national authorities
and courts, on a decision addressed to the Member States, on the same conditions as would apply if a directive were involved.
With regard to the question whether Article 2(2) of Decision 92/353 is sufficiently unconditional and precise in content to
be relied upon directly by an individual, the Verwaltungsgerichtshof makes several observations.
In its view, the word ‘may’ used in that provision could mean that it is for the Member States to decide freely whether to
refuse to recognise a new association if to do so would endanger the preservation of the breed or jeopardise the operation
or the improvement or selection programme of an already existing organisation or association.  In that case, the Zuchtverband
für Ponys is not entitled to rely directly on Decision 92/353.
Nevertheless, according to the Verwaltungsgerichtshof, the freedom of action apparently left to the Member States by the use
of the verb ‘may’ can be obviated by other provisions of Community law.  It notes that in Case C-435/97
WWF and Others
[1999] ECR I-5613, the Court declared that the discretion apparently given to the Member States by Article 4(4) of Council
Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment
was restricted by Article 2(1) of that directive.
Even if it were to be considered that Article 2(2) of Decision 92/353 confers discretion on the Member States, the question
would still arise whether, in the light of the principles of Community law, a Member State can lay down the conditions for
refusal of recognition of new associations without giving associations already in existence a judicially protected right to
have recognition refused.
So far as the hypothesis of endangering the preservation of the breed is concerned, the Verwaltungsgerichtshof doubts that
an already existing organisation may invoke a judicially protected right to have recognition refused.  There is as a matter
of fact no direct link between that ground for refusing recognition and the interests of a pre-existing organisation.
The Verwaltungsgerichtshof also points out that, according to the Court’s case-law, a directive cannot of itself impose obligations
on an individual and cannot therefore be relied upon as such against him (Case C-91/92
Faccini Dori
[1994] ECR I-3325).  On that point, it remarks that Article 2(2) of Decision 92/353 is not confined to conferring an advantage
on already existing organisations, an advantage that they might possibly plead against a Member State.  The provision seems
also to impose a burden on an association of breeders which seeks recognition, since if the conditions laid down in the first
indent of Article 2(2) are satisfied, it will be refused recognition.  None the less, the Verwaltungsgerichtshof considers
that it cannot conclude with certainty whether a ‘burden’ of this kind amounts to ‘an obligation on an individual’ for the
purposes of the Court’s case-law.
In its opinion, the Court’s case-law accepts that a directive may indirectly create obligations for individuals.  In that
context, it refers to the Court’s judgments in Case C-431/92
Commission
v
Germany
[1995] ECR I-2189, known as ‘Großkrotzenburg’, and Case 103/88
Fratelli Costanzo
[1989] ECR 1839.
In addition, the Verwaltungsgerichtshof examines the issue of how far Community law affects the field of domestic procedural
law and the national rules on jurisdiction.  Having regard to the unambiguous wording of Paragraph 9(3) of the Tierzuchtgesetz,
it is impossible to interpret the Austrian law as meaning that an association of breeders already in existence has any right
of appeal against a decision taken by the administration in the course of the procedure for recognising a new organisation
of breeders.  Now, according to Austrian academic writing, which is based on the Court’s decisions (Case 158/80
Rewe
[1981] ECR 1805), in the absence of a specific rule laid down by Community law, it is for the Member States to provide the
means of redress that will allow individuals to exercise the rights conferred on them by Community law.  Observance of the
autonomy of the Member States means that Community law cannot be substituted for the application of provisions of domestic
law in the sphere of procedure and jurisdiction.
In this case, the Austrian legislature has structured the procedural status of associations and organisations of breeders
already in existence in such a way that they cannot bring proceedings before the Verwaltungsgerichtshof.  In those circumstances,
even if the first indent of Article 2(2) did give to associations already in existence a right to enforce observance of the
conditions laid down in that provision, the right in question would not receive judicial protection in Austria.
The Verwaltungsgerichtshof considers that such a result is unsatisfactory and that it cannot be deduced from the Court’s case-law
(Case C-76/97
Tögel
[1998] ECR I-5357, and Case C-258/97
HI
[1999] ECR I-1405).  It would have to be possible for a claim based on Community law to be brought before the Verwaltungsgerichtshof,
the national court which generally has jurisdiction in claims of the same kind based on domestic law.
Having regard to those matters, the Verwaltungsgerichtshof has decided to stay proceedings and to refer the following questions
to the Court for a preliminary ruling:
‘(1)

Does the first indent of Article 2(2) of … Decision 92/353 … confer on an association (organisation) of breeders already in
existence a right to have the competent authority refuse to recognise another organisation (another association) if to recognise
that other organisation (association) would endanger the preservation of the breed or jeopardise the operation or the improvement
or selection programme of an organisation or association already in existence?
(2)

Does the first indent of Article 2(2) of … Decision [92/353] … preclude the application of a provision of national law which

(a)	confers on an organisation or association already in existence only the right to be heard in proceedings before the competent
authority for the recognition of another organisation (association), but not the right to have recognition of that other organisation
(association) refused where recognition would endanger the preservation of the breed or jeopardise the operation or the improvement
or selection programme of an existing organisation or association, and

(b)	does not give the organisation or association already in existence the right to challenge before the courts (the Verwaltungsgerichtshof)
the recognition granted in spite of its submissions to the contrary?’
Concerning the first question
By its first question, and the first part of its second, the national court asks the Court in essence whether, on a proper
construction of the first indent of Article 2(2) of Decision 92/353, where at least one of the circumstances mentioned in
that provision is proved to exist, organisations or associations already officially recognised or approved in respect of a
breed of equidæ are entitled to demand of the competent authorities that the latter should refuse to recognise or approve
a new association or organisation maintaining or establishing stud-books for the same breed.
As a preliminary point, it is to be borne in mind that, under Article 2(1) of Decision 92/353, the competent authorities of
the Member State concerned must grant official approval or recognition to any organisation or association which maintains
or establishes a stud-book, provided that it meets the conditions laid down in the annex to the decision.
As that provision, just like the recitals in the preamble to Directive 90/427, makes clear, official recognition of new associations
or organisations maintaining or establishing stud-books is, as a general rule, in keeping with the objectives pursued by the
Community legislation in the sphere of intra-Community trade in equidæ.  Indeed, the pursuit of the objectives of encouraging
the breeding of registered equidæ and of developing their marketing in intra-Community trade presupposes that there exists,
in the various Member States of the Community, a sufficient number of organisations capable of maintaining the stud-books
in which a growing number of equidæ can be registered.
While favouring the official recognition or approval of new associations or organisations maintaining or establishing stud-books,
the Community legislation still requires, as the wording of Article 2(1) of Decision 92/353 makes clear, that each association
or organisation should meet the conditions laid down in the annex to that decision.  In addition, it follows from Article
4(1)(a) of Directive 90/427 that recognition or approval of those organisations or associations is conditional upon observance
of the principles laid down by the organisation or association which maintains the stud-book of the origin of the breed.
With regard to Article 2(2) of Decision 92/353, it ought to be stated that, as the Austrian Government and the Commission
have rightly maintained, the principal object of that provision is to confer on the competent authorities of the Member States
discretion allowing them, in one or another of the circumstances referred to in the first or second indent of Article 2(2),
to refuse an application for recognition made by a new association or organisation, even if the conditions laid down in the
annex to that decision are satisfied.  Indeed, except in those circumstances, and in accordance with Article 2(1) of that
decision, the competent authorities are bound to grant recognition to any organisation or association that fulfils the conditions
laid down in that annex.
That is the context in which the first indent of Article 2(2) of Decision 92/353 expressly sets out the circumstances in which
the competent authorities of a Member State may refuse to recognise a new organisation or association.  Those are situations
in which, in the Member State concerned, there is at least one organisation or association or there are several organisations
or associations officially recognised in respect of a breed of equidæ and in which recognition of the new organisation or
association would endanger the preservation of that breed or jeopardise the operation or the improvement or selection programme
of the organisation or association already in existence.
Contrary to the argument put forward by the Zuchtverband für Ponys, the first indent of Article 2(2) of Decision 92/353 cannot
be interpreted as meaning that it gives an association already in existence a personal right to demand of the competent authorities
concerned that they should refuse the recognition requested by a new association or organisation when it is proved that at
least one of the circumstances referred to in that provision exists.  Indeed, if such an interpretation were to be accepted,
it would amount to doing away with the discretion that Article 2(2) of Decision 92/353 meant to leave to the competent authorities
of the Member States.
The answer to be given to the first question is therefore that, on a proper construction of the first indent of Article 2(2)
of Decision 92/353, where one or more of the circumstances mentioned in that provision is or are proved to exist, organisations
or associations already officially recognised or approved in respect of a breed of equidæ are not entitled to demand of the
competent authorities that the latter should refuse to recognise or approve a new association or organisation maintaining
or establishing stud-books for the same breed.
Concerning the second question
By the second part of its second question, the national court in essence asks the Court whether it is contrary to Community
law for the legislation of a Member State to deprive associations and organisations already in existence, which have submitted
observations opposing the recognition of a new association or organisation, of a judicial means of obtaining redress challenging
the competent national authorities’ decision to grant recognition.
It follows from the reply given to the first question that, where one or more of the circumstances mentioned in the first
indent of Article 2(2) is or are proved to exist, organisations or associations already officially recognised or approved
in respect of a breed of equidæ are not entitled to demand of the competent authorities that the latter should refuse to recognise
or approve a new association or organisation which maintains or establishes stud-books for the same breed.
In those circumstances, and for the reasons set out by the Advocate General in paragraphs 38 to 40 of his Opinion, the answer
to be given to the second question must be that it is not contrary to Community law for the legislation of a Member State
to deprive associations and organisations already in existence, which have submitted observations opposing the recognition
of a new association or organisation, of a judicial means of obtaining redress challenging the competent national authorities’
decision to grant recognition.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the proceedings 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 (First Chamber), rules as follows:
1.
On a proper construction of the first indent of Article 2(2) of Commission Decision 92/353/EEC of 11 June 1992 laying down
the criteria for the approval or recognition of organisations and associations which maintain or establish stud-books for
registered equidæ, where one or more of the circumstances mentioned in that provision is or are proved to exist, organisations
or associations already officially recognised or approved in respect of a breed of equidæ are not entitled to demand of the
competent authorities that the latter should refuse to recognise or approve a new association or organisation maintaining
or establishing stud-books for the same breed.
2.
It is not contrary to Community law for the legislation of a Member State to deprive associations and organisations already
in existence, which have submitted observations opposing the recognition of a new association or organisation, of a judicial
means of obtaining redress challenging the competent national authorities’ decision to grant recognition.
Signatures.
–
Language of the case: German.