# C_2005315EN.01000501.xml

| 10.12.2005 | EN | Official Journal of the European Union | C 315/5 |
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10.12.2005

EN

Official Journal of the European Union

C 315/5

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JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Third Chamber)

of 20 October 2005

in Case C-511/03: reference for a preliminary ruling from the Hoge Raad der Nederlanden Staat der Nederlanden (Ministerie van Landbouw, Natuurbeheer en Visserij) v Ten Kate Holding Musselkanaal BV and Others (1)

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(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)

(2005/C 315/08)

Language of the case: Dutch

In Case C-511/03: reference for a preliminary ruling under Article 234 EC from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), made by decision of 5 December 2003, received at the Court on 8 December 2003, in the proceedings between Staat der Nederlanden (Ministerie van Landbouw, Natuurbeheer en Visserij) and Ten Kate Holding Musselkanaal BV, Ten Kate Europrodukten BV, Ten Kate Produktie Maatschappij BV — the Court (Third Chamber), composed of A. Rosas (Rapporteur), President of the Chamber, J.-P. Puissochet, S. von Bahr, U. Lõhmus and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 20 October 2005, the operative part of which is as follows:

Staat der Nederlanden (Ministerie van Landbouw, Natuurbeheer en Visserij)

Ten Kate Holding Musselkanaal BV, Ten Kate Europrodukten BV, Ten Kate Produktie Maatschappij BV

| 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. |
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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. |
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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.

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(1)  OJ C 59 of 06.03.2004.

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