# C_2013147EN.01000401.xml

| 25.5.2013 | EN | Official Journal of the European Union | C 147/4 |
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25.5.2013

EN

Official Journal of the European Union

C 147/4

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Request for a preliminary ruling from the Szegedi Ítélőtábla (Hungary) lodged on 4 February 2013 — Érsekcsanádi Mezőgazdasági Zrt. v Bács-Kiskun Megyei Kormányhivatal

(Case C-56/13)

2013/C 147/07

Language of the case: Hungarian

Referring court

Referring court

Szegedi Ítélőtábla

Parties to the main proceedings

Parties to the main proceedings

Applicant: Érsekcsanádi Mezőgazdasági Zrt.

Applicant:

Defendant: Bács-Kiskun Megyei Kormányhivatal

Defendant:

Questions referred

Questions referred

| 1. | Was the decision of the Hungarian administrative authorities, within the framework of interim protection measures against highly pathogenic avian influenza, to order a protection zone and, within that framework, to ban inter alia the transportation of poultry consistent with Union law — Council Directive 92/40/EEC (1) or 2005/94/EC, (2) or Commission Decision 2006/105/EC?
  Was the decision by the Hungarian administrative authorities, within the framework of interim protection measures against highly pathogenic avian influenza, to amend some of the rules on protection zones and, within that framework, to ban inter alia the moving of poultry within the protection zone, together with the measure taken by those authorities in the form of an official opinion to the applicant (a decision against which there was no right of appeal), by which the authorities refused permission for the transport (introduction) of turkeys to a site within the protection zone and located precisely at the centre of infection, consistent with Union law — Council Directive 92/40/EEC or 2005/94/EC, or Commission Decision 2006/115/EC? |
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1.

Was the decision of the Hungarian administrative authorities, within the framework of interim protection measures against highly pathogenic avian influenza, to order a protection zone and, within that framework, to ban inter alia the transportation of poultry consistent with Union law — Council Directive 92/40/EEC (1) or 2005/94/EC, (2) or Commission Decision 2006/105/EC?

1

2

Was the decision by the Hungarian administrative authorities, within the framework of interim protection measures against highly pathogenic avian influenza, to amend some of the rules on protection zones and, within that framework, to ban inter alia the moving of poultry within the protection zone, together with the measure taken by those authorities in the form of an official opinion to the applicant (a decision against which there was no right of appeal), by which the authorities refused permission for the transport (introduction) of turkeys to a site within the protection zone and located precisely at the centre of infection, consistent with Union law — Council Directive 92/40/EEC or 2005/94/EC, or Commission Decision 2006/115/EC?

| 2. | Was the aim of Council Directive 92/40/EEC or 2005/94/EC, as sources of Union law, to create a system of regulation by Union law of compensation for any damage caused to individuals by interim protection measures taken against highly pathogenic avian influenza within the Union? Did the legal basis in Union law indicated in Council Directive 92/40/EEC or 2005/94/EC, or Commission Decisions 2006/105/EC and 2006/115/EC provide appropriate powers to create a system of regulation by Union law of compensation for damage caused to individuals by interim protection measures taken in relation to highly pathogenic avian influenza? |
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2.

Was the aim of Council Directive 92/40/EEC or 2005/94/EC, as sources of Union law, to create a system of regulation by Union law of compensation for any damage caused to individuals by interim protection measures taken against highly pathogenic avian influenza within the Union? Did the legal basis in Union law indicated in Council Directive 92/40/EEC or 2005/94/EC, or Commission Decisions 2006/105/EC and 2006/115/EC provide appropriate powers to create a system of regulation by Union law of compensation for damage caused to individuals by interim protection measures taken in relation to highly pathogenic avian influenza?

| 3. | If the response to the second question is in the affirmative, is it lawful and consistent with Union law to restrict compensation claims resulting from interim national measures taken in the course of the implementation of the legislation listed? May a national legal provision that restricts State compensation to the actual damage and costs, and excludes the opportunity to recover loss of earnings, be regarded as a necessary and proportionate restriction in connection with a claim for compensation for damage caused to individuals? |
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3.

If the response to the second question is in the affirmative, is it lawful and consistent with Union law to restrict compensation claims resulting from interim national measures taken in the course of the implementation of the legislation listed? May a national legal provision that restricts State compensation to the actual damage and costs, and excludes the opportunity to recover loss of earnings, be regarded as a necessary and proportionate restriction in connection with a claim for compensation for damage caused to individuals?

| 4. | If the response to the second question is in the negative, may the applicant base a claim for compensation to recover loss of earnings directly on a violation of the provisions of the Charter of Fundamental Rights (Article 16, concerning freedom to conduct a business, Article 17, concerning the right to property, and Article 47, concerning the right to an effective remedy and to a fair trial), if the interim measures taken by a Member State in the course of the implementation of Union law for the purpose of protection against highly pathogenic avian influenza caused damage to the applicant but the legal rules of the Member State relating to compensation for the damage caused restrict the submission of such claims and exclude the opportunity to submit a claim for loss of earnings? |
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4.

If the response to the second question is in the negative, may the applicant base a claim for compensation to recover loss of earnings directly on a violation of the provisions of the Charter of Fundamental Rights (Article 16, concerning freedom to conduct a business, Article 17, concerning the right to property, and Article 47, concerning the right to an effective remedy and to a fair trial), if the interim measures taken by a Member State in the course of the implementation of Union law for the purpose of protection against highly pathogenic avian influenza caused damage to the applicant but the legal rules of the Member State relating to compensation for the damage caused restrict the submission of such claims and exclude the opportunity to submit a claim for loss of earnings?

| 5. | If a full claim for damages can be enforced on the basis of any Union law, may such claims be enforced exclusively against the State or, on a wide construction of the concept of the State, may such a claim also be enforced against the public administrative authority, in proceedings for compensation for damage caused in the exercise of public authority? If the claim can also be enforced against administrative bodies, may the law of the Member State require that additional conditions be complied with in order for a right to compensation to arise? |
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5.

If a full claim for damages can be enforced on the basis of any Union law, may such claims be enforced exclusively against the State or, on a wide construction of the concept of the State, may such a claim also be enforced against the public administrative authority, in proceedings for compensation for damage caused in the exercise of public authority? If the claim can also be enforced against administrative bodies, may the law of the Member State require that additional conditions be complied with in order for a right to compensation to arise?

| 6. | If Union law does not allow an applicant to obtain full compensation, directly on the basis of Union law, for the damage sustained by him, does the requirement of equality of procedure mean that the same rules govern the processing of claims that may be decided on the basis of Union law and similar claims that may be decided on the basis of Hungarian law? |
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6.

If Union law does not allow an applicant to obtain full compensation, directly on the basis of Union law, for the damage sustained by him, does the requirement of equality of procedure mean that the same rules govern the processing of claims that may be decided on the basis of Union law and similar claims that may be decided on the basis of Hungarian law?

| 7. | In circumstances such as those in the present case — given that the legislative and administrative measures taken by Member States for the purposes of protection against highly pathogenic avian influenza occurring in wild birds within the Union, of necessity, affect the operation of the internal market — is it possible to request an amicus curiæ opinion from the European Commission in legal proceedings relating to measures implementing Union law, particularly in cases where it becomes clear that the European Commission has initiated infringement proceedings against the Member State in connection with legal matters relevant to the legal dispute in question? |
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7.

In circumstances such as those in the present case — given that the legislative and administrative measures taken by Member States for the purposes of protection against highly pathogenic avian influenza occurring in wild birds within the Union, of necessity, affect the operation of the internal market — is it possible to request an amicus curiæ opinion from the European Commission in legal proceedings relating to measures implementing Union law, particularly in cases where it becomes clear that the European Commission has initiated infringement proceedings against the Member State in connection with legal matters relevant to the legal dispute in question?

amicus curiæ

| 8. | If it is possible to request either an amicus curiæ opinion or to make a simple request for information from the European Commission, is the European Commission obliged to supply an amicus curiæ opinion or the information sought with regard to the data, documents and statements arising during the infringement proceedings and the practices engaged in by the European Commission within this area, particularly if the information in question is not in the public domain and originated during the period prior to the infringement proceedings being brought before the Court of Justice? May such information be used in public in an individual legal dispute before a court of the Member State? |
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8.

If it is possible to request either an amicus curiæ opinion or to make a simple request for information from the European Commission, is the European Commission obliged to supply an amicus curiæ opinion or the information sought with regard to the data, documents and statements arising during the infringement proceedings and the practices engaged in by the European Commission within this area, particularly if the information in question is not in the public domain and originated during the period prior to the infringement proceedings being brought before the Court of Justice? May such information be used in public in an individual legal dispute before a court of the Member State?

amicus curiæ

amicus curiæ

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(1)  Council Directive 92/40/EEC of 19 May 1992 introducing Community measures for the control of avian influenza (OJ 1992 L 167, p. 1).

1

(2)  Council Directive 2005/94/EC of 20 December 2005 on Community measures for the control of avian influenza and repealing Directive 92/40/EEC (OJ 2006 L 10, p. 16).

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