# C_2005093EN.01000602.xml

| 16.4.2005 | EN | Official Journal of the European Union | C 93/6 |
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16.4.2005

EN

Official Journal of the European Union

C 93/6

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Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) by order of that court of 18 January 2005 in G.J. Dokter, Maatschap Van den Top and W. Boekhout v Minister van Landbouw, Natuur en Voedselkwaliteit

(Case C-28/05)

(2005/C 93/12)

Language of the case: Dutch

Reference has been made to the Court of Justice of the European Communities by order of the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) (the Netherlands) of 18 January 2005, received at the Court Registry on 28 January 2005, for a preliminary ruling in the proceedings between G.J. Dokter, Maatschap Van den Top and W. Boekhout and Minister van Landbouw, Natuur en Voedselkwaliteit (Minister for Agriculture, Nature and Food Quality) on the following questions:

| 1. | Does the obligation on Member States under the first indent of Article 11(1) of Directive 85/511/EEC, (1) read in conjunction with the second indent of Article 13(1) thereof, to ensure that laboratory testing to detect the presence of FMD is carried out by a laboratory listed in Annex B to Directive 85/511/EEC have direct effect? |
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1.

Does the obligation on Member States under the first indent of Article 11(1) of Directive 85/511/EEC, (1) read in conjunction with the second indent of Article 13(1) thereof, to ensure that laboratory testing to detect the presence of FMD is carried out by a laboratory listed in Annex B to Directive 85/511/EEC have direct effect?

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| 2. | (a) | Must Article 11(1) of Directive 85/511/EEC be interpreted as meaning that legal consequences must be attached to the fact that the presence of FMD is found by a laboratory which is not listed in Annex B to Directive 85/511/EEC? |
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2.

(a)

Must Article 11(1) of Directive 85/511/EEC be interpreted as meaning that legal consequences must be attached to the fact that the presence of FMD is found by a laboratory which is not listed in Annex B to Directive 85/511/EEC?

| (b) | If the answer to Question 2a is in the affirmative:
  Is the purpose of Article 11(1) of Directive 85/511/EEC to protect the interests of individuals, such as the appellants in the main proceedings? If not, can individuals, such as the appellants in the main proceedings, plead possible failure to fulfil the obligations which this provision places on the authorities of the Member States? |
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(b)

If the answer to Question 2a is in the affirmative:

Is the purpose of Article 11(1) of Directive 85/511/EEC to protect the interests of individuals, such as the appellants in the main proceedings? If not, can individuals, such as the appellants in the main proceedings, plead possible failure to fulfil the obligations which this provision places on the authorities of the Member States?

| (c) | If the answer to Question 2b means that individuals can rely on Article 11(1) of Directive 85/511/EEC:
  What legal consequences must be attached to a finding of the presence of FMD by a laboratory which is not listed in Annex B to Directive 85/511/EEC? |
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(c)

If the answer to Question 2b means that individuals can rely on Article 11(1) of Directive 85/511/EEC:

What legal consequences must be attached to a finding of the presence of FMD by a laboratory which is not listed in Annex B to Directive 85/511/EEC?

| 3. | Must Annex B to Directive 85/511/EEC be interpreted, having regard to Articles 11 and 13 thereof, as meaning that the mention in Annex B to Directive 85/511/EEC of ‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must refer also to ID-Lelystad B.V.? |
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3.

Must Annex B to Directive 85/511/EEC be interpreted, having regard to Articles 11 and 13 thereof, as meaning that the mention in Annex B to Directive 85/511/EEC of ‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must refer also to ID-Lelystad B.V.?

| 4. | If it follows from the above answers that the presence of FMD can be found by a laboratory which is not listed in Annex B to Directive 85/511/EEC or that Annex B to Directive 85/511/EEC must be interpreted as meaning that the mention of the ‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must refer also to ID-Lelystad B.V.:
  Must Directive 85/511/EEC be interpreted as providing that the national administrative authority authorised to adopt decisions is bound by the outcome of an examination by a laboratory which is listed in Annex B to Directive 85/551/EEC or – if the answer to Question 2a means that the administrative authority may base its FMD control measures also on results obtained by a laboratory which is not listed in Annex B to Directive 85/511/EEC – by the results of the latter laboratory, or does the determination of final authority in that regard fall within the procedural autonomy of the Member State and must the court before which the main proceedings are pending examine whether the rules in that respect apply irrespective of whether the laboratory examination is carried out by virtue of a Community or national legal obligation and of whether or not the application of the provisions of national procedural law renders the implementation of the Community rules extremely difficult or practically impossible? |
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4.

If it follows from the above answers that the presence of FMD can be found by a laboratory which is not listed in Annex B to Directive 85/511/EEC or that Annex B to Directive 85/511/EEC must be interpreted as meaning that the mention of the ‘Centraal Diergeneeskundig Instituut, Lelystad’ can or must refer also to ID-Lelystad B.V.:

Must Directive 85/511/EEC be interpreted as providing that the national administrative authority authorised to adopt decisions is bound by the outcome of an examination by a laboratory which is listed in Annex B to Directive 85/551/EEC or – if the answer to Question 2a means that the administrative authority may base its FMD control measures also on results obtained by a laboratory which is not listed in Annex B to Directive 85/511/EEC – by the results of the latter laboratory, or does the determination of final authority in that regard fall within the procedural autonomy of the Member State and must the court before which the main proceedings are pending examine whether the rules in that respect apply irrespective of whether the laboratory examination is carried out by virtue of a Community or national legal obligation and of whether or not the application of the provisions of national procedural law renders the implementation of the Community rules extremely difficult or practically impossible?

| 5. | If the answer to Question 4 means that the issue of whether national authorities are bound by the laboratory result is governed by Directive 85/511/EEC:
  Are the national authorities bound unconditionally by the result of an FMD examination carried out by a laboratory? If not, what margin of discretion does Directive 85/511/EEC leave these national authorities? |
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5.

If the answer to Question 4 means that the issue of whether national authorities are bound by the laboratory result is governed by Directive 85/511/EEC:

Are the national authorities bound unconditionally by the result of an FMD examination carried out by a laboratory? If not, what margin of discretion does Directive 85/511/EEC leave these national authorities?

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(1)  Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease (OJ 1985 L 315, p. 11).

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