Opinion of the Advocate General — ECLI:EU:C:2003:63
Date: 2003-01-30
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Beef and veal;Veterinary legislation
Procedure: Action for annulment - successful
Origin: France

summary of the final report: Depending on which part of the production chain was involved, the controls established by the competent authority gave a contrasting picture: the measures in place for registering holdings, identifying animals and controlling their movement were not satisfactory, either qualitatively or quantitatively, mainly because all the risk factors were not properly taken into account and also because, in several cases, there was insufficient manpower to carry out adequate controls. As far as slaughterhouses were concerned, the situation was generally satisfactory, except for one slaughterhouse where control measures for the ante-mortem identification of animals were not carried out. As regards cutting plants and/or minced-meat production plants, the situation, except for one large minced-meat establishment, was not satisfactory: the competent authority had not discovered that the traceability of the meat was partly or wholly lost in several instances. The situation in relation to control of the distribution and retail trade sector was satisfactory, except in the case of one hypermarket. Evaluation of the system in place for registration of holdings, identification of animals and control of movements revealed a series of deficiencies - some of them significant - leading to partial or total loss of traceability of production. 139. Even at the beginning of 2002, problems thus remained concerning the traceability of animals and meat. 140. This confirms that all the conditions for lifting the ban were not met on the date when the Commission adopted its decision. 141. The French Republic's first plea, alleging infringement of Articles 21 and 22 of Decision 2001/376, must accordingly be upheld. C - Second plea: infringement of the precautionary principle 1. Arguments of the parties 142. The French Government submits that, in failing to make sure, before adopting the contested decision, that the strict and precise conditions laid down by Decision 2001/376 were met, the Commission infringed the precautionary principle which is embodied inter alia in Article 174 EC. 143. The Commission claims that this plea should be dismissed as unfounded because Decision 2001/376 falls within the scope of, and incorporates, the precautionary principle and thus the grounds of challenge put forward by the French Government are necessarily indissociable from those relating to infringement of Decision 2001/376, which are the subject of the first plea. 144. In the alternative, the Commission denies that there has been any infringement of the precautionary principle. 145. It observes that the precautionary principle is not an absolute objective that would exclude any possibility of appraisal on the part of the competent authority which must implement the policy. Both Article 174 EC, which is cited by the applicant and relates to the environment, and Article 152 EC, which relates to public health, in fact seek a high level of protection. The Commission refers to Communication COM/2000/0001 final which it has adopted on the precautionary principle, in which it has endeavoured to establish a number of criteria, and to the Court's case-law. 146. According to the Commission, the precautionary principle does not have the effect of obliging it to follow every scientific opinion without any power of appraisal. The same is true of the opinion of a national agency such as the Agence française de sécurité sanitaire des aliments (French Food Safety Agency), which, the Commission observes, is subsequent to the contested decision. 147. The Commission points out that it had the power to adopt the contested decision under Article 9 of Directive 89/662 and that it was therefore for it to determine the level of health protection that it considered appropriate. 148. In its submission, Decisions 98/653 and 2001/376 were founded on precautionary logic. Decision 98/653 imposing the ban was never conceived of as a definitive measure. Once the appropriate measures had been taken by the Portuguese Republic and duly evaluated and checked by the Commission, that transitional measure was to be repealed. 149. The Commission contends, finally, that the precautionary principle is a reasoned approach founded not on the pursuit of absolutely no risk, which would paralyse trade completely, but on the constant pursuit of proportionality. In this context, it recalls that it has a discretion under Article 9(4) of Directive 89/662 and Article 10(4) of Directive 90/425 and that judicial review is limited to ascertaining whether it has manifestly erred in the exercise of that discretion. 150. The Commission submits that the contested decision complies with the principle of proportionality. The main objective of Directives 89/662 and 90/425 is pursuit of the objectives of the common agricultural policy, the protection of health contributing to those objectives. A measure seeking to protect health must be taken into account, but it must not exceed what is necessary in order to attain that objective without endangering the other objectives of the common agricultural policy. After the Portuguese Republic had provided the requisite guarantees, it was normal, given the high level of protection ensured, to replace the regime imposing a ban with a regime, laying down a framework and providing for monitoring, that was less restrictive as regards the principle of the free movement of goods. 151. The Commission observes that, while the precautionary principle entails an approach to assessment in terms of benefits and burdens, it is impossible to arrive at a level of risk equal to zero. It stresses, in this connection, that the decisions adopted followed the opinions of the various scientific committees and that it attentively monitors developments in scientific research. 152. In its reply, the French Government contests the proposition set out by the Commission as its main claim and contends that the plea relating to the precautionary principle is an independent plea. By its adoption of the contested decision without checking compliance with the conditions laid down by Decision 2001/376, the Commission is not ensuring the level of public health protection that it is supposed to and is infringing the precautionary principle. 153. The French Government recalls the uncertainty as to the risks and the fact that the DBES is founded on scientific assumptions. 154. It submits that the contested decision infringes the precautionary principle because it was adopted without any guarantee as to the results of the checks regarding application of the Portuguese DBES mechanism and the related traceability rules, and in the absence of results for controls in respect of the other measures to combat BSE (meal, specified risk material, tests and so forth) that were supposed to be put in place in Portugal. 155. In its statement in intervention, the Portuguese Government submits that the precautionary principle has been fully observed. It acknowledges that the principle applies in fields such as human, animal or plant health and points out that the conditions for its application include perception or identification of a potential risk and the carrying out of a scientific study whose results are uncertain or doubtful. 156. It points out that it was in response to new scientific data that the possibility was envisaged of authorising exports under certain conditions enabling a high level of health protection to continue to be maintained. It recalls the collaboration of the Portuguese authorities with the experts and the efforts made since 2000. 157. It submits that the conditions imposed by Decision 2001/376 were rigorously observed by the Portuguese Republic and the Commission and that the contested decision not only confirms this but meets in full the level of protection established by the Commission as the basis for the precautionary principle. 158. In its reply to the Portuguese Government's statement in intervention, the French Government contends that the Portuguese Government has a restrictive view of the precautionary principle in that it would apply only at the stage of assessing the risk. According to the French Government, the precautionary principle also applies at the stage of management of the risk, when determining and implementing management measures, at least as much as the principle of proportionality. Thus, authorities which take a measure to manage the risk must be concerned equally with its effectiveness and with its proportionality. 159. The French Government contests, in the present instance, the effectiveness of the control measures prescribed and disputes therefore that they comply with the precautionary principle from the point of view of risk management. It refers in this regard to the final FVO report received, relating to a mission carried out in Portugal between 28 January and 2 February 2002. It is apparent from this report that identification of animals and the following of their movements and traceability of meat were not guaranteed, whereas the entire DBES mechanism rests on those matters. 2. Appraisal 160. It need only be stated that the French Government, as it itself acknowledges, (19) merely complains that the Commission did not adequately check compliance with the conditions for lifting the ban that were laid down by Decision 2001/376 and thus infringed the precautionary principle. 161. In this sense, as the Commission rightly observes, the second plea put forward by the French Government is indissociable from its first plea, whose very subject was the question whether, when the contested decision was adopted, the conditions, as laid down by Decision 2001/376, for lifting the ban were met. 162. Accordingly, as the French Government has not demonstrated the existence of an infringement of the precautionary principle independent of an infringement of Decision 2001/376, this second plea must be regarded as immaterial. V - Conclusion 163. For all the reasons set out above, I propose that the Court should: - annul Commission Decision 2001/577/EC of 25 July 2001 setting the date on which dispatch from Portugal of bovine products under the Date-Based Export Scheme may commence by virtue of Article 22(2) of Decision 2001/376/EC; - order the Commission to pay the costs. 1: - Original language: French. 2: - See the Opinion delivered by me in Case C-1/00 Commission v France [2001] ECR I-9989, points 1 to 4. 3: - OJ 2001 L 203, p. 27. 4: - OJ 1998 L 311, p. 23. 5: - OJ 1999 L 197, p. 45. 6: - Judgment in Case C-365/99 Portugal v Commission [2001] ECR I-5645. 7: - OJ 2000 L 29, p. 36. 8: - OJ 2001 L 132, p. 17. 9: - OJ 2000 L 158, p. 76. 10: - OJ 2001 L 1, p. 21. 11: - Emphasis added. 12: - OJ 1989 L 395, p. 13. 13: - OJ 1990 L 224, p. 29. 14: - OJ 2000 L 204, p. 1. 15: - Cited above. 16: - Emphasis added. 17: - This footnote is not relevant to the English translation of the Opinion. 18: - OJ 1999 L 195, p. 42. 19: - See above, point 151.