Judgment — ECLI:EU:T:2001:256
Date: 2001-10-23
Language of the case: German
Court formation: Fifth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Fisheries policy;Veterinary legislation
Concepts: Basis of liability;Products from third countries
Procedure: Action for annulment;Action for damages - unfounded
Origin: Germany

Summary of the Judgment 
1. Non-contractual liability — Conditions — Sufficiently serious breach of Community 
law — Definition 
(EC Treaty, Art. 215, second para, (now Art. 288, second para., EC)) 
2. Agriculture — Approximation of laws on food hygiene — Directive 91/493 — 
Adoption of supervisory measures for importations of fishery products from third 
countries — Decision to remove a country from a list of third countries authorised to 
export to the Community — Discretion of Community institutions — Scope 
(Council Directive 91/493; Council Decision 95/408, Art. 2(3)) 
II - 3143 
SUMMARY — CASE T-155/99 
3. Agriculture — Approximation of laws on food hygiene — Directive 91/493 — 
Supervisory measures for importations of fishery products from third countries — 
Decision granting or withdrawing import authorisation — Principle of sound 
administration — Account to be taken of a general risk to human health — Whether 
permissible 
(Council Directive 91/493; Council Decision 95/408) 
4. Agriculture — Approximation of laws on food hygiene — Directive 91/493 — 
Supervisory measures for importations of fishery products from third countries — 
Decision to include or remove a country from the list of third countries authorised to 
export to the Community — Decision not including transitional measures and based 
on overriding public interest — Principle of the protection of legitimate expecta­
tions — Breach — None 
(Council Directive 91/493; Council Decision 95/408) 
1. The rules on non-contractual liability 
of the Community for damage caused 
by its institutions or by its servants in 
the performance of their duties, devel­
oped by the Court with regard to the 
second paragraph of Article 215 of the 
Treaty (now the second paragraph of 
Article 288 EC), take into account the 
complexity of the situations to be 
regulated, difficulties in the application 
or interpretation of the texts and, more 
particularly, the margin of discretion 
available to the author of the act in 
question. Where the Community insti­
tutions enjoy a wide discretion in 
implementing their policies, the condi­
tion relating to unlawful conduct on 
the part of the institution is met if it is 
established that the rule of law 
infringed is intended to confer rights 
on individuals and the breach is suffi­
ciently serious. 
As to the requirement that the breach 
be sufficiently serious, the decisive test 
for whether a breach of Community 
law is sufficiently serious is whether the 
Community institution manifestly and 
gravely disregarded the limits on its 
discretion. Nevertheless, where the 
institution has only a limited discre­
tion, or even none at all, the mere 
infringement of Community law may 
be sufficient to establish the existence 
of a sufficiently serious breach. In that 
regard, whether a measure taken by an 
institution is general or individual is 
not decisive for determining the limits 
of the discretion enjoyed by the institu­
tion. 
(see paras 41-45) 
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DIECKMANN & HANSEN v COMMISSION 
2. It is clear from both the letter and the 
spirit of Directive 91/493 laying down 
the health conditions for the produc­
tion and the placing on the market of 
fishery products for human consump­
tion, Decision 95/408 on the conditions 
for drawing up, for an interim period, 
provisional lists of third country estab­
lishments from which Member States 
are authorised to import certain pro­
ducts of animal origin, fishery products 
or live bivalve molluscs and from their 
legal basis, namely Article 43 of the 
Treaty (now, after amendment, Arti­
cle 37 EC), that those acts fall within 
the scope of the common agricultural 
policy and are intended to guarantee 
the protection of public and animal 
health. It follows that where the Com­
munity legislature adopts measures 
establishing arrangements for the 
supervision of importations of fishery 
products from third countries, such as 
Directive 91/493 and Decision 95/408, 
it enjoys a broad discretion. 
Accordingly, the Commission must also 
be recognised as having wide discretion 
where it adopts measures implementing 
arrangements for the supervision of 
importations of fishery products, such 
as whether a third country is to be 
entered in or removed from the list of 
third countries authorised to export 
fishery products to the Community. 
In that connection, it is clear from the 
wording of Article 2(3) of Decision 
95/408, which empowers the Commis­
sion to modify or complete such a list 
in order to take account of new infor­
mation received, that the Commission 
enjoys a wide discretion when adopt­
ing, on the basis of that article, a 
decision to remove a country from the 
list of third countries from which the 
import of fishery products is author­
ised. 
(see paras 51-53) 
3. In the context of the application of 
Directive 91/493 laying down the 
health conditions for the production 
and the placing on the market of 
fishery products intended for human 
consumption and Decision 95/408 on 
the conditions for drawing up, for an 
interim period, provisional lists of third 
country establishments from which 
Member States are authorised to 
import certain products of animal ori­
gin, fishery products or live bivalve 
molluscs, a caviar importer cannot 
criticise the Commission for having 
considered that the general risk which 
imports from a third country represent, 
rather than proof of actual risk which 
certain products or consignments pre­
sent, determines whether authorisation 
to import is to be granted or with-
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SUMMARY — CASE T-155/99 
drawn. Where there is uncertainty as to 
the existence or extent of risks to 
human health, the institutions may 
take protective measures without hav­
ing to wait until the reality and 
seriousness of those risks become fully 
apparent. 
In that regard, in view of the objectives 
pursued by Directive 91/493 and Deci­
sion 95/408 governing the supervision 
of importations of fishery products 
coming from third countries and in 
the light of the fact that the serious 
problems identified by Community 
experts during an inspection concerned 
not so much specific difficulties 
observed on the production sites con­
cerned but deficiencies in the general 
system of health supervision in the 
country concerned which, in view of 
their structural nature, were likely to 
affect also supervision of caviar pro­
duction, the Commission was entitled 
to take the view that it should ban 
imports of caviar without waiting to 
order an inspection of the caviar pro­
duction plants when they were work­
ing. 
By deciding to withdraw its authorisa­
tion to import the product coming 
from those countries into the Commu­
nity, the Commission did not offend 
against the principle of sound adminis­
tration inasmuch as the conclusions to 
which the Commission arrived are 
plausible and are not based on a 
misassessment of the facts. Moreover, 
by adopting that decision, it fully 
observed its obligations to take account 
of requirements relating to the public 
interest, such as the protection of 
consumers or the protection of the 
health and life of humans and animals, 
in its efforts to achieve objectives of the 
common agricultural policy and to 
accord to the protection of public 
health precedence over economic con­
siderations. 
(see paras 73, 75-76) 
4. In the context of the arrangements for 
the supervision of importations of fish­
ery products coming from third coun­
tries introduced by Directive 91/493 
laying down the health conditions for 
the production and the placing on the 
market of fishery products intended for 
human consumption and by Decision 
95/408 on the conditions for drawing 
up, for an interim period, provisional 
lists of third country establishments 
from which Member States are author­
ised to import certain products of 
animal origin, fishery products or live 
bivalve molluscs, a caviar importer 
cannot rely on the principle of the 
protection of legitimate expectations to 
argue that the Commission cannot alter 
the existing legal situation without 
taking account of the situation of 
traders. 
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DIECKMANN & HANSEN v COMMISSION 
First, as a decision to remove a country 
from the list of third countries from 
which the import into the Community 
of fishery products is authorised, it was 
adopted as part of the implementation, 
by the Commission, of provisional 
supervisory arrangements. Secondly, 
the fact that the Commission did not 
include transitional provisions in the 
abovementioned decision, based on the 
overriding public interest of consumer 
protection, is not something for which 
it can be criticised, if the objective 
pursued by the applicable legislation, 
which seeks to protect effectively the 
health of consumers in the Community, 
is not to be compromised. Indeed, an 
overriding public interest may preclude 
the adoption of transitional measures 
in respect of situations which arose 
before the new rules came into force 
but which are still subject to change. In 
the first place, protection of public 
health constitutes an overriding public 
interest of that kind and, secondly, the 
decision adopted by the Commission to 
ban importation was justified on 
grounds of the protection of the health 
of consumers and therefore by an 
overriding public interest within the 
meaning of the case-law. 
(see paras 78, 80) 
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