Opinion of the Advocate General — ECLI:EU:C:2001:184
Date: 2001-03-27
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Beef and veal;Veterinary legislation
Procedure: Action for annulment - unfounded
Origin: Portugal

summary report concerning the mission of the Food and Veterinary Office carried out in Portugal from 19 to 23 April 1999 in order to inspect fresh meat establishments (Council Directive 64/433/EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat; OJ, English Special Edition 1963-1964, p. 185) and trade in fresh meat (Directive 89/662) it is stated, inter alia, that non-approved establishments operate illegally, without the competent authorities, who are well aware of the fact, having adopted measures to remedy the situation, that there are serious shortcomings concerning hygiene at slaughter and that identification of animals does not satisfy the requirements of Community legislation. 38. These various shortcomings appear so serious to the authors of the report that they recommend that the Commission seriously consider bringing proceedings against the Portuguese Republic for failure to comply with numerous provisions of Community legislation. 39. The report compiled following the mission carried out from 14 to 18 June 1999 does not mention such serious shortcomings, but emphasises the fact that it is not yet possible to positively ascertain whether the measures adopted by the Portuguese authorities in response to the recommendations contained in the preceding reports have been adequately implemented and have had the expected effects. 40. I should make it clear that no criticism of the action of the Portuguese authorities is intended. It must be noted, however, that in the sixth recital of Directive 98/653 it was expressly pointed out that the prohibition on the dispatch of bovine products can be limited in time, provided (7) that a risk assessment conducted on the basis of the findings of a mission of the Food and Veterinary Office, taking into account the evolution of the disease, demonstrates that appropriate measures have been taken to manage any risk, and that the relevant Community and national measures are complied with and effectively enforced. In the fifth and sixth recitals of the contested decision the Commission noted both that between 1998 and 1999 the number of cases per million animals over two years of age had risen from 105.6 to 211, and that the reports of missions carried out did not describe a situation totally under control, as those missions concluded that serious efforts and considerable progress had been made in the implementation of risk management measures in a short period, despite not all measures being adequately enforced. It is plain, therefore, that the Commission has been able to show convincing reasons to justify extending the prohibition for an additional six months. 41. Finally, I would observe, although it is not relevant to assessment of the legality of the contested decision at the date on which it was adopted, that in Commission Decision 2000/104/EC of 31 January 2000 amending Decision 98/653 concerning emergency measures made necessary by the occurrence of bovine spongiform encephalopathy in Portugal, (8) the Commission was obliged to remove the limitation until 1 February 2000 of the export ban in view of the fact that the conditions for a resumption of Portuguese exports of bovine meat were still not satisfied. The Portuguese Republic's first plea must therefore, in my opinion, be rejected. The second plea 42. With regard to the second plea put forward by the Portuguese Government, a comment on a point of principle must be made. In alleging breach of the Animal Health Code of the OIE the Portuguese Government implies that the Commission was required to abide by that Code. However, that has not yet been established. 43. In my opinion, the provisions which the Commission was obliged to observe are those which constitute the legal basis of its decision, that is, Directives 90/425 and 89/662. The Animal Health Code of the OIE does not lay down provisions which bind the Community institutions. 44. Clearly, its provisions can, and even, in my opinion, must, be taken into consideration in assessing whether the Community measures comply with the principle of proportionality. One could certainly question the Commission's adoption of strict prohibition measures if, for example, the Code only recommended increased surveillance measures. 45. There remains, however, the possibility that in certain cases there may be valid reasons for the Commission to go beyond the OIE's recommendations and that, given such reasons, it would be fruitless for an applicant to allege breach of the Animal Health Code, which is non-binding within the Community legal order. 46. In the present case, however, it is completely unnecessary to raise this issue, as there is no inconsistency between the recommendations of the Animal Health Code and the prohibition imposed by the contested decision. Contrary to what the Portuguese Government maintains Portugal was, at the time of its adoption, a high incidence zone and the Animal Health Code provides that bovine meat can only be exported from such zones under certain strict conditions, which are laid down in Article 3.2.13.10. 47. These conditions include an effective ban on feed containing meat-and-bone meal, the existence of a permanent system for the identification of cattle enabling animals to be traced back to the dam and herd of origin, the removal of specified risk materials and the slaughter and destruction of definite high risk animals, such as offspring and birth cohorts of BSE cases. 48. In fact, bovine meat can only be exported on the basis of either of two regimes: one a certified herds scheme, indicating that the products have been derived from animals born, raised and having remained in herds without BSE cases for the last seven years, the other a date-based scheme, indicating that the products were derived from animals born after the date of an effective ban on feed containing meat-and-bone meal. 49. The conditions laid down by the Animal Health Code were, having regard to the reports of the missions carried out during the first half of 1999, obviously not fulfilled in Portugal at the date on which the contested decision was adopted. 50. If further evidence was required, it would be found in Decision 2000/104, the fifth and sixth recitals of which provide: Portugal put forward a first proposal for a date-based scheme to the Commission on 3 December 1999; this scheme must be examined in the light of measures taken by Portugal as regards the feed ban, the traceability of cattle, the culling of offspring and birth cohorts of BSE cases and the removal of specified risk materials; furthermore the implementation of those measures should be verified by a Commission mission before the Commission can propose a partial lifting of the ban to the Standing Veterinary Committee. In those circumstances, it is appropriate to maintain the prohibition on the dispatch of bovine products until the scheme proposed by Portugal can be adopted. 51. I am therefore bound to conclude that the second plea put forward by the Portuguese Government must also be dismissed. The third plea 52. In the third plea, the Portuguese Government claims in essence that consultation of the Standing Veterinary Committee prior to adoption of the contested decision was vitiated by irregularities, in so far as it did not have either the report drawn up following the mission carried out in Portugal from 14 to 19 June 1999, or the periodic reports sent by the Portuguese authorities to the Commission in accordance with Article 14 of Decision 98/653. That withholding of information vitiated the Committee's favourable opinion of the draft decision proposed by the Commission. 53. The fact that the report of the mission was not available to the Committee is beyond doubt, and it should be noted that the recitals of the contested decision refer only to the missions of February to March and April 1999. 54. In my opinion, if the report of the June mission had been available on 16 July, when the Standing Veterinary Committee met, the Portuguese Republic's plea would incontestably be well founded. 55. But, as the Portuguese Government moreover recognises, the report only existed in draft form at that date. It must be noted that Article 7(1) of Commission Decision 98/139/EC of 4 February 1998 laying down certain detailed rules concerning on-the-spot checks carried out in the veterinary field by Commission experts in the Member States (9) provides that the Commission shall confirm the results of the checks within 20 working days in a written report ... . The Member State shall give its comments within 25 working days of the receipt of the written report from the Commission. 56. To be precise, in the present case the report was sent to the Portuguese Republic, according to its own statement, on 14 July 1999, which was within the time-limit. It reached the Portuguese Permanent Representation on 19 July, that is, after the meeting of the Standing Veterinary Committee. 57. Starting from 19 July, the Portuguese Government had the period laid down in Article 7(1) within which to make its comments. There was therefore no possibility of giving the Standing Veterinary Committee a definitive report for the day of its meeting. 58. As the Portuguese Government acknowledges, the Commission proposed at the meeting that it present the report orally, but the Portuguese Government did not agree to that, as it was entitled to. 59. It cannot therefore be asserted that the Committee was not in possession of the most recent report effectively available. 60. It may be objected that the Commission could have sent a mission to Portugal early enough for the Committee to have had access to its report, or postponed the meeting of the Standing Veterinary Committee. 61. As the Portuguese Government implicitly acknowledges, when it points out that the mission between February and March, carried out three months after the adoption of Decision 98/653, took place too early for improvements to have been found, there would have been no point in sending a mission to Portugal in May 1999, as there was very little probability of its having been able to remedy, at that time, the shortcomings found between February and March and in April. Postponing the meeting of the Standing Veterinary Committee would not have made sense either because, given the time-limits set by Article 7(1), one could not count on a definitive report being available at the end of July, and the Commission had to adopt a decision by 31 July at the latest as the prohibition in Article 4 of Decision 98/653 expired on 1 August 1999. 62. As for the monthly reports sent by Portugal, they are unilateral documents which are certainly very useful to the Commission, in so far as they enable it to plan missions precisely and to define their object, but I do not believe that they can constitute a factor to be taken into account by the Standing Veterinary Committee when taking a decision concerning the BSE situation in Portugal. 63. It therefore cannot be maintained, as the Portuguese Government does, that the Commission failed to comply with the procedural requirements imposed on it prior to adoption of the contested decision. 64. I can therefore only conclude that the Portuguese Government's third plea is unfounded. The fourth plea 65. For the fourth plea it is possible to be relatively brief, in so far as consideration of the first two pleas has shown that the contested decision taken by the Commission was appropriate to the practical situation in Portugal as regards BSE. 66. The Portuguese Government claims that Portugal is not a significant exporter of bovine meat and that, for this reason, its exports are easy to check. I do not find this argument in the least convincing. 67. In the first place, it is not in fact the quantities exported that count as regards the risk of the presence in the human food chain of products contaminated with BSE, but the guarantees that can be given as to the absence of contamination in the products. In the second place, an export ban clearly does not impose a disproportionate burden on a Member State which classifies itself as a minor exporter. 68. The Portuguese Government also states that, despite the fact that it had a very high BSE incidence rate, the United Kingdom has been authorised to resume exports and that exports of bovine meat to the Community from Switzerland have not been prohibited, when that country is far from being free from BSE. 69. As regards the United Kingdom, while it is true that it is the Member State which has been most affected by BSE, it must be noted that, if resumption of exports has been authorised, it is because the United Kingdom adduced evidence that it had put in place one of the schemes recommended by the OIE, which I described in my examination of the Portuguese Government's second plea. It must also be recalled that it was only well after the measures stipulated in the Animal Health Code were implemented that those exports were authorised whereas, at the time the contested decision was taken, the Portuguese authorities were still considering the details of the scheme that they were going set up and that they submitted to the Commission, as stated above, on 3 December 1999. One could not, therefore, compare the situation in Portugal in July 1999 with that in the United Kingdom at the same time. 70. As regards Switzerland, while it is true that it is affected by BSE, it cannot be considered that the problems there have, at any time, attained the same degree of seriousness as those in Portugal. Although during the mission which was carried out from 8 to 12 February 1999 by the Food and Veterinary Office the experts observed a certain number of shortcomings and drew up some recommendations, their report did not advocate a prohibition on Swiss exports to the Community and assesses very positively the programme of control and eradication set up by the Swiss authorities. 71. I therefore do not believe it possible to consider that the Portuguese Government's fourth plea, concerning breach of the principle of proportionality, is well founded. 72. As none of the pleas put forward by the Portuguese Republic appear to me to be well founded, I must propose that the Court decide as follows: - The application is dismissed. - The Portuguese Republic must bear its own costs. 1: - Original language: French. 2: - OJ 1998 L 311, p. 23. 3: - OJ 1990 L 224, p. 29. 4: - OJ 1993 L 62, p. 49. 5: - OJ 1989 L 395, p. 13. 6: - OJ 1999 L 197, p. 45. 7: - The emphasis is mine. 8: - OJ 2000 L 29, p. 36. 9: - OJ 1998 L 38, p. 10.