Opinion of the Advocate General — ECLI:EU:C:2006:57
Date: 2006-01-19
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Veterinary legislation
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Agriculture – Approximation of laws – Control of foot-and-mouth disease – Directive 85/511 (Council Directive 85/511, as amended by Directive 90/423, Arts 11(1), first indent, 13(1), second indent, and 17) 2. Agriculture – Approximation of laws – Control of foot-and-mouth disease – Directive 85/511 (Council Directives 85/511, as amended by Directive 90/423, and 90/425, Art. 10(1)) 3. Agriculture – Approximation of laws – Control of foot-and-mouth disease – Directive 85/511 (Council Directive 85/511, as amended by Directive 90/423) 4. Agriculture – Approximation of laws – Control of foot-and-mouth disease – Directive 85/511 (Council Directives 85/511, as amended by Directive 90/423, Art. 5, and 90/425, Art. 10(1); Commission Decision 2001/246, Art. 2) 1. Directive 85/511 introducing Community measures for the control of foot-and-mouth disease, as amended by Directive 90/423, must be interpreted as meaning that changes to the particulars of a laboratory included in Annex B thereto, which were not entered in accordance with the procedure provided for in Article 17 of the directive, lead to that laboratory’s losing its status as a laboratory included in that annex only if those changes are likely to have repercussions on the safety of the laboratory as regards the risk of dissemination of the foot-and-mouth virus during the examinations performed by the laboratory and thus increase the risk of contamination of susceptible local animals. This requirement of registration of changes concerning a laboratory listed in Annex B to Directive 85/511 must be considered in the light of the core objective of that directive, which is the effective control of foot-and-mouth disease which implies, in particular, that measures must be taken upon the first sign of the disease. In this regard, the effectiveness of such control requires that the public authorities are able to have a diagnosis established to detect the disease in a timely manner. If a failure to register changes concerning a laboratory listed in Annex B meant every time that that laboratory would lose its status as a listed laboratory, the national authorities would be required, under the first indent of Article 11(1) and the second indent of Article 13(1) of Directive 85/511, not to have any more examinations carried out by that laboratory until the change in question had been entered in the list. A requirement such as that would lead to an emphasis on formalities which would be likely to prevent those authorities from having a laboratory nearby with which to detect the virus in a timely manner, which would run counter to the objective of effective control of foot-and-mouth disease. Accordingly, the requirement that those changes be entered must not go beyond what is necessary to safeguard the interests it seeks to guarantee, namely the prevention of the risk of dissemination of the virus during laboratory examinations. (see paras 34-36, 59, operative part 1) 2. Directive 85/511 introducing Community measures for the control of foot-and-mouth disease, as amended by Directive 90/423, does not preclude a Member State from taking the measures to control foot-and-mouth disease provided for in Article 10(1) of Directive 90/425 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market, on the basis of results of an examination carried out by a laboratory which is not included in Annex B to Directive 85/511. Given the objective of effective control of foot-and-mouth disease, the means of diagnosis referred to in point (c) of the second paragraph of Article 2 of Directive 85/511 must be interpreted broadly. Point (c) of the second paragraph of Article 2 uses the term ‘laboratory’ without providing further specification and its wording therefore does not indicate that measures may be taken only on the basis of results from a laboratory included in the list in Annex B to Directive 85/511. Thus, the measures to control foot-and-mouth disease provided for in Article 5 of that directive may be taken on the basis of results from a laboratory which is not listed in Annex B thereto. The additional nature of the measures which the competent authorities have power to adopt under Article 10(1) of Directive 90/425 to control the disease implies that those authorities may take measures analogous to those provided for in Article 5 of Directive 85/511 on the basis of the same laboratory results as those on the basis of which the latter measures were taken and, therefore, also on the basis of results from a laboratory which is not included in Annex B to Directive 85/511. (see paras 51-52, 54, 59, operative part 1) 3. In the context of Directive 85/511 introducing Community measures for the control of foot-and-mouth disease, as amended by Directive 90/423, the competent national authority is required to follow up the results of examinations provided by a laboratory which has the status of a laboratory listed in Annex B to Directive 85/511 and to adopt, in principle, the measures provided for in that directive or any other measure required, given the need to control foot-and-mouth disease promptly and effectively. It is only if the competent authority has evidence casting serious doubt on the reliability of the results from such a laboratory that it may refrain from taking those measures immediately. In such a case, it may inter alia obtain another diagnosis to confirm or contradict those results. The competent authority is required to take into consideration even results provided by a laboratory which does not have the status of a laboratory listed in Annex B to Directive 85/511 in order to adopt, where necessary, the appropriate measures provided for by Community legislation. However, as that laboratory no longer necessarily offers the same guarantees of reliability as a laboratory having the status of a laboratory listed in Annex B, the competent authority must make sure, before taking the appropriate measures, that those results are reliable. In any event, the competent authority may adopt measures to control foot-and-mouth disease only in compliance with the general principles of Community law, including in particular the principle of proportionality and fundamental rights. (see paras 67, 79, operative part 2) 4. Given the important consequences for breeders flowing from decisions taken by the competent authority on the basis of Article 5 of Directive 85/511 introducing Community measures for the control of foot-and-mouth disease, as amended by Directive 90/423, of Article 2 of Decision 2001/246 laying down the conditions for the control and eradication of foot-and-mouth disease in the Netherlands in application of Article 13 of Directive 85/511, and of Article 10(1) of Directive 90/425 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market, the principle of respect for the rights of the defence requires, in connection with the control of foot-and-mouth disease, that the addressees of such decisions be, in principle, placed in a position in which they may effectively make known their views on the evidence against them on which the contested measure is based. However, since fundamental rights, such as respect for the rights of the defence, may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed, the protection of public health justifies, in principle, that the competent authority adopts appropriate measures against foot-and-mouth disease, even without first obtaining the views of interested parties on the elements on which the measures are based. Such a restriction would, moreover, be a disproportionate and intolerable intervention infringing upon the very substance of the rights of the defence only if the interested parties were given no opportunity to contest those measures in subsequent proceedings and to make their views known effectively at that stage. Moreover, given the imperative need to act promptly against foot-and-mouth disease, the principle of respect for the rights of the defence does not necessarily require that the implementation of those measures be postponed until those proceedings have come to an end. (see paras 74-77)