Opinion of the Advocate General — ECLI:EU:C:2005:97
Date: 2005-02-17
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Provisions governing the Institutions;Veterinary legislation
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the Judgment 1. Community law – Actions for annulment or for failure to act – Obligation on a Member State to bring such an action for the benefit of one of its citizens – No such obligation – Existence of such an obligation and liability on the part of the State under national law – Whether permissible – Limits (Arts 10 EC, 230 EC and 232 EC) 2. Agriculture – Approximation of laws on human and animal health – Veterinary and zootechnical checks in intra-Community trade in live animals and animal products – Protection measures against bovine spongiform encephalopathy – Decision 94/381 – System which makes it possible to distinguish protein of ruminant origin from protein of non-ruminant origin – Request by a Member State to be authorised to allow ruminants to be fed with protein derived from species other than ruminants – Obligation on the Commission to submit a proposal to the Council – No such obligation – Conditions (Council Directives 89/662, Art. 17, and 90/425, Art. 17; Commission Decision 94/381, Art. 1(2)) 1. Community law does not impose any obligation on a Member State to bring an action for annulment, pursuant to Article 230 EC, or for failure to act, pursuant to Article 232 EC, for the benefit of one of its citizens. Community law does not, however, in principle preclude national law from containing such an obligation or providing for liability to be imposed on the Member State for not having acted in such a way. With regard to the latter, it is not apparent how Community law could be infringed if national law contained such an obligation or provided that the Member State would be liable in such a case. A Member State could, however, be in breach of the obligation of sincere cooperation laid down in Article 10 EC if it did not retain a degree of discretion as to the appropriateness of bringing an action, thereby giving rise to a risk that the Community Courts might be inundated with actions, some of which would be patently unfounded, thereby jeopardising the proper functioning of the Court of Justice. (see paras 31-32, operative part 1) 2. Article 1(2) of Decision 94/381 concerning certain protection measures with regard to bovine spongiform encephalopathy and the feeding of mammalian derived protein, read in conjunction with Article 17 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, and with Article 17 of Directive 89/662 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market, must be construed as meaning that, if the material available to the Commission does not enable it to establish that the controls carried out within the framework of a system which makes it possible to distinguish between animal protein of ruminant origin and that of non-ruminant origin, submitted for its appraisal by a Member State with a view to obtaining authorisation, offer adequate guarantees in regard to the protection of public health, and if the matter has been referred to the Standing Veterinary Committee at the request of a Member State but that Committee has not taken a position, particularly by reason of new information altering the perception of the risk to public health, the Commission is not obliged to submit to the Council a proposal relating to the measures to be taken. (see paras 41-43, operative part 2)