Opinion of the Advocate General — ECLI:EU:C:2004:63
Date: 2004-01-29
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Approximation of laws;Veterinary legislation
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Community law – Interpretation – Methods – Interpretation of secondary legislation in the light of international agreements concluded by the Community 2. International agreements – European Economic Area Agreement – Interpretation in accordance with the Court’s earlier case-law – Conditions – Interpretation of Article 13 (Art. 30 EC; EEA Agreement, Arts 6 and 13) 3. Agriculture – Harmonisation of legislation on animal health – Protection measures with regard to transmissible spongiform encephalopathies – Fishmeal used in the feed of animals other than ruminants – Presence of other unauthorised substances – Not permissible – Level of tolerance – Absence (Art. 152 EC; Council Decision 2000/766, Art. 2(2); Commission Decision 2001/9, Art. 1(1)) 4. Agriculture – Harmonisation of legislation on animal health – Protection measures with regard to transmissible spongiform encephalopathies – Fishmeal used in the feed of animals other than ruminants – Destruction of consignments contaminated with other unauthorised substances – Measure laid down by Community law which cannot be regarded as a sanction (Council Decision 2000/766, Art. 3 (2)) 5. International agreements – European Economic Area Agreement – Free movement of goods – Derogations – Protection of health of humans and animals – Conditions – Protection measures with regard to transmissible spongiform encephalopathies – Whether permissible (EEA Agreement, Art. 13; Council Decision 2000/766; Commission Decision 2001/9) 1. The primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements. (see para. 33) 2. As Article 6 of the European Economic Area (EEA) Agreement states, the provisions of that agreement, in so far as they are identical in substance to corresponding rules of the Treaty and acts adopted in application of that Treaty, must, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court given prior to the date of signature of that agreement. Furthermore, it is necessary to ensure that the rules of the EEA Agreement which are identical in substance to those of the Treaty are interpreted uniformly. That is the case with Article 13 of that agreement which is identical in substance to Article 30 EC. (see paras 34-35) 3. In the context of the prohibition of the use of processed animal proteins in the feeding of certain livestock, laid down by Decision 2000/766 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein, the first indent of Article 2(2) of that decision, which excludes from that prohibition in certain circumstances fishmeal used in the feeding of animals other than ruminants, and Article 1(1) of Decision 2001/9 concerning control measures required for the implementation of Decision 2000/766, which sets the conditions for that exclusion, together with the other Community rules on which those provisions are based, must be interpreted as meaning that the presence, even accidental, of unauthorised substances in fishmeal used for those purposes is prohibited and that they allow traders no level of tolerance. Given that those decisions were adopted to combat transmissible spongiform encephalopathies, which, according to the commonly accepted working hypothesis amongst the scientific community, are primarily transmitted by the ingestion of food containing prions, and that it is impossible for it to identify precisely the minimum amount of infected material required to lead to disease in humans and, having regard to Article 152 EC and the public health objective which they pursue, those decisions must be interpreted widely and the exception they lay down in respect of fishmeal must be interpreted narrowly. (see paras 41, 43-44, 46, 56, operative part 1) 4. In relation to Decision 2000/766 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein and Decision 2001/9 concerning control measures required for the implementation of Decision 2000/766 the destruction of consignments of fishmeal used in feeding animals other than ruminants where they are contaminated with unauthorised substances cannot be regarded as a sanction but as a preventive measure laid down by Article 3(2) of Decision 2000/766 which, in that respect, leaves no discretion to the Member States. A contaminated consignment must be regarded as unfit for consumption and must if necessary be destroyed whilst taking all necessary precautions to avoid environmental contamination. (see paras 54-56, operative part 1) 5. Pursuant to Article 13 of the European Economic Area (EEA) Agreement, in the absence of harmonisation and to the extent that uncertainties continue to exist in the current state of scientific research, it is for the Contracting Parties to decide on the level of protection of human health they wish to ensure, taking account of the fundamental requirements of EEA law and, in particular, the free movement of goods in that area. A risk-management decision rests with each Contracting Party, which has a discretion as to the level of risk it considers appropriate. Under those conditions, a Contracting Party may invoke the precautionary principle, according to which it is sufficient to show that there is relevant scientific uncertainty with regard to the risk in question. That discretion must, however, be open to judicial review. Measures adopted by a Contracting Party must be based on scientific evidence; they must be proportionate, non-discriminatory, transparent and consistent with similar measures already adopted. In that regard, the measures adopted by Decision 2000/766 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein and Decision 2001/9 concerning control measures required for the implementation of Decision 2000/766, which lay down exceptions to the free movement of goods in so far as they contain various prohibitions relating to animal proteins, form part of a coherent body of legislation the purpose of which is to combat those encephalopathies. They were adopted on the recommendation of experts having at their disposal the relevant scientific data and they are applicable without distinction to all fishmeal likely to be used in the European Community. It follows that those measures do not infringe the principle of proportionality of EEA law and that they are justified by the protection of human and animal health within the meaning of Article 13 of the EEA Agreement. (see paras 57-59, 61-62, operative part 2)