62002CC0216_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. The Verwaltungsgerichtshof, which is the Austrian Administrative Court, has referred two questions to the Court of Justice for a preliminary ruling under Article 234 EC on the interpretation of Commission Decision 92/353/EEC of 11 June 1992 laying down the criteria for the approval or recognition of organisations and associations which maintain or establish stud-books for registered equidae, (2) specifically the first indent of Article 2(2).
The national court wishes to know, in essence, whether that provision confers on an organisation officially recognised in a Member State, which maintains stud-books for registered equidae, a right to have the competent authority refuse approval to another body, if it may endanger the preservation of the breed or jeopardise its operation or its improvement or selection programme. It also asks whether it would be compatible with that provision for the existing organisation, in proceedings for the recognition of a new organisation, to have the right to be heard but not the right to challenge the grant of recognition in the courts.
I – The facts in the main action
2. Since 14 August 1997, the Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen, the applicant in the main action, has been recognised in the Land of Burgenland as a breeding organisation for Shetland ponies in accordance with the Law on breeding animals of 2 March 1995 (Burgenländisches Tierzuchtgesetz).
3. In 1997 the Österreichischer Shetlandponyzuchtverband applied to the authorities of that Land for recognition as a horse-breeding organisation for the Shetland pony breed.
The Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen was given a hearing in the administrative procedure which followed; it opposed the granting of recognition, on the ground that it would endanger the preservation of the breed, that its operation as an existing organisation and its improvement and selection programme might be jeopardised and that, in contrast to the behaviour of the new body, its association observed the principles of the stud-book of the origin of the breed.
4. On 30 April 2001, the Burgenland Land
Government recognised the Österreichischer Shetlandponyzuchtverband, pursuant to Paragraph 9 of the Law on breeding animals, as a breeding organisation for horses of the Shetland Islands’ breed, in accordance with a specified programme for a period of 10 years. The Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen challenged that measure before the Verwaltungsgerichtshof.
5. In the main action, the defendant authorities contend that the Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen does not have standing to challenge the recognition of the Österreichischer Shetlandponyzuchtverband before the Verwaltungsgerichtshof, since it does not have the status of a party to the proceedings for recognition and therefore has no enforceable rights.
II – National legislation
6. Recognition of breeding organisations is regulated by Paragraph 9 of the Law on breeding animals. Under Paragraph 9(1), it is granted by the Land Government only if specific conditions are satisfied.
7. According to the information provided by the national court, the provisions relevant to this case are Paragraph 9(3) and (5), which read as follows:
‘3. Associations of breeders of which the substantive and geographical sphere of activity overlaps in whole or in part with that referred to in Paragraph 9(2)(5)(a) shall be entitled to a hearing in recognition proceedings.
...
5. If, for a particular breed, there already exists a recognised organisation, or there already exist several recognised organisations, the Government of the Land
shall refuse to recognise a new organisation of breeders if doing so would endanger the preservation of the breed or the breeding programme of an organisation already in existence.’
8. The Verwaltungsgerichtshof acknowledges that it has not had to apply Paragraph 9(3) of the Law on breeding animals before now. However, it has consistently held in relation to other laws that a legislative provision granting a person only the right to be heard in an administrative procedure does not confer on him full status as a party; he therefore has no right to require that the decision taken by the authorities have a specific content and cannot challenge that decision before the courts. (3)
According to Austrian law, in the main proceedings, the action brought by the Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen should be dismissed, without going into the question of whether recognition of the Österreichischer Shetlandponyzuchtverband as a breeding organisation endangers the preservation of the breed or the applicant’s breeding programme.
9. In order to determine the legal context of the questions raised, the Court of Justice put several questions to the parties in the case being heard before the national court, to the Austrian Government and to those who participated in the written procedure.
10. It asked, first, whether the term ‘breeding organisation’ used in Paragraph 9 of the Law on breeding animals corresponds to the term ‘organisation or association which maintains or establishes stud-books’ within the meaning of Article 2 of Decision 92/353 and whether an organisation breeding equidae, in order to be recognised by the official authorities, must maintain or establish a stud-book or a section for each breed.
Both the applicant in the main proceedings and the Austrian Government replied in the affirmative to both points.
11. The Court then asked whether, in a Member State in which there were several officially approved or recognised organisations or associations for the same breed of equidae, each could maintain or establish independently a stud-book for that breed, subject only to the condition that they observe the principles established by the organisation or association which maintains the stud-book of the origin of the breed.
According to the applicant, the Austrian legislation passed to implement Directive 90/427 did not incorporate Article 4(1) of that directive, under which breeding organisations which apply for recognition or approval have to respect the rules followed by the organisation which maintains the stud-book of the origin of the breed. (4) Nor did it include the second indent of Article 2(2) of Decision 92/353. Consequently, according to the applicant, the organisation whose recognition it seeks to challenge does not respect the rules of that stud-book and registers the animals according to different criteria.
The Österreichischer Shetlandponyzuchtverband acknowledged that all organisations and associations within the meaning of Article 2 of Decision 92/353 are required to maintain a separate stud-book for each breed. The Austrian Government and the Commission added that they must observe the principles laid down by the organisation which maintains the stud-book of the origin of the breed.
12. The Court asked, finally, whether, where two or more breeding organisations have the same substantive and geographical area of activity, they compete for the participation of breeders in their respective improvement or selection programmes or programmes to preserve the breed, and whether the activities of those recognised organisations receive support under national or Community legislation.
The applicant answered the first part of the question in the affirmative and said it was concerned about the problem caused by the recognition of several breeding associations for a breed of such small numbers as the Shetland Island Pony, which makes it necessary to divide the number of males and females set aside for breeding and increases the level of consanguinity. As regards the possibility of obtaining aid, it stated that in Austria there are general actions to promote agriculture which benefit all legal persons.
The Österreichischer Shetlandponyzuchtverband stated that breeding organisations whose area of activity is confined to the same Land
do compete with each other, and also that they are entitled to some kind of support.
The Austrian Government and the Commission confirmed that there may be competition between organisations. With regard to benefits, the former denied their existence whereas the latter stated that, according to point 15 of the Community Guidelines on State aid in the agricultural sector, (5) the Commission, in order to support the maintenance and improvement of the genetic quality of Community livestock, permitted the grant of aid in the sector, including for horses, consisting of contributions of up to 100% of the administrative costs of establishing and maintaining stud-books and up to 40% of the eligible costs for investments in animal reproduction centres and in the introduction of innovative animal breeding techniques or practices.
III – The questions referred for a preliminary ruling
13. Before deciding the main action, the Verwaltungsgerichtshof has asked the Court of Justice for a ruling on the following questions:
‘(1) Does the first indent of Article 2(2) of … Decision 92/353 … confer on an association (organisation) of breeders already in existence a right to have the competent authority refuse to recognise another organisation (another association) if to recognise that other organisation (association) would endanger the preservation of the breed or jeopardise the operation or the improvement or selection programme of an organisation or association already in existence?
(2) Does the first indent of Article 2(2) of … Decision [92/353] … preclude the application of a provision of national law which
(a) confers on an organisation or association already in existence only the right to be heard in proceedings before the competent authority for the recognition of another organisation (association), but not the right to have recognition of that other organisation (association) refused where recognition would endanger the preservation of the breed or jeopardise the operation or the improvement or selection programme of an existing organisation or association, and
(b) does not give the organisation or association already in existence the right to challenge before the courts (the Verwaltungsgerichtshof) the recognition granted in spite of its submissions to the contrary?’
IV – Community legislation
14. On 26 June 1990 the Council adopted Directive 90/427/EEC of 26 June 1990 on the zootechnical and genealogical conditions governing intra-Community trade in equidae (6) with the aim of establishing rules governing the marketing of equidae in order to ensure the rational development of equidae production, thereby increasing productivity in that sector.
It is pointed out in the statement of reasons that disparities as regards entry in studbooks constitute a barrier to intra-Community trade, the liberalisation of which calls for further harmonisation, particularly regarding entry in stud-books. (7)
15. Under Article 4(2), the Commission is required to establish, in accordance with the principles set out in Article 4(1):
‘(a) the criteria for the approval or recognition of organisations and associations which maintain or establish stud-books;
...’
16. On 11 June 1992, the Commission approved Decision 92/353, intended to implement in particular Article 4(2)(a) of Directive 90/427. Article 2 of that Decision provides:
‘1. The authorities of the Member State concerned must grant official approval or recognition to any organisation or association which maintains or establishes a stud-book, provided it meets the conditions laid down in the Annex.
2. However, in a Member State where one or more officially approved or recognised organisations or associations already exist in respect of a given breed, the authorities of that Member State may refuse to recognise a new organisation or association:
– if it endangers the preservation of the breed or jeopardises the operation or the improvement or selection programme of an existing organisation or association, or
– if equidae of that breed may be entered or registered in a specific section of a stud-book maintained by an organisation or association which applies in particular for that section the principles laid down in accordance with point 3(b) of the Annex by the organisation or association which maintains the stud-book of the origin of that breed.
3. Member States shall inform the Commission of any official approval or recognition granted, as well as contested refusals.
4. Where an organisation or association in a Member State is refused official approval or recognition, the reasons for the refusal must be communicated in writing to the association or organisation.’
V – The procedure before the Court of First Instance
17. The Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen, which is the applicant in the main proceedings, the Austrian Government and the Commission submitted written observations in these proceedings within the period laid down in Article 23 of the Statute of the Court of Justice.
At the hearing, which took place on 4 December 2003, the representative of the Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen and the Commission’s agent presented oral argument.
VI – The first question
18. The Austrian court wishes to know, first, whether the first indent of Article 2(2) of Decision 92/353 confers on an organisation which maintains stud-books for registered equidae, the right, when a new organisation applies for official recognition, to require the competent authorities to adopt an unfavourable decision, if one of the two conditions referred to in that provision is met.
A – The observations submitted
19. The Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen suggests that the Court of Justice answer in the affirmative. It maintains that the first and second indents of Article 2(2) of Decision 92/353 are clear, precise and unconditional and may therefore have direct effect to the benefit of individuals. It takes the view that the word ‘may’, used in respect of the Member States, should be interpreted as meaning that, provided there are grounds for refusing recognition, an existing association has the right to call on the national authorities to refuse to grant approval to the new organisation. It would make no sense for a Member State to use the discretion it apparently enjoys with regard to recognition if a legally protected right had not at the same time been conferred on existing organisations to contest the approval.
20. The Austrian Government maintains that the aim of the first indent of Article 2(2) of Decision 92/353 is to ensure that the national authorities, acting independently, examine applications for official recognition from breeding organisations in the light of objective, pre-established criteria; not, as the applicant in the main proceedings asserts, to uphold the interests of competitors. Since this Community rule has been correctly incorporated into Austrian law by the Law on breeding animals, specifically by Paragraph 9(5) thereof, there is no need to raise the question of its direct applicability. In any event, its provisions are neither unconditional nor sufficiently precise and therefore may not be relied on in proceedings by individuals.
21. For its part, the Commission states that, in the circumstances specified in the first and second indents of Article 2(2) of Decision 92/353, the competent authorities of the Member States are released from their obligation under Article 2(1) to recognise any new organisation or association. Article 2(2) thus grants a discretionary power to refuse recognition, without imposing on them the duty to refuse it, and therefore does not create a right for existing organisations to demand an unfavourable decision.
At the hearing, the Commission stated that Directive 90/427 and Decision 92/353 were adopted with the aim of promoting the setting-up of associations and organisations, recognised by the national authorities, to maintain the stud-books of horse breeds, in compliance with the principles laid down by the organisation which maintains the stud-book of the origin of the breed, in order to eliminate disparities with regard to registration.
B – Consideration of the question
22. I agree with the Austrian Government and the Commission that this question must be answered in the negative.
23. Breeding organisations and associations fulfil a very important role in the project endorsed by Directive 90/427 since, in the statement of reasons, it is stated that satisfactory results in that respect depend largely on the use of equidae registered in stud-books maintained by officially approved organisations or associations. So much so that the Council asked the Commission to set the criteria for the approval of that kind of organisation and association, with the fundamental condition that they should observe the principles laid down by the organisation or association which maintains the stud-book of the breed.
24. The Commission fulfilled that task by adopting Decision 92/353, Article 2(2), first indent, of which the Court is now interpreting at the request of the Verwaltungsgerichtschof.
25. Article 2(1) of Decision 92/353 lays down the general rule that the competent authorities of each Member State concerned are to grant official approval or recognition to any organisation or association which maintains or establishes a stud-book, has its headquarters in the territory of that Member State, submits an application and meets the conditions laid down in the Annex.
26. However, the first indent of Article 2(2) contains an exception to that broad requirement because it empowers Member States, in fulfilment of their duty to protect the general interest, to diverge from that obligation. Under that provision, when, in a Member State, one or more officially approved organisations or associations already exists in respect of a breed, recognition of a new organisation may be refused in two circumstances: if it endangers the preservation of the breed or if it jeopardises the operation or the improvement or selection programme of an existing association.
As I have pointed out in the paragraph devoted to the provisions of national law, the Austrian legislature opted to restrict its authorities’ room to manoeuvre, since Paragraph 9(5) of the Law on breeding animals requires recognition of a new organisation to be refused if one of those two circumstances is present.
27. Certain rights in favour of individuals may be inferred from the wording of Article 2 of Decision 92/353, which is addressed to the Member States. However, I would point out that the beneficiaries of the rule are only the new associations which maintain or establish stud-books: if they meet the requirements, they are entitled to official recognition. Thus, if such recognition is refused, they may request notification in writing specifying the reasons for the refusal.
28. It remains to be seen whether the first indent of Article 2(2) of Decision 92/353 confers rights on existing associations, as the Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen asserts.
29. As regards the danger which the new association represents for the preservation of the breed, it is the national authorities responsible for considering that possibility which are best placed to assess, in the light of the public and private interests at stake, whether that risk is present in any specific case.
30. With regard to the assessment of the effect on the operation or the improvement or selection programme of an existing organisation or association, I consider that the rule means that the national authorities must give a hearing to existing organisations before reaching a final decision on new applications for approval. (8)
31. However, it does not follow that an existing organisation’s opinion opposing recognition is binding on the competent authorities, with the result that the application has to be refused.
First, it is not possible to reach that interpretation from the wording of the rule or from the aim it pursues.
Secondly, to allow that result would be tantamount to handing exorbitant power to private organisations, merely because they have obtained recognition earlier. It must be borne in mind, in particular, that the Community provision is worded in such a way that it empowers, but does not require, Member States, in either of the situations envisaged, to refuse approval of a new organisation even though it meets the conditions laid down. Furthermore, the existing organisations are under continuous review because their official recognition is withdrawn if they cease permanently to comply with the conditions they were required to meet when they obtained approval.
32. For the aforementioned reasons, I consider that the first indent of Article 2(2) of Decision 92/353 does not confer on an organisation which maintains stud-books for registered equidae the right, when a new organisation applies for official recognition, to demand of the competent authorities that they adopt a negative decision.
VII – The second question
33. The Austrian court also asks whether the first indent of Article 2(2) of Decision 92/353 precludes the application of a provision of national law which, when regulating the procedure for official approval of a new breeding association, grants existing associations only the right to be heard, and not the right to have recognition refused, and does not entitle them to contest recognition, even if they have expressed their opposition at the hearing.
A – The observations submitted
34. The Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen argues that the Community legislation takes precedence over Paragraph 9(3) of the Law on breeding animals.
Given that a new organisation may be approved if it does not jeopardise the operation of an existing organisation, it has to be acknowledged that the role of the latter in the proceedings entails an individual right, based on public law, to press for a review of the decision adopted, a power which is not included in the opportunity to be heard. It is therefore necessary, in order to ensure the substantive legal position conferred by the Community legislation, that, in proceedings for recognition of a new organisation, an existing organisation should enjoy all the powers and rights related to status as a party. Otherwise, the Member States, when deciding who has the capacity to bring proceedings, would be free to neutralise a right arising under Community law.
35. For the Austrian Government, the rights conferred on individuals by the aforementioned Community legislation are applied through national procedural rules. Article 2(2) of Decision 92/353 means that it is for the competent authorities of the Member States to assess whether the criteria laid down are met, without entitling competitors to oppose the recognition of a new association. By incorporating that provision into national law, the Austrian legislature has not only scrupulously guaranteed observance of the Community rule but has also taken into account the interests of third parties by granting them a right to be heard which is not provided for in Article 2 of Decision 92/353.
36. The Commission considers that the rights conferred on third parties under Decision 92/353 are respected if the existing organisation simply has the right to be heard in proceedings for recognition of a new association. It adds that the powers conferred on it by the Council in Directive 90/427 are restricted to the context of internal trade and do not extend to the opportunities for existing associations to participate in administrative proceedings or to defend their interests before the courts.
B – Consideration of the question
37. I would point out that it cannot be inferred from the wording of the first indent of Article 2(2) of Decision 92/353 that existing organisations have the rights with which the Austrian court is concerned. That provision confines itself to stating the circumstances in which Member States are empowered to refuse official recognition to a new association, and it is therefore for the competent authorities in each country to assess whether either of the two hypotheses envisaged arises.
38. Nor, in the light of the purpose of that provision, is it necessary for those rights to be conferred. Decision 92/353 governs the criteria for the approval of associations which maintain stud-books for registered equidae. It is therefore those organisations, the ones seeking recognition, which may rely on the content of the provision in question.
39. On the contrary, existing associations and organisations do not appear in that provision as the holders of rights: they are only mentioned, indirectly, when the competent authorities are entrusted with assessing, in order to approve a new association or organisation, whether it may jeopardise the operation or improvement or selection programme of one which is already active.
Clearly, in the course of that assessment, it is a measure of sound administration for the authorities to give a hearing to existing organisations before taking a decision on recognition; that is what the Austrian legislation appears to do. It does not follow that the first indent of Article 2(2) of Decision 92/353 requires the Member States to allow such organisations to contest an approval granted to a competitor organisation against their wishes and interests.
40. For the reasons stated, I consider that the first indent of Article 2(2) of Decision 92/353 does not preclude the application of a national provision which, in regulating the procedure for official approval of a new breeding association, grants existing associations only the right to be heard, denying them any right to bring legal proceedings to contest the approval, even if they have expressed their opposition at the hearing.
VIII – Conclusion
41. In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the Verwaltungsgerichtshof:
(1) The first indent of Article 2(2) of Commission Decision 92/353/EEC of 11 June 1992 laying down the criteria for the approval or recognition of organisations and associations which maintain or establish stud-books for registered equidae does not confer on an existing organisation of breeders the right, when a new organisation applies for official recognition, to demand of the competent authorities that they adopt a negative decision.
(2) The first indent of Article 2(2) of Decision 92/353 does not preclude the application of a national provision which, in regulating the procedure for official approval of a new breeding association, grants existing associations only the right to be heard, denying them any right to bring legal proceedings to contest the approval, even if they have expressed their opposition at the hearing.
(1) .
(2)
–	OJ 1992 L 192, p. 63.
(3)
–	The Commission, for its part, points out in its written observations that Austrian administrative law distinguishes between those who are parties to proceedings and those who have the status only of interested persons. The former are those who have a legal interest or right whereas the latter are those who ask the authorities to act or who are affected by the administrative measure. The most distinctive right enjoyed by those who are parties is that they can appeal against the authorities’ decision, which those who are merely interested persons are forbidden to do.
(4)
– At the request of the national court, the applicant’s lawyer informed the Court of Justice, at the hearing, that the organisation which maintains the stud-book of the origin of the Shetland Islands Pony breed is situated in Scotland.
(5)
– OJ 2000 C 28, p. 2.
(6)
–	OJ 1990 L 224, p. 55.
(7)
– Fifth recital.
(8)
–	The same holds true, in my view, as regards the application of Article 2(2)(b) of Decision 92/353, for which the Austrian court does not seek an interpretation, that is to say, where equidae may be registered in a specific section of a stud-book maintained by another association which observes the principles laid down by the organisation which maintains the stud-book of the origin of the breed; the aim of the rule is to avoid an unjustified proliferation of associations with the same object.