Keywords

Summary



Keywords

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1. Agriculture ° Common organization of the markets ° Export refunds ° Intervention buying-in ° Interpretation by the Commission of the applicable rules ° No binding effect on Member States or individuals ° Indirect effects justifying review by the Court

2. Agriculture ° Common agricultural policy ° Commission ° Powers ° Interpretation of Community rules intended for Member States

3. Agriculture ° Common organization of the markets ° Export refunds ° Intervention buying-in ° Products of sound and fair merchantable quality ° Absence of Community rules laying down maximum radioactivity tolerances for the grant of export refunds on exports to non-member countries and for the intervention buying-in of contaminated foodstuffs ° Analogous application of the rules in force for imports of the same products originating in non-member countries ° Permissibility

(Council Regulation No 1569/77)

4. Agriculture ° Common organization of the markets ° Discrimination between producers or consumers ° Community rules laying down maximum radioactivity tolerances for agricultural products ° Regulation (Euratom) No 3954/87 and Regulation (EEC) No 3955/87 ° Setting of different maximum levels of contamination ° Discrimination ° None

(EEC Treaty, Art. 40(3); Council Regulations Nos 3954/87 and 3955/87)

5. Free movement of goods ° Common commercial policy ° Freedom to export ° Derogations ° Protection of public health ° Community rules laying down maximum radioactivity tolerances for agricultural products ° Permissibility

(EEC Treaty, Arts 30 and 110)

6. Agriculture ° Common agricultural policy ° Objectives ° Attainment ° Council' s discretionary power ° Observance of general-interest requirements relating to the protection of consumers or the health and life of humans

(EEC Treaty, Art. 39)

7. Agriculture °Common organization of the markets ° Export refunds ° Intervention buying-in ° Council' s duty to act following a nuclear accident ° Conditions

(EEC Treaty, Art. 39)

8. Agriculture ° Common organization of the markets ° Cereals ° Compensation for losses suffered following natural disasters ° Liability of the Community ° None

(Council Regulation No 2727/75)

9. Non-contractual liability ° Conditions ° Prolonged inactivity in the face of a legal obligation to act ° Case-by-case assessment of the period necessary to the Commission to submit a proposal

(EEC Treaty, Art. 215, second para.)

Summary

1. A communication issued by the Commission to the Member States is not an act binding on the Member States where it gives the Commission' s interpretation of the concept of a sound, fair and merchantable product fit for human consumption under the terms of Commission Regulation (EEC) No 1569/77 of 11 July 1977 fixing the procedure and conditions for the taking over of cereals by intervention agencies, and in Commission Regulation No 2730/79 laying down common detailed rules for the application of the system of export refunds on agricultural products. That interpretation does not have the force of law and can bind neither the competent authorities of the Member States nor, a fortiori, individuals. Therefore, such a communication does not constitute a legal decision by the Commission prohibiting the delivery into intervention of agricultural products whose levels of radioactivity exceed certain maximum limits or the grant of export refunds for such products.

None the less, although such interpretation had no binding force it was likely to prompt the competent authorities of the Member States to refuse to buy in for intervention the agricultural products concerned or to grant export refunds for such products. The Member States were at risk, had they ignored the interpretation given by the Commission, of having the reimbursement of their expenditure incurred for the agricultural products in question refused by the EAGGF. It is therefore necessary for the Court to examine the alleged incompatibility of the Commission' s interpretation with Community law.

2. As the guardian of Community law and managing authority of the EAGGF, the Commission has the power to remind the Member States of the Community rules which they are obliged to apply and in the context of its collaboration with the national authorities to give its own interpretation of those rules.

3. When the maximum levels of radioactive contamination permissible for buying-in and for the grant of export refunds have not yet been laid down in a regulation, it is appropriate for the purpose of describing an agricultural product as being of sound and fair merchantable quality within the meaning of Regulation No 1569/77 fixing the procedures and conditions for the taking over of cereals by intervention agencies to apply existing levels for imports into the Community of those products. The risk that contaminated products pose to human health does not in fact depend on the manner in which trade in those products is carried on.

4. By adopting different maximum permissible levels of contamination in Regulation (Euratom) No 3954/87 laying down maximum permitted levels of radioactive contamination of foodstuffs and of feedingstuffs following a nuclear accident or any other case of radiological emergency, on the one hand, and in Regulation No 3955/87 on the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power-station, on the other hand, the Council did not infringe the principle of non-discrimination laid down in Article 40(3) of the EEC Treaty.

In fact, the two regulations differ in content and objectives. Whereas Regulation (EEC) No 3955/87 specifically concerned the consequences of the Chernobyl accident and laid down the maximum levels of radioactive contamination in order to deal with that specific situation, Regulation (Euratom) No 3954/87 established a permanent system enabling the Community to lay down maximum levels of radioactive contamination in the event of future nuclear accidents or other emergency situations. As is apparent from Articles 2(1) and 3(4) of that regulation, the figures in the annex are merely of an ancillary nature and are only provisionally applicable, that is pending a decision laying down in actual cases precise maximum levels of radioactive contamination. Since two different situations were envisaged, the ancillary maximum levels contained in Regulation (Euratom) No 3954/87 could properly be fixed at a higher level than the specific maximum levels of Regulation (EEC) No 3955/87.

5. The principles of the free movement of goods and the freedom to export may be made subject to restrictions relating to the protection of public health, such as those stemming from the setting by Regulation No 1707/86 of maximum radioactivity tolerances for foodstuffs for human consumption.

6. Although the Council enjoys a wide margin of discretion in the attainment of the various objectives set out in Article 39 of the Treaty, it cannot, in the exercise of that power, disregard requirements relating to the public interest such as the protection of consumers or of the health and life of humans.

7. In view of the particular circumstances prevailing following the Chernobyl accident which were typified both by the novelty and gravity of the threat hanging over the health of consumers and by the lack of scientific knowledge which might have enabled the consequences of such an accident to be accurately assessed, the Council could do no more in the framework of the common agricultural policy than proceed on a step-by-step basis as and when the requisite information for determining the maximum levels of radioactivity permissible in the marketing of the contaminated agricultural products became available. Under those circumstances Article 39 cannot form the basis of a legal requirement on the part of the Council immediately after the Chernobyl accident to bring the rules on intervention buying and export refunds into line with the actual situation.

8. Neither the Treaty nor Regulation No 2727/75 on the common organization of the markets in cereals require the Council to adopt financial measures in direct compensation of the losses suffered by the producers following natural catastrophes or other exceptional occurrences.

9. In view of the complex and technical nature of the subject-matter and the paucity of scientific knowledge available to the Commission at the time of the Chernobyl accident with regard to permissible levels of radioactivity in foodstuffs, the period of thirteen months between the date of the Council' s request for proposals and the actual submission by the Commission of a proposal for definitive Community rules cannot be regarded as excessive, and therefore cannot render the Community liable.