Case T-155/99

Dieckmann & Hansen GmbH

v

Commission of the European Communities

‛Common Agricultural Policy — Decision 1999/244/EC amending Decision 97/296/EC drawing up the list of third countries from which the import of fishery products is authorised for human consumption — Non-contractual liability of the Community’

Judgment of the Court of First Instance (Fifth Chamber), 23 October 2001 II-3148

Summary of the Judgment

Agriculture — Approximation of laws on food hygiene — Directive 91/493 — Supervisory measures for importations of fishery products from third countries — Decision to include or remove a country from the list of third countries authorised to export to the Community — Decision not including transitional measures and based on overriding public interest — Principle of the protection of legitimate expectations — Breach — None

The rules on non-contractual liability of the Community for damage caused by its institutions or by its servants in the performance of their duties, developed by the Court with regard to the second paragraph of Article 215 of the Treaty (now the second paragraph of Article 288 EC), take into account the complexity of the situations to be regulated, difficulties in the application or interpretation of the texts and, more particularly, the margin of discretion available to the author of the act in question. Where the Community institutions enjoy a wide discretion in implementing their policies, the condition relating to unlawful conduct on the part of the institution is met if it is established that the rule of law infringed is intended to confer rights on individuals and the breach is sufficiently serious. As to the requirement that the breach be sufficiently serious, the decisive test for whether a breach of Community law is sufficiently serious is whether the Community institution manifestly and gravely disregarded the limits on its discretion. Nevertheless, where the institution has only a limited discretion, or even none at all, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach. In that regard, whether a measure taken by an institution is general or individual is not decisive for determining the limits of the discretion enjoyed by the institution. (see paras 41-45)

It is clear from both the letter and the spirit of Directive 91/493 laying down the health conditions for the production and the placing on the market of fishery products for human consumption, Decision 95/408 on the conditions for drawing up, for an interim period, provisional lists of third country establishments from which Member States are authorised to import certain products of animal origin, fishery products or live bivalve molluscs and from their legal basis, namely Article 43 of the Treaty (now, after amendment, Article 37 EC), that those acts fall within the scope of the common agricultural policy and are intended to guarantee the protection of public and animal health. It follows that where the Community legislature adopts measures establishing arrangements for the supervision of importations of fishery products from third countries, such as Directive 91/493 and Decision 95/408, it enjoys a broad discretion. Accordingly, the Commission must also be recognised as having wide discretion where it adopts measures implementing arrangements for the supervision of importations of fishery products, such as whether a third country is to be entered in or removed from the list of third countries authorised to export fishery products to the Community. In that connection, it is clear from the wording of Article 2(3) of Decision 95/408, which empowers the Commission to modify or complete such a list in order to take account of new information received, that the Commission enjoys a wide discretion when adopting, on the basis of that article, a decision to remove a country from the list of third countries from which the import of fishery products is authorised. (see paras 51-53)

In the context of the application of Directive 91/493 laying down the health conditions for the production and the placing on the market of fishery products intended for human consumption and Decision 95/408 on the conditions for drawing up, for an interim period, provisional lists of third country establishments from which Member States are authorised to import certain products of animal origin, fishery products or live bivalve molluscs, a caviar importer cannot criticise the Commission for having considered that the general risk which imports from a third country represent, rather than proof of actual risk which certain products or consignments present, determines whether authorisation to import is to be granted or withdrawn. Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent. In that regard, in view of the objectives pursued by Directive 91/493 and Decision 95/408 governing the supervision of importations of fishery products coming from third countries and in the light of the fact that the serious problems identified by Community experts during an inspection concerned not so much specific difficulties observed on the production sites concerned but deficiencies in the general system of health supervision in the country concerned which, in view of their structural nature, were likely to affect also supervision of caviar production, the Commission was entitled to take the view that it should ban imports of caviar without waiting to order an inspection of the caviar production plants when they were working. By deciding to withdraw its authorisation to import the product coming from those countries into the Community, the Commission did not offend against the principle of sound administration inasmuch as the conclusions to which the Commission arrived are plausible and are not based on a misassessment of the facts. Moreover, by adopting that decision, it fully observed its obligations to take account of requirements relating to the public interest, such as the protection of consumers or the protection of the health and life of humans and animals, in its efforts to achieve objectives of the common agricultural policy and to accord to the protection of public health precedence over economic considerations. (see paras 73, 75-76)