Joined Cases C‑78/16 and C‑79/16

Giovanni Pesce and Others

v

Presidenza del Consiglio dei Ministri and Others

(Requests for a preliminary ruling

from the Tribunale amministrativo regionale per il Lazio)

‛References for a preliminary ruling — Protection of plant health — Directive 2000/29/EC — Protection against the introduction into and spread within the European Union of organisms harmful to plants or plant products — Implementing Decision (EU) 2015/789 — Measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa (Wells and Raju) — Article 6(2)(a) — Obligation to remove host plants immediately, regardless of their health status, within a radius of 100 meters around the infected plants — Validity — Article 16(3) of Directive 2000/29 — Principle of proportionality — Precautionary principle — Obligation to state reasons — Right to compensation’

Summary — Judgment of the Court (First Chamber), 9 June 2016

Agriculture — Approximation of laws — Protection of plant health — Decision 2015/789 — Measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa — Competence with the precautionary principle and the principle of proportionality — Need for the Commission to amend the measures taken where new elements arise concerning the phytosanitary risk

See the text of the decision. (See paras 24-27)

Under Article 6(2)(a) of Decision 2015/789 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa, a Member State has the obligation to remove host plants immediately, regardless of their health status, within a radius of 100 metres around the plants infected by the bacterium Xylella, which belongs, under Annex I, Part A, Section I(b) of Directive 2000/29 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community, to the harmful organisms not known in any part of the European Union whose introduction and circulation must be prohibited in all Member States. That obligation is not in any way inconsistent with the obligations laid down in Article 6(3) and (4). As is clear from the heading of Article 6(4), the Member State concerned must, prior to the removal of the host plants referred to in Article 6(2)(a), apply an appropriate phytosanitary treatment which is not intended for the plants themselves but to the vectors of the bacterium, namely the infectious insects, in order to control those vectors by eradicating them or, as appropriate, by removing the plants that host those vectors. In that regard, the obligations laid down in Article 6(2) to (4) of Decision 2015/789 do not provide for autonomous obligations which are mutually exclusive but for a collection of intrinsically-linked measures differing in nature and in scope, which, as regards those provided for in Article 6(2)(a) and (4), must be applied in succession. The obligations laid down in Article 6(3) and (4) cannot therefore be understood as affecting the mandatory nature of the obligation to remove host plants within the radius concerned around the infected plants immediately. (see paras 34, 35, 38)

See the text of the decision. (see paras 47-49)

The validity of an EU act must be assessed on the basis of the facts and the law as they stood at the time when that act was adopted and cannot therefore depend on retrospective assessments of its efficacy. Where the EU legislature is obliged to assess the future effects of rules to be adopted and those effects cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question. Nevertheless, when new elements change the perception of a risk or show that that risk can be contained by less restrictive measures than the existing measures, it is for the institutions and in particular the Commission, which has the power of legislative initiative, to bring about an amendment to the rules in the light of the new information.

The same applies to the obligation, laid down in Article 6(2)(a) of Decision 2015/789 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa, to remove immediately, within a radius of 100 metres around the infected plants, host plants, regardless of their health status. If the situation were to change to the effect that the eradication of the bacterium Xylella no longer requires, on the basis of relevant scientific data, all the host plants within that radius to be removed immediately, it would be for the Commission, pursuant to Article 16(3) of Directive 2000/29 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community, to amend Decision 2015/789 or to adopt a new decision, in order to take account of that development, whilst taking account of the precautionary principle and the principle of proportionality. (see paras 50-52, 82)

The Commission was entitled to take the view that the obligation to remove the host plants of the bacterium Xylella immediately, regardless of their health status, as laid down in Article 6(2)(a) of Decision 2015/789 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa, was an appropriate and necessary measure for preventing the spread of that bacterium. In accordance with the objective of Directive 2000/29 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community, on the basis of which Article 6(2)(a) of Decision 2015/789 was adopted, that provision aims, as appears from recital 4 thereof, to eradicate the bacterium Xylella and thus to prevent its further spread beyond the Puglia Region. Health protection and the completion in the sector concerned of the agricultural internal market constitute legitimate objectives in the public interest pursued by EU legislation.

In addition, it is clear from a European Food Safety Authority (EFSA) opinion that olive trees are, to the same degree as a relatively high number of other plants, host plants of the bacterium Xylella. In that regard, although EFSA has not in its opinion proved the existence of a definite causal link between that bacterium and the rapid olive tree desiccation in the Puglia Region, that opinion nevertheless demonstrated a significant correlation between the bacterium and the occurrence of such a pathology. The precautionary principle, far from prohibiting the adoption of any measures in the absence of scientific certainty as to the existence or the extent of a health risk, may, on the contrary, justify the adoption by the EU legislature of protective measures even if scientific uncertainties remain in that regard. As regards the proportionality of Article 6(2)(a) of Decision 2015/789, the fact that the Commission limited the obligation to remove host plants, regardless of their health status, within a radius of 100 meters around the infected plants, although the vectors are capable of spreading the bacterium beyond that distance, shows that that obligation was limited to what is necessary for attaining the objective sought. In that regard, in the light of the precautionary principle, Article 16(3) of Directive 2000/29, read in conjunction with Article 16(1), must be understood as authorising the Commission to adopt any necessary measure to eradicate or contain the harmful organisms, so that if attainment of that objective requires that not only the infected insects but also all nearby host plants be removed, even if they do not show any symptoms of infection by the bacterium Xylella and are not suspected of being infected by it, that institution is empowered to impose such a measure. As regards the strict proportionality of that obligation, the EU legislature was obliged to reconcile the various interests at stake, namely, first, inter alia, the right to property of the owners of olive trees in the Puglia Region and the economic, social and environmental consequences for that region following the removal of the affected plants and, second, the importance of plant production in the European Union and the public interest in safeguarding effective protection of EU territory, including Italian territory beyond the province of Lecce, against the spread of the bacterium Xylella throughout the European Union. First of all, the obligation to remove all host plants within the radius concerned immediately was imposed by the Commission due to the rapid spread of the bacterium in the north of the province of Lecce, after that institution confined itself to prohibiting the movement of plants for planting out of that province, then, to imposing the removal of only the infected plants, thereby demonstrating a certain progression in the measures adopted. The Commission did not then impose the obligation to remove the host plants under all circumstances. By way of derogation from Article 6 of Decision 2015/789, only in the province of Lecce, when eradication is no longer possible, does Article 7 of that decision authorise the competent national authorities to adopt containment measures which do not entail the removal of all host plants situated in the vicinity of the infected plants. Lastly, as regards the issue of whether the host plants concerned could not be subject to less restrictive measures, such as pruning or pollarding olive trees and the application of a pesticide treatment, it appears from the EFSA opinion that no treatment is currently available to cure diseased plants in the field and, most often, plants that are contaminated remain infected throughout their life or collapse quickly. In those circumstances, although it is true that the obligation to remove all the host plants situated near to the infected plants is capable of harming both the right to property and the environment in the Puglia Region, the Commission was justified, within the frame of its wide margin of appreciation in that regard and having reconciled the various interests at stake, to impose that obligation. (see paras 54, 55, 58-60, 62, 68, 70, 74-76, 80, 81)

The EU legislature may consider, in the context of its broad discretion in the field of agricultural policy, that full or partial compensation is appropriate for owners of farms on which animals have been destroyed and slaughtered. Nonetheless, the existence, in EU law, of a general principle requiring compensation to be paid in all circumstances cannot be inferred from that fact. However, it should be noted that the right to compensation now flows directly from Article 17 of the Charter of Fundamental Rights of the European Union which governs the right to property. In addition, the mere fact that neither Directive 2000/29 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community nor Implementing Decision 2015/789 as regards measures to prevent the introduction into and the spread within the Union of Xylella fastidiosa provides specifically for a compensation scheme or that they do not impose an explicit obligation to provide for such a scheme cannot be interpreted as precluding such a right. It follows that the decision cannot be invalidated on that ground. (see paras 84-86)