Keywords

Summary



Keywords

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1. Actions for annulment ° Interest in bringing proceedings ° Action brought against a measure which has been repealed ° Effects of repeal and annulment

(EEC Treaty, Arts 174 and 176)

2. Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Commission decision, adopted pursuant to Directive 90/425 and addressed to the Member States, prohibiting exports of an animal species from certain Member States or making such exports subject to special conditions ° Traders in the sector affected and their representative associations

(EEC Treaty, Art. 173, second para.; Council Directive 90/425)

3. Actions for damages ° Distinct in nature from actions for annulment ° Exhaustion of domestic remedies ° Exception ° Impossibility of obtaining satisfaction before national courts by reason of the fact that the damage is attributable to the Community

(EEC Treaty, Art. 178)

4. Non-contractual liability ° Conditions ° Legislative measure implying choices of economic policy ° Commission decision, based on Article 10(3) and (4) of Directive 90/425, prohibiting exports of an animal species from certain Member States or making such exports subject to special conditions ° Sufficiently serious breach of a superior rule of law for the protection of individuals

(EEC Treaty, Arts 43 and 215, second para.; Council Directive 90/425, Art. 10(3) and (4))

5. Non-contractual liability ° Conditions ° Legislative measure implying choices of economic policy ° Sufficiently serious breach of a superior rule of law for the protection of individuals ° Prohibition or restrictive measures applying to exports of an animal species from certain Member States with a view to preventing the spread of an epidemic ° Principles of proportionality, equal treatment and the protection of legitimate expectations ° Breach ° No breach ° Liability not incurred

(EEC Treaty, Art. 215, second para.; Council Directive 90/425, Art. 10(3) and (4); Commission Decisions 93/128 and 93/177)

Summary

1. An applicant may have an interest in bringing an action for annulment against a measure which has been repealed, since repeal does not have the same legal effects as annulment by the Court. The repeal of a measure of an institution does not amount to recognition of its illegality and takes effect ex nunc, whereas annulment takes effect ex tunc. Moreover, an institution whose measure has been declared void is obliged, under Article 176 of the Treaty, to take the steps necessary to comply with the judgment, which may require restoration of the original position in order to remove the effects of the measure or refusal to adopt an identical measure.

2. Where it is directed against a Commission decision, adopted pursuant to Directive 90/425, concerning health controls in intra-Community trade in certain animals and addressed to the Member States, prohibiting exports of a species from certain Member States or requiring those States to take specific veterinary-control measures, an action for annulment brought by traders carrying on, in those States, an activity involving trade in or export of the species concerned will be inadmissible.

Those traders are not affected by such a decision by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, such that they may be regarded as individually concerned within the meaning of the second paragraph of Article 173 of the Treaty. In the first place, the fact that their number and identity were already known before the decision was adopted is not sufficient to confer that capacity on them. Second, they cannot rely on the fact that they participated, or ought to have participated, in the procedure which led to the adoption of the decision, since traders are not entitled to be heard when the Commission adopts conservation measures under the above directive, and their position cannot be different simply because they notified the Commission of their criticism regarding the decision taken. Finally, the Commission was not under any obligation to take account of the consequences which its decision would have on those traders' position.

An action against that decision brought by an association representing those traders will also be inadmissible unless it is able to establish that it has a particular interest deriving from its negotiating position vis-à-vis the Commission or that it has substituted itself for its members who were themselves entitled to bring an action.

3. An action for damages is an autonomous form of action with a particular function to fulfil within the system of remedies provided for by the Treaty.

An action for damages will be inadmissible on the ground that remedies have not been exhausted under national law only if the remedies available under national law effectively ensure protection for individuals aggrieved by measures of the Community institutions. That will not be the case where the illegality alleged originates not from a national body but from a Community institution. The damage will then be attributable to the Community, and its reparation cannot be guaranteed by recourse to remedies under national law, since the Community judicature has exclusive jurisdiction to hear actions seeking compensation for such damage.

4. The non-contractual liability of the Community for legislative measures, particularly those relating to economic policy, can be incurred only if there has been a breach of a superior rule of law for the protection of individuals. If the institution has adopted the measure in the exercise of a wide discretion, the Community cannot be rendered liable unless, in addition, the breach is explicit, that is to say, it is of a manifest and serious nature.

That precisely is the case where traders seek to engage the liability of the Community in a case in which the Commission, within the common agricultural policy, has exercised its power under Article 10(3) and (4) of Directive 90/425 in order, by way of a decision addressed to the Member States, to impose a prohibition on exports of a species of animal from certain Member States or impose special conditions on such exports.

The superior rules of law for the protection of individuals include the principle of proportionality, the prohibition of misuse of powers, the principle of equal treatment, the principle of the protection of legitimate expectations and the right to be heard.

5. Neither Decision 93/128, prohibiting exports of a species of animal from certain Member States, nor Decision 93/177, which makes those exports subject to special conditions, renders the Community liable vis-à-vis traders who, in the Member States affected, deal in or export the species concerned, as against whom the adoption of those measures did not constitute a manifest and serious breach of the principles of proportionality, equal treatment or the protection of legitimate expectations.

In an emergency situation, characterized by the appearance of a dangerous disease capable, in view of the high level of exports, of spreading easily in other Member States, and by the risk that some Member States might adopt unilateral measures of protection, the Commission did not, by first adopting Decision 93/128, for a limited period of application, for the purpose of protecting public and animal health, and subsequently Decision 93/177, allowing exports to be resumed, infringe the principle of proportionality in a manifest and serious manner.

Nor can the Commission be held to have infringed the principle of equal treatment if the position in the Member States whose exports were affected by those decisions was not comparable to that in the other Member States.

Finally, those traders whose activities were hindered could not have a legitimate expectation that, if it were to find itself in a situation such as that with which it was confronted, the Commission would not take measures such as those which it did adopt.