Opinion of Mr Advocate General Lenz delivered on 24 June 1987. - Italian Republic v Commission of the European Communities. - Removal from the register. - Case 289/85.



European Court reports 1987 Page 05321



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts

1 . In spring 1985, there was an outbreak in Belgium of African swine fever, a disease which is regarded as particularly dangerous because no innoculation exists against the virus which is the cause of it . To be precise, it was discovered on five farms on 8 March 1985, on another farm on 11 March, on three farms on 16 and 17 March and on three more farms on 13, 22 and 23 May 1985 .

2 . On that ground, the Belgian authorities immediately adopted a series of measures, including the slaughtering of pigs from the infected holdings and the prohibition of slaughtering in the infected area and in adjoining areas ( I refer the Court to the documents in the case for further details ).

3 . The Italian Government also reacted and prohibited the bringing into Italy of pigmeat products from the entire territory of Belgium . That was done under Article 7 ( 1 ) ( b ) of Council Directive 80/215/EEC on animal health problems affecting intra-Community trade in meat products, ( 1 ) which provides that where there is an outbreak of a new, serious and infectious animal disease, Member States may temporarily prohibit or restrict the introduction, from the entire territory of that State, of products prepared from the meat of animals which are susceptible to those diseases .

4 . As was also provided for in the aforementioned directive, the Commission took action as well . On 18 March 1985 it adopted Decision 85/192/EEC ( 2 ) according to which the Member States were to prohibit inter alia the introduction into their territory of meat-based products and pigmeat coming from Belgium other than those products which had been submitted to the treatment mentioned in Article 4 ( 1 ) ( a ) of Directive 80/215 ( which, as the Court has heard, means complete sterilization ). That decision was later amended by decisions of 12 April 1985 and 21 June 1985 so as to limit the measures adopted to certain parts of Belgium . In summer 1985, the Commission also considered whether the measures could be further relaxed and in particular, whether exceptions to the restrictions on trade could be provided for in respect of forms of heat treatment other than complete sterilization under Article 4 ( 1 ) ( a ) of Directive 80/215/EEC . The applicant government opposed the Commission' s efforts from the very start and, as it observes, was initially successful . However, after the Scientific Veterinary Committee had expressed its opinion on the matter on 9 July 1985 ( the contents of which will be discussed later ) and after the Standing Veterinary Committee had given a favourable opinion thereon, Decision 85/403 ( 3 ) was adopted on 19 July 1985 . It provided for an exception from the prohibition on the introduction into the other Member States of pigmeat products from certain parts of Belgium inter alia where the products had been prepared under certain conditions including a form of heat treatment other than complete sterilization ( for further details of this - very technical - measure, I would refer the Court to the text of the decision ).

5 . From the very beginning, the Italian Government did not agree . It made that clear in a telex message of 12 August 1985 in which it referred to its refusal to approve the measure at the meeting of the Council of Agriculture Ministers on 10 and 11 July 1985 and the meetings of the Standing Veterinary Committee of 11 and 12 July and 16 July 1985 . It expressly stated in that message that the said decision would not be implemented in so far as it applied to meat which had been obtained during the outbreak in the area at risk and had been subjected to a heat treatment other than full sterilization .

6 . As the Court will be aware, that resulted on 5 September 1985 in an action being brought by the Commission for failure to fulfil obligations, which is the subject of Case 11/86 ( I will return to that case in a separate opinion ). In so far as this case is concerned, on 27 September 1985 the Italian Republic also applied to the Court; it is seeking a declaration that the decision of 19 July 1985 is void in so far as it provides that the ban on imports of pigmeat products does not apply to products prepared from meat as specified therein .

7 . Let me first mention that in these proceedings, the applicant sought the suspension of the operation of the decision under Article 83 of the Rules of Procedure of the Court . However, no judgment was delivered in that application . After the Court had put questions as to the utility of a Court decision and the interest in obtaining one in the light of Italy' s prohibition of imports of Belgian pigmeat products with a view to protecting domestic livestock, the representative of the Italian Government, at the hearing on 25 October 1985, saw fit to announce the withdrawal of the interim application ( while at the same time, stating that the Italian measures would be maintained in force ).

8 . The decision adopted by the Commission is, in the view of the Italian Government, void for a series of reasons with which I will shortly deal . According to the Commission, none of those grounds is valid and the Commission therefore contends that the application should be dismissed .

B - Analysis

My opinion in this case is as follows .

9 . ( 1 ) The applicant' s principal argument, which forms the subject-matter of its first submission and also arises to some degree in its second submission, is that having regard to the general structure of Directive 80/215, the Commission, even when account is taken of the amendments introduced by Directive 85/321, had absolutely no power to adopt measures such as those being contested here .

10 . It must be borne in mind that Article 7 of Directive 80/215 envisages two situations : in the event of an outbreak of certain diseases ( including classical swine fever ) in a Member State, the other Member States may temporarily prohibit or restrict the introduction into their territory of products prepared from the meat of animals which are susceptible to those diseases coming from those parts of the territory of the Member State in which the disease has appeared, other than products which have undergone one of the treatments referred to in Article 4 ( 1 ), namely complete sterilization under subparagraph ( a ) or, under certain conditions, the less stringent heat treatment provided for in subparagraph ( b ) ). In regard to an outbreak of an epizootic disease, or of a new, serious animal disease ( which includes African swine fever ), the unaffected Member States may temporarily prohibit or restrict the introduction, from the entire territory of the affected Member State, of products prepared from the meat of animals which are susceptible to the disease . No exception is provided in this case for products which have undergone any particular treatment .

11 . It should also be noted that Directive 85/321 of 12 June 1985 ( which was to be transposed into national law not later than 1 January 1986 ) contained two new provisions dealing with African swine fever, namely Articles 7a and 7b, which were referred to in a new subparagraph of Article 7 ( 1 ). Under those rules, a Member State in whose territory that disease has been recorded is permitted to export to the other Member States only pigmeat products which have undergone the treatment referred to in Article 4 ( 1 ) ( a ) ( that is to say, complete sterilization ). In that regard, a distinction is drawn between countries in whose territory African swine fever has been recorded within the previous 12 months ( in regard to which it may be decided that the prohibition of the introduction of products is not to apply to products coming from one or more parts of the territory of the Member State concerned ) and Member States in which the disease has not been recorded for at least 12 months ( in regard to which it may be decided to apply the import ban only to the part of the territory affected by the disease ).

12 . The applicant claims that it follows from those provisions that the treatments referred to in Article 4 ( 1 ) ( a ) and ( b ) of Directive 80/215 are to be regarded as equivalent merely in regard to the classical diseases covered by Article 7 ( 1 ) ( a ) whereas in regard to diseases covered by Article 7 ( 1 ) ( b ) ( including African swine fever ), such treatments are not provided for . It is also clear from the version of the rules resulting from Directive 85/321 ( which is binding on the defendant from the entry into force of that directive ) that in principle an exception from the prohibition of exports may be made in favour of an affected Member State only where the products concerned have undergone one of the treatments referred to in Article 4 ( 1 ) ( a ) of Directive 80/215 . Under the Veterinary Committee procedure ( that is to say, the procedure laid down in Article 8, which is referred to in Article 7a of the directive ), the defendant is entitled merely to delimit the area in question but not to adopt measures of any other kind, such as to permit other forms of treatment for meat products .

13 . The defendant refers to Article 7b of Directive 80/215 in support of its argument that even after the amendment of that directive by Directive 85/321, it still had extensive powers under Article 7 ( 3 ) of the former directive . Accordingly, in this case treatments other than complete sterilization were authorized .

14 . In that regard, the applicant also stated in its reply that if it is accepted that the conclusion may be drawn from Article 7b that forms of treatment other than complete sterilization are possible, that applies in any event only to disease-free countries within the meaning of Article 7a ( 2 ). However, in May 1985 Belgium could not be regarded as being disease-free, according to the definition contained in the third subparagraph of Article 7a ( 2 ), because African swine fever had already broken out there in March 1985 and the various outbreaks were connected with each other .

15 . My view is that the Court should not follow that line of reasoning and that the Commission has made out the better case .

16 . ( a ) With regard to the interpretation of Directive 80/215, it rapidly becomes clear that the applicant has not correctly interpreted Article 7 when it concludes from the fact that the methods of treatment referred to in Article 4 ( 1 ) are to be regarded as equivalent only in regard to the diseases set out in subparagraph ( a ) that where there is an outbreak of a disease covered by Article 7 ( 1 ) ( b ), a treatment in accordance with Article 4 ( 1 ) ( b ) is automatically excluded . For the purposes of that assessment it is significant that the directive, as can be seen from Article 4 thereof, presupposes in principle that the treatments referred to in Article 4 ( 1 ) ( a ) and ( b ) are of equal value . More importantly, under Article 7 ( 3 ), the defendant has a general power to amend measures adopted by the Member States ( in regard to which Article 7 ( 5 ) provides that a decision may be taken to adapt the measures concerned in the light of the disease in question, the treatments that the products concerned have undergone, the date on which the meat used was obtained and the processing period ). Thus, if in the paragraph of Article 7 dealing solely with the powers of the Member States, the distinction emphasized by the Italian Government is made, it can certainly not be assumed, having regard to the broadly defined powers of the defendant under Article 7 ( 3 ), that the defendant is not entitled, after careful consideration, to authorize a particular form of treatment and thereby, under conditions which are less stringent but are none the less regarded as sufficient, contribute to the realization of the free movement of goods, which is fundamental to the common market .

17 . ( b ) With regard to the question whether Directive 85/321 introduced a restriction of the defendant' s powers in regard to African swine fever, a negative answer is suggested by the fact that the said directive in reality does not lay down special self-contained rules for cases of African swine fever but, as the defendant has rightly pointed out, sought merely to deal particularly with certain specific aspects of that problem .

18 . That may be concluded from the fact that the rules were introduced by way of a new subparagraph to Article 7 ( 1 ). Thus, Article 4 ( 1 ) was not amended and, more importantly, nor were the other paragraphs of Article 7, in particular paragraphs 3 and 5 mentioned above . When subsequently in Article 7 ( 3 ) reference continues to be made generally to paragraph 1 of that article ( without excluding the new subparagraph dealing with African swine fever ) that can only mean that the powers generally granted to the defendant also include the measure concerning African swine fever .

19 . The fact that in the new Article 7a, namely in the second subparagraph of Article 7a ( 1 ) and in Article 7a ( 2 ), express reference is made to Article 7 in general also bears out the defendant' s argument . That reference can indeed only be understood as meaning that the Council ( which, as a comparison with the Commission' s proposal reveals, inserted that provision ) assumed that Article 7 would also continue to apply in its entirety to African swine fever, for which, consequently, the relevant provisions were not confined to the newly enacted Articles 7a and 7b .

20 . Also noteworthy is the reference in Article 7b ( 2 ) to the fact that in the case of non-application of the prohibition measures to certain products, account is to be taken of the treatment to which the products have been subjected, that is to say, the general term "treatment" is used here and there is no reference to treatment in the sense of complete sterilization . That shows that when there is an outbreak of African swine fever, sterilization is not the only possibility and the wording chosen also makes it clear that the possibility of another form of treatment is presupposed ( but not introduced ) in Article 7b; it is therefore immaterial that Article 7b ( 2 ) applies merely to certain countries ( namely those in which the disease has not been recorded for at least 12 months ).

21 . Some of the arguments put forward by the applicant in this connection on the other hand are not convincing, in particular its reference to the fact that the new Article 7a speaks only of the defendant' s powers to delimit the geographical extent of the affected area and also its contention that it is rather unclear why the newly adopted rules, as interpreted by the defendant, centre on the limitation of export opportunities of the Member State affected by the disease ( whereas the earlier version of Article 7 left sufficient opportunity to the importing Member States to adopt protective measures ) and why there is a reference to the defendant' s proposal of 13 February 1987 for the amendment of Directive 80/215 . ( 4 )

22 . In fact, it can hardly be concluded from the special rules in Article 7a concerning the delimitation of the area affected by the disease that the defendant had been granted merely powers of that nature in Directive 83/321 when not only Article 7b ( 2 ) but also the maintenance in force of Article 7 ( 3 ) and ( 5 ) unamended and the general reference to Article 7 in Article 7a clearly lead to a different conclusion ( namely that the defendant has more extensive powers ).

23 . As to the purport of the newly enacted rules, it may certainly be cogently argued that it is that where there has been an outbreak of disease as serious as African swine fever, the affected Member State should as a first step prohibit exports with the sole exception of export of completely sterilized products . That would appear to be much more effective than the possibly belated adoption by other Member States of import restrictions . However, that does not exclude the possibility that the defendant might adopt less restrictive measures after a concrete examination of developments at Community level .

24 . With regard to the aforementioned proposal concerning the amendment of Directive 80/215/EEC, the defendant has made clear that it did not involve an amendment of its powers ( in the sense of introducing the possibility of permitting a less stringent heat treatment ) but was intended to provide that such a treatment is to be regarded as of equal value so that it could be directly applied by the Member States ( without a decision of the Commission ).

25 . ( c ) It should be noted for the sake of completeness that there is plainly no need to go into further detail in regard to the question, also raised in these proceedings, of whether the defendant could rely on the provisions of Directive 85/321 before 1 January 1986 and whether Belgium was to be regarded as a Member State covered by the first subparagraph of Article 7a ( 1 ).

26 . It has become apparent that the defendant relied not on Articles 7a and 7b but fundamentally on Article 7 ( 3 ) of Directive 80/215 . It merely sought to adduce arguments in support of its point of view by inter alia reference to the terms of Articles 7a and 7b .

27 . If the defendant' s interpretation of Article 7 is followed, it is also evident that it may in general terms authorize a treatment other than the one mentioned in the first subparagraph of Article 7a ( 1 ) and that power is not limited to the Member States referred to in Article 7b ( 2 ). However, it should at least be mentioned in passing that the defendant' s interpretation of Article 7a seems to me to be more convincing and that it can therefore be said that in spring 1985 Belgium was to be regarded as a hitherto disease-free country within the meaning of Article 7a ( 2 ) even though there had been several outbreaks of disease which were connected with each other .

28 . ( d ) Thus, the examination of the applicant' s first submission, which also touched on arguments relating to the second submission, reveals nothing to support the applicant' s case .

29 . ( 2 ) In its second submission, the applicant complains that the heat treatment authorized by the contested decision is not in conformity with Directive 80/215 because it was not as closely defined as the one described in Article 4 ( 1 ) ( b ). According to that provision, a condition for the authorizing of a less stringent heat treatment is that the fresh meat has been obtained from animals which do not come from an infected holding . There is however no such requirement in the defendant' s decision .

30 . It must be conceded that the Commission' s decision does not in fact contain a condition such as that laid down in Article 4 ( 1 ) ( b ) of the directive . However, the defendant has shown that in view of the measures adopted by Belgium, such a condition was not necessary and those measures were themselves an effective way of ensuring that the conditions laid down in Article 4 of the directive were complied with .

31 . It is significant that the measures adopted by Belgium after the outbreak of the disease, as has been shown, were not confined to the prohibition of slaughtering in the infected areas and the prohibition of trade within Belgium . Steps were also taken to ensure that animals coming from infected holding were destroyed . Furthermore, the mark provided for in Article 5a of Directive 72/461 could not be affixed in the affected area and such meat was thereby excluded from treatment in accordance with the contested decision; only the national mark could be affixed to such meat whereas marking under Article 5 of Directive

72/461 ( 5 ) was not authorized again until after the eradication of the disease . ( 6 ) It can therefore properly be presumed, at least in regard to the early stages of the disease ( the placing of the Community mark on meat from areas adjoining the infected area was again authorized only from 1 May 1985 ), that meat from infected holdings was not processed and was not traded in the Community under the provisions of the contested decision .

32 . However, with regard to the circumstance, which the applicant particularly emphasized, that further outbreaks of the disease were recorded in May 1985 at a time when the Community mark could once again be placed on meat and, therefore, the processing of that meat for Community trade was authorized ), it is important that an assurance was given that the meat could not have come from infected holdings, since that meat had been destroyed ( significantly, even the applicant claims only that there was nothing at that time to prevent the processing of meat from infected areas, not from infected holdings ). It must also not be overlooked that Article 4 of Directive 80/215, on which the applicant relies, refers to meat coming from infected holdings, which are subject to prohibition measures pursuant to Article 3 ( 2 ) ( b ) of Directive 64/432 ( 7 ) ( that is to say, veterinary measures to prevent the outbreak of epizootic diseases and the establishment of protective zones ).

33 . However, the defendant has argued strongly, and has not been contradicted, that the cases of the disease recorded in May 1985 did not amount to a full outbreak of the disease with the appearance of symptoms, that is to say, circumstances which would give rise to the aforementioned veterinary measures . It was merely discovered - at a very early stage - through serological spot checks that several animals were carrying the virus, clearly a situation giving rise to little danger, which was not covered by Article 4 ( 1 ) ( b ) and which, as the Court is assured, could be completely countered by the heat treatment provided for in the contested decision .

34 . Accordingly, it cannot be said that, because it did not expressly mention the conditions laid down in Article 4 ( 1 ) ( b ) of Directive 80/215, the contested decision authorizes a less stringent heat treatment and is therefore not in conformity with the directive .

35 . ( 3 ) In the third submission the decision is contested on a number of grounds having no easily discernible common denominator . I will thus deal with them in the order in which they were presented by the applicant .

36 . ( a ) The first criticism is that the Commission' s decision, which is of considerable importance for the national herds, was not adopted after sufficiently careful consideration . In that connection, the applicant refers to the preamble to the decision : one passage stated that the decision would be reviewed should its implementation create difficulties for the disposal of Community products, and another ( with reference to the fact that the Belgian authorities had marked pigmeat in the infection zone with a national identification mark during the period of acute infection and did not use the mark specified in Article 5a of Directive 72/461 ) that the risk of infection presented by meat on which the latter mark has been used is reduced . The applicant also indicates that the meat products covered by the decision are intended only for Italy and that Italy alone is therefore affected by the Commission' s measure ( which explains why only the Italian representative did not approve the measure and would suggest the conclusion that the representatives of the other Member States were for that reason not sufficiently critical ). Furthermore, the applicant draws attention to the fact ( which must also be considered at this juncture ) that the defendant itself, shortly before the adoption of the decision, excluded the possibility of exporting the products treated in accordance therewith to countries such as the USA, Canada and Australia which did not recognize that form of treatment .

37 . In my view, however, those circumstances hardly justify the conclusion drawn by the applicant and they are thus equally not such as to establish the unlawfulness of the contested decision .

38 . With regard to the reasons for the decision to which the applicant refers, the penultimate recital in the preamble merely states that there could be disposal problems because certain purchasers do not regard the conditions laid down in the decision as sufficient and that, therefore, a review of the decision could prove necessary . It was certainly not intended thereby to imply that the decision was not sufficiently reliable and thus open to doubt under Community law . In so far as the applicant relies on the antepenultimate recital, the defendant has shown that the applicant has misconstrued what is said . It is quite clear that the reduction of the risk of infection mentioned therein refers to fresh meat ( namely, to meat which after the end of the outbreak received the Community mark making it possible for it to be processed for Community trade, whereas during the period of infection, meat obtained in the infected area and in adjoining areas received only the national mark which, for the purposes of the Commission decision, is not sufficient ). In regard to meat products, on the one hand, to which the decision refers, and which are to be subject to a particular form of heat treatment, the preamble to the decision in no way recognizes that there remains a certain reduced degree of danger but rather, having regard to the treatment which is required for such products presupposes that the danger of infection no longer exists and that they may therefore enter intra-Community trade .

39 . It also became clear during the proceedings that there is no basis for the proposition that the meat products in question were intended solely for Italy, which explained the tractable attitude of the representatives of the other Member States when the contested decision was adopted . Even if it were true that the products in question were intended for only one Member State, the Commission decision none the less constitutes a precedent for all the Member States . There is nothing to suggest that the members of the two veterinary committees were unaware of that obvious fact .

40 . Nor can it be accepted that Italy is the only Community country needing such imports ( according to what was said during the proceedings, such a demand also exists in France and the Federal Republic of Germany ). Moreover, it can clearly be seen from the statistics submitted to the Court that both in 1984 and 1985, only a relatively small part of exports ( of meat and meat products ) from Belgium went to Italy ( particularly in regard to meat products ) whereas the overwhelming majority of such exports went to other Community countries .

41 . With regard to the remarks concerning exports to the United States and other non-member countries and the fact that the defendant took account of the stricter requirements applying in those countries at that time, there is obviously no basis for concluding that the methods of treatment recognized at that time by the said countries are in fact reliable or that the Community had necessarily to be guided in regard to intra-Community trade by the stricter requirements applying in certain non-member countries .

42 . ( b ) The applicant' s second criticism in this connection is that the defendant, when it adopted the contested decision, had regard primarily to economic considerations ( namely the reduction of the cost of intervention in favour of Belgian products by authorizing a less costly method of treatment ) and neglected the need to protect healthy livestock .

43 . In my view, that argument also cannot be accepted . Even if it is to be assumed that in the discussions with the experts, the economic aspects of the problem were also discussed ( because the defendant must naturally be concerned to avoid unnecessary expenditure ), that obviously does not mean that a desire to save money was necessarily given precedence over the requirements of the protection of health, which the Commission also had to take into account under the relevant directives . There can be no doubt that even if there had been any danger of such a distortion of priorities, it would have been recognized by the Scientific Veterinary Committee concerned and the Standing Veterinary Committee which would not have delivered a favourable opinion on the proposed measure .

44 . ( c ) The applicant also criticizes the Commission' s decision, on the one hand, for its failure to explain why it approved a measure which had not been envisaged previously and, on the other, because in 1983 and 1984, when African swine fever broke out in Italy, trade in meat products was permitted there only if those products were subjected to complete sterilization ( and not merely a less stringent heat treatment ).

45 . I would point out first in this connection that in the statement of reasons for a decision all that needs to be given is an explanation for the actual measures adopted and not a comparative examination of an earlier legal position ( here, the position adopted immediately after the outbreak of the disease ). It should also be emphasized that there are in fact references in the statement of reasons on which the contested decision is based to the development of the disease and the measures adopted by the Belgian authorities . Having regard to the obligation in the Treaty to state the reasons on which decisions are based ( which, according to the Court' s case-law, may not involve any excessive requirements ), there are hardly grounds for criticizing the decision in question, particularly bearing in mind that it is a decision addressed to the Member States and it may accordingly be assumed that the addressees were kept adequately informed of the problems concerned by their representatives in the Standing Veterinary Committee .

46 . With regard to the comparison with the measures adopted in 1983 and 1984 because of the outbreak of African swine fever in Italy, it must be acknowledged that it is difficult to attempt to justify the decision at issue on the basis of recent research and experiments since the applicant could counter that the documents taken into consideration by the Scientific Veterinary Committee largely date from before 1983 and 1984 and a single document bearing a later date cannot be said to contain decisive new material . But the essential point is rather that in the case of the measures now under review there is not in actual fact any discrimination against the Belgian economic circles which are primarily affected precisely because the measure is less restrictive than the one previously adopted in Italy . In so far as the fourth question arises whether such a treatment might also have been envisaged at the time of the outbreak of African swine fever in Italy, the defendant has correctly pointed out that it was for Italy to raise the problem at that time and to have it considered in the Standing Veterinary Committee or, if necessary, in proceedings before the Court . The fact that that did not happen certainly does not allow any conclusions to be drawn in regard to the measures adopted in 1985 which in themselves cannot be criticized, at least on the basis of the submissions considered so far .

47 . ( d ) It may therefore be concluded from all the foregoing that the considerations put forward by the applicant in its third submission are also not sufficient to establish that the contested decision is unlawful .

48 . ( 4 ) Finally, in its fourth submission, the applicant complains that the contested decision does not afford sufficient protection against infection of healthy pig herds . In support of that claim, it argues in particular that the measure does not contain sufficiently detailed provisions as to how veterinary supervision of the storage of meat to be processed is to be carried out since it does not indicate the undertakings which may carry out that processing or lay down precise rules as to steps that must be taken ( for example, by stating the necessary sanitary measures to be taken after processing or with a view to the preparation and packaging of meat ). In the applicant' s view, it would also have been appropriate, before the heat treatments in question were authorized, to carry out appropriate tests ( consumption by healthy animals of infected meat which has undergone the treatment authorized in the decision ) and it regards as not insignificant the fact that the Scientific Veterinary Committee formulated its opinion ( in the original English ) very cautiously and the use of the conditional (" pigmeat products prepared according to the following procedure should not present a significant risk that viable African swine-fever virus remains in the product ") made clear that it still had doubts as to the effectiveness of the method of treatment in question .

49 . In this regard, reference may first be made, as the Commission does, to the first indent of Article 3 ( 2 ) ( b ) ( ii ) of the contested decision where, in regard to the problem of the transportation and storage of the meat to be treated, a clear reference is made to Article 4 ( 2 ) ( a ) of Directive 80/215 ( under which the meat to be treated is to be transported and stored separately from the fresh meat referred to in Article 3 ). Reference may also be made in particular to those parts of the contested decision which require precise compliance with the conditions set out therein, which require that during the entire period of the treatment measures be taken to avoid any possibility of recontamination and according to which the products must be obtained under permanent veterinary control and the products so obtained protected against all risk of recontamination . Thus, in so far as the applicant' s present criticisms are concerned, everything necessary was done, from the Commission' s point of view, to exclude a genuine risk . I do not consider that the decision can be regarded as defective on the mere ground that it did not itself lay down every possible detail of the treatment but, having set out the important points, left the detailed implementation to the Member States primarily concerned ( in Belgium, as was demonstrated to the Court, the procedure to be followed was initially laid down in a circular of 30 July 1985, which was known to the defendant, and later, in a decree of 16 September 1985; significantly, the applicant has not been able to establish that those rules were not sufficiently precise and free of risk ).

50 . In so far as the applicant complains that no tests were carried out before the decision was adopted, it can be said that the question whether such a precaution was actually necessary hinges on a medical assessment . Such a question cannot be gone into as such in court proceedings and in this case, it should in any event be noted that the Scientific Veterinary Committee which was primarily competent apparently did not consider that such a precaution was called for .

51 . Nor, finally, do I believe that the view can be accepted that that committee did not deliver a favourable opinion but in fact expressed doubts . To my understanding, the sentence envisaged by the applicant ( and which I have already quoted ) is nothing more than a cautious form of expression usual among scientists . If real doubts had existed, they would certainly have been expressed more clearly and not merely through the use of the conditional . It must also be said in this regard that the Standing Veterinary Committee, which delivered what is plainly a positive opinion, also understood the assessment of the Scientific Veterinary Committee in that way ( and that may be regarded as an authentic interpretation ). It is also noteworthy that, as was stated at the hearing, the Scientific Veterinary Committee has recently delivered a positive opinion on the Commission' s proposal mentioned above and thus has no objection to the less stringent heat treatments being generally authorized .

52 . The complaint that the contested decision did not provide an appropriate degree of protection cannot therefore be sustained either and in that regard, it is at least of some interest that it can today be noted that, although practically all the meat products treated in accordance with the contested decision have been marketed, there have not been any new cases of African swine fever, whether in Belgium or elsewhere .

C - Conclusion

53 . On that basis, I can only propose that the Italian Government' s application be dismissed as being without foundation and that the applicant be ordered to pay the costs .

(*) Translated from the German .

( 1 ) Official Journal 1980, L 47, p . 4 et seq .

( 2 ) Official Journal 1985, L 84, p . 12 .

( 3 ) Official Journal 1985, L 228, p . 28 .

( 4 ) Official Journal 1987, C 55, p . 10 .

( 5 ) Official Journal 1980, L 47, p . 1 .

( 6 ) See the letter of the Belgian Minister for Agriculture of 14 June 1985 .

( 7 ) Official Journal English Special Edition 1963-64, p . 164 .