Judgment of the Court (Second Chamber) of 8 October 1992. - Criminal proceedings against Leendert Van der Tas. - Reference for a preliminary ruling: Arrondissementsrechtbank Breda - Netherlands. - Agriculture - Substances having hormonal effect - Directives 81/602/EEC, 88/146/EEC and 86/469/EEC. - Case C-143/91.



European Court reports 1992 Page I-05045



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

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Agriculture ° Approximation of laws ° Prohibition of the use of certain substances having hormonal and thyrostatic effects ° Directives 81/602, 86/469 and 88/146 ° National regulations containing additional measures ° Permissibility ° Limits

(Council Directives 81/602, 86/469 and 88/146)

Summary

Directive 81/602 concerning the prohibition of certain substances having a hormonal action and of any substances having a thyrostatic action, Directive 88/146 prohibiting the use in livestock farming of certain substances having a hormonal action and Directive 86/469 concerning the examination of animals and fresh meat for the presence of residues, which prohibit the administration of any substances having hormonal or thyrostatic effects, the slaughter and placing on the market of farm animals to which the abovementioned substances have been administered and the placing on the market of meat from such farm animals for human or animal consumption, must be interpreted as not precluding a Member State from adopting, as well as those prohibitions, additional measures to reinforce their effect or from prohibiting the keeping or holding in stock of animals to which any of those substances has been administered, provided that such prohibition does not prevent the application of the derogations provided for in those directives concerning the keeping of animals with a view to therapeutic treatment.

Parties

In Case C-143/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Arrondissementsrechtbank, Breda, Netherlands, for a preliminary ruling in the criminal proceedings before that court against

Leendert van der Tas

on the interpretation of Council Directive 81/602 EEC of 31 July 1981 concerning the prohibition of certain substances having a hormonal action and of any substances having a thyrostatic action (OJ 1981 L 222, p. 32), Council Directive 88/146/EEC of 7 March 1988 prohibiting the use in livestock farming of certain substances having a hormonal action (OJ 1988 L 70, p. 16) and Council Directive 86/469/EEC of 16 September 1986 concerning the examination of animals and fresh meat for the presence of residues (OJ 1986 L 275, p. 36),

THE COURT (Second Chamber),

composed of: J.L. Murray, President of the Chamber, G.F. Mancini and F.A. Schockweiler, Judges,

Advocate General: C.O. Lenz,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° L. van der Tas, by L.J.L. Heukels, Advokaat,

° the Government of the Kingdom of Spain, by Alberto José Navarro González, Director General for Community Legal and Institutional Coordination, and Antonio Hierro Hernández-Mora, Abogado del Estado, acting as Agents,

° the Government of the Italian Republic, by Luigi Ferrari Bravo, Head of the Legal Department, Ministry of Foreign Affairs, acting as Agent, assisted by Francesco Guicciardi, Avvocato dello Stato,

° the Government of the Netherlands, by B.R. Bot, Secretaris-Generaal, Ministry of Foreign Affairs, acting as Agent,

° the Commission of the European Communities, by Th. van Rijn, of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of L. van der Tas, the Government of the Kingdom of Spain, the Government of the Kingdom of the Netherlands, represented by J.W. de Zwann, and the Commission at the hearing on 7 May 1992,

after hearing the Opinion of the Advocate General at the sitting on 11 June 1992,

gives the following

Judgment

Grounds

1 By order of 25 April 1991, received at the Court Registry on 28 May 1991, the Arrondissementsrechtbank (District Court), Breda, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Council Directive 81/602/EEC of 31 July 1981 concerning the prohibition of certain substances having a hormonal action and of any substances having a thyrostatic action (OJ 1981 L 222, p. 32), Council Directive 88/146/EEC of 7 March 1988 prohibiting the use in livestock farming of certain substances having a hormonal action (OJ 1988 L 70, p. 16) and Council Directive 86/469/EEC of 16 September 1986 concerning the examination of animals and fresh meat for the presence of residues (OJ 1986 L 275, p. 36).

2 That question was raised in criminal proceedings against L. van der Tas, who was charged with infringement of Article 3(1) of the Verordening stoffen met hormonale werking (PVV) 1987 of the Produktschap voor Vee en Vlees (Regulation on substances having a hormonal action, issued by the Netherlands Cattle and Meat Board) of 9 December 1987 ("the national regulation").

3 According to the first recital in the preamble to Directive 81/602, because of the residues which they leave in meat, certain substances having a thyrostatic, oestrogenic, androgenic or gestagenic effect may be dangerous to consumers and affect the quality of the meat. It is apparent from the second recital that, in the interests of consumers, it is necessary, on the one hand, to prohibit the administration to all animals and the marketing for that purpose of stilbenes and thyrostatic substances and, on the other, to regulate the use of other substances.

4 Accordingly, Article 2 of Directive 81/602 prohibits the administration to any farm animal of any substances having a thyrostatic effect and substances having an oestrogenic, androgenic or gestagenic effect, the placing on the market or slaughter of farm animals to which the abovementioned substances have been administered, the placing on the market of meat from such farm animals, the processing of such meat and the placing on the market of meat-based products prepared from or with such meat. Article 3 prohibits the placing on the market of certain substances having a hormonal effect and any substances having a thyrostatic effect. Under Article 4, the Member States may authorize derogations from Article 2, in particular for therapeutic treatment using certain substances having a hormonal effect.

5 Directive 81/602 was supplemented by Directive 88/146, Article 2 of which prohibits all use of substances having a hormonal effect, although the administration of certain substances for therapeutic treatment may be authorized. Article 5 provides that the Member States are to ensure that animals to which certain substances having a hormonal action have been administered or meat from such animals are not despatched from their territory to that of another Member State.

6 Directive 86/469 supplements those directives by harmonizing the arrangements for controls in the Member States as regards the examination of animals and fresh meat for residues, in order to eliminate barriers to trade and distortion in the conditions of competition governing products that are the subject of a common organization of the market. To that end, Article 9(3)(b) provides that, if an examination reveals the presence of prohibited substances, the animals may not be placed on the market for human or animal consumption.

7 Article 3(1) of the national regulation prohibits the keeping or holding in stock, selling or buying of animals to which any substance having an oestrogenic, androgenic, gestagenic or thyrostatic effect has been administered.

8 Mr van der Tas, a livestock dealer, was charged with an infringement of Article 3(1) of the national regulation before the Economische Politierechter (Magistrate dealing with commercial offences) of the Arrondissementsrechtbank, Breda, on the ground that, on 23 June 1989, he kept or held in stock three, or at least more than one, bovine animals to which had been administered Ethinyloestradiol 17 alpha, a substance having a gestagenic action.

9 Before the national court, Mr van der Tas pleaded in particular that the national regulation was incompatible with the abovementioned directives or, at least, considerably exceeded their requirements and, as a result, went further than the provisions in force in other Member States.

10 In those circumstances, the national court stayed the proceedings pending a preliminary ruling by the Court of Justice on the following question:

"Is the Netherlands Regulation on substances having a hormonal action in conformity with existing EEC directives concerning hormones in livestock and fresh meat, and in particular Directives 81/602 and 85/649 on the use in livestock farming of substances having a hormonal action, and Directive 86/469 concerning the examination of animals for the presence of residues?"

11 Reference is made to the Report for the Hearing for a fuller account of the facts and relevant legislation, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

12 It must first be observed that, although in proceedings under Article 177 of the Treaty, the Court may not rule as to the compatibility of national provisions with Community law, it is nevertheless competent to provide the national court with all the elements of interpretation of Community law to enable it to assess such compatibility for the purpose of deciding the case before it (see, in particular, Case C-373/89 Integrity v Rouvroy [1990] ECR I-4243, paragraph 9).

13 It is therefore necessary to construe the question as asking whether Directives 81/602, 88/146 and 86/469 must be interpreted as precluding legislation of a Member State which prohibits the keeping or holding in stock of animals to which any substance having an oestrogenic, androgenic, gestagenic or thyrostatic effect has been administered.

14 Although the directives at issue prohibit the administration of substances having a hormonal effect, the slaughter and marketing of animals to which such substances have been administered and the marketing of meat from such animals for human or animal consumption, they make no reference to any prohibition of keeping or holding in stock animals treated with substances having a hormonal effect.

15 Once the Community has established a common organization of the market in a particular sector, the Member States must refrain from taking any unilateral measures, even if such measures are likely to support the common policy (see Case 274/87 Commission v Germany [1989] ECR 229, paragraph 21).

16 However, measures adopted by Member States to ensure the full effectiveness of Community directives do not constitute unilateral measures if they are in conformity with the aim pursued by the directive to which they give effect. As indicated in the third paragraph of Article 189 of the EEC Treaty, directives are binding as to the result to be achieved upon each Member State to which they are addressed, the choice of form and methods being left to the national authorities.

17 Directives 81/602, 88/146 and 86/469 are intended to prohibit, in the interests of consumers and subject to certain derogations, the administration to any farm animal of substances having a thyrostatic, oestrogenic, androgenic or gestagenic effect. The prohibition of keeping or holding in stock animals treated with such substances constitutes an effective means of achieving that objective.

18 In so far as it pursues the objectives set by those directives, a prohibition such as the one at issue in the main proceedings not only is the expression of the choice of form and methods which Article 189 leaves to the national authorities but also seeks to discharge the general obligation of Member States to adopt, within the framework of their national legal systems, all the measures necessary to ensure that directives are fully effective, in accordance with the objectives which they pursue (see Case C-208/90 Emmott v Minister for Social Welfare and the Attorney General [1991] ECR I-4269, paragraph 18).

19 Nor does such a prohibition conflict with any of the fundamental principles of the Community, in particular that of the free movement of goods, since any transaction relating to meat and livestock to which substances having a hormonal effect have been administered is prohibited by the said directives.

20 Nevertheless, such a prohibition must not go further than the actual provisions of the directives, in particular those which provide for derogations in respect of the keeping of animals to which substances having a hormonal effect have been administered for the purpose of therapeutic treatment in strict conformity with the directives.

21 It must therefore be stated in reply to the question submitted by the Arrondissementsrechtbank, Breda, that Council Directive 81/602/EEC of 31 July 1981, Council Directive 88/146/EEC of 7 March 1988 and Council Directive 86/469/EEC of 16 September 1986 must be interpreted as not precluding a Member State' s legislation from prohibiting the holding or keeping in stock of animals to which any substance having an oestrogenic, androgenic, gestagenic or thyrostatic action has been administered, provided that such prohibition does not prevent the application of the derogations provided for in those directives.

Decision on costs

Costs

22 The costs incurred by the Governments of the Kingdom of Spain, the Italian Republic and the Kingdom of the Netherlands, and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

Operative part

On those grounds,

THE COURT (Second Chamber),

in answer to the question referred to it by the Arrondissementsrechtbank, Breda, by order of 25 April 1991, hereby rules:

Council Directive 81/602/EEC of 31 July 1981 concerning the prohibition of certain substances having a hormonal action and of any substances having a thyrostatic action, Council Directive 88/146/EEC of 7 March 1988 prohibiting the use in livestock farming of certain substances having a hormonal action and Council Directive 86/469/EEC of 16 September 1986 concerning the examination of animals and fresh meat for the presence of residues, must be interpreted as not precluding a Member State' s legislation from prohibiting the holding or keeping in stock of animals to which any substance having an oestrogenic, androgenic, gestagenic or thyrostatic action has been administered, provided that such prohibition does not prevent the application of the derogations provided for in those directives.