Opinion of Mr Advocate General Lenz delivered on 24 June 1987. - Commission of the European Communities v Italian Republic. - Removal from the register. - Case 11/86.



European Court reports 1987 Page 05337



Opinion of the Advocate-General

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Mr President,

Members of the Court,

A - Facts

1 . The application in regard to which I am now delivering my Opinion is for a declaration that by failing to apply Commission Decision 85/403/EEC of 19 July 1985 amending Decision 85/341/EEC concerning certain protective measures against African swine fever in Belgium, ( 1 ) adopted on the basis of Council Directive 80/215/EEC and which is being challenged by the Italian Government in an action brought on 27 September 1985, the Italian Republic has failed to fulfil its obligations under the Treaty .

2 . The Italian Government informed the Commission in a telex message of 12 August 1985 that it would so conduct itself and at the same time also mentioned that on 25 July 1985 instructions had been given to the veterinarians responsible in the matter of imports not to admit for importation meat products from Belgium which had been treated in accordance with the Commission decision .

3 . The Commission forthwith initiated the procedure under Article 169 of the EEC Treaty ( by sending a letter on 5 September 1985 in which the Italian Republic was charged with infringing the Treaty ) and, after receiving an unsatisfactory answer dated 9 September 1985, it delivered a reasoned opinion on 13 November 1985 in which it called upon the Italian Republic to adopt the necessary measures within 15 days . Since that was not done, the Commission, on 17 January 1986, brought the action in which I am today delivering my Opinion .

4 . The Commission is convinced that its application for a declaration is well founded since in its view it cannot be denied that its decision of 19 July 1985, which was intended to ensure free movement of pigmeat products from Belgium, subject to measures intended to stop the spread of African swine fever, became binding when it was notified and had to be complied with as long as it had not been declared void in proceedings before the Court or deprived of its legal effects by an interim order under Articles 83 et seq . of the Court' s Rules of Procedure . In any event, it must be accepted that in the sector in question, in which there has been a harmonization of legislation at Community level, the Member States are not entitled, after the adoption of a decision by the Commission, to adopt unilateral protective measures in reliance on Article 36 of the EEC Treaty and, in that way, to take the law into their own hands . It is also unacceptable for a Member State to make compliance with such a decision conditional upon the conduct of another Member State, as the Italian Government has done by requiring that Belgium must give certain guarantees concerning the implementation of the Commission decision ( which were discussed in detail in Case 289/85 (( 1987 )) ECR 0000 ).

5 . On the other hand, the defendant has pointed primarily to the need, in the interest of protecting national pig herds, to preserve unaltered the situation as it existed before the adoption of the contested decision since otherwise, if the decision were implemented by permitting imports to be carried out under the conditions therein laid down, legal proceedings concerning the legality of the decision would possibly be of only academic interest . It also considers that the reference to the possibilities of legal protection under the Treaty is not satisfactory because the decision is immediately enforceable and an immediate appeal to the Court was not as such conceivable .

6 . Furthermore, it draws attention to the fact that the Commission, in its reaction to the application for suspension made in Case 289/85 and at the hearing on that application, stated that the protective measures adopted by the Italian Government made a decision under Article 85 of the Rules of Procedure superfluous and that the application for suspension was therefore withdrawn .

B - Opinion

7 . With regard to this dispute, it must first be emphasized that it is clear from the scheme of the 1985 Directive, that when African swine fever appears it is at first the Member States which take action but that subsequently, in accordance with Article 7 of Directive 80/215, ( 2 ) the Commission takes a decision and there is thus no further place for unilateral national measures ( for example, measures adopted in reliance on Article 36 of the EEC Treaty ).

8 . Nothing, furthermore, can alter the fact that decisions adopted by the Commission on the basis of the abovementioned directive, even if there are doubts as to their lawfulness ( patently void acts are not in point in this respect ), become binding upon their notification and are to be implemented by the Member States to which they are addressed unless in proceedings before the Court ( the institution of which, as is known, does not have suspensory effect ) they are deprived provisionally or definitively of their legal effects .

9 . That was made clear in the context of the case-law relating to the ECSC Treaty, in the judgment in Case 3/59 . ( 3 ) In that case, it is clearly stated that if a Member State, without having obtained the annulment of a decision of the High Authority or suspension of its operation, does not comply with that decision, it fails to fulfil its obligations within the meaning of Article 86 and the High Authority is required to record such failure pursuant to Article 88 of the Treaty .

10 . The same must of course apply under the scheme of the EEC Treaty which differs only to the extent that here the Commission does not adopt a decision recording an infringement of the Treaty, which must then be contested by the Member State, but seeks a declaration to that effect in proceedings before the Court .

11 . The Court has already so decided in regard to the EEC Treaty in an order on an application for interim measures, which the President referred to the Court, in which it was held that "even if the Member State in question took the view that ... the ... decision of the Commission was vitiated by an infringement of the rules of the Treaty, that fact could not entitle it to defy the clear provisions of Article 93 and to act as if that decision were non-existent in law . Indeed, it is in order to prevent Member States from acting as judges in their own cause that the Treaty provides them, namely in Article 173 and the following Articles, with the opportunity to refer to the Court any infringement of the law on the part of the institutions, so that a decision of the Commission remains 'binding in its entirety' upon the State to which it is addressed - as laid down by the fourth paragraph of Article 189 - unless the Court decides to the contrary" ( 4 ).

12 . The same view was expressed in the Opinion in Cases 133/85 and others . It is there stated that : "Decisions are binding upon those to whom they are addressed and must be complied with by them until such decisions have been declared void . According to Article 85, even an action brought before the Court of Justice does not have suspensory effect . The Court of Justice may, however, if it considers that circumstances so require, order that application of the contested act be suspended ". ( 5 )

13 . On the basis of the foregoing, it can be seen that national measures of the kind at issue here are unlawful .

14 . The defendant contends that there could be difficulties, having regard to the immediate binding force of decisions and the requirement that they be immediately implemented, because legal proceedings coupled with an application for suspension cannot be instituted forthwith . I would take the view, however, that those are not insurmountable difficulties and that in any event no departure from the clear scheme of the Treaty may be justified in that way . In the present case, at least, the defendant' s conduct cannot be justified in that way since there should certainly have been sufficient time before 12 August 1985 ( the date at which the Italian Government stated that it would not comply with the Commission' s decision ) to bring proceedings before the Court and to make an application for suspension of the operation of the measure . It is also of significance that the Commission decision could be implemented in practice only after the adoption of the necessary Belgian measures which were adopted only in the middle of September 1985, following the issue of a circular dated 30 July 1985 .

15 . Finally, the Commission rightly emphasized that the Italian Government could not make compliance with the Commission decision conditional on guarantees to be given on the Belgian side ( that is to say, on measures which went beyond those which Belgium was required to adopt under the decision itself ) and that there could for instance be no question of suggesting that the Italian measures and the announcement of their maintenance in force were

recognized as lawful in the proceedings on the application for suspension . It is clear from a reading of the transcript of the hearing on that application that all that was raised was the question whether, in view of the measures adopted by Italy, there could be said to be urgency and whether the safety of Italian livestock could not also be protected even without suspension . Immediately thereafter the representative of the Italian Government announced the withdrawal of its application for suspension and no appraisal of the question was undertaken by the President of the Court or by any other of the Members of the Court present at the hearing .

C . Conclusion

16 . In view of the foregoing it can only be concluded that the point of view put forward by the Commission in these proceedings is correct . It should therefore be declared, as requested in the application, that by refusing to apply certain provisions of Commission Decision 85/403/EEC of 19 July 1985 amending Decision 85/341/EEC concerning certain protective measures against African swine fever in Belgium and, in particular, by instructing the veterinary supervision authorities not to admit products prepared from the meat referred to in Article 3 ( 2 ) ( b ) ( ii ) of the said decision, the Italian Republic has failed to fulfil its obligations under the EEC Treaty . The Italian Republic should be ordered to pay the costs, as asked for by the Commission .

(*) Translated from the German .

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

( 2 ) Official Journal 1980, L 47, p . 4 .

( 3 ) Judgment of 8 March 1960 in Case 3/59 Government of the Federal Republic of Germany v High Authority of the European Coal and Steel Community (( 1960 )) ECR 53 .

( 4 ) -Order of the Court of Justice of 21 May 1977 in Cases 31/77 R and 53/77 R, Commission v United Kingdom of Great Britain and Northern Ireland and United Kingdom of Great Britain and Northern Ireland v Commission (( 1977 )) ECR 921 at 924 .

( 5 ) (( 1987 )) ECR 0000 at paragraph 207 .