JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

17 March 2016 ( *1 )

‛Non-contractual liability — Health policy — Combating avian influenza — Prohibition of the importation of captured wild birds into the European Union — Regulation (EC) No 318/2007 and Implementing Regulation (EU) No 139/2013 — Sufficiently serious breach of rules of law conferring rights on individuals — Manifest and serious disregard for the limits of discretion — Proportionality — Duty of care — Articles 15 to 17 of the Charter of Fundamental Rights’

In Case T‑817/14,

Zoofachhandel Züpke GmbH, established in Wesel (Germany),

Zoohaus Bürstadt, Helmut Ofenloch GmbH & Co. KG, established in Bürstadt (Germany),

Zoofachgeschäft — Vogelgroßhandel Import-Export Heinz Marche, established in Heinsberg (Germany),

Rita Bürgel, residing in Uthleben (Germany),

Norbert Kass, residing in Altenbeken (Germany),

represented by C. Correll, lawyer,

applicants,

v

European Commission, represented by B. Eggers and H. Kranenborg, acting as Agents,

defendant,

APPLICATION for damages, seeking reparation for the harm which the applicants claim to have sustained, from 1 January 2010, by reason of the adoption of a prohibition of the importation of captured wild birds into the European Union contained, first, in Commission Regulation (EC) No 318/2007 of 23 March 2007 laying down animal health conditions for imports of certain birds into the Community and the quarantine conditions thereof (OJ 2007 L 84, p. 7) and, subsequently, in Commission Implementing Regulation (EU) No 139/2013 of 7 January 2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof (OJ 2013 L 47, p. 1),

THE GENERAL COURT (Eighth Chamber),

composed of D. Gratsias, President, M. Kancheva (Rapporteur) and C. Wetter, Judges,

Registrar: E. Coulon,

having regard to the written procedure,

gives the following

Judgment

Background to the dispute

The applicants

1 The applicants, Zoofachhandel Züpke GmbH, Zoohaus Bürstadt, Helmut Ofenloch GmbH & Co. KG, Zoofachgeschäft — Vogelgroßhandel Import-Export Heinz Marche, Ms Rita Bürgel and Mr Norbert Kass, are animal dealers established or residing in Germany; they are, or were, active, in particular, in the importation into the European Union of wild birds captured in their natural environment and intended to be used for ornamental purposes in aviaries, such as parrots.

Directives 91/496/EEC and 92/65/EEC

2 On 15 July 1991, the Council of the European Communities, acting under Article 37 EC on the common agricultural policy, adopted Directive 91/496/EEC laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC (OJ 1991 L 268, p. 56). Article 10(3) of Directive 91/496 refers to Annex B to that directive as regards the general conditions to be complied with by quarantine centres.

3 On 13 July 1992, the Council adopted Directive 92/65/EEC laying down animal health requirements governing trade in and imports into the Community of animals, semen, ova and embryos not subject to animal health requirements laid down in specific Community rules referred to in Annex A(I) to Directive 90/425/EEC (OJ 1992 L 268, p. 54). Directive 92/65 determines the particular requirements to be met by the country and operator of origin, lays down rules on the animal health certificates that must accompany imported animals and establishes which examinations animals must undergo. Article 17(2) and (3) of that directive provides, in particular and in essence, that only animals which come from a third country on a list of third countries or parts of third countries which provide equivalent guarantees to the requirements applicable to trade within the European Union may be imported into the EU and that specific animal health conditions may be established, in particular for the protection of the European Union from certain exotic diseases.

The EFSA opinion of 2005

4 On 14 and 15 September 2005, following a request from the Commission of the European Communities in 2004, the European Food Safety Authority (EFSA) issued a scientific opinion on the animal health and welfare aspects of avian influenza (The EFSA Journal [2005] 266, pp. 1-21, ‘the EFSA opinion of 2005’). In the light of its terms of reference, EFSA addressed in that opinion only the risk of infection of EU poultry with avian influenza.

5 By way of introduction to its opinion of 2005, EFSA observed that avian influenza appeared in poultry in two distinct clinical forms, Highly Pathogenic Avian Influenza (‘HPAI’) and Low Pathogenicity Avian Influenza (‘LPAI’). HPAI is caused by some viruses of the H5 and H7 subtypes which exhibit certain molecular characteristics capable of giving rise to systemic infection, which are not found in LPAI. The H5N1 virus is one of those virus subtypes that cause HPAI.

6 EFSA also pointed out that shortly before adopting its opinion, following an unusual situation of endemicity of the H5N1 virus affecting poultry in some Asian countries, the H5N1 virus had infected the wild bird population, both resident and migratory. That epidemiological situation, which, according to EFSA, had never previously occurred, could represent the origin of a pandemic virus for humans and have unforeseeable consequences. However, in view of the lack of knowledge on HPAI infections in wild birds, EFSA considered that an assessment of the situation and any prediction of future trends could not be substantiated by sufficient scientific data.

7 As regards the dangers faced by EU poultry from caged birds — which include, in particular, ornamental and pet birds — EFSA found that those birds could be infected with avian influenza viruses, including those of the H5 and H7 subtypes, and therefore, if they were imported, could represent a risk of those viruses being introduced into the European Union.

Decision 2005/760/EC and the extension of the measures adopted

8 On 27 October 2005, the Commission adopted Decision 2005/760/EC concerning certain protection measures in relation to HPAI in certain third countries for the import of captive birds (OJ 2005 L 285, p. 60), which suspended imports of live birds other than poultry into the European Union. Those transitional measures were to apply until 30 November 2005.

9 The measures adopted in Decision 2005/760 were amended and extended until 30 June 2007 by various Commission decisions, the last extension being laid down in Decision 2007/183/EC of 23 March 2007 amending Decision 2005/760 (OJ 2007 L 84, p. 44).

The EFSA Opinion of 2006

10 On 27 October 2006, in response to a request from the Commission dated 25 April 2005, EFSA issued a scientific opinion on Animal health and welfare risks associated with the import of wild birds other than poultry into the European Union (The EFSA Journal [2006] 410, pp. 1-55, ‘the EFSA opinion of 2006’). In that opinion it made various recommendations for the health and welfare of birds captured in their natural environment and examined various infectious agents for birds, including avian influenza.

11 With respect to the health aspects, EFSA considered that the probability of infectious agents being introduced into the European Union by the release from quarantine of captured wild birds varied between negligible and very high. In its view, the probability that a captured wild bird would be infected on release from quarantine varied from one species to another and depended on the probability of infection at sub-clinical stages. Those findings led EFSA to recommend that the need to continue the importation of captive wild birds had to be carefully considered. EFSA also stated that wild birds could become infected due to lateral spread from other infected wild birds, from a contaminated environment or from infected poultry.

12 Furthermore, EFSA pointed out that 95% of birds imported into the European Union belonged to one of three families consisting, respectively, of passeriformes (64%), psittaciformes (17%) and galliformes (14%), that in 2005 88% of imports of wild birds came from Africa and 78% from five African States and that, generally, captured birds were less expensive than birds bred in captivity.

13 As regards avian influenza specifically, EFSA first of all took the view that the most commonly imported bird species, namely passeriformes and psittaciformes, did not play a major role in the epidemiology of avian influenza. In addition, all viruses causing HPAI present in birds had a limited zoonotic potential. However, according to EFSA, since the genome of the avian influenza virus, or a part thereof, had been involved in severe pandemics in the past and, at the time when the opinion was drawn up, in the H5N1 virus pandemic, a good surveillance program could prevent avian influenza viruses from entering the European Union through legally imported birds.

14 In addition, EFSA observed that, particularly for passerine and gallinaceous birds, the HPAI viruses had very short incubation periods and clinical courses, leading to a high mortality in a few days, while the incubation period for anseriformes could be far longer. It also considered that, given the short incubation period, a bird which arrived in quarantine infected by an avian influenza virus or became infected by that virus during the quarantine period would display clinical signs within the quarantine period. It therefore considered that the probability of such a bird being released undetected from quarantine was low, or even negligible. However, EFSA did state that there was a risk that birds which had been subject to sub-clinical infections might be released infected.

15 Finally, EFSA recommended that the need to continue importing wild birds had to be carefully considered and that preference should be given to importing eggs, given the risk that significant infectious agents would be introduced into the European Union. It also recommended that regular assessments of the risk of importing infectious diseases be undertaken in order to identify high risk zones and countries and high risk species, as these varied over time.

Regulation No 318/2007

16 On 23 March 2007, the Commission adopted Regulation (EC) No 318/2007 laying down animal health conditions for imports of certain birds into the Community Union and the quarantine conditions thereof (OJ 2007 L 84, p. 7). The legal bases of that regulation were, in particular, the second paragraph of Article 10(3) and the first subparagraph of Article 10(4) of Directive 91/496 and Article 17(2)(b) and (3) and the first and fourth indents of Article 18(1) of Directive 92/65. Pursuant to Article 20 thereof, that regulation entered into force on 1 July 2007.

17 Recitals 4, 5 and 8 to 10 of Regulation No 318/2007 are worded as follows:

18 Article 1 of Regulation No 318/2007, entitled ‘Subject matter’, states: ‘This Regulation lays down the animal health conditions for imports of certain birds into the [Union], from the third countries and parts thereof referred to in Annex I, and the quarantine conditions for such imports.’

19 Article 2 of Regulation No 318/2007, entitled ‘Scope’, states that that regulation is to apply to animals of the avian species, with the exception, in particular, of poultry.

20 Article 4 of Regulation No 318/2007, entitled ‘Approved breeding establishments’, provides, in essence, that imports of birds from breeding establishments approved by the competent authority in the third country of origin are to be authorised subject to compliance with the conditions for approval set out in Annex II to that regulation and to communication of the approval number to the Commission.

21 Article 5 of Regulation No 318/2007, entitled ‘Import conditions’, and as amended, provides: ‘Imports of birds shall be authorised only if the birds comply with the following conditions: (a) the birds are captive bred birds [defined in Article 3(c) of the regulation as “birds that have not been caught in the wild but have been born and bred in captivity from parents that mated or had gametes otherwise transferred in captivity”]; (b) the birds must originate from third countries or parts thereof referred to in Annex I; (ba) the birds come from approved breeding establishments that comply with the conditions laid down in Article 4; (c) the birds were subjected to a laboratory virus detection test 7 to 14 days prior to shipment with negative results for any avian influenza and Newcastle disease virus; (d) the birds have not been vaccinated against avian influenza; (e) the birds are accompanied by an animal health certificate in accordance with the model set out in Annex III (the animal health certificate); (f) the birds are identified with an individual identification number …’

22 Article 11(1) of Regulation No 318/2007, entitled ‘Quarantine provisions’, states: ‘The birds shall be quarantined for at least 30 days in an approved quarantine facility or centre (the quarantine).’

23 Annex I to Regulation No 318/2007, entitled ‘List of third countries which can use the animal health certificate in Annex III’, provides:

24 Commission Decision 2006/696/EC of 28 August 2006 laying down a list of third countries from which poultry, hatching eggs, day-old chicks, meat of poultry, ratites and wild game-birds, eggs and egg products and specified pathogen-free eggs may be imported into and transit through the [Union] and the applicable veterinary certification conditions, and amending Decisions 93/342/EEC, 2000/585/EC and 2003/812/EC (OJ 2006 L 295, p. 1), referred to in Annex I of Regulation No 318/2007, was repealed and replaced by Commission Regulation (EC) No 798/2008 of 8 August 2008 laying down a list of third countries, territories, zones or compartments from which poultry and poultry products may be imported into and transit through the [Union] and the veterinary certification requirements (OJ 2008 L 226, p. 1), which has been amended on several occasions.

EFSA’s Opinion of 2008

25 On 7 May 2008, in response to a request from the Commission in 2007, EFSA delivered an opinion on the Animal health and welfare aspects of avian influenza and the risk of its introduction into the EU poultry holdings [The EFSA Journal (2008) 715, pp. 1-161, ‘EFSA’s Opinion of 2008’]. The Commission had asked EFSA to consolidate the main conclusions and recommendations from its previous opinions and to reassess, in the light of new scientific knowledge, the risk of the introduction of avian influenza into European poultry holdings. In the light of the adoption of Regulation No 318/2007, the risk of the introduction of the virus causing HPAI and LPAI by imports, which were now prohibited, of captured wild birds was not specifically examined.

26 First of all, EFSA, stated that, according to the analyses of strains in the EU Member States, all the viruses detected in poultry and wild birds since 2006 were closely related. As regards pathogenesis and transmission, EFSA considered that the H5N1 virus remained able to cause significant mortality in wild bird populations and observed that, according to experimental studies, some species could become infected even without clinical manifestations.

27 Next, as regards the risk of transmission of avian influenza by wild birds, EFSA pointed out that wild birds had been implicated in the transmission of that disease across Asia, the Middle East, Europe and Africa. Although since its Opinion of 2006 relatively few species had been the subject of experimental infection, it observed that the wild birds implicated in the transmission of avian influenza included more species than previously thought, in particular through shedding either in pre-symptomatic infection or in asymptomatic infection. Given the number of cases of infection by the H5N1 virus observed in wild birds between 2006 and 2008, the risk of introduction of HPAI by wild birds appeared to be a ‘regular’, rather than a very rare or very frequent event. The constant presence of that virus in the wild bird population since 2006 could not be excluded, as the virus was able to circulate at an undetectable level. In EFSA’s view, there was therefore a ‘continuing’ risk of European poultry becoming contaminated by infected wild birds.

28 Last, as regards the risk of introduction of avian influenza by the importation of wild birds from third countries, EFSA found that:

Implementing Regulation No 139/2013

29 Commission Implementing Regulation (EU) No 139/2013 of 7 January 2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof (OJ 2013 L 47, p. 1) entered into force on 12 March 2013.

30 Implementing Regulation No 139/2013, which repealed Regulation No 318/2007, constitutes, according to recital 1, a ‘codification’ of that regulation. Recitals 4, 5 and 8 to 10 of Regulation No 318/2007 thus became recitals 3 to 7 of Regulation No 139/2013, while the numbering of the articles did not change. Annex I to Regulation No 139/2013 now refers to the list of third countries laid down by Regulation No 798/2008 (see paragraph 24 above) and adds the Argentine Republic and a region of the Republic of the Philippines.

The judgment in ATC in 2013

31 In the judgment of 16 September 2013 in ATC and Others v Commission (T‑333/10, ECR, ‘the judgment in ATC and Others’, EU:T:2013:451), the General Court (First Chamber) held, in an interlocutory judgment, that, by adopting Decision 2005/760 and the subsequent decisions extending it, the Commission had committed several unlawful acts, consisting in breaches of the principle of proportionality and of the duty of care, of such a kind as to render the European Union liable to compensate the applicants for the harm they had suffered as a consequence of the suspension of wild bird imports from third countries belonging to the Regional Commissions of the Office international des épizooties (OIE, now the World Organisation for Animal Health) (judgment in ATC and Others, EU:T:2013:451, paragraph 193).

32 The General Court dismissed the action as to the remainder, namely as regards Regulation No 318/2007, and also found that, with regard to the applicants’ claims, the Commission had not, by adopting Regulation No 318/2007, committed a sufficiently serious breach of a rule of law protecting individuals which would be capable of rendering the European Union liable (judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraph 192). As regards the legality of that regulation, the General Court noted that the applicants’ claims did not allege breach of the principle of proportionality specifically by reason of the geographic scope of the ban on the importation of wild birds and that it had therefore not been asked to consider that question, on which there was no need for it to decide, on pain of ruling ultra petita (judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraphs 149 and 165).

33 In the order of 17 September 2014, in ATC and Others v Commission (T‑333/10, EU:T:2014:842), the General Court (Eighth Chamber) took note of the agreement reached between the parties on the amounts of the compensation for the damage sustained by those applicants by reason of the illegality of Decision 2005/760 and the decisions extending it and held that there was no longer any need to adjudicate on the action.

The EFSA Opinion of 2014

34 On 15 December 2014, in response to a new request from the Commission in the same year, EFSA delivered an Opinion on the highly pathogenic avian influenza subtype H5N8 (The EFSA Journal 2014; 12(12):3941, p. 32, ‘the EFSA Opinion of 2014’).

35 In that new opinion, EFSA stated that cases of poultry contaminated by the H5N8 virus had been reported in poultry holdings in Asia and Europe since January and November 2014 respectively. As the source of the virus was still unknown, EFSA envisaged various hypotheses of contamination, including indirect introduction via humans, vehicles, or live animals, and considered that direct contact with wild birds in the holdings was not the most plausible hypothesis. Nonetheless, it stated that, given the apparent low pathogenicity of the virus for several wild bird species, focused active and passive surveillance of living and dead wild birds would improve the understanding of the risk of transmission to poultry and would facilitate the design of targeted measures. It also reported that the virus had been detected in wild bird populations in Germany and the Netherlands.

Procedure and forms of order sought

36 By application lodged at the Court Registry on 18 December 2014, the applicants brought the present action for damages.

37 The applicants claim that the Court should: — order the Commission to make good the damage which they have sustained, since 1 January 2010, owing to the adoption of a prohibition on importation of captured wild birds into the European Union, applicable almost worldwide, imposed in Regulation No 318/2007 and Implementing Regulation No 139/2013; — order the Commission to pay the costs.

38 The Commission contends that the Court should: — dismiss the action; — order the applicants to pay the costs.

Law

39 Pursuant to the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the Union is, in accordance with the general principles common to the laws of the Member States, to make good any damage caused by its institutions or by its servants in the performance of their duties.

40 According to settled case-law, the non-contractual liability of the European Union — within the meaning of the second paragraph of Article 340 TFEU — for the unlawful conduct of its institutions or organs is subject to the fulfilment of a set of cumulative conditions, namely the unlawfulness of the conduct alleged against the institution or organ of the European Union, the fact of damage and the existence of a causal link between that conduct and the damage complained of (see judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraph 61 and the case law cited).

41 As regards more particularly the first condition, relating to the unlawful conduct alleged against the institution or organ concerned, the case law requires there to be a sufficiently serious breach of a rule of law intended to confer rights on individuals. The decisive test for finding that a breach is sufficiently serious is whether the EU institution or organ concerned manifestly and seriously disregarded the limits on its discretion. It is solely where that institution or organ has only considerably reduced, or even no, discretion, that the mere infringement of EU law may suffice to establish the existence of a sufficiently serious breach (see judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraph 62 and the case law cited).

42 As regards the application of the requirement for there to be a sufficiently serious breach in the context of this case, it must be pointed out that any sufficiently serious breach of the rules of law at issue must be based on a manifest and serious disregard of the limits on the wide discretion enjoyed by the EU legislature when exercising its powers on the common agricultural policy under Article 43 TFEU. The exercise of that discretionary power implies the need for the EU legislature to anticipate and evaluate ecological, scientific, technical and economic changes of a complex and uncertain nature (see, to that effect, judgment in ATC and Otherscited in paragraph 31 above, EU:T:2013:451, paragraph 64 and the case law cited). In that regard, while studies and scientific opinion have to be taken into account by the EU institutions, the political choice of determining an appropriate level of protection for society lies with those institutions and not with the scientists (judgment of 12 April 2013 in Du Pont de Nemours (France) and Others v Commission, T‑31/07, EU:T:2013:167, paragraph 270).

43 Furthermore, it must be recalled that the requirement of a sufficiently serious breach of EU law seeks, whatever the nature of the unlawful measure in question, to avoid the situation where the risk of having to bear the losses alleged by the undertakings concerned hinders the ability of the institution concerned to fully exercise its competences in the general interest, both in the context of its activities that are regulatory or involve economic policy choices and in the sphere of its administrative competence, without thereby leaving individuals to bear the consequences of flagrant and inexcusable misconduct (see judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraph 65 and the case law cited).

44 In the present case, the applicants claim, in essence, that in imposing, by adopting Regulation No 318/2007 and Implementing Regulation No 139/2013, ‘de facto’ a prohibition on the importation of captured wild birds into the European Union, applicable virtually worldwide, the Commission committed a sufficiently serious breach of certain rules of law intended to confer rights on them, which caused them genuine and certain damage.

45 In that regard, it should be observed that the applicants rely on the illegality of Regulation No 318/2007 and Implementing Regulation No 139/2013 in their entirety, without specifying the particular provisions resulting in a prohibition on the importation of captured wild birds into the European Union. The Court none the less considers that the applicants’ argument is sufficiently clear for the Commission and the Court to be able to identify those provisions without difficulty (see also, by analogy, judgment on 10 May 2006 in Galileo International Technology and Others v Commission, T‑279/03, ECR, EU:T:2006:121, paragraph 47).

46 It is appropriate to begin by examining whether there was unlawful conduct on the part of the Commission, in the light of the principles described in paragraphs 39 to 43 above.

The existence of unlawful conduct

47 In order to establish unlawful conduct on the part of the Commission, the applicants rely, in essence, on three pleas, alleging, first, a serious breach of the freedom to conduct a business, the freedom to choose an occupation and the right to property, as guaranteed by Articles 15 to 17 of the Charter of Fundamental Rights of the European Union; second, a serious breach of the principle of proportionality; and, third, a serious breach of the duty of care.

48 The Court considers it appropriate to examine, in turn, the second, third and first pleas.

Second plea, alleging a serious breach of the principle of proportionality

49 By the second plea, the applicants claim that in adopting and maintaining in force Regulation No 318/2007 and Implementing Regulation No 139/2013 the Commission committed a serious breach of the principle of proportionality. They put forward in that regard three complaints alleging, first, that the geographic scope of the prohibition on the importation of captured wild birds into the European Union was too wide, thus also breaching the precautionary principle; second, failure to apply a solution involving quarantine as a less onerous means of combating avian influenza; and, third, failure to apply more intensive surveillance of migratory birds as a more effective means of combating avian influenza.

50 In that regard, it should be borne in mind that the principle of proportionality, which is one of the general principles of EU law and is set out in Article 5(4) TEU, requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. As regards judicial review of the conditions governing the implementation of such a principle, bearing in mind the wide discretion enjoyed by the EU legislature where the common agricultural policy is concerned, the lawfulness of such a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue. Thus, the criterion to be applied is not whether the measures adopted by the EU legislature are the only ones or the best ones possible, but whether they are manifestly inappropriate in terms of the objective pursued (see judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraphs 98 and 99 and the case law cited).

51 It should also be borne in mind that the precautionary principle is a general principle of EU law, stemming from Article 11 TFEU, Article 168(1) TFEU, Article 169(1) and (2) TFEU and Article 191(1) and (2) TFEU, requiring the authorities in question, in the particular context of the exercise of the powers conferred on them by the relevant rules, to take appropriate measures to prevent specific potential risks to public health, safety and the environment, by giving precedence to the requirements related to the protection of those interests over economic interests. Thus, where there is scientific uncertainty as to the existence or extent of risks to human health, the precautionary principle allows the institutions to take protective measures without having to wait until the reality and seriousness of those risks become fully apparent or until the adverse health effects materialise. Furthermore, where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures, provided that they are non-discriminatory and objective (see, to that effect, judgment in ATC and Others v Commission, cited in paragraph 31 above, EU:T:2013:451, paragraphs 79 to 81 and the case law cited).

52 In the present case, as a preliminary point, it is common ground that the aim pursued by Regulation No 318/2007 and Implementing Regulation No 139/2013, in so far as they lay down health conditions, is concerned with the protection of human health and animal health, and that that aim is legitimate.

– First complaint, alleging that the geographic scope of the prohibition on the importation of captured wild birds into the EU is too wide

53 By the first complaint, the applicants claim that the geographic scope of Regulation No 318/2007 and Implementing Regulation No 139/2013 is too wide, and imposes an ‘absolute prohibition on trade’, on a worldwide scale, in captured wild birds, whereas, according to the state of scientific knowledge consolidated since 2010, in particular by the OIE, certain third countries, in particular those of South America and Oceania, are not affected by avian influenza. Relying mainly on the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), they claim that those regulations should be found to constitute a breach of the principle of proportionality, because the geographic scope of the prohibition on the importation of captured wild birds into the European Union is too wide, in the same way as the General Court found in that judgment that Decision 2005/760 and the extension of the measures adopted constituted a breach of that principle (see paragraphs 8 and 9 above).

54 Furthermore, in the applicants’ submission, Regulation No 318/2007 and Implementing Regulation No 139/2013, in accordance with their legal bases, namely Directives 91/496 and 92/65, have as their objectives, not, as the Commission maintains, equivalent guarantees in third countries, but the precautionary principle and the protection of human and animal health against contamination by the avian influenza virus. Those health protection objectives do not allow any territorial connection and any actual risk of transmission from a third country to be ignored on the ground that the disease has spread throughout the world. On the contrary, only rules that took into account the various degrees of actual risks presented by countries and continents would be consistent with the principle of proportionality and the precautionary principle.

55 The Commission disputes the applicants’ arguments.

56 In the present case, it is necessary, in the first place, to define the legal scope of the instances of unlawful conduct found in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451); in the second place, to examine, in the light of the principle of proportionality and the precautionary principle, the lawfulness of rules which make the importation of birds into the European Union conditional on their having been bred in captivity and having originated in third countries able to provide guarantees equivalent to those prevailing in the European Union; and, in the third place, to rule on the proportionate nature, in the present case, of the geographic scope of the prohibition on the importation of captured wild birds into the European Union, as laid down, in particular, in Article 5 of Regulation No 318/2007 and Implementing Regulation No 139/2013, read with Article 3(c) of those regulations (see paragraphs 21 and 45 above).

57 In the first place, as regards the legal scope of the unlawful conduct found in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), it must first of all be pointed out that the Court did not rule in that judgment, so far as the legality of Regulation No 318/2007 is concerned, on any breach of the principle of proportionality because the geographic scope of the prohibition on the importation of captured wild birds into the European Union was too wide (see paragraph 32 above).

58 Next, it should be observed that the measures which the Court held to be disproportionate in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451) because their geographic scope was too wide and which it declared to be unlawful, namely the measures laid down in Decision 2005/760 and subsequently extended, were protective measures based on Article 18(1) of Directive 91/496.

59 A condition for the application of Article 18(1) of Directive 91/496 is that ‘a zoonosis or other disease or phenomenon liable to present a serious threat to animal or human health occurs or spreads’. In that case, the Commission is to adopt without delay one of two measures: it may ‘[either] suspend imports coming from all or part of the third country concerned, and where appropriate from the third country of transit, [or] set special conditions in respect of animals coming from all or part of the third country concerned’. That provision therefore refers to a specific third country in which there is a proven health risk. In the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), the Court inferred that the protective measures in question must be sufficiently directly linked to ‘all or part of the third country concerned’ within the meaning of that provision (judgment in ATC and Others v Commission, cited in paragraph 31 above, EU:T:2013:451, paragraph 86).

60 On the other hand, the legal bases underpinning Regulation No 318/2007 and Implementing Regulation No 139/2013, which are relevant in the present case, contain no reference to a specific third country in which there is a proven health risk. Rather, Article 17(3)(a) of Directive 92/65 empowers the Commission to lay down general health policy ensuring that imports come only from third countries which are ‘able to provide Member States and the Commission … with guarantees equivalent to those provided for in Chapter II for animals, semen, ova and embryos’. Likewise, when Article 17(3)(c) of that directive refers to ‘the specific animal health requirements — in particular for the protection of the [Union] from certain exotic diseases — or guarantees equivalent to those provided for in this Directive’, it again envisages general requirements from a geographic point of view, without reference to a specific third country. Nor do the other legal bases of those regulations, namely the first and fourth indents of Article 18(1) of that directive and the second subparagraph of Article 10(3) and the first subparagraph of Article 10(4) of Directive 91/496, refer to a third country concerned.

61 Thus, Regulation No 318/2007 and Implementing Regulation No 139/2013 are not protective measures, but, in accordance with their legal bases, lay down, for all third countries, general health conditions for imports of animals into the European Union.

62 It follows that the findings of unlawful conduct made by the Court in the judgment in ATC come within the specific context of protective measures and cannot as such be applied by analogy to Regulation No 318/2007 and Implementing Regulation No 139/2013.

63 In the second place, as regards the legality, with respect to the principle of proportionality and the precautionary principle, of rules which make the import of birds into the European Union conditional on their having been bred in captivity and having originated in third countries which are able to provide guarantees equivalent to those prevailing in the EU, it should be observed, as a preliminary point, that, according to Chapter 1 of Annex II to Regulation No 318/2007 and Implementing Regulation No 139/2013, the conditions that must be satisfied in order for a third country to be included in the list provided for in Article 17(3)(c) of Directive 92/65 consist, essentially, in a twofold guarantee: the country of origin must have an effective veterinary system, with competent laboratories, and animals imported into the European Union must come from an approved breeding establishment in that country and therefore have been bred in captivity. Those two conditions are designed to permit close monitoring of animals and the rapid implementation of measures to combat diseases.

64 In that regard, it should be borne in mind that, in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), the Court held that the rules laying down the animal health requirements governing trade in imports into the European Union of animals, as set out in, inter alia, Directive 92/65, particularly Article 17(2) and (3), and the first and fourth indents of Article 18(1) of that directive, on which Regulation No 318/2007 is based, are founded on the principle of prior authorisation. According to that principle, on the grounds of animal health and prevention, all imports of animals from third countries are prohibited unless accompanied by express authorisation tied to the fulfilment of procedural requirements and the performance of prior mandatory checks, giving rise to a list of third countries from which imports are authorised (see, to that effect, judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraphs 140 and 141). On the basis of Article 17(2) of Directive 92/65, the Commission is therefore entitled to exclude or remove certain third countries from that list, with the consequence that all imports of animals from those countries are automatically prohibited (see, to that effect, judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraphs 142 and 143).

65 Thus, the Commission enjoys a wide discretion when adopting ‘animal health rules … for the placing on the market of animals’ within the meaning of the fifth recital of Directive 92/65, which necessarily encompasses the possibility of withholding authorisation to import some species of animals into the European Union from countries which fail to meet the import requirements mentioned above (see, to that effect, judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraph 146). Furthermore, under Article 17(3)(c) of Directive 92/65, which refers to the ability of the Commission to lay down ‘the specific animal health requirements — in particular for the protection of the [European Union] from certain exotic diseases’, the objective of protection and prevention that forms an integral part of the precautionary principle, in the implementation of which the Commission has a wide discretion in that context, is met (see, to that effect, judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraph 147).

66 In the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), the Court thus held, in essence, that rules which make the importation of birds into the European Union conditional on them coming from third countries which are able to offer guarantees equivalent to those prevailing in the European Union, as contained in Regulation No 318/2007, were consistent with the purposes and requirements of Directive 92/65 and with the precautionary principle, and were not disproportionate.

67 In those circumstances of the present case, it must be considered that that conclusion of principle is applicable for both Regulation No 318/2007 and Implementing Regulation No 139/2013, which constitutes a ‘codification’ of Regulation No 318/2007 and essentially reproduces its content (see paragraph 30 above).

68 Furthermore, it should be observed that the alleged ‘absolute prohibition on imports’ for captured wild birds is merely the corollary of the requirement that animals must come from an approved breeding establishment, where they are bred in captivity, and not from the natural environment.

69 In view of the uncertainty surrounding the state of captive wild birds’ health (see, to that effect, judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraph 159), it must be held that the requirement that animals must come from an approved breeding establishment, where they are bred in captivity, together with the requirement for an effective veterinary system, is an essential condition of health monitoring and preventive control in the third country of origin, which, in turn, are conditions of compliance by that third country with the guarantees equivalent to those prevailing in the European Union and its inclusion on the list of third countries from which the importation of animals into the European Union is authorised.

70 Accordingly, the ‘prior authorisation’ principle, as described in paragraph 64 above, laid down on the legal bases of Regulation No 318/2007 and Implementing Regulation No 139/2013 and in accordance with the precautionary principle, must be applied in reliance, not on presumptions as to the general health situation in the third country of origin, but on obtaining guarantees as to the health monitoring of birds bred in an establishment approved by that country. Those guarantees make it possible, in particular, to determine with sufficient scientific certainty whether the country is disease free, independently of its geographic position and of such presumptions.

71 It follows that, in so far as the alleged ‘absolute prohibition of imports’ of captured wild birds into the European Union is the corollary of the guarantees required by the principle of prior authorisation of third countries, the Commission, by requiring such guarantees in Regulation No 318/2007 and Implementing Regulation No 139/2013, in the exercise of its wide discretion (see paragraph 42 above), did not make a manifest error or commit a serious breach of the principle of proportionality or the precautionary principle.

72 In the third place, as regards the proportionality, in the present case, of the geographic scope of the prohibition on the importation of captured wild birds into the European Union, it must be considered that the Commission could have exceeded its discretion and breached the principle of proportionality only by failing to authorise the importation of such birds from manifestly avian-influenza-free areas.

73 However, it must be stated, in the light of the scientific data placed on the file by the parties, that avian influenza, in the form of HPAI or LPAI, may be present in wild birds on all continents.

74 First, the second paragraph of Article 10.4.27 of the 23rd Terrestrial Animal Health Code, drawn up by the OIE, states: ‘The presence of influenza A viruses in wild birds creates a particular problem. In essence, no Member Country can declare itself free from influenza A in wild birds [having regard to the limits, for those birds, on the general obligation to notify and exchange information, as laid down for poultry].’

75 In a communiqué of 19 May 2015, produced by the Commission, the OIE also emphasises the role played by wild birds as virus vectors in the different avian influenza epidemics, while emphasising that other transmission factors existed, in particular between poultry farms in the absence of appropriate precautions.

76 Second, it should be pointed out that South America and Oceania have already been affected by the avian influenza virus and that wild birds in those places have become infected. The applicants’ assertions to the contrary are based on vague OIE maps which related only to restricted periods (2010, 2011 and 2013) and on documents relating solely to the H5N1, virus, whereas EFSA examined the different virus of subtypes H5 and H7 in its opinions of 2005, 2006 and 2008.

77 In that regard, it should be observed that, according to scientific data produced by the Commission, the reliability of which is not contradicted by the applicants, first of all, the United Nations Food and Agriculture Organisation (FAO), in its report on HPAI in Mexico (‘Highly Pathogenic Avian Influenza in Mexico (H7N3)’, Empres Watch, Vol. 26, August 2012, pp. 63-71) confirms that the H7N3 virus is present in wild birds all over the world, as demonstrated by monitoring conducted in North America and South America (notably in Peru), in Europe and Asia, and mentions wild bird migration and contact with backyard poultry as the most frequently identified mode of introduction and/or spread of the virus. Next, the H5N9 virus was also discovered in wild birds in Chile between 2007 and 2009, according to a scientific article produced by the Commission (‘Avian Influenza in wild birds from Chile, 2007-2009’, Virus Research 199 (2015) 42-45). According to the OIE website, epidemics of the H7N7 virus were also noted in Australia in 2012 and 2013. In addition, new viruses causing HPAI, in particular the H5N8 virus, were observed in the United States and Mexico in 2014 and could spread in South America and be recombined with existing viruses in wild bird populations. Last, the H7N9 virus appeared, a low pathogenicity virus showing virtually no clinical sign in birds but presenting serious danger for humans.

78 As regards the applicants’ assertion that the cases of infections detected in South America related only to isolated wild birds, found along migration routes from the Pacific Ocean coast, and not sources such as poultry holdings, it must be considered that such a difference may be explained by the fact that it is impossible to monitor wild birds as closely as poultry on poultry holdings, and such sightings are therefore isolated and the available scientific data may not represent the total number of infected wild birds.

79 In fact, many third countries do not have the necessary resources to detect the virus in wild birds, which assumes a veterinary monitoring system covering the entire territory and diagnosis by competent laboratories. Since it is not for the Commission to conduct monitoring programmes or establish diagnostic laboratories in third countries, it is for the country of origin to prove that it is disease free, by providing guarantees corresponding to EU requirements, such as those laid down in Annex II to Regulation No 318/2007 and Implementing Regulation No 139/2013. In that regard, the Court observes, as does the Commission, that some countries in South America (the Plurinational State of Bolivia, Guyana, the Republic of Paraguay, the Republic of Surinam and the Bolivarian Republic of Venezuela) have not even asked to be included on the list of countries from which poultry may be imported into the EU, laid down in Regulation No 798/2008 (see paragraph 24 above), and which also applies, pursuant to Annex I to Implementing No 139/2013 (see paragraph 30 above), to other birds the import of which is authorised, such as wild birds bred in captivity.

80 Third, it follows from various documents placed on the file by the parties that the importation from third countries of captured wild birds continues to be a high-risk means of transmission, especially during migration, and that it entails, in particular, a risk of the introduction of new HPAI and LPAI viral strains that thus far do not exist in the EU, which could recombine in highly pathogenic viruses and be transmitted directly or indirectly to European populations of wild birds or poultry.

81 Thus, according to the opinion of the Friedrich-Loeffler-Institut (Friedrich Loeffler Institute) of 25 November 2014, produced by the applicants themselves, the risk of transmission of the HPAI virus to poultry in Germany by wild birds is classified as ‘high’, just like the risk resulting from illegal imports from third countries, whereas the risk resulting from legal imports from third countries — that is to say, since the adoption of Regulation No 318/2007, of birds bred in captivity — or from trade between Member States is classified as ‘negligible’ and the risk associated with the movement of persons and vehicles within the EU is classified as ‘low’.

82 In its next opinion, dated 3 June 2015, produced by the Commission, the Friedrich-Loeffler-Institut begins by stating that ‘the world HPAI situation, caused by various strains, has reached a hitherto unprecedented level’. It then states that ‘mutual transmissions of the [H5N8 virus] between wild birds and poultry are possible by direct contact and by contact with matter contaminated by shedding’ and that ‘the frequency of high recombination on the American continent suggests that [that virus] must already have been widespread in the wild bird population of North America in 2014’. The risk associated with wild birds in Germany has admittedly fallen to ‘low to moderate’, but only up to August 2015, a migration period for those birds.

83 It is apparent, in particular, from the body of scientific data provided by the Commission, the reliability of which is not contradicted by the applicants, first, that no country can, according to the OIE rules in force at the material time, declare itself free or exempt from the LPAI and HPAI viruses in wild birds; second, that cases of infections by the virus were reported in South America and Oceania, although other possible cases cannot be detected in those places with the existing means; and, third, that the importation of captured wild birds into the European Union remains a high-risk means of transmission of the virus.

84 In fact, the applicants have produced no document that would clearly show, in a sufficiently probative manner, that certain countries or certain continents, in particular South America and Oceania, are permanently free and exempt from the avian influenza virus, or that, generally, captured wild birds do not represent any risk of spreading that virus.

85 It must therefore be stated that scientific uncertainty about the risk of the spread of avian influenza in the EU by imports of captured wild birds from third countries throughout the world persists to a high degree.

86 It follows from the foregoing considerations that the first complaint, alleging a serious breach of the principle of proportionality because the geographic scope of the prohibition of the importation of captured birds into the European Union laid down in Regulation No 318/2007 and Implementing Regulation No 318/2013, cannot be upheld.

– Second complaint, relating to the failure to apply a quarantine solution as a less onerous means

87 By the second complaint, the applicants claim that, given the slowdown in the spread of infections in countries still affected by avian influenza, a solution involving quarantine, even double quarantine, that is to say, both in the third country and into the importing Member State, ought to have been preferred by the Commission as a less onerous means of combating the spread of that disease.

88 The Commission disputes the applicants’ arguments.

89 It should be observed at the outset that the present complaint is similar to a complaint examined by this Court in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451).

90 In that regard, it must be recalled that in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451, paragraphs 158 and 159), the Court held as follows:

91 Furthermore, the Court emphasised in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), that, as regards risk prevention, wild birds differ from captive bred birds. In the case of captive bred birds, it is possible to impose stringent health controls as soon as the birds in question are born, and such controls may even extend to the breeding of such birds in a closed environment or include isolation in the case of poultry. Consequently, the Court concluded that the applicants in the case giving rise to that judgment could not argue that the Commission had adopted a manifestly disproportionate measure by drawing a distinction between wild birds and captive bred birds (see, to that effect, judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraphs 162 and 163).

92 In the present case, it must be pointed out that the applicants have produced no document capable of upsetting those findings of the General Court, in accordance with the principle of proportionality and the precautionary principle and also with EFSA’s Opinion of 2006, just as, moreover, EFSA’s Opinion of 2008. On the contrary, the alleged ’slowdown in the spread of the infections’ to which the applicants refer should be treated with caution, having regard to the scientific data supplied by the Commission (see paragraphs 74 to 82 above).

93 Therefore, in the circumstances of the present case, it must be considered that the conclusion arrived at in paragraph 91 above is applicable, for the same reasons, both for Regulation No 318/2007 and for Implementing Regulation No 139/2013, which constitutes the ‘codification’ of Regulation No 318/2007 and essentially reproduces its content (see paragraph 30 above).

94 It follows that the second complaint, alleging a serious breach of the principle of proportionality by failure to apply a solution involving quarantine as a less onerous means of combating avian influenza, cannot succeed.

– Third complaint, relating to the failure to employ more intensive monitoring of migratory birds as a more effective means

95 By the third complaint, the applicants claim that more intensive monitoring of migratory birds, possibly together with a requirement for poultry bred along the migration routes to be confined, as a protective measure, would have constituted for the Commission a more effective means of combating the spread of avian influenza.

96 The Commission disputes the applicants’ arguments.

97 It is sufficient to state at the outset that the transmission of the avian influenza virus by migratory wild birds is a parallel means of transmission, which does not prevent transmission of the virus by wild birds captured in their natural environment. Consequently, a more intensive monitoring of migratory birds, even accompanied by enhanced biosecurity measures, such as a requirement for poultry on migratory routes in the European Union to be confined, cannot constitute a more effective alternative solution than the prohibition of imports of captured wild birds into the EU.

98 In addition, it should be considered that the monitoring of migratory birds, together with screening tests on wild birds, is not a realistic alternative measure, owing to its complexity, its high cost and its low representativeness. Thus, the Commission acknowledges that screening tests carried out in the EU on around 50000 wild birds in 2008, involving the commitment of significant resources, affected such a small number of birds that the result cannot be regarded as representative.

99 In any event, it must be observed that the European Union cannot compel third countries, in particular those in South America and Africa, to carry out more intensive monitoring of wild birds.

100 It must therefore be accepted that the state of health of wild birds can be traced and known with sufficient scientific certainty only if those birds are bred in captivity and monitored on a permanent basis, by an effective veterinary system, in breeding establishments approved for that purpose.

101 It follows that the third plea, alleging a serious breach of the principle of proportionality owing to failure to employ more intensive monitoring of migratory birds as a less onerous means of combating avian influenza, cannot be upheld.

102 It follows from all of the foregoing considerations that, in adopting Regulation No 318/2007 and Implementing Regulation No 139/2013, the Commission, in the exercise of its wide discretion, did not make a manifest error of assessment or commit a serious breach of the principle of proportionality, in particular with regard to the geographic scope of the prohibition of the importation of captured wild birds into the European Union, or of the precautionary principle.

103 The second plea must therefore be rejected.

Third plea, alleging a serious breach of the duty of care

104 By the third plea, the applicants, relying, in particular, on the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), claim that the Commission committed a serious breach of its duty of care in the context of the legislative procedure by continuing to base the prohibition on importing wild birds into the European Union on the EFSA opinions of 2005 and 2006 ‘uncritically’, without having asked EFSA for a more recent opinion and without having taken account of the current state of scientific knowledge, as gathered in particular by the OIE and consolidated since 2010. In particular, they claim that when Regulation No 139/2013 was adopted, as the methods of propagation and the risks of contamination by the avian influenza virus had already been studied and observed for almost 10 years, the Commission ought to have taken into account the OIE data establishing the total absence of cases of infection by avian influenza in wild birds in South America and the complete absence of contact between wild birds from South America or Oceania and those of the affected Asian countries.

105 In the applicants’ submission, in the light of that scientific knowledge, certain infection-free countries ought to have been exempted from the prohibition on imports of captured wild birds into the European Union and a solution involving quarantine, together with more intensive monitoring of migratory birds, would have been a more appropriate means. In addition, Regulation No 318/2007 and Implementing Regulation No 139/2013 should faithfully reflect the state of scientific knowledge not only at the time of their adoption but also throughout the period of their validity, which means that they should be adapted over time if necessary. Furthermore, the Commission failed to ask EFSA specifically to study the risks associated with the international poultry trade.

106 The Commission disputes the applicants’ arguments.

107 It has consistently been held that, where an EU institution has a wide discretion, the review of observance of guarantees conferred by the EU legal order in administrative procedures is of fundamental importance. Those guarantees include the obligation for the competent institution to examine carefully and impartially all the relevant elements of the individual case and the obligation to give an adequate statement of the reasons for its decision. Compliance with the Commission’s duty to gather, in a diligent manner, the factual elements necessary for the exercise of its wide discretion, as well as the review thereof by the Courts of the European Union, are all the more important because the exercise of that discretion is subject to only a limited judicial review of the merits, confined to examining whether there has been a manifest error (see, to that effect, judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraph 84 and the case law cited).

108 In the present case, it is appropriate, in the first place, to define the legal scope of the illegal acts found in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), and, in the second place, to determine whether in the present case there was a breach by the Commission of its duty of care.

109 In the first place, as regards the scope of the findings in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), of illegal acts for breach of the duty of care, it is necessary, at the outset, to distinguish the factual context of the present case from the factual context in the case giving rise to that judgment.

110 In the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), the General Court found, in particular, that the Commission had, first of all, based Decision 2005/760 (see paragraph 8 above) on a factual error — namely, a mix-up of samples, a bird infected with H5N1 virus, detected at the quarantine centre in Essex (United Kingdom), having initially been wrongly classed as coming from Surinam, in South America, when it later turned out that it in actual fact it was from Taiwan, in Asia — and had then breached its duty of care by adopting a number of decisions extending its initial decision (see paragraph 9 above) without taking into account the results of a report exposing that error. Thus, the Commission had failed to explain why it had nevertheless considered it necessary to continue the suspension of wild bird imports from South America and to specify the areas at risk under Article 18(1) of Directive 91/496 (see, to that effect, judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraph 114).

111 In fact, Regulation No 318/2007 and Implementing Regulation No 139/2013, which are relevant in the present case, by laying down general health conditions under Article 17 of Directive 92/65, are quite distinct from Decision 2005/760 and the decisions extending it, which the Court held to be unlawful in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451). Unlike those decisions, the regulations in question are not protective measures affecting areas at risk within the meaning of Article 18(1) of Directive 91/496, for which the specific risk in the countries concerned had to be carefully examined. Furthermore, unlike those decisions, those regulations are not applicable for a limited period, which means that the measure has to be reconsidered on expiry in order to justify its extension.

112 Furthermore, in the present case, the Commission did not rely on any known error and could not therefore commit a breach of its duty of care by not taking account of any report exposing such an error.

113 It follows that the findings of illegal acts made by the Court in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451), were made in a particular context, consisting of protective measures based on a known error, and cannot as such be applied by analogy to Regulation No 318/2007 and Implementing Regulation No 139/2013.

114 In the second place, it must be stated, in the present case, that in basing, first of all, the adoption of Regulation No 318/2007 on, in particular, the scientific uncertainty which emerged from EFSA’s Opinion of 2006 about the risks associated with the imports of captured wild birds (see paragraph 17 above), and is, moreover, borne out by the most recent scientific data supplied by the Commission (see paragraphs 74 to 82 above), the Commission fulfilled its duty of care as regards the scientific grounds for a prohibition on imports of captured wild birds into the European Union, taking into account, in particular, the existence of different sub-types of virus, in addition to the H5N1 virus.

115 Furthermore, in 2007 the Commission requested a new consolidated opinion from EFSA (see paragraph 25 above). The Court considers, as does the Commission, that EFSA’s consolidated opinion of 2008, on Animal health and welfare aspects of avian influenza and the risk of its introduction into the EU poultry holdings, confirmed the basic hypothesis of EFSA’s opinion of 2006 that wild birds represented a natural reservoir of avian influenza and the extent of their infection could be detected only with difficulty, since they had no or very few clinical signs of disease.

116 As for Implementing Regulation No 139/2013, it should also be stated that the Commission did not breach its duty of care by adopting that regulation. The applicants have produced no document showing that the most recent scientific data contradict on major points the findings of EFSA’s opinion of 2006, which is the basis of the adoption of Regulation No 318/2007, of which Implementing Regulation No 139/2013 constitutes the ‘codification’.

117 In addition, the Commission requested a new opinion from EFSA at the beginning of 2014, before the present action was brought (see paragraph 34 above). Even though that opinion concerned only the H5N8 virus, it must be considered that such terms of reference suggest that the Commission duly reacted to the development of the circumstances relevant to the reassessment of its measures to combat avian influenza.

118 It is apparent from the case-file, moreover, that EFSA’s opinions of 2008 and 2014 confirmed the risks associated with wild birds, in particular captured wild birds, and the prevailing scientific uncertainty as to the transmission of avian influenza. Likewise, the OIE’s health code states that ‘in essence, no Member Country can declare itself free from Influenza A in wild birds’ (see paragraph 74 above).

119 Thus, the continuation of the prohibition on importing captured wild birds into the European Union is not the consequence of a serious breach of the duty of care but, on the contrary, is based on EFSA’s scientific opinions, which are not undermined by the OIE health code, in the context of the Commission’s wide discretion, which it exercised without making a manifest error.

120 Furthermore, as regards the assertion that the Commission failed to ask EFSA specifically to study the risks associated with the international poultry trade, it must be held, first, that it is inoperative, since such trade is a parallel method of transmitting the avian influenza virus which does not prevent the risk associated with captured wild birds, and, second, it is factually incorrect, since as early as 2000 the Commission requested EFSA to provide detailed scientific opinions on the risks associated with imports of poultry and adopted various measures as a result, including Regulation No 798/2008 (see paragraph 24 above). In addition, the method of transmitting that virus by chickens was again examined in EFSA’s opinion of 2014.

121 Last, the Commission states, without being contradicted by the applicants, that on 31 March 2015, in view of the massive sources of avian influenza recently found and of the re-combination of the H5N8 virus and other sub-type H5 viruses, it asked EFSA to conduct a new study of the methods of transmission and, in particular, of the role of the HPAI-causing viruses that are difficult to detect in wild birds but potentially dangerous for humans.

122 It follows from all of the foregoing considerations that, in adopting and maintaining in force Regulation No 318/2007 and Implementing Regulation No 139/2013, the Commission did not make any manifest error in the exercise of its wide discretion or commit any serious breach of its duty of care.

123 The third plea must therefore be rejected.

First plea, alleging serious breach of the freedom to choose an occupation, the freedom to conduct a business and the right to property (Articles 15 to 17 of the Charter of Fundamental Rights)

124 By the first plea, the applicants claim that the prohibition on importation of wild birds into the European Union, as laid down in Regulation No 318/2007 and Implementing Regulation No 139/2013, constituted a serious breach of their freedom to choose an occupation, their freedom to conduct a business and their right to property, as guaranteed by Articles 15 to 17 of the Charter of Fundamental Rights. More particularly, they claim that that ban made it impossible for them to conduct their business of importing and reselling captured wild birds and operating quarantine centres built by them for that purpose before 2005. They claim that they have thus been pushed to ‘the threshold of poverty’, indeed to ‘the brink of ruin’, owing to the fall in their turnover and the loss of their investments in those quarantine centres. They also reiterate, in the context of this plea, their complaints concerning the disproportionate nature of that prohibition, owing in particular to the fact that its geographic scope is too wide.

125 The Commission disputes the applicants’ arguments.

126 It has consistently been held that the freedom to choose an occupation, the freedom to conduct a business and the right to property are fundamental rights enshrined in Articles 15 to 17 of the Charter of Fundamental Rights. Nonetheless, those rights do not constitute absolute prerogatives, but must be viewed in relation to their social function. Consequently, the exercise of those rights may be restricted, provided that those restrictions in fact correspond to objectives of public interest pursued by the European Union and that they do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights thus guaranteed (see, to that effect, judgment in ATC and Others, cited in paragraph 31 above, EU:T:2013:451, paragraph 188 and the case law cited).

127 In the present case, it should be observed at the outset that this plea is similar to a plea examined by this Court in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451).

128 In that regard, it must be borne in mind that, in the judgment in ATC and Others, cited in paragraph 31 above (EU:T:2013:451, paragraph 190), the Court held as follows:

129 In the present case, it must be considered that the finding referred to in paragraph 128 above is applicable, for the same reasons, to both Regulation No 318/2007 and Implementing Regulation No 139/2013, which constitutes the ‘codification’ of Regulation No 318/2007 and essentially reproduces its content (see paragraph 30 above).

130 In fact, the applicants in the present case have neither shown, nor even alleged, that Regulation No 318/2007 and Implementing Regulation No 139/2013 infringed upon the very substance of their fundamental rights.

131 The applicants themselves acknowledge, moreover, that they are still conducting their trade in birds today, while making clear that that trade is now in birds bred in the European Union which are either bought from third parties or ‘produced at great expense’ on their own holdings.

132 It must be considered that any fall in turnover or any loss of profits associated with a differential in the resale price between captive bred birds and birds captured in their natural environment can clearly not constitute an infringement upon the very substance of fundamental rights, which is far wider than commercial opportunity.

133 In that regard, it must be emphasised that the applicants, as animal dealers, are entirely free to import ornamental birds bred in captivity, to sell them and to use their quarantine centres for that purpose. Under Article 5 of Regulation No 318/2007 and Implementing Regulation No 139/2013, the importation of ornamental birds bred in captivity, unlike the importation of birds captured in their natural environment, was and continues to be authorised provided that certain health conditions are observed.

134 Thus, the statistics on wild bird imports into the European Union supplied by the Commission, and not contradicted by the applicants, even show, after a drop between 2005 and 2006, an increase between 2006 and 2010 and a still greater increase between 2010 and 2014. The Commission has also produced a list of 13 establishments, in 6 third countries, namely the Argentine Republic, Canada, the Republic of Chile, the United States of America, the State of Israel and the Republic of the Philippines, which are approved, in accordance with Article 4 of and Annex II to Regulation No 318/2007 and then Implementing Regulation No 139/2013 (see paragraph 20 above), to export wild birds bred in captivity to the European Union.

135 It should also be observed, as the Commission submits, and contrary to the applicants’ contentions, that the quarantine centres are still effective in the European Union. For wild birds bred in captivity, and also for certain wild birds the import of which is authorised under the exceptional rules laid down in Article 2 of Regulation No 318/2007 and Implementing Regulation No 139/2013, the quarantine obligation is double, in that it applies both in the exporting country and in the European Union.

136 Thus, according to the statistics supplied by the Commission and not contradicted by the applicants, the number of quarantine centres in the European Union has not fallen significantly since 2007, and new centres have even been authorised. For example, in 2014, as in 2007, Germany had 24 operational quarantine centres.

137 It follows from all of the foregoing considerations that the measures contained in Regulation No 318/2007 and Implementing Regulation No 139/2013 are legitimate restrictions and are proportionate, within the meaning of the case-law cited in paragraph 126 above, to the applicants’ freedom to choose an occupation and freedom to conduct a business, and to their right to property, in accordance with Article 52(1) of the Charter of Fundamental Rights, and that, by adopting those regulations and maintaining them in force, the Commission, in the exercise of its wide discretion, did not make any manifest error or commit any serious breach of those fundamental rights.

138 The first plea must therefore be rejected.

139 Since, in adopting and maintaining in force Regulation No 318/2007 and Implementing Regulation No 139/2013, the Commission did not make any manifest error in the exercise of its wide discretion and did not commit a sufficiently serious breach of either the principle of proportionality, by taking the precautionary principle into account, or of its duty of care, or of the applicants’ fundamental rights under Articles 15 to 17 of the Charter of Fundamental Rights, it must be concluded that the applicants have failed in the present case to establish the existence of illegal conduct on the part of the Commission.

The action for damages

140 The finding that there was no illegal conduct by the Commission in the present case is sufficient to preclude its non-contractual liability, without there being any need to examine the Commission’s own claims that the applicants’ claims alleging a causal link and damage are inadmissible and unfounded or to examine the applicants’ request that the Director of the OIE, Mr B.V., should be summoned to appear as an expert witness.

141 The action must therefore be dismissed in its entirety.

Costs

142 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

143 As the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay the costs incurred by the Commission, in accordance with the form of order sought by the Commission.

On those grounds, THE GENERAL COURT (Eighth Chamber) hereby:

1. Dismisses the action;

2. Orders Zoofachhandel Züpke GmbH, Zoohaus Bürstadt, Helmut Ofenloch GmbH & Co. KG, Zoofachgeschäft — Vogelgroßhandel Import-Export Heinz Marche, Ms Rita Bürgel and Mr Norbert Kass, in addition to bearing their own costs, to pay the costs incurred by the European Commission.

Gratsias Kancheva Wetter [Signatures]

Table of contents

Background to the dispute The applicants Directives 91/496/EEC and 92/65/EEC The EFSA opinion of 2005 Decision 2005/760/EC and the extension of the measures adopted The EFSA Opinion of 2006 Regulation No 318/2007 EFSA’s Opinion of 2008 Implementing Regulation No 139/2013 The judgment in ATC in 2013 The EFSA Opinion of 2014 Procedure and forms of order sought Law The existence of unlawful conduct Second plea, alleging a serious breach of the principle of proportionality – First complaint, alleging that the geographic scope of the prohibition on the importation of captured wild birds into the EU is too wide – Second complaint, relating to the failure to apply a quarantine solution as a less onerous means – Third complaint, relating to the failure to employ more intensive monitoring of migratory birds as a more effective means Third plea, alleging a serious breach of the duty of care First plea, alleging serious breach of the freedom to choose an occupation, the freedom to conduct a business and the right to property (Articles 15 to 17 of the Charter of Fundamental Rights) The action for damages Costs

( *1 ) Language of the case: German.