Order of the President of the Court of 27 January 1988. - Distrivet SA v Council of the European Communities. - Prohibition of the administration to farm animals of certain substances having a hormonal action - Transitional measures. - Case 376/87 R.



European Court reports 1988 Page 00209



Summary

Parties

Grounds

Operative part



Keywords

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APPLICATION FOR INTERIM MEASURES - CONDITIONS OF ADMISSIBILITY - ADMISSIBILITY OF THE MAIN APPLICATION - IRRELEVANCE - LIMITS

( EEC TREATY, ARTS . 185 AND 186; RULES OF PROCEDURE, ART . 83 ( 1 ) )

Summary

ALTHOUGH IN PRINCIPLE THE ISSUE OF THE ADMISSIBILITY OF THE MAIN APPLICATION SHOULD NOT BE EXAMINED IN PROCEEDINGS RELATING TO AN APPLICATION FOR INTERIM MEASURES, SO AS NOT TO PREJUDGE THE SUBSTANCE OF THE CASE, IT NEVERTHELESS SEEMS NECESSARY, WHEN IT IS CONTENDED THAT THE MAIN APPLICATION TO WHICH THE APPLICATION FOR INTERIM MEASURES RELATES IS MANIFESTLY INADMISSIBLE, TO ESTABLISH WHETHER THERE ARE ANY GROUNDS FOR CONCLUDING PRIMA FACIE THAT THE MAIN APPLICATION IS ADMISSIBLE .

SUCH AN APPROACH IS ALL THE MORE NECESSARY IN A CASE WHERE THE APPLICANT IS A PRIVATE PARTY SEEKING A DECLARATION THAT A MEASURE OF GENERAL APPLICATION IS VOID, IN ORDER TO PREVENT A SITUATION WHERE THAT PERSON IS ABLE, BY MEANS OF AN APPLICATION FOR INTERIM MEASURES, TO OBTAIN THE SUSPENSION OF THE OPERATION OF A MEASURE WHICH THE COURT SUBSEQUENTLY REFUSES TO DECLARE VOID BECAUSE HIS APPLICATION IS INADMISSIBLE .

Parties

IN CASE 376/87 R

DISTRIVET SA, A COMPANY INCORPORATED UNDER FRENCH LAW WHOSE REGISTERED OFFICE IS AT 35 BOULEVARD DES INVALIDES, PARIS, REPRESENTED BY E . MARISSENS, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF L . DUPONG, 14 RUE DES BAINS,

APPLICANT,

V

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS AGENTS J . DELMOLY AND C . MAVRAKOS, RESPECTIVELY PRINCIPAL ADMINISTRATOR AND ADMINISTRATOR IN ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . KAESER, MANAGER OF THE LEGAL DIRECTORATE OF THE EUROPEAN INVESTMENT BANK, 100 BOULEVARD KONRAD ADENAUER,

DEFENDANT,

SUPPORTED BY

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS AGENTS C . DURAND AND G . CAMPOGRANDE, MEMBERS OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,

INTERVENER,

APPLICATION FOR SUSPENSION OF THE OPERATION OF COUNCIL DECISION 87/561 OF 18 NOVEMBER 1987 ON TRANSITIONAL MEASURES CONCERNING THE PROHIBITION ON ADMINISTRATION TO FARM ANIMALS OF CERTAIN SUBSTANCES HAVING A HORMONAL ACTION ( OFFICIAL JOURNAL 1987, L 339, P . 70 ) AND FOR A PROVISIONAL ORDER THAT THE COUNCIL ADOPT ANOTHER DECISION LAYING DOWN TRANSITIONAL MEASURES FOR COUNCIL DIRECTIVE 85/649 OF 31 DECEMBER 1985 PROHIBITING THE USE IN LIVESTOCK FARMING OF CERTAIN SUBSTANCES HAVING A HORMONAL ACTION ( OFFICIAL JOURNAL 1985, L 382, P . 228 ) IN ORDER TO SUSPEND THE TRANSPOSITION INTO NATIONAL LAW OF ARTICLES 2 AND 6 ( 1 ) OF THAT DIRECTIVE,

THE PRESIDENT OF THE COURT OF JUSTICE

OF THE EUROPEAN COMMUNITIES

MAKES THE FOLLOWING

ORDER

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 18 DECEMBER 1987, DISTRIVET SA BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COUNCIL DECISION 87/561 OF 18 NOVEMBER 1987 ON TRANSITIONAL MEASURES CONCERNING THE PROHIBITION ON ADMINISTRATION TO FARM ANIMALS OF CERTAIN SUBSTANCES HAVING A HORMONAL ACTION IS VOID .

2 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON THE SAME DAY THE APPLICANT REQUESTED THE ADOPTION OF THE FOLLOWING INTERIM MEASURES UNDER ARTICLES 185 AND 186 OF THE EEC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDU RE :

( I ) SUSPENSION OF THE OPERATION OF COUNCIL DECISION 87/561 OF 18 NOVEMBER 1987, AND

( II ) A PROVISIONAL ORDER REQUIRING THE COUNCIL TO ADOPT ANOTHER DECISION LAYING DOWN TRANSITIONAL MEASURES FOR COUNCIL DIRECTIVE 85/649 OF 31 DECEMBER 1985 IN ORDER TO SUSPEND THE TRANSPOSITION INTO NATIONAL LAW OF ARTICLES 2 AND 6 ( 1 ) OF THAT DIRECTIVE UNTIL THE COUNCIL HAS ADOPTED AND PUBLISHED A DIRECTIVE AMENDING OR REPLACING DIRECTIVE 85/649 WHICH COMPLIES WITH THE COMMUNITY' S INTERNATIONAL OBLIGATIONS UNDER THE GENERAL AGREEMENT ON TARIFFS AND TRADE ( GATT ).

3 BY ORDER OF 14 JANUARY 1988 THE COMMISSION WAS GIVEN LEAVE UNDER THE FIRST PARAGRAPH OF ARTICLE 37 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EEC TO INTERVENE IN SUPPORT OF THE DEFENDANT' S CONCLUSIONS, AND IT SUBMITTED ORAL OBSERVATIONS AT THE HEARING .

4 THE DEFENDANT SUBMITTED ITS WRITTEN OBSERVATIONS ON 11 JANUARY 1988 . THE PARTIES PRESENTED ORAL ARGUMENT ON 20 JANUARY 1988 .

5 BEFORE CONSIDERING WHETHER THIS APPLICATION FOR INTERIM MEASURES IS WELL FOUNDED, IT MAY BE HELPFUL TO GIVE A BRIEF ACCOUNT OF THE FACTS AND LEGISLATIVE BACKGROUND OF THIS CASE .

6 DISTRIVET IS A COMPANY ENGAGED IN THE MANUFACTURE AND DISTRIBUTION IN THE TERRITORY OF THE COMMON MARKET OF VETERINARY MEDICINAL PRODUCTS, IN PARTICULAR OF SUBSTANCES HAVING A HORMONAL ACTION USED, WHETHER OR NOT FOR THERAPEUTIC PURPOSES, IN THE REARING OF ANIMALS INTENDED FOR CONSUMPTION .

7 A COMMUNITY POLICY ON SUBSTANCES HAVING A HORMONAL OR THYROSTATIC ACTION WAS FIRST ESTABLISHED BY THE ADOPTION BY THE COUNCIL ON 31 JULY 1981 OF DIRECTIVE 81/602 CONCERNING THE PROHIBITION OF CERTAIN SUBSTANCES HAVING A HORMONAL ACTION AND OF ANY SUBSTANCES HAVING A THYROSTATIC ACTION ( OFFICIAL JOURNAL 1981, L 222, P . 32 ). ARTICLE 2 OF THE DIRECTIVE PROVIDES FOR THE PROHIBITION, IN GENERAL, OF SUBSTANCES HAVING A HORMONAL OR THYROSTATIC ACTION, SO THAT THE ADMINISTERING OF SUCH SUBSTANCES TO FARM ANIMALS AND THE PLACING ON THE MARKET OF ANIMALS TO WHICH SUCH SUBSTANCES HAVE BEEN ADMINISTERED OR THE MEAT OF SUCH ANIMALS ARE PROHIBITED . ARTICLE 4 ( 1 ) OF THE DIRECTIVE PROVIDES THAT, BY WAY OF DEROGATION FROM THAT PRINCIPLE, THE MEMBER STATES MAY AUTHORIZE THE ADMINISTERING TO FARM ANIMALS OF SUBSTANCES HAVING A HORMONAL ACTION FOR THERAPEUTIC OR ZOOTECHNIC PURPOSES .

8 ARTICLE 5 OF THE DIRECTIVE ESTABLISHED A SPECIAL SET OF RULES WITH REGARD TO THE ADMINISTERING OF FIVE PARTICULAR SUBSTANCES, NAMELY OESTRADIOL 17 BETA, PROGESTERONE, TESTOSTERONE, TRENBOLONE AND ZERANOL . THE FIRST TWO PARAGRAPHS OF ARTICLE 5 PROVIDE THAT THE COUNCIL IS TO TAKE A DECISION AS SOON AS POSSIBLE ON THE ADMINISTERING OF THOSE SUBSTANCES TO FARM ANIMALS FOR FATTENING PURPOSES AND THAT, PENDING THE ADOPTION OF THAT DECISION, THE NATIONAL REGULATIONS IN FORCE ARE TO CONTINUE TO APPLY . THE THIRD PARAGRAPH STATES THAT THE MEMBER STATES MAY NOT AUTHORIZE THE USE OF NEW SUBSTANCES DURING THAT TRANSITIONAL PERIOD .

9 THAT COMMUNITY LEGISLATION WAS SUPPLEMENTED BY COUNCIL DIRECTIVE 85/649 OF 31 DECEMBER 1985 WHICH PROVIDED IN PRINCIPLE FOR AN ABSOLUTE PROHIBITION ON THE ADMINISTERING OF SUBSTANCES HAVING A HORMONAL ACTION, INCLUDING THE FIVE SUBSTANCES REFERRED TO IN PARAGRAPH 8 OF THIS ORDER, FOR THE FATTENING OF FARM ANIMALS WITHIN THE COMMUNITY, EXCEPT FOR THERAPEUTIC PURPOSES . THAT DIRECTIVE ALSO PROHIBITED THE PLACING ON THE MARKET, ACCESS TO INTRA-COMMUNITY TRADE AND THE IMPORTATION FROM NON-MEMBER COUNTRIES OF ANIMALS AND OF MEAT FROM ANIMALS TO WHICH SUCH SUBSTANCES HAD BEEN ADMINISTERED . ARTICLE 10 OF THE DIRECTIVE PROVIDED THAT THE GENERAL PROHIBITION OF SUBSTANCES HAVING A HORMONAL ACTION FOR WHICH THE DIRECTIVE PROVIDES WAS TO BE GIVEN EFFECT IN THE NATIONAL LEGAL SYSTEMS OF THE MEMBER STATES BY 1 JANUARY 1988 AT THE LATEST .

10 IN ORDER TO AVOID ANY SUDDEN TERMINATION OF THE POSSIBILITY OF DISPOSING ON THE INTERNAL MARKET OF ANIMALS TO WHICH HORMONES HAD BEEN LAWFULLY ADMINISTERED AND WHICH HAD NOT BEEN SLAUGHTERED ON 1 JANUARY 1988 AND OF THE MEAT OF SUCH ANIMALS WHICH HAD NOT BEEN COMPLETELY DISPOSED OF ON THAT DATE, THE COUNCIL, ACTING ON A PROPOSAL FROM THE COMMISSION, CONSIDERED IT NECESSARY TO ADOPT DECISION 87/561 OF 18 NOVEMBER 1987 ADOPTING TRANSITIONAL MEASURES WITH REGARD TO THE SYSTEM ESTABLISHED BY DIRECTIVE 85/649 .

11 ARTICLE 1 ( 3 ) OF THE DECISION REITERATES THAT, FOR NEW PRODUCTION, THE ABSOLUTE PROHIBITION LAID DOWN BY COUNCIL DIRECTIVE 85/649 IS TO APPLY FROM 1 JANUARY 1988 . ARTICLE 1 ( 1 ) PROVIDES THAT, FOR THE MARKETING OF EXISTING PRODUCTION, THE MEMBER STATES ARE TO MAINTAIN UNTIL 31 DECEMBER 1988 THE ARRANGEMENTS RESULTING FROM EXISTING NATIONAL PROVISIONS AS REGARDS BOTH ITS PLACING ON THE MARKET AND ACCESS TO INTRA-COMMUNITY TRADE, AND THAT THAT TRANSITIONAL MEASURE IS TO APPLY EQUALLY TO IMPORTS OF SUCH MEAT FROM NON-MEMBER COUNTRIES .

12 ACCORDING TO ARTICLE 185 OF THE EEC TREATY ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO 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 .

13 ACCORDING TO ARTICLE 186 OF THE EEC TREATY THE COURT OF JUSTICE MAY PRESCRIBE ANY NECESSARY INTERIM MEASURES IN CASES BEFORE IT .

14 ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES, AS A CONDITION FOR THE GRANT OF INTERIM MEASURES SUCH AS THOSE REQUESTED, THAT THE APPLICATION MUST STATE THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA-FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .

15 AS A PRELIMINARY POINT, BEFORE DECIDING WHETHER IT IS NECESSARY TO EXAMINE THE ARGUMENTS PUT FORWARD BY THE APPLICANT TO SHOW THAT ITS APPLICATION FOR INTERIM MEASURES SATISFIES THE CONDITIONS FOR THE GRANT OF AN ORDER SUSPENDING THE CONTESTED ACT AND FOR THE GRANT OF THE INTERIM MEASURE APPLIED FOR, IT SEEMS APPROPRIATE TO CONSIDER A QUESTION RAISED BY THE DEFENDANT CONCERNING THE ADMISSIBILITY OF THE MAIN APPLICATION .

16 THE DEFENDANT CONTENDS THAT THE MAIN APPLICATION TO WHICH THE APPLICATION FOR INTERIM MEASURES RELATES IS MANIFESTLY INADMISSIBLE AND, CONSEQUENTLY, SUBMITS THAT THIS APPLICATION IS ALSO MANIFESTLY INADMISSIBLE . IN SUPPORT OF ITS VIEW, IT MAINTAINS THAT AS THE DECISION AT ISSUE IS ADDRESSED TO THE MEMBER STATES AN APPLICATION FOR A DECLARATION THAT THE DECISION IS VOID MADE BY A LEGAL PERSON, SUCH AS DISTRIVET, ON THE BASIS OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY IS NOT ADMISSIBLE UNLESS IT IS OF DIRECT AND INDIVIDUAL CONCERN TO IT .

17 IN THAT REGARD THE DEFENDANT POINTS OUT THAT THE COURT HAS CONSISTENTLY HELD THAT "PERSONS OTHER THAN THOSE TO WHOM A DECISION IS ADDRESSED MAY CLAIM TO BE INDIVIDUALLY CONCERNED ONLY IF THAT DECISION AFFECTS THEM BY REASON OF CERTAIN ATTRIBUTES WHICH ARE PECULIAR TO THEM OR BY REASON OF CIRCUMSTANCES IN WHICH THEY ARE DIFFERENTIATED FROM ALL OTHER PERSONS AND BY VIRTUE OF THESE FACTORS DISTINGUISHES THEM INDIVIDUALLY JUST AS IN THE CASE OF THE PERSON ADDRESSED ". THAT REQUIREMENT IS NOT SATISFIED IN THIS CASE ESSENTIALLY ON TWO GROUNDS . THE COUNCIL ARGUES IN THE FIRST PLACE THAT DECISION 87/561 IS, BY ITS NATURE, A MEASURE OF GENERAL APPLICATION EMPOWERING THE MEMBER STATES TO MAINTAIN IN FORCE, AS REGARDS THE MARKETING OF THE PRODUCTS IN QUESTION, NATIONAL PROVISIONS WHICH ARE THEMSELVES OF GENERAL AND ABSTRACT APPLICATION, SO THAT SUCH A MEASURE CANNOT BE OF INDIVIDUAL CONCERN TO A PARTICULAR PERSON DEALING IN THOSE PRODUCTS . SECONDLY, THE COUNCIL SUBMITS THAT THE PURPOSE OF THE DECISION IS TO ENSURE THAT ANIMALS AND MEAT TO WHICH HORMONES WERE LAWFULLY ADMINISTERED PRIOR TO 1 JANUARY 1988 MAY BE DISPOSED OF BY FACILITATING THEIR MARKETING UP TO 31 DECEMBER 1988 . CONSEQUENTLY, THE DECISION IS NOT IN ANY WAY CONCERNED WITH THE ADMINISTRATION OF SUBSTANCES HAVING A HORMONAL ACTION AND IT IS QUITE INCAPABLE OF BEING OF CONCERN TO A MANUFACTURER AND DISTRIBUTOR OF SUCH SUBSTANCES SUCH AS DISTRIVET .

18 THE COUNCIL ALSO MAINTAINS THAT, IN ADDITION, COUNCIL DECISION 87/561 IS NOT OF DIRECT CONCERN TO THE APPLICANT . IN THAT REGARD IT CONTENDS THAT THE DECISION, AS IS CLEAR FROM ARTICLE 1 ( 3 ) THEREOF, MERELY CONFIRMS THE PROHIBITION ON THE ADMINISTRATION OF SUBSTANCES HAVING A HORMONAL ACTION LAID DOWN IN COUNCIL DIRECTIVE 85/649 AND THAT SUCH A PURELY DECLARATORY PROVISION CANNOT BE OF DIRECT CONCERN TO AN UNDERTAKING SUCH AS DISTRIVET .

19 FOR ITS PART, DISTRIVET SUBMITS THAT DECISION 87/561 MUST BE REGARDED AS OF INDIVIDUAL CONCERN TO IT BECAUSE, FIRST, THE ONLY PRODUCTS TO WHICH THE DECISION RELATES ARE THE FIVE SUBSTANCES HAVING A HORMONAL ACTION REFERRED TO IN PARAGRAPH 8 OF THIS ORDER AND, SECONDLY, THOSE FIVE PRODUCTS ARE MANUFACTURED AND DISTRIBUTED SOLELY BY FOUR UNDERTAKINGS, ONE OF WHICH IS THE APPLICANT . THE DECISION IS ALSO OF DIRECT CONCERN TO IT BECAUSE IT MAINTAINS THE PROHIBITION, WITH EFFECT FROM 1 JANUARY 1988, ON THE ADMINISTERING BY BREEDERS FOR FATTENING PURPOSES OF SUBSTANCES HAVING A HORMONAL ACTION, INCLUDING THE FIVE AFOREMENTIONED CIRCUMSTANCES, AND DOES NOT LEAVE THE MEMBER STATES ANY DISCRETION AS REGARDS THE RESULT TO BE ACHIEVED .

20 AT THE HEARING, IN RESPONSE TO QUESTIONS PUT TO IT, DISTRIVET

ENLARGED ON THE REASONS WHICH LED IT TO CONSIDER THAT ITS MAIN APPLICATION IS ADMISSIBLE . IT STATED THAT COUNCIL DECISION 87/561 MUST BE REGARDED AS A HYBRID MEASURE, THAT IS TO SAY OF GENERAL APPLICATION AS REGARDS CATTLE BREEDERS AND OF INDIVIDUAL APPLICATION AS REGARDS THE MANUFACTURERS AND DISTRIBUTORS OF THE FIVE AFOREMENTIONED SUBSTANCES HAVING A HORMONAL ACTION . ITS INDIVIDUAL NATURE FOLLOWS FROM THE FACT THAT AT THE TIME WHEN IT ADOPTED DIRECTIVES 81/602 AND 85/649 AND DECISION 87/561 THE COUNCIL WAS AWARE THAT ITS MEASURES WERE OF CONCERN TO A CLOSED CATEGORY OF ECONOMIC AGENTS - NAMELY THE MANUFACTURERS OF THE FIVE SUBSTANCES REFERRED TO IN THE FIRST PARAGRAPH OF ARTICLE 5 OF DIRECTIVE 81/602 - WHICH WAS NOT CAPABLE OF VARIATION SINCE THE THIRD PARAGRAPH OF ARTICLE 5 PROHIBITS THE MEMBER STATES FROM AUTHORIZING NEW SUBSTANCES, SO THAT NO NEW MANUFACTURERS COULD BE ADDED TO THAT CATEGORY .

21 ALTHOUGH THE COURT HAS REPEATEDLY STRESSED THAT IN PRINCIPLE THE ISSUE OF THE ADMISSIBILITY OF THE MAIN APPLICATION SHOULD NOT BE EXAMINED IN PROCEEDINGS RELATING TO AN APPLICATION FOR INTERIM MEASURES, SO AS NOT TO PREJUDGE THE SUBSTANCE OF THE CASE ( SEE, IN PARTICULAR, THE ORDER OF THE PRESIDENT OF THE COURT OF 8 APRIL 1987 IN CASE 65/87 R PFIZER V COMMISSION (( 1987 )) ECR 1691 ), IT NEVERTHELESS SEEMS NECESSARY, WHEN, AS IN THIS CASE, IT IS CONTENDED THAT THE MAIN APPLICATION TO WHICH THE APPLICATION FOR INTERIM MEASURES RELATES IS MANIFESTLY INADMISSIBLE, TO ESTABLISH WHETHER THERE ARE ANY GROUNDS FOR CONCLUDING PRIMA FACIE THAT THE MAIN APPLICATION IS ADMISSIBLE ( SEE, IN PARTICULAR, THE ORDERS OF THE PRESIDENT OF THE COURT OF 16 OCTOBER 1986 IN CASE 221/86 R GROUP OF THE EUROPEAN RIGHT AND NATIONAL FRONT PARTY V EUROPEAN PARLIAMENT (( 1986 )) ECR 2969, AND OF 8 MAY 1987 IN CASE 82/87 R AUTEXPO V COMMISSION (( 1987 )) ECR 2131 ).

22 SUCH AN APPROACH IS ALL THE MORE NECESSARY IN A CASE WHERE A PRIVATE PARTY SUCH AS THE APPLICANT SEEKS A DECLARATION THAT A MEASURE OF GENERAL APPLICATION IS VOID, IN ORDER TO PREVENT A SITUATION WHERE THAT PERSON IS ABLE, BY MEANS OF AN APPLICATION FOR INTERIM MEASURES, TO OBTAIN THE SUSPENSION OF THE OPERATION OF A MEASURE WHICH THE COURT SUBSEQUENTLY REFUSES TO DECLARE VOID BECAUSE, ON EXAMINATION OF THE SUBSTANCE OF THE CASE, THE APPLICATION IS DECLARED INADMISSIBLE .

23 THERE APPEAR TO BE NO GROUNDS FOR CONCLUDING PRIMA FACIE THAT THE MAIN APPLICATION IS ADMISSIBLE .

24 AS THE DEFENDANT CORRECTLY STATED, AN ANALYSIS OF THE COMMUNITY LEGISLATION CONCERNING SUBSTANCES HAVING A HORMONAL EFFECT SHOWS THAT THE PROHIBITION ON THE USE OF THE AFOREMENTIONED FIVE SUBSTANCES FOR FATTENING PURPOSES IS CONTAINED NOT IN DECISION 87/561 BUT IN DIRECTIVE 85/649, IN RESPECT OF WHICH THE APPLICANT DID NOT BRING AN ACTION FOR ANNULMENT WITHIN THE TIME-LIMIT LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY, OR ANY APPLICATION FOR INTERIM MEASURES . AS REGARDS DECISION 87/561 ITSELF, IT DOES NOT IN ANY WAY CONCERN THE ADMINISTERING OF SUBSTANCES HAVING A HORMONAL ACTION BUT RELATES SOLELY TO THE DISPOSAL, UNTIL 31 DECEMBER 1988, OF ANIMALS AND MEAT WHICH WERE LAWFULLY TREATED WITH HORMONES BEFORE THE PROHIBITION LAID DOWN IN DIRECTIVE 85/649 CAME INTO FORCE; THAT DOES NOT SEEM CAPABLE PRIMA FACIE OF BEING OF INDIVIDUAL CONCERN TO A COMPANY SUCH AS DISTRIVET WHICH IS ENGAGED EXCLUSIVELY IN THE MANUFACTURE AND DISTRIBUTION OF SUBSTANCES HAVING A HORMONAL ACTION .

25 FURTHERMORE, CONTRARY TO DISTRIVET' S CONTENTION, THERE WAS NO CLOSED CATEGORY OF MANUFACTURERS AND DISTRIBUTORS INCAPABLE OF VARIATION TO WHOM THE DIRECTIVES WERE OF CONCERN AT THE TIME OF THEIR ADOPTION BY THE COUNCIL, BECAUSE ANY MANUFACTURER WAS STILL FREE, BY VIRTUE OF ARTICLE 5 OF DIRECTIVE 81/602, TO PUT NEW PRODUCTS CONTAINING ONE OF THE AFOREMENTIONED FIVE SUBSTANCES ON THE MARKET . THAT PROVISION IS INTENDED SOLELY TO PROHIBIT THE MARKETING OF SUBSTANCES OTHER THAN THE AFOREMENTIONED SUBSTANCES HAVING A HORMONAL ACTION . IT FOLLOWS THAT IN 1981 AND IN 1985 AND 1987 THE IDENTITY AND NUMBER OF MARKET OPERATORS AFFECTED BY THE MEASURES ADOPTED BY THE COUNCIL WERE NOT DETERMINED INDIVIDUALLY AND DEFINITIVELY, SO THAT DISTRIVET WAS CONCERNED IN ITS CAPACITY AS A MANUFACTURER AND DISTRIBUTOR OF SUBSTANCES HAVING A HORMONAL ACTION IN THE SAME WAY AS ANY OTHER ECONOMIC AGENT WHO WAS ACTUALLY OR POTENTIALLY IN THE SAME POSITION .

26 IT IS NOT NECESSARY TO CONSIDER THE QUESTION WHETHER DECISION 87/561 IS OF DIRECT CONCERN TO DISTRIVET; THE FOREGOING FINDINGS ARE SUFFICIENT TO JUSTIFY THE CONCLUSION THAT PRIMA FACIE THE ACTION FOR ANNULMENT IS INADMISSIBLE AND CONSEQUENTLY THAT THE APPLICATION FOR INTERIM MEASURES IS ALSO INADMISSIBLE .

Operative part

ON THOSE GROUNDS,

THE PRESIDENT

BY WAY OF INTERIM DECISION,

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION FOR INTERIM MEASURES IS DISMISSED .

( 2 ) COSTS ARE RESERVED .

LUXEMBOURG, 27 JANUARY 1988 .