Opinion of Mr Advocate General Lenz delivered on 14 October 1987. - United Kingdom of Great Britain and Northern Ireland v Council of the European Communities. - Substances having a hormonal action - Action for a declaration that a measure is void - Legal basis - Duty to state reasons - Irregularities in the legislative procedure - Principle of proportionality. - Case 68/86.



European Court reports 1988 Page 00855

Swedish special edition Page 00367

Finnish special edition Page 00371



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A - Facts

1 . On 31 July 1981 Council Directive 81/602 "concerning the prohibition of certain substances having a hormonal action and of any substances having a thyrostatic action" was adopted . ( 1 ) It provides above all that the substances mentioned in Article 2 are not to be administered to farm animals and in Article 4 that the Member States may authorize the administration of certain substances to animals for therapeutic ( and similar ) purposes . According to Article 5, the Council, acting unanimously on a proposal from the Commission, was to take a decision as soon as possible on the administering to farm animals of five hormones for fattening purposes . In addition, Article 7 required the Member States to ensure that farm animals, the meat of such animals and the meat products obtained therefrom were subjected to controls, the detailed rules of which were also to be laid down by the Council acting unanimously .

2 . Those rules were laid down in Council Directive 85/358/EEC of 16 July 1985 . ( 2 ) In Article 14 of that directive it was again stated that the Council, acting unanimously on a proposal from the Commission, was to adopt the decision mentioned in Article 5 of Directive 81/602 . This was now to be done before 31 December 1985 .

3 . The Commission, which, in accordance with the instruction contained in Article 8 of Directive 81/602, had set up a scientific group to examine the effects of the five substances named in Article 5 of Directive 81/602, commenced the action required by Article 5 by adopting a proposal in June 1984 . ( 3 ) Pursuant to that proposal, the Member States were to be allowed to

permit three of the five substances mentioned in Article 5 of Directive 81/602 to be administered to farm animals for fattening purposes . When consulted on the matter, the Economic and Social Committee stated in an Opinion of December 1984 that it could not agree to the proposal . ( 4 ) Likewise, in a Resolution of 11 October 1985, the European Parliament considered that artificial or natural hormones should not be permitted to be used for growth purposes and called on the Commission to incorporate in its proposal the amendments suggested by the Parliament . ( 5 )

4 . The Commission, which had already amended its original proposal on one point in April 1985, ( 6 ) thereupon submitted a new proposal in November 1985, this time for a regulation . ( 7 ) Under the new proposal, derogations from Article 2 of Directive 81/602 ( prohibition on the administering of certain substances to farm animals ) were to be permitted only in accordance with Article 4 of that directive ( administering of certain substances to farm animals for therapeutic and similar purposes ) and it was provided that three natural hormones could be administered to farm animals for therapeutic use . That proposal, or, to be more precise, a somewhat amended text of 18 December 1985, ( 8 ) was, it was stated, discussed in the Council for several hours on 19 December 1985 . It is also reported that a political agreement was reached on this matter ( in the extract from the minutes of the Council' s session on 19 December 1985 produced to the Court it is reported that the text last proposed by the Commission was acceptable to a majority of the delegations ). However, the proposal was not immediately adopted by a majority vote ( unanimity could not be reached ), the reason being, so we are told, that on 19 December 1985 the last Commission proposal was available only in French and the translations into the other official languages were only provisional and therefore had to be gone through again by legally-qualified translators ( juristes-linguistes ). Adoption of the proposal was therefore to take place "by written procedure to be completed by 31 December 1985 ".

5 . That is what happened . After eight Member States had expressed their consent ( the United Kingdom and the Kingdom of Denmark were against the use of the written procedure ) it was then declared in a letter of 31 December 1985 from the Secretary-General of the Council that Directive 85/649 had been adopted by way of the written procedure .

6 . As regards the contents of the directive, which was published in Official Journal 1985, L 382 at p . 228, at this stage I would merely say that it contains, in Article 1, a definition of therapeutic treatment and provides that it is to be prohibited for animals intended for fattening; in Article 2 it provides that any derogation from Article 2 of Directive 81/602 is permissible only in accordance with Article 4 of that directive and that only specific substances may be administered to farm animals for therapeutic purposes; in Article 5 it requires the Member States to ensure that no animals which have had certain substances administered to them and no meat from such animals is dispatched from their territory to that of another Member State; and in Article 6 it also requires the Member States to prohibit the importation from non-member countries of farm animals and of meat from such animals to which certain substances have been administered .

7 . That directive, which is criticized in various ways for the manner in which it was adopted and for its terms but which in the meantime has apparently been incorporated into national law by all the Member States ( except one ), has caused the United Kingdom to apply to the Court for a declaration that it is void . Its application is supported by the Kingdom of Denmark which espouses many of the United Kingdom' s criticisms .

8 . My task now is to examine whether those criticisms are justified or whether - as the Council and the Commission, which supports its arguments, consider - the application must be dismissed .

B - Analysis

1 . Questions of admissibility

9 . There have been no proper objections to the admissibility of the application . However, in its written submissions the Council makes some observations which can be put into the category of objections to admissibility in the wider sense . I will examine those points first .

10 . ( 1 ) It is stated, for example, that the applicant has not been able to show that it suffered any damage as a result of the fact complained of, namely that the contested directive was adopted solely on the basis of Article 43 of the EEC Treaty by a qualified majority . Since there was no chance of achieving unanimity, it would have been necessary to maintain the legal situation prevailing under Directive 81/602, which means that, given the existence of different provisions in the Member States on the hormones mentioned in Article 5 of Directive 81/602, distortions of competition and obstacles to trade would have continued to exist, which would certainly have been to the United Kingdom' s disadvantage as well .

11 . In reply to that observation, however, it was rightly pointed out that when applying to the Court a Member State does not have to prove an interest, ( 9 ) or, as is stated in the judgment in Case 230/81, ( 10 ) it is not required to prove a legitimate interest, which is what the objection is really requiring . It was submitted that, even assuming the conclusion that the legal situation prevailing under Directive 81/602 was more unfavourable to the applicant to be correct, that did not mean that the United Kingdom was barred from seeking a review of the legality of the directive now in question .

12 . ( 2 ) It was also contended by the Council that, as far as the alleged infringements of procedural requirements are concerned ( that is to say, failure to state proper reasons, disregard of the Council' s Rules of Procedure and failure to consult other Community institutions ), the existence of an interest in the annulment of the directive on those grounds must be denied because it may be assumed that if the directive were annulled a measure of identical substance would be adopted .

13 . The point to be made here is that there have indeed been cases ( staff cases, for example; see the judgment in Case 432/85 ( 11 )) in which the existence of an interest in challenging a measure for insufficient reasoning was denied on the ground that once the decision was annulled it was to be expected that the same decision would be adopted . To proceed on the basis of such considerations in this case, however, seems to me ill-advised . It must be borne in mind first of all that, if the directive were to be annulled on the grounds mentioned, a decision on this matter would then have to be taken involving two further Member States . Given that fact alone, it is not certain that a measure identical in substance to the annulled measure would actually be adopted ( even if, as may be seen from the Council' s minutes, Spain and Portugal decided to forgo consultation at the end of 1985 ). Another possibly important point which was made at the hearing is that disussions in GATT on the effects of the contested directive are apparently now taking place with the United States, which does not approve of the directive . This could likewise have an effect on the contents of a new directive .

14 . Consequently, the possibility of disregarding, on the ground of a lack of legitimate interest, the complaints relating to the infringement of procedural requirements should not be entertained ( always assuming that such a course could even be contemplated in actions brought by Member States - I refer to the observations made in relation to having an interest in bringing proceedings ).

2 . The merits of the application

15 . ( 1 ) As I have already mentioned, the main object of criticism was the fact that Directive 85/649 ( in the form proposed by the Commission ) was adopted solely on the basis of Article 43 of the EEC Treaty and not also on the basis of Article 100, which requires unanimity for measures relating to the approximation of legislation and stipulates that the Parliament and the Economic and Social Committee must be consulted .

16 . The applicant submits that recourse to Article 43 is insufficient because the contested directive pursues not only aims of agricultural policy but further aims, namely the approximation of legislation concerning the safeguarding of the interests and health of consumers . It further considers it impractical to distinguish between the primary purpose and the secondary purpose of such measures because in many cases this is extraordinarily difficult and that in the present case it is clear from the history of the directive that the predominant intention was to adopt measures of approximation in the field of health protection ( which, in its view, would suggest recourse to Article 100 of the EEC Treaty ). The applicant refers in particular to a previous extensive practice of the Council which, in its view, shows that, even where the predominant purpose was to pursue aims of agricultural policy, directives were based on both Article 43 and Article 100 and it takes exception to the fact that the contested directive contains no explanation for the departure from that practice .

17 . As support for the view that agricultural provisions were not a sufficient basis for the adoption of the directive, the Danish Government, which supports the applicant, also refers to Article 38 of the EEC Treaty, which provides that the rules laid down for the establishment of the common market are to apply to agricultural products . It argues that it follows from that article that trade in agricultural products is governed by the general rules of the Treaty relating to the common market . Therefore, when it is a question of ensuring the free movement of goods by the approximation of legislation, it is necessary to observe the general rules on approximation laid down in Article 100, one reason being that such action would deprive the Member States of their powers under Article 36 of the Treaty ( which include the power to adopt measures to protect human health ).

18 . ( a ) In putting forward that argument the intervener overlooks Article 38 ( 2 ), which states that, save as otherwise provided in Articles 39 to 46, the rules laid down for the establishment of the common market are to apply to agricultural products . This means that the aforementioned general provisions may possibly have to give way in so far as Articles 39 to 46 are to be seen as containing special provisions . As is stated in the judgment in Case 177/78, ( 12 ) Article 38 ( 2 ) necessitates "precedence ... for the specific provisions adopted in the context of the common agricultural policy over the general provisions of the Treaty relating to the establishment of the common market ".

19 . At the hearing the parties again went into the relationship between Article 100 and Article 43 in comparison with the relationship between Article 235 and Article 113 subsequent to the Court' s judgment of 26 March 1987 9 on generalized tariff preferences . On this question, the Court stated in that case that :

"It follows from the very wording of Article 235 that its use as the legal basis for a measure is justified only where no other provision of the Treaty gives the Community institutions the necessary power to adopt the measure in question ".

That means that the application of Article 235 cannot be considered if the Community has power to act under another provision . The applicant has rightly pointed out that in the present case such a limitation is not contained in the wording of Article 100 . The inapplicability of Article 100 in our case follows not from its wording but from the scheme of the Treaty, under which, as we have seen, the provisions of the chapter on agriculture take precedence over the general provisions of the Treaty . The applicant cannot therefore derive any support for its case from the wording of Article 100 .

20 . Among the special provisions in Title II, Agriculture, which appear to be significant here, Article 40 ( 2 ) should first be mentioned . It provides that in order to attain the objectives set out in Article 39 a common organization of agricultural markets is to be established . In referring to those objectives ( which I shall discuss in detail later ) it undoubtedly covers very wide ground and, as a very extensive and unchallenged practice shows, allows quite far-reaching regulation of the markets, including approximation measures ( as just one example I refer to the quality standards laid down in Regulation No 1035/72 ). Then there is Article 43, which concerns the establishment of a common agricultural policy in accordance with the objectives set out in Article 39 . That this includes extensive powers is to be deduced not only from the parts of Article 43 which deal with the instruments available to the Council, which provide for the replacement of the national market organizations ( when equivalent safeguards must be offered ) and which emphasize that conditions similar to those existing in a national market must be ensured . This has also been made clear in the relevant case-law, for example in the judgment in Case 138/78 ( 13 ) in which it was stressed that Article 43 was to be construed in the light of Articles 39 and 40 of the EEC Treaty, the judgment in Case 108/81 14 in which it was pointed out that, by virtue of Article 40 ( 3 ), a common market organization may include all measures required to attain the objectives set out in Article 39, and the judgment in Joined Cases 80 and 81/77 ( 14 ) in which it was emphasized that the Community institutions have been granted wide powers with regard to the common agricultural policy ( in the judgment in Case 138/78 it was accordingly stated that the Council had a discretionary power corresponding to the political responsibilities which Articles 40 and 43 imposed upon it ).

21 . Not least it must be remembered that Article 3 ( f ) ( institution of a system ensuring that competition in the common market is not distorted ) also applies to the agricultural sector . This is to be deduced not only from Article 42; reference may also be made to Article 40, according to which a common organization of agricultural markets may consist of common rules on competition ( which indeed means, as the Commission considers, rules extending beyond the provisions of Articles 92 to 95 of the Treaty ).

22 . It may therefore readily be assumed that, by the very nature of the matter, a common agricultural policy also encompasses far-reaching approximation measures and that therefore recourse to Article 100 is not necessary in this sphere .

23 . ( b ) As far as the view expressed by the United Kingdom Government is concerned, it may be readily acknowledged that the contested measure pursues a number of different concerns, namely to standardize conditions of production in one specific aspect ( in order to guarantee unimpeded trade without distortions of competition ) and to safeguard the health of consumers as well as simply to protect their interests . That is the impression to be gained from all the preparations and from the identifiable positions of all the parties; indeed, there was no dispute on this point in the proceedings .

24 . Nevertheless, to deal with the applicant' s point that it is extremely difficult to distinguish between the primary and secondary purposes of a measure, it does not seem necessary to try to identify an order of importance and to determine the relevant legal basis only according to the most important aim or aims, since, in view of the way in which the title on agriculture is structured and the relevant case-law, it is entirely possible to have the impression that all the concerns mentioned above may readily be considered as falling within the agricultural sector because they clearly relate to agricultural products within the meaning of Annex II to the Treaty .

25 . For support for that view reference may be made to some of the objectives laid down in Article 39, which, as I have shown, are of great importance for Article 43 . For example, it was correctly submitted with regard to Article 39 ( 1 ) ( a ) that increasing agricultural productivity is also to be understood in the sense of improving production and that when mention is also made of the rational development of agricultural production, that is to say the sensible utilization of the factors of production, this means appropriate production for marketing purposes, that is to say production which takes account of the interests of the consumer, which were mentioned in the preamble to Directive 81/602 and were made particularly clear in the aforementioned resolution of the European Parliament as well as in the Opinion of the Economic and Social Committee . ( The fact that, in the applicant' s view, such considerations did not clearly emerge in the consultation leading to the adoption of the contested directive can of course not be decisive for present purposes because the Court' s concern is to examine objectively the question of the legal basis for the contested directive .) It was also rightly pointed out with regard to Article 39 ( 1 ) ( c ) ( stabilization of markets ) that in a sector characterized by surplus production this objective certainly covers the orientation of production towards the discernible wishes of the consumer . And with regard to Article 39 ( 1 ) ( d ) ( ensuring supplies ) it was rightly stressed that this objective does not only entail ( as the representative of the Danish Government argued ) ensuring that cheap supplies are available in sufficient quantities but also ensuring quality ( which, incidentally - to reply to the point that the ban on the use of hormones does not make the products concerned any "healthier" - does not mean "free from health risks" but something more ).

26 . In addition, important conclusions on this matter may be drawn from the case-law of the Court . I would remind the Court of, for example, its judgment in Case 45/82, ( 15 ) which concerned the fixing of minimum requirements as to quality in the processing of skimmed milk into animal feed, a matter governed by Community regulations . As regards the concern to bring about unimpeded trade free from distortion of competition, I would also remind the Court of its judgment in Joined Cases 80 and 81/77 in which it was emphasized that common market organizations ensured conditions for trade within the Community similar to those existing in a national market and that since the end of the transitional period the extensive powers granted to the Community institutions in the conduct of agricultural policy must be exercised from the perspective of the unity of the market . ( 16 ) I would also refer to the judgments in Cases 83/78 ( 17 ) and 177/78 ( 18 ) in which it was held that the provisions of the Treaty on the abolition of barriers to intra-Community trade "are to be regarded as an integral part of the common organization of the market" and would recall that in the last-mentioned judgment it explained, in regard to the marketing system established by Regulation No 2759/75, that it was intended to ensure freedom of trade within the Community by the abolition both of barriers to trade and of all distortions in intra-Community trade .

27 . Consequently, in the case of a measure which uniformly regulates conditions of production for cattle ( i.e . an agricultural product ) in one specific respect, namely the use of hormones, it has to be recognized that it is a measure of economic policy in the agricultural sphere and that accordingly ( even if there is a certain connection with other spheres ( consumer protection ) of the kind considered immaterial in Case 45/86 ) it was not necessary to base the directive in question on Article 100 of the EEC Treaty as well . In contrast, I would add for the sake of completeness that in my estimation no decisive conclusions can be drawn from the judgment in Case 28/84 ( 19 ), which was also referred to in the proceedings . Although it was found in that judgment that animal-feed directives were based on Articles 43 and 100 of the EEC Treaty, and stated that they therefore came under both the common agricultural policy and the harmonization of legislation, which can directly affect the functioning of the common market, it must not be forgotten that only the non-observance of the directives by a Member State was involved in that case . In other words, the problem in point in this case, with all its aspects and attendant arguments, was not the subject of those proceedings and was therefore not considered by the Court .

28 . ( c ) In so far as the applicant has also referred in this connection to a previous extensive and different Council practice ( basing its directives on both Article 43 and Article 100 in similar cases ), it seems to me unnecessary to consider in detail the question whether comparable cases were reallyinvolved and whether there was in fact a consistent practice of that kind ( I would only mention that the Council still took pains to show that a number of comparable measures have similarly been adopted solely on the basis of Article 43 ).

29 . First, the explanation given with regard to that practice, namely that, in any event where there was a departure from the Commission' s proposals, political compromises were often involved, in other words, that the Treaty was not strictly applied, is a plausible one . ( It is worth noting in this regard that, as can be seen from a Council document of July 1986 appended to the rejoinder, representatives of the Member States who considered Article 43 a sufficient legal basis accepted the additional reference to Article 100 only in order to reach a quick solution and that the delegations of all the Member States reserved their positions as regards future cases ). Secondly, it is important to recognize that, for the purposes of the interpretation of the Treaty now required, a Council practice which is repeated on occasions cannot, of course, be decisive but only requirements arising objectively out of the Treaty . To that extent the situation in this case is quite similar to the situation in Case 230/81 in which it was emphasized that the Parliament' s practice of holding plenary sessions in Luxembourg had not created a custom which bound the Parliament in that regard .

30 . If that is the case, however, it also seems clear ( and this brings me straight to the applicant' s complaint of insufficient reasons ) that there was certainly no reason to explain in the contested directive why a previous practice was not continued . Reasons had to be given only for the measure adopted and since on that subject it is clear that concerns falling within the ambit of aims of agricultural policy are being furthered, the applicant' s charge that procedural requirements were infringed is surely not justified .

31 . ( 2 ) This brings me to a number of further charges grouped under the heading "procedural irregularities" which relate to the reasons given in the contested directive ( considered from a different aspect this time ), its adoption by qualified majority and by way of the written procedure and the failure to consult the Parliament and the Economic and Social Committee .

32 . ( a ) As far as the statement of reasons is concerned, the applicant also complains - and here it goes beyond the point which I have already dealt with - that the directive does not mention the true reasons for its adoption ( approximation of legislation enacted in the interests of consumers in order to safeguard their health ); that it also omits any reference to Directive 81/602 ( although it was adopted to supplement that directive and to fulfil the obligation laid down in Article 5 thereof ); that the relevant Commission proposal is not precisely identified; that there is no reference to the scientific report commissioned by the Commission ( which the Council had to take into account ) and that no reasons are given for disregarding the findings in that report .

33 . ( aa ) In reply to those points reference should at once be made to the relevant case-law of the Court according to which the statement of the reasons on which a measure is based must be adapted to its legal nature and it is not necessary to explain all the details of a measure but only the essential features of the objective pursued . ( 20 ) It must also be pointed out that the directive involved in this case is a directive addressed to the Member States and that representatives of all the Member States took part in its preparation, so that it may be assumed that the parties were very precisely informed of all the details at each stage of the decision-making process .

34 . ( bb ) It is not therefore quite clear from the outset how the applicant can allege that the true reasons for the adoption of the directive were suppressed . Nor can there be any question, upon an objective view, of aims being pursued different from those stated in the directive . It is plain to me that the Council' s main concern was to bring about equal conditions of production in livestock-fattening ( in so far as hormones play a part ) and to ensure unimpeded intra-Community trade free from distortions of competition ( which is stated clearly enough in the first two paragraphs of the statement of reasons ). If problems concerning the safeguarding of health also played some part, this was also made sufficiently clear in the first recital ( whichmentions the effects on human health ). In those circumstances, I see no deficiency of reasons of the kind perceived by the applicant .

35 . ( cc ) In so far as the applicant sees no reference to Directive 81/602 in the preamble to the contested directive, I would also consider this to be of no consequence in view of the aforementioned case-law : it was perfectly clear to the addressees of the contested directive that at least one of its purposes was to fill a gap in Directive 81/602 .

36 . Moreover, it must not be overlooked that in the text of the directive itself the fact that it is connected with Directive 81/62 and bracketed with it is repeatedly made clear ( in Articles 1 and 2, for example ). To require a like reference in the preamble as well would surely be taking the duty to state reasons too far .

37 . ( dd ) As regards the fact that the preamble to the directive makes only general mention of the "proposal from the Commission" without identifying it further, the explanation that the proposal was repeatedly amended may not seem entirely convincing ( because this obviously did not make identification impossible ). Nevertheless, it is quite possible to take the view that a precise identification of the kind expected by the applicant was rightly omitted in the preamble to an act addressed to the Member States each of which was fully aware of how it came to be adopted . In those circumstances, to speak of a failure to state reasons is just as inappropriate as it was in Case 22/70 Commission v Council ( 21 ), in which it was contended that the Commission' s participation in the work of the Council had afforded it all the legal safeguards which Article 190 was designed to ensure for third parties affected by the measures mentioned therein .

38 . ( ee ) Finally, as regards the scientific report mentioned by the applicant ( which obviously has in mind the report of the scientific group brought pursuant to Article 8 of Directive 81/602 ), it must be observed that, apart from the fact that the report gave an opinion only on one aspect of the problem, it was intended for the Commission which commissioned it and that consequently the Commission had to include it in the considerations to be taken into account in the drafting of a proposal for a directive . The Council, on the other hand, was certainly not required under Article 8 of Directive 81/602 to deal with the report . Moreover, it is clear from the arguments put forward in the proceedings that, in view of the reaction of the Economic and Social Committee and of the Parliament to the first Commission proposal of June 1984, the predominant concern of the Commission, and thereafter of the Council as well, was not so much the safeguarding of the health of consumers ( a problem which the scientific group considered above all ) but to take into account the interests of consumers in general ( since it could be seen that meat from animals treated with hormones is widely rejected ). That attitude is without question one of the matters falling under "experiences acquired" referred to in Article 8 of Directive 81/602 . Once the emphasis of the intended measure centred on that aspect, however, there was really no reason to examine the health problem in particular, which had evidently been the main focus of interest in the past, and so the fact that in the preamble to the contested directive the Council did not go into the partial findings of the scientific group, which the Commission did make available to the Council, certainly cannot be regarded as a failure to state reasons .

39 . ( b ) In the second ground of its application the applicant then refers to Article 5 of Directive 81/602 and Article 14 of Directive 85/358, which I mentioned at the beginning of my Opinion and which, as the Court will remember, provide that the Council, acting unanimously, is to take a decision on the administering to farm animals of five hormones for fattening purposes . The fact that the contested directive was not adopted unanimously ( the applicant voted against it ) is regarded by the applicant as constituting a breach of those provisions and the applicant also alleges a breach of the principle that the Council may not act contrary to the expectations which the Member States have acquired on the basis of previous acts .

40 . ( aa ) In reply to the first point raised in that submission, it was argued, correctly in my view, that the Council could not predetermine with binding force in previous directives how the problem in question was to be further dealt with . Only the relevant rules of the Treaty govern that matter and only the Court provides a binding interpretation of those rules . It cannot therefore be said that an infringement was committed merely because what the Council previously regarded as the correct path was departed from; such an infringement would exist only if a provision of the Treaty had been infringed; however, as I have shown, no infringement of a Treaty provision arose through the ignoring of Article 100 of the EEC Treaty .

41 . To refer in this connection to Case 81/72 ( 22 ) must be misconceived . In this case it was said, in connection with the adjustment of the remuneration of the staff of the European Communities, that the Council disregarded one of its own decisions which had been in force for three years . It should not be forgotten, however, that that decision was adopted in the form of a decision conferring a wide discretion, and that in the application of that provision a procedure for collective bargaining with staff organizations played a role and the Council bound itself to apply certain criteria . The facts of this case are certainly not comparable; consequently, the general rule that a legislative body can also change rules which it has adopted ( or the judgment in Case 230/81 which I mentioned earlier and according to which a long-standing parliamentary practice does not create any obligation to adhere to it ) comes more readily to mind .

42 . ( bb ) In so far as the applicant also argues that the divergence from the procedure referred to in the aforementioned provisions of directives disregarded the legitimate expectations of the Member States, it is important in the first place that as far as Community law and relations between the Council and the Member States are concerned there is no evidence supporting the existence of a rule like that of estoppel in English law ( which is probably what the applicant has in mind ), that is to say, the rule that where a person has caused another to believe in the existence of a particular state of affairs and to act on that belief, the former is not entitled to rely on the existence of a different state of affairs .

43 . Moreover such a rule is probably only applicable where the parties concerned have power over the matter with regard to which the principle of legitimate expectations is invoked . However, this is not the case with voting procedures in the Council as far as Council members are concerned . The voting rules are issued inter alia in the interests of the Community and are not at the disposal of its organs . The latter may only issue measures which are in conformity with the law of the Treaty and not measures which conflict therewith . The Member States and the Community organs may place their confidence in the Treaty but not in agreements which do not correspond to the Treaty, not even when, as in this case, the agreements were issued in the form of a legal act . A later Council is not bound by such decisions which are not consistent with the law of the Treaty .

44 . This does not prevent the applicant from having believed in good faith in the rule requiring unanimity . However, that subjective factor does not detract from the unrestricted application of the provisions of the Treaty . Moreover, the applicant knew that its view of the law was disputed; it therefore could and must have been prepared for its view not to prevail, which was in fact the case, since it implemented the directive .

45 . Neither can it be seen how the applicant could, in reliance on the implementation of Directive 81/602, have conducted negotiations ( as it mentioned ) with national institutions and associations which could not subsequently be deprived of their basis . In any event, all that was involved was hearings and the sounding of the position of interested parties and the way in which a measure is to be adopted at Community level can scarcely play a crucial role in that regard .

46 . Since, however, it thus becomes clear that the objection based on the aforesaid provisions of directives is misconceived ab initio, there is no further need to consider the question, on which argument has also been presented, namely whether the contested directive is in fact the measure referred to in Article 5 of Directive 81/602 or whether, as the Council and the Commission maintain, it is not that measure as the contested directive extends beyond the compass of Article 5 of Directive 81/602 ( since it does not only govern the use of hormones but also lays down a general prohibition on their use and, in addition, contains provisions relating to controls and imports ).

47 . ( c ) A further objection raised by the applicant which must be considered in this context is that the contested directive was adopted by the "written procedure" although the requirement laid down in Article 6 of the Council' s Rules of Procedure for the agreement of all Council members was not met ( the applicant and the Kingdom of Denmark were, as we know, against ) and, moreover, it was also not an urgent matter . It has been stressed in this connection that the said provision of the Council' s Rules of Procedure is of great importance for the protection of minorities and hence is to be applied strictly . It has also been stressed that if the Rules of Procedure had been complied with - and moreover no reasons have been adduced for non-compliance therewith - there would have been no reason to fear any damage to Community interests .

48 . If one considers the wording of Article 6 of the Council' s Rules of Procedure one might actually be inclined to regard the United Kingdom' s objection as well founded . In any event, it would scarcely seem possible to maintain - as has moreover been attempted - that the Rules of Procedure are more "of a directory nature" ( and therefore more or less non-binding ) on the basis of an unpublished declaration made when the Rules of Procedure were adopted ( to the effect that the rules laid down may be improved and amended by addenda ) or by arguing that the Rules of Procedure were adopted pursuant to Article 5 of the Merger Treaty by a simple majority only and that hence it is possible to deviate from them in exceptional cases on the basis of a qualified majority ( I do not intend to discuss these points in detail ).

49 . However, it was rightly pointed out that when dealing with disputed provisions of Community instruments it is not appropriate to cling too closely to the wording and that instead the question of the aim and purpose of the measure, the ratio legis, should be given precedence . It recently fell to me to deal in an Opinion on a staff case ( 23 ) with such a question of interpretation ( concerning an apparently clear provision in the Rules of Procedure of the Economic and Social Committee ). One might also mention in this connection the judgment in Case 9/70 ( 24 ) ( in which it was held that a literal interpretation would not correspond to the aim of the directives in question ), the judgment in another staff case, Case 7/77 ( 25 ) ( in which the Court approved a departure from the clear wording of Article 91 of the Staff Regulations ) or the judgment in Case 23/75 ( 26 ) ( where the Council had conferred extensive power on the Commission and the Court held that the limits of that power had to be judged with regard to the basic general objectives of the organization of the market and less in terms of the literal meaning of the enabling words ).

50 . If the same approach is adopted to the Council' s Rules of Procedure the obvious assumption is that Article 6 is intended to cover circumstances in which a matter is to be dealt with in writing only ( without its being discussed by the members of the Council ), which may occur from time to time in the case of less complex issues or after a matter has been thoroughly prepared in committees of experts . But it does not seem to be designed to cover cases which have been extensively discussed in Council meetings . In my view it has been cogently argued that when the Council is "in session" the general rules apply to its decision-taking ( that is to say, majority decisions ) ( 27 ) and there is therefore no scope for the requirement of unanimity referred to in Article 6 of the Rules of Procedure unless the subject-matter under discussion demands it .

51 . In the light of everything that the Court has been told, it must be considered in this case that the problem of the authorization or non-authorization of the use of hormones in the raising of farm animals has been discussed in various forums at least since the summer of 1984 . There was a new Commission proposal thereon in early November 1985 ( which, as we were told, was forwarded to the Member States straight away, so that, incidentally, the necessary internal clarifications could be effected ). That proposal was so thoroughly discussed on 18 November 1985 that in early December it could be assumed that nine delegations were in favour of the solution as it later emerged . On that basis the Commission submitted an ( in some respects ) amended proposal on 18 December, which, it is said, had already been discussed at meetings of a higher level . It was discussed for hours on end on 19 December ( the discussion covered in particular, as we have been told, the problem of the legal basis under consideration ) and thereafter the picture which had already emerged in early December crystallized . Consequently the impression must have arisen that the matter had not only been adequately prepared at national level but had also been discussed in the Council, and hence was ready to be voted on .

52 . Nor, in fact, have we heard what the actual points were on which the applicant ( and the Kingdom of Denmark ) wished to have further discussion with a view to amending the wording . Since a letter of 31 December 1985 from the United Kingdom Permanent Representative states that the United Kingdom voted against the proposal because it considered that Article 43 alone did not provide a sufficient legal basis and there was no scientific evidence justifying a ban on the use of hormones, it could be considered in any event that the points in question had either been sufficiently discussed or - as in the case of the second - were no longer relevant to the decision-making since the emphasis of the measure had been shifted .

53 . The only reason that the business failed to be concluded and the directive could not be formally adopted was that the text was not available in all the official languages in its final form, since in some cases it was available only in a provisional version . Had that not been so, recourse would obviously have been made in such circumstances to Article 2 ( 6 ) of the Council' s Rules of Procedure ( adoption of the relevant item under Part A of the agenda for the next Council meeting, entailing approval without a discussion ). In this case that was not feasible since the next meeting of the Council ( which was also the last meeting in 1985 ) was to take place on the next day and it was not possible to prepare the final translations in time .

54 . If in view of these circumstances there was a qualified majority - and there was such a majority for this text - in favour of formal adoption by the written procedure, this cannot properly be regarded as being a case for Article 6 of the Rules of Procedure . There is no reference to that provision either in the minutes of the Council meeting of 19 December 1985 or in the Secretary-General' s telex message of 23 December 1985 . The approval of the translations was not an "act of the Council on an urgent matter" ( 28 ) but the "written procedure concerning the adoption in the official languages of the Community of a Council directive ...". ( 29 ) Accordingly, what was involved was not the taking of the decision on the matter ( that is to say, on the Commission' s proposal ) but the approval of the language versions which the Translation Division of the General Secretariat had produced in the mean time . Basically, what was involved was a variant of the usual Part A procedure, which is also a procedure not involving a debate; the only difference was that the date referred to in the Council decision, namely 31 December 1985, took the place of the date of the next Council meeting .

55 . A simple majority of the members of the Council is sufficient for a procedural decision relating to such a matter . ( 30 )

56 . On this assessment the parties' dispute about whether Article 6 of the Rules of Procedure was infringed is devoid of substance . However, I would add the following remarks for the sake of completeness .

57 . Apparently the applicant did not raise objections with regard to the language versions; there was no longer any scope for complaints of the kind raised in the letter of 31 December 1985 from the United Kingdom Permanent Representative and hence the Secretary-General of the Council was entitled to publish the directive in the Official Journal of the European Communities pursuant to Article 13 of the Council' s Rules of Procedure .

58 . Moreover, on this assessment it is then also irrelevant whether in fact - which the applicant doubts - it is possible to consider that "an urgent matter" was involved .

59 . In the event that it should nevertheless be considered necessary to clarify that question it must first be observed that the Council has a broad discretion in interpreting this uncertain legal term . In order to justify its action the Council has referred to the Resolution of 10 May 1984, ( 31 ) in which the Council refers to the adoption of rules by 31 December 1985, and to the economic and political reasons which, in its view, necessitate the adoption of rules . It is not apparent that the Council thereby exceeded the limits of its discretion .

60 . Furthermore, it is also without significance ( precisely because in reality no infringement of the Council' s Rules of Procedure is involved ) that the directive' s statement of reasons does not mention a departure from the requirements of Article 6 of the Rules of Procedure .

61 . Lastly, it must also be said in this connection that it is not quite clear what the applicant hopes to achieve by its reference to the fact that the text of the contested directive published in the Official Journal differed somewhat in certain respects from the version provided to it . Under Article 191 of the EEC Treaty the authoritative version is of course the one which is notified, that is to say, provided to the addressee ( publication is not necessary; rather the Council is to decide, under Article 15 of the Rules of Procedure, whether publication should take place for information purposes ). If, however, it appears that the version notified still does not contain a completely error-free translation, it can certainly not be proved on the basis of such an occurrence - which may always arise from time to time - that the matter adopted was substantively not yet ready and hence was not suitable to be adopted by means of the written procedure .

62 . ( d ) Lastly as regards this particular aspect the applicant objects that the Parliament and the Economic and Social Committee were not consulted on the proposals which the Commission submitted to the Council in November and December 1985 . It considers that such consultation was necessary because the earlier consultation referred to a considerably different proposal ( the version of June 1984 ).

63 . ( aa ) It must be granted as far as regards the involvement of the Parliament, which is essential under Article 43 of the EEC Treaty, that the draft of June 1984 on which it was consulted differed considerably from the later drafts to which I have referred, in particular because it provided that the use of three hormones could be authorized . In that respect therefore, recourse cannot be had to the case-law according to which no harm is done by omitting to consult Parliament again if "considered as a whole the substance ... (( of the proposal )) on which the Parliament was consulted has not been altered" ( 32 ) or according to which further consultation is unnecessary if the amendment to the initial proposal constituted "a change of method rather than of substance ". ( 33 )

64 . However, one must agree with the Council' s view that on other grounds it is not possible to object that the Parliament was not consulted again in autumn 1985 . The Council rightly refers to the second paragraph of Article 149 of the EEC Treaty, which provides as follows : "As long as the Council has not acted, the Commission may alter its original proposal, in particular where the Assembly has been consulted on that proposal ." It is also relevant that the Parliament came out against the Commission' s draft of June 1984 . In a resolution of 11 October 1985 5 the Parliament stated, inter alia, that it did not approve the proposed authorization of the three natural hormones except for therapeutic purposes . It noted than the ban on artificial and natural hormones for fattening purposes would inevitably affect trade with third-country suppliers of meat products and called for immediate discussions to be held with the trading partners concerned with a view to securing a total ban on imports of meat which had been treated with those substances . It also rejected the authorization of artificial and natural hormones as growth promoters . Accordingly, one can only observe that in the case of the contested directive the Commission and the Council took the Parliament' s Opinion into account and hence, as in Case 1253/79, renewed consultation could be dispensed with since the amendments effected "correspond broadly to the wish expressed by the Parliament ". 34 In so far as other differences can be discerned in the various drafts ( they have been discussed at length in the pleadings ), it must be said that some of them concerned only procedural questions or points which have become devoid of substance as a result of the adoption of Directive 85/358 of 16 January 1985 on control measures . This certainly affords no basis for arguing that the Parliament' s rights have been infringed . It is also significant in that connection that the Parliament, which was kept informed by the Commission, has not insisted on delivering a further opinion and has not intervened in these proceedings .

65 . I am therefore unable to find that there has been a procedural error so far as the involvement of the Parliament is concerned and in that regard it is also indicative that the applicant did not go further into this point in the oral proceedings ( even though it did not expressly abandon it ).

66 . ( bb ) I can now deal very briefly with the question whether the Economic and Social Committee should have been consulted again .

67 . In that regard it is sufficient to state that Article 43 of the EEC Treaty, which, in my view, affords a sufficient legal basis for the contested directive, does not even provide for consultation of the Economic and Social Committee . In addition, as the Council has pointed out, the Economic and Social Committee, which in fact was consulted before the measure was adopted, reacted in the same way as the Parliament . Since the Commission took this into account, there was therefore certainly not the slightest reason - on political grounds for instance - to submit the last Commission draft back to the Economic and Social Committee .

68 . ( 3 ) I must now consider the criticism of the content of the contested measure, which, in the applicant' s view, cannot be justified on various grounds .

69 . It is argued in that connection that in so far as the directive is concerned with the protection of consumers' health it is proven that consumer' s health is not endangered by the utilization of hormones in the raising of farm animals . It is also remarked that in any event the grounds stated in the preamble to the directive ( distortion of the conditions of competition and barrier to intra-Community trade ) do not warrant a general prohibition on the use of hormones . Under Directive 81/602 ( according to Article 5 of which national regulations were to continue to apply to five hormones ) the duty to comply with the general provisions of the Treaty ( for instance, Articles 7 and 30 ) applied in that regard . It is argued that - despite the existence of differing legal situations in the Member States - this prevented serious barriers to trade from arising, one significant consideration being that, according to the findings of the aforementioned report of the scientific group ( which the Council has not gone into ), there is no danger to health ( and hence that reason could not be given to justify prohibitions of imports ). So far as the interests of the consumer are concerned, sufficient account could be taken of them by making it compulsory to put appropriate marking on meat treated with hormones .

70 . It is further argued in that connection that the prohibition embodied in the directive is not appropriate to achieve the desired objective ( and therefore pointless ) since it is completely impossible to distinguish between meat from beasts to which natural hormones have been administered and meat from untreated beasts .

71 . The applicant also regards the contested measure as constituting an infringement of the principle of Community preference . It considers that it will give rise to a deterioration in production conditions in the Community ( as a result of increased costs ), whilst, on the other hand, producers in non-member countries - although having to comply with the production conditions applying in the Community as far as exports to the Community are concerned - will be otherwise free and could use the resulting cost advantages to make their offers more attractive for purchasers in the Community .

In my opinion that argument calls for the following observations .

72 . ( a ) In so far as the applicant states that the health of the consumer is demonstrably not endangered by the use of hormones in the raising of farm animals, it must be said in reply that not only, as has already been mentioned, was that aspect not the prime consideration when the directive was issued but that it is also the case that the scientific report on which it is based deals with only three natural hormones and does not unequivocally support the applicant' s claim ( since its conclusions, on the one hand, refer to use "under the appropriate conditions" and, on the other, also stress the need for control programmes ).

73 . It is also indicative that the applicant only refers to serious barriers to trade not existing under the previous legal situation ( it did not observe, it states, any references to such serious trade barriers in the course of the preparation of the directive ). But this acknowledges that under the earlier legal situation, as it existed under Directive 81/602, some barriers were wholly conceivable and it matches the Commission' s statement to the effect that an opinion was addressed under Article 169 of the EEC Treaty to one Member State on account of failure to comply with the status quo and that proceedings were initiated under Article 169 against another Member State on account of import restrictions in regard to hormone treatment . However, that is sufficient ground for action on part of the Community to secure unrestricted trade and to alter the legal situation obtaining under the previous directive . This is because Article 30 of the EEC Treaty - as the constantly recurring formula in the case-law makes clear - requires trade to be entirely unimpeded and not even minor infringements can be left out of account .

74 . As the directive' s statement of reasons shows, it aims in addition to eliminate distortions of competition resulting from the fact that the substances covered by it are authorized in some Member States and not in others; in other words, the directive aims at the creation of uniform conditions of production in the Community . It certainly cannot be said, however, that that was the case under the legal situation obtaining under Directive 81/602 . It is moreover equally certain that in view of that important aim of the directive the scientific report mentioned by the applicant did not have to be considered in depth and there could also be no question that it would be sufficient in the interests of the consumer for imported products produced with the use of hormones to be appropriately marked .

75 . ( b ) As regards the view, also expressed by the applicant, that it is not possible, since natural hormones are present in quantity in meat anyway, to determine by inspection of the meat whether hormones have been added, it has been rightly objected that no evidence has been adduced in support of this view and hence for the ineffectiveness of the prohibition on the administration of hormones . This being so, the test laid down by the case-law in such circumstances, namely whether a measure is patently unsuited to the achievement of its objective ( see the judgment in Case 138/78 ) ( 34 ) can certainly not be answered in the affirmative . Furthermore, the contested directive also covers the periphery of the use of hormones in stock-raising ( see the provisions in Article 4 intended for manufacturers of hormones ) and, for the purposes of the overall assessment of the issues discussed by the applicant, Directive 85/358, with its control provisions ( inter alia governing the manufacture of substances ), and Directive 86/469 ( 35 ) "concerning the examination of animals and fresh meat for the presence of residues" are also relevant, both of those measures being designed to underpin the prohibition of the use of hormones .

76 . ( c ) Lastly, as regards the principle of Community preference, on the one hand reference should be made to Article 6 ( 7 ) of the contested directive, which provides for a control programme to be drawn up regarding imports from non-member countries in order to ensure that imports do not receive more favourable treatment than Community products . Secondly, as regards the assumption that producers in third countries might obtain cost advantages, in particular when they export to the Community, this raises the question, inter alia, whether this is really a genuine danger or just an unsubstantiated fear; in any event, the Commission correctly points out that it would undoubtedly be possible to counter it if necessary by an appropriate adaptation of the mechanisms of market organization, which also apply to imports from non-member countries . It was therefore scarcely possible to contemplate foregoing, for reasons to do with the observance of Community preference, an important measure for securing market uniformity which was urgently called for by consumer organizations in the Community .

C - Conclusion

In sum, I can therefore only propose that the action brought by the United Kingdom should be dismissed as unfounded . In view of this outcome, the applicant should be ordered to pay, not only its own costs, but also those of the defendant and of the Commission, which intervened in the defendant' s support . As far as the Kingdom of Denmark is concerned, which also intervened in the proceedings, I consider it appropriate that it should bear its own costs .

(*) Language of the Case : English .

( 1 )

Official Journal 1981, L 222, p . 32 .

( 2 )

Official Journal 1985, L 191, p . 46 .

( 3 )

Official Journal 1984, C 170, p . 4 .

( 4 )

Official Journal 1985, C 44, p . 14 .

( 5 )

Official Journal 1985, C 288, p . 158 .

( 6 )

Official Journal 1985, C 106, p . 7 .

( 7 )

Official Journal 1985, C 313, p . 4 .

( 8 )

Official Journal 1985, C 351 p . 1 .

( 9 )

See the judgment of 26 March 1987 in Case 45/86 Commission v Council (( 1987 )) ECR 1493 .

( 10 )

Judgment of 10 February 1983 in Case 230/81 Grand Duchy of Luxembourg v European Parliament (( 1983 )) ECR 255 .

( 11 )

Judgment of 20 May 1987 in Case 432/85 Souna v Commission (( 1987 )) ECR 2229 .

( 12 )

Judgment of 26 June 1979 in Case 177/78 Pigs and Bacon Commission v McCarren and Company Limited (( 1979 )) ECR 2161, paragraph 9, at p . 2186 .

( 13 )

Judgment of 21 February 1979 in Case 138/78 Hans-Markus Stoelting v HZA Hamburg-Jonas (( 1979 )) ECR 713, at p . 720 .

( 14 )

Judgment of 20 April 1978 in Joined Cases 80 and 81/77 Commissionnaires réunis Sàrl and Les fils de Henri Ramel Sàrl v Receveur des douanes (( 1978 )) ECR 927, at p . 947 .

( 15 )

Judgment of 15 March 1983 in Case 45/82 Kingdom of the Netherlands v Commission (( 1983 )) ECR 631 .

( 16 )

See the judgment in Joined Cases 80 and 81/77, cited above, (( 1978 )) ECR 927, paragraphs 27 to 33, at pp . 945 and 946 and paragraphs 35 and 36, at pp . 946 and 947 .

( 17 )

Judgment of 29 November 1978 in Case 83/78 Pigs Marketing Board v Raymond Redmond (( 1978 )) ECR 2347 .

( 18 )

(( 1979 )) ECR 2188, paragraph 14 .

( 19 )

Judgment of 3 October 1985 in Case 28/84 Commission v Federal Republic of Germany (( 1985 )) ECR 3097 .

( 20 )

See, for example, the judgment of 30 September 1982 in Case 110/81 Roquette frères SA v Council (( 1982 )) ECR 3159 .

( 21 )

Judgment of 31 March 1971 in Case 22/70 Commission v Council (( 1971 )) ECR 263, paragraphs 98 and 99, at p . 283 .

( 22 )

Case 81/72 Commission v Council (( 1973 )) ECR 575, paragraph 7, at p . 583 .

( 23 )

Opinion of 21 January 1987 in Case 307/85 Gavanas v Council and Economic and Social Committee (( 1987 )) ECR 2435 .

( 24 )

Judgment of 6 October 1970 in Case 9/70 Grad v Finanzamt Traunstein (( 1970 )) ECR 825, paragraph 14, at p . 875 .

( 25 )

Judgment of 6 March 1978 in Case 7/77 von Woellerstorff v Commission (( 1978 )) ECR 769, paragraphs 6 and 7, at p . 778 .

( 26 )

Judgment of 30 October 1975 in Case 23/75 Rey Soda v Cassa Conguaglio Zucchero (( 1975 )) ECR 1279 .

( 27 )

Article 148 ( 2 ) of the EEC Treaty .

( 28 )

Article 6 ( 1 ).

( 29 )

See telex message of 23 December 1985 from the Secretary-General of the Council under "Subject"; my emphasis .

( 30 )

Article 148 ( 1 ) of the EEC Treaty .

( 31 )

Official Journal 1984, C 134, p . 1 .

( 32 )

Judgment of 15 July 1970 in Case 41/69 ACF Chemiefarma v Commission (( 1970 )) ECR 661, paragraphs 178 and 179, at p . 702 .

( 33 )

Judgment of 4 February 1982 in Case 1253/79 Battaglia v Commission (( 1982 )) ECR 297, paragraph 24, at pp . 318 and 319 .

( 34 )

Judgment of 21 February 1979 in Case 138/78, cited above, (( 1979 )) ECR 713 .

( 35 )

Official Journal 1986, L 275, p . 36 .