Case T‑333/10

Animal Trading Company (ATC) BV and Others

v

European Commission

‛Non-contractual liability — Animal health — Protective measures in situations of crisis — Protection measures in relation to highly pathogenic avian influenza in certain third countries — Ban on imports of birds caught in the wild — Sufficiently serious breach of rules of law conferring rights on individuals — Manifest and serious disregard of the limits on discretion — Directives 91/496/EC and 92/65/EC — Precautionary principle — Duty of diligence — Proportionality’

Summary — Judgment of the General Court (First Chamber), 16 September 2013

Agriculture — Approximation of laws in health policy matters — Veterinary checks in intra-community trade in live animals and products of animal origin — Regulation No 318/2007 imposing a ban on importation of wild birds captured in their natural environment — Right to property and to carry out an economic activity — Restrictions justified in the public interest

Agriculture — Approximation of laws in health policy matters — Veterinary checks in intra-community trade in live animals and products of animal origin — Commission adopting regulatory provisions with the effect of prohibiting the importation of wild birds captured in their natural environment — No breach of the principle of equal treatment

Agriculture — Approximation of laws in health policy matters — Veterinary checks in intra-community trade in live animals and products of animal origin — Commission adopting regulatory provisions with the effect of prohibiting the importation of wild birds captured in their natural environment — Articles 17 and 18 of Directive 92/65 — Appropriate legal basis

Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of EU law — Veterinary checks in intra-community trade in live animals and products of animal origin — Ban on importing captured wild birds by reason of serious danger to animal or human health — Infringement of the duty of diligence and the duty to state reasons

See the text of the decision. (see para. 61)

Concerning non-contractual liability of the Union, where the institution concerned has only a considerably reduced, or even no, discretion, the mere infringement of EU law may be sufficient to establish the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals. However, there is no automatic link between, on the one hand, the absence of discretion on the part of the institution concerned and, on the other, the classification of the infringement as a sufficiently serious breach of EU law. The extent of the discretion enjoyed by the institution concerned, although determinative, is not the only yardstick. Only the finding that an irregularity would not have been committed in similar circumstances by an administrative authority exercising ordinary care and diligence enables the liability of the European Union to be established. It is therefore for the European Union judicature, after determining, first of all, whether the institution concerned had a margin of discretion, to then take account of the complexity of the situation to be regulated, the difficulties in the application or interpretation of the legislation, the clarity and precision of the rule infringed, and whether the error made was intentional or inexcusable. (see paras 62, 63)

As regards the engagement of non-contractual liability of the Union by reason of the adoption of Decision 2005/760, concerning certain protection measures in relation to highly pathogenic avian influenza in certain third countries for the import of captive birds, 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 broad discretion enjoyed by the EU legislature when exercising its powers on the common agricultural policy under Article 37 EC. 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. In that regard, by adopting Decision 2005/760, in the exercise of the discretion which it had under Article (1) of Directive 91/496, laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries, the Commission has, in the absence of a statement of reasons and of concrete and sufficiently scientifically-supported evidence capable of justifying the overall approach in that decision, in particular a scientific assessment of the risks that was as thorough as possible, failed to comply with its duty of diligence and, therefore, infringed a rule of law conferring rights on individuals, by engaging in conduct that a diligent institution placed in identical circumstances would not have engaged in. That infringement of the principle of diligence is sufficiently serious to engage the non-contractual liability of the European Union as regards the unlawful adoption of Decision 2005/760. (see paras 64, 84, 91, 93)

The precautionary principle constitutes a general principle of EU law, 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, without having to wait until the reality and the seriousness of those risks become fully apparent. 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 and objective measures. When the Commission plans to adopt a protective measure on the basis of the first ground under Article 18(1) of Directive 91/496, namely the occurrence or spread of a zoonosis or other disease or phenomenon liable to present a serious threat to animal or human health, it enjoys a broad discretion under the precautionary principle. Thus, in accordance with that principle, the Commission can take protective measures to halt the potential spread of such diseases, when justified by serious animal health reasons. In addition, the institutions of the European Union also enjoy a broad discretion when determining the level of risk deemed unacceptable for society for the purpose of applying the precautionary principle and, in particular, adopting protective measures. (see paras 79-82)

As regards judicial review of compliance with the principle of proportionality, it follows from that broad discretion that the legality of a measure adopted in the sphere of the Common Agricultural Policy can be affected only if the measure is manifestly inappropriate having regard to 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. As regards a protective measure adopted by the Commission by virtue of its discretion under Article 18(1) of Directive 91/496, laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries, a temporary suspension of wild bird imports of general application, that measure being taken with the aim of protecting human and animal health, is manifestly disproportionate, at the very least from a geographic standpoint, where there is a lack of scientific evidence capable of justifying it. In those circumstances, it is not established that there were no less restrictive measures available, namely an import suspension covering a narrower geographical area and that, therefore, the measure was necessary and appropriate to the aims pursued. (see paras 99, 102, 103)

In so far as it establishes a total and indiscriminate ban on the importation of wild birds captured in their natural environment, Regulation No 318/2007, laying down animal health conditions for imports of certain birds into the Community and the quarantine conditions thereof, is based on a sufficient legal basis, namely Article 17(2)(b) and (3), and the first and fourth indents of Article 18(1) of Directive 92/65, 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. In the first place, the system governing trade in animals and their importation into the EU, as established, in particular by Directive 92/65, is based on the principle that, 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. Secondly, it follows from the principle of prior authorisation that imports into the European Union can take place only if the requirements referred to in Directive 92/65, including the requirement in Article 17(2) thereof, are complied with. On the basis of that provision, the Commission is entitled to exclude or remove certain third countries from that list, with the result that all imports of animals from those countries is automatically prohibited. Thirdly, it is apparent from Article 17(3)(c), the first indent of Article 17(4)(a), and the first and fourth indents of Article 18(1) of Directive 92/65 that the Commission has a wide discretion in determining the rules of health policy governing the placing of animals on the market, within the meaning of the fifth recital of that directive. Fourthly, even though the sole basis for Directive 92/65 is Article 37 EC on the common agricultural policy, it also dovetails with the implementation of the European Union’s policies on the protection of health and the environment under Articles 152 and 174 EC and, therefore, must also be interpreted in the light of the precautionary principle in the implementation of which the Commission has a broad discretion, having regard, in particular, to the provisions of Article 17(3)(c) of Directive 92/65. (see paras 139-144, 146, 147)

Concerning the prohibition on importing wild birds captured in their natural environment adopted by Regulation No 318/2007 laying down animal health conditions for imports of certain birds into the Community and the quarantine conditions thereof, the mere fact that a risk of a level equivalent to that posed by wild birds could, in some circumstances, warrant the exclusion of other classes of birds from the scope of the same regulation is not, in itself, capable of forming the basis of an act of unequal treatment to the detriment of wild birds, since, under the principle of equal treatment, which must be reconciled with the principle of legality, a person may not rely, to his advantage, on an unlawful act committed in favour of a third party. Similarly, unequal treatment between wild birds and pet birds, which is solely attributable to the specific rules applying to pet birds as referred to in the third indent of Article 1 of Directive 92/65, likewise cannot affect the lawfulness of Regulation No 318/2007 in so far as the latter does not permit imports of wild birds. (see paras 172, 181)

As regards measures prohibiting the importation of wild birds captured in their natural environment adopted under Regulation No 318/2007, those measures pursue a legitimate aim of general interest, namely to protect human and animal health against the risk of the avian influenza virus spreading, and are not manifestly disproportionate for that purpose. Therefore, they cannot be regarded as a disproportionate and intolerable interference which infringes upon the very substance of the rights to property and to carry out an economic activity. In so far as that regulation continues to permit imports of captive bred birds, the economic activity of importing such birds remains possible. (see para. 190)