Case C-393/01: Action brought on 8 October 2001 by the French Republic against the Commission of the European Communities
Date: 2001-12-08
Institutions: Court of Justice
Subjects: European Commission, France, action for annulment (EU), bovine spongiform encephalopathy, cattle, export

8.12.2001

EN

Official Journal of the European Communities

C 348/17

The applicant claims that the Court should:

— declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Council Directive 97/43/Euratom of 30 June 1997 on
health protection of individuals against the dangers of
ionising radiation in relation to medical exposure, and
repealing Directive 84/466/Euratom (1), the Portuguese
Republic has
its obligations under
Articles 14 of that Directive,

failed to fulfil

— in the alternative, declare that, by failing to inform
the Commission immediately of such measures,
the
Portuguese Republic failed to fulfil its obligations under
that Directive,

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those put
forward in Case C-389/01.

Council of 16 February 1998 concerning the placing of
biocidal products on the market (1) the Portuguese Repub-
lic has failed to fulfil its obligations under Articles 34(1)
of that Directive,

— in the alternative, declare that, by failing to inform
the Commission immediately of such measures,
the
Portuguese Republic failed to fulfil its obligations under
that Directive,

— order the Portuguese Republic to pay the costs.

Pleas in law and main arguments

The mandatory nature of the provisions of the third paragraph
of Article 249 and the first paragraph of Article 10 of the EC
Treaty requires Member States to adopt the measures necessary
to transpose directives addressed to them into their domestic
law before the expiry of the period prescribed for doing so.
That period expired on 14 May 2000 without the Portuguese
Republic having brought into force the necessary provisions
to transpose Directive 98/8/EC into its domestic law.

(1) OJ L 180, 9.7.1997, p. 22.

(1) OJ L 123, 24.4.1998, p. 1.

Action brought on 9 October 2001 by the Commission
of the European Communities against the Portuguese
Republic

(Case C-391/01)

(2001/C 348/31)

Action brought on 8 October 2001 by the French Repub-
lic against the Commission of the European Communities

(Case C-393/01)

(2001/C 348/32)

An action against
the Portuguese Republic was brought
before the Court of Justice of the European Communities
on 9 October 2001 by the Commission of the European
Communities, represented by Anto´ nio Caeiros, acting as
Agent, with an address for service in Luxembourg at the office
of Luis Escobar Guerrero, Wagner Centre.

The applicant claims that the Court should:

— declare that, by failing to adopt and bring into force
within the prescribed period the laws, regulations and
administrative provisions necessary to comply with
Directive 98/8/EC of the European Parliament and of the

An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 8 October 2001 by the French Republic,
represented by G. de Bergues and R. Loosli-Surrans, acting as
agents, with an address for service in Luxembourg.

The French Republic claims that the Court should:

— annul Commission Decision 2001/577/EC of 25 July
2001 setting the date on which dispatch from Portugal
of bovine products under the date-based export scheme
may commence by virtue of Article 22(2) of Decision
2001/376/EC (1),

— order the Commission to pay the costs.

C 348/18

EN

Official Journal of the European Communities

8.12.2001

Pleas in law and main arguments

Action brought on 15 October 2001 by the Federal
Republic of Germany against the European Parliament
and the Council of the European Union

— Infringement of the conditions laid down by Decision
2001/376/EC (2),
the Commission adopted Decision
2001/577/EC without having carried out all the inspec-
tions prescribed by Article 21 of Decision 2001/376/EC.
The last inspection report of the Food and Veterinary
Office communicated to the French Republic before the
decision of 25 July 2001 was the report of 25 to 27 June
2001 in its final version DG(SANCO)3345/2001, which
does not examine the development of the incidence of
the disease and the effective enforcement of the relevant
national measures and does not contain a risk assessment
demonstrating whether appropriate measures to manage
from the
any risk have been taken.
conclusions of that report that, at the time when the
inspection report was submitted, the desired legislation
was not yet in force and certain Food and Veterinary
Office inspections were still awaited in order to avoid the
risk of ‘cross-contamination’ which have been revealed in
other countries. The Portuguese decree-law which sets
out the DBES was not approved until 12 July 2001, that
is to say two weeks before the lifting of the ban fixed for
1 August 2001, and the DBES application manual was to
be submitted to the Minister for Agriculture on 14 July.
The French Government therefore considers that ‘effective
enforcement of the relevant national measures’, within
the meaning of Article 21(2) was not ensured at the time
when the decision setting the date for the lifting of the
ban was adopted.

is apparent

It

Nor could the operational effectiveness of the procedures
set up be checked, either in terms of traceability of bovine
products or in terms of tests on cattle, on the date on
which the contested decision was adopted any more than
it could on the date set for the partial lifting of the ban.
Accordingly, the Commission infringed Article 22 of
Decision 2001/376/EC.

— Infringement of

the precautionary principle: while
Article 174 EC falls within the framework of Community
environmental policy, Community case-law does not
confine the precautionary principle to that field alone
and extends it to public health objectives. The nature and
seriousness of the risks relating to BSE warrant full
compliance with the precautionary principle.

(1) OJ L 203, 28.7.2001, p. 27.
(2) Commission Decision 2001/376/EC concerning measures made
necessary by the occurrence of bovine spongiform encephalopa-
thy in Portugal and implementing a date-based export scheme (OJ
L 132, 15.5.2001, p. 17).

(Case C-406/01)

(2001/C 348/33)

An action against the European Parliament and the Council of
the European Union was brought before the Court of Justice
of the European Communities on 15 October 2001 by the
Federal Republic of Germany, represented by Wolf-Dieter
Plessing, Ministerialrat, Moritz Lumma, Oberregierungsrat,
both of the Federal Ministry of Finance, 108 Graurheindorfer
Straße, D-53117 Bonn, and Jochim Sedemund, Rechtsanwalt,
of Freshfields Bruckhaus Deringer, 1 Potsdamer Platz,
D-10785 Berlin.

The applicant claims that the Court should:

1. Annul Article 3(1) in conjunction with Article 3(2) of
Directive 2001/37/EC of the European Parliament and of
the Council of 5 June 2001 on the approximation of the
laws, regulations and administrative provisions of the
Member States concerning the manufacture, presentation
and sale of tobacco products (1),
in so far as those
provisions prohibit the manufacture of cigarettes for
export from the European Community to non-member
countries;

2. Order the defendants to pay the costs.

Pleas in law and main arguments

prohibition

— Article 95 EC is not an adequate legal basis for the
contested
export. Approximation
of
measures under Article 95 EC must have as their subject
the elimination of differences between the legal systems
of
the Member States with the aim of eliminating
distortions of competition in relations between the
Member States or preventing them from occurring.
to non-member
Measures which concern exports
countries are not covered by Article 95 EC. The internal
market aim of removing barriers to trade which result
from differing national rules is achieved already by
the prohibition of marketing. That a prohibition of
manufacture is not necessary for that purpose is shown
by the fact that all comparable harmonisation directives
(for example,
in the field of regulating additives to
foodstuffs) confine themselves to prohibitions of market-
ing and do not lay down prohibition of manufacture. The
prohibition of manufacture in the contested Directive
thus in fact pursues exclusively the aim of the protection