CELEX: C2000/335/45
Language: en
Date: 2000-11-25 00:00:00
Title: Case C-293/00: Action brought on 31 July 2000 by the Kingdom of the Netherlands against the Commission of the European Communities

C 335/24                EN                      Official Journal of the European Communities                                   25.11.2000
      ORDER OF THE PRESIDENT OF THE COURT                                  The applicant claims that the Court should:
                           of 25 July 2000                                 1.    Annul Commission Decision 2000/362/EC (1) of 25 May
                                                                                 2000 on the total amount of Community aid for the
in Case C-377/98 R: Kingdom of the Netherlands v                                 eradication of classical swine fever in the Netherlands in
European Parliament and Council of the European                                  1997, in so far as the Community financial contribution
                               Union (1)                                         fixed for the eradication of classical swine fever in the
                                                                                 Netherlands in 1997 represents a reduction of 25 % in
                                                                                 the compensation paid to livestock farmers.
(Application for interim measures — Suspension of oper-
ation of a measure — Urgency — Directive 98/44/EC —
        Legal protection of biotechnological inventions)                   2.    Order the Commission to pay the costs.
                          (2000/C 335/44)
                                                                           Pleas in law and main arguments
                    (Language of the case: Dutch)                          —     Incorrect factual basis:
(Provisional translation: the definitive translation will be published           The absence of an approved contingency plan for classical
                   in the European Court Reports)                                swine fever is primarily a formal omission. There are no
                                                                                 relevant differences between the ‘Swine Fever Scenario’
                                                                                 applicable at the time of the swine fever crisis and the
In Case C-377/98 R: Kingdom of the Netherlands (Agent:
                                                                                 contingency plan subsequently approved by Commission
M.A. Fierstra), supported by Italian Republic (Agent: U. Leanza,
                                                                                 Decision 1999/246/EC of 30 March 1999.
assisted by D. Del Gaizo) v European Parliament (Agents:
J. Schoo and E. Vandenbosch) and Council of the European
Union (Agents: R. Gosalbo Bono, G. Houttuin and A. Lo Mona-                      The Netherlands Government is of the opinion that
co), supported by Commission of the European Communities                         the Commission’s view that classical swine fever was
(Agents: T. van Rijn and K. Banks) — application for suspen-                     discovered too late in the Netherlands is factually incor-
sion of operation of Directive 98/44/EC of the European                          rect.
Parliament and of the Council of 6 July 1998 on the legal
protection of biotechnological inventions (OJ 1998 L 213,                        The Commission fails to make clear what it understands
p. 13) — the President of the Court has made an order on                         by ‘too many’ animal movements with insufficient
25 July 2000, the operative part of which is as follows:                         guarantee of hygiene in context of the buying-up of pigs
                                                                                 and how it comes to that conclusion. The application of
1.    The application for interim measures is dismissed.                         the buying-up rules in Article 1 of Regulation
                                                                                 No 413/97/EC inevitably resulted in transport move-
2.    The costs are reserved.                                                    ments within the isolated zone. Yet those movements
                                                                                 arose directly from compliance with Regulation 413/97.
(1) OJ C 378 of 5.12.1998.
                                                                                 Even the transport movements resulting from the buying-
                                                                                 up arrangement which, apart from Regulation
                                                                                 No 413/97/EC, was also provided for by the Netherlands
                                                                                 authorities, were necessary and not ‘too many’ in number.
                                                                                 The Commission is right when it claims that the areas
                                                                                 delimited and preventively evacuated around each source
                                                                                 of infection were not uniform in size. The conclusion
Action brought on 31 July 2000 by the Kingdom of the                             which it draws from that fact, namely, that it was the
Netherlands against the Commission of the European                               result of inconsistent management, is not correct. The
                            Communities                                          radius of the sanitary slaughter zone was determined on
                                                                                 the basis of the specific circumstances of each case. It is
                          (Case C-293/00)                                        not laid down in any Community directive that a radius
                                                                                 of 1 000 metres should be applied in the event of
                                                                                 preventive sanitary slaughter, and at the time of the
                          (2000/C 335/45)                                        sanitary slaughter operations there was no reason to
                                                                                 regard a radius of 500 metres as insufficient. Likewise,
An action against the Commission of the European Communi-                        the Commission’s claim that the authorities waited too
ties was brought before the Court of Justice of the European                     long before carrying out preventive sanitary slaughter is
Communities on 31 July 2000 by the Kingdom of the                                incorrect. In so far as they may have waited longer than
Netherlands, represented by Marc Fierstra, Head of the Euro-                     was desirable, that was directly connected with the
pean Law Department, and Jantine van Bakel, of the European                      destruction capacity. In any event, from June 1997
Law Department, of the Ministry of Foreign Affairs, The Hague,                   onwards, sanitary slaughter always took place in or
acting as Agents.                                                                within seven days.
 ---pagebreak--- 25.11.2000            EN                   Official Journal of the European Communities                                       C 335/25
    The Netherlands Government disputes the validity of the           —     Breach of principle of legal certainty
    objections of a financial and administrative nature raised
    by the Commission and points out that the Commission                    In the absence of a relevant Community definition, the
    bases its arguments on out-of-date (and superseded)                     meaning of the term ‘adequate compensation’ as referred
    reporting and data.                                                     to in the seventh indent of Article 3(2) of Decision
                                                                            90/424/EEC is left to the discretion of the Member
                                                                            States. They must determine, in the light of the relevant
—   Misapplication of the law:                                              legislation (in this case Directive 80/217/EEC and
                                                                            Decision 90/424/EEC), what is adequate compensation.
                                                                            The Commission now assigns a meaning all of its own to
    Council Decision 90/424/EEC on expenditure in the
                                                                            the term ‘adequate compensation’, which cannot be
    veterinary field (2) makes no provision for the application
                                                                            inferred from existing Community legislation. The Com-
    of a general reduction. When classic swine fever occurs
                                                                            mission has thus acted in breach of the principle of legal
    in a Member State, that Member State is eligible under
                                                                            certainty which requires that legal rules be clear and their
    Article 3(2) of Decision 90/424 for a financial contri-
                                                                            application foreseeable for those affected by them.
    bution from the Community for the eradication of the
    disease. The right to a contribution of 50 % arises in
    respect of measures referred to in Article 3(5) of Decision       —     Breach of the requirement to state reasons.
    90/424/EEC. The conditions referred to in Article 3(2) of
    Decision 90/424/EEC were complied with in controlling
    the swine fever epidemic. In so far as the Commission             (1) OJ 2000 L 129, p. 33.
    is of the opinion that technical and administrative               (2) OJ 1990 L 224, p. 19.
    shortcomings were discovered subsequently in the
    Netherlands, the Netherlands takes the view that, since
    they were inevitable, such shortcomings should not lead
    to a reduction. Perhaps the reduction was intended to
    have a remedial effect and was used by the Commission
    as an instrument for putting the level of compensation
    paid in the Netherlands on a par with that paid in other
    countries. If that is the case, the Commission has failed to
    take account of the need to recognize the specific
                                                                      Reference for a preliminary ruling by the Nederlandse
    circumstances in each Member State, such as the structure
                                                                      Raad van State by order of 8 August 2000 in the case of
    of pig farming, the density of the pig population in the
                                                                      Oliehandel Koeweit B.V. and Minister van Volkshuisvest-
    affected area, as well as of economic and cyclical vari-
                                                                               ing, Ruimtelijke Ordening en Milieubeheer
    ations in price levels between and with respect to other
    EU Member States during previous outbreaks of classical
    swine fever, and has overlooked the fact that the situation                                (Case C-307/00)
    in the other Member States was completely different from
    that in the Netherlands as regards the extent and duration
    of the crisis.                                                                             (2000/C 335/46)
                                                                      Reference has been made to the Court of Justice of the
    In so far as the Commission intended to impose a penalty
                                                                      European Communities by order of 8 August 2000 by the
    on the Netherlands, that is wrong because there is in any
                                                                      Nederlandse Raad van State (Council of State), Netherlands,
    case no legal basis for it.
                                                                      which was received at the Court Registry on 16 August 2000,
                                                                      for a preliminary ruling in the case of Oliehandel Koeweit B.V.
—   Breach of the principle of proportionality                        and Minister van Volkshuisvesting, Ruimtelijke Ordening en
                                                                      Milieubeheer on the following questions:
    The Netherlands Government is of the opinion that there           1.    Do Directive 96/59/EC (1) of 16 September 1996 on the
    is a major imbalance between, on the one hand, the                      disposal of polychlorinated biphenyls and polychlorinat-
    deficiencies found (or described as such) by the Com-                   ed terphenyls (PCB/PCT) and Directive 87/101/EEC (2) of
    mission in the implementation of the measures taken to                  22 December 1986 amending Directive 75/439/EEC on
    control classical swine fever and, on the other hand, the               the disposal of waste oils mean that Regulation (EEC)
    financial correction applied by the Commission. The                     No 259/93 (3) of 1 February 1993 on the supervision and
    Commission wrongly uses the data collected by it on the                 control of shipments of waste within, into and out of the
    basis of a small and, in the opinion of the Netherlands                 European       Community       (hereinafter:    ‘Regulation
    Government, unrepresentative spot check as the basis for                No 259/93’) must be interpreted as meaning that the
    conclusions about the handling of the whole operation                   shipment of waste oil with a PCB content of over 50 ppm
    to control classical swine fever in 1997. The Netherlands               must always be regarded as a shipment of waste for
    Government is further of the opinion that comparison                    disposal within the meaning of Title II, Chapter A, of
    with the guidelines operated for the imposition of                      Regulation No 259/93, read in conjunction with Art-
    reductions in the EAGGF context supports the view of the                icle 1(e) of Directive 75/442/EEC (4) of 15 July 1975 on
    Netherlands that the 25 % reduction is disproportionate.                waste (hereinafter: ‘the Framework Directive’)?