CELEX: 62003CC0511
Language: en
Date: 2005-02-17 00:00:00
Title: Opinion of Advocate General Stix-Hackl delivered on 17 February 2005. # Staat der Nederlanden (Ministerie van Landbouw, Natuurbeheer en Visserij) v Ten Kate Holding Musselkanaal BV and Others. # Reference for a preliminary ruling: Hoge Raad der Nederlanden - Netherlands. # Human and animal health - Protection against bovine spongiform encephalopathy (mad cow disease) - Feeding of ruminants with proteins derived from species other than ruminants - Liability of a Member State for damage caused to individuals by breaches of Community law for which it may be held responsible - Applicable law - Obligation to bring an action against the Commission for failure to act. # Case C-511/03.

OPINION OF ADVOCATE GENERAL
      STIX-HACKL
      delivered on 17 February 2005 (1)
      
      Case C-511/03
      Staat der Nederlanden 
      v
      (1) Ten Kate Holding Musselkanaal BV
      (2) Ten Kate Europrodukten BV
      (3) Ten Kate Produktie Maatschappij BV
      (Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands))
      (Agriculture – Health – Protection from bovine spongiform encephalopathy (BSE) – Feeding of animal feed derived from mammals – Decision 94/381/EC – State liability – Obligation of a Member State to bring an action in respect of a failure to act)I –  Introductory remarks
      1.     The present reference for a preliminary ruling, which concerns the BSE problem, essentially revolves around the question whether
         a Member State must bring proceedings against the Commission where the latter has failed to grant an authorisation requested
         by that Member State. 
      
      II –  Legal framework
      A –    Community law
      2.     As a measure in the fight against BSE the Commission adopted Decision 94/381/EC of 27 June 1994 – which is no longer in force
         – concerning certain protection measures with regard to bovine spongiform encephalopathy and the feeding of mammalian derived
         protein. (2) The version of Article 1 thereof applicable to the present case provided as follows:
      
      ‘1.      Within 30 days of notification of the present Decision, Member States shall prohibit the feeding of protein derived from mammalian
         tissues to ruminant species.
      
      2.      However, Member States which enforce a system that makes it possible to distinguish between animal protein from ruminant and
         non-ruminant species shall be authorised by the Commission, under the procedure provided for by Article 17 of Directive 90/425/EEC,
         to permit the feeding of protein from species other than ruminants to ruminants.’ 
      
      3.     Article 17 of Directive 90/425/EEC (3) reads:
      
      ‘Where reference is made to the procedure provided for in this Article, the Standing Veterinary Committee set up by Decision
         68/361/EEC shall take decisions in accordance with the rules established in Article 17 of Directive 89/662/EEC.’ 
      
      4.     The version of Article 17 of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community
         trade with a view to the completion of the internal market (4) amended by a corrigendum published in the Official Journal of the European Communities of 15 June 1990 reads: (5)
      
      ‘1.      Where the procedure laid down in this Article is to be used, matters shall without delay be referred by the Chairman, either
         on his own initiative or at the request of a Member State, to the Standing Veterinary Committee (hereinafter called the ‘Committee’)
         set up by Decision 68/361/EEC. 
      
      2.      The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall
         deliver its opinion on the draft within two days. (6) The opinion shall be delivered by the majority laid down in Article 148(2) of the Treaty in the case of decisions which the
         Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within
         the Committee shall be weighted in the manner set out in that Article. The Chairman shall not vote. 
      
      3.      The Commission shall adopt the measures envisaged if they are in accordance with the opinion of the Committee. 
      4.      If the measures envisaged are not in accordance with the opinion of the Committee, or if no opinion is delivered, the Commission
         shall, without delay, submit to the Council a proposal relating to the measures to be taken. 
      
      The Council shall act by a qualified majority. 
      If, on the expiry of a period of 15 days from the date of referral to the Council, the Council has not acted, the Commission
         shall adopt the proposed measures, save where the Council has decided against the said measures by a simple majority.’ 
      
      5.     Commission Decision 96/449/EC of 18 July 1996 on the approval of alternative heat treatment systems for processing animal
         waste with a view to the inactivation of spongiform encephalopathy agents (7) essentially prohibited the processing of mammalian animal waste and authorised only certain procedures. In order to enable
         the affected businesses to adapt or replace their installations, it was provided that Decision 96/449 would come into force
         on 1 April 1997.
      
      B –    National law
      6.     The Productschap voor veevoeder (the public‑law Product Board for Livestock Feed) (hereinafter ‘the Productschap’) set out
         in a draft protocol (hereinafter ‘the protocol’) a production and control system under which protein from ruminants could
         be distinguished from protein derived from non-ruminant species, such as pigs.
      
      7.     The protocol was included as Annex I to the Verordening Vvr regeling verwerking dierlijke produkten in diervoeders (Order
         regulating the incorporation of animal products into animal feeds) of 9 November 1994 (hereinafter ‘the 1994 Order’). According
         to the Order, animal feed producers are prohibited from incorporating animal products in feeds for ruminants. This prohibition
         does not apply to animal products derived exclusively from non-ruminant species if the producer thereof has been approved
         by the Productschap pursuant to the Order and the batch concerned has been endorsed with a designation. A producer of animal
         products is to be approved by the Productschap if he works in accordance with the protocol contained in Annex I. 
      
      8.     The protocol, however, never entered into force because it was not approved by the Minister responsible.
      9.     By letter of 29 November 1994, the Netherlands State requested the Commission to authorise it, in accordance with Decision
         94/381, to apply the protein separation protocol. The 1994 Order was not approved. 
      
      10.   In December 1995, the Netherlands State urged the Commission to start the authorisation procedure. In June 1997, it urgently
         requested the Commission to respond to its request, so as to enable the Netherlands to provide the industry with clarity on
         the matter. 
      
      11.   The Staatssecretaris van Volksgezondheid, Welzijn en Sport (State Secretary for Health, Welfare and Sport) implemented Decision 96/449
         by way of the ‘Regeling warmtebehandelingssystemen en eindproducten’ (Regulation on heat treatment systems and end products)
         of 25 March 1997, (8) which was amended by regulation of 23 July 1997 (9) and came into force on 30 July 1997. After the latter date, protein derived from mammalian tissue was allowed to be sold
         for use in animal feed for ruminants only if heating had taken place. 
      
      12.   This measure (the heating obligation) was also applicable to the production process used by Ten Kate, which was required to
         apply the prescribed heating process from 30 July 1997. However, since that process would have involved considerable investment
         by Ten Kate and there was still no prospect of the authorisation to be granted by the Commission under Decision 94/381, Ten
         Kate discontinued the production of protein derived from pig fat. 
      
      13.   By letter of 9 March 1998, the Minister called on the Productschap to bring the 1994 Order and the Chairman’s decision of
         8 August 1994 into line with Decision 94/381, since a decision at European level on the protocol would not be taken in the
         short term.
      
      14.   On 30 June 1998, the Chairman of the Productschap adopted Besluit PDV regeling verwerking dierlijke producten in diervoeders
         1998 (Decree of the public‑law Product Board for Livestock Feed (‘Productschap Diervoeder’) regulating the incorporation of
         animal products in animal feeds). (10) Article 2 of that decree provides that animal feed producers are prohibited from incorporating animal products in feeds for
         ruminants, but that (inter alia) animal products derived exclusively from non-ruminant species, which have been prepared in
         the Netherlands in accordance with the protein separation protocol included as Annex I by producers approved by the Productschap
         in accordance with that decree and which are endorsed with a designation as specified in Article 8, are exempted from that
         prohibition. Under Article 3, an approval pursuant to the decree could be granted only after the protein separation protocol
         had been approved by the Commission. 
      
      15.   On 22 February 1999, the Staatssecretaris van Landbouw, Natuurbeheer en Visserij (the State Secretary for Agriculture, Nature
         Management and Fisheries) issued the Regeling verbod diermelen in diervoeders (Regulation on the prohibition of meat-and-bone
         meal in animal feedstuff), (11) which came into force on 1 March 1999. That regulation prohibited outright the use of animal proteins in animal feeds intended
         for feeding to ruminants (subject to a few exceptions which are not relevant here).
      
      III –  Facts and proceedings before the national court
      16.   Ten Kate Musselkanaal BV is the parent company of Ten Kate Europrodukten BV and Ten Kate Produktie Maatschappij BV (hereinafter
         ‘Ten Kate’), which, inter alia, produce and sell protein intended for incorporation in milk feed for calves. This protein
         is obtained as an end product in the processing of slaughterhouse fat derived from pigs. 
      
      17.   Ten Kate modified its production process to comply with the protein separation protocol. The Rijksdienst voor de keuring van
         Vee en Vlees (the National Meat and Livestock Inspectorate) (hereinafter ‘the RVV’) gave Ten Kate permission to work in that
         way. Ten Kate was the only fat rendering plant in the Netherlands which worked in accordance with the system established in
         the protein separation protocol. 
      
      18.   By writ of 24 February 1998, Ten Kate brought a claim against the Netherlands State before the Rechtbank te ’s-Gravenhage
         (District Court, The Hague) in which it sought, first, a declaration that the State was liable for the loss sustained as a
         result of the prohibition since 30 July 1997 on the production and sale of protein for incorporation in milk feed for calves
         and, second, payment of compensation.
      
      19.   The damage had, it was alleged, occurred as a result of the measures adopted by the Netherlands State on the basis of Decisions 94/381
         and 96/449. The Netherlands State had delayed in taking steps designed to ensure that the Commission would grant the requested
         authorisation. 
      
      20.   More specifically, Ten Kate stated, the State had in November 1994 requested the Commission to authorise, in accordance with
         Decision 94/381, the use of a production and control system for protein separation developed by the authorities in the Netherlands.
      
      21.   The Rechtbank te ’s-Gravenhage dismissed the claim.  Ten Kate’s appeal was allowed by the Gerechtshof te ’s-Gravenhage (Regional
         Court of Appeal, The Hague).
      
      22.   The parties to the national proceedings do not dispute that an action for failure to act brought by Ten Kate itself would
         not have been admissible. An action for damages under Article 288 EC could not have produced the result that Ten Kate would
         have been able to continue with its activities. 
      
      23.   The Hoge Raad der Nederlanden (the Netherlands Supreme Court) considers that there are questions concerning the State’s discretion
         to bring an action for failure to act. The Hoge Raad also seeks clarification as to whether the Commission had the exclusive
         right to initiate the making of proposals to the Committee. 
      
      IV –  The questions referred
      24.   The Hoge Raad has requested that the Court of Justice of the European Communities deliver a preliminary ruling on the following
         questions: 
      
      ‘(1)      Must the question whether, in a case such as this, the State has an obligation towards a citizen who has an interest in it,
         such as Ten Kate, to make use of the legal remedies available to it under Article 175 of the EC Treaty (now Article 232 EC)
         or Article 173 of the EC Treaty (now Article 230 EC) and, in the event of failure to comply with such an obligation, to pay
         compensation for the damage sustained as a consequence by the citizen concerned, be answered by reference to rules of Netherlands
         national law or by reference to rules of Community law?
      
      (2)      If Question 1 must be answered wholly or partly by reference to rules of Community law:
      (a)      Are there circumstances in which Community law can entail an obligation and liability as referred to in that question? 
      (b)      If the answer to Question 2(a) is in the affirmative, which rules of Community law must be used as the criterion when answering
         Question 1 in a specific case such as this?
      
      (3)      Must Article 1(2) of Decision 94/381/EC, read as far as necessary in conjunction with the provisions of Article 17 of Directive 90/425/EEC
         and Article 17 of Directive 89/662/EEC, be interpreted as giving rise to an obligation for the Commission or the Council to
         grant an authorisation as referred to therein if the system which the requesting Member State applies or intends to apply
         is in fact suitable for distinguishing between protein from ruminant and non-ruminant species?
      
      (4)      To what extent does the answer to Question 3 entail a restriction of the State’s right, or of its obligation referred to in
         Question 1, to challenge a failure to grant an authorisation such as that at issue in this case under Article 175 of the EC
         Treaty (now Article 232 EC), or to challenge a refusal to grant such an authorisation under Article 173 of the EC Treaty (now
         Article 230 EC)?’
      
      25.   Question 3 is relevant not only if Question 1 is to be answered according to Netherlands national law but also if it is to
         be answered according to Community law, unless the answer to Question 2(a) is in the negative. Question 4 is relevant only
         in connection with Question 2(b).
      
      V –  The admissibility of the questions referred 
      26.   The first question referred is aimed at ascertaining the legal basis of any obligation on the part of Member States to bring
         an action for annulment or for failure to act and, in the event that such an action is not brought, of a Member State’s liability.
      
      27.   The Hoge Raad also cites the law of the Netherlands as a possible legal basis. Consequently, the first question referred in
         any event also seeks the interpretation of national law.
      
      28.   The jurisdiction of the Court of Justice in references for preliminary rulings under Article 234 EC does not, however, include
         within the Court’s remit the interpretation of national law. The first question referred is for that reason inadmissible to
         that extent. 
      
      VI –  The first and second questions referred 
      29.   By the first two questions referred, as construed restrictively in the light of the Court of Justice’s jurisdiction, the Hoge
         Raad seeks in essence to ascertain whether Community law obliges Member States to bring an action for annulment or for failure
         to act and whether, in the event of failure to comply with such an obligation, the Member States must pay compensation in
         respect of the damage sustained as a consequence by the citizen concerned. 
      
      30.   Since the breach of a Community-law obligation is a precondition of any obligation to pay compensation under Community law,
         the first issue to examine is whether Community law establishes any such obligation. 
      
      31.   A simple analysis of the wording of Article 230 EC and Article 232 EC, which in this respect is clear in all language versions,
         shows unambiguously that those provisions do grant the Member States the right to bring such actions. 
      
      32.   It is not possible to infer any obligation to do so either from the wording of those two provisions or from the system of
         Community legal protection. No obligation to bring an action can be derived from the applicable provisions of primary law.
         Nor do the objectives of the legal protection of the Member States advocate an obligation to bring an action for annulment
         or for failure to act. On the contrary, the Member States, which are also the High Contracting Parties, that is to say, those
         establishing the rules of primary law, intended to leave the decision as to whether or not to exercise their locus standi to the Member States with a right of action available to them as the appropriate party. The Member States were therefore
         supposed to decide freely on this matter.
      
      33.   As a result, there is a lack of a corresponding intention on the part of those laying down the rules.
      34.   An obligation to bring an action will always constitute an extensive restriction of the powers of a party to which a right
         of action as the appropriate party has been granted. Such a fundamental restriction of freedom of action would have required
         a correspondingly clear provision.
      
      35.   Furthermore, the comparison with Treaty-infringement proceedings under Article 226 EC, cited by the French Government, militates
         against an obligation to bring an action for annulment or an action for failure to act. In relation to this, the Court has
         held in an unbroken line of case-law that the Commission is not obliged to initiate proceedings. If the Commission, as the
         guardian of the Treaties, is itself not obliged to initiate proceedings under Article 226 EC, the Member States are even less
         obliged to exercise the powers granted to them to monitor compliance with Community law. 
      
      36.   Nor can any obligation to initiate proceedings be inferred from the duty of sincere cooperation laid down in Article 10 EC.
         It is true that this provision of primary law envisages obligations to act on the part of the Member States, but this relates
         to ‘measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting
         from action taken by the institutions of the Community’. This means that Article 10 EC is connected with the existence of
         an obligation under Community law: it therefore presupposes the existence of such an obligation. However, in the present proceedings,
         the existence of such an obligation has first to be clarified.
      
      37.   An obligation to bring an action for annulment or for failure to act may possibly arise from the applicable national law.
      38.   Accordingly, the answer to Question 2(a) in the reference is that Community law does not oblige the Member States to exercise
         their power to initiate proceedings on the basis of Article 230 EC and/or Article 232 EC in a case such as the present. 
      
      39.   Since the answer to Question 2(a) is negative, it is unnecessary to answer Question 2(b). 
      40.   The answer to Question 1 is that the question as to whether, in a case such as the present, a State has an obligation, towards
         an affected citizen, to make use of the legal remedies available to it under Article 232 EC or Article 230 EC and, in the
         event of failure to comply with such an obligation, to pay compensation for the damage sustained as a consequence by the citizen
         concerned, cannot be answered on the basis of the provisions of Community law. 
      
      VII –  The third question referred
      41.   The Hoge Raad essentially seeks to know, by means of the third question referred, whether the applicable provisions of secondary
         legislation oblige the Community to grant an authorisation. 
      
      42.   At least at first sight, the text of Article 1(2) of Decision 94/381 in all language versions applicable at the time it was
         adopted suggests that the Commission is under an obligation to grant such authorisation.
      
      43.   Thus, the various language versions essentially use formulations such as ‘the Member States are authorised’ (12) or ‘the Member States shall be authorised’. (13)
      
      44.   However, this initial conclusion on interpretation must be reviewed in the light of the reference in Article 1(2) to Article 17
         of Directive 90/425, which in turn refers to the procedure under Article 17 of Directive 89/662.
      
      45.   These cross-references were intended to ensure that the Commission would adopt any decision by observing a specific comitology
         procedure. 
      
      46.   The cross-referenced provision, that is, Article 17 of Directive 89/662, provides for a particular procedure, which stipulates
         the involvement of a committee, namely the Standing Veterinary Committee. 
      
      47.   Article 17 of Directive 89/662 distinguishes in this regard between two scenarios, according to whether the measures envisaged
         by the Commission are in accordance with the opinion of the Committee or not (or where the Committee does not deliver an opinion).
      
      48.   These methods of proceeding laid down in Article 17(3) and (4) of Directive 89/662 also have a common feature: above all,
         the Commission only makes a decision as to measures envisaged. It is this decision alone that the Commission may make independently
         of other institutions. However, this decision is to be equated with a proposal and may not be confused with the granting of
         the authorisation.
      
      49.   The decision with regard to authorisation is made only once the first decision has been adopted and the matter has been referred
         to the Committee. The decision is adopted by the Commission or the Council, depending on the particular circumstances.
      
      50.   For technical procedural reasons, the Commission’s obligation may only relate to acts which the Commission can undertake alone.
         Acts which fall within the competence of the Council or the Standing Veterinary Committee is not included. The question of
         whether the Council or the Committee is obliged on its part to undertake certain acts must be distinguished from the legal
         problem which is the procedural subject-matter of this reference for a preliminary ruling. 
      
      51.   Provided a certain precondition is met, namely when the envisaged measures are in accordance with the opinion of the Committee,
         the Commission even has an express obligation under Article 17(3) of Directive 89/662 to submit a proposal (and not just the
         relevant Member State’s application!) to the Committee and to adopt the measures envisaged. 
      
      52.   In addition, an obligation on the part of the Commission arises from subparagraph 1 of Article 17(4) of Directive 89/662,
         namely, to submit to the Council, without delay, a proposal relating to the measures to be taken. This applies in the event
         that the measures envisaged are not in accordance with the opinion of the Committee, or if no opinion is available. 
      
      53.   Lastly, the Commission has a specific obligation under subparagraph 3 of Article 17(4) of Directive 89/662 in the event that
         the Council has not acted. In that case the Commission must adopt the proposed measures, save where the Council has decided
         against the said measures by a simple majority.
      
      54.   A comparison with other provisions of the directive concerned also points in favour of interpreting Article 2(1) of Decision 94/381,
         in conjunction with Article 17 of Directive 90/425 and Article 17 of Directive 89/662, as laying down obligations for the
         Commission, albeit only under certain conditions. 
      
      55.   Thus, in addition to the provisions mentioned, Directive 89/662 includes instances of express discretionary provisions in
         relation to the Commission, such as Article 7(1)(a), Article 8(1) and Article 9(3).
      
      56.   With regard to Directive 90/425, Article 9(1) can in turn be cited as evidence for the fact that this directive, and also
         other legal instruments of secondary Community law, differentiates between ‘may’ and ‘must’.
      
      57.   The penultimate recital in the preamble to Directive 90/425 also does not change anything in the system laid down in Article 1(2)
         in conjunction with Article 17 of Directive 90/425: even this recital refers to Article 17 of Directive 89/662 and in this
         way ‘imports’ the Committee proceedings regulated therein.
      
      58.   It is in this connection now necessary to consider whether Article 17(2) of Directive 89/662 envisages a period within which
         the Committee must deliver its opinion. 
      
      59.   This legal question raises a difficulty only in that there are two versions of the crucial passage, namely the second sentence
         of Article 17(2). In the first version, published after the adoption of the directive, there was no express period. However,
         this version was corrected later, even if only on publication in June 1990. Only this latter version, that is the second,
         corrected version, provides for a period of two days for the Committee to deliver its opinion. It is notable in this regard
         that, in contrast to typical correction cases, the original version included the same provision in all language versions which
         were applicable at the time and did not provide for any period measured in terms of days. Therefore all language versions
         were also corrected. 
      
      60.   Since the interpretation of the second sentence of Article 17(2) of Directive 89/662 must be guided by the corrected version,
         the conclusion is clear: the Committee must take its decision within a period of two days. 
      
      61.   The fact that the period refers to the Committee taking action and that Article 17 does not lay down any corresponding period
         for the Commission does not in any way alter the Commission’s obligations arising from Article 17. 
      
      62.   The interim conclusion to be drawn, therefore, is that the Commission has a duty to act. However, this is to be distinguished
         from the question of whether the Commission is obliged to propose measures with a particular content to the Standing Veterinary
         Committee or to the Council. The present case is concerned with the granting of a specific authorisation, in particular with
         the requirements for the granting of such an authorisation. 
      
      63.   At this point it should be remembered that the Commission may not grant an authorisation by acting alone. Associated with
         this is the question of which of the institutions involved in the proceedings has which obligation. 
      
      64.   However, in these proceedings for a preliminary ruling, the material requirements under which an obligation to grant an authorisation
         exists are primarily under consideration. 
      
      65.   The answer to this legal question is provided by Article 1(2) of Decision 94/381 itself, the text of which is clear in this
         respect. Authorisation is to be granted only to those Member States ‘which enforce a system that makes it possible to distinguish
         between animal protein from ruminant and non-ruminant species’. 
      
      66.   Article 1(2) of Decision 94/381 is therefore concerned with the existence of an objective requirement and not with the Commission’s
         view, which would be characterised by subjective evaluations. However, since this provision does not provide for the Member
         State concerned to be authorised as a matter of law in the event that the requirement is fulfilled, but instead expressly
         provides for the granting of an authorisation, it can be inferred that the existence of the requirements must be checked by
         the bodies involved in the proceedings in accordance with Article 17 of Directive 89/662, including the Standing Veterinary
         Committee, the Commission and the Council.
      
      67.   Article 1(2) of Decision 94/381 must also be interpreted as providing that activities of undertakings are still unlawful,
         despite corresponding with an objectively appropriate national system, where this system has not yet been granted authorisation
         under Community law. A permit which has been granted only by an authority in the Member State in question cannot replace authorisation
         by the Community and consequently is insufficient as a basis for an activity to be carried out in conformity with Community
         law. 
      
      68.   Article 1(2) of Decision 94/381 should therefore be understood as meaning that the institutions involved in the proceedings
         under Article 17 of Directive 89/662 are not simply permitted to gain a picture of the functioning of the system which forms the subject-matter of the application of the Member State
         concerned, but are in fact obliged to examine the specific situation. 
      
      69.   The Commission is therefore required to satisfy itself as to the suitability of the system. The Commission has a number of
         methods at its disposal for this purpose, such as carrying out inspections or requesting information. In doing so the Commission
         must be allowed sufficient time. This also corresponds with the system under Decision 94/381, which does not impose any time-limit
         on the Commission. 
      
      70.   In this regard, the system resulting from the rules set out in Decision 94/381, Directive 90/425 and Directive 89/662 can
         be distinguished from that underlying the Monsanto case in relation to which the Court decided that the Commission was not bound to follow the opinion of the Committee. (14) Irrespective of the fact that the provisions to be interpreted in the latter proceedings were based on a completely different
         relationship between the Commission and the Committee, in accordance with the provision applicable in that case, the Commission
         was required to adopt measures ‘having regard’ to the opinion of the Committee.  (15)
      
      71.   As to the question whether the Commission or another institution was obliged in the present case to grant the authorisation
         applied for by the Netherlands, it should first be pointed out that the competent Community institutions were not satisfied
         that the Member State in question enforced a system under which it was possible to distinguish between animal protein from
         ruminant and non-ruminant species.
      
      72.   The question of whether the Commission has actually breached its obligation could at all events have been the subject‑matter
         of an action for failure to act under Article 232 EC. However, whether such an action would have been successful would not
         be an admissible subject for preliminary‑ruling proceedings such as the present. 
      
      73.   That said, it is necessary to examine whether the investigation into whether the system applied for by the Netherlands would
         have corresponded to Community‑law standards is included in the subject‑matter of the present proceedings. 
      
      74.   The subject‑matter of proceedings for a preliminary ruling is determined by the questions referred, in conjunction with the
         other parts of the order for reference. Of course, this merely forms the maximum extent of the proceedings. Any questions
         referred which are wholly or partially inadmissible cannot form the subject‑matter of proceedings. However, as is apparent
         here from the questions referred and the order for reference, the question as to the suitability of the system applied for
         is not one of the questions posed by the referring court. An extension of the subject‑matter of the proceedings is also impossible.
      
      75.   Further, the suitability of the system applied for could also not be examined because it is concerned with examining whether
         a national measure is in conformity with Community law, which cannot be the subject‑matter of a request for a preliminary
         ruling under Article 234 EC.
      
      76.   Finally, the assessment of the actions of the institutions actually involved or to be involved in the present proceedings
         would concern the examination of the circumstances of an individual case. This also goes beyond what may be the subject‑matter
         of proceedings for a preliminary ruling under Article 234 EC. 
      
      77.   The answer to the third question referred must therefore be that Article 1(2) of Decision 94/381, in conjunction with Article
         17 of Directive 90/425 and Article 17 of Directive 89/662, is to be interpreted as giving rise to an obligation on the part
         of the Commission to propose to the Standing Veterinary Committee and/or the Council that a Member State be granted an authorisation
         and/or to grant the authorisation if that is in accordance with the opinion of the Committee and/or in the event that the
         Council has not acted within 15 days of the case being referred to it, save where the Council has decided against those measures
         by a simple majority. The Standing Veterinary Committee and the Council therefore also have an obligation to act. A prerequisite
         to the obligation to grant an authorisation is that the Member State enforces a system which makes it possible to distinguish
         between animal feed derived from ruminant species and that derived from non-ruminant species. 
      
      VIII –  The fourth question referred
      78.   Since, according to the referring court’s statement, the fourth question referred is relevant only in conjunction with Question 2(b),
         and this in turn is relevant only where Question 2(a) is answered in the affirmative, namely if in certain circumstances Community
         law can entail an obligation and a liability, in the light of the answer proposed here to the first and second questions,
         no answer to the fourth question is necessary. 
      
      IX –  Conclusion
      79.   In the light of the foregoing, it is proposed that the Court should answer the questions referred as follows:
      (1)      The question whether, in a case such as the present, a Member State has an obligation towards an affected citizen to make
         use of the legal remedies available to it under Article 232 EC or Article 230 EC and, in the event of failure to comply with
         such an obligation, to pay compensation for the damage sustained as a consequence by the citizen concerned, may not be answered
         by reference to the provisions of Community law.
      
      (2)      Article 1(2) of Commission Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to bovine
         spongiform encephalopathy and the feeding of mammalian derived protein, in conjunction with Article 17 of Council Directive 90/425/EEC
         of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals
         and products with a view to the completion of the internal market and Article 17 of Council Directive 89/662/EEC of 11 December
         1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market, is to be
         interpreted as giving rise to an obligation on the part of the Commission of the European Communities:
      
      –      to check that the precondition laid down in Article 1(2) of Decision 94/381 has been satisfied;
      –      to propose to the Standing Veterinary Committee and/or the Council of the European Union that a corresponding authorisation
         should be granted to a Member State; 
      
      –      to grant the authorisation if this in accordance with the opinion of the Committee and/or in the event that the Council has
         not made a decision within 15 days of the case being referred to it, save where the Council has decided against that measure
         by a simple majority.
      
               The Standing Veterinary Committee and the Council also have obligations to act.
      (3)      A prerequisite to the obligation to grant an authorisation is that the Member State enforces a system which makes it possible
         to distinguish between animal feed derived from ruminant species and that derived from non-ruminant species. 
      
      1 –	Original language: German.
      
      2  –	OJ 1994 L 172, p. 23.
      
      3  –	Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community
         trade in certain live animals and products with a view to the completion of the internal market (OJ 1990 L 224, p. 29).
      
      4  –	OJ 1989 L 395, p. 13.
      
      5  –	OJ 1990 L 151, p. 40.
      
      6  –      In the uncorrected version the second sentence of Article 17(2) read: 
      
      	‘The Committee shall deliver its opinion on the draft within a time‑limit which the Chairman may lay down according to the
         urgency of the matter.’
      
      7  –	OJ 1996 L 184, p. 43.
      
      8  –	Staatscourant, p. 61.
      
      9  –	Staatscourant, p. 141.
      
      10  –	Verordeningenblad Bedrijfs-organisatie 1998, No 44.
      
      11  –	Staatscourant 1999, No 37.
      
      12  –	As in the Romance language versions and in the German and the Dutch versions.
      
      13 –	Thus, the English language version uses ‘shall’.
      
      14  –	Case C‑248/99 P France v Monsanto and Commission [2002] ECR I‑1, at paragraphs 71 and 86 et seq.
      
      15  –	Article 6(3) of Council Regulation (EEC) No 2377/90 of 26 June 1990 laying down a Community procedure for the establishment
         of maximum residue limits of veterinary medicinal products in foodstuffs of animal origin (OJ 1990 L 224, p. 1), amended several
         times.