CELEX: 62002TJ0177
Language: en
Date: 2004-03-10 00:00:00
Title: Judgment of the Court of First Instance (Second Chamber) of 10 March 2004.#Malagutti-Vezinhet SA v Commission of the European Communities.#General safety of goods - Community rapid alert system for food and feed - Claim for compensation.#Case T-177/02.

Case T-177/02
      Malagutti-Vezinhet SA
      v
      Commission of the European Communities
      (General safety of goods – Community rapid alert system for food and feed – Claim for compensation)
      Judgment of the Court of First Instance (Second Chamber), 10 March 2004 
      Summary of the Judgment
      1.     Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link – Where one of the conditions is not satisfied
            – Action for damages must be dismissed
      (Art. 288, second para., EC)
      2.     Approximation of laws – General safety of goods – Directive 92/59 – Community rapid alert system for food and feed – Respective
            powers of the national authorities and of the Commission
      (Council Directive 92/59)
      3.     Approximation of laws – General safety of goods – Directive 92/59 – Community rapid alert system for food and feed – Precautionary
            principle
      (Council Directive 92/59)
      1.     Non-contractual liability on the part of the Community is subject to a number of conditions: unlawfulness of the conduct alleged
         against the Community institutions, actual damage and the existence of a causal link between the conduct of the institution
         and the damage complained of. If one of those conditions is not satisfied, the entire action must be dismissed and it is not
         necessary to consider the other conditions.
      
      (see para. 32)
      2.     The Community rapid alert system for food and feed introduced by Directive 92/59 on general product safety confers on the
         national authorities only, and not on the Commission, responsibility for establishing whether there is a serious and immediate
         risk to the health and safety of consumers. It is thus incumbent upon the national authorities, once they have detected a
         serious and immediate risk the effects of which extend or could extend beyond their territory, immediately to inform the Commission
         and provide it with information to identify the product and the supply chain. The Commission, for its own part, confines itself
         to checking whether the information falls, as such, within the scope of the directive, and the accuracy of the findings and
         analyses that led the national authorities to send that information does not have to be checked.
      
      (see paras 51-52)
      3.     As regards the prevention of risks to the health of consumers, and if any doubt remains, under the precautionary principle
         prevailing in the matter of the protection of public health the competent authority may be obliged to take appropriate measures
         to prevent certain potential risks for public health without having to wait until the existence and seriousness of those risks
         has been fully demonstrated. If it was necessary to wait until all the research was completed before adopting such measures
         the precautionary principle would be rendered devoid of purpose. That reasoning also applies in the case of a rapid information
         procedure such as the one introduced by Directive 92/59 on general product safety, and, consequently, an undertaking which
         is a victim of that alert system introduced in order to protect human health must accept its adverse economic consequences,
         since the protection of public health must take precedence over economic considerations.
      
      (see para. 54)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)10 March 2004(1)
         
         
               (General safety of goods  –  Community rapid alert system for food and feed  –  Claim for compensation)
               
             In Case T-177/02,
            
            
            Malagutti-Vezinhet SA, in judicial liquidation, established in Cavaillon (France), represented by B. Favarel Veidig and N. Boron, lawyers, with
            an address for service in Luxembourg,
            
            
            applicant,
            
            v
            Commission of the European Communities, represented by M.-J. Jonczy and M. França, acting as Agents, with an address for service in Luxembourg,
            
            defendant,
            
             APPLICATION for compensation for the damage allegedly suffered by the applicant after the Commission issued a rapid alert
            message notifying the presence of pesticide residues in apples from France and giving the applicant's name as the exporter
            of the goods in question,
            
            
            THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES (Second Chamber),
            
            
             composed of: N.J. Forwood, President, J. Pirrung and A.W.H. Meij, Judges,
            
             Registrar: B. Pastor, Deputy Registrar,
            
            
            
         gives the following
         
         
         Judgment
            
               Relevant provisions and facts
            Community rapid alert system
         
         1
            
          Council Directive 92/59/EEC of 29 June 1992 on general product safety (OJ 1992 L 228, p. 24, ‘the directive’) established
         on a Community level a general safety requirement for any product placed on the market that is intended for consumers or likely
         to be used by consumers. To that end the directive set up a system of rapid exchange of information in emergencies involving
         product safety. This is the ‘Community rapid alert system for food and feed’ (‘RASFF’), in which the States signatories to
         the Agreement on the European Economic Area (EEA), including the Republic of Iceland, also take part.
         
         
         
         2
            
          Article 2(b) of the directive defines as a ‘safe product’ ‘any product which, under normal or reasonably foreseeable conditions
         of use, including duration, does not present any risk or only the minimum risks compatible with the product’s use, considered
         as acceptable and consistent with a high level of protection for the safety and health of persons’.
         
         
         
         3
            
          Articles 5 and 6 of the directive lay down the obligations and powers of the Member States with regard to monitoring product
         safety.
         
         
         
         4
            
          Article 7 of the directive provides:
         ‘1.     Where a Member State takes measures which restrict the placing of a product or a product batch on the market or require its
         withdrawal from the market, the Member State shall … inform the Commission of the said measures, specifying its reasons for
         adopting them. This obligation shall not apply where the measures relate to an event which is local in effect and in any case
         limited to the territory of the Member State concerned. 
          2.       The Commission shall enter into consultations with the parties concerned as quickly as possible. Where the Commission concludes,
         after such consultations, that the measure is justified, it shall immediately inform the Member State which initiated the
         action and the other Member States. Where the Commission concludes, after such consultations, that the measure is not justified,
         it shall immediately inform the Member State which initiated the action.’
         
         
         
         5
            
          Article 8 of the directive provides in respect of the RASFF:
         ‘1.     Where a Member State adopts or decides to adopt emergency measures to prevent, restrict or impose specific conditions on the
         possible marketing or use, within its own territory, of a product or product batch by reason of a serious and immediate risk
         presented by the said product or product batch to the health and safety of consumers, it shall forthwith inform the Commission
         thereof …
          2.       On receiving this information, the Commission shall check to see whether it complies with the provisions of this directive
         and shall forward it to the other Member States, which, in turn, shall immediately inform the Commission of any measures adopted.’
         
         
         
         6
            
          Annex I to the directive lays down the detailed procedures for applying the RASFF.
         
         Background to the case
         
         7
            
          The applicant exports fruit and vegetables from France, in particular to the Netherlands and the United Kingdom.
         
         
         
         8
            
          It is apparent from several invoices dated August 2001 that it sold to the Netherlands company van den Bosch several hundred
         boxes of apples from France which had been treated with the pesticide dicofol.
         
         
         
         9
            
          On Thursday, 6 September 2001, the Commission was informed under the RASFF by the Icelandic contact point that the competent
         Icelandic authority had decided on 4 September to withdraw and dispose of a batch of apples of French origin distributed via
         the Netherlands, following the discovery on 3 September of the presence of a level of 0.8 mg/kg of dicofol in those apples.
         The information stated that the goods had been distributed by the company J.P. Viens SA via the Netherlands and that the Icelandic
         importer had bought them from the Netherlands company Greevecetrus; a copy of the results of the analysis was attached to
         that message.
         
         
         
         10
            
          It is common ground between the parties that the maximum permitted dicofol level for apples was set at 0.02 mg/kg by the Community
         rules on the maximum levels of pesticide residues in fruit and vegetables in force at the time of the relevant facts, so that
         the apples analysed by the Icelandic authorities in September 2001 should have complied with that maximum level.
         
         
         
         11
            
          On Monday, 10 September 2001, following consultation with the competent technical services, the Commission sent the message
         from the Icelandic authorities to the contact points of the States belonging to the RASFF, using the original notification,
         reference No 2001/KL. The notification read as follows:
         ‘pesticide residues (Dicofol) in apples from France via the Netherlands … The product has been recalled and will be rejected.
         Exporter: JP Viens S.A. The contact points in France and in the Netherlands are kindly requested to provide the Commission
         services with the possible distribution to other members of the EEA of the product involved’.
         
         
         
         12
            
          On Friday, 14 September 2001, the Commission received an e-mail from the Netherlands contact point giving it information on
         the various parties involved in distributing the apples in question, including the applicant. The Commission immediately circulated
         this message as an additional notification, reference No 2001/KL-add01, for the attention of RASFF contact points. That notification
         read as follows:
         ‘pesticide residues (Dicofol) in apples from France via the Netherlands. The company “Greve” (NL) mentioned in the notification
         received the apples from the company “Bosch” situated in Alkmaar (NL) which in his turn receives them from the below mentioned
         company:
          Supplier in France: Company “Malagutti” at Cavaillon (FR)
          Tel. +33-4900-66767; Fax: +33-490066768
          The Consignment has been received by the company “Greve” on 20-08-2001 and no stock remained. The distribution is still subject
         of investigation.
          How the name “Viens” is involved is completely unknown’.
         
         
         
         13
            
          On 17 and 18 September 2001 two British agencies (the Pesticides Safety Directorate and the Fresh Produce Consortium) sent
         out messages warning of the danger linked to the presence of dicofol in the apples exported by the applicant. Those messages
         were sent to the main players within the United Kingdom distribution system, expressly stating that the applicant’s products
         should not be imported or placed on the market.
         
         
         
         14
            
          The applicant subsequently found that all trade with the United Kingdom was halted. Two consignments of apples that had already
         been dispatched were returned to France and the applicant was forced to pay the return transport costs and the costs of storage
         in the United Kingdom. The sale of a third consignment was cancelled. All those consignments were sold at a price below the
         prices prevailing in the United Kingdom.
         
         
         
         15
            
          On 19 September 2001 the French authorities took samples at the applicant’s warehouse from the same category of apples as
         those disposed of in Iceland.
         
         
         
         16
            
          On 20 September 2001 the applicant sent a fax to the Commission stating that it had never exported apples to Iceland and seeking
         a formal retraction from the Commission. On 25 September 2001, it challenged the grounds on which the messages were sent out
         and informed the Commission of the damage suffered.
         
         
         
         17
            
          On 26 September 2001 the French authorities notified the Commission’s RASFF contact point of the result of the analyses it
         had carried out on the applicant’s apples sampled on 19 September. The notification stated that:
         ‘The French official monitoring authorities took samples at the premises of the undertaking concerned … No dicofol was detected
         in the five samples analysed.’
         
         
         
         18
            
          Also on 26 September 2001, the Commission brought the full text of that notification, indicating that it had received it from
         the contact point in France, to the attention of the RASFF contact points in an additional notification (reference 2001/KL-add02),
         which read as follows:
         ‘outcome of investigation in France – Analysis for the detection of pesticide residues performed in France at the establishment
         mentioned in notification 2001/KL-add01 on 5 samples gave negative results (no detection of dicofol). The contact point in
         the Netherlands is kindly reminded [of] the request for submission of accompanying documents of the consignments involved’.
         
         
         
         19
            
          On 29 November 2001 the Commission received a claim for compensation for the damage suffered by the applicant following the
         circulation, under the RASFF, of messages concerning detection of dicofol in excess of the maximum permitted level in the
         apples it had exported.
         
         
         
         20
            
          By letter of 3 April 2002, the Commission rejected that claim for compensation.
         
         Procedure and forms of order sought
         
         21
            
          It was in those circumstances that the applicant brought the present action by an application lodged at the Court Registry
         on 10 June 2002.
         
         
         
         22
            
          Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Second Chamber) decided to open the oral procedure.
         
         
         
         23
            
          The parties presented oral argument and their replies to the questions from the Court at the hearing on 4 November 2003. On
         that occasion the Commission lodged a document. After the applicant’s written observations on that document had been communicated,
         the oral procedure was closed on 1 December 2003.
         
         
         
         24
            
          The applicant claims that the Court:
         
         
         
          
         –
            should order the Commission to pay compensation of EUR 704 998.74 in compensation for the damage sustained;
         
         
         
         
          
         –
            should order the Commission to pay the costs.
         
         
         
         
         
         25
            
          The Commission contends that the Court should:
         
         
         
          
         –
            dismiss the application as inadmissible or, in the alternative, as unfounded;
         
         
         
         
          
         –
            order the applicant to pay the costs.
         
         
         
         Admissibility
         
         26
            
          Although it has not raised a formal objection of inadmissibility, the Commission considers that the action is inadmissible.
         
         
         
         
         27
            
          The communication by the Commission to the Member States of the information received under Article 8 of the directive took
         place in the context of internal cooperation with the national agencies responsible for applying the Community rules, namely
         the RASFF. Such cooperation cannot cause the Community to incur liability towards individuals since the alert system is ultimately
         triggered on the initiative of, and according to an analysis made by, the national authorities alone.
         
         
         
         28
            
          The applicant should therefore have referred the matter to the national court having jurisdiction. The question of compensation
         by a national agency for damage caused to private individuals by national agencies, either by reason of an infringement of
         Community law or by an act or omission contrary to national law, must be determined by the national courts (Case 101/78 Granaria [1979] ECR 623). The applicant has by no means demonstrated that a claim for compensation brought before the national courts
         of any of the States involved would not have enabled it to obtain fair compensation for the damage at issue.
         
         
         
         29
            
          In that connection, suffice it to say that the unlawful conduct complained of by the applicant in the present case is that
         of the Commission and cannot be regarded as attributable to the national agencies.
         
         
         
         30
            
          The applicant contends that the Commission had its own part to play in the context of the RASFF: under Article 8(2) of the
         directive and the annex thereto, it was required to check whether the messages received complied with the provisions of the
         directive and to assess whether the risk concerned was genuine and whether it was immediate and serious, before forwarding
         those messages to the other Member States. Those checks and assessments and the repercussions of the alert are entirely the
         responsibility of the Commission. According to the applicant, if the Commission had not unlawfully made public the applicant’s
         name in the context of the RASFF, the United Kingdom agencies which called for its products to be boycotted – who acted on
         the basis of the official alert messages circulated by the Commission – would not have put out their boycott calls, which
         caused it serious damage.
         
         
         
         31
            
          The applicant has thus adduced pertinent reasons to show that the Commission’s conduct was such as to adversely affect its
         commercial interests and cause the damage suffered (see to this effect Case 169/84 COFAZ and Others v Commission [1986] ECR 391, paragraph 28). The application must therefore be declared admissible, since the question whether the conduct
         for which the Commission is criticised is indeed unlawful goes to the substance of the case.
         
         Substance
         
         32
            
          It is settled case-law that non-contractual liability on the part of the Community is subject to a number of conditions: unlawfulness
         of the conduct alleged against the Community institutions, actual damage and the existence of a causal link between the conduct
         of the institution and the damage complained of. If one of those conditions is not satisfied, the entire action must be dismissed
         and it is not necessary to consider the other conditions (see, in particular, Joined Cases T‑481/93 and T-484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-2941, paragraph 80, and Case T-220/96 EVO v Council and Commission [2002] ECR II-2265, paragraph 39, and the case-law cited). 
         
         
         
         33
            
          In the present case it is necessary to consider first of all the various arguments put forward by the applicant to show that
         the conduct for which the Commission is criticised was unlawful.
         
         Arguments of the parties
         
         34
            
          The applicant argues with regard to the apples it exported in 2001 that the rules applying at national and Community level
         specified a [maximum] dicofol level of 1 mg/kg at the time those apples were treated, which was in January 2001. The requirement
         to reduce the dicofol level to 0.02 mg/kg was laid down in respect of France in the order of 8 February 2001 published in
         the Journal officiel de la République française of 3 April 2001. The Community rules providing for the reduction in the dicofol level to 0.02 mg/kg did not enter into force
         until 1 July 2001. The requirement to reduce the dicofol level therefore came into force only after the apples in question
         had already been placed on the market.
         
         
         
         35
            
          The applicant maintains that the Commission’s conduct is unlawful, since the legal requirement to consult it before circulating
         the contested alerts, under Article 7(2) of the directive, was not complied with. So far as the applicant is concerned, there
         is no doubt that the United Kingdom agencies did indeed act on the basis of the alert messages circulated by the Commission,
         and if it had not been for those messages they would not have called for a boycott of the applicant’s products.
         
         
         
         36
            
          The applicant adds that the failure to consult constitutes an infringement of the right to a fair hearing and that the circulation
         of its name, address and other details is contrary to the principle of confidentiality.
         
         
         
         37
            
          The Commission should also have checked whether the measures adopted by the Icelandic authorities were in accordance with
         the principle of proportionality. The measures were as restrictive as possible, since the goods had been withdrawn from the
         market and were to be disposed of.
         
         
         
         38
            
          The applicant stresses that there was no evidence of the origin of the products that were checked. The message which Iceland
         put out related to apples exported by another French company, J.P. Viens SA. The applicant sold its apples to a Netherlands
         company, however. It is therefore not certain that the apples that were checked in Iceland came from the applicant.
         
         
         
         39
            
          The applicant maintains that the message put out by the Icelandic authorities did not state that there was a serious and immediate
         risk, only that the maximum dicofol level had been exceeded in a batch of apples that had been checked. There was in fact
         no serious and immediate risk in the present case. Moreover, the Commission did not initiate the appropriate procedure for
         a case of serious and immediate risk.
         
         
         
         40
            
          According to the applicant, a quick check would have shown that the analyses carried out revealed a dicofol level that complied
         with the rules in force at the time the apples were treated and that consumers were not exposed to any danger. The analyses
         carried out by the French laboratories in September and October 2001 showed that the apples intended for the United Kingdom
         market were in full compliance with the Community rules. Whilst acknowledging that those analyses were not carried out on
         the same batches as those that were the subject of the Icelandic authorities’ action, the applicant considers that their negative
         results raise a strong presumption that the products it distributes comply with the legal requirements.
         
         
         
         41
            
          The Commission points out that the RASFF requires it to circulate any message that relates to problems or risks concerning
         food that does not comply with the food safety rules. Having been informed by the Icelandic contact point of the detection
         of dicofol residues exceeding the maximum permitted level in apples coming from France, it was required to circulate the Icelandic
         alert message. Contrary to what the applicant maintains, a product containing a level of dicofol exceeding that authorised
         by the Community legislation is not a safe product.
         
         
         
         42
            
          Consequently, none of the complaints raised against it by the applicant is well founded.
         
         Findings of the Court
         
         43
            
          It should be noted first of all that the directive laid down two different procedures for checking product safety and for
         adopting appropriate measures in the event of a dangerous product being detected.
         
         
         
         44
            
          The first procedure, introduced by Articles 6 and 7 of the directive, permits the national authorities to make the placing
         of a product on the market subject to prior conditions designed to ensure product safety, to prohibit the placing on the market
         of a product which has proved dangerous, and to organise the withdrawal of a dangerous product already on the market (Article
         6(1)(d), (g) and (h)). Where national authorities take one of the measures provided for in Article 6(1) they must inform the
         Commission of the measure and the Commission must enter into consultations with the parties concerned as quickly as possible,
         check whether the measure that has been taken is justified, and immediately inform the national authorities (Article 7). 
         
         
         
         45
            
          The second procedure, introduced by Article 8 of the directive and by the annex thereto, concerns emergency situations at
         Community level: where national authorities adopt, or envisage adopting, emergency measures to prevent the marketing of a
         product by reason of a serious and immediate risk presented by the said product to the health and safety of consumers, it
         must forthwith inform the Commission thereof, which on receiving this information must check to see whether it complies with
         the provisions of the directive and then forward it to the other national authorities, which, in turn, must immediately inform
         the Commission of any measures adopted (Article 8). Detailed procedures for the rapid alert system (RASFF) are set out in
         the annex to the directive.
         
         
         
         46
            
          Thus the national authorities, as soon as they detect a serious and immediate risk the effects of which extend or could extend
         beyond their territory, must forthwith inform the Commission, where possible after consulting the producer or distributor
         of the product concerned. The communication must, in particular, contain information to identify the product and the supply
         chain where such information is possible, and it is stressed that the speed with which the information is communicated is
         a crucial aspect of the system (points 3 and 4 of the annex). The Commission for its part, having verified the conformity
         of the information received with Article 8 of the directive, contacts the notifying country, if necessary, and then forwards
         the information immediately by telex or fax to the relevant authorities in the other Member States (point 7 of the annex).
         
         
         
         47
            
          In the present case, it is clear from the form used by the Icelandic authorities that the latter contacted the Commission
         under the RASFF and not in order to ask it whether the withdrawal and disposal of the apples imported from France via the
         Netherlands were justified under Articles 6 and 7 of the directive. Since those apples contained dicofol at a level 40 times
         greater than the maximum permitted level and three countries, namely France, the Netherlands and Iceland, were involved in
         their distribution, the Icelandic authorities were clearly of the opinion that it was necessary to inform the Commission that
         there was a risk that other apples containing the same level of dicofol had been placed on the market in other countries.
         After it was informed, the Commission also reacted strictly within the limits of the RASFF by transmitting the Icelandic alert
         message and the subsequent messages to all the RASFF contact points.
         
         
         
         48
            
          The present claim for compensation can therefore only concern the liability that the Commission must assume under the RASFF.
         It cannot, however, legitimately seek compensation for the damage caused by the fact that on 4 September 2001 the Icelandic
         authorities withdrew the apples concerned from the market and disposed of them.
         
         
         
         49
            
          In that regard, it should be pointed out that on that date the applicant’s name had not yet been mentioned and the applicant
         had not yet been identified as having been the probable exporter of the apples in question. Moreover, the Commission was not
         informed until later of the measures adopted by the Icelandic authorities, so it cannot in any case be held liable in that
         regard. The particular fate that befell those apples in Iceland is irrelevant as regards the outcome of the present case and
         the complaint that the Commission infringed the principle of proportionality must be rejected.
         
         
         
         50
            
          As regards the RASFF, the applicant contends, in essence, that there is no evidence that it was the exporter of the apples
         to which the Icelandic authorities objected. It contends that if the Commission had complied with its obligation to check
         the origin of the apples before triggering the rapid alert it would have found that it was not involved. It also complains
         that the Commission failed to consider whether the apples in question actually did present a serious and immediate risk to
         health, since the mere fact that the maximum permitted dicofol level was exceeded was insufficient in that regard. It adds
         that, at any event, as the analyses carried out in France in September and October 2001 showed, a quick check would have shown
         that the apples it exported did not exceed that maximum level.
         
         
         
         51
            
          In that connection, it should be pointed out that under the RASFF it is only the national authorities, and not the Commission,
         which are responsible for establishing whether there is a serious and immediate risk to the health and safety of consumers,
         as it provides that the national authorities must, on the one hand, ‘judge each individual case on its merits’ since ‘it is
         impossible to lay down specific criteria as to what, precisely, constitutes an immediate and serious risk’ and, on the other
         hand, ‘should endeavour to obtain the maximum of information on the products and the nature of the danger, without compromising
         the need for rapidity’ (points 2 and 3 of the annex to the directive). In addition, it is incumbent upon the national authorities,
         once they have detected a serious and immediate risk the effects of which extend or could extend beyond their territory, immediately
         to inform the Commission and provide it with information to identify the product and the supply chain (point 4 of the annex
         to the directive).
         
         
         
         52
            
          Although point 7 of the annex to the directive requires the Commission to check ‘the conformity of the information received
         with Article 8 of [the] directive’, that duty is limited to checking whether the information falls, as such, within the scope
         of that provision, and the accuracy of the findings and analyses that led the national authorities to send that information
         does not have to be checked. As was stated above, responsibility for those findings and analyses lies solely with the national
         authorities. The Commission therefore had neither an obligation to check before circulating its message of 14 September 2001
         whether the apples objected to in Iceland were indeed those exported by the applicant, nor the appropriate power to do so.
         
         
         
         53
            
          So far as warning of risks for the health of consumers is concerned, it was sufficient for it to have plausible evidence of
         a link between the applicant and the apples objected to in Iceland. The information gathered and communicated by the Icelandic
         authorities referred to apples of French origin imported via the Netherlands, and mentioned in particular the name of the
         Netherlands company Greevecetrus. The information provided by the Netherlands authorities then added details concerning the
         companies involved in the distribution process, and mentioned the names of the company ‘Greve’ (Netherlands), the company
         ‘Bosch’ established in Alkmaar (Netherlands) and the name of the applicant. As is clear from the invoices dated August 2001
         submitted by the applicant itself, the latter exported apples of French origin to the Netherlands company van den Bosch in
         Alkmaar. In those circumstances, it cannot be accepted that the Commission, in its message of 14 September 2001 based on the
         information received from the Netherlands authorities, circulated information that was not plausible.
         
         
         
         54
            
          If any doubt remains in that regard, it should be pointed out that under the precautionary principle prevailing in the matter
         of the protection of public health the competent authority may be obliged to take appropriate measures to prevent certain
         potential risks for public health without having to wait until the existence and seriousness of those risks has been fully
         demonstrated (see to this effect Case T‑13/99 Pfizer Animal Health v Council [2002] ECR II-3305, paragraph 139 and the case-law cited, and Case T-392/02 Solvay Pharmaceuticals v Council [2003] ECR II-0000, paragraphs 121 and 122). If it was necessary to wait until all the research was completed before adopting
         such measures the precautionary principle would be rendered devoid of purpose (Pfizer Animal Health v Council, cited above, paragraphs 142, 386 and 387). That reasoning also applies in the case of a rapid information procedure such
         as the one introduced by the directive. The applicant, which is a victim of that alert system introduced in order to protect
         human health, must accept its adverse economic consequences, since the protection of public health must take precedence over
         economic considerations (Solvay Pharmaceuticals v Council, paragraph 121, and Pfizer Animal Health v Council, paragraph 456). 
         
         
         
         55
            
          Although the applicant contends in this context that merely exceeding the maximum dicofol level of 0.02 mg/kg does not necessarily
         constitute a serious and immediate risk for human health, especially since a level of 1 mg/kg was previously permitted, suffice
         it to point out, on the one hand, that it is not for the Commission to call in question, in the context of the RASFF, the
         findings and analyses that led the national authorities to accept the existence of a serious and immediate risk requiring
         the triggering of that system and, on the other hand, that it is common ground that the apples objected to contained 0.8 mg/kg
         of dicofol, whereas the maximum permitted level was 0.02 mg/kg. The applicant, which did not challenge under Article 241 EC
         the legality of the rules laying down that maximum limit, has by no means shown that consumption of apples with a dicofol
         level 40 times greater than the maximum permitted level would not have any harmful effect on the health of consumers, although
         scientific research on the subject had shown that it was necessary to replace the former maximum level with a level of 0.02
         mg/kg. 
         
         
         
         56
            
          As regards the complaints that Article 7(2) of the directive and the right to a fair hearing have been infringed because the
         Commission failed to consult the applicant before circulating its name, address and other details under the RASFF, it should
         be pointed out that that system does not require the Commission to carry out such consultation in every case, since Article
         7(2) of the directive does not apply with regard to the rapid alert procedures introduced by the directive in order to protect
         the health of consumers. It would also be difficult to achieve that objective of rapid protection if the Commission had to
         take due account of the observations and objections of the undertaking concerned before circulating information covered by
         the directive to the other RASFF contact points.
         
         
         
         57
            
          Nor does the Commission’s failure to consult the applicant constitute an infringement of the principle of the right to a fair
         hearing. Although that principle requires the Commission to hear the person concerned before adopting a measure adversely
         affecting that person (see, for example, Case T-82/01 Josanne and Others v Commission [2003] ECR II-2013, paragraph 77 and the case-law cited), in the present case the Commission did not adopt any measure directly
         addressed to the applicant and having an adverse effect on it. It merely circulated a notification, namely that received from
         the Netherlands contact point on 14 September 2001 and intended, in accordance with point 4 of the annex to the directive,
         to lead to identification of the apples in question and the relevant supply chain.
         
         
         
         58
            
          It is true that points 7 and 8 of the annex to the directive provide that the Commission ‘may’, on the one hand, contact the
         Member State presumed to be the country of origin of the product to carry out the necessary verifications and, on the other
         hand, ‘when it considers it to be necessary’ and ‘in exceptional circumstances’, institute an investigation on its own. It
         is possible that the Commission might in such circumstances be led to consult the undertaking in respect of which the rapid
         alert is circulated. However, the applicant has not been able to show that the Commission was negligent in the circumstances
         of the present case in not consulting it.
         
         
         
         59
            
          The only argument submitted in that connection is that the level of dicofol in the apples which the applicant exported to
         the Netherlands in 2001 did not, when they were treated in January 2001, exceed the maximum level of 1 mg/kg permitted in
         France at that time. The applicant therefore appears to consider that the Commission should have taken its commercial interests
         into consideration by consulting it, in the light of the special situation resulting from the amendment of the rules concerning
         the maximum permitted dicofol level which took place in July 2001 whilst the apples from France were in the process of being
         shipped to the country of export.
         
         
         
         60
            
          That argument cannot be accepted.
         
         
         
         61
            
          In the first place, the applicant has not provided any details regarding the dates of its exports; the only information in
         that connection appears in the invoices dated August 2001 which show deliveries to van den Bosch in Alkmaar (Netherlands).
         That information does not show that the apples treated in January 2001 had necessarily left France and reached their country
         of destination before July 2001. It is just as likely that its apples were not exported until August 2001.
         
         
         
         62
            
          Secondly, the Community rules relating to the maximum permitted dicofol level in fruit and vegetables are contained in a series
         of Council directives addressed to the Member States for implementation. France introduced the maximum level of 0.02 mg/kg
         by the order of 8 February 2001 amending the order of 5 August 1992 on maximum permissible levels of pesticide residues in
         and on certain products of plant origin (JORF of 3 April 2001, p. 5200). As stated in the preamble to that order, the measure
         was adopted in order to transpose, in particular, Commission Directive 2000/42/EC of 22 June 2000 amending the Annexes to
         Council Directives 86/362/EEC, 86/363/EEC and 90/642/EEC on the fixing of maximum levels for pesticide residues in and on
         cereals, foodstuffs of animal origin and certain products of plant origin, including fruit and vegetables respectively (OJ
         2000 L 158, p. 51), Article 4 of which was to be transposed by the Member States by 28 February 2001 at the latest, and the
         measures transposed were to be applied from 1 July 2001. That directive was published in the Official Journal of the European Communities on 30 June 2000. Any well informed and prudent trader should therefore have arranged his commercial activities from that
         latter date so that apples intended for export that were likely to be placed on the market after June 2001 complied with the
         new maximum dicofol level. The applicant, which did not challenge under Article 241 EC either the legality of the rules laying
         down the maximum level of 0.02 mg/kg or the date on which those rules took effect, cannot therefore complain that the Commission
         circulated the Netherlands message under the RASFF without consulting it beforehand. 
         
         
         
         63
            
          At any event, even if it had consulted the applicant beforehand, it is unreasonable to consider that that would have prevented
         the Commission from circulating the message containing the applicant’s name, address and other details. The only effective
         way the applicant could have protected itself from the negative effects of the RASFF would have been to take a sample, under
         the supervision of an independent person or institution, from the batch of apples intended for export to the Netherlands and
         arrange for an officially certified analysis to be made of the dicofol level in that sample. Only if it had submitted such
         a certified analysis immediately on being consulted could it have avoided its name being circulated under the RASFF system.
         The applicant has neither asserted nor established that it had the apples in question analysed in tempore non suspecto, as described above.
         
         
         
         64
            
          As regards the analyses carried out in France in September 2001 which are alleged to have shown that the apples exported by
         the applicant complied with the Community rules, suffice it to say that those analyses were not carried out on the batch of
         apples objected to in Iceland. They could not therefore prove that the Icelandic analyses were inaccurate. They merely establish
         that the apples that were analysed in September 2001 complied with the relevant legislation.
         
         
         
         65
            
          In this context, the Commission cannot be held responsible for the fact that the batch of apples analysed in Iceland apparently
         disappeared after it was withdrawn from the market and that it was therefore no longer possible to verify the accuracy of
         the Icelandic analyses or precisely identify the apples as being those which the applicant had exported to the Netherlands.
         As stated above, the Commission’s responsibility under the RASFF is limited to the circulation of information as such.
         
         
         
         66
            
          Lastly, the applicant cannot complain that the Commission infringed the obligation of confidentiality by circulating its name,
         address and other details. Point 6 of the annex to the directive states expressly that the need to take effective measures
         to protect consumers normally outweighs considerations of confidentiality. As the alert message from the Icelandic authorities
         notified the presence of dicofol in ‘apples of French origin distributed via the Netherlands’, it was in the interest of both
         the competent authorities and the traders concerned that the circle of undertakings involved should be limited as far as possible,
         otherwise all apples of French origin might have been subject to a boycott. As stated above, it was both reasonable and necessary
         in the circumstances of this case to give the applicant’s name in that context in order to protect public health.
         
         
         
         67
            
          It is clear from all the above considerations that the applicant has not established that the Commission acted wrongfully
         in such a way as to incur liability. The application must therefore be dismissed in its entirety, without there being any
         need to consider whether there is a causal link or whether the alleged damage exists.
         
         
         Costs
         68
            
          Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party is to be ordered to pay
         the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful it
         must be ordered to pay the costs, as applied for by the Commission.
         
         
         On those grounds,
         
         
         
            
            THE COURT OF FIRST INSTANCE (Second Chamber)
         
         
          hereby:
         
            
            
             
               1.
                  Dismisses the application;
               
            
            
            
             
               2.
                  Orders the applicant to pay the costs.
               
            
            
                  Forwood
               
               
                  Pirrung
               
               
                  Meij
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
                  
               
               
                  
               
               
                  
               
            
            
            
            
            
            
            
            
         
         
          Delivered in open court in Luxembourg on 10 March 2004.
         
         
         
         
                  H. Jung
               
               
                  J. Pirrung
               
            
         
         
         
                  Registrar
               
               
                  President
               
            
      
      
          1 –
            
            Language of the case: French.