CELEX: 62002CC0216
Language: en
Date: 2004-01-15 00:00:00
Title: Opinion of Mr Advocate General Ruiz-Jarabo Colomer delivered on 15 January 2004. # Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen v Burgenländische Landesregierung. # Reference for a preliminary ruling: Verwaltungsgerichtshof - Austria. # Free movement of goods - Intra-Community trade in equidæ - Procedure for the approval or recognition of organisations and associations which maintain or establish stud-books for registered equidæ - Article 2(2) of Decision 92/353/EEC. # Case C-216/02.

OPINION OF ADVOCATE GENERALRUIZ-JARABO COLOMERdelivered on 15 January 2004(1)
         Case C-216/02Österreichischer Zuchtverband für Ponys, Kleinpferde und SpezialrassenvBurgenländische Landesregierung(Reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria))
            (Free movement of goods  –  Decision 92/353/EEC  –  Intra-Community trade in equidae  –  Article 2(2), first indent  –  Procedure for the approval or recognition of organisations and associations which maintain or establish stud-books for registered
               equidae  –  Rights of an existing organisation or association)
            
            
      
         
        1.        The Verwaltungsgerichtshof, which is the Austrian Administrative Court, has referred two questions to the Court of Justice
      for a preliminary ruling under Article 234 EC on the interpretation of Commission Decision 92/353/EEC of 11 June 1992 laying
      down the criteria for the approval or recognition of organisations and associations which maintain or establish stud-books
      for registered equidae, 
         			(2)
         		 specifically the first indent of Article 2(2).
       The national court wishes to know, in essence, whether that provision confers on an organisation officially recognised in
      a Member State, which maintains stud-books for registered equidae, a right to have the competent authority refuse approval
      to another body, if it may endanger the preservation of the breed or jeopardise its operation or its improvement or selection
      programme. It also asks whether it would be compatible with that provision for the existing organisation, in proceedings for
      the recognition of a new organisation, to have the right to be heard but not the right to challenge the grant of recognition
      in the courts.
      
      
      I –  The facts in the main action
        2.        Since 14 August 1997, the Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen, the applicant in the main
      action, has been recognised in the Land  of Burgenland as a breeding organisation for Shetland ponies in accordance with the Law on breeding animals of 2 March 1995
      (Burgenländisches Tierzuchtgesetz).
      
      
        3.        In 1997 the Österreichischer Shetlandponyzuchtverband applied to the authorities of that Land  for recognition as a horse-breeding organisation for the Shetland pony breed.
       The Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen was given a hearing in the administrative procedure
      which followed; it opposed the granting of recognition, on the ground that it would endanger the preservation of the breed,
      that its operation as an existing organisation and its improvement and selection programme might be jeopardised and that,
      in contrast to the behaviour of the new body, its association observed the principles of the stud-book of the origin of the
      breed.
      
      
        4.        On 30 April 2001, the Burgenland Land Government recognised the Österreichischer Shetlandponyzuchtverband, pursuant to Paragraph 9 of the Law on breeding animals,
      as a breeding organisation for horses of the Shetland Islands’ breed, in accordance with a specified programme for a period
      of 10 years. The Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen challenged that measure before the
      Verwaltungsgerichtshof. 
      
      
        5.        In the main action, the defendant authorities contend that the Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen
      does not have standing to challenge the recognition of the Österreichischer Shetlandponyzuchtverband before the Verwaltungsgerichtshof,
      since it does not have the status of a party to the proceedings for recognition and therefore has no enforceable rights.
      
      
      II –  National legislation
        6.        Recognition of breeding organisations is regulated by Paragraph 9 of the Law on breeding animals. Under Paragraph 9(1), it
      is granted by the Land  Government only if specific conditions are satisfied. 
      
      
        7.        According to the information provided by the national court, the provisions relevant to this case are Paragraph 9(3) and (5),
      which read as follows:
      ‘3.     Associations of breeders of which the substantive and geographical sphere of activity overlaps in whole or in part with that
      referred to in Paragraph 9(2)(5)(a) shall be entitled to a hearing in recognition proceedings.
      ...
       5.       If, for a particular breed, there already exists a recognised organisation, or there already exist several recognised organisations,
      the Government of the Land shall refuse to recognise a new organisation of breeders if doing so would endanger the preservation of the breed or the
      breeding programme of an organisation already in existence.’
      
      
        8.        The Verwaltungsgerichtshof acknowledges that it has not had to apply Paragraph 9(3) of the Law on breeding animals before
      now. However, it has consistently held in relation to other laws that a legislative provision granting a person only the right
      to be heard in an administrative procedure does not confer on him full status as a party; he therefore has no right to require
      that the decision taken by the authorities have a specific content and cannot challenge that decision before the courts. 
         			(3)
         		 According to Austrian law, in the main proceedings, the action brought by the Österreichischer Zuchtverband für Ponys, Kleinpferde
      und Spezialrassen should be dismissed, without going into the question of whether recognition of the Österreichischer Shetlandponyzuchtverband
      as a breeding organisation endangers the preservation of the breed or the applicant’s breeding programme.
      
      
        9.        In order to determine the legal context of the questions raised, the Court of Justice put several questions to the parties
      in the case being heard before the national court, to the Austrian Government and to those who participated in the written
      procedure.
      
      
        10.      It asked, first, whether the term ‘breeding organisation’ used in Paragraph 9 of the Law on breeding animals corresponds to
      the term ‘organisation or association which maintains or establishes stud-books’ within the meaning of Article 2 of Decision
      92/353 and whether an organisation breeding equidae, in order to be recognised by the official authorities, must maintain
      or establish a stud-book or a section for each breed. 
       Both the applicant in the main proceedings and the Austrian Government replied in the affirmative to both points.
      
      
        11.      The Court then asked whether, in a Member State in which there were several officially approved or recognised organisations
      or associations for the same breed of equidae, each could maintain or establish independently a stud-book for that breed,
      subject only to the condition that they observe the principles established by the organisation or association which maintains
      the stud-book of the origin of the breed. 
       According to the applicant, the Austrian legislation passed to implement Directive 90/427 did not incorporate Article 4(1)
      of that directive, under which breeding organisations which apply for recognition or approval have to respect the rules followed
      by the organisation which maintains the stud-book of the origin of the breed. 4  –At the request of the national court, the applicant’s lawyer informed the Court of Justice, at the hearing, that the organisation
      which maintains the stud-book of the origin of the Shetland Islands Pony breed is situated in Scotland. Nor did it include the second indent of Article 2(2) of Decision 92/353. Consequently, according to the applicant, the organisation
      whose recognition it seeks to challenge does not respect the rules of that stud-book and registers the animals according to
      different criteria. 
       The Österreichischer Shetlandponyzuchtverband acknowledged that all organisations and associations within the meaning of Article
      2 of Decision 92/353 are required to maintain a separate stud-book for each breed. The Austrian Government and the Commission
      added that they must observe the principles laid down by the organisation which maintains the stud-book of the origin of the
      breed.
      
      
        12.      The Court asked, finally, whether, where two or more breeding organisations have the same substantive and geographical area
      of activity, they compete for the participation of breeders in their respective improvement or selection programmes or programmes
      to preserve the breed, and whether the activities of those recognised organisations receive support under national or Community
      legislation.
       The applicant answered the first part of the question in the affirmative and said it was concerned about the problem caused
      by the recognition of several breeding associations for a breed of such small numbers as the Shetland Island Pony, which makes
      it necessary to divide the number of males and females set aside for breeding and increases the level of consanguinity. As
      regards the possibility of obtaining aid, it stated that in Austria there are general actions to promote agriculture which
      benefit all legal persons.
       The Österreichischer Shetlandponyzuchtverband stated that breeding organisations whose area of activity is confined to the
      same Land do compete with each other, and also that they are entitled to some kind of support.
       The Austrian Government and the Commission confirmed that there may be competition between organisations. With regard to benefits,
      the former denied their existence whereas the latter stated that, according to point 15 of the Community Guidelines on State
      aid in the agricultural sector, 5  –OJ 2000 C 28, p. 2. the Commission, in order to support the maintenance and improvement of the genetic quality of Community livestock, permitted
      the grant of aid in the sector, including for horses, consisting of contributions of up to 100% of the administrative costs
      of establishing and maintaining stud-books and up to 40% of the eligible costs for investments in animal reproduction centres
      and in the introduction of innovative animal breeding techniques or practices.
      
      
      III –  The questions referred for a preliminary ruling
        13.      Before deciding the main action, the Verwaltungsgerichtshof has asked the Court of Justice for a ruling on the following questions:
      
      ‘(1)
         Does the first indent of Article 2(2) of … Decision 92/353 … confer on an association (organisation) of breeders already in
            existence a right to have the competent authority refuse to recognise another organisation (another association) if to recognise
            that other organisation (association) would endanger the preservation of the breed or jeopardise the operation or the improvement
            or selection programme of an organisation or association already in existence? 
         
      
      
      (2)
         Does the first indent of Article 2(2) of … Decision [92/353] … preclude the application of a provision of national law which
            
         
      
      
         
            (a)
               confers on an organisation or association already in existence only the right to be heard in proceedings before the competent
                  authority for the recognition of another organisation (association), but not the right to have recognition of that other organisation
                  (association) refused where recognition would endanger the preservation of the breed or jeopardise the operation or the improvement
                  or selection programme of an existing organisation or association, and 
               
            
      
      
      
         
            (b)
               does not give the organisation or association already in existence the right to challenge before the courts (the Verwaltungsgerichtshof)
                  the recognition granted in spite of its submissions to the contrary?’
               
            
      
      
      
      
      IV –  Community legislation
        14.      On 26 June 1990 the Council adopted Directive 90/427/EEC of 26 June 1990 on the zootechnical and genealogical conditions governing
      intra-Community trade in equidae 
         			(6)
         		 with the aim of establishing rules governing the marketing of equidae in order to ensure the rational development of equidae
      production, thereby increasing productivity in that sector.
       It is pointed out in the statement of reasons that disparities as regards entry in studbooks constitute a barrier to intra-Community
      trade, the liberalisation of which calls for further harmonisation, particularly regarding entry in stud-books. 7  –Fifth recital.
      
      
        15.      Under Article 4(2), the Commission is required to establish, in accordance with the principles set out in Article 4(1):
      ‘(a)   the criteria for the approval or recognition of organisations and associations which maintain or establish stud-books;
      ...’
      
      
        16.      On 11 June 1992, the Commission approved Decision 92/353, intended to implement in particular Article 4(2)(a) of Directive
      90/427. Article 2 of that Decision provides:
      ‘1.     The authorities of the Member State concerned must grant official approval or recognition to any organisation or association
      which maintains or establishes a stud-book, provided it meets the conditions laid down in the Annex. 
       2.       However, in a Member State where one or more officially approved or recognised organisations or associations already exist
      in respect of a given breed, the authorities of that Member State may refuse to recognise a new organisation or association:
      
      
        
      –
         if it endangers the preservation of the breed or jeopardises the operation or the improvement or selection programme of an
            existing organisation or association, or 
         
      
      
        
      –
         if equidae of that breed may be entered or registered in a specific section of a stud-book maintained by an organisation or
            association which applies in particular for that section the principles laid down in accordance with point 3(b) of the Annex
            by the organisation or association which maintains the stud-book of the origin of that breed. 
         
      
      
       3.       Member States shall inform the Commission of any official approval or recognition granted, as well as contested refusals.
       4.       Where an organisation or association in a Member State is refused official approval or recognition, the reasons for the refusal
      must be communicated in writing to the association or organisation.’ 
      
      
      V –  The procedure before the Court of First Instance
        17.      The Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen, which is the applicant in the main proceedings,
      the Austrian Government and the Commission submitted written observations in these proceedings within the period laid down
      in Article 23 of the Statute of the Court of Justice.
       At the hearing, which took place on 4 December 2003, the representative of the Österreichischer Zuchtverband für Ponys, Kleinpferde
      und Spezialrassen and the Commission’s agent presented oral argument.
      
      
      VI –  The first question 
        18.      The Austrian court wishes to know, first, whether the first indent of Article 2(2) of Decision 92/353 confers on an organisation
      which maintains stud-books for registered equidae, the right, when a new organisation applies for official recognition, to
      require the competent authorities to adopt an unfavourable decision, if one of the two conditions referred to in that provision
      is met.
      
      
       A – The observations submitted
        19.      The Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen suggests that the Court of Justice answer in the
      affirmative. It maintains that the first and second indents of Article 2(2) of Decision 92/353 are clear, precise and unconditional
      and may therefore have direct effect to the benefit of individuals. It takes the view that the word ‘may’, used in respect
      of the Member States, should be interpreted as meaning that, provided there are grounds for refusing recognition, an existing
      association has the right to call on the national authorities to refuse to grant approval to the new organisation. It would
      make no sense for a Member State to use the discretion it apparently enjoys with regard to recognition if a legally protected
      right had not at the same time been conferred on existing organisations to contest the approval. 
      
      
        20.      The Austrian Government maintains that the aim of the first indent of Article 2(2) of Decision 92/353 is to ensure that the
      national authorities, acting independently, examine applications for official recognition from breeding organisations in the
      light of objective, pre-established criteria; not, as the applicant in the main proceedings asserts, to uphold the interests
      of competitors. Since this Community rule has been correctly incorporated into Austrian law by the Law on breeding animals,
      specifically by Paragraph 9(5) thereof, there is no need to raise the question of its direct applicability. In any event,
      its provisions are neither unconditional nor sufficiently precise and therefore may not be relied on in proceedings by individuals.
      
      
        21.      For its part, the Commission states that, in the circumstances specified in the first and second indents of Article 2(2) of
      Decision 92/353, the competent authorities of the Member States are released from their obligation under Article 2(1) to recognise
      any new organisation or association. Article 2(2) thus grants a discretionary power to refuse recognition, without imposing
      on them the duty to refuse it, and therefore does not create a right for existing organisations to demand an unfavourable
      decision.
       At the hearing, the Commission stated that Directive 90/427 and Decision 92/353 were adopted with the aim of promoting the
      setting-up of associations and organisations, recognised by the national authorities, to maintain the stud-books of horse
      breeds, in compliance with the principles laid down by the organisation which maintains the stud-book of the origin of the
      breed, in order to eliminate disparities with regard to registration. 
      
      
       B – Consideration of the question
        22.      I agree with the Austrian Government and the Commission that this question must be answered in the negative.
      
      
        23.      Breeding organisations and associations fulfil a very important role in the project endorsed by Directive 90/427 since, in
      the statement of reasons, it is stated that satisfactory results in that respect depend largely on the use of equidae registered
      in stud-books maintained by officially approved organisations or associations. So much so that the Council asked the Commission
      to set the criteria for the approval of that kind of organisation and association, with the fundamental condition that they
      should observe the principles laid down by the organisation or association which maintains the stud-book of the breed. 
      
      
        24.      The Commission fulfilled that task by adopting Decision 92/353, Article 2(2), first indent, of which the Court is now interpreting
      at the request of the Verwaltungsgerichtschof. 
      
      
        25.      Article 2(1) of Decision 92/353 lays down the general rule that the competent authorities of each Member State concerned are
      to grant official approval or recognition to any organisation or association which maintains or establishes a stud-book, has
      its headquarters in the territory of that Member State, submits an application and meets the conditions laid down in the Annex.
      
      
        26.      However, the first indent of Article 2(2) contains an exception to that broad requirement because it empowers Member States,
      in fulfilment of their duty to protect the general interest, to diverge from that obligation. Under that provision, when,
      in a Member State, one or more officially approved organisations or associations already exists in respect of a breed, recognition
      of a new organisation may be refused in two circumstances: if it endangers the preservation of the breed or if it jeopardises
      the operation or the improvement or selection programme of an existing association.
       As I have pointed out in the paragraph devoted to the provisions of national law, the Austrian legislature opted to restrict
      its authorities’ room to manoeuvre, since Paragraph 9(5) of the Law on breeding animals requires recognition of a new organisation
      to be refused if one of those two circumstances is present. 
      
      
        27.      Certain rights in favour of individuals may be inferred from the wording of Article 2 of Decision 92/353, which is addressed
      to the Member States. However, I would point out that the beneficiaries of the rule are only the new associations which maintain
      or establish stud-books: if they meet the requirements, they are entitled to official recognition. Thus, if such recognition
      is refused, they may request notification in writing specifying the reasons for the refusal. 
      
      
        28.      It remains to be seen whether the first indent of Article 2(2) of Decision 92/353 confers rights on existing associations,
      as the Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen asserts.
      
      
        29.      As regards the danger which the new association represents for the preservation of the breed, it is the national authorities
      responsible for considering that possibility which are best placed to assess, in the light of the public and private interests
      at stake, whether that risk is present in any specific case.
      
      
        30.      With regard to the assessment of the effect on the operation or the improvement or selection programme of an existing organisation
      or association, I consider that the rule means that the national authorities must give a hearing to existing organisations
      before reaching a final decision on new applications for approval. 
         			(8)
         		
      
        31.      However, it does not follow that an existing organisation’s opinion opposing recognition is binding on the competent authorities,
      with the result that the application has to be refused.
       First, it is not possible to reach that interpretation from the wording of the rule or from the aim it pursues.
       Secondly, to allow that result would be tantamount to handing exorbitant power to private organisations, merely because they
      have obtained recognition earlier. It must be borne in mind, in particular, that the Community provision is worded in such
      a way that it empowers, but does not require, Member States, in either of the situations envisaged, to refuse approval of
      a new organisation even though it meets the conditions laid down. Furthermore, the existing organisations are under continuous
      review because their official recognition is withdrawn if they cease permanently to comply with the conditions they were required
      to meet when they obtained approval. 
      
      
        32.      For the aforementioned reasons, I consider that the first indent of Article 2(2) of Decision 92/353 does not confer on an
      organisation which maintains stud-books for registered equidae the right, when a new organisation applies for official recognition,
      to demand of the competent authorities that they adopt a negative decision. 
      
      
      VII –  The second question
        33.      The Austrian court also asks whether the first indent of Article 2(2) of Decision 92/353 precludes the application of a provision
      of national law which, when regulating the procedure for official approval of a new breeding association, grants existing
      associations only the right to be heard, and not the right to have recognition refused, and does not entitle them to contest
      recognition, even if they have expressed their opposition at the hearing. 
      
      
       A – The observations submitted
        34.      The Österreichischer Zuchtverband für Ponys, Kleinpferde und Spezialrassen argues that the Community legislation takes precedence
      over Paragraph 9(3) of the Law on breeding animals. 
       Given that a new organisation may be approved if it does not jeopardise the operation of an existing organisation, it has
      to be acknowledged that the role of the latter in the proceedings entails an individual right, based on public law, to press
      for a review of the decision adopted, a power which is not included in the opportunity to be heard. It is therefore necessary,
      in order to ensure the substantive legal position conferred by the Community legislation, that, in proceedings for recognition
      of a new organisation, an existing organisation should enjoy all the powers and rights related to status as a party. Otherwise,
      the Member States, when deciding who has the capacity to bring proceedings, would be free to neutralise a right arising under
      Community law.
      
      
        35.      For the Austrian Government, the rights conferred on individuals by the aforementioned Community legislation are applied through
      national procedural rules. Article 2(2) of Decision 92/353 means that it is for the competent authorities of the Member States
      to assess whether the criteria laid down are met, without entitling competitors to oppose the recognition of a new association.
      By incorporating that provision into national law, the Austrian legislature has not only scrupulously guaranteed observance
      of the Community rule but has also taken into account the interests of third parties by granting them a right to be heard
      which is not provided for in Article 2 of Decision 92/353.
      
      
        36.      The Commission considers that the rights conferred on third parties under Decision 92/353 are respected if the existing organisation
      simply has the right to be heard in proceedings for recognition of a new association. It adds that the powers conferred on
      it by the Council in Directive 90/427 are restricted to the context of internal trade and do not extend to the opportunities
      for existing associations to participate in administrative proceedings or to defend their interests before the courts.
      
      
       B – Consideration of the question
        37.      I would point out that it cannot be inferred from the wording of the first indent of Article 2(2) of Decision 92/353 that
      existing organisations have the rights with which the Austrian court is concerned. That provision confines itself to stating
      the circumstances in which Member States are empowered to refuse official recognition to a new association, and it is therefore
      for the competent authorities in each country to assess whether either of the two hypotheses envisaged arises.
      
      
        38.      Nor, in the light of the purpose of that provision, is it necessary for those rights to be conferred. Decision 92/353 governs
      the criteria for the approval of associations which maintain stud-books for registered equidae. It is therefore those organisations,
      the ones seeking recognition, which may rely on the content of the provision in question.
      
      
        39.      On the contrary, existing associations and organisations do not appear in that provision as the holders of rights: they are
      only mentioned, indirectly, when the competent authorities are entrusted with assessing, in order to approve a new association
      or organisation, whether it may jeopardise the operation or improvement or selection programme of one which is already active.
      
       Clearly, in the course of that assessment, it is a measure of sound administration for the authorities to give a hearing to
      existing organisations before taking a decision on recognition; that is what the Austrian legislation appears to do. It does
      not follow that the first indent of Article 2(2) of Decision 92/353 requires the Member States to allow such organisations
      to contest an approval granted to a competitor organisation against their wishes and interests. 
      
      
        40.      For the reasons stated, I consider that the first indent of Article 2(2) of Decision 92/353 does not preclude the application
      of a national provision which, in regulating the procedure for official approval of a new breeding association, grants existing
      associations only the right to be heard, denying them any right to bring legal proceedings to contest the approval, even if
      they have expressed their opposition at the hearing. 
      
       
      VIII –  Conclusion
        41.      In the light of the foregoing considerations, I propose that the Court of Justice give the following reply to the Verwaltungsgerichtshof:
      
      
      (1)
         The first indent of Article 2(2) of Commission Decision 92/353/EEC of 11 June 1992 laying down the criteria for the approval
            or recognition of organisations and associations which maintain or establish stud-books for registered equidae does not confer
            on an existing organisation of breeders the right, when a new organisation applies for official recognition, to demand of
            the competent authorities that they adopt a negative decision.
         
      
      
      (2)
         The first indent of Article 2(2) of Decision 92/353 does not preclude the application of a national provision which, in regulating
            the procedure for official approval of a new breeding association, grants existing associations only the right to be heard,
            denying them any right to bring legal proceedings to contest the approval, even if they have expressed their opposition at
            the hearing.
         
      
      
      
       1 –
         
         Original language: Spanish.
      
      2 –
         
         OJ 1992 L 192, p. 63.
            
         
      
      3 –
         
         The Commission, for its part, points out in its written observations that Austrian administrative law distinguishes between
            those who are parties to proceedings and those who have the status only of interested persons. The former are those who have
            a legal interest or right whereas the latter are those who ask the authorities to act or who are affected by the administrative
            measure. The most distinctive right enjoyed by those who are parties is that they can appeal against the authorities’ decision,
            which those who are merely interested persons are forbidden to do.
            
         
      
      4 –
         
         At the request of the national court, the applicant’s lawyer informed the Court of Justice, at the hearing, that the organisation
            which maintains the stud-book of the origin of the Shetland Islands Pony breed is situated in Scotland.
            
         
      
      5 –
         
         OJ 2000 C 28, p. 2.
            
         
      
      6 –
         
         OJ 1990 L 224, p. 55.
            
         
      
      7 –
         
         Fifth recital.
            
         
      
      8 –
         
         The same holds true, in my view, as regards the application of Article 2(2)(b) of Decision 92/353, for which the Austrian
            court does not seek an interpretation, that is to say, where equidae may be registered in a specific section of a stud-book
            maintained by another association which observes the principles laid down by the organisation which maintains the stud-book
            of the origin of the breed; the aim of the rule is to avoid an unjustified proliferation of associations with the same object.