A. Tempelman (C-96/03) and Mr and Mrs T.H.J.M. van Schaijk (C-97/03) v Directeur van de Rijksdienst voor de keuring van Vee en Vlees.
Date: 2005-03-10
30. In the light of its broad scope and its general objective, that directive must likewise be considered to be applicable where the Community provisions appear insufficient to meet specific problems encountered in situations likely to constitute a serious hazard to animal or human health. In that regard, the Court has held that Article 8 of Directive 90/425 must be interpreted in the light of its objective, which is to ensure that the health of animals and humans is protected, and of developments in scientific knowledge (Case C-428/99 Van den Bor  [2002] ECR I‑127, paragraph 38).
31. It should none the less be noted that the Commission and the Member States can adopt protective measures in accordance with Article 10 of Directive 90/425 only in compliance with Community law. They are thus required to respect the objectives pursued by the Community legislation in force and the general principles of Community law, such as the principle of proportionality. Furthermore, the obligation which Article 10 places on Member States to inform the Commission and the other Member States must be scrupulously observed, in order to allow close cooperation between the authorities of the Member States and the Commission.
35. That interpretation would not allow the objective of the effective control of the disease pursued by that directive to be obtained. As the governments which have submitted observations pointed out, there are situations in which such preventive slaughter is necessary, owing to the speed at which the virus spreads, in the light of matters such as the virulence of the disease, the animal types concerned or climatic conditions.
37. Thus, by Decision 2001/246, based on Article 10 of Directive 90/425 and Article 13(3) of Directive 85/511, the Commission authorised the suppressive vaccination and pre-emptive killing of animals, the latter measure designating, according to Article 1 of that decision, the killing of susceptible animals on holdings within a certain radius around holdings placed under the restrictions defined in Article 4 or 5 of Directive 85/511, aimed at the urgent reduction of numbers of animals of susceptible species in an infected area.
38. The reason for the pre-emptive killing was stated as follows in the fourth recital to Decision 2001/246:
‘In addition to the measures within the framework of Directive 85/511/EEC, the Netherlands apply as a precautionary measure the pre-emptive killing of susceptible animals in holdings situated in close proximity to infected or suspect holdings, taking into account the epidemiological situation and the high density of susceptible animals in certain parts of the territory.’
39. The Court has held that the provisions referred to in Decision 2001/246 constituted an adequate legal basis for the adoption by the Commission of Decision 2001/246 (Case C-189/01 Jippes and Others  [2000] ECR I-5689, paragraph 127).
40. It follows from the foregoing that Directive 85/511 cannot be interpreted as meaning that the measures which it lays down could not be supplemented by Community or national measures adopted on the basis of Directive 90/425.
46. Whether they are adopted by a Member State on the basis of Article 10(1) of Directive 90/425 or by the Commission on the basis of Article 10(4) of that directive, precautionary measures must observe the principle of proportionality (see, to that effect, in relation to measures adopted by a Member State of destination, Case C-220/01 Lennox  [2003] ECR I-7091, paragraph 76; in relation to measures adopted by the Commission, Case C-180/96 United Kingdom  v Commission  [1998] ECR I-2265, paragraphs 96 to 111, and Jippes , cited above, paragraph 113).
47. It is settled case-law that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued ( Jippes and Others , cited above, paragraph 81, and Lennox , cited above, paragraph 76).
48. In making that assessment, it is necessary to take into account all the protected interests involved and, in particular, the right to property (see, to that affect, Case C-112/00 Schmidberger  [2003] ECR I-5659, paragraph 79) and also the welfare requirements of animals (see, to that effect, Jippes and Others , paragraph 79).
50. Quite apart from the principle of proportionality, a Member State which adopts protective measures in accordance with Directive 90/425 must comply with the obligations which that directive establishes and the procedure which it lays down. In that regard, the fifth subparagraph of Article 10(1) of that directive provides that the measures are to be communicated immediately to the Commission and the other Member States ( Lennox , paragraph 75; on the obligation to communicate without delay and to cooperate loyally where conservation measures are adopted on the basis of Article 8 of Directive 90/425, see Van den Bor , paragraphs 45 to 48; see also, by analogy, in relation to measures adopted on the basis 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 (OJ 1989 L 395, p. 13), Case C-241/01 National Farmers’ Union  [2002] ECR I‑9079, paragraph 60).
52. It follows from all the foregoing that the questions referred by the College van Beroep voor het bedrijfsleven must be answered as follows:
Since foot-and-mouth disease is a disease which constitutes a serious hazard for animals, Article 10(1) of Directive 90/425 confers on Member States the power to adopt measures to control the disease in addition to those provided for in Directive 85/511, in particular the power to order the slaughter of animals belonging to a holding adjacent to or within a specific radius of a holding containing infected animals.
Such additional measures must be adopted in compliance with the objectives pursued by the Community rules in force and, more particularly, by Directive 85/511, the general principles of Community law, such as the principle of proportionality, and the obligation to communicate laid down in Article 10(1) of Directive 90/425.