Commission of the European Communities v French Republic.
Date: 2001-12-13
19 On 10 September 1999 the Commission wrote a letter to the French Republic in which it expressed its surprise at the referral to the Agence française de sécurité sanitaire des aliments (French Food Safety Agency, hereinafter the AFSSA) in connection with the implementation, in French law, of Decisions 98/256 as amended and 1999/514. The Commission urged the French Republic to comply rapidly with those decisions, so that the Commission would not be compelled to resort to the procedure laid down in Article 226 EC.
32 Paragraph 4 of the opinion is worded as follows:
Any decision must take into account:
- the elements of risk, which are plausible but not currently quantifiable, linked to the absence of certainty, first, as to the distribution of BSE infectivity in the body of bovine animals over time and, secondly, as to all the modes of transmission of the infectious agent in animals;
- the fact that steps to strengthen controls and monitor the machinery, such as to ensure that the measures adopted are actually complied with, do not, however, have any direct and immediate impact on those elements of risk;
- the need to provide that the measures taken may be reversed in order to stop immediately any exposure of consumers to a risk which is confirmed subsequently.
53 As to those submissions, it is to be observed that the function of the pre-litigation procedure laid down in Article 226 EC is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission. The proper conduct of that procedure constitutes an essential guarantee required by the Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (order in Case C-266/94 Commission v Spain [1995] ECR I-1975, paragraphs 16 and 17).
54 It follows from that function that the purpose of the letter of formal notice is, first, to delimit the subject-matter of the dispute and to indicate to the Member State, which is invited to submit its observations, the factors enabling it to prepare its defence and, second, to enable the Member State to comply before proceedings are brought before the Court (Case C-230/99 Commission v France [2001] ECR I-1169, paragraph 31).
64 As to those arguments, it should be noted that the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity to comply with its obligations under Community law or to avail itself of its right to defend itself against the complaints made by the Commission.
65 That dual purpose requires the Commission to allow Member States a reasonable period to reply to letters of formal notice and to comply with reasoned opinions, or, where appropriate, to prepare their defence. In order to determine whether the period allowed is reasonable, account must be taken of all the circumstances of the case. Thus, very short periods may be justified in particular circumstances, especially where there is an urgent need to remedy a breach or where the Member State concerned is fully aware of the Commission's views long before the procedure starts (Case C-328/96 Commission v Austria [1999] ECR I-7479, paragraph 51).
79 In this regard, it is to be remembered that, in accordance with settled case-law, the principle of collegiality is based on the equal participation of the Commissioners in the adoption of decisions, from which it follows in particular that decisions should be the subject of collective deliberation and that all the members of the college of Commissioners should bear collective responsibility at the political level for all decisions adopted (Case C-191/95 Commission v Germany [1998] ECR I-5449, paragraph 39).
80 The Court has stated that a decision by the Commission to bring infringement proceedings against a Member State must be the subject of collective deliberation by the college of Commissioners and that all the information on which that decision is based must be available to the members of the college (Commission v Germany, paragraph 48).
84 The same is true of the French Government's intention to bring proceedings before the Court. This involved a mere threat to bring proceedings of an unspecified legal nature which would not in any event have undermined the presumption that Decisions 98/692 and 1999/514 were lawful and the binding nature of those decissions (see, to that effect, Case C-261/99 Commission v France [2001] ECR I-2537, paragraph 26).
101 However, the system of remedies set up by the Treaty distinguishes between actions under Articles 226 EC and 227 EC, which are directed to obtaining a declaration that a Member State has failed to fulfil its obligations, and those under Articles 230 EC and 232 EC, which are directed to obtaining judicial review of measures adopted by the Community institutions or of failure to act on their part. Those remedies have different objectives and are subject to different rules. In the absence of a provision of the Treaty expressly permitting it to do so, a Member State cannot, therefore, properly plead the unlawfulness of decisions addressed to it as a defence to infringement proceedings arising out of its failure to implement those decisions (Case C-74/91 Commission v Germany [1992] ECR I-5437, paragraph 10, and Case C-261/99 Commission v France, cited above, paragraph 18).
Challenge to the DBES on the basis of the alleged non-compliance of United Kingdom beef and veal with Community legislation
121 Regulation No 820/97 which, despite its title, merely contained provisions regulating the power of the Member States to impose a labelling system was to remain in force until 31 December 1999. It provided in Article 19(1) that a compulsory beef-labelling system shall be introduced which shall be obligatory in all Member States from 1 January 2000 onwards. As the Court has recorded in its judgment delivered today in Case C-93/00 Parliament v Council [2001] ECR I-10119, at paragraphs 8 and 10, it was, however, not until 13 October 1999 that the Commission presented to the European Parliament and the Council two proposals for regulations, the first designed to establish a compulsory labelling system with effect from 1 January 2003 and the second temporarily to prolong the validity of Regulation No 820/97.
130 It is settled case-law that a Member State may not plead provisions, practices or circumstances existing in its internal legal system in order to justify a failure to comply with its obligations under Community law (Case C-217/88 Commission v Germany [1990] ECR I-2879, paragraph 26).
131 Furthermore, a Member State which encounters temporarily insuperable difficulties preventing it from complying with its obligations under Community law may plead force majeure only for the period necessary in order to resolve those difficulties (see, to that effect, Case 101/84 Commission v Italy [1985] ECR 2629, paragraph 16).