Giovanni Pesce and Others v Presidenza del Consiglio dei Ministri - Dipartimento della Protezione Civile and Others.
Date: 2016-06-09
24


It should be noted that the Statute of the Court of Justice of the European Union and the Rules of Procedure make no provision for the interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union to submit observations in response to the Advocate General’s Opinion (see, inter alia, judgment of 4 September 2014 in Vnuk, C‑162/13, EU:C:2014:2146, paragraph 30).
25


Under the second paragraph of Article 252 TFEU, it is the duty of the Advocate-General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice, require his involvement. The Court is not bound either by the Advocate General’s Opinion or by the reasoning on which it is based (judgment of 3 December 2015, Banif Plus Bank, C‑312/14, EU:C:2015:794, paragraph 33).
26


Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure (see, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 26).
27


Nevertheless, pursuant to Article 83 of its Rules of Procedure, the Court may, at any time after hearing the Advocate General, order the reopening of the oral part of the procedure, in particular if it considers that it lacks sufficient information or where the case must be decided on the basis of an argument which has not been debated between the interested parties (see, to that effect, judgment of 7 April 2016, Marchon Germany, C‑315/14, EU:C:2016:211, paragraph 19).
46


In that regard, it is settled case-law that, within the framework of the Commission’s implementing power, the limits of which must be determined by reference amongst other things to the essential general aims of the legislative act in question, the Commission is authorised to adopt all the measures which are necessary or appropriate for the implementation of that act, provided that they are not contrary to it. Furthermore, it follows from the first paragraph of Article 290 TFEU in conjunction with the second paragraph of Article 291 TFEU that in exercising an implementing power, the Commission may neither amend nor supplement the legislative act, even as to its non-essential elements (judgment of 15 October 2014, Parliament v Commission, C‑65/13, EU:C:2014:2289, paragraphs 44 and 45).
47


Furthermore, it should be noted that the EU legislature must take account of the precautionary principle, according to which, where there is uncertainty as to the existence or extent of risks to human health, protective measures may be taken without having to wait until the reality and seriousness of those risks become fully apparent. Where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures (see, inter alia, judgment of 17 December 2015, Neptune Distribution, C‑157/14, EU:C:2015:823, paragraphs 81 and 82).
48


That principle must, in addition, be applied having regard to the principle of proportionality, which requires that measures adopted by EU institutions should not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question, and where 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 (see, inter alia, judgment of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 29).
49


As regards the judicial review of respect for those principles, the Court has previously held that it must be acknowledged that the Commission has a wide discretion when it adopts risk management measures. That procedure entails political choices on its part and complex assessments. The validity of a measure adopted in that area can be affected only if the measure is manifestly inappropriate (see, inter alia, judgment of 22 December 2010, Gowan Comércio Internacional e Serviços, C‑77/09, EU:C:2010:803, paragraph 82).
50


In that regard, it should also be recalled that the validity of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when that measure was adopted and cannot therefore depend on retrospective assessments of its efficacy. Where the EU legislature is obliged to assess the future effects of rules to be adopted and those effects cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question (see, inter alia, judgment of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 50 and the case-law cited).
51


That said, according to case-law, when new elements change the perception of a risk or show that that risk can be contained by less restrictive measures than the existing measures, it is for the institutions and in particular the Commission, which has the power of legislative initiative, to bring about an amendment to the rules in the light of the new information (judgment of 12 January 2006, Agrarproduktion Staebelow, C‑504/04, EU:C:2006:30, paragraph 40). Accordingly, in the present case, it is for the Commission, under Article 16(3) of Directive 2000/29, to assess periodically, as has already been stated in paragraph 44 above, whether the measures taken in order to address the particular risk to plant health must be amended or repealed.
53


It should be noted that Directive 2000/29 aims to ensure a high level of phytosanitary protection against the bringing into the European Union of harmful organisms in produce imported from non-member countries (see, to that effect, judgment of 30 September 2003, Anastasiou and Others, C‑140/02, EU:C:2003:520, paragraph 45).
54


In the present case, in accordance with that objective, Article 6(2)(a) of Implementing Decision 2015/789 aims, as appears from recital 4 thereof, to eradicate the bacterium Xylella and to prevent its further spread beyond the Puglia Region, by strengthening the measures laid down in Implementing Decisions 2014/87 and 2014/497, following the notification by the Italian authorities of the presence of that bacterium in the province of Lecce.
55


It is common ground that health protection and the completion in the sector concerned of the agricultural internal market constitute legitimate objectives in the public interest pursued by EU legislation (see, inter alia, judgment of 17 October 2013, Schaible, C‑101/12, EU:C:2013:661, paragraph 35 and the case-law cited).
68


Nevertheless, far from putting the proportionality of Article 6(2)(a) of Implementing Decision 2015/789 into question, the fact that the Commission limited the obligation to remove host plants at a radius of 100 metres, although the vectors are capable of spreading the bacterium beyond that distance, shows, on the contrary, that that obligation was limited to what is necessary for attaining the objective sought (see, by analogy, judgment of 12 July 2001, Jippes and Others, C‑189/01, EU:C:2001:420, paragraph 120).
84


In that regard, the Court points out that it has previously held that the EU legislature may consider, in the context of its broad discretion in the field of agricultural policy, that full or partial compensation is appropriate for owners of farms on which animals have been destroyed and slaughtered. Nonetheless, the Court considered that the existence, in EU law, of a general principle requiring compensation to be paid in all circumstances cannot be inferred from that fact (see judgment of 10 July 2003, Booker Aquaculture and Hydro Seafood, C‑20/00 and C‑64/00, EU:C:2003:397, paragraph 85).
88


It should be noted that, while the statement of reasons required by Article 296 TFEU must show clearly and unequivocally the reasoning of the EU authority which adopted the contested measure, so as to enable the persons concerned to ascertain the reasons for it and to enable the Court to exercise judicial review, it is not required to go into every relevant point of fact and law (see judgment of 18 June 2015 in Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 58). This is a fortiori the case where the Member States have been closely associated with the process of drafting that measure and are thus aware of the reasons underlying it (see, inter alia, judgment of 9 September 2004, Spain v Commission, C‑304/01, EU:C:2004:495, paragraph 50).
89


In addition, as regards measures of general application, the statement of reasons may be limited to indicating, first, the general situation which led to its adoption and, second, the general objectives which the measure at issue is intended to achieve (see, inter alia, judgment of 9 September 2004, Spain v Commission, C‑304/01, EU:C:2004:495, paragraph 51).
90


Consequently, if the contested measure clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution (see, inter alia, judgment of 18 June 2015, Estonia v Parliament and Council, C‑508/13, EU:C:2015:403, paragraph 60).