National Farmers' Union v Secrétariat général du gouvernement.
Date: 2002-10-22
34 According to settled case-law, a decision adopted by the Community institutions which has not been challenged by its addressee within the time-limit laid down by the fifth paragraph of Article 230 EC becomes definitive as against that person (see, inter alia, Commission v Belgium, cited above, paragraphs 20 to 24; Commission v Greece, cited above, paragraphs 9 and 10; TWD Textilwerke Deggendorf, paragraph 13, and Case C-239/99 Nachi Europe [2001] ECR I-1197, paragraph 29). Such a rule is based in particular on the consideration that the periods within which legal proceedings must be brought are intended to ensure legal certainty by preventing Community measures which produce legal effects from being called in question indefinitely (Wiljo, paragraph 19).
35 The Court has also held that it follows from the same requirements of legal certainty that it is not possible for a recipient of State aid, forming the subject-matter of a Commission decision addressed directly solely to the Member State from which that beneficiary came, who could undoubtedly have challenged that decision and who allowed the mandatory time-limit laid down in this regard by the fifth paragraph of Article 230 EC to pass, to call in question the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities in implementation of that decision (TWD Textilwerke Deggendorf, paragraphs 17 and 20, and Wiljo, paragraphs 20 and 21). The Court has taken the view that to find otherwise would enable the recipient of the aid to overcome the definitive nature which a decision necessarily assumes, by virtue of the principle of legal certainty, once the time-limit laid down for bringing proceedings has passed (TWD Textilwerke Deggendorf, paragraph 18, and Wiljo, paragraph 21).
36 The same considerations of legal certainty explain why a Member State, which is a party to a dispute before a national court, is not permitted, before that court, to plead the unlawfulness of a Community decision addressed to it in respect of which it did not bring an action for annulment within the time-limit laid down for that purpose by the fifth paragraph of Article 230 EC.
37 As regards the possibility of invoking new factors which have arisen after the adoption of a Community measure in order to challenge the legality of that measure, it should be recalled that, in any event, the legality of a measure must be assessed on the basis of the factual and legal situation which existed at the time when it was adopted (Joined Cases 15/76 and 16/76 France v Commission [1979] ECR 321, paragraph 7, and SAM Schiffahrt and Stapf, paragraph 46). In particular, legality cannot depend on retrospective assessment of the efficacy of that measure (Jippes and Others, paragraph 84).
38 Moreover, irrespective of the fact that Article 16 of Decision 98/256 as amended provides for its regular review in the light of new scientific information, if a Member State takes the view that new factors give rise to an obligation for the Commission to adopt a fresh decision, it is for that State to follow the procedures prescribed by the Treaty and Community measures and, where appropriate, to have recourse to the procedure for failure to act provided for that purpose (order in France v Commission, cited above, paragraph 48).
39 Accordingly, the answer to the first question must be that a Member State which is an addressee of Decisions 98/692 and 1999/514 and which has not challenged the legality of those decisions within the time-limit laid down by the fifth paragraph of Article 230 EC does not have standing subsequently before a national court to invoke their unlawfulness in order to dispute the merits of an action brought against it.
The second question
48 According to settled case-law, where Community directives provide for the harmonisation of the measures necessary to ensure the protection of animal and human health and establish Community procedures to check that they are observed, recourse to Article 30 EC is no longer justified and the appropriate checks must be carried out and the measures of protection adopted within the framework outlined by the harmonising directive (Case 5/77 Tedeschi [1977] ECR 1555, paragraph 35; Case C-5/94 Hedley Lomas [1996] ECR I-2553, paragraph 18; Case C-112/97 Commission v Italy [1999] ECR I-1821, paragraph 54, and Case C-350/97 Monsees [1999] ECR I-2921, paragraph 24).
49 The Court has also held that even where a directive does not lay down any Community procedure for monitoring compliance or any penalties in the event of breach of its provisions, a Member State may not unilaterally adopt, on its own authority, corrective or protective measures designed to obviate any breach by another Member State of rules of Community law (Hedley Lomas, paragraphs 19 and 20).
60 It is in accordance with those provisions, which require the measures adopted to be notified without delay to the other Member States and to the Commission and close collaboration between the Member States and the Commission, that a Member State must act when faced with a situation endangering the health of its population (on the obligations of immediate notification and genuine cooperation when protective measures are adopted, see by analogy, in respect of Directive 90/425, Case C-428/99 Van den Bor [2002] ECR I-127, paragraphs 45 to 48).