G. J. Dokter, Maatschap Van den Top and W. Boekhout v Minister van Landbouw, Natuur en Voedselkwaliteit.
Date: 2006-06-15
24. The Court notes, as a preliminary point, that on 27 March 2001, that is, two days before the contested national decisions, the Commission adopted Decision 2001/246, based on Article 10 of Directive 90/425 and Article 13(3) of Directive 85/511. By that decision 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 laid down in Article 4 or Article 5 of Directive 85/511. According to the fourth recital in the preamble to that decision, the Kingdom of the Netherlands had, in addition to the measures within the framework of Directive 85/511, begun, as a precautionary measure, the pre-emptive killing of susceptible animals on holdings situated in close proximity to ‘infected or suspect’ holdings (see Joined Cases C-96/03 and C-97/03 Tempelman and van Schaijk  [2005] ECR I-1895, paragraphs 37 and 38).
27. Moreover, in paragraph 40 of the judgment in Tempelman and van Schaijk , the Court found 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. Decision 2001/246 constitutes a Community measure based, inter alia, on Article 10 of Directive 90/425.
34. This requirement of registration for laboratories must nevertheless be considered in the light of the core objective of Directive 85/511, which is the effective control of foot-and-mouth disease (see Tempelman and van Schaijk , paragraph 35), which implies, in particular, that measures must be taken upon the first sign of the disease. The Court notes in this regard that the effectiveness of such control requires that the public authorities are able to have a diagnosis established to detect the disease in a timely manner.
41. Although in preliminary ruling proceedings it is for the national court to establish, in the light of the considerations referred to in paragraphs 30 to 39 of this judgment, whether, despite such changes, ID-Lelystad must be regarded as being a laboratory referred to in Article 11(1) and Article 13(1) of Directive 85/511, the Court of Justice, which is called on to provide answers of use to the national court, may provide guidance based on the documents in the file and on the written and oral observations which have been submitted to it, in order to enable the national court to give judgment (see, to that effect, Case C-278/93 Freers and Speckmann  [1996] ECR I-1165, paragraph 24, and Case  C-77/02 Steinicke  [2003] ECR I‑9027, paragraph 59).
48. In the context of the main proceedings, it should be borne in mind that Article 10(1) of Directive 90/425 confers on Member States the power to adopt measures to control foot-and-mouth disease in addition to those provided for in Directive 85/511, in particular, as in the present case, 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 ( Tempelman and van Schaijk , paragraph 52).
49. However, those States may adopt those measures only in compliance with Community law, and they are thus required to respect the objectives pursued by the Community legislation in force, in particular such as those referred to in Directive 85/511 (see, to that effect, Tempelman and van Schaijk , paragraph 31).
71. Next, it is clear in this context that, in any event, irrespective of whether the results of the examinations have been provided by a laboratory which has the status of a laboratory listed in Annex B to Directive 85/511, the competent authority may adopt those measures only in compliance with the general principles of Community law, including in particular the principle of proportionality and fundamental rights (see, to that effect, Tempelman and van Schaijk , paragraph 31).
72. In that connection, it should be borne in mind that, according to settled case-law, the principle of proportionality requires that measures implemented through Community provisions should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (Case C-434/02 Arnold André  [2004] ECR I-11825, paragraph 45; Case C-210/03 Swedish Match   [2004] ECR I-11893, paragraph 47; and Joined Cases C-453/03, C‑11/04, C-12/04 and C‑194/04 ABNA and Others  [2005] ECR I-0000, paragraph 68).
74. It is equally settled case-law that respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views on the evidence on which the contested decision is based (see, inter alia, Case C-32/95 P Commission  v Lisrestal and Others  [1996] ECR I‑5373, paragraph 21; Case C‑462/98 P Mediocurso  v Commission  [2000] ECR I-7183, paragraph 36; and Case C‑287/02 Spain  v Commission  [2005] ECR I-5093, paragraph 37). Given the important consequences for breeders flowing from decisions taken on the basis of Article 5 of Directive 85/511, Article 2 of Decision 2001/246 and Article 10(1) of Directive 90/425, that principle requires, in connection with the control of foot-and-mouth disease, that the addressees of such decisions be, in principle, placed in a position in which they may effectively make known their views on the evidence on which the contested measure is based.
75. It should, however, be borne in mind that fundamental rights, such as respect for the rights of the defence, do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not constitute, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. Objectives which may justify such restrictions include the protection of public health (see, to that effect, Case C-62/90 Commission  v Germany  [1992] ECR I-2575, paragraph 23, and Case C‑44/94 Fishermen’s Organisations and Others  [1995] ECR I-3115, paragraph 55).