United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities.
Date: 1998-05-05
27 It is settled case-law that, in order for an act of the Council or the Commission to form the subject-matter of an action for annulment, it must be intended to have legal effects (Case 114/86 United Kingdom v Commission [1988] ECR 5289, paragraph 12).
28 That is not the position in the case of an act of the Commission which reflects its intention, or that of one of its departments, to follow a particular line of conduct (United Kingdom v Commission, cited above, paragraph 13) or which merely confirms a previous act in such a way that annulment of the confirmatory act would follow from annulment of the previous act (Case 26/76 Metro v Commission [1977] ECR 1875, paragraph 4).
40 Rejecting the allegation of misuse of powers, the Commission observes that the reasons for the contested decision are clear from the recitals in its preamble and are perfectly consistent with the measures adopted.  It maintains that the fifth recital must be considered as a whole, and not merely with reference to the phrase relating to consumer concern.
42 The Council considers that, in the present case, the Commission based its decision on the best available technical and scientific advice, by means of the obligatory consultation of the Standing Veterinary Committee and also by exercising its option to consult the Scientific Veterinary Committee.  In any event, the Commission could not have ignored the information made public by SEAC.  In those circumstances, it did not make any manifest error in its initial assessment of the risk to either animal or human health.
50 According to Directives 90/425 and 89/662, the Commission's power to adopt safeguard measures is justified by the fact that a zoonosis, disease or other cause is likely to constitute a serious hazard.
51 The objective of Directives 90/425 and 89/662 is to enable the Commission to intervene rapidly in order to prevent the propagation of a disease affecting animals or a threat to human health.  It would be contrary to that objective if the Commission were to be precluded from adopting the necessary measures in response to the publication of new information significantly altering what is known about a disease, particularly as regards its transmissibility or its consequences, on the ground that the disease had been in existence for a long time.
52 In the present case, the new information contained in the SEAC announcements was that a link between BSE and Creutzfeldt-Jakob disease had ceased to be a theoretical hypothesis and had become a possibility.  According to `the most likely explanation', the cases of Creutzfeldt-Jakob disease were linked to exposure to BSE before the introduction of the specified bovine offal ban in 1989.
53 Despite the fact that BSE previously existed, the new information provided by SEAC significantly altered the perception of the risk which that disease represented for human health, and thus authorised the Commission to adopt safeguard measures in accordance with Directives 90/425 and 89/662.
60 Lastly, it must be recalled that, since the Commission enjoys a wide measure of discretion, particularly as to the nature and extent of the measures which it adopts, the Community judicature must, when reviewing such measures, restrict itself to examining whether the exercise of such discretion is vitiated by a manifest error or a misuse of powers or whether the Commission did not clearly exceed the bounds of its discretion (Case 98/78 Racke v Hauptzollamt Mainz [1979] ECR 69, paragraph 5).
62 Having regard, first, to the uncertainty as to the adequacy and effectiveness of the measures previously adopted by the United Kingdom and the Community and, second, to the risks regarded as a serious hazard to public health (see paragraph 63 of the order of 12 July 1996 in Case C-180/96 R United Kingdom v Commission, cited above), the Commission did not clearly exceed the bounds of its discretion in seeking to contain the disease within the territory of the United Kingdom by banning the export from that territory to other Member States and to third countries of bovine animals, meat of bovine animals and derived products.
63 Although a measure of that kind affects the free movement of goods, it is not necessarily contrary to Community law, since it is adopted in accordance with directives the very aim of which is to ensure the free movement of agricultural products (see, to that effect, Case 37/83 Rewe-Zentrale v Landwirtschaftskammer Rheinland [1984] ECR 1229, paragraph 19), provided that it respects the general principles of Community law, in particular the principle of proportionality, which will be examined in the context of the fifth plea.
64 As regards the plea alleging misuse of powers, it must be recalled that misuse of powers is defined by settled case-law as the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see, in particular, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69).
70 Whilst it is true, as the Court has consistently held, that the statement of grounds required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and the Court to exercise its power of review, it is not necessary for details of all relevant factual and legal aspects to be given.  The question whether the statement of the grounds for a decision meets the requirements of Article 190 must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.  Moreover, the degree of precision of the statement of the reasons for a decision must be weighed against practical realities and the time and technical facilities available for making the decision (see, in particular, Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraphs 15 and 16).
93 Finally, the Commission observes that, in order to assess the proportionality of the contested decision, it is necessary to examine it in the light of the package of measures adopted, costing some ECU 2.5 billion (including adjustment of the intervention thresholds, exceptional support measures in the United Kingdom and in other Member States, calf processing premiums, income support for beef and veal farmers, special measures for exporters, private storage aid for veal, export refunds, measures to promote and market quality beef and veal, and research).
96 It must be recalled that the principle of proportionality, which is one of the general principles of Community law, requires that measures adopted by Community institutions 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 (Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 13, and Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni [1994] ECR I-4863, paragraph 41).
97 With regard to judicial review of compliance with the abovementioned conditions, in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 to 43 of the Treaty.  Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (Fedesa and Others, cited above, paragraph 14, and Crispoltoni, cited above, paragraph 42).
98 At the time when the contested decision was adopted, there was great uncertainty as to the risks posed by live animals, bovine meat and derived products.
99 Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent.
100 That approach is borne out by Article 130r(1) of the EC Treaty, according to which Community policy on the environment is to pursue the objective inter alia of protecting human health.  Article 130r(2) provides that that policy is to aim at a high level of protection and is to be based in particular on the principles that preventive action should be taken and that environmental protection requirements must be integrated into the definition and implementation of other Community policies.
101 The contested decision was adopted as an `emergency measure' `temporarily' banning exports (fifth recital in the preamble).  Moreover, the Commission acknowledges in the preamble to the decision the need for the significance of the new information and the measures to be taken to be subjected to detailed scientific study and, consequently, the need to review the contested decision following an overall examination of the situation (seventh recital).
102 As regards live animals, and in the light of the export ban already imposed by Decision 94/474, the export ban resulting from the contested decision relates only to cattle aged under six months born to cows not known or suspected to be affected by BSE.  However, the scientific uncertainty concerning the manner in which BSE is transmitted, particularly as regards its transmissibility through the mother, coupled with the lack of a system for tagging animals and controlling their movements, has meant that there can be no certainty that the mother of a calf is completely free from BSE or, even if she is, that the calf itself is completely unaffected by the disease.
103 Consequently, the ban on the export of live bovine animals cannot be regarded as a manifestly inappropriate measure.
104 As regards bovine meat, it is sufficient to recall that, because the disease has a long incubation period, all animals aged six months or more had to be treated as potentially infected with BSE, even if they showed no signs of the disease.  Special measures had been adopted in the United Kingdom, relating to the slaughtering of animals and the cutting of meat.  However, it was only from May 1995 onwards that unannounced visits were made to United Kingdom undertakings to check compliance with those measures (Bovine Spongiform Encephalopathy in Great Britain, A Progress Report, November 1995, paragraph 16); those checks revealed that a significant proportion of slaughterhouses were failing to comply with the legislation.
105 Moreover, as is apparent from the report of the Scientific Veterinary Committee of 11 July 1994, meat invariably contains some residual nervous and lymphatic tissues.  Similarly, according to the statement of one of the members of that committee annexed to the opinion of the Scientific Veterinary Committee of 22 March 1996, it was not possible, on the basis of the available scientific data, to exclude the risk of transmission of the infection through muscle meat (see paragraph 13 of this judgment).
106 It follows that the ban on exports of bovine meat likewise cannot be regarded as a manifestly inappropriate measure.
107 As regards semen and embryos, it is sufficient to recall that when the contested decision was adopted the risk of vertical transmission had not been definitively excluded.
108 In so far as other products, such as tallow and gelatin, are concerned, the Commission must be regarded as having displayed appropriate caution by banning the export of those products pending completion of an overall examination of the situation.
109 The ban on exports to third countries was appropriate since it ensured the effectiveness of the measure by containing within the territory of the United Kingdom all animals and products likely to be infected with BSE.  It would not have been possible, by limiting the number of third countries from which imports were authorised and by imposing import controls, wholly to exclude the possible re-importation of meat in another form or to prevent deflections of trade.
110 The United Kingdom has suggested possible alternative measures.  However, in view of the seriousness of the risk and the urgency of the situation, the Commission did not react in a manifestly inappropriate manner by imposing, on a temporary basis and pending the production of more detailed scientific information, a general ban on exports of bovine animals, bovine meat and derived products.
111 Consequently, the plea alleging breach of the principle of proportionality is unfounded.
The sixth plea, alleging infringement of Articles 6 and 40(3) of the Treaty
114 According to settled case-law, the principle of non-discrimination between producers or consumers in the Community laid down in the second subparagraph of Article 40(3) of the Treaty means that comparable situations are not to be treated differently and that different situations are not to be treated alike unless such treatment is objectively justified (see, in particular, Case 203/86 Spain v Council [1988] ECR 4563, paragraph 25).
120 It must be recalled in that regard that, according to the third subparagraph of Article 129(1) of the EC Treaty, health protection requirements are to form a constituent part of the Community's other policies and that, as the Court has consistently held, efforts to achieve objectives of the common agricultural policy cannot disregard requirements relating to the public interest such as the protection of consumers or the protection of the health and life of humans and animals, requirements which the Community institutions must take into account in exercising their powers (Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 12).
121 Moreover, the protection of health contributes to the achievement of the objectives of the common agricultural policy laid down in Article 39(1) of the Treaty, particularly where agricultural production is directly dependent on demand amongst consumers who are increasingly concerned to protect their health.
133 It is settled case-law that Article 43 of the Treaty is the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the achievement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty (Case 68/86 United Kingdom v Council, cited above, paragraph 14, Case 131/86 United Kingdom v Council [1988] ECR 905, paragraph 19, Case C-131/87 Commission v Council [1989] ECR 3743, paragraph 28, and Fedesa and Others, cited above, paragraph 23).
134 The Court has also held that, where a directive constitutes an essential means of increasing agricultural productivity (an objective laid down in Article 39(1)(a) of the Treaty), it must be adopted on the basis of Article 43 of the Treaty even though, in addition to applying essentially to products falling within Annex II, it also covers incidentally other products not included in that annex (Case C-11/88 Commission v Council [1989] ECR 3799, paragraph 15, summary publication).
GROUNDS CONTINUED UNDER DOC.NUM: 696J0180.1