Pharos SA v Commission of the European Communities.
Date: 1999-11-18
19 On 23 April 1996 the Commission sent a letter to the CVMP informing it of its decision to stay the procedure for including somatosalm in Annex II until further scientific information had been obtained. It explained that there had been a certain amount of opposition to somatosalm in the Adaptation Committee because the substance could be used to boost growth. It therefore asked the CVMP for a further opinion as to whether abuses of the product were possible.
23 The Council did not act on that proposal within the period of three months provided for by Article 8(3)(c) of the Regulation.'
6 It is against that background that the appellant, on 8 July 1996, brought an application before the Court of First Instance for a declaration that the Commission unlawfully failed to pursue the procedure for including somatosalm produced by the appellant in the list of substances not subject to an MRL in Annex II and for an order that the Commission make good the damage which it considered itself to have suffered through such inaction.
7 By the contested judgment the Court of First Instance declared that there was no need to adjudicate on the application for a declaration of failure to act, the subject-matter of the application for a declaration of failure to act having ceased to exist since, on 25 September 1996, the Commission submitted to the Council a proposal for a regulation including somatosalm in Annex II, and also dismissed the claim for damages as unfounded.
The appeal
8 The appellant seeks the partial annulment of the contested judgment in so far as it dismissed its claim for damages and an order that the Commission bear the costs of both sets of proceedings or, in the alternative, that the case be referred back to the Court of First Instance for judgment.
9 In support of its appeal the appellant relies on two pleas alleging misinterpretation, first, of Article 8(3)(b) of Regulation No 2377/90, which provides that `the Commission shall without delay propose to the Council the measures to be adopted', and, second, of the Regulation itself, since it does not confer on the Commission the right to seek a further opinion from the CVMP.
10 Fedesa asks the Court to grant the forms of order sought by the appellant and to order the Commission to bear the costs of its intervention.
11 The Commission contends that the appeal should be dismissed and that the appellant should be ordered to pay the costs and Fedesa to pay its own costs.
Arguments of the parties
12 By its first plea the appellant criticises the finding of the Court of First Instance at paragraph 65 of the contested judgment that the expression `without delay' in Article 8(3)(b) of Regulation No 2377/90, whilst requiring the Commission to act swiftly, allows it some latitude.
13 Its principal argument is that it is clear from the various language versions and from the general structure of Regulation No 2377/90 that the Commission is not allowed a time margin for submitting a proposal to the Council.
14 In the alternative, the appellant submits that, even if the interpretation given to Article 8(3)(b) by the Court of First Instance were to be upheld, a period of 11 months clearly does not correspond to the idea of `without delay'. In holding that the Commission had met the requirement to act swiftly when it had remained inactive for six months and not adopted the measure it was required to take until 11 months had elapsed, the contested judgment was not properly reasoned.
15 By its second plea the appellant submits that the Court of First Instance erred in stating in paragraph 69 of the contested judgment that, where it is confronted with a matter which is highly complex and sensitive both scientifically and politically, the Commission has the right to seek a further opinion from the CVMP even though Regulation No 2377/90 is silent on the point. On the contrary, the procedure laid down by Articles 6 and 8 of Regulation No 2377/90 is clear, precise and unconditional in that regard, makes exhaustive provision for all possible situations and does not allow the Commission to act otherwise.
16 The appellant submits that the fact that, as stated in paragraph 70 of the contested judgment, the Commission, as a result of the further opinion of the CVMP, `greatly facilitated the work of the Council, which, having noted the further opinion of the CVMP, did not oppose the inclusion of somatosalm in Annex II', is of no relevance in this context. In any event, the interpretation of the facts by the Court of First Instance is clearly wrong. The further opinion had no influence on the position taken by the Member States.
17 Fedesa argues further that the judgment of the Court of First Instance in Case T-120/96 Lilly Industries v Commission [1998] ECR II-2571, paragraph 90, makes clear that the Commission was not legally entitled to base its decision rejecting the request for inclusion of the substance in Annex II on the existence of the moratorium on BST, particularly as that moratorium was not introduced to protect public health but for socio-economic reasons. According to paragraph 91 of the judgment in Lilly Industries v Commission, the Commission was not authorised to take account of such considerations.
Findings of the Court
18 It is appropriate to consider these two pleas together.
19 It should first be observed that, according to consistent case-law, in interpreting a provision of Community law it is necessary to consider its wording, its context and its aims (Case 337/82 St. Nikolaus Brennerei [1984] ECR 1051, paragraph 10, and Case C-84/95 Bosphorus [1996] ECR I-3953, paragraph 11).
20 Nothing in the wording of Article 8(3)(b) of Regulation No 2377/90 suggests any conclusion regarding the length of time indicated by the expression `without delay', other than that, while a certain degree of rapidity is required, the Commission is not required to act within a precise period of time nor at once, contrary to the appellant's submission.
21 As regards context and aims, it should be observed that, by Article 8 of Regulation No 2377/90, the Council conferred implementing powers on the Commission, in accordance with Articles 1 and 2, procedure III, Variant (b), of Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1987 L 197, p. 33).
22 It is clear from Article 8(3) of Regulation No 2377/90 that, once the Commission has proposed to it the measures to be taken, the Council has its full legislative powers, including the right, provided for by Article 189a of the EC Treaty (now Article 250 EC), to amend the Commission's proposal by unanimous decision. However, under Article 8(3)(c) of Regulation No 2377/90, if, after a period of three months, the Council has not acted on the proposal, the Commission once again has the power to adopt the proposed measures, unless the Council has decided against them by a simple majority.
23 It follows that, where the measures proposed by the Commission are not in conformity with the opinion of the Adaptation Committee, or where no opinion is delivered, the Commission is not obliged to submit the same measures, without amendment, to the Council.
25 It follows that the Court of First Instance was right to hold, at paragraph 65 of the contested judgment, that Article 8(3)(b) of Regulation No 2377/90 does not specify exactly the period within which the Commission must propose to the Council the measures to be adopted and that in using the expression `without delay' the Community legislature, whilst requiring it to act swiftly, did allow the Commission a certain degree of latitude.
26 It also follows that the Court of First Instance was right to hold, at paragraph 69 of the contested judgment, that where it is confronted with a matter which is highly complex and sensitive the Commission must be accorded the right to seek a further opinion from the CVMP even though Regulation No 2377/90 is silent on the point.
28 As regards the appellant's claim that the Court of First Instance was wrong to take the view that the further opinion of the CVMP had an influence on the position taken by the Member States in the Council, it suffices to note that this claim calls into question the appraisal of the facts by the Court of First Instance, which the Court of Justice has no jurisdiction to review on appeal (see Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 21).