Affish BV v Rijksdienst voor de keuring van Vee en Vlees.
Date: 1997-07-17
24 It is well-established case-law that the right to determine the questions to be submitted to the Court devolves upon the national court or tribunal alone (see, in particular, Joined Cases C-134/91 and C-135/91 Kerafina v Greek State and Others [1992] ECR I-5699, paragraph 16). In this case, the procedural point raised by the Commission falls outside the subject-matter of the question referred.
30 On that point, the Court's case-law shows that, in order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see Case C-233/94 Germany v Parliament and Council [1997] ECR I-0000, paragraph 54).
42 According to the case-law of the Court, the freedom to pursue a trade or business is not absolute, but must be viewed in relation to its social function.  It may, therefore,  be restricted, especially in the context of a common organization of the market, provided that the restrictions imposed in fact correspond to objectives of general interest pursued by the Community and do not, in relation to the aim pursued, constitute disproportionate and intolerable interference, impairing the very substance of the right guaranteed (see, in particular, Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 78).  The importance of the objectives pursued may justify restrictions which have adverse consequences, and even substantial adverse consequences, for certain traders (see, on that point, Case C-331/88 R v MAFF, ex parte Fedesa [1990] ECR I-4023, paragraph 17).
43 Even if assessed in relation to the economic consequences which it may entail for importers in a situation such as that in which Affish finds itself, the contested decision cannot be regarded as constituting disproportionate interference, since it fulfils the requirements of proportionality laid down by Article 19(1) of Directive 90/675.  Those requirements are in fact intended to ensure that due attention is paid to the interests of traders.  That is all the more so in this case, as the protection of public health which the contested decision is intended to guarantee must take precedence over economic considerations (see, on that point, the order in Case C-180/96 R United Kingdom v Commission [1996] ECR I-3903, paragraph 93).
48 The Court has consistently held (see, in particular, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69) that misuse of powers may be defined 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.
57 In that regard, even if the Community had first created a situation capable of giving rise to legitimate expectations, an overriding public interest may preclude transitional measures from being adopted in respect of situations which arose before the new rules came into force but which are still subject to change (see, on that point, Case 74/74 CNTA v Commission [1975] ECR 533, paragraph 44; Case 84/78 Tomadini v Amministrazione delle Finanze dello Stato [1979] ECR 1801, paragraph 20; Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraphs 16 and 19; and the order in Case C-51/95 P Unifruit Hellas v Commission [1997] ECR I-727, paragraph 27).  The objective of the contested decision, namely the protection of public health, constitutes an overriding public interest of that kind.
63 In that respect, it should be noted that, whilst the statement of reasons required by Article 190 of the Treaty must show clearly and unequivocally the reasoning of the Community 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 its review, it is not required to go into every relevant point of fact and law.  The question whether a statement of reasons satisfies those requirements must be assessed with reference not only to its wording but also to its context and the entire body of legal rules governing the matter in question (see, in particular, Case C-122/94 Commission v Council [1996] I-881, paragraph 29).