Important legal notice

61988C0070(01)

European Court reports 1991 Page I-04529 Swedish special edition Page I-00405 Finnish special edition Page I-00423

Opinion of the Advocate-General

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Mr President, Members of the Court, 1. Does Article 31 of the EAEC Treaty authorize the Council to adopt a regulation laying down maximum permitted levels of contamination of foodstuffs and of feedingstuffs which are a threat to public health where the laying down of such maximum levels has the effect of preventing the placing of such foodstuffs on the market? Or must such a regulation be based also (even exclusively) on Article 100a of the EEC Treaty? That seems to me to be, reduced to its essentials, the legal problem which the Court is asked to settle in this case.

Recapitulation of the previous stages of the proceedings; admissibility of the submissions put forward

By application lodged at the Court Registry on 4 March 1988, the European Parliament has brought an action under Article 173 of the EEC Treaty and Article 146 of the EAEC Treaty for a declaration that Council Regulation (Euratom) No 3954/87 of 22 December 1987 laying down maximum permitted levels of radioactive contamination of foodstuffs and feedingstuffs following a nuclear accident or any other case of radiological emergency (1) is void. The Parliament has put forward three submissions in support of its application: the regulation at issue has no appropriate legal basis; the Council was not empowered to adopt a regulation but only a directive; and the Council was wrong in failing to delegate implementing powers to the Commission.

On 11 April 1988 the Council raised an objection of inadmissibility against the Parliament' s application. By interlocutory judgment of 22 May 1990 (2) the Court dismissed that objection, thus accepting that the Parliament was empowered, at least under certain conditions, to bring an action for a declaration that the measure was void. In its judgment the Court emphasized the basic importance of judicial review of the institutional balance created by the Treaties. In fact, within the framework of the Community decision-making process the Treaties confer a number of prerogatives on each of the institutions and assign to the Court the duty of ensuring that each institution exercises its powers with due regard for the powers of the others. (3) It was on the basis of these considerations that the Court recognized that the Parliament had a limited right of action. It is true that, as the Court pointed out, the wording of the EEC and EAEC Treaties does not make it possible to ascribe to the Parliament the status of a privileged applicant. (4) The Parliament' s right of action recognized by the interlocutory judgment has a more limited scope: in fact the Court declared that an action brought by the Parliament for a declaration that an act of the Council or the Commission is void is admissible provided that the action seeks only to safeguard the Parliament' s prerogatives and is founded only on submissions alleging their infringement. (5)

The admissibility of the three submissions put forward by the Parliament must be determined in the light of the foregoing considerations.

The admissibility of the first submission was expressly confirmed in the interlocutory judgment. (6) By claiming that the regulation at issue ought to have been based on Article 100a of the EEC Treaty rather than on Article 31 of the EAEC Treaty, the Parliament is safeguarding its prerogatives in the inter-institutional decision-making process. In fact, under Article 100a of the EEC Treaty the Council is to adopt regulations and directives in cooperation with the European Parliament, which ensures for the Parliament much closer and more active participation than the consultation procedure envisaged by Article 31(2) of the EAEC Treaty.

The admissibility of the second and third submissions is much more questionable and the representative of the Parliament stated at the hearing that he was leaving this point to the judgment of the Court. The Parliament' s second submission concerns the legal form of the measure in question: even if Article 31 of the EAEC Treaty offers a sufficient legal basis for this regulation, the Parliament thinks that nevertheless does not authorize the Council to adopt regulations, but only directives. I do not think this submission is intended to safeguard the Parliament' s prerogatives or relates to an infringement of them. The Parliament' s prerogatives in the decision-making process are not affected by whether the Council selects a regulation or a directive as the legal instrument.

The third submission, put forward in the alternative by the Parliament, is based on the idea that Article 100a of the EEC Treaty does in fact represent the correct legal basis for the measure in question (in other words, that the Parliament' s first submission is well founded). In that case, the Parliament continues, the Council has committed a further irregularity by not delegating implementing powers to the Commission and by thus infringing one of its own decisions (namely the comitology decision, 87/373/EEC (7) ). Neither in the written nor in the oral procedure has the Parliament indicated in what way its prerogatives have been affected by such an irregularity. I therefore suggest that the Court should reject the Parliament' s second and third submissions and concentrate its analysis on the first submission relating to the legal basis for the measure at issue.

The dispute as to the Parliament' s reply

Before I can start considering the Parliament' s first submission, I must deal with the two objections raised by the Council against the arguments put forward by the Parliament in its reply. In the first place the Council finds it unacceptable that the Parliament should consider in detail in its reply the arguments which the Commission has put forward in its statement in intervention. (8) It claims in particular that the Parliament is not entitled to act in this way and is misusing the reply, the purpose of which is to clarify the issue between the parties. In support of its objection the Council claims that in the Rules of Procedure in their present form there is no right to reply to the observations submitted by an intervener; the only right of reply is in the oral procedure. The Council takes the view that this interpretation is corroborated by the amendment of 1979 to the Rules of Procedure. Before that amendment Article 93(5) of the Rules of Procedure expressly provided that the President of the Court was to prescribe a period within which the parties might reply to the observations made by an intervener. However, that provision was deleted in 1979 and the Council therefore concludes that it is no longer permissible to reply in writing to a statement in intervention.

A second similar objection to the Parliament' s reply put forward by the Council goes more to the substance of the case. The Council stresses that the reply did not deal, or hardly dealt, with the arguments contained in the defence and claims that it is therefore unable to submit a valid rejoinder.

The Council' s objections do not seem to me to be justified. It is true that the Rules of Procedure no longer give the parties the right to reply by separate written observations to the statement submitted by an intervener. (9) However, to deduce that a reply cannot comment in any way on such a statement seems to me to be going too far, particularly as the only restriction of substance which the Rules of Procedure prescribe for the reply is to the effect that no new plea in law may be introduced. The reply submitted in this case by the Parliament contains a number of new arguments in support of the pleas in law already put forward in its application and discusses a number of arguments put forward against those pleas by either the Council or the Commission. That does not seem to me to be unacceptable. For the same reasons I cannot accept, either, the idea on which the Council' s second objection is based, namely that a reply can deal only with the points raised in the defence.

Even if there were some merit in the Council' s arguments, I should still not like to recommend the Court to reject the arguments put forward in the Parliament' s reply. In fact this case concerns the maintenance of the balance of powers between the institutions by means of the Court' s review of the appropriate legal basis for a measure. In my view the importance of selecting the appropriate legal basis militates against the rejection, on the grounds of a (hypothetical) breach of the Rules of Procedure, of the arguments put forward by one party. In fact these are questions of public policy, which means that the Court can even, where necessary, raise a new issue of its own motion. I may refer on this point to the judgment in Case C-62/88. (10)

The framework of the discussion as regards the legal basis

In the first place I would point out that the challenge to the regulation at issue is not purely formal. As I have already said, the Parliament defends its choice of Article 100a of the EEC Treaty instead of Article 31 of the EAEC Treaty as the legal basis on the ground that the first-mentioned provision assures it of a closer and more active participation in the inter-institutional decision-making process. In other words, the procedural requirements of Article 31 of the EAEC Treaty are different from those of Article 100a of the EEC Treaty, which means that the Council' s decision to use, as the legal basis, not Article 100a of the EEC Treaty but Article 31 of the EEC Treaty, may affect the content of the regulation at issue. It follows that if the Parliament' s submission is well founded the regulation at issue must be declared void. (13)

Secondly, I should now like to consider briefly the two legal bases on which the issue between the parties is centred. Article 31 of the EAEC Treaty is part of Title Two, Chapter III, of the EAEC Treaty. That chapter is entitled "Health and Safety" and is linked with the preamble to the Treaty, in which the signatory States express themselves as "Anxious to create the conditions of safety necessary to eliminate hazards to the life and health of the public". That passage in the preamble is further developed in Article 2(b) of the Treaty, which reads as follows:

"In order to perform its task, the Community shall, as provided in this Treaty:

(b) establish uniform safety standards to protect the health of workers and of the general public and ensure that they are applied... "

The health and safety policy is set out under Title Two, Chapter III, of the EAEC Treaty, which comprises 10 articles. Articles 30 and 31 above all seem to me to be important in this case. Article 30 deals with the major health and safety measures: the laying down of "basic standards". I shall quote the article in its entirety:

"Basic standards shall be laid down within the Community for the protection of the health of workers and the general public against the dangers arising from ionizing radiations.

The expression 'basic standards' means:

(a) maximum permissible doses compatible with absolute safety;

(b) maximum permissible levels of exposure and contamination;

(c) the fundamental principles governing the health surveillance of workers."

Article 31, selected by the Council as the legal basis for the regulation at issue, next describes the procedure for establishing such "basic standards": the basic standards are to be elaborated by the Commission after it has obtained the opinion of a group of persons appointed by the Scientific and Technical Committee from among scientific experts, and in particular public health experts, in the Member States. The Commission is to obtain the opinion of the Economic and Social Committee on these basic standards. After consulting the Parliament, the Council, acting by a qualified majority, is to establish the basic standards.

Article 100a of the EEC Treaty, which the European Parliament recommends as the legal basis for the regulation at issue, is better known. It represents the key provision of the EEC Treaty allowing the Council to adopt "measures" (in other words, both regulations and directives) "for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market". As may be seen from Article 8a of the EEC Treaty, the expression "internal market" comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaty.

Thirdly, it seems to me appropriate to mention the reference framework in which the arguments put forward by the parties should be assessed.

As may be seen from the case-law of the Court, a measure of a Community institution must be considered from two points of view to determine whether it is validly based in law. On the one hand account must be taken of the aims and content of the measure in question; on the other, consideration must be given to the scope of the provision of the Treaty on which the measure is based. It is precisely on these two points that the parties in this case disagree: they analyse differently the aims and content of the regulation at issue and they disagree also as to the nature of the measures which the Council may adopt under Article 31 of the EAEC Treaty.

The European Parliament takes the view that the purpose of the regulation at issue is not only to secure the health and safety of the public, but that it is just as important as far as the operation of the internal market is concerned. In view of this double purpose, the regulation could not, the Parliament believes, be adopted on the basis of Article 31 of the EAEC Treaty, since that Treaty in general and the policy which it lays down on health and safety in particular have a much narrower scope. Thus the Council ought to have based the regulation at issue, either in addition or exclusively, on Article 100a of the EEC Treaty.

The Council, supported on this point by the Commission and the United Kingdom, claims that the regulation at issue is aimed primarily at protecting the health and safety of the public and that the protective measures which it lays down have only an unintentional and incidental effect on the free movement of goods within the Community. Moreover these parties emphasize the need for a broad interpretation of the health and safety measures laid down by Article 30 et seq. of the EAEC Treaty; they claim that the fact that health and safety measures for protecting against ionizing radiations have an incidental effect on the free movement of goods cannot detract from the availability and effectiveness of Article 31 of the EAEC Treaty as a legal basis.

To evaluate the Parliament' s arguments we must consider the relationship between the EEC Treaty and the EAEC Treaty. In this connection, Article 232(2) of the EEC Treaty provides as follows:

"The provisions of this Treaty shall not derogate from those of the Treaty establishing the European Atomic Energy Treaty."

The effect of that provision is that, if it is shown that Article 31 of the EAEC Treaty represents an appropriate legal basis for the regulation at issue (that is, if it is accepted that the regulation is in fact part of the "basic standards" referred to in Articles 30 and 31 of the EAEC Treaty), the Parliament' s application must be dismissed, even if it is proved that Article 100a of the EEC Treaty might also have represented an appropriate legal basis for the regulation.

On the other hand there are two cases in which the Parliament' s application must be successful: first, if the Court takes the view that Article 31 of the EAEC Treaty could not in any event have been used as the legal basis for the regulation at issue; and secondly if it comes to the conclusion that the regulation ought to have been based both on Article 31 of the EAEC Treaty and on Article 100a of the EEC Treaty. Such a decision could follow from a finding that the regulation at issue does lay down "basic standards", but that in addition it pursues aims and lays down rules which cannot be based on Article 31 of the EAEC Treaty but rather concern the establishment and functioning of the internal market. In that event the regulation ought to have been adopted on the dual legal basis of Article 31 of the EAEC Treaty and on Article 100a of the EEC Treaty. (14) In this case it is not in itself impossible that more than one legal basis may be required, since both articles require the Council to act by a qualified majority and prescribe preliminary procedures which are, it is true, different, but not incompatible. (15) Article 31 of the EAEC Treaty requires consultation with the European Parliament, persons appointed by the Scientific and Technical Committee and the Economic and Social Committee; on the other hand, Article 100a requires, in addition to consultation with the Economic and Social Committee, the application of the so-called cooperation procedure with the European Parliament. The two procedures may supplement one another as required, for example by consultation with persons appointed by the Scientific and Technical Committee and the Economic and Social Committee prior to the cooperation procedure with the European Parliament. Consequently, if the Court were to take the view that the contested regulation ought to have been based both on Article 31 of the EAEC Treaty and on Article 100a of the EEC Treaty, it would be established that the Council had not complied with procedural requirements, which would mean that the regulation must be declared void.

In accordance with the foregoing considerations, I shall now proceed to analyse the aims and content of the regulation at issue (paragraphs 11 to 15) and then to evaluate the arguments put forward by the parties as regards the scope of Article 31 of the EAEC Treaty (paragraphs 16 to 29).

Analysis of the regulation at issue

Regulation No 3954/87 was adopted in response to the public awareness engendered by the accident at Chernobyl nuclear power-station on 26 April 1986. (16) In fact that accident had shown the need for effective action at Community level when, following an accident in a power-station or some other unforeseeable occurrence, considerable quantities of radioactive materials are released into the atmosphere, contaminating foodstuffs and feedingstuffs to levels significant from the health point of view.

The purpose of the regulation is to establish uniform safety standards required under Article 2(b) of the EAEC Treaty, (17) in particular by stipulating intervention levels following a nuclear accident or any other case of radiological emergency. (18) More particularly, the regulation fixes maximum permitted levels of radioactive contamination of foodstuffs and feedingstuffs which may be declared applicable following a nuclear accident or any other case of radiological emergency. (19) It is important to note that these maximum permitted levels are in addition to the measures of commercial policy adopted by the Community for a number of agricultural products originating in third countries following the Chernobyl accident. (20) Finally, the preamble to the regulation also states that "the adoption of a regulation rendering applicable maximum permitted levels would also maintain the unity of the common market and avoid deflections of trade within the Community". (21)

The specific application of this purpose in the regulation may be summarized as follows. An annex to the regulation lays down maximum permitted levels for foodstuffs and feedingstuffs. (22) The regulation itself confers on the Commission and the Council potential powers (that is, powers which become effective when the Commission is notified of accidents or any other radiological emergency indicating that the maximum permitted levels have been or will be reached) for "rendering applicable" those levels (see Articles 2, 3 and 4 of the regulation). That declaration of applicability involves a prohibition, throughout Community territory, of placing on the market foodstuffs and feedingstuffs with contamination levels above the maximum permitted levels (see Article 6 of the regulation).

The period of validity of the regulation rendering applicable the maximum permissible levels, which is initially to be adopted by the Commission, is to be as short as possible and is not to exceed three months (see Article 2 of the regulation). After consultation with the experts, the Commission is to submit to the Council within one month a proposal for a regulation to adapt or confirm its own regulation (see Article 3(1) of the regulation). In principle the Council is to take a decision on that proposal before the Commission' s regulation expires (see Article 3(3) of the regulation). The period of validity of the Council' s regulation is also to be limited and it may be revised at the request of a Member State or on the initiative of the Commission (see Article 4 of the regulation). The regulation at issue also allows the rapid adaptation of the pre-established maximum permitted levels appropriate to the circumstances of any particular nuclear accident or any other case of radiological emergency (see the tenth recital in conjunction with Article 5(2) of the regulation).

From that summary of the aims and content of the regulation at issue I draw the following conclusions: the purpose of the regulation is essentially to protect the population of the Community as a whole against any contact with foodstuffs and feedingstuffs which, following a nuclear accident or any other case of radiological emergency, have undergone radioactive contamination such that they represent a danger to health. For that purpose the regulation lays down the maximum permitted levels of contamination, which may be rapidly and effectively declared applicable by the Commission and subsequently by the Council in a case of radiological emergency, which involves a prohibition of placing on the market foodstuffs and feedingstuffs which have been too seriously contaminated. The prohibition of marketing is essentially temporary; it must protect the public until the danger of radioactive contamination has passed. Secondarily the regulation also has the effect of restricting to a minimum the impediments to the internal market: in fact the adoption of protective measures at Community level makes it possible to avoid trade in foodstuffs and feedingstuffs being needlessly impeded by uncoordinated national measures, which may vary as regards the extent of protection and the period of validity.

In view of the foregoing considerations I cannot concur in the Parliament' s view that this regulation pursues two competing aims of equal importance, namely health and safety and the unified nature of the common market. (23) Although it is true that the laying down of uniform levels and the establishment of a scheme of action at Community level mean that the protection of the public in the event of radiological emergency does not involve a compartmentalization of the common market or deflections of trade, it still does not seem to me justifiable to conclude from that that the maintenance of the unified nature of the market plays an equally important part in this regulation. The maintenance of the single market is not an aim in itself, but the consequence of the existence of Community powers. In fact the regulation was adopted not in order to regulate trade in foodstuffs and feedingstuffs but to protect the public against the dangers arising from ionizing radiations - in this case ionizing radiations resulting from contaminated foodstuffs and feedingstuffs.

Moreover, since the purpose of the regulation is to protect the public health, it is not applicable to (trade in) foodstuffs and feedingstuffs in general, but lays down only a prohibition of trade in foodstuffs and feedingstuffs which have undergone significant radioactive contamination. It is true that the regulation is not entirely without effects on trade in foodstuffs and feedingstuffs: in fact they are carriers of the dangerous radiations, which means that protective measures necessarily affect these products and trade in them. (24) The fact that these protective measures do not affect the unified nature of the common market is only the logical (and fortunate) consequence of the fact that Article 30 et seq. of the EAEC Treaty require the adoption of protective measures uniformly applicable throughout the Community. However, it is impossible to conclude from the fact that the regulation has such consequences on trade in foodstuffs or feedingstuffs that its purpose is to regulate trade in these products.

Finally, the fact that the regulation is aimed at the health and safety of the public and not at trade in foodstuffs and feedingstuffs may be seen also from the uncertain nature of the powers which it confers on the Commission and the Council: the relevant prohibitions of trade may be enacted only in exceptional circumstances (a serious accident in a nuclear power-station is the typical example), they are essentially of a temporary nature and their purpose is more particularly to contend with a specific and transitory emergency.

The scope of Article 31 of the EAEC Treaty

In view of my conclusion with regard to the aims and content of the regulation at issue, I must consider in the last part of my Opinion whether a regulation enacting measures for the protection of the public against the dangers arising from ionizing radiations may be based on Article 31 of the EAEC Treaty when such measures also have secondary effects on trade in products which have undergone radioactive contamination.

In order to prove that Article 31 of the EAEC Treaty does not represent an appropriate and sufficient legal basis for the regulation in question, the Parliament has essentially put forward three arguments which I shall proceed to consider. Although these arguments must be distinguished one from another, there is a certain link between them. What they have in common is that they are all based in a greater or lesser degree on the limited scope which, according to the Parliament, is characteristic of the EAEC Treaty. In fact the Parliament thinks that that Treaty relates solely to the development of the nuclear industry and research in the nuclear energy sector, as well as trade in and transport of nuclear materials. In its application the Parliament implies more than once, though not always equally explicitly, that as soon as a given measure falls outside this narrow framework and has an effect or influence - even though only incidentally - on trade in non-nuclear materials, for example foodstuffs and feedingstuffs, that measure must be based partially or even exclusively on Article 100a of the EEC Treaty.

This restrictive interpretation of the EAEC Treaty is expressed above all in the Parliament' s first two arguments. According to the first argument, the content of the expression "basic standards" in Article 30 et seq. of the EAEC Treaty must be interpreted in the light of the limited scope of the EAEC Treaty, already described. Because of that limited scope the "health and safety" policy laid down by the EAEC Treaty can apply only to protection against radiation produced directly in a nuclear power-station or when nuclear fuel is being handled (so-called "primary radiation"). The regulation at issue, on the other hand, concerns secondary radiation, that is, radiation which comes indirectly to the public from contaminated foodstuffs or feedingstuffs. From this the Parliament concludes that such a regulation cannot be based on Article 31 of the EAEC Treaty, because its purpose is to provide for more extensive protection than that authorized by Article 30 et seq.

The Parliament claims that the EAEC Treaty does not relate to a free market in contaminated products or protection against the dangers arising from such products, but concerns only trade in and protection against nuclear materials. Neither the wording nor the purpose of Article 31 of the EAEC Treaty indicates that the High Contracting Parties wished to ensure more extensive protection, relating, for example, to products contaminated by the use of atomic energy. In other words, Article 31 of the EAEC Treaty authorizes only the adoption of protective measures designed to limit dangers arising from the actual nuclear sector and not to regulate activities which in themselves have no link with the use of nuclear energy. The Parliament thinks that that interpretation is confirmed by the practice followed before the adoption of Regulation No 3954/87, under which measures were adopted on the basis of Article 31 of the EAEC Treaty solely for the purpose of protection against dangers arising from primary radiation.

The second argument too is based on the restricted scope which the Parliament attributes to the EAEC Treaty. That argument concerns the expression "the health of workers and the general public", which is to be protected in accordance with Article 30 of the EAEC Treaty. By a teleological interpretation of the EAEC Treaty, the Parliament comes to the conclusion that Article 30 et seq. of that Treaty are intended solely for the protection of persons "directly involved" in nuclear industry, that is, the persons working in nuclear research or the nuclear industry, who come into contact with fissile materials, and members of the public who are likely to be (directly) exposed to radiation. The dangers arising from indirect radiation, for example from radiation from foodstuffs and feedingstuffs which have undergone radioactive contamination must, in the Parliament' s opinion, be met, in view of the limited scope of the EAEC Treaty, in another manner, namely on the basis of Article 100a of the EEC Treaty.

I do not find these arguments at all convincing. The Commission rightly points out in its observations that the distinction between "primary" and "secondary" radiation and the members of the public "directly" or "indirectly" involved are nowhere mentioned in the EAEC Treaty. These distinctions would be particularly hard to apply in practice and in addition they have no relevance with regard to the purpose of Article 30 et seq. of the EAEC Treaty, which represent a consistent and effective protection of the health and safety of the public against the dangers arising from ionizing radiations. That is immediately apparent with regard to the first distinction: in fact "primary" radiation is neither more nor less dangerous for the public health than "secondary" radiation: the danger depends on the intensity and duration of exposure to the ionizing radiation, whatever the vehicle of the radiation may be (air, water, foodstuffs and the like).

Nor does the concept of the "population directly or indirectly involved" seem to me to have any relevance. I do not see what there is to prevent the adoption under Article 30 et seq. of the EAEC Treaty of protective measures for the whole Community population, particularly when it is a question of taking (preventive) measures against a serious nuclear accident such as that which occurred at Chernobyl. Moreover, the arguments put forward by the Parliament itself show that this distinction is not valid: thus the Parliament claims on page 14 of its reply that the EAEC Treaty does not seek the systematic protection of the health of the public against the dangers arising from radiation, but only against the dangers resulting from radiation in the nuclear sector. (25) However, I do not see how the danger of radiation from which the regulation at issue seeks to protect the public could not come from the nuclear sector. It seems to me that in the last resort the contamination of foodstuffs and feedingstuffs following a nuclear accident is just as much due to the nuclear sector as the danger of radiation resulting from the artificial handling of nuclear materials.

I regard as equally unconvincing the Parliament' s argument based on the text, according to which the expression "protection of the health of workers and the general public" in Article 30 of the EAEC Treaty could not apply to the whole population, because otherwise the specific reference to "workers" would make no sense. That argument is not convincing: the separate reference to the category of "workers" may just as well mean that the EAEC Treaty requires that part of the population to receive special attention by means of the adoption of special measures, for example stricter or more detailed safety standards. Moreover protection for workers differing from that for other groups of the population is part of present legislative practice: thus for example Directive 80/836/Euratom of 15 July 1980 contains separate rules for workers exposed to radiation (see Articles 7, 8 and 9), for apprentices (see Articles 10 and 11) and the general public (see Article 12 et seq.).

Both distinctions advocated by the Parliament would not only be hard to apply in practice but would cause unnecessary complications in the Community decision-making process: only in the case of protection of the "population directly involved" against "primary radiation", it is claimed, would the experts appointed by the Scientific and Technical Committee need to be consulted. All the other protective measures would have to adopted on the basis of Article 100a of the EEC Treaty, which would not only involve the application of another, more complicated, procedure, but would also expressly provide the Member States with an opportunity to "opt out" (see Article 100a(4) ) since a Member State might, at least in principle, give priority to an aspect of policy other than those set out in that provision.

The Parliament' s third argument, put forward vigorously at the hearing by the Parliament' s representative, specifically concerns the relationship between Article 31 of the EAEC Treaty and Article 100a of the EEC Treaty. By this argument the Parliament claims, in brief, that Article 31 of the EAEC Treaty offers no sufficient legal basis for a regulation on the marketing of foodstuffs and feedingstuffs laying down maximum permitted levels of radioactive contamination of those products; such a regulation could be adopted only on the basis of Article 100a of the EEC Treaty. The Parliament pursues this third argument in two different versions. In a first version the argument is based on the idea that the regulation at issue concerns both trade in foodstuffs and feedingstuffs and protection of health - a premise which I have already rejected (paragraphs 11 to 15) by an analysis of the regulation at issue. Thus the Parliament wrongly assimilates the aims and content of the regulation with those of a number of Council directives laying down, under the EEC Treaty, quality standards for foodstuffs and feedingstuffs. So there is no need to pursue this line of argument.

A second version of the argument is based on the idea that whilst it is true that the EAEC Treaty makes it possible for (protective) measures to be adopted with reference to the internal market, that is only in so far as the internal market in nuclear materials is concerned: on the other hand, measures affecting the marketing of non-nuclear materials, such as foodstuffs and feedingstuffs, fall outside that Treaty and must be adopted under the EEC Treaty. According to this version, the third argument is in fact very closely linked to the first two, since it is based on a very restrictive interpretation of the EAEC Treaty - an interpretation with which I cannot agree. In fact, once it is admitted that a consistent and effective health protection policy against the dangers arising from ionizing radiations can and must be conducted under Article 30 et seq. of the EAEC Treaty, those provisions cannot be interpreted as allowing the adoption of protective measures against nuclear materials but not against products which have undergone serious radioactive contamination. The important point is to ensure the effectiveness of the provisions of the EAEC Treaty, a question to which I now turn.

5.2. "Effectiveness" of Article 30 et seq. of the EAEC Treaty

As has already been seen, the Parliament' s three arguments are based on the idea that the EAEC Treaty, more particularly the health protection policy laid down by Article 30 et seq. of that Treaty, must be regarded as having a limited scope. I cannot accept such a restrictive view. In fact, in view of the serious risks to health arising from ionizing radiations, I think that Article 30 et seq. of the EAEC Treaty must be interpreted as meaning that they authorize the Community to protect the health of the public consistently and effectively. For I see no valid reason for interpreting the scope of a policy laid down by the EAEC Treaty according to rules different from those relating to the scope of a policy laid down by the EEC Treaty. As regards the common vocational training policy laid down by Article 128 of the EEC Treaty, the Court, in its judgment in Case 242/87, stated as follows:

"... the fact that the implementation of a common vocational training policy is provided for precludes any interpretation of that provision which would mean denying the Community the means of action needed to carry out that common policy effectively" (paragraph 9).

That paragraph seems to me to apply equally, if not more, to the policy for the protection of health against ionizing radiations outlined in the EAEC Treaty. The European Parliament' s interpretation would seriously impair the effectiveness of that policy.

24. It therefore seems to me essential to regard Article 30 et seq. of the EAEC Treaty as being fully effective. That presupposes that measures of health protection may also involve, above all in cases of radiological emergency, a prohibition of trading in foodstuffs and feedingstuffs which have undergone such serious radioactive contamination as to endanger the public health. I emphasize that qualification, because the Parliament tries to support its argument by referring to a proposal for a directive submitted by the Commission under Article 100a of the EEC Treaty which, if it is adopted, will impose inter alia a requirement for foodstuff labels to show whether or not the food has been irradiated. That reference is irrelevant because the proposal concerns not foodstuffs which have undergone radioactive contamination, but irradiated foodstuffs (which are assumed not to be danger to health, since they may be marketed provided that the label indicates that they have been irradiated); in other words, the proposed requirement is not intended to protect health but on the contrary to lay down uniform labelling rules so as to safeguard transparency of the market in the foodstuffs sector.

Here I should like to add that the effectiveness of the provisions of the EAEC Treaty must be determined on the basis of the aims and wording of the Treaty itself, the scope of which must not be restricted by an interpretation of the EEC Treaty. The principle of the independent validity of the EAEC Treaty, which moreover is expressed in Article 232(2) of the EEC Treaty, already quoted (in paragraph 9), also prevents the scope of the EAEC Treaty from being restricted by a subsequent amendment of the EEC Treaty (that is, by the Single European Act).

25. Moreover, it follows from present legislative practice (the legality of which is in no way called in question by the Parliament) that the fact that protective measures against ionizing radiation affect trade in non-nuclear materials has not hitherto been regarded as an impediment to the use of Article 31 of the EAEC Treaty as a legal basis. That emerges clearly from Directive 80/836/Euratom amending the directives laying down the basic safety standards for the health protection of the general public and workers against the dangers of ionizing radiation. Article 5 of that directive, which is based on Article 31 of the EAEC Treaty, provides inter alia as follows:

"Apart from the prohibitions provided for by national law, and irrespective of the degree of danger involved, a system of prior authorization must be applied in respect of:

(b) the use of radioactive substances in toys and the importation of toys containing radioactive substances;

(c) the addition of radioactive substances in the production and manufacture of foodstuffs, medicinal products, cosmetics and products for household use (except for the instruments and timepieces referred to in Article 4(c) ) and the importation for commercial purposes of such goods if they contain radioactive substances."

The same may be seen from the recent Council Directive 89/618/Euratom of 27 November 1989 on informing the general public about health protection measures to be applied and steps to be taken in the event of a radiological emergency. That directive too was based on Article 31 of the EAEC Treaty with the approval of the Parliament. As may be seen from Annex II to that directive, the population actually affected in the event of a radiological emergency will receive inter alia advice on protection which might in particular cover "restrictions on the consumption of certain foodstuffs likely to be contaminated". It is not easy to see why advice on health protection covering the consumption of contaminated foodstuffs can be based on Article 31 of the EAEC Treaty, whereas a prohibition of trading intended to put such products beyond the reach of consumers cannot.

5.3 The judgment in Case C-62/88

27. Let us first consider the difference between Regulation No 3954/87, which is at issue in this case, and Regulation No 3955/87 which, as I said, was the subject of Case C-62/88. The latter regulation is part of the specific measures adopted at Community level in response to the accident at the Chernobyl nuclear power-station. The serious consequences of that accident, made it essential to take immediate drastic action at Community level (shortly after the accident some Member States had already, on their own initiative, prohibited imports of products originating in third countries within the contaminated area, which obviously jeopardized the unified nature of the common commercial policy). On 12 May 1986 the Council therefore adopted Regulation (EEC) No 1388/86 which, by an urgent measure, prohibited totally but provisionally for the whole Community the import of a number of products originating in Bulgaria, Hungary, Poland, Romania, Czechoslovakia, the Soviet Union and Yugoslavia. That regulation was based on the EEC Treaty in general with no more precise specification; it was replaced some weeks later, on 30 May 1986, by Council Regulation (EEC) No 1707/86 (also based on the EEC Treaty in general), which prohibited imports of agricultural products and processed agricultural products intended for human consumption and originating in third countries in the event of non-compliance with certain "maximum permitted levels" (that is to say, a certain degree of contamination by nucleides of caesium). That regulation also was an urgent measure of a provisional nature: Article 7 provided that it was to expire on 30 September 1986, but its period of validity was extended before then, first by Regulation (EEC) No 3020/86 and then by Regulation (EEC) No 624/87, until 31 October 1987. After Regulation No 1707/86 had expired the Council adopted, on 22 December 1987, Regulation No 3955/87 which was wholly in line with its predecessors: it had a limited period of validity (two years) and was intended to combat the specific effects of the accident at Chernobyl. On the other hand, in contrast to the previous regulations, it was based on a specific provision of the EEC Treaty, perhaps in response to the Court' s judgment of 26 March 1987, in which the Court thought that imprecise indications of the legal basis by means of such formulas as "Having regard to the (EEC) Treaty" were a breach of the obligation laid down by Article 190 of the EEC Treaty to state the reasons on which certain measures were based. It follows from the foregoing summary that by Regulation No 3955/87 the Council, in prolonging the urgent temporary measures previously adopted, was concerned to limit as far as possible the harmful effects of the accident at Chernobyl by closing the Community frontiers to the import from third countries of (agricultural) products which had undergone serious radioactive contamination. As may be seen also from the third and fourth recitals to that regulation, the measure is by its nature a measure of commercial policy, since it seeks to exclude certain products from the Community. Although its purpose is undeniably the protection of public health, Regulation No 3955/87, like the previous regulations, seeks essentially to lay down uniform rules to prevent the importation of products which have undergone radioactive contamination as a result of the nuclear accident at Chernobyl. Paragraph 15 of the grounds of judgment in Case C-62/88, states as follows:

"Regulation No 3955/87 establishes uniform rules regarding the conditions under which agricultural products likely to be contaminated may be imported into the Community from non-member countries."

28. The aims and content of Regulation No 3954/87 are very different. As I have already mentioned (paragraphs 11, 12 and 13) the regulation does not aim at overcoming on an ad hoc basis the specific effects of a previous nuclear accident or at laying down uniform rules relating to the importation from third countries of products which have undergone radioactive contamination or to the marketing of such products in the Community. On the contrary it lays down a permanent procedure making it possible, in the event of some nuclear accident in the future, to adopt measures for the protection of the health and safety of workers and the general public. In fact maximum permitted levels of radioactive contamination of feedingstuffs may be applied throughout the Community by the implementation of this procedure. The effect of such protective measures must necessarily be that foodstuffs and feedingstuffs exceeding the levels which have been declared applicable may no longer be marketed irrespective of whether they originate in the Community or have been imported from third countries. The fact that the aims of the regulation at issue, No 3954/87, essentially concern health and safety may also be seen from the fact that the fourth recital to that regulation states, inter alia by referring to Regulation No 3955/87, that measures of commercial policy have already been adopted (and so no longer need to be an aim of the regulation at issue), just as Regulation No 3955/87, as may be seen from the third recital thereto, lays down maximum permitted levels for imported products without prejudice to the "maximum permitted ... levels" referred to in Regulation No 3954/87 - in other words, the first-mentioned maximum levels operate only as a first filter at the Community' s external frontiers. These differences mean that, contrary to what the Parliament suggests, the judgment in Case C-62/88 cannot be regarded as a valid precedent for this case. In that judgment the Court accepted that Article 113 of the EEC Treaty was appropriate as the legal basis for Regulation No 3955/87 only because the regulation falls essentially within the framework of commercial policy.

29. We must still consider whether the "precedence" given to Article 113 of the EEC Treaty over Article 31 of the EAEC Treaty does not apply equally to the relationship between Article 100a of the EEC Treaty and Article 31 of the EAEC Treaty. In my view the judgment in Case C-62/88 does not make it possible to answer that question in the affirmative. On that point I would refer to paragraph 17 of that judgment in which the Court stated as follows:

"Recourse to Article 113 as the legal basis for the contested regulation cannot be excluded on the ground that Article 30 et seq. of the EAEC Treaty lay down specific rules governing the basic standards for protection of the health of the general public against the dangers arising from ionizing radiation. Those provisions, which appear in a chapter entitled 'Health and Safety' , which forms part of the second title of the EAEC Treaty entitled 'Provisions for the encouragement of progress in the field of nuclear energy' , are intended to provide for the protection of public health in the nuclear sector. They are not intended to regulate trade between the Community and non-member countries."

In other words the Court is only saying that Article 31 of the EAEC Treaty cannot be used as the legal basis for the adoption of measures of commercial policy (in fact, the EAEC Treaty contains no provision analogous to Article 113 of the EEC Treaty); on the other hand the Court is not expressing an opinion on whether that provision is appropriate as the legal basis for measures relating to the protection of the health and safety of the public against ionizing radiations and which also have an incidental effect on the free movement of goods in the internal market. We have already seen that such measures might in fact be based on Article 31 of the EAEC Treaty; in these circumstances it is clear from Article 232(2) of the EEC Treaty that Article 100a of the EEC Treaty cannot invalidate that view. I am therefore of the opinion that the judgment in Case C-62/88 cannot support the Parliament' s third argument.

30. An analysis of the aims and content of the regulation at issue has led me to the conclusion that it concerns mainly protection of health and safety against the dangers arising from products which have undergone serious radioactive contamination. Although it is true that (urgent) measures adopted under that regulation will have a (temporary) effect on the marketing of such products, nevertheless, in view of the importance of a consistent and effective policy for protection of health and safety, that cannot preclude Article 31 of the EAEC Treaty from being the legal basis for such a regulation. The arguments put forward by the Parliament against the appropriateness of Article 31 of the EAEC Treaty cannot in my opinion be accepted, both because they are based on a mistaken analysis of the aims and content of the regulation at issue and because they give an unduly restrictive interpretation of the policy for the protection of health and safety referred to in Article 30 et seq. of the EAEC Treaty. I therefore suggest that the Parliament' s application should be dismissed.

As regards costs: since the Council has been unsuccessful in its submission relating to admissibility, which was also an important issue in this case, I propose, in pursuance of Article 69(3) of the Rules of Procedure, that the Court should order the European Parliament and the Council to bear their own costs. Since judgment must be given against the Parliament as regards the substance of the action, it should be ordered to pay the costs of the interveners, who did not submit any observations on the matter of admissibility and supported the Council' s conclusions as to the substance of the case.

(*) Original language: Dutch.

(1) OJ 1987 L 371, p. 11.

(2) [1990] ECR I-2041.

(3) See paragraphs 21 and 22 of the grounds of judgment.

(4) See paragraphs 12 and 13 of the grounds of judgment.

(5) See paragraph 27 of the grounds of judgment.

(6) See paragraphs 28 to 31 of the judgment.

(7) Council Decision of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1987 L 197, p. 33).

(8) In this case, following an extension of the time-limits for the submission of the defence and the reply, the Parliament was able to take cognizance of this statement when preparing its reply.

(9) On the other hand it is always possible to authorize the submission of such a written document on an ad hoc basis. That was the position for example in Case C-66/90, still pending before the Court.

(10) Greece v Council [1990] ECR I-1527.

(11) Regulation (EEC) No 3955/97, to which reference will be made later on another subject (paragraph 26 et seq.).

(12)See paragraphs 7 to 9 of the grounds of judgment and paragraphs 7 and 8 of the Opinion of Mr Advocate General Darmon (who takes a different point of view).

(13)Compare the judgment in Case C-62/88, cited in footnote 10, in particular paragraphs 10 to 12 of the grounds of judgment, with the judgment in Case 165/87 Commission v Council [1988] ECR 5545.

(14)In the judgments in Case 165/87, already cited in footnote 13, (in which the Court stated that Articles 28 and 113 of the EEC Treaty together constituted the appropriate legal basis for the conclusion of an international convention establishing a tariff nomenclature) and in Case 242/87 Commission v Council [1989] ECR 1425 (in which the Court stated that a Community action scheme relating to vocational training and scientific research must be based both on Article 128 and on Article 235 of the EEC Treaty), the Court accepted that in certain cases a measure may require a dual legal basis. See also Mr Advocate General Tesauro's Opinion of 13 March 1991 in Case C-300/89 [1991] ECR I-2878, referred to in the footnote below.

(15)On this point this case is unlike Case C-300/89, which concerned the relationship between Article 100a and Article 130s of the EEC Treaty. In his Opinion of 13 March 1991, Mr Advocate General Tesauro showed convincingly that the procedural provisions contained in those articles could not be used jointly because, inter alia and above all, that would be an unacceptable infringement of the European Parliament's right to participate in the legislative process (see paragraph 11 of his Opinion). In its judgment of 11 June 1991, the Court endorsed that view.

(16)See the third recital to the regulation.

(17)See the first recital to the regulation.

(18)See the second recital to the regulation.

(19)See the fifth recital to the regulation.

(20)See the third and fourth recitals to the regulation. Regulation No 3955/87, to which I shall return in paragraph 27, is part of these measures of commercial policy.

(21)See the 11th recital to the regulation.

(22)See the annex to the regulation, as amended by Council Regulation (Euratom) No 2218/89 of 18 July 1989 (OJ 1989 L 211, p. 1). The maximum permitted levels for feedingstuffs are still to be fixed by an implementing measure.

(23)According to Mr Advocate General Tesauro, such a situation existed in the regulation which was the subject of Case C-300/89 (see his Opinion, already cited in footnote 14).

(24)In other words, I should not wish to go as far as the United Kingdom Government, which claims that the regulation at issue is entirely unconnected with the setting up of the internal market, but aims on the contrary to exclude the rules of the internal market for a number of products in certain circumstances. The Parliament rightly replies that the internal market does not refer to an unrestricted freedom of trade and that the establishment and operation of a common market may presuppose that a (uniformly applicable) ban on trade may be prescribed in certain circumstances for certain products. The Parliament is right in so far as the regulation at issue does indeed have an effect on trade in certain products and consequently on the internal market also. However, that effect is the inevitable secondary consequence of the protective measures in question and not their purpose.

(25)In this connection the Parliament refers to paragraph 17 of the grounds of the judgment in Case C-62/88, to which I shall return in paragraph 26 et seq. below.

(26)Commission v Council [1989] ECR 1425.

(27)See COM(87) 393 final of 7 August 1987.

(28)OJ 1980 L 246, p. 1.

(29)OJ 1989 L 357, p. 31.

(30)See the Parliament's legislative resolution, Doc. A2-76/89, OJ 1989 C 158, p. 403.

(31)Already cited in footnote 10.

(32)Of 22 December 1987 on the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power-station (OJ 1987 L 371, p. 14).

(33)On the suspension of the import of certain agricultural products originating in certain third countries (OJ 1986 L 127, p. 1).

(34)On the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power-station (OJ 1986 L 146, p. 88).

(35)OJ 1986 L 280, p. 79.

(36)OJ 1987 L 58, p. 101.

(37)See Article 7 of Regulation No 3955/87.

(38)See the third recital to Regulation No 3955/87.

(39)See Mr Advocate General Darmon's Opinion in Case C-62/88 [1990] ECR 1536, paragraphs 10 to 13, with its reference to the judgment in Case 45/86 Commission v Council [1987] ECR 1493, paragraphs 5 to 9 of the grounds of judgment.

(40)See the award as to costs in the judgment in Case 70/87 Fediol v Commission [1989] ECR 1781.