Important legal notice

61998C0477

European Court reports 2000 Page I-10695

Opinion of the Advocate-General

I Introduction

II Legal framework

(A) Community law

(1) Council Directive 64/433/EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat, in the version contained in Directive 91/497

(hereinafter referred to as the fresh meat directive)

5. As is apparent from the recitals in the preamble to the fresh meat directive, which dates back to 1964, that directive was designed, in particular, to standardise health requirements for meat in slaughterhouses and cutting rooms and during storage and transportation (fourth recital). Thus, the directive is not directly aimed at combatting BSE. In order to provide the authorities of the country of destination with a guarantee that a consignment of meat complies with the provisions of the fresh meat directive, it is necessary for a health certificate to be issued by an official veterinarian of the exporting country (seventh recital).

6. In particular, Article 3 of the fresh meat directive provides as follows:

(a) have been obtained in a slaughterhouse ... [which is] approved and supervised ...;

(b) come from a slaughter animal inspected ante mortem by an official veterinarian ...;

(c) ...;

(d) have been inspected post mortem by an official veterinarian ...;

(e) bear a health mark ...;

(f) to (h) ...

(a) are boned or cut in a cutting plant ... [which is] approved and supervised ...;

Member States must have the right to prohibit the introduction of meat into their territory if it is found to be unfit for human consumption or if it does not comply with Community health provisions.

(2) Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market

(hereinafter referred to as Directive 89/662)

10. Thus, the subject-matter of the directive is not primarily the combatting of epizootic diseases and/or BSE or the adoption of health protection measures. Accordingly, the thirteenth recital in the preamble reads as follows:

Whereas, however, with regard to certain epizootic diseases, different health situations still prevail in the Member States and whereas, pending a Community approach on the methods to combat these diseases, the question of checking intra-Community trade in livestock should for the time being be left to one side and a documentary check should be permitted during transport; whereas, in view of the current state of harmonisation and pending Community rules, goods that are not the subject of harmonised rules should comply with the requirements of the State of destination provided that the latter are in conformity with Article 36 of the Treaty;.

11. However, Article 9 contained in Chapter III headed Common provisions provides as follows with regard to outbreaks of diseases which may constitute a serious hazard to animals or to human health:

Article 9

The Member State of origin shall immediately implement the control or precautionary measures provided for in Community rules, in particular the determination of the buffer zones provided for in those rules, or adopt any other measure which it deems appropriate.

The Member State of destination or transit which, in the course of a check referred to in Article 5, has established the existence of one of the diseases or causes referred to in the first subparagraph may, if necessary, take the precautionary measures provided for in Community rules.

Pending the measures to be taken in accordance with paragraph 4, the Member State of destination may, on serious public or animal-health grounds, take interim protective measures with regard to the establishments concerned or, in the case of an epizootic disease, with regard to the area of protection provided for in Community rules.

The measures taken by Member States shall be notified to the Commission and to the other Member States without delay.

5. ....

(3) Commission Decision 97/534/EC of 30 July 1997 on the prohibition of the use of material presenting risks as regards transmissible spongiform encephalopathies

(hereinafter referred to as the Commission Decision)

12. Article 2 of this decision, which was adopted by the Commission in the context of the BSE crisis, and which was based inter alia on the abovementioned Directive 89/662, in particular Article 9(4) thereof, prohibits the use of specified risk material (SRM) for any purpose. SRM is defined in Article 1 of the decision in so far as concerns the present case as the skull, including the brain and eyes, tonsils and spinal cord of bovine animals aged over 12 months.

Specified risk material shall be stained with a dye on removal and either:

(a) destroyed by incineration;

or,

(b) provided that the colour of the dye is detectable after processing, processed and subsequently incinerated, buried, burned as fuel or otherwise disposed of by a similar method which precludes the risk of transmission of a TSE.

14. The nineteenth recital in the preamble to the Commission Decision states that steps must be taken to ensure that the tissues in question, that is to say, the SRM, are removed and stained at the point of production, and subsequently destroyed by incineration.

15. According to Article 10, the decision was to have applied from 1 January 1998. The date of its entry into force was later postponed to 1 April 1998, then to 1 January 1999, then to 31 December 1999 and, most recently, to 30 June 2000.

16. The reasons given for the postponement were in each case that more time was needed to review the implications of the decision for a wide range of products and to review new scientific advice. In addition, the Standing Veterinary Committee had not given a positive vote on the initial proposal regarding the measures to be taken.

17. It should additionally be noted that, for the same reasons, and as a result of a lengthy disagreement about the causes and transmissibility of BSE, the Commission's proposal for a regulation of the Parliament and the Council laying down rules for the prevention and control of certain transmissible spongiform encephalopathies, presented by it on 7 January 1999, has likewise not yet been adopted.

(B) National law

18. On 29 December 1997, shortly after the first postponement of the date on which the original Commission Decision was to come into force, the Department of Agriculture for Northern Ireland made, in accordance with Article 9(1) of Directive 89/662 and as part of its programme to deal with the risk of BSE, the Specified Risk Material (Northern Ireland) Order (hereinafter referred to as the 1997 Order).

19. Article 6(1)) of the 1997 Order provides:

A person shall not import into Northern Ireland from any place outside the United Kingdom, the Channel Islands and the Isle of Man

(a) any class 1 specified risk material ...;

(b) ... .

According to those definitions, cheek meat is not regarded as SRM.

III Facts and questions referred for a preliminary ruling

21. The applicant, Eurostock Meat Marketing Ltd, carries on business at Newry, County Down, Northern Ireland. According to the information supplied by the national court, it is engaged in the meat trade and in particular the removal from bovine heads of cheek meat and the preparation of the cheek meat for human consumption. That activity consists, inter alia, in the deboning in Northern Ireland of bovine heads imported from Ireland and the export of the meat thus extracted to other parts of the United Kingdom and, since 1987, to France. After extracting the cheek meat from the bovine head, the applicant treats the remainder of the skull as if it were classified as specified risk material (SRM).

22. On 9 January 1998, pursuant to Article 14 of the 1997 Order, the respondent Department seized and condemned a consignment of bovine heads which the applicant had imported from Ireland into the United Kingdom. The consignment was accompanied by health certificates issued pursuant to the fresh meat directive, stating that the meat in question was fit for human consumption. The condemnation of the bovine heads was effected without any prior inspection, on the ground that the consignment had been imported in contravention of Article 6(1) of the 1997 Order.

23. The Court of Appeal in Northern Ireland, before which the litigation based on the above facts is pending, is uncertain as to the legality of the 1997 Order and the correct interpretation of the Commission Decision in so far as that decision provides that specified risk material is to be removed, stained and destroyed at the point of production.

24. Consequently, that court has referred the following questions to the Court of Justice for a preliminary ruling:

(1) May a Member State take interim protective measures in accordance with Article 9(1) of Council Directive 89/662/EEC when the Commission has adopted Decision 97/534/EC pursuant to Article 9(4) of that Directive but postponed the coming into effect of that Decision?

(2) If the answer to Question 1 is yes, before the Member State may take such interim protective measures what, if any, degree of certainty, probability or possibility is required that the Commission will put into effect the said Decision?

(3) On the correct interpretation of Article 4(1) of Commission Decision 97/534/EC:

(a) must specified risk material be removed and stained at the point of production; and

(b) is the point of production for those purposes the place at which the animals are slaughtered?

(4) If the answer to Question 1 is no, may a Member State nonetheless justify under Article 36 of the Treaty on the grounds of the protection of human health measures including a prohibition on the importation from another Member State of:

(a) specified risk material within the meaning of the said Decision; or

(b) bovine heads containing such specified risk material?

IV Arguments of the parties

25. In addition to the applicant, the French, German, Netherlands and United Kingdom Governments and the Commission have submitted observations in these proceedings for a preliminary ruling. The following is a summary of the arguments put forward by them.

26. The applicant maintained in the proceedings before the national court that the prohibition on imports imposed by the 1997 Order constitutes a measure having equivalent effect to a quantitative restriction on the free movement of goods, and that it therefore infringes Article 30 of the EC Treaty (now Article 28 EC) and is neither justified nor permissible under Community law. With regard to the first question, the applicant states that the imported bovine heads had been subjected to veterinary control in the Member State of origin and were accompanied by a health certificate in conformity with the fresh meat directive. The principles laid down in Article 9 of Directive 89/662 are applicable only if a Member State has given notice that there has been an outbreak of diseases or other causes likely to constitute a serious hazard to animals or to human health. For that reason, the fourth subparagraph of Article 9(1) is applicable only in urgent cases in which protective measures are justified on serious public or animal health grounds. Such measures may only be adopted pending the adoption by the Commission of the measure to be taken. Whilst Directive 89/662 confers on the Commission a wide discretion in relation to the adoption of protective measures, that does not mean that it confers a similar discretion on the Member States. Since the Commission has already adopted a decision pursuant to Article 9(4), it cannot be argued that such a measure is still pending, even though the decision has not yet entered into force. Consequently, Member States no longer have the right to adopt unilateral measures. It follows that the adoption of the 1997 Order as a protective measure was unlawful, a fortiori since its scope is wider than the intended scope of the Commission Decision.

27. The Member States participating in the proceedings and the Commission refer first of all to the substantial risks linked to BSE. They base their approach on the argument that, so long as no Community measure has yet entered into force, Article 9 of Directive 89/662 allows the Member States to adopt protective measures where there exist serious public or animal health grounds for so doing.

28. The participants in these proceedings consider that the second question does not require an answer. The applicant asserts that there were no circumstances warranting the adoption of the 1997 Order, since the Commission had merely postponed the entry into force of its own decision. In the view of the other participants, the legality of a national measure adopted pursuant to the fourth subparagraph of Article 9(1) of Directive 89/662 depends solely on the fulfilment of the criteria laid down in that article (Community measure still pending, serious health grounds), and not on the possible contents of the Community measure to be adopted or the date of its entry into force.

29.As regards the third question, concerning the place at which the SRM is to be removed, the applicant and the German Government consider that this should be done at the cutting plant. Since according to the applicant the Commission Decision does not prohibit the transportation of bovine heads, the most effective and appropriate place at which to check the products derived therefrom is the cutting plant. The German Government cites the fresh meat directive, according to which the recovery of head muscle is permissible only in the cutting plant. The Netherlands Government and the United Kingdom Government maintain that the meat is to be removed immediately after the animal is slaughtered, since that is the surest way of preventing cross-contamination.

30.As regards the fourth question, the applicant is alone in asserting that a measure such as that adopted in the present case, namely the 1997 Order, is incapable of justification under Article 36 of the EC Treaty. It maintains that the Community has exercised its legislative powers, even though the decision in question has not yet entered into force. Consequently, it is no longer open to the Member States, for their part, to act on a unilateral basis. The Netherlands Government, the United Kingdom Government and the Commission regard the 1997 Order as justified under Article 36 of the EC Treaty, since no definitive harmonisation has taken place in this field and the special risks to which BSE gives rise warranted the adoption by a Member State of a measure to increase the protection of human and animal health.

V Analysis

(a) The first question

31.By its first question, the national court seeks to know whether a Member State may take interim protective measures pursuant to Article 9(1) of Directive 89/662/EEC where the Commission has adopted a decision under Article 9(4) of that directive but has postponed the entry into effect of that decision.

32.In a case such as this, it is necessary to start from the premise that the measures decided on by the Commission pursuant to Article 9(1) are still pending. It is clear from the use of that term that, in order not to be pending, the measures must have taken effect. The mere formal act of adopting the decision is not, on its own, enough for that purpose. As the wording of the provision indicates, the measures are intended to avert the risks posed by the corresponding diseases and to combat the causes giving rise to a health threat. This can only be done if the measures are also capable of being implemented; and for that, they need to have entered into force. Since rapid action is needed to counter risks to humans and animals, Member States must be able to take precautionary measures where, and for so long as, there is no possibility of corresponding measures being taken by the Commission.

33.According to Article 129 of the EC Treaty (now, after amendment, Article 152 EC), a high level of human health protection must be ensured in all Community measures. Consequently, where such measures on the part of the Commission are still pending, it must be open to the Member States to ensure that high level of health protection by taking their own precautionary measures.

34.Moreover, it is apparent from the scheme of Article 9 and also from its spirit and purpose that it is best to combat such health risks on the spot. For that reason, the role played by the Member States is particularly important. Since they ultimately share a great responsibility, they must also, in view of the need for efficiency, be in a position to take action, because it would no longer be possible to guarantee effective health protection if, despite the adoption of a Commission decision, it nevertheless remained necessary for political reasons, for example, or on account of ongoing disagreements to wait a long time for the entry into force of such a decision. In such circumstances, it must be open to the Member States to take precautionary measures to protect human health. The criterion of the existence of serious public or animal health grounds, laid down by Article 9(1) as a condition for the adoption of such measures, must also be regarded as fulfilled.

35.Where measures have been adopted by the Commission but are not yet in force, this can affect only the content of the precautionary measures taken by the Member State concerned. Since the latter measures may not conflict with the measures to be taken by the Commission, it may be necessary, following publication of the prospective proposals of the Commission, and depending on the circumstances, for the Member State to bring its measures into line with those to be taken by the Commission. However, this does not alter the fact that Member States are empowered to adopt their own measures.

36.The 1997 Order contains a general prohibition on the importation of specified risk material into Northern Ireland. In view of the wording of the fourth subparagraph of Article 9(1) of Directive 89/662, it may be questionable whether the 1997 Order constitutes such a precautionary measure, since it lays down a general prohibition on imports and does not relate to specific establishments or buffer areas. It is true that the establishments referred to in Article 2 of Directive 89/662 include not only establishments engaged in agricultural production but also those engaged in processing. The applicant company is to be regarded as such an establishment. However, the general effect of the 1997 Order may be such that it does not qualify as a measure applying specifically to establishments and/or buffer areas. Article 9(2) refers to the examination of measures in the place concerned, which suggests action on a localised basis. However, having regard to the intended aim of combatting health risks, it would be illogical to apply such a narrow construction to the provision. In view of the risks involved, it must be possible to take all conceivable measures, including, therefore, those having general effect.

37.Moreover, the import prohibition does not conflict with the fresh meat directive. Even where the meat to be exported has been properly checked and marked, Member States of destination may continue, pursuant to the fourth subparagraph of Article 9(1) of Directive 89/662, to take precautionary measures on grounds of health protection. This is apparent from the reference to Directive 89/662 in the eighth recital in the preamble to the fresh meat directive (see point 8 above). Thus, the Member States of destination may adopt precautionary measures in order to prohibit imports of meat which has been released for human consumption but which nevertheless harbours significant risks to health.

38.However, the general prohibition of imports is a quantitative restriction on imports although it is capable of being justified on grounds of health protection. Whether the measure is discriminatory, and whether it is appropriate and proportional, are, however, matters to be determined by the national court. According to Article 6(1) of the 1997 Order, imports into Northern Ireland of specified risk material from the rest of the United Kingdom, the Channel Islands and the Isle of Man are not prohibited. Such imports may have to be transported over longer distances than imports from Ireland. However, since the transportation process is regarded as one of the causes of cross-contamination, this is a point which the national court will need to take into account in its consideration of the case. In the absence of any question on that point from the national court, and since the relevant facts are not available, no further comment can be made in this connection.

39.It follows that the answer to be given to the first question posed by the national court is that a Member State may take interim protective measures pursuant to the fourth subparagraph of Article 9(1) of Directive 89/662 where the Commission has adopted a decision pursuant to Article 9(4) of that directive but has postponed its entry into force.

(b) The second question

40.The second question referred concerns the extent to which, in order for a Member State to be entitled to take interim protective measures pursuant to the fourth subparagraph of Article 9(1) of Directive 89/662, it must be certain, probable or possible that the Commission will bring its decision into force.

41.As is apparent from the remarks made above in relation to the first question, the fact that the decision adopted by the Commission has not yet taken effect that is to say, that it has not yet entered into force is enough to entitle a Member State to take action pursuant to the fourth subparagraph of Article 9(1) of Directive 89/662. In that connection, the Member States' power unilaterally to adopt protective measures by way of precaution does not depend on the degree of probability that a given decision of the Commission will enter into force. The sole decisive factor is that the area concerned is not yet covered by a Community measure.

42.Since the adoption of a Community act represents the culmination of a comprehensive political debate in which all the Member States take part, no single Member State can be expected to be able to foresee the result of that debate and to coordinate its own measure with that result. The only obligation on such a Member State is to comply, when adopting measures, with the applicable primary and secondary legislation.

43.It should be noted, however, that the exercise of that power by a Member State may not have the effect that the adoption by it of unilateral measures ultimately jeopardises the attainment of the objective aimed at by the Community measure. Particularly in such a sensitive area as zoonoses, and especially BSE, the legislation of individual Member States must not be liable to jeopardise, let alone frustrate, the aim of the Community legislature.

(c) The third question

44.By its third question, the national court seeks to ascertain whether Article 4(1) of the Commission Decision requires specified risk material to be removed and stained at the point of production and whether the point of production for those purposes means the place at which the animals are slaughtered.

45.First of all, it must again be stressed that the Commission Decision has not yet entered into force and does not, therefore, constitute a legal act applicable at the time of the main proceedings. The Court of Justice has repeatedly declined to express a view in response to hypothetical questions. It has stated as the reason for this approach that to provide an answer to a hypothetical question from a national court is not objectively necessary in order to enable a decision to be given in the proceedings before that court. The Court has indicated that it is clearly not competent to express a view on questions which cannot objectively make any contribution to the resolution of the dispute in the proceedings before the national court.

46.However, it has also consistently ruled that it is solely for the court making the reference to determine and establish, in the context of Article 177 of the EC Treaty (now Article 234 EC), the need for a preliminary ruling on the question or questions referred by it in order to enable it to deliver judgment.

47.In the present case, the measure adopted by the Member State namely, the 1997 Order may correspond so closely to the Commission Decision that the national court is unable to determine the proceedings pending before it without an interpretation of the Community provision. However, no indication to that effect is to be inferred from the order for reference.

48.In order to take into account the possibility that the Court may nevertheless decide, having regard to Article 4(1) of the Commission Decision, that it is necessary to answer the question referred to it, the following should be noted.

49.Article 4(1) of the Commission Decision is to be understood as providing merely that SRM is to be stained with a dye on removal and either destroyed by incineration or processed and subsequently incinerated, buried, burned as fuel or otherwise disposed of by a similar method which precludes the risk of transmission of a TSE.

50.It cannot, however, be inferred from that decision that transportation of bovine heads from slaughterhouses to cutting plants subject to compliance with the requisite safety measures is either precluded or necessary. The nineteenth recital in the preamble to the decision states that there are no effective controls or tests which can determine whether or not particular tissues have been used in the manufacturing of products. In order to ensure, however, that the tissues and fluids in question have not been used in the manufacture of products which are marketed in the Community, it is essential to ensure that at the point of production those tissues are removed, stained and subsequently destroyed by incineration, following rendering where necessary. The decision does not indicate the place at which SRM is to be removed, stained and destroyed. It likewise contains no definition of the term place of production.

51.However, for the purposes of interpreting the provision, reference should also be made to the fresh meat directive. The question can in any event by answered solely by reference to that directive. Article 3(1)(A) thereof provides that only carcases, half carcases and quarters may be transferred from a slaughterhouse. Subsequently, and especially for reasons of hygiene, any further cutting of the meat may be carried out only in the cutting plant, and not in the slaughterhouse. Consequently, the only SRM which may be removed in a slaughterhouse is that which is accessible without any further cutting of the meat, subject to the further condition that the slaughterhouse in question must meet the same hygienic and technical criteria as a cutting plant.

52.On the other hand, no rules are laid down specifying the cutting plant in which the cutting or removal of the meat is to take place, or the permissible distance between the cutting plant and the slaughterhouse. However, it must be assumed, for the purposes of guaranteeing a high level of health protection in that connection, that excessively long transport times are to be avoided, so as to exclude the risk of cross-contamination.

53.Consequently, the answer to be given to the third question referred by the national court is that specified risk material must be removed, stained and destroyed in the cutting plant.

(d) The fourth question

54.An answer to this question is requested in the event that the answer to the first question is in the negative. The national court seeks, in that eventuality, to know whether a Member State may justify under Article 36 of the EC Treaty, on the grounds of the protection of human health, measures including a prohibition on the importation of SRM or bovine heads containing such SRM.

55.As is apparent from the answer to be given to the first question, it was possible in principle to adopt the 1997 Order at issue on the basis of the fourth subparagraph of Article 9(1) of Directive 89/662. However, the power to adopt such a measure must also satisfy other provisions of Community law which are applicable and must fulfil the criteria laid down in Article 36 of the EC Treaty.

56.The prohibition on imports of bovine heads at issue in the present case constitutes a quantitative restriction on imports which is prohibited by Article 30 of the EC Treaty.

57.Before considering whether it may be justified on grounds of the protection of human health under Article 36 of the Treaty, it is first necessary to establish whether any Community harmonisation provisions apply in this area. While Article 36 allows the maintenance of restrictions on the free movement of goods on grounds of the protection of the health and life of humans, which constitutes a fundamental requirement recognised by Community law, recourse to Article 36 is no longer possible where Community directives provide for harmonisation of the measures necessary to attain the specific objective which would be furthered by reliance on that provision.

58.Directive 89/662 does not lay down any limitation as to imports of bovine meat or bovine meat products. In essence, it regulates the allocation of powers of veterinary control in intra-Community trade and provides, in the fourth subparagraph of Article 9(1), that Member States are to be permitted to take precautionary measures by way of protection where a Community measure is still pending.

59.Nor does the fresh meat directive constitute a harmonisation measure in this area. Although it lays down the health criteria to be fulfilled in relation to intra-Community trade in meat, including bovine meat, it contains no express rules concerning the avoidance of the risks posed to human health, especially by BSE.

60.The regulation proposed by the Commission, laying down rules for the prevention and control of certain transmissible spongiform encephalopathies (see point 17 above), may constitute such a harmonisation measure; however, it has not yet been adopted.

61.Consequently, until the Commission Decision enters into force, a Member State is entitled to rely on Article 36 of the EC Treaty in order to adopt legislation imposing, on grounds of the protection of the health and life of humans, restrictions on the free movement of goods.

62.It is not disputed that the 1997 Order was adopted in the context of the BSE threat with a view to protecting human and animal health.

63.In the event of a disease or other cause likely to constitute a serious hazard to animals or to human health, such as BSE, the immobilisation of animals and products and the containment of such animals and products within a specified territory constitutes an appropriate measure which may result from the decision taken by the Member State of import. According to the Court's case-law, in order for such containment to be effective, it may in some cases be necessary to impose a total ban on the movement of animals and products outside the frontiers of the Member State concerned.

64.With particular regard to the risks and dangers connected with BSE, the protective measure adopted as a precaution by the United Kingdom in the form of the 1997 Order must be regarded as an appropriate, necessary and reasonable means of attaining the desired objective. As regards the proportionality of the measure, it must be observed that, in view of the significant risk and the urgent need to take action, no less drastic measure was clearly available which could have guaranteed an adequate level of health protection. Reference may also be made in this connection to the matters set out in point 38 above.

65.However, since an answer to this question is requested only in the event that the first question is to be answered in the negative, it does not, in view of what is stated above, call for any express reply.

VI Costs

66.The costs incurred by the United Kingdom, Netherlands, French and German Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

VII Conclusion

67.In the light of the foregoing, I conclude that the questions referred for a preliminary ruling should be answered as follows:

(1) A Member State may take interim protective measures pursuant to the fourth subparagraph of Article 9(1) of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market where the Commission has adopted a decision pursuant to Article 9(4) of that directive but has postponed its entry into force.

(2)The Member States' power in that connection unilaterally to adopt protective measures by way of precaution does not depend on the degree of probability that a given decision of the Commission will enter into force; the sole decisive factor is that the area concerned is not yet covered by a Community measure.

(3)In accordance with Council Directive 64/433/EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat, in the version contained in Directive 91/497/EEC, any further cutting of carcases of slaughtered animals which have already been cut into half carcases or quarters must take place in the cutting plant. Consequently, specified risk material is also to be removed in the cutting plant.