(References for a preliminary ruling from the College van Beroep voor het bedrijfsleven)

(Agriculture – Control of foot-and-mouth disease – Protective measures adopted in addition to the measures provided for in Directive 85/511/EEC – Powers of the Member States)

Opinion of Advocate General Poiares Maduro delivered on 2 December 2004

Judgment of the Court (Third Chamber), 10 March 2005.

Summary of the Judgment

Agriculture – Approximation of laws – Control of foot-and-mouth disease – Directive 85/511 – Additional national measures to control the disease based on Directive 90/425 – Whether permissible – Conditions

(Council Directives 85/511, as amended by Directive 90/423, and 90/425, Art. 10(1))

Since foot-and-mouth disease is a disease which constitutes a serious hazard for animals, Article 10(1) of Directive 90/425 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market confers on Member States the power to adopt measures to control the disease in addition to those provided for in Directive 85/511 introducing Community measures for the control of foot-and-mouth disease, as amended by Directive 90/423. Member States have, in particular, the power to order the slaughter of animals belonging to a holding adjacent to or within a specific radius of a holding containing infected animals.

Such measures must however be adopted in compliance with the objectives pursued by the Community rules in force and, more particularly, Directive 85/511, as amended by Directive 90/423, the general principles of Community law, such as the principle of proportionality, and the obligation to communicate laid down in Article 10(1) of Directive 90/425.

(see para. 52, operative part)

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JUDGMENT OF THE COURT (Third Chamber) 10 March 2005 (1)

(Agriculture – Control of foot-and-mouth disease – Protective measures adopted in addition to the measures provided for in Directive 85/511/EEC – Powers of the Member States)

In Joined Cases C-96/03 and C-97/03, REFERENCES for preliminary rulings under Article 234 EC from the College van Beroep voor het bedrijfsleven (Netherlands), made by decisions of 7 January 2003, received at the Court on 4 March 2003, in the proceedings

Directeur van de Rijksdienst voor de keuring van Vee en Vlees,

THE COURT (Third Chamber),

composed of A. Rosas (Rapporteur), President of the Chamber, A. Borg Barthet, J.-P. Puissochet, J. Malenovský and U. Lõhmus, Judges, Advocate General: M. Poiares Maduro, Registrar: M. Múgica Arzamendi, Principal Administrator, having regard to the written procedure and further to the hearing on 30 September 2004, after considering the observations submitted on behalf of:

Mr Tempelman, by H. Bronkhorst, advocaat,

Mr and Mrs Van Schaijk, by A. van Beek, advocaat,

the Directeur van de Rijksdienst voor de keuring van Vee en Vlees, by E.J. Daalder, advocaat,

the Netherlands Government, by J.G.M. van Bakel and H.G. Sevenster, acting as Agents,

the Greek Government, by V. Kontolaimos, S. Charitaki and M. Tassopoulou, acting as Agents,

the Irish Government, by D. O'Hagan, acting as Agent, with P. McGarry, BL,

the Italian Government, by I. Braguglia and G. Fiengo, acting as Agents,

the United Kingdom Government, by R Caudwell and C. Jackson, acting as Agents, and P. Goldsmith QC, C. Vajda QC, and P. Harris, barrister,

the Commission of the European Communities, by T. van Rijn, acting as Agent, after hearing the Opinion of the Advocate General at the sitting on 2 December 2004, gives the following

The references for a preliminary ruling concern the interpretation of Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease (OJ 1985 L 315, p. 11), as amended by Council Directive 90/423/EEC of 26 June 1990 (OJ 1990 L 224, p. 13) (‘Directive 85/11’), and also of Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (OJ 1990 L 224, p. 29).

The references were made in proceedings between Mr Tempelman (C-96/03) and Mr and Mrs Van Schaijk (C-97/03) and the Director van Rijksdienst voor de keuring van Vee en Vlees (Director of the national cattle and meat inspection service; ‘the Director of the RVV’) concerning certain decisions whereby the Director of the RVV found that the biungulate animals belonging to the parties were suspected of being contaminated by foot-and-mouth disease and ordered their slaughter on the basis of the Gezondheids- en welzijnswet voor dieren (Law on animal health and welfare) of 24 September 1992 (Stbl. 1992, 585).

Applicable rules

The basic text defining the Community measures to control foot-and-mouth disease, which are applicable whenever that disease appears, is Directive 85/511. When that directive was amended following the adoption of Directive 90/423, it was decided to prohibit preventive vaccination against foot-and-mouth disease throughout the Community in favour of a control policy based on the total slaughter and destruction of infected animals. Emergency vaccination was still possible, however, on strict conditions and in agreement with the Commission of the European Communities.

Directive 85/511 provides in particular, in Article 4, that where a holding contains one or more animals suspected of being infected or of being contaminated with foot-and-mouth disease, the competent authority is to have the holding placed under official surveillance and is to impose various measures restricting movements of animals, products, persons and vehicles. Depending on the circumstances, those measures may be extended to cover adjoining holdings.

Article 5(2) of Directive 85/511 provides that, where it is established that one or more animals on a holding are infected, the competent authority must without delay order the slaughter on the spot and destruction of all animals of susceptible species on the holding. Article 5(4) of that directive provides that that authority may extend the measures provided for in paragraph 1 to adjoining holdings should their location, their configuration, or contacts with animals from the holding where the disease has been recorded give reason to suspect possible contamination.

Under Article 8 of that directive, holdings are to be placed under official surveillance where the official veterinarian finds, or considers on the basis of confirmed data, that they could have been in contact with the holdings referred to in Article 4 or 5 of the directive as a result of the movement of persons, animals or vehicles or in any other way.

By Commission Decision 2001/246/EC of 27 March 2001 laying down the conditions for the control and eradication of foot-and-mouth disease in the Netherlands in application of Article 13 of Directive 85/511 (OJ 2001 L 88, p. 21), suppressive vaccination was authorised in the Netherlands. Suppressive vaccination was defined as emergency vaccination of animals of susceptible species in identified holdings in a defined area, carried out exclusively in conjunction with pre-emptive killing.

Commission Decision 2001/279/EC of 5 April 2001 amending Decision 2001/246 (OJ 2001 L 96, p. 19) authorised, in particular, protective vaccination of bovine animals in an area of about 25 kilometres around Oene.

Article 10(1) and (4) of Council Directive 90/425 provides: 1. Each Member State shall immediately notify the other Member States and the Commission of any outbreak in its territory, in addition to an outbreak of diseases referred to in Directive 82/894/EEC, of any zoonoses, diseases or other cause likely to constitute a serious hazard to animals or to human health. The Member State of dispatch 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, including the quarantining of the animals. 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 holdings, centres or organisations concerned or, in the case of an epizootic disease, with regard to the buffer zone 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. 4. The Commission shall in all cases review the situation in the Standing Veterinary Committee at the earliest opportunity. It shall adopt the necessary measures for the animals and products referred to in Article 1 and, if the situation so requires, for the products derived from those animals, in accordance with the procedure laid down in Article 17. The Commission shall monitor the situation and, by the same procedure, shall amend or repeal the decisions taken, depending on how the situation develops.

The Law on animal health and welfare of 24 September 1992 provides, by way of a measure to control an infectious disease, that the competent authority may order the slaughter of animals suspected of being affected by the disease. According to the Regeling aanwijzing besmettelijke dierziekten (regulation designating contagious animal diseases) of 12 March 1996 (Stcrt. 1996, p. 61), an animal is regarded as ‘suspected’ when the designated agent has reason to believe that the animal had the opportunity to be infected or contaminated and where it belongs to a species susceptible to the contagious disease concerned.

Facts of the main proceedings and questions referred to the Court

It is apparent from the order for reference in Case C-96/03 that Mr Tempelman had a number of Angora goats at Wenum, in the area of 25 kilometres around Oene. On 3 April 2001, the Minister for Agriculture decided that all biungulate animals in the Oene area would be vaccinated and slaughtered. The existence of Mr Tempelman’s Angora goats was apparently discovered subsequently and the Director of the RVV, by decision of 23 May 2001, informed Mr Tempelman that his goats were regarded as suspected of being infected and must therefore be killed. By decision of 15 November 2001, the Director rejected Mr Tempelman’s complaint against that decision. On 17 December 2001, Mr Tempelman challenged that decision before the College van Beroep voor het bedrijfsleven.

It is apparent from the order for reference in Case C-97/03 that Mr and Mrs Van Schaijk ran a livestock holding at Ravenstein. By decision of 26 March 2001, the Director of the RVV informed them that all the biungulate animals on their holding were regarded as suspected of being infected by foot-and-mouth disease, on the ground that there was in the vicinity of the holding, at a distance of 772 metres from it, a holding on which one or more animals were strongly suspected of being infected by that disease, and that their animals therefore had to be killed. By decision of 15 November 2001, the Director of the RVV rejected Mr and Mrs Van Schaijk’s complaint against that decision. On 20 December 2001, Mr and Mrs Schaijk lodged an appeal against that decision before the College van Beroep voor het bedrijfsleven.

Before the national court, Mr Tempelman and Mr and Mrs Van Schaijk put forward a number of pleas in law alleging breach of both international and Community law and national law.

Examining the pleas alleging breach of national law, the College van Beroep voor het bedrijfsleven held, in its decision giving rise to Case C-96/03: ‘The strategy for preventing any (further) spread of the foot-and-mouth disease virus which the respondent pursued until 3 April 2001, and which consisted in killing all biungulates within a radius of one (later two) kilometres of each source of contamination, was unable to prevent sources of the disease from continuing to appear in the Oene region. Consequently, and also in the light of the high density of livestock in that region, the College van Beroep considers that, from a veterinary point of view, the respondent could reasonably suppose that there might be biungulates carrying pathogenic agents even outside the two-kilometre zones around the contamination sources. In that regard, the College van Beroep takes into account the fact that the foot-and-mouth disease virus is extremely contagious, that it is capable of spreading very rapidly and in various ways and that the respondent consulted veterinary experts about the measures to be taken.