Important legal notice

61987C0131

European Court reports 1989 Page 03743

Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A -Facts

1 . The question at issue in these proceedings is whether Council Directive 87/64/EEC of 30 December 1986 amending Directive 72/461/EEC on health problems affecting intra-Community trade in fresh meat and Directive 72/462/EEC on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries ( 1 ) was properly adopted on the basis of Articles 100 and 113 of the EEC Treaty or whether it should have been founded solely on Article 43 of the EEC Treaty .

3 . To that end it was thought necessary to amend Directive 72/462/EEC, ( 2 ) under which imports are permitted only from certain third countries specified on a list, provided that certain conditions laid down by the so-called administrative-committee procedure are satisfied . Thus it was provided ( in a paragraph added to Article 16 of Directive 72/462 ) essentially that glands, organs and blood could also be imported as raw materials for the pharmaceutical processing industry from third countries which do not appear in the abovementioned list .

4 . Secondly, it was considered necessary to amend Directive 72/461 ( 3 ) under which certain conditions have to be satisfied with regard to intra-Community trade ( inter alia that the meat must not have been obtained from animals which come from a holding or area which, for health reasons, is subject to prohibition pursuant to the Council directive on animal health problems affecting intra-Community trade in bovine animals and swine as a result of certain diseases ). In that respect it was provided ( in a paragraph added to Article 3 of that directive ) that by way of derogation from Article 8a ( under which the export of fresh pigmeat from Member States in which African swine fever has been recorded within a specific period is in principle prohibited ) authorization may be given for the introduction of glands, organs and blood as raw materials for the pharmaceutical processing industry .

5 . The Commission based its proposal to that effect solely on Article 43 of the EEC Treaty . Because Articles 100 and 113 of the EEC Treaty were chosen as the legal basis for the amending directive ( which, moreover, made changes to the content of the Commission' s proposal ), the Commission brought these proceedings with the aim of having the amending directive annulled on the ground that an inappropriate legal basis had been chosen . That aim is supported by the Kingdom of the Netherlands, whereas the Council' s position in the case has been defended by the United Kingdom and the Kingdom of Denmark .

B - Analysis

6 . In my view the following observations may be made with regard to this dispute .

1 . As we know - and for the details I would refer to the Report for the Hearing - the Commission has, in fact, two lines of argument .

7 . It considers that even the original directives, dating from 1972, ( which were actually based on Articles 43 and 100 of the EEC Treaty ) should have been adopted on the basis of Article 43 of the Treaty alone . Essentially the directives concerned merely the establishment of common health provisions in respect of meat imports with a view to stabilizing the market and assuring the availability of supplies and therefore measures that are important for the functioning of a common organization of the market because they ensure free trade in conditions of fair competition . Accordingly, it would normally follow that the same would be true of the amending directive .

8 . Secondly, it also considers that it is clear from the content itself of the contested directive that Article 43 of the Treaty is sufficient since the directive lays down rules concerning the products listed in Annex II to the Treaty and thus seeks to achieve objectives defined in Article 39 of the Treaty . The Commission relies in this respect principally on the judgment in Case 68/86 ( 4 ) concerning the so-called "hormone directive ". In that judgment it was emphasized that Article 43 was the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the achievement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty; it was also made clear that where legislation is directed both to objectives of agricultural policy and to other objectives which, in the absence of specific provisions, are pursued on the basis of Article 100 of the Treaty, recourse to Article 43 is sufficient .

9 . I consider it preferable to deal with the second line of argument first . That will clearly avoid a digression ( namely the resolution of a dispute concerning the amended directive which was not settled when it first came up ), and also save the need to examine the problem of how far there really is the "parallelism of form" ( 5 ) emphasized by the Commission .

10 . In particular the question arises - in view of the abovementioned judgment and the position in these proceedings - whether the products at issue are included without exception in Annex II to the Treaty ( whereupon a subsidiary question may arise as to whether they must be the subject-matter of an organization of the market and whether that condition is met by the products in this case ). Secondly, there is also the question whether the contested legislation does actually ( also ) pursue agricultural policy objectives within the meaning of the judgment in Case 68/86 .

11 . 2 . As far as the first question is concerned ( that is to say, whether the contested decision actually concerns only products that are included in Annex II to the EEC Treaty ), critical observations were made by the United Kingdom in its intervention pleadings . Referring to the Explanatory Notes to the Tariff Nomenclature ( it was, however, acknowledged at the hearing that the 1986 version had mistakenly been used rather than the earlier version which continued to apply to the unamended Annex II ), the United Kingdom concluded that the products to which the contested decision refers do not for the most part, when imported as raw material for the pharmaceutical industry, fall under tariff headings listed in Annex II to the Treaty .

13 . The Commission began by stressing that when the contested directive was adopted no such doubts were apparent or played any part in the choice of legal basis . It attempted to resolve the doubts expressed by pointing out that what was really important as far as the Tariff Nomenclature was concerned in this connection was the differentiation between products which are suitable for human consumption and those which are not, and thus end-use was not the first consideration . It referred on the one hand to the description of Heading 02.01 ( which corresponds to the chapter heading ) and to the Explanatory Notes to Chapter 2 (" General", first paragraph ) and, on the other hand to Note 1(a ) to Chapter 5 ( according to which the chapter does not cover edible products ), to the description of Heading 05.15 ( products of animal origin unfit for human consumption ) and to paragraph ( 1 ) of the Explanatory Notes to Heading 05.14 ( which refers to animal glands and other animal organs unfit for human consumption ). However, inasmuch as the Explanatory Notes also mention use for pharmaceutical purposes ( as in the general comments on Chapter 2 in paragraphs ( 2 ) and ( 3 ) ), it should not be overlooked that in the explanations following Category 3 it is made clear that the products in question fall in any case under Chapter 2 if they are suitable as such for human consumption, and there is no doubt that Category 2 ( concerning products which are used solely in the preparation of pharmaceutical products ) covers only such products as can never be fit for human consumption ( which are therefore classified under Heading 05.14 - glands and other animal organs unfit for human consumption - or under Heading 30.01 - dried glands and other organs of animal origin of the kind used in medicine ). Moreover, since the contested directive provides for derogations from Directives 72/461/EEC and 72/462/EEC and the latter directives, according to the express definition given, are concerned only with meat fit for human consumption - from which it follows that the scope of the contested directive is also similarly circumscribed - there can be no doubt that the directive refers only to products which are covered by Annex II ( simply because glands and organs fit for consumption clearly fall under Chapter 2 of the Customs Tariff and as regards blood, it is plain that in edible form it falls under Heading 05.15 ).

14 . It must be pointed out at the outset that it is common ground in this dispute that the exact extent of the headings listed in Annex II is to be determined by reference to the Explanatory Notes to the Brussels Tariff Nomenclature ( as was noted in the judgment in Case 61/80 ( 6 )). It is also evidently not disputed that the scope of the contested directive cannot simply be determined by reference to its preamble ( which speaks of the liberalization of the importation of glands, organs and blood for the pharmaceutical industry ) which would mean that - according to the Explanatory Notes to the Customs Tariff, which mention one such end-use - headings are clearly encompassed which are not listed in Annex II ( namely Headings 05.15 and 30.01 ).

15 . More important as far as the scope of the contested directive is concerned is its connection with Directives 72/461/EEC and 72/462/EEC and thus their field of application which is determined by the precise definition of fresh meat ( of certain animals ) as including all parts of those animals which are fit for human consumption and have not undergone any preserving process except chilling or freezing ( Article 1 of Directive 72/461; Article 2 of Directive 72/462, which refers to the definitions given in Directives 64/432, ( 7 ) 64/433 ( 8 ) and 72/461 ).

16 . Accordingly it is perfectly clear that the contested directive does not relate to products which are dealt with in the Explanatory Notes to Chapter 2 of the Customs Tariff ( under "General" in paragraph ( 3 ) ), at all events in so far as the products might fall under Heading O5.14 - by virtue of provisional preservation - or under Heading 30.01 - by virtue of being dried - and that it does not refer either to the products mentioned in the Explanatory Notes as falling under subheadings 30.01 A or 30.01 B which are also described as "dried, powdered or preserved ". The fact that such products are not listed in Annex II to the Treaty is thus immaterial to the decision in this case .

17 . In actual fact this case hinges on the proper interpretation of the definition of meat (" all parts which are fit for human consumption" of the listed animals ) applying for the purposes of the amended directives, that is to say the question whether it follows from that definition that the contested directive only encompasses meat that is directly, in its actual state, fit for consumption ( as the Commission appears to assume ) or whether ( as the Council and the United Kingdom suggest ) that interpretation is incorrect and the directive therefore encompasses all parts of the animal which, by reason of their nature, can be consumed even though in a specific case they might be in a state which excludes consumption . The answer to that question is irrelevant as regards the products also mentioned in this case which are referred to in the Explanatory Notes to Chapter 2 "General", paragraph ( 2 ), since clearly here - according to the uncontradicted assertions of the Commission - are meant only offals, which by reason of their nature, are definitely not for human consumption . The answer is, however, significant as regards the products listed in the Explanatory Notes to Heading 05.14 ( a heading not mentioned in Annex II ), because it is relevant that this concerns glands and other animal organs used in the preparation of organo-therapeutic products which are unfit for human consumption by reason of their nature or of the manner in which they are put up . If the Commission' s view is followed, those products do not fall within the field of application of the contested directive ( because it is enough in that respect that they are not fit for consumption in their actual state ), whereas they are covered by the directive according to the position adopted by the Council and the United Kingdom, because it is irrelevant that the way they are put up excludes their being consumed, if, by reason of their nature, they could be .

18 . Let it be said right away that on this central issue ( regarding the substantive field of application of the directive ) the Council and the United Kingdom seem to me to have the stronger case .

19 . I am not, however, thinking of the distinction on which the United Kingdom laid emphasis between "fit" and "suitable" which in its view is important as far as the Customs Tariff is concerned and turns on whether a product ( in the case of the first term ) can be consumed having regard to its actual state or whether ( in the case of the second term ) it can be regarded as suitable for consumption by reason of its nature . For although it must be acknowledged that in the English version of the Explanatory Notes to Chapter 2 in paragraph ( a ) both terms appear ( the French version contains only the term "impropre ") and that the Explanatory Notes to Chapter 3 speak of "fish, dead, unfit or unsuitable for human consumption by reason of either their species or their condition", on the other hand, in the Explanatory Notes to Heading 05.14 it is stated that the heading includes "animal glands and other animal organs of a kind used in the preparation of organo-therapeutic products and unfit by reason of their nature or of the manner in which they are put up for human consumption", and that in the directive in question the English version uses the term "fit" rather than "suitable" in the definition of meat .

20 . What does seem significant, however, is the argument based on the phrasing of the definition in question ("' meat' means all parts of (( those animals )) which are fit for human consumption "). That would indeed suggest that a contrast is intended between parts which are in principle fit for consumption and other parts which cannot conceivably be consumed, which means that the directive refers to parts which by reason of their nature can be consumed, including those which, because of their particular actual state, are no longer fit for consumption .

21 . Other arguments drawn by the Council and the United Kingdom from the scheme of the directive also carry some weight . Thus it is hardly reasonable to suppose that Directive 72/462 ( which refers to Directive 64/433 ) is applicable only to meat in an edible state when there are rules on the technical requirements to be satisfied before products are regarded as fit for human consumption .

C- Conclusion

(*) Original language: German.

(1) OJ L 34, 5.2.1987, p. 52.

(2) OJ, English Special Edition 1972 (31 December), p. 7.

(3) OJ, English Special Edition 1972 (31 December), p. 3.

(4) Judgment of 23 February 1988 in Case 68/86 United Kingdom v Council and Commission ((1988)) ECR 855.

(5) Meaning that an amending legal measure should have the same legal basis as the original measure.

(6) Judgment of 25 March 1981 in Case 61/80 Cooeperatieve Stremsel en Kleurselfabriek v Commission ((1981)) ECR 851.

(7) OJ, English Special Edition 1964, p. 164.

(8) OJ, English Special Edition 1964, p. 185.

(9) OJ L 370, 30.12.1987, p. 7 et seq.

(10) OJ, English Special Edition 1968 (I), p. 209.

(11) OJ L 370, 30.12.1987, p. 36.

(12) Judgment of 2 June 1976 in Joined Cases 56 and 60/74 Kampffmeyer v Commission and Council ((1976)) ECR 711.

(13) Judgment of 26 March in Case 45/86 Commission v Council ((1987)) ECR 1493.