Avis juridique important

Order of the Court of 21 June 2000. - French Republic v Commission of the European Communities. - Application for annulment - Manifest inadmissibility. - Case C-514/99. European Court reports 2000 Page I-04705

Parties Grounds Decision on costs Operative part

Actions for annulment - Actionable measures - Implied decision of the Commission refusing to amend Decision 1995/514/EC despite allegedly new evidence communicated by a Member State casting doubt on the correctness of that decision - No such decision - Manifest inadmissibility - Recourse to the procedure for failure to act

(Arts 230 EC and 232 EC)

In Case C-514/99,

French Republic, represented by R. Abraham, Director of Legal Affairs in the Ministry of Foreign Affairs, K. Rispal-Bellanger and R. Loosli-Surrans, respectively Head of Subdirectorate and Chargée de Mission in that Ministry, acting as Agents, with an address for service in Luxembourg at the French Embassy, 8b Boulevard Joseph II,

applicant,

v

Commission of the European Communities, represented by D. Booß, Principal Legal Adviser, and G. Berscheid, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its legal service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of the decision by which the Commission is alleged to have refused to amend or repeal its Decision 1999/514/EC of 23 July 1999 setting the date on which dispatch from the United Kingdom of bovine products under the date-based export scheme may commence by virtue of Article 6(5) of Council Decision 98/256/EC (OJ 1999 L 195, p. 42),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.C. Moitinho de Almeida, D.A.O. Edward, L. Sevón (Rapporteur), R. Schintgen (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann, A. La Pergola, J.-P. Puissochet, G. Hirsch, P. Jann, H. Ragnemalm, M. Wathelet, V. Skouris and F. Macken, Judges,

Advocate General: J. Mischo,

Registrar: R. Grass,

after hearing the Opinion of the Advocate General,

makes the following

Order

1 By application lodged at the Court Registry on 29 December 1999, the French Republic brought an action under Article 230 EC for the annulment of the decision by which the Commission is alleged to have refused to amend or repeal its Decision 1999/514/EC setting the date on which dispatch from the United Kingdom of bovine products under the date-based export scheme may commence by virtue of Article 6(5) of Council Decision 98/256/EC (OJ 1998 L 195, p. 42).

2 According to the French Government, [t]hat decision was revealed by a statement made on 29 October 1999 by Mr Commissioner Byrne, in which he expressed the view that, following the issue on the same day of the opinion of the Scientific Steering Committee (SSC), there was no longer any need to "re-examine the decision to lift the ban on exports of British beef", and in particular by the decision dated 17 November 1999 by which the college of Commissioners gave formal notice to France requiring it to comply with Decision 99/514 and to lift its ban.

Facts

3 Following the discovery of a probable link between a variant of Creutzfeldt-Jakob disease, a disease affecting human beings, and bovine spongiform encephalopathy (hereinafter BSE), which was widespread in the United Kingdom at the time, the Commission adopted Decision 96/239/EC of 27 March 1996 on emergency measures to protect against bovine spongiform encephalopathy (OJ 1996 L 78, p. 47, hereinafter the ban decision), prohibiting the United Kingdom from exporting from its territory to the other Member States and third countries, in particular, live bovine animals, meat of bovine animals and products obtained from bovine animals.

4 That decision was based on the EC Treaty, on 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), as last amended by Council Directive 92/118/EEC of 17 December 1992 laying down animal health and public health requirements governing trade in and imports into the Community of products not subject to the said requirements laid down in specific Community rules referred to in Annex A (I) to Directive 89/662/EEC and, as regards pathogens, on Directive 90/425/EEC (OJ 1993 L 62, p. 49), and in particular Article 10(4) thereof, and on Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks applicable in intra-Community trade with a view to the completion of the internal market (OJ 1989 L 395, p. 13), as last amended by Directive 92/118 and in particular Article 9 thereof.

5 The ban decision provided, in Article 3, that the United Kingdom was to send the Commission every two weeks a report on the application of the protective measures taken against BSE, in accordance with Community and national provisions.

6 Under Article 4 of that decision, the United Kingdom was invited to present further proposals for controlling BSE in its territory.

7 The seventh recital in the preamble to the ban decision stated that the decision would have to be reviewed once all the elements mentioned therein had been examined.

8 On 16 March 1998, the Council adopted Decision 98/256/EC concerning emergency measures to protect against bovine spongiform encephalopathy, amending Decision 94/474/EC and repealing Decision 96/239/EC (OJ 1998 L 113, p. 32), by which it lifted the ban, subject to strict conditions, for certain meats and meat products derived from bovine animals slaughtered in Northern Ireland (Export Certified Herds Scheme).

9 The resumption of exports under that scheme was determined by Commission Decision 98/351/EC of 29 May 1998 setting the date on which dispatch from Northern Ireland of bovine products under the Export Certified Herds Scheme may commence by virtue of Article 6(5) of Decision 98/256 (OJ 1998 L 157, p. 110).

10 Under Commission Decision 98/692/EC of 25 November 1998 amending Decision 98/256 (OJ 1998 L 328, p. 28), the principle of permitting the dispatch of bovine products under a Date-Based Export Scheme (DBES, hereinafter DBES products) was adopted by amendment of Article 6 of Decision 98/256. Article 6(5) of the latter, as amended by Decision 98/692, provides that the Commission, after having verified the application of all the provisions of that decision on the basis of Community inspections and after having informed the Member States, is to set the date on which dispatch of the products referred to may commence.

11 Pursuant to that provision, Decision 1999/514 set that date as 1 August 1999.

12 By letter of 1 October 1999, the French Republic forwarded to the Commission the opinion delivered by the Agence Française pour la Sécurité Sanitaire des Aliments (French Food Safety Agency; hereinafter the AFSSA) on 30 September 1999, from which it appears that recent scientific advances and the present factual context still raise questions with regard to the safety of DBES products. In that opinion the experts claim, in particular, that the risk of contamination of bovine animals may come from a third route, and not only from the two routes already known about, namely feed and maternal transmission. The French Republic requested that that opinion and the data on which it was based be examined by the Scientific Steering Committee (hereinafter the SSC).

13 The Commission forwarded that opinion to the SSC, requesting answers to the following questions:

1. Do the opinions and documents provided by the French authorities contain any scientific information, epidemiological data or other evidence which has not been taken into consideration by the SSC?

2. If those documents contained information, data or evidence, or if the SSC had any such new information at its disposal, would that necessitate a re-examination of any of the four SSC opinions relating directly to the scientific justification for the DBES?

3. In the light of the answers to the above question, does the SSC confirm (or not) its position that the conditions of the DBES, if properly complied with, are satisfactory as far as the safety of meat or meat products is concerned?

14 Those questions were examined first by the group specialising in transmissible spongiform encephalopathies, the TSE/BSE ad hoc group. At its meetings of 14 and 25 October 1999, the group examined the AFSSA opinion and did not reach any unanimous conclusions with regard to the questions put to it by the Commission.

15 At its meetings of 28 and 29 October 1999, the SSC also examined that opinion and the questions from the Commission. It pointed out that new data were continually becoming available and that these were being examined by it and by the TSE/BSE ad hoc group at their monthly meetings. It noted that the value of rapid diagnostic tests was not new, but that the newly-developed tests had not yet been evaluated. That evaluation would be complex but should be accorded priority. Having examined the epidemiological data relating to BSE in the United Kingdom up to mid-October 1999, it found that the incidence of the disease was continuing to decline and that there was therefore no reason to suppose that there was a new route of infection. It concluded that there was no reason to re-examine its conclusions relating to the justification for the DBES. It stressed that its risk assessment was dependent on the action taken by the Commission and the Member States to ensure that the proposed measures for preventing or limiting the risk were meticulously complied with. It pointed out that the guarantee of the British DBES was strictly dependent on maintenance of the prohibition of the use of feed made from meat-and-bone meal, on the 30-month rule and on clear proof that the risk through maternal transmission was reduced to a minimum. In conclusion, it took the view that the measures adopted by the United Kingdom rendered the risk of the British DBES to human health comparable, at the very least, with that existing in the other Member States.

16 On 29 October 1999, the day on which the SSC delivered its opinion, Mr Byrne made a statement. According to a document annexed to the objection of inadmissibility lodged by the Commission, that statement contained, in particular, the following passages:

I have only received the committee's report within the past half hour. You will appreciate, therefore, that I can only comment in general on its contents.

However, I can say that the committee has confirmed that there is no need to review the decision to lift the ban on UK beef exports. This follows a very thorough examination which focuses on the concerns raised by the French authorities.

From my preliminary reading of the report, I can say that it is comprehensive, reasoned and balanced.

The Committee's conclusions have been already sent to the European Parliament and I will deal with this matter in Parliament next week.

I have made contact this evening with representatives of both the French, British and German Governments.

I expect to have discussions early next week with both Mr Nick Brown and Mr Jean Glavany regarding the scientific committee's opinion.

Clearly, we all need a few days to reflect on the full implications. However, I am optimistic that all will see it as a very positive development in resolving the current difficulties. I am now confident that a rapid solution is in sight.

I believe that the French and German authorities should take stock of the committee's opinion and lift their national restrictions on imports of British beef. These restrictions are no longer necessary in the light of the safeguards in place. The safeguards in question were introduced on sound scientific advice. This advice has now been re-confirmed.

17 Since the French Republic did not lift its ban, various meetings were held on 2, 5, 12 and 15 November 1999 between representatives of the French and British authorities and of the Commission.

18 On 17 November 1999, the Commission sent the French Republic a letter of formal notice pursuant to Article 226 EC. In that letter the Commission stated, in particular, that, by its refusal to allow British beef conforming to Community requirements to be marketed within its territory after 1 August 1999, that Member State had failed to fulfil its obligations under Community law. By that same letter, the Commission requested the French Government to submit its observations to it within 15 days and reserved the right, after examining them, to deliver a reasoned opinion under Article 226 EC.

The application

19 The action has been brought against the Commission's decision, revealed by the statement made by Mr Byrne on 29 October 1999 and by the decision of the college of Commissioners to send the applicant a letter of formal notice on 17 November 1999, not to amend, or indeed to repeal, the act by which it decided to lift the ban on British beef as from 1 August 1999 (hereinafter the contested decision).

20 According to the applicant, that decision cannot be regarded as constituting a mere confirmatory decision in so far as, following the opinion delivered by the AFSSA on 30 September 1999, the French Republic forwarded to the Commission the new scientific evidence on which the AFSSA had in particular based itself in issuing an opinion unfavourable to the lifting of the ban.

21 The action is based on three pleas in law.

22 The applicant's primary plea is that the Commission infringed the precautionary principle in that it failed to take account of the possible existence of a third route of contamination, namely, horizontal transmission or transmission by contact between animals. Moreover, because of the uncertainty regarding the distribution of the infectious agent within the organism of the animal during the incubation period, it cannot be affirmed, according to the application, that the criteria laid down for the export of British bovine animals in terms of tissues (meat which has been boned and from which the nerves have been removed) and age of the animal (between six and 30 months) afford sufficient guarantees to ensure the protection of public health.

23 Secondly, the applicant alleges that the procedure followed by the Commission was deficient in that it failed to take account, on the one hand, of the minority opinions expressed within the TSE/BSE ad hoc group and, on the other hand, of the opinion of the AFSSA, of the new scientific information available since the adoption of Decision 1999/514 and the delivery of the AFSSA's opinion, or of the abandonment of the rules on compulsory labelling which were due to enter into force on 1 January 2000.

24 Finally, the applicant claims that insufficient reasons were given for the contested decision.

The objection of inadmissibility

25 Pursuant to Article 91(1) of the Rules of Procedure of the Court of Justice, the Commission, by separate document, raised an objection of inadmissibility.

26 It pleads, first, the absence of any Commission decision for the purposes of Article 249 EC, pointing out that no decision was submitted with the application, as is required by Article 19 of the EC Statute of the Court of Justice, and that, even where an implied decision is claimed to exist, it is for the applicant to prove that it does.

27 The statement made by Mr Byrne on 29 October 1999 cannot constitute such a decision. He merely announced the conclusions of the SSC and did not express any opinion on behalf of the Commission. Moreover, amendment of Decision 1999/514 would have required recourse to the comitology procedure, as laid down in Directives 89/662 and 90/425. Under that procedure, the Commission may not act alone, but must be assisted by the Standing Veterinary Committee, which consists of representatives of the Member States and therefore also includes a representative of the French Republic.

28 As regards the decision to send a letter of formal notice, it is clear from the case-law of the Court that such a decision cannot form the subject of an action for annulment.

29 Second, the Commission pleads abuse of process, contending that, if the French Republic were entitled to secure a decision from the Commission, the situation would in reality be one of failure to act and it would have been for that State to have that alleged failure established in accordance with the procedure laid down in Article 232 EC.

30 The third ground of inadmissibility raised by the Commission is absence of a legal interest in bringing proceedings. Decision 1999/514, it contends, is merely a decision implementing previous decisions the amendment of which has not been sought by the French Republic.

31 Fourthly, even assuming that an act had been adopted by the Commission, it would, according to the Commission, be a confirmatory act having the same content as Decision 1999/514. The opinion of the SSC establishes that there was no new evidence. Even if there had been, the alleged Commission decision would merely have confirmed the previous decision.

32 Finally, the Commission criticises the artificial nature of the case mounted by the French Government with the sole aim of avoiding the problem created by the fact that actions against Decision 1999/514 are time-barred.

33 The applicant challenges the objection of inadmissibility.

34 It maintains that a decision refusing to amend Decision 1999/514 does exist and that the essential question for the purpose of determining the admissibility of the action is whether new evidence was submitted. The question whether the evidence submitted was such as to call into question the original decision is a matter which goes to the substance of the case and is not to be taken into consideration at the admissibility stage.

35 It challenges the argument that it would have been necessary to adhere to the comitology procedure laid down in Directives 89/662 and 90/425. It draws attention to the objective of cooperation and of coordination of national and Community policies, described in Article 152 EC, in order to ensure a high level of human-health protection, and points out that, pursuant to the fourth paragraph of Article 9(1) of Directive 89/662, a Member State may take interim protective measures. Once adopted, such measures must be communicated to the Commission and the other Member States and, pursuant to Article 9(4) of the same directive, it is for the Commission to take a decision in accordance with the procedure indicated.

36 The applicant denies that the action it has brought is artificial in nature, pointing out that, by whatever method the time-limit is calculated, on 30 September 1999, the date on which the first AFSSA opinion was delivered, it was still within the time-limit for bringing an action for annulment against Decision 1999/514. Its reason for not doing so was in order to follow the normal procedure laid down in Directive 89/662.

37 With regard to a legal interest in bringing proceedings, it submits that there can be no disputing that a Member State which has submitted new scientific evidence which it considers to be such as to call into question a Commission decision has a legal interest in bringing proceedings against the Commission's refusal to amend its original decision in the light of that scientific evidence.

38 Finally, the applicant denies that the proper course would have been to bring an action for failure to act. For there to be failure to act, the institution must have failed to define its position. In this case, the Commission defined its position by means of the contested decision, a position which was revealed by the statement made by Mr Byrne on 29 October 1999 and by the letter of formal notice sent to the French authorities.

Findings of the Court

39 Under Article 92(1) of the Rules of Procedure, where it is clear that the Court has no jurisdiction to take cognisance of an action or where the action is manifestly inadmissible, the Court may, by reasoned order, after hearing the Advocate General and without taking further steps in the proceedings, give a decision on the action.

40 The present action is brought under Article 230 EC, which provides that the Court is to review the legality of acts of the institutions, other than recommendations and opinions.

41 It is brought against what the applicant claims to be a decision refusing to amend Decision 1999/514, despite the allegedly new evidence communicated by it to the Commission with regard to the possible existence of a third route of contamination of bovine animals, calling into question the validity of Decision 1999/514.

42 It claims that that decision refusing to amend or repeal the said decision is implicit, but was revealed by the statement made by Mr Byrne on 29 October 1999 and by the Commission's sending of a letter of formal notice on 17 November 1999.

43 It must be pointed out that, in that statement, the wording of which was recorded by the defendant, Mr Byrne gave a report, in very general terms, of the opinion delivered by the SSC and announced probable negotiations between the Community authorities and those of the Member States affected by the problem.

44 Such a statement does not constitute the definition of a position by the Commission with regard to the evidence submitted by the applicant. Mr Byrne merely set forth the opinion of the SSC and expressed the hope that a solution would be found to the specific difficulties.

45 It cannot therefore be regarded as the expression of a Commission decision refusing to amend Decision 1999/514, against which an action for annulment may be brought.

46 With regard to the sending of the letter of formal notice of 17 November 1999, that action demonstrates the intention to bring the failure to implement Decision 1999/514 before the Court but, again, cannot be construed as disclosing a decision of refusal to amend that decision, against which an action for annulment may be brought.

49 It follows from the foregoing that the application must be declared manifestly inadmissible.

Costs

50 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the French Republic has been unsuccessful and the Commission has applied for costs, the French Republic must be ordered to pay the costs.

On those grounds,

THE COURT

hereby orders:

1. The application is dismissed.

2. The French Republic shall pay the costs.