Avis juridique important

Order of the President of the Court of 13 July 1988. - Fédération européenne de la santé animale and others v Council of the European Communities. - Prohibition of the use in livestock farming of certain substances having a hormonal action. - Case 160/88 R. European Court reports 1988 Page 04121

Summary Parties Grounds Operative part

++++

Application for interim measures - Conditions of admissibility - Admissibility of the main application - Irrelevance - Limits

( EEC Treaty, Arts 185 and 186; Rules of Procedure, Art . 83 ( 1 ) )

Although in principle the issue of the admissibility of the main application should not be examined in proceedings relating to an application for interim measures, so as not to prejudge the substance of the case, it nevertheless seems necessary, when it is contended that the main application to which the application for interim measures relates is manifestly inadmissible, to establish whether there are any grounds for concluding prima facie that the main application is admissible .

Such an approach is all the more necessary in a case where the applicant is a private party seeking a declaration that a measure of general application is void, in order to prevent a situation where that person is able, by means of an application for interim measures, to obtain the suspension of the operation of a measure which the Court subsequently refuses to declare void because his application is inadmissible .

In Case 160/88 R

Fédération européenne de la santé animale, a non-profit association whose statutory office is at 1 rue Defacqz, 1050 Brussels,

Distrivet SA, a company incorporated under French law whose registered office is at 35 boulevard des Invalides, 75007 Paris, and

Pitman-Moore Inc ., a company incorporated under the law of the State of Delaware whose registered office is in Northbrook, Illinois,

represented by Christopher Carr, QC, and T . Sharpe, Barristers-at-law and members of the Bar of England and Wales, and by E . Marissens, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Y . Prussen, 15 Côte d' Eich

applicants,

v

Council of the European Communities, represented by M . Sims, a member of its Legal Department, and B . Hoff-Nielsen, Legal Adviser in that department, acting as Agents, with an address for service in Luxembourg at the office of J . Kaeser, Manager of the Legal Directorate of the European Investment Bank, 100 boulevard Konrad Adenauer,

defendant,

APPLICATION, primarily, for the suspension, under Article 185 of the EEC Treaty or under Article 186 of that Treaty, of the operation of Council Directive 88/146/EEC of 7 March 1988 prohibiting the use in livestock farming of certain substances having a hormonal action ( Official Journal 1988 L 70, p . 16 ),

The President of the Court of Justice

of the European Communities

makes the following

Order

1 By an application lodged at the Court Registry on 2 June 1988, the Fédération européeene de la santé animale ( hereinafter referred to as "the Association "), Distrivet SA and Pitman-Moore Inc . brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that Council Directive 88/146/EEC of 7 March 1988 prohibiting the use in livestock farming of certain substances having a hormonal action is void .

2 By an application lodged at the Court Registry on 17 June 1988, the applicants requested the adoption of interim measures under Articles 185 and 186 of the EEC Treaty and Article 83 of the Rules of Procedure, claiming primarily that the Court should order the Council, by way of suspension or other interim measures, to suspend the operation of Council Directive 88/146/EEC until the Court has given a ruling on the main application, in so far as the directive prohibits the following :

( i ) the administration in the territory of the Community by livestock farmers of the following hormonal substances : oestradiol 17 beta, progesterone, testosterone, trenbolone and zeranol, which are hormonal substances used for fattening purposes;

( ii ) the placing on the market of the meat of animals to which those hormones have been administered in any part of the common market;

( iii ) the importation into the Member States of meat from animals which have been fattened by the use of those hormones in non-member countries;

and, in the alternative, that the Court should adopt such other interim measures as it thinks fit .

3 The defendant submitted its written observations on 1 July 1988 . Since the parties' written submissions contained all the information needed to rule on the application, it was not necessary to hear oral argument from the parties .

4 Before considering whether this application for interim measures is well founded, it may be helpful briefly to review the context and the legislative background of this case .

5 The Association is an association whose membership includes all large international research-based companies in Europe which manufacture and distribute animal health products, including the five hormones to which Council Directive 88/146/EEC relates . Distrivet and Pitman-Moore are companies engaged in the manufacture and distribution in the territory of the common market of veterinary products, in particular of substances having a hormonal action used, whether or not for therapeutic purposes, in the rearing of animals intended for consumption .

6 A Community policy on substances having a hormonal or thyrostatic action was first established by the adoption by the Council on 31 July 1981 of Directive 81/602/EEC concerning the prohibition of certain substances having a hormonal action and of any substances having a thyrostatic action ( Official Journal 1982 L 222, p . 32 ). Article 2 of the directive provides for the prohibition, in general, of substances having a hormonal or thyrostatic action, so that the administering of such substances to farm animals and the placing on the market of animals to which such substances have been administered and of the meat of such animals are prohibited . Article 4 ( 1 ) of the directive provides that, by way of derogation from that principle, the Member States may authorize the administering to farm animals of substances having a hormonal action for therapeutic or zootechnical purposes .

7 Article 5 of the directive established a special set of rules with regard to the administering of five particular substances, namely oestradiol 17 beta, progesterone, testosterone, trenbolone and zeranol . The first two paragraphs of Article 5 provide that the Council is to take a decision as soon as possible on the administering of those substances to farm animals for fattening purposes and that, pending the adoption of that decision, the national regulations in force are to continue to apply . The third paragraph states that the Member States may not authorize the use of new substances during that transitional period .

8 That Community legislation was supplemented by Council Directive 85/649/EEC of 31 December 1985 prohibiting the use in livestock farming of certain substances having a hormonal action ( Official Journal 1985 L 382, p . 228 ), which provided in principle for an absolute prohibition on the administering of substances having a hormonal action, including the five substances referred to in paragraph 7 of this order, for the fattening of farm animals within the Community, except for therapeutic purposes . That directive also prohibited the placing on the market, access to intra-Community trade and the importation from non-member countries of animals and of meat from animals to which such substances had been administered . Article 10 of the directive provided that the general prohibition of substances having a hormonal action for which the directive provides was to be given effect in the national legal systems of the Member States by 1 January 1988 at the latest .

9 In order to avoid any sudden termination of the possibility of disposing on the internal market of animals to which hormones had been lawfully administered and which had not been slaughtered on 1 January 1988 and of the meat of such animals which had not been completely disposed of on that date, the Council, acting on a proposal from the Commission, considered it necessary to adopt Decision 87/561 of 18 November 1987 on transitional measures concerning the prohibition on administration to farm animals of certain substances having a hormonal action ( Official Journal 1987 L 339, p . 70 ).

10 Article 1 ( 3 ) of the decision reiterates that, for new production, the absolute prohibition laid down by Council Directive 85/649/EEC is to apply from 1 January 1988 . Article 1 ( 1 ) provides that, for the marketing of existing production, the Member States are to maintain until 31 December 1988 the arrangements resulting from existing national provisions as regards both its placing on the market and access to intra-Community trade, and that that transitional measure is to apply equally to imports of such meat from non-member countries .

11 By order of 27 January 1988 the President of the Court dismissed an application for interim measures lodged by Distrivet seeking the suspension of the operation of Council Decision 87/561 . The President declared the application inadmissible on the ground that the main application to which the application for interim measures related was prima facie manifestly inadmissible ( see the Order of the President of the Court of 27 January 1988 in Case 376/87 R Distrivet SA v Council (( 1988 )) ECR 209 ).

13 On 7 March 1988, the Council adopted Directive 88/146/EEC, the terms of which are identical to those of Directive 85/649/EEC .

14 According to Article 185 of the EEC Treaty actions brought before the Court of Justice do not have suspensory effect . The Court of Justice may, however, if it considers that circumstances so require, order that application of the contested act be suspended .

15 According to Article 186 of the EEC Treaty the Court of Justice may prescribe any necessary interim measures in cases before it .

16 Article 83 ( 2 ) of the Rules of Procedure provides, as a condition for the grant of interim measures such as those requested, that the application must state the circumstances giving rise to urgency and the factual and legal grounds establishing a prima facie case for the interim measures applied for .

17 As a preliminary point, before deciding whether it is necessary to examine the arguments put forward by the applicants to show that their application for interim measures satisfies the conditions for the grant of an order suspending the contested act and for the grant of the interim measure applied for, it seems appropriate to consider a question raised by the defendant concerning the admissibility of the main application .

18 The defendant contends that the main application to which the application for interim measures relates is manifestly inadmissible and, consequently, submits that this application is also manifestly inadmissible .

19 In support of its view, it maintains first that it follows from the wording of the second paragraph of Article 173 of the EEC Treaty that proceedings for a declaration that a measure is void can be instituted by a natural or legal person only against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former . Since the second paragraph of Article 173 of the EEC Treaty makes no reference to directives, a natural or legal person cannot institute such proceedings against legal measures of that type .

20 Secondly, it maintains that in any event Council Directive 88/146/EEC cannot be of direct and individual concern to the applicants . It takes the view that the requirement of an individual interest is not satisfied in this case primarily because Directive 88/146/EEC is by its nature and wording an act of general application and the Member States to whom it is addressed must enact national legislation within the prescribed period in order to comply with the directive . That national legislation is itself applied in a general and abstract manner, so that such a Community act produces legal effects with regard to categories of persons defined generally and in the abstract . The defendant adds that Directive 88/146/EEC does not lose its general character by virtue of the fact that at the time of its adoption it was possible to determine more or less precisely the number and identity of some of the persons concerned if that circumstance results from the objective factual and legal situation to which the directive relates . Moreover, the applicants have failed to show that Directive 88/146/EEC is of direct concern to them .

21 For their part, the applicants maintain that Directive 88/146/EEC is a decision which is of direct and individual concern to Distrivet and Pitman-Moore because both companies were manufacturers and distributors of the five hormones in question at the time when Directive 85/649/EEC and the prohibition laid down therein entered into force, and to the Association as the representative of the interests of manufacturers of animal health products engaged in business in Europe and of the national associations of which those manufacturers are members . Consequently, the applicants collectively represent the whole or substantially the whole of a defined category of manufacturers and distributors who are subject to the prohibition laid down in Directive 85/649/EEC . They add that they were known to the Council at the time the directive was adopted and that the directive was intended to affect their position . They emphasize that with regard to the question of admissibility account should also be taken of the fact that they submitted their observations to the Council and the Member States, drawing attention to the impact the adoption of such a direction would have on their position .

23 Such an approach is all the more necessary in a case where private parties such as the applicants seek a declaration that a measure of general application is void, in order to prevent a situation where those persons are able, by means of an application for interim measures, to obtain the suspension of the operation of a measure which the Court subsequently refuses to declare void because, on examination of the substance of the case, the application is declared inadmissible .

24 There appear to be no grounds for concluding prima facie that the main application is admissible .

25 First of all, as the Court stated in its judgment of 16 June 1970 in Case 69/69 Alcan v Commission (( 1970 )) ECR 385, the aim of the second paragraph of Article 173 of the EEC Treaty is to ensure the legal protection of individuals in all cases in which they are directly and individually concerned by a Community measure - in whatever form it appears - which is not addressed to them .

26 The Court has consistently stated ( see, in particular, its judgment of 17 June 1980 in Joined Cases 789 and 790/79 Calpak and Others v Commission (( 1980 )) ECR 1949 ) that the objective of that provision is, in particular, to prevent the Community institutions from being in a position, merely by choosing the form of a regulation, to exclude an application by an individual against a decision which concerns him directly and individually, it is thus made clear that the choice of form cannot change the nature of the measure .

27 It has also consistently stated that the criterion for distinguishing between a measure of a legislative nature and a decision is whether or not the measure at issue is of general application .

28 It is therefore necessary to determine the nature of Council Directive 88/146/EEC and the legal effects which it is intended to produce or does in fact produce . In this case it must be stated that prima facie the directive appears, by its nature, to be a measure of general application . The rules which it contains, in particular the prohibition on the administering of substances having a hormonal action for the purpose of fattening livestock within the Community, except for therapeutic purposes, and the prohibition on the placing on the market of meat which has been treated with such substances, are worded in a general manner and, by way of national legislation adopted by the Member States in order to comply with the directive, apply to objectively determined situations and produce legal effects with regard to categories of persons envisaged in a general and abstract manner, that is to say producers and distributors, in the common market, of substances having a hormonal action and all livestock farmers .

29 As the Court has consistently stated, the legislative nature of a measure is not called into question merely by the fact that it is possible to determine the number or even the identity of the persons to whom it applies .

30 Those findings are sufficient to justify the conclusion that prima facie the main application is inadmissible and therefore the application for interim measures is also inadmissible .

On those grounds,

The President,

by way of interim decision,

hereby orders as follows :

( 1 ) The application for interim measures is dismissed;

( 2 ) Costs are reserved .

Luxembourg, 13 July 1988 .