Case C-286/02

Bellio F. lli Srl

v

Prefettura di Treviso

(Reference for a preliminary ruling from the Tribunale di Treviso)

(Agriculture – Animal health – Protection measures with regard to transmissible spongiform encephalopathies – Use of animal proteins in animal feed)

Summary of the Judgment

1. Community law – Interpretation – Methods – Interpretation of secondary legislation in the light of international agreements concluded by the Community

2. International agreements – European Economic Area Agreement – Interpretation in accordance with the Court’s earlier case-law – Conditions – Interpretation of Article 13

(Art. 30 EC; EEA Agreement, Arts 6 and 13)

3. Agriculture – Harmonisation of legislation on animal health – Protection measures with regard to transmissible spongiform encephalopathies – Fishmeal used in the feed of animals other than ruminants – Presence of other unauthorised substances – Not permissible – Level of tolerance – Absence

(Art. 152 EC; Council Decision 2000/766, Art. 2(2); Commission Decision 2001/9, Art. 1(1))

4. Agriculture – Harmonisation of legislation on animal health – Protection measures with regard to transmissible spongiform encephalopathies – Fishmeal used in the feed of animals other than ruminants – Destruction of consignments contaminated with other unauthorised substances – Measure laid down by Community law which cannot be regarded as a sanction

(Council Decision 2000/766, Art. 3 (2))

5. International agreements – European Economic Area Agreement – Free movement of goods – Derogations – Protection of health of humans and animals – Conditions – Protection measures with regard to transmissible spongiform encephalopathies – Whether permissible

(EEA Agreement, Art. 13; Council Decision 2000/766; Commission Decision 2001/9)

1. The primacy of international agreements concluded by the Community over provisions of secondary Community legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements.

(see para. 33)

2. As Article 6 of the European Economic Area (EEA) Agreement states, the provisions of that agreement, in so far as they are identical in substance to corresponding rules of the Treaty and acts adopted in application of that Treaty, must, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court given prior to the date of signature of that agreement. Furthermore, it is necessary to ensure that the rules of the EEA Agreement which are identical in substance to those of the Treaty are interpreted uniformly.

That is the case with Article 13 of that agreement which is identical in substance to Article 30 EC.

(see paras 34-35)

3. In the context of the prohibition of the use of processed animal proteins in the feeding of certain livestock, laid down by Decision 2000/766 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein, the first indent of Article 2(2) of that decision, which excludes from that prohibition in certain circumstances fishmeal used in the feeding of animals other than ruminants, and Article 1(1) of Decision 2001/9 concerning control measures required for the implementation of Decision 2000/766, which sets the conditions for that exclusion, together with the other Community rules on which those provisions are based, must be interpreted as meaning that the presence, even accidental, of unauthorised substances in fishmeal used for those purposes is prohibited and that they allow traders no level of tolerance.

Given that those decisions were adopted to combat transmissible spongiform encephalopathies, which, according to the commonly accepted working hypothesis amongst the scientific community, are primarily transmitted by the ingestion of food containing prions, and that it is impossible for it to identify precisely the minimum amount of infected material required to lead to disease in humans and, having regard to Article 152 EC and the public health objective which they pursue, those decisions must be interpreted widely and the exception they lay down in respect of fishmeal must be interpreted narrowly.

(see paras 41, 43-44, 46, 56, operative part 1)

4. In relation to Decision 2000/766 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein and Decision 2001/9 concerning control measures required for the implementation of Decision 2000/766 the destruction of consignments of fishmeal used in feeding animals other than ruminants where they are contaminated with unauthorised substances cannot be regarded as a sanction but as a preventive measure laid down by Article 3(2) of Decision 2000/766 which, in that respect, leaves no discretion to the Member States. A contaminated consignment must be regarded as unfit for consumption and must if necessary be destroyed whilst taking all necessary precautions to avoid environmental contamination.

(see paras 54-56, operative part 1)

5. Pursuant to Article 13 of the European Economic Area (EEA) Agreement, in the absence of harmonisation and to the extent that uncertainties continue to exist in the current state of scientific research, it is for the Contracting Parties to decide on the level of protection of human health they wish to ensure, taking account of the fundamental requirements of EEA law and, in particular, the free movement of goods in that area. A risk-management decision rests with each Contracting Party, which has a discretion as to the level of risk it considers appropriate. Under those conditions, a Contracting Party may invoke the precautionary principle, according to which it is sufficient to show that there is relevant scientific uncertainty with regard to the risk in question. That discretion must, however, be open to judicial review. Measures adopted by a Contracting Party must be based on scientific evidence; they must be proportionate, non-discriminatory, transparent and consistent with similar measures already adopted.

In that regard, the measures adopted by Decision 2000/766 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein and Decision 2001/9 concerning control measures required for the implementation of Decision 2000/766, which lay down exceptions to the free movement of goods in so far as they contain various prohibitions relating to animal proteins, form part of a coherent body of legislation the purpose of which is to combat those encephalopathies. They were adopted on the recommendation of experts having at their disposal the relevant scientific data and they are applicable without distinction to all fishmeal likely to be used in the European Community. It follows that those measures do not infringe the principle of proportionality of EEA law and that they are justified by the protection of human and animal health within the meaning of Article 13 of the EEA Agreement.

(see paras 57-59, 61-62, operative part 2)

JUDGMENT OF THE COURT (Third Chamber) 1 April 2004 (1)

(Agriculture – Animal health – Protection measures with regard to transmissible spongiform encephalopathies – Use of animal proteins in animal feed)

In Case C-286/02,

REFERENCE to the Court under Article 234 EC by the Tribunale di Treviso (Italy) for a preliminary ruling in the proceedings pending before that court between

and

on the interpretation of Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ 2000 L 306, p. 32) and Commission Decision 2001/9/EC of 29 December 2000 concerning control measures required for the implementation of Decision 2000/766 (OJ 2001 L 2, p. 32),

THE COURT (Third Chamber),,

composed of: A. Rosas (Rapporteur), President of the Chamber, R. Schintgen and N. Colneric, Judges,

Advocate General: L.A. Geelhoed,

after considering the written observations submitted on behalf of:

after hearing the oral observations of Bellio F.lli Srl, represented by F. Capelli, the Italian Republic, represented by P. Palmieri, Ireland, represented by D.C. Smyth BL, the Kingdom of Norway, represented by A. Enersen, and the Commission, represented by V. Di Bucci, at the hearing on 4 December 2003,

after hearing the Opinion of the Advocate General at the sitting on 29 January 2004,

gives the following

‘Without prejudice to future developments of case-law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two Treaties, shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of this Agreement.’

‘The provisions of Articles 11 and 12 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between the Contracting Parties.’

‘Provisions and arrangements that apply to fish and other marine products are set out in Protocol 9.’

‘The Community shall apply no quantitative restrictions on imports or measures having equivalent effect on the products listed in Appendix 2. In this context the provisions of Article 13 of the Agreement shall apply.’

2301…

Flours, meals and pellets, of meat or meat offal, of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves:

…

‘In the light of the above, as a precautionary measure, it is appropriate to prohibit on a temporary basis the use of animal protein in animal feed, pending a total re-evaluation of the implementation of Community legislation in Member States.’

‘1. Member States shall prohibit the feeding of processed animal proteins to farmed animals which are kept, fattened or bred for the production of food.

2. The prohibition referred to in paragraph 1 shall not apply to the feeding of:

‘Member States shall authorise the feeding of fishmeal to animals other than ruminants only in accordance with the conditions laid down in Annex I.’

‘1. Fishmeal shall be produced in processing plants dedicated only to fishmeal production, which are approved for this purpose by the competent authority in accordance with Article 5(2) of Directive 90/667/EEC.

2. Before release for free circulation in Community territory, each consignment of imported fishmeal shall be analysed in accordance with Commission Directive 98/88/EC [of 13 November 1998 establishing guidelines for the microscopic identification and estimation of constituents of animal origin for the official control of feedingstuffs (OJ 1998 L 318, p. 45)].

3. Fishmeal shall be transported directly from the processing plants to the establishments manufacturing animal feed, by means of vehicles which at the same time do not transport other feed materials. If the vehicle is subsequently used for the transport of other products, it shall be thoroughly cleaned and inspected before and after the transport of fishmeal.

4. Fishmeal shall be transported directly from the border inspection post to the establishments manufacturing animal feed, in accordance with the conditions laid down in Article 8 of Directive 97/78/EC, by means of vehicles which at the same time do not transport other feed materials. If the vehicle is subsequently used for the transport of other products, it shall be thoroughly cleaned and inspected before and after the transport of fishmeal.

5. By way of derogation from points 3 and 4, intermediate storage of fishmeal may be allowed only if it is carried out in dedicated storage plants which are authorised for this purpose by the competent authority.

6. Feedingstuffs containing fishmeal can be produced only in establishments manufacturing animal feed which do not prepare feedingstuffs for ruminant animals and which are authorised for this purpose by the competent authority.

By way of derogation from this provision, the production of feedingstuffs for ruminant animals in establishments which also produce feedingstuffs containing fishmeal for other animal species may be permitted by the competent authority on condition that:

7. The labelling of feedingstuffs containing fishmeal shall clearly indicate the words “it contains fishmeal – cannot be fed to ruminant animals”.

8. Bulk feedingstuffs containing fishmeal shall be transported by means of vehicles which at the same time do not transport feed for ruminant animals. If the vehicle is subsequently used for the transport of other products, it shall be thoroughly cleaned and inspected before and after the transport of bulk feedingstuffs containing fishmeal.

…’

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4.Observations submitted to the Court

Reply of the Court

On those grounds,

THE COURT (Third Chamber),

in answer to the questions referred to it by the Tribunale di Treviso by order of 26 June 2002, hereby rules:

Rosas

Schintgen

Colneric

Delivered in open court in Luxembourg on 1 April 2004.

R. Grass

A. Rosas

Registrar

President of the Third Chamber