C-289/85

* Translated from the German.

OPINION OF MR LENZ —CASE 289/85

Community trade in meat products, ' which favourable opinion thereon, Decision provides that where there is an outbreak of 8 5 / 4 0 3 / E E C 3 was adopted on 19 July a new, serious and infectious animal disease, 1985. It provided for an exception from the Member States may temporarily prohibit or prohibition on the introduction into the restrict the introduction, from the entire other Member States of pigmeat products territory of that State, of products prepared from certain parts of Belgium inter alia from the meat of animals which are where the products had been prepared susceptible to those diseases. under certain conditions including a form of heat treatment other than complete sterili- zation (for further details of this — very technical — measure, I would refer the Court to the text of the decision).

ITALY v COMMISSION

Italian Republic also applied to the Court; it submission and also arises to some degree in is seeking a declaration that the decision of its second submission, is that having regard 19 July 1985 is void in so far as it provides to the general structure of Directive that the ban on imports of pigmeat products 80/215/EEC, the Commission, even when does not apply to products prepared from account is taken of the amendments meat as specified therein. introduced by Directive 85/321/EEC, had absolutely no power to adopt measures such as those being contested here.

My opinion in this case is as follows. 11. It should also be noted that Directive 85/321 of 12 June 1985 (which was to be transposed into national law not later than 1 January 1986) contained two new provisions 9. (1) The applicant's principal argument, dealing with African swine fever, namely which forms the subject-matter of its first Articles 7a and 7b, which were referred to

OPINION OF MR LENZ —CASE 289/85

Accordingly, in this case Article 4 (1) (a) (that is to say, complete treatments other than complete sterilization sterilization). In that regard, a distinction is were authorized. drawn between countries in whose territory African swine fever has been recorded within the previous 12 months (in regard to which it may be decided that the prohibition of the introduction of products is not to apply to products coming from one or more 14. In that regard, the applicant also stated parts of the territory of the Member State in its reply that if it is accepted that the concerned) and Member States in which the conclusion may be drawn from Article 7b disease has not been recorded for at least 12 that forms of treatment other than complete months (in regard to which it may be sterilization are possible, that applies in any decided to apply the import ban only to the event only to disease-free countries within part of the territory affected by the disease). the meaning of Article 7a (2).

It is also 15. My view is that the Court should not clear from the version of the rules resulting follow that line of reasoning and that the from Directive 85/321 (which is binding on Commission has made out the better case. the defendant from the entry into force of that directive) that in principle an exception from the prohibition of exports may be made in favour of an affected Member State only where the products concerned have undergone one of the treatments referred to 16. (a) With regard to the interpretation of in Article 4 (1) (a) of Directive 80/215. Directive 80/215, it rapidly becomes clear Under the Veterinary Committee procedure that the applicant has not correctly inter- (that is to say, the procedure laid down in preted Article 7 when it concludes from the Article 8, which is referred to in Article 7a fact that the methods of treatment referred of the directive), the defendant is entitled to in Article 4 (1) are to be regarded as merely to delimit the area in question but equivalent only in regard to the diseases set not to adopt measures of any other kind, out in subparagraph (a) that where there is such as to permit other forms of treatment an outbreak of a disease covered by Article for meat products. 7 (1) (b), a treatment in accordance with

Article 4 (1) (b) is automatically excluded. new subparagraph to Article 7 (1). Thus, For the purposes of that assessment it is Article 4 (1) was not amended and, more significant that the directive, as can be seen importantly, nor were the other paragraphs from Article 4 thereof, presupposes in of Article 7, in particular paragraphs 3 and principle that the treatments referred to in 5 mentioned above. When subsequently in Article 4 (1) (a) and (b) are of equal value. Article 7 (3) reference continues to be made More importantly, under Article 7 (3), the generally to paragraph 1 of that article defendant has a general power to amend (without excluding the new subparagraph measures adopted by the Member States (in dealing with African swine fever) that can regard to which Article 7 (5) provides that a only mean that the powers generally decision may be taken to adapt the granted to the defendant also include the measures concerned in the light of the measure concerning African swine fever. disease in question, the treatments that the products concerned have undergone, the date on which the meat used was obtained and the processing period). Thus, if in the paragraph of Article 7 dealing solely with the powers of the Member States, the 19. The fact that in the new Article 7a, distinction emphasized by the Italian namely in the second subparagraph of Government is made, it can certainly not be Article 7a (1) and in Article 7a (2), express assumed, having regard to the broadly reference is made to Article 7 in general defined powers of the defendant under also bears out the defendant's argument. Article 7 (3), that the defendant is not That reference can indeed only be entitled, after careful consideration, to understood as meaning that the Council authorize a particular form of treatment and (which, as a comparison with the thereby, under conditions which are less Commission's proposal reveals, inserted that stringent but are none the less regarded as provision) assumed that Article 7 would also sufficient, contribute to the realization of continue to apply in its entirety to African the free movement of goods, which is swine fever, for which, consequently, the fundamental to the common market. relevant provisions were not confined to the newly enacted Articles 7a and 7b.

countries (namely those in which the disease outbreak of disease as serious as African has not been recorded for at least 12 swine fever, the affected Member State months). should as a first step prohibit exports with the sole exception of export of completely sterilized products. That would appear to be much more effective than the possibly belated adoption by other Member States of import restrictions. However, that does not 21. Some of the arguments put forward by exclude the possibility that the defendant the applicant in this connection on the other might adopt less restrictive measures after a hand are not convincing, in particular its concrete examination of developments at reference to the fact that the new Article 7a Community level. speaks only of the defendant's powers to delimit the geographical extent of the affected area and also its contention that it is rather unclear why the newly adopted rules, as interpreted by the defendant, centre on the limitation of export oppor­ 24. With regard to the aforementioned tunities of the Member State affected by the proposal concerning the amendment of disease (whereas the earlier version of Directive 80/215/EEC, the defendant has Article 7 left sufficient opportunity to the made clear that it did not involve an importing Member States to adopt amendment of its powers (in the sense of protective measures) and why there is a introducing the possibility of permitting a reference to the defendant's proposal of 13 less stringent heat treatment) but was February 1987 for the amendment of intended to provide that such a treatment is Directive 80/215.Ą to be regarded as of equal value so that it could be directly applied by the Member States (without a decision of the Commission).

view by inter aita reference to the terms of contain a condition such as that laid down Articles 7a and 7b. in Article 4 (1) (b) of the directive. However, the defendant has shown that in view of the measures adopted by Belgium, such a condition was not necessary and 27. If the defendant's interpretation of those measures were themselves an effective Article 7 is followed, it is also evident that it way of ensuring that the conditions laid may in general terms authorize a treatment down in Article 4 of the directive were other than the one mentioned in the first complied with. subparagraph of Article 7a (1) and that power is not limited to the Member States referred to in Article 7b (2). However, it 31. It is significant that the measures should at least be mentioned in passing that adopted by Belgium after the outbreak of the defendant's interpretation of Article 7a the disease, as has been shown, were not seems to me to be more convincing and that it can therefore be said that in spring 1985 confined to the prohibition of slaughtering Belgium was to be regarded as a hitherto in the infected areas and the prohibition of disease-free country within the meaning of trade within Belgium. Steps were also taken Article 7a (2) even though there had been to ensure that animals coming from infected several outbreaks of disease which were holding were destroyed. Furthermore, the connected with each other. mark provided for in Article 5a of Directive 72/461 could not be affixed in the affected area and such meat was thereby excluded from treatment in accordance with the contested decision; only the national mark 28. (d) Thus, the examination of the could be affixed to such meat whereas applicant's first submission, which also marking under Article 5 of Directive touched on arguments relating to the 72/461 5 was not authorized again until second submission, reveals nothing to after the eradication of the disease.6 It can support the applicant's case. therefore properly be presumed, at least in regard to the early stages of the disease (the placing of the Community mark on meat " from areas adjoining the infected area was again authorized only from 1 May 1985), 29. (2) In its second submission, the that meat from infected holdings was not applicant complains that the heat treatment processed and was not traded in the authorized by the contested decision is not Community under the provisions of the in conformity with Directive 80/215 contested decision. because it was not as closely defined as the one described in Article 4 (1) (b). According to that provision, a condition for the autho- rizing of a less stringent heat treatment is 32. However, with regard to the circum- that the fresh meat has been obtained from stance, which the applicant particularly animals which do not come from an infected emphasized, that further outbreaks of the holding. There is however no such disease were recorded in May 1985 at a requirement in the defendant's decision. time when the Community mark could once again be placed on meat and, therefore, the processing of that meat for Community

36. (a) The first criticism is that the Commission's decision, which is of 33. However, the defendant has argued considerable importance for the national strongly, and has not been contradicted, herds, was not adopted after sufficiently that the cases of the disease recorded in careful consideration. In that connection, the May 1985 did not amount to a full outbreak applicant refers to the preamble to the of the disease with the appearance of decision: one passage stated that the symptoms, that is to say, circumstances decision would be reviewed should its which would give rise to the aforemen­ implementation create difficulties for the tioned veterinary measures. It was merely disposal of Community products, and discovered — at a very early stage — another (with reference to the fact that the through serological spot checks that several Belgian authorities had marked pigmeat in animals were carrying the virus, clearly a the infection zone with a national identifi­ situation giving rise to little danger, which cation mark during the period of acute was not covered by Article 4 (1) (b) and infection and did not use the mark specified which, as the Court is assured, could be in Article 5a of Directive 72/461) that the completely countered by the heat treatment risk of infection presented by meat on which provided for in the contested decision. the latter mark has been used is reduced. The applicant also indicates that the meat products covered by the decision are intended only for Italy and that Italy alone is therefore affected by the Commission's measure (which explains why only the Italian representative did not approve the measure and would suggest the conclusion 34. Accordingly, it cannot be said that, that the representatives of the other because it did not expressly mention the Member States were for that reason not conditions laid down in Article 4 (1) (b) of sufficiently critical). Furthermore, the applicant draws attention to the fact (which 7 — Official Journal English Special Edition 1963-64, p. 164. must also be considered at this juncture)

37. In my view, however, those circum- stances hardly justify the conclusion drawn by the applicant and they are thus equally not such as to establish the unlawfulness of the contested decision. 39. It also became clear during the proceedings that there is no basis for the proposition that the meat products in question were intended solely for Italy, which explained the tractable attitude of the repre- sentatives of the other Member States when the contested decision was adopted. Even if 38. With regard to the reasons for the it were true that the products in question decision to which the applicant refers, the were intended for only one Member State, penultimate recital in the preamble merely the Commission decision none the less states that there could be disposal problems constitutes a precedent for all the Member because certain purchasers do not regard States. There is nothing to suggest that the the conditions laid down in the decision as members of the two veterinary committees sufficient and that, therefore, a review of were unaware of that obvious fact. the decision could prove necessary. It was certainly not intended thereby to imply that the decision was not sufficiently reliable and thus open to doubt under Community law. In so far as the applicant relies on the antepenultimate recital, the defendant has shown that the applicant has misconstrued what is said. It is quite clear that the 40. Nor can it be accepted that Italy is the reduction of the risk of infection mentioned only Community country needing such therein refers to fresh meat (namely, to imports (according to what was said during meat which after the end of the outbreak the proceedings, such a demand also exists received the Community mark making it in France and the Federal Republic of possible for it to be processed for Germany). Moreover, it can clearly be seen Community trade, whereas during the from the statistics submitted to the Court period of infection, meat obtained in the that both in 1984 and 1985, only a relatively infected area and in adjoining areas received small part of exports (of meat and meat only the national mark which, for the products) from Belgium went to Italy purposes of the Commission decision, is not (particularly in regard to meat products) sufficient). In regard to meat products, on whereas the overwhelming majority of such the one hand, to which the decision refers, exports went to other Community countries.

41. With regard to the remarks concerning which would not have delivered a exports to the United States and other favourable opinion on the proposed non-member countries and the fact that the measure. defendant took account of the stricter requirements applying in those countries at that time, there is obviously no basis for concluding that the methods of treatment recognized at that time by the said countries are in fact reliable or that the Community had necessarily to be guided in regard to 44. (c) The applicant also criticizes the intra-Community trade by the stricter Commission's decision, on the one hand, requirements applying in certain for its failure to explain why it approved a non-member countries. measure which had not been envisaged previously and, on the other, because in 1983 and 1984, when African swine fever broke out in Italy, trade in meat products was permitted there only if those products were subjected to complete sterilization (and not merely a less stringent heat 42. (b) The applicant's second criticism in treatment). this connection is that the defendant, when it adopted the contested decision, had regard primarily to economic considerations (namely the reduction of the cost of inter- vention in favour of Belgian products by authorizing a less costly method of treatment) and neglected the need to protect 45. I would point out first in this healthy livestock. connection that in the statement of reasons for a decision all that needs to be given is an explanation for the actual measures adopted and not a comparative examination of an earlier legal position (here, the position adopted immediately after the outbreak of the disease). It should also be emphasized 43. In my view, that argument also cannot that there are in fact references in the be accepted. Even if it is to be assumed that statement of reasons on which the contested in the discussions with the experts, the decision is based to the development of the economic aspects of the problem were also disease and the measures adopted by the discussed (because the defendant must Belgian authorities. Having regard to the naturally be concerned to avoid unnecessary obligation in the Treaty to state the reasons expenditure), that obviously does not mean on which decisions are based (which, that a desire to save money was necessarily according to the Court"s case-law, may not given precedence over the requirements of involve any excessive requirements), there the protection of health, which the are hardly grounds for criticizing the Commission also had to take into account decision in question, particularly bearing in under the relevant directives. There can be mind that it is a decision addressed to the no doubt that even if there had been any Member States and it may accordingly be danger of such a distortion of priorities, it assumed that the addressees were kept would have been recognized by the adequately informed of the problems Scientific Veterinary Committee concerned concerned by their representatives in the and the Standing Veterinary Committee Standing Veterinary Committee.

46. With regard to the comparison with the 48. (4) Finally, in its fourth submission, the measures adopted in 1983 and 1984 because applicant complains that the contested of the outbreak of African swine fever in decision does not afford sufficient Italy, it must be acknowledged that it is protection against infection of healthy pig difficult to attempt to justify the decision at herds. In support of that claim, it argues in issue on the basis of recent research and particular that the measure does not contain experiments since the applicant could sufficiently detailed provisions as to how counter that the documents taken into veterinary supervision of the storage of meat consideration by the Scientific Veterinary to be processed is to be carried out since it Committee largely date from before 1983 does not indicate the undertakings which and 1984 and a single document bearing a may carry out that processing or lay down later date cannot be said to contain decisive precise rules as to steps that must be taken new material. But the essential point is (for example, by stating the necessary rather that in the case of the measures now sanitary measures to be taken after under review there is not in actual fact any processing or with a view to the preparation discrimination against the Belgian economic and packaging of meat). In the applicant's circles which are primarily affected precisely view, it would also have been appropriate, because the measure is less restrictive than before the heat treatments in question were the one previously adopted in Italy. In so authorized, to carry out appropriate tests far as the fourth question arises whether (consumption by healthy animals of infected such a treatment might also have been meat which has undergone the treatment envisaged at the time of the outbreak of authorized in the decision) and it regards as African swine fever in Italy, the defendant not insignificant the fact that the Scientific has correctly pointed out that it was for Veterinary Committee formulated its Italy to raise the problem at that time and to opinion (in the original English) very have it considered in the Standing cautiously and the use of the conditional Veterinary Committee or, if necessary, in ('pigmeat products prepared according to proceedings before the Court. The fact that the following procedure should not present that did not happen certainly does not allow a significant risk that viable African any conclusions to be drawn in regard to swine-fever virus remains in the product') the measures adopted in 1985 which in made clear that it still had doubts as to the themselves cannot be criticized, at least on effectiveness of the method of treatment in the basis of the submissions considered so question. far.

Reference may also be made in particular to consider that such a precaution was called those parts of the contested decision which for. require precise compliance with the conditions set out therein, which require that during the entire period of the. treatment measures be taken to avoid any possibility of recontamination and according to which the products must be obtained under permanent veterinary control and the 51. Nor, finally, do I believe that the view products so obtained protected against all can be accepted that that committee did not risk of recontamination. Thus, in so far as deliver a favourable opinion but in fact the applicant's present criticisms are expressed doubts. T o my understanding, the concerned, everything necessary was done, sentence envisaged by the applicant (and from the Commission's point of view, to which I have already quoted) is nothing exclude a genuine risk. I do not consider more than a cautious form of expression that the decision can be regarded as usual among scientists. If real doubts had defective on the mere ground that it did not existed, they would certainly have been itself lay down every possible detail of the expressed more clearly and not merely treatment but, having set out the important through the use of the conditional. It must points, left the detailed implementation to also be said in this regard that the Standing the Member States primarily concerned (in Veterinary Committee, which delivered Belgium, as was demonstrated to the Court, what is plainly a positive opinion, also the procedure to be followed was initially understood the assessment of the Scientific laid down in a circular of 30 July 1985, Veterinary Committee in that way (and that which was known to the defendant, and may be regarded as an authentic interpre- later, in a decree of 16 September 1985; tation). It is also noteworthy that, as was significantly, the applicant has not been able stated at the hearing, the Scientific to establish that those rules were not suffi- Veterinary Committee has recently ciently precise and free of risk). delivered a positive opinion on the Commission's proposal mentioned above and thus has no objection to the less stringent heat treatments being generally authorized.