C-11/86

Case 11/86

Commission of the European Communities v Italian Republic

(Removal from the register)

Opinion of Mr Advocate General Lenz delivered on 24 June 1987 5337 Order of the Court, 16 December 1987 5342

OPINION OF MR ADVOCATE GENERAL LENZ delivered o n 24 J u n e 1 9 8 7 *

Mr President, concerning certain protective measures Members of the Court, against African swine fever in Belgium, ' adopted on the basis of Council Directive 80/215/EEC and which is being challenged by the Italian Government in an action A — Facts brought on 27 September 1985, the Italian Republic has failed to fulfil its obligations under the Treaty. 1. The application in regard to which I am now delivering my Opinion is for a declaration that by failing to apply 2. The Italian Government informed the Commission Decision 85/403/EEC of 19 Commission in a telex message of 12 August July 1985 amending Decision 85/341/EEC 1985 that it would so conduct itself and at

the same time also mentioned that on 25 by the Commission, to adopt unilateral July 1985 instructions had been given to the protective measures in reliance on Article 36 veterinarians responsible in the matter of of the EEC Treaty and, in that way, to take imports not to admit for importation meat the law into their own hands. It is also products from Belgium which had been unacceptable for a Member State to make treated in accordance with the Commission compliance with such a decision conditional decision. upon the conduct of another Member State, as the Italian Government has done by requiring that Belgium must give certain guarantees concerning the implementation of the Commission decision (which were discussed in detail in Case 289/85 [1987] ECR 5321). 3. The Commission forthwith initiated the procedure under Article 169 of the EEC Treaty (by sending a letter on 5 September 1985 in which the Italian Republic was charged with infringing the Treaty) and, after receiving an unsatisfactory answer dated 9 September 1985, it delivered a 5. On the other hand, the defendant has reasoned opinion on 13 November 1985 in pointed primarily to the need, in the interest which it called upon the Italian Republic to of protecting national pig herds, to preserve adopt the necessary measures within 15 unaltered the situation as it existed before days. Since that was not done, the the adoption of the contested decision since Commission, on 17 January 1986, brought otherwise, if the decision were implemented the action in which I am today delivering by permitting imports to be carried out my Opinion. under the conditions therein laid down, legal proceedings concerning the legality of the decision would possibly be of only academic interest. It also considers that the reference to the possibilities of legal protection under the Treaty is not satis- factory because the decision is immediately 4. The Commission is convinced that its enforceable and an immediate appeal to the application for a declaration is well founded Court was not as such conceivable. since in its view it cannot be denied that its decision of 19 July 1985, which was intended to ensure free movement of pigmeat products from Belgium, subject to measures intended to stop the spread of African swine fever, became binding when it was notified and had to be complied with as 6. Furthermore, it draws attention to the long as it had not been declared void in fact that the Commission, in its reaction to proceedings before the Court or deprived of the application for suspension made in Case its legal effects by an interim order under 289/85 and at the hearing on that Articles 83 er seq. of the Court's Rules of application, stated that the protective Procedure. In any event, it must be accepted measures adopted by the Italian that in the sector in question, in which there Government made a decision under Article has been a harmonization of legislation at 85 of the Rules of Procedure superfluous Community level, the Member States are and that the application for suspension was not entitled, after the adoption of a decision therefore withdrawn.

B — Opinion 10. The same must of course apply under the scheme of the EEC Treaty which differs only to the extent that here the Commission does not adopt a decision recording an 7. With regard to this dispute, it must first infringement of the Treaty, which must then be emphasized that it is clear from the be contested by the Member State, but seeks scheme of the 1985 Directive, that when a declaration to that effect in proceedings African swine fever appears it is at first the before the Court. Member States which take action but that subsequently, in accordance with Article 7 of Directive 80/215, 2 the Commission takes a decision and there is thus no further place 11. The Court has already so decided in for unilateral national measures (for regard to the EEC Treaty in an order on an example, measures adopted in reliance on application for interim measures, which the Article 36 of the EEC Treaty). President referred to the Court, in which it was held that 'even if the Member State in question took the view t h a t . . . the . . . decision of the Commission 8. Nothing, furthermore, can alter the fact was vitiated by an infringement of the rules that decisions adopted by the Commission of the Treaty, that fact could not entitle it on the basis of the abovementioned to defy the clear provisions of Article 93 directive, even if there are doubts as to their and to act as if that decision were lawfulness (patently void acts are not in non-existent in law. Indeed, it is in order to point in this respect), become binding upon prevent Member States from acting as their notification and are to be implemented judges in their own cause that the Treaty by the Member States to which they are provides them, namely in Article 173 and addressed unless in proceedings before the the following Articles, with the opportunity Court (the institution of which, as is known, to refer to the Court any infringement of does not have suspensory effect) they are the law on the part of the institutions, so deprived provisionally or definitively of their that a decision of the Commission remains legal effects. "binding in its entirety" upon the State to which it is addressed — as laid down by the fourth paragraph of Article 189 — unless the Court decides to the contrary'. 4 9. That was made clear in the context of the case-law relating to the ECSC Treaty, in the judgment in Case 3/59. 3 In that case, it is clearly stated that if a Member State, without having obtained the annulment of 12. The same view was expressed in the a decision of the High Authority or Opinion in Joined Cases 133 to 136/85. It is suspension of its operation, does not comply there stated that: 'Decisions are binding with that decision, it fails to fulfil its obli­ upon those to whom they are addressed and gations within the meaning of Article 86 must be complied with by them until such and the High Authority is required to decisions have been declared void. record such failure pursuant to Article 88 of According to Article 185, even an action the Treaty. brought before the Court of Justice does

not have suspensory effect. The Court of necessary Belgian measures which were Justice may, however, if it considers that adopted only in the middle of September circumstances so require, order that 1985, following the issue of a circular dated application of the contested act be 30 July 1985. suspended'. 5 15. Finally, the Commission rightly 13. O n the basis of the foregoing, it can be emphasized that the Italian Government seen that national measures of the kind at could not make compliance with the issue here are unlawful. Commission decision conditional on guar- 14. The defendant contends that there antees to be given on the Belgian side (that could be difficulties, having regard to the is to say, on measures which went beyond immediate binding force of decisions and those which Belgium was required to adopt the requirement that they be immediately under the decision itself) and that there implemented, because legal proceedings could for instance be no question of coupled with an application for suspension suggesting that the Italian measures and the cannot be instituted forthwith. I would take announcement of their maintenance in force the view, however, that those are not insur- were recognized as lawful in the mountable difficulties and that in any event proceedings on the application for no departure from the clear scheme of the suspension. It is clear from a reading of the Treaty may be justified in that way. In the transcript of the hearing on that application present case, at least, the defendant's that all that was raised was the question conduct cannot be justified in that way since whether, in view of the measures adopted there should certainly have been sufficient by Italy, there could be said to be urgency time before 12 August 1985 (the date at and whether the safety of Italian livestock which the Italian Government stated that it could not also be protected even without would not comply with the Commission's suspension. Immediately thereafter the decision) to bring proceedings before the representative of the Italian Government Court and to make an application for announced the withdrawal of its application suspension of the operation of the measure. for suspension and no appraisal of the It is also of significance that the question was undertaken by the President of Commission decision could be implemented the Court or by any other of the Members in practice only after the adoption of the of the Court present at the hearing.