C-62/88

Mr President, provisions, the validity of which, originally Members of the Court, expiring on 30 September 1986, was twice extended, finally expiring on 31 October 4 1987. 1. The Hellenic Republic has brought an action for the annulment of Council Regu­ lation (EEC) No 3955/87 of 22 December 1987 on the conditions governing imports of 4. It should also be noted that on 22 agricultural products originating in third December 1987 the Council adopted Regu­ countries following the accident at the lation (Euratom) No 3954/87 laying down l Chernobyl nuclear power-station (here­ maximum permitted levels of radioactive inafter referred to as 'Regulation No contamination of foodstuffs and of feeding- 3955/87'). stuffs following a nuclear accident or any 5 other case of radiological emergency, which is the subject of the proceedings in 2. That regulation, based on the EEC Case 70/88 brought by the Parliament Treaty, and 'in particular Article 113 against the Council. 2 thereof' (which, it will be remembered, establishes the common commercial policy), is intended to subject the release for free circulation of certain agricultural products 5. The present action for annulment is originating in non-member countries to based on two submissions: first, compliance with maximum permitted levels infringement of the EEC and EAEC of radioactive contamination. It enables the Treaties and misuse of powers, and, Member States to monitor compliance with secondly, the vagueness of the Commission those levels and establishes a system of proposal. The first submission contains two exchange of information under the central limbs, one alleging infringement by the control of the Commission. The latter, in Council of the abovementioned Treaties in collaboration with an ad hoc committee, so far as it relied exclusively on Article 113 may adopt various measures, even to the of the EEC Treaty, and the other alleging extent of prohibiting the import of products misuse of powers. The application, in the originating in the non-member country in section preceding the arguments expounding question. the first submission, also refers to the infringement of essential procedural requirements. However, it is apparent from 3. The regulation, which applies for a a reading of the observations in that section period of two years, replaces a previous that in fact the Council is criticized only for regulation, Regulation (EEC) No 1707/86 having used an incorrect legal basis and thus 3 misusing its powers. The argument that of 30 May 1986, containing identical there is a contradiction between the first * Original language: French. 1 — OJL371, 30.12.1987, p. 14. 4 — By Regulations (EEC) Nos 3020/86 (OJ L 280, 1.10.1986, 2 — First reference in the preamble to the regulation. p. 79) and 624/87 (OJ L 58, 28.2.1987, p. 101). 3 — OJL 146, 31.5.1986, p. 88. 5 — OJ L 371, 30.12.1987, p. 11.

7. In its defence, the Council alleges in limine litis that the first submission is inad­ missible in so far as it refers to the EAEC Treaty whereas the action is based only on Article 173 of the EEC Treaty, without any 10. A second preliminary difficulty arises 10 reference to Article 146 of the EAEC from that fact that, in its reply, the Treaty. 6 The Commission supports the Hellenic Republic refers for the first time to Council on that point. 7 an infringement of Article 190 of the EEC Treaty on the grounds that the contested regulation does not disclose 'the conditions under which the Community institutions applied the Treaty'. When asked by the Court whether the reference to Article 190 8. I shall merely point out that pursuant to was in fact a fresh issue within the meaning Article 173 of the EEC Treaty the Court of Article 42(2) of the Rules of Procedure, has 'jurisdiction in actions ... on grounds the Hellenic Republic contended that it was of ... infringement of this Treaty or of any an argument required to support the first 8 submission, in so far as the difference in the rule of law relating to its application ... ' . Accordingly, part of the first submission, in legal bases used by Regulations Nos so far as it refers to infringement of the 1707/86 and 3955/87 'contains no objective EAEC Treaty, appears to be manifestly factors enabling the Court to exercise inadmissible. I would also observe that the proper judicial review' and 'the Member applicant State did not give details in its States and interested parties to determine application of the alleged infringement of under what conditions the institutions the EAEC Treaty. applied the provisions of the Treaty in the specific circumstances'. 6 — Council defence, p. 13 of the French translation. 7 — Commission's submissions as intervener, p. 8 of the French 9 — Judgment of 15 December 1987 in Case 328/85 [1987] version. ECR 5119, in particular paragraph 11. 8 — Emphasis added. 10 — P. 4 of the French translation.

'in order to satisfy that requirement to state reasons, Community measures must include 'do not satisfy the requirements laid down a statement of the facts and law which led in Article 190 of the Treaty with regard to the Community institution in question to the statement of reasons and ... moreover, adopt them, so as to make possible review they were not adopted on the correct legal by the Court and so that the Member States 3 basis'. ' and the nationals concerned may have knowledge of the conditions under which the Community institutions have applied the 11 Treaty'. 15. Consequently, although Article 190 of the Treaty imposes the obligation to state the legal basis of the measure concerned, 12. Those decisions criticize imprecise indi­ the need to choose the correct legal basis cations of legal basis using wording such as: cannot be based on that article since it stems 'Having regard to the Treaty'. 12 from the principle of the Community rule of law.

referred to the second submission since Article 113(4) provides for voting concerning the vagueness of the within the Council by a qualified majority, Commission's proposal. The Hellenic whereas on environmental questions it is Republic is criticizing the Council for failing apparent from Articles 130r and 130s, read to indicate whether or not the measure in conjunction, that as a general rule the adopted was in conformity with the Council is required to decide unanimously. Commission's proposal. It is indeed Article As the Court has held expressis verbis: 190 that states that 'regulations .

19. Let us now consider the first limb of common commercial policy. Curiously, that submission. It may be summarized as although most commentators on the Single follows: Regulation No 3955/87 is Act have drawn attention to the likely diffi concerned exclusively with the protection of culties of classification as between Article the health of the people living in the 100a and Articles 130r and 130s of the Member States against the consequences of Treaty, no reference has been made to such

Revue du Court from carrying out its review. marché commun. No 316, April 1988, p. 205; L Kramer 'L'Acte unique europeen et la protection de l'environ nement'. Revue juridique de l'environnement, 4/1987, p. 450; J P Jacque. 'L'Acte unique europeeën', Revue trimestrielle de droit européen, 1/1986, p- 576, H !

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'it is by no means ruled out that provisions policies will not be confined to the matters on the environment may be based on Article specific to them but may be modified, or 100 of the Treaty*. indeed adopted, having regard to environ­ 19 mental problems', it must also be concluded, in my opinion, that a measure having environmentally protective effects, or Before the Single Act, therefore, action on even objectives, may have been adopted on environmental matters could be taken within a basis other than Article 130r. the framework of another Community policy.

17 — Judgment of 18 March 198D ¡n Case 91/79 Commission v /tø/y [1980] ECR 1099, paragraph 8. 18 — For example, P. Kromarek, supra, who considers that 'the 20 entire law on pollution could come within the scope of 28. In its Opinion Í / 78 given under Anicie 100a', RJE 1-1988, p. 87; L. Krämer, supra, who considers that the directives which were previously based Article 228 of the EEC Treaty, the Court on Article 100 and the regulations relating to products could come within the scope of Article 100a, whereas the stated that: directives previously based on Article 235 would come within the scope of Article 130s(l), and those based both on Anicie 100 and on Article 235 would come within the 19 — H . J. Glaesener, op. cit., p. 316. scope of Anicie 130s(2), cited above, p. 463. 20 — Of 4 October 1979 [1979] ECR 2871.

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GREECE v COUNCIL

'it is not possible to lay down, for Anicie regarding Article 43 of the Treaty and the 113 of the EEC Treaty, an interpretation common agricultural policy. In the the effect of which would be to restrict the 'hormones' case the Court stated that: common commercial policy to the use of instruments intended to have an effect only on the traditional aspects of external trade' 21 'efforts to achieve objectives of the common agricultural policy .. . cannot disregard requirements relating to the public interest such as the protection of consumers or the and added that protection of the health and life of humans and animals, requirements which the Community institutions must take into 'the enumeration in Article 113 of the account in exercising their powers', 25

29. Moreover, the Court has already recognized, in its judgment of 26 March 'efforts to achieve objectives of the common 1987 in Case 45/86, supra, that agricultural policy cannot disregard requirements relating to the public interest, such as, in particular, the protection of 'the link with development problems does health, and that the fact that measures not cause a measure to be excluded from adopted in the context of the common agri­ the sphere of the common commercial cultural policy pursue at the same time 24 policy as defined by the Treaty'. objectives which, in the absence of specific provisions, are pursued on the basis of Article 100 of the Treaty, does not remove 30. It should also be observed that that those measures from the field of application 28 statement is wholly in line with the of Article 43'. reasoning which the Court developed 25 — Case 68/86, supra, paragraph 12 26 — Case 68/86, supra, paragraph 22 21 — Case 1/78, cited above, paragraph 44. 27 — Cases 131/87 and 11/88, supra. See also the judgment of 22 — Opinion 1/78, supra, paragraph 45; sec also ihe judgment 23 February 1988 in Case 131/86 United Kingdom v of 27 September 1988 in Case 165/87 Commission v Coimci/[1988] ECR 905. Coi/nci7[1988] ECR 5545, paragraph 15. 28 — Case 131/87, supra, paragraph 25; see also Case 11/88, 23 — Opinion 1/78, supra, paragraph 45. supra, paragraph 10; and Case 131/86, supra, 24 — Case 45/86, supra, paragraph 20. paragraph 21.

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OPINION OF MR DARMON — CASE C-62/88

33. It should also be observed that it is not 'its use as the legal basis for a measure is certain that the protection of public health justified only where no other provision of falls entirely within the concept — not the Treaty gives the Community institutions defined by the Treaty — of environment. the necessary power to adopt the measure in 29 The fact that Article 130r(l) provides that question'. 'action by the Community relating to the environment shall have the following objectives: ... to contribute towards 36. The second limb of the first submission, protecting human health' does not mean in concerning misuse of power, will not detain any way that preoccupations of that kind us so long. The Hellenic Republic seeks to are exclusively reserved to the sphere of show that the Council used Article 113 as environmental matters. Moreover, the the basis for the adoption of the contested precautions concerning importation into the regulation solely in order to avoid the need Community of products to be used for for the unanimous decision required by human foodstuffs reflect the concern to Article 130s. The Court has already defined protect public health much more than to the concept of misuse of powers. In its prevent any damage to the environment. It judgment of 14 July 1988, the Court held will be remembered that public health is that among the exceptions provided for by Article 36 of the Treaty in relation to the free movement of goods. 'the powers conferred on the Commission by the ECSC Treaty would be diverted

•29 — Case 45/86, supra, paragraph 13; see also Case 275/87, supra, paragraph 5; judgments of 30 May 1989 in Case 34. All the foregoing considerations lead 56/88 United Kingdom v Council [1989] ECR 1615, paragraph 5, and Case 242/87 Commission v Council me to conclude therefore that the Council [1989] ECR 1425, paragraph 6.

38. I would also point out that Article 130s itself (second paragraph) provides for the possibility of a majority decision since it 'the extent of the duty to state reasons, laid states that 'the Council shall ... define those down by Article 190 of the Treaty, depends on the nature of the act in question and on matters on which decisions are to be taken 32 the context in which it is adopted', by a qualified majority'. Furthermore, some authors consider that measures adopted earlier on the dual basis of Articles 100 and 235 of the EEC Treaty should now be referring to the fact that the applicant adopted by a qualified majority, on the basis government was closely involved in the 31 of the second paragraph of Article 130s. process of making the contested decision. The Hellenic Republic cannot therefore claim for its own benefit that the contested measure contained an inadequate statement of reasons. 39. I conclude therefore that the second limb — and thus the submission as a whole — should be dismissed. 42. As far as citizens are concerned, I shall 30 — Joined Cases 33/86, 44/86, 110/86, 226/86 and 285/86 merely point out that Commission proposals Stahlwerke and Hoogovens v Commission [1988] ECR 4309, paragraph 23, see also the judgment of 21 FeDruary 1984 in Joined Cases 140, 146, 221 and 226/82 Wahstahl- 32 — Judgment of 11 January 1973 in Case 13/72 Netherlands v Veremtgimg and Thyssen AG v Commission [19841 Commission [1973] ECR 27, paragraph 11; see also the ECR 951 judgment of 14 January 1981 in Case 819/79 Germany v 31 — L. Krämer, op. cit., p. 463. Commission [1981] ECR 21, paragraph 20.