C-143/91

B — Analysis 2. Article 2 of Directive 81/602/EEC ' pro- hibits in principle the administration of cer- 5. Consideration of the problem referred by tain substances having a hormonal and thy- the national court necessitates an examina- rostatic action. The provision also prohibits tion of whether a criminal law prohibition of the placing on the market of animals and the keeping in stock of animals treated with their meat treated in this manner. The hormones can be regarded as a measure administration of the banned substances is under the third paragraph of Article 189 of permitted only for therapeutic purposes pur- the EEC Treaty for the implementation of suant to derogating provisions (Articles the Community law prohibition of those 4 and 5 of Directive 81/602/EEC, Article hormones pursuant to Directives 81/602 and 7 of Directive 88/146/EEC 2 and Directive 88/146, or whether it is a prohibition which goes beyond the provisions of Community law and in certain circumstances is therefore * Original language: German. not permissible. It might be impermissible 1 — Council Directive of 31 July 1981 concerning the prohibition because in areas governed under Community of certain substances having a hormonal action and of any substances having a thyrosutic action, OJ 1981 L 222, p. 32. 2 — Council Directive of 7 March 1988 prohibiting the use in livestock farming of certain substances having a hormonal action (OJ 1988 L 70, p. 16), which replaces Directive 85/649/EEC (OJ 1985 L 382, p. 228). 3 — Council Directive of 17 May 1988, OJ 1988 L 128, p. 36.

6. (a) The Netherlands Government has sub- mitted that the prohibition of keeping in stock animals treated with hormones follows 9. Even in the context of the acquisition in from Directive 81/602, since, in view of the the circumstances described, the criminal law general prohibition of the administration of prohibition of the keeping in stock of treated certain hormonal and thyrostatic substances, animals may go beyond the prohibitions in conjunction with the prohibition of trade existing under Community law in one in treated animals, it is inconceivable for pos- respect, namely as regards responsibility and session of treated animals to be lawful. accountability for the wrongful acts. What Community law prohibits is active conduct, whether in the form of administration of hormones or in that of placing treated ani- mals or their meat on the market. The ban 7. The Commission, for its part, takes the on possession engenders criminal liability for view that the prohibition in question repre- the passive presence of such animals, irre- sents a reasonable extension of the relevant spective of the manner in which the person Community law provisions. concerned came to be in possession of them. Liability thus relates to the mere holding of the animals in stock, regardless of whether the holder has in any way acted at variance with Community law. Conceivably, there- 8. Leaving aside the exceptions to the prohi- fore, criminal proceedings may be brought bition of hormones under Community law, 6 against a person who acquired treated ani- the prima facie assumption is that any person mals in good faith. in possession of animals treated with hor- mones has infringed the Community law prohibitions, whether through the active administration of hormones or by the fact of

acquisition is a logical precondition for hold- 14. The accused in the main proceedings ing the animals in stock, the connection submitted before the Court of Justice that between the conduct contrary to Commu- the Community law provisions allowed hor- nity law and the objective national prohibi- monal and thyrostatic substances to be tion of holding treated animals in stock is administered under certain circumstances or established through the subjective element of at least presupposed their administration, knowledge regarding the circumstances of and hence the keeping of such animals could acquisition. Only in the absence of this sub- not in itself be prohibited. What was more jective element does the national measure important was to ensure that treated animals catch a situation which does not reveal a were not placed on the market without con- direct connection with the Community law trols. Potential danger to the health of con- prohibition. sumers could thus be avoided.

11. Imputability of conduct, however, is normally a precondition of criminal liability. The general principle of law nulh poena sine 15. It must first be pointed out that Direc- culpa makes it clear that personal fault is a tive 81/602, which establishes the general prerequisite for criminal liability. prohibition of certain substances with hor- monal and thyrostatic effect, provides for exceptions in Articles 4 and 5. Article 4 of the directive is the basic provision for the adoption of derogating provisions on thera- 12. The detailed rules on criminal liability peutic grounds. Member States may, subject are a matter for the Member States: 'In prin- to compliance with the conditions set out in ciple, criminal legislation and the rules of Article 4, directly authorize the administra- criminal procedure are matters for which the tion of a number of hormonal substances. Member States are still responsible'. 7

Instead, Directive 85/649 , 0 (subsequently presupposes that trade in treated animals and replaced by Directive 88/146) u imposed a their meat is permitted subject to the speci- prohibition on the use of hormonal sub- fied limits, does not conflict with the finding stances for fattening purposes. 12 that there is a fundamental prohibition of the use of hormones, since Article 2(1 )(b) of Directive 88/299 is also a provision adopted in implementation of the derogation pursu- ant to Directive 81/602. The subject is the 17. The administration of hormones covered trade in animals intended for reproduction by Directive 81/602 is therefore permissible and their meat, which is authorized as an only pursuant to the derogation contained in exception. 14 Article 4 and the implementing provisions adopted under it. Articles 5 and 7 of Direc- tive 88/146 must be construed as such imple- menting provisions. Article 5 of Directive 88/146 imposes a prohibition, which is t o be 20. The same holds true of the reference by monitored by the Member States, of trade the accused to Regulation N o 2377/90 15 lay- between one Member State and another in ing down a Community procedure for the treated animals and their meat. Article 7 of establishment of maximum residue limits of Directive 88/146 allows for derogations t o be veterinary medicinal products in foodstuffs adopted from this absolute prohibition of of animal origin. In the first place, that reg- trade and thereby refers expressly to Article ulation refers to residues of veterinary 4 of Directive 81/602. Directive 88/299,' 3 medicinal products in general, and is in no which regulates in detail the trade in animals way confined to certain substances with hor- intended for reproduction and their meat, monal and thyrostatic action. Secondly, the implements the enabling provision in Article maximum limits are precisely to be laid 7 of Directive 88/146. down only pursuant to the procedure intro- duced by the regulation. Finally (and this is in my opinion the most cogent argument), the first paragraph of Article 15 of Regula- 18. This set of rules thus does not depart tion N o 2377/90 expressly provides that: from the general prohibition of the adminis- tration of hormonal and thyrostatic sub- stances and the prohibition of trade under Directive 81/602. It merely sets out the details of the trade permitted pursuant t o the 'This regulation shall in no way prejudice the derogating provisions. application of Community legislation pro- hibiting the use in livestock farming of cer- tain substances having a hormonal action.'

the fact that a number of substances are 25. In examining the compatibility of the prohibited that a contrario other substances law of Member States with Community are permitted. directives, the premiss is that Member States are in principle not entitled to introduce fur- ther reaching requirements or prohibitions in the area covered by the directive 16 since oth- 22. The accused is right in so far as the pres- erwise the objectives of harmonization, ence of all pharmacological substances is not including the easing of conditions of trade, absolutely prohibited. Otherwise there would be jeopardized. This 'debarring effect' would be no need to lay down maximum is the explanation for enabling provisions limits. Normal or compulsory immuniza- such as Article 10 of Directive 86/469, 1 7 tions are not affected by the regulation (cf. which expressly allows Member States to Article 1(2) of Regulation N o 2377/90). examine animals and their meat where there However, the question of law which the is a suspicion that residues are present, even Court must address concerns the interpreta- though the directive itself actually regulates tion of the general prohibition of hormones the examination of animals and fresh meat. contained in Directives 81/602 and 88/146, a prohibition which according to Article 15 of Regulation N o 2377/90 remains unaffected by the regulation. 26. Directive 81/602 contains no such enabling provision, with the result that the Member States' prohibitions may not go 23. Against the accused's submission that beyond those under Community law. It fol- the Community law prohibitions are con- lows that animals treated pursuant to the cerned only to prevent trade in treated ani- derogating provisions of Community law mals and their meat, since the keeping of ani- must also be regarded under the law of the mals does not in itself represent a danger to Member States as having been lawfully the health of consumers, it may be argued treated. There cannot be any question of a that there is a prohibition under Community prohibition of conduct which is permitted law of the administration of certain sub- under Community law. stances, which has been breached (by whom- soever) through the presence of treated ani- mals. The future use to which an animal is put cannot undo, with retroactive effect, the unlawful treatment to which it was sub- 27. This conclusion must be expressed jected, or cause such treatment to be unambiguously in the legislation of the regarded as lawful. Member State concerned. It is for the national court to determine whether that is the case. If that condition is not satisfied, the

national court must, if necessary, refuse to date and by means of separate directives 22 apply the national rules. The court dealing can hardly lead to the conclusion that they with the case must examine all these circum- were adopted outside the scope of the orga- stances of its own motion. nization of the market in beef and veal and for that reason cannot be judged according to the principles of the common organiza- tion of agricultural markets. The basic prohi- 28. As the administration of hormones per- bition of trade in treated meat and the pro- mitted under Community law is possible visions governing trade in such meat under only in compliance with detailed control the derogating conditions must in any event procedures and guarantees, 1S there should be regarded as falling within the scope of the be no practical obstacle to taking account of organization of the market in beef and veal. such matters in judicial proceedings.

I - 5058

VAN DER TAS

of animals permitted under derogating case 24 were all adopted in the context of the provisions of Community law must also be Common Agricultural Policy and based on permitted by the laws of the Member States. Article 43 of the EEC Treaty. Since the com- In judicial proceedings, the court seised of mon policies under the Treaty take prece- the case must therefore consider of its own dence over general provisions, it is unneces- motion potential exculpatory factors. sary to examine the rules on the free movement of goods.

Costs 35. (c) Finally, it remains for me to examine whether an unconditional prohibition of the keeping in stock of treated animals imposed 36. For the parties to the main proceedings, by the law of a Member State infringes gen- a reference for a preliminary ruling is in the eral provisions of the Treaty. One possibility nature of a step in the main action. A deci- might be a breach of the EEC Treaty provi- sion on costs is therefore a matter for the sions on the free movement of goods. 2 3 national court. The costs incurred by the However, the Community law provisions of Netherlands Government and the Commis- relevance to an assessment of the present sion are not recoverable.

C — Conclusion

37. O n the basis of the foregoing considerations I p r o p o s e the following answer to the question referred b y the national court: