C-146/91

3. Before describing in order the action 2. KYDEP is a cooperative according to taken by the Council and the Commission, Greek law, established in Athens, compris­ which is challenged by the applicant, I would ing 93 unions of agricultural cooperatives. It point out that the legislative action taken by purchases from Greek producers, inter alia, the institutions in response to the nuclear accident at Chernobyl (demonstrably) con­ cerned first and foremost imports of agricul­ tural products from certain central and east- * Original language: Dutch.

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One week later, on 6 May 1986, the Com­ In the account which I give below I shall dis­ mission, availing itself of the general compe­ tinguish between two categories of legislative tence conferred on it by Article 155 of the action. First, I shall deal with the measures EEC Treaty and Article 124 of the EAEC adopted by the institutions relating princi­ Treaty, addressed a recommendation to the pally to the importation and sale of the Member States concerning the coordination products in question originating in non- of the measures which the Member States member countries, and in particular the max­ had already taken or were proposing to take imum tolerances applied in that connection in order to prohibit agricultural products (paragraph 4 et seq.). I will then go on to discuss the measures concerning buying-in and the grant of export refunds for products 1 — The Commission annexed this press communiqué to its originating in Greece (paragraphs 10 et seq.). defence.

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contaminated by radioactivity from being certain non-member countries. This regula­ placed into circulation. That recommenda­ tion contained a provisional but total prohi- tion contained maximum tolerances for the bition (until 31 May 1986) of imports of 11 radioactivity of milk and dairy products and groups of agricultural products (principally of vegetables and fruit (but not of cereals) meat, milk and dairy products, vegetables and established the principle that the Mem­ and fruit) from the central and eastern Euro­ ber States had to subject exports to the same pean countries mentioned in the preceding limits as those applying to their own market paragraph. 5 Wheat and other cereals or and to recognize controls performed by cereal products, the products at issue in this other Member States. case, were not affected by that measure.

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OPINION OF MR VAN GERVEN — CASE C-146/91

other case of radiological emergency which amerícium 241. Thus, in the case of caesium is likely to lead to or has led to significant they are considerably higher for foodstuffs radioactive contamination of foodstuffs and other than dairy products (such as wheat) feeding-stuffs'. In other words, this regula­ than those provided for in Regulation tion gives effect to the Council's desire to No 1707/86 for imports from the third establish a procedure enabling as far as pos­ countries concerned (see paragraph 6 above). sible future emergencies to be tackled (see paragraph 7 above).

Measures concerning buying-in and the grant of export refunds by intervention agencies

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KYDEP v COUNCIL AND COMMISSION

merchantable owing to its characteristics tion measure in favour of durum wheat orig­ cannot be the subject of a buying-in con­ inating in Greece, in particular wheat from tract. the 1986 harvest. That measure was based on Article 8 of Council Regulation (EEC) No 2727/75 of 29 October 1975, 14which provides that specific intervention measures may be decreed where the market situation in certain areas of the Community so Furthermore, as regards those products for requires. The special intervention measure which an export refund is applied for, it is thus adopted in the case of Greek durum pointed out, in accordance with the provi­ wheat provided for the grant of an export sions of Article 15 of Regulation (EEC) refund for 300 000 tonnes of durum wheat No 2730/79 (OJ 1979 L 317), that the refund exported from Greece which as to 40% had is granted for products of sound and fair to originate in the Greek harvest of 1986. merchantable quality and which cannot be excluded for the purposes of human con­ sumption because of their characteristics or condition.

In view of the foregoing and in the light of Basic principles concerning non-contractual Council Regulation (EEC) No 1707/86 liability (OJ 1986 L146), products which do not comply with the maximum tolerances of radioactivity laid down in Article 3 of the said Regulation cannot be considered as ful­ filling either the conditions laid down for intervention purchases or those governing entitlement to export refunds. Consequently, the financial costs involved will not be borne by the EAGGE' 12

Court of 19 May 1992 in Joined Cases [1979] ECR 3017, paragraph 11, in Joined C-104/89 and C-37/90: Cases 261/78 and 262/78 Interquell Stärke v Council and Commission [1979] ECR 3045, paragraph 14, and in Joined Cases 64/76 and 113/76, 167/78 and 239/78, 27/79, 28/79 and 45/79 Dumortier Frères v Council [1979] 15 'The second paragraph of Article 215 of the ECR 3091, paragraph 11).' Treaty provides that, in the case of non­ contractual liability, the Community, in accordance with the general principles com­ mon to the laws of the Member States, is to 13. In the present case the question therefore make good any damage caused by its institu­ arises first of all whether in the present case tions in the performance of their duties. The there has been a sufficiently serious breach of scope of that provision has been specified in a superior rule of law for the protection of the sense that the Community does not incur the individual. KYDEP sets out five such liability on account of a legislative measure breaches concerning respectively Arti­ involving choices of economic policy unless cle 39(1 )(b) and (c) of the EEC Treaty, the a sufficiently serious breach of a superior prohibition of discrimination, the principle rule of law for the protection of the individ­ of proportionality, the manifestly incorrect ual has occurred (see, in particular, the judg­ assessment of facts and the principle of the ment in Joined Cases 83/76 and 94/76, 4/77, free movement of goods and exports. The 15/77 and 40/77 HNL v Council and Com- Commission and the Council contest all of mission [1978] ECR 1225, paragraphs 4, 5 these alleged breaches and contend that and 6). More specifically, in a legislative field KYDEP's claim should be rejected without such as the one in question, which is charac­ its being necessary to examine the other cri­ terized by the exercise of a wide discretion teria of liability in particular the existence of essential for the implementation of the Com­ damage and the issue of causality. mon Agricultural Policy, the Community cannot incur liability unless the institution concerned has manifestly and gravely disre­ garded the limits on the exercise of its pow­ ers (see in particular the judgment in HNL v The alleged breach of Article 39(1)(b) and (c) Council and Commission, cited above, para­ of the EEC Treaty graph 6).

rural policy. On the basis of the consider­ Council to grant to it or to the Greek cereals ations contained in the preamble to Council sector financial aid in order to offset the con­ Regulation No 2727/75 of 29 October 1975 sequences of the accident at Chernobyl. on the common organization of the markets 16 in the cereals sector, KYDEP states, with­ out being contradicted in this respect either by the Council or the Commission, that in the cereals sector the primary objectives are those mentioned in Article 39(l)(b) and (c), namely the securing of a fair standard of living for the agricultural community and the stabilization of markets. According to KYDEP the Council is said to have infringed 15. The Council attempts to rebut that alle­ those objectives by not adopting at the time gation with the following arguments. First, it of the Chernobyl accident a decision under submits that at the time of the accident in Community law concerning intervention, Chernobyl the institutions did not have exports and intra-Community trade in cere­ available to them the necessary powers under als. That omission is said to be all the more Community law and that in particular there serious in view of the expectation aroused by was no procedure in an emergency following the Council in the second recital in its pre­ a nuclear accident for establishing the maxi­ amble to Regulation No 1707/86 announcing mum permissible levels of radioactive con­ a Community decision regarding internal 18 7 tamination in foodstuffs. Nevertheless, permitted contamination levels. 1 The Article 2(b) of the EAEC Treaty provides Council was also obliged under Article 8 of that the European Atomic Energy Commu­ abovementioned Regulation No 2727/75 (see nity is to establish uniform safety standards paragraph 11 above) to adopt such measures. to protect the health of workers and of the general public and must ensure that they are applied. Effect was given to that provision by various directives adopted in 1959, which were subsequently replaced by a Council directive of 15 July 1980 amending the direc­ tives establishing basic standards for the pro­ tection of the health of the population and of employees against the dangers of radiation. 19 However, these directives contain no rules In its reply to the Council's defence KYDEP concerning the establishment of maximum went on to state that, if the Council in levels of contamination by radioactivity of implementing the aforementioned Article 8 foodstuffs as a result of a nuclear accident. had adopted the special intervention mea­ Certainly Article 45(4) of the abovemen­ sures, it could thereby have enacted provi­ tioned directive provides that 'in the event of sions directly dealing with the problems of accidents, each Member State shall stipulate producers and dealers. If I understand it cor­ (a) intervention levels, measures to be taken rectly, KYDEP was thus expecting the by the competent authorities (...)'. Moreover,

it was by virtue of that provision that the US Food and Drug Administration had elab­ Member States, immediately after the Cher­ orated standards since 1982. nobyl accident, laid down maximum toler­ ances at national level. Furthermore, the Member States in adopting Regulation No 1707/86 undertook not to apply stricter tolerances to imports from other Member States than are applicable to their own national products (see paragraph 7), and in 16. As regards the possibility provided for in practice adopted the maximum tolerances Article 8 of Regulation No 2727/75 of laid down for imports from third countries adopting special intervention measures, the (see paragraph 28). Council points out that this possibility was in fact availed of in particular by Commis­ sion Regulation No 2751/88 of 2 Septem­ ber 1988 concerning a special intervention measure for durum wheat in Greece (see paragraph 11 above). The Council further points out that neither the Treaty nor Regu­ lation No 2727/75 requires it to adopt mea­ sures providing for direct financial compen­ sation of the losses suffered by producers as a result of natural disasters or other unusual occurrences. On the other hand Arti­ cle 92(2)(b) of the EEC Treaty provides that in such a case aid measures by the Member States are permitted. In the same connection the Council goes on to point out that the legal framework exist­ ing at the time of the accident in Chernobyl, which subsequently proved to be inadequate, corresponded to the requirements and the scientific knowledge of that time. As regards the Chernobyl accident the widespread sci­ Finally, the Council doubts whether Arti­ entific conception prevailed that the effects cle 39 of the EEC Treaty constitutes a supe­ of a nuclear accident would only be felt rior rule of law for the protection of individ­ within a limited geographical area. The two uals a breach of which may found the most significant nuclear accidents until then, Community's liability for legislative action. in Three Mile Island in the United States and The Council refers in that connection to an Windscale in the United Kingdom, did in observation to that effect by Advocate Gen­ fact only have local effects. Consequently, eral Capotorti: 'the interests of the persons not only in the Community but also in the for whom the common agricultural policy is competent international organizations, heed intended are certainly protected by it but not was paid only to the maximum levels of radi­ 20 in the form of the grant of personal rights'. ation to which the human organism may be directly exposed in cases of accidents. More particularly there were no internationally recognized norms relating to admissible lev­ 20 — Opinion of Advocate General Capotorti of 1 March 1978 in Joined Cases 83/76, 94/76, 4/77, 15/77 and 40/77 HNL v els of radioactivity for foodstuffs. Only the Council and Commission [1978] ECR 1209, at p . 1231.

17. I have no difficulty in agreeing with the byl, it was for the Member States to deter­ Council's arguments. KYDEP has entirely mine the maximum levels of radioactive con­ failed to demonstrate the existence of 'a suf­ tamination in foodstuffs in the event of a ficiently serious breach of a superior rule of nuclear accident. The absence of existing law for the protection of individuals'; nor Community provisions or of a procedure has it demonstrated that the Council 'gravely enabling them to be established in an emer­ disregarded the limits on the exercise of its gency can scarcely be held against the insti­ powers' (see paragraph 12). Irrespective of tutions. KYDEP does not do so, in view of whether Article 39 does constitute a superior the fact that the nature of the accident in rule of law for the protection of individuals, Chernobyl and its consequences were there cannot, it seems to me, be any question entirely novel. of a wrongful act or omission, let alone any sufficiently serious breach. As the Council correctly states, there is no provision of Community law which obliges the Commis­ sion to adopt measures providing for finan­ cial compensation for losses suffered by the Greek cereals sector following the nuclear accident in Chernobyl. In particular no such obligation may be inferred from the general Applicant's allegations against the Commis- provision contained in Article 39 of the EEC sion Treaty in which a fair standard of living for the agricultural community and the stabiliza­ tion of the markets are stated to be objec­ tives of the common agricultural policy. Article 8 of the abovementioned Regulation No 2727/75 enables, but does not compel, special intervention measures to be adopted. The Commission did in fact adopt such a special intervention measure, in the form of abovementioned Regulation No 2751/88, in favour of durum wheat from the 1986 har­ vest originating in Greece. 18. In connection with the abovementioned allegation against the Council, KYDEP takes the view that the Commission waited too long before submitting a proposal for a per­ manent set of rules concerning the radioac­ tive contamination of foodstuffs. At its sit­ ting of 30 May 1986 at which Regulation No 1707/86 was adopted, the Council requested the Commission 'without delay' to formulate proposals for rules concerning inter alia the radioactive contamination of foodstuffs (see paragraph 7 above). Only 13 The Council, it seems to me, is also taking a months later, on 2 July 1987, the Commis­ correct view when it asserts, without being sion published a proposal which then refuted by KYDEP, that as Community law resulted in Regulation No 3954/87 (see para­ stood at the time of the accident in Cherno­ graph 8 above).

The Commission does not deny these facts agricultural products whose radioactivity but states that 13 months in this case is a rea­ exceeded the tolerances set out therein. sonable period which is not to be ascribed to inertia on its part but to the complexity of the subject-matter and the division of opin­ ions amongst the experts. As KYDEP in its reply to the Council stated, the Commission during this 13-month period organized an international symposium with 100 experts from 27 countries and representatives of the competent international institutions. In the Commission's view this action was in no way unlawful. From a legal point of view the telex report must be regarded as a declar­ atory or interpretative note addressed by the Commission to the Member States in the framework of their mutual administrative cooperation in which it reminded the Mem­ ber States of the rules on the financing of agricultural expenditure by the EAGGF. Even without that reminder those rules I am obliged to find that KYDEP does no would have been applicable. more than adhere to its allegation that 13 months are too long, and in no way rebuts the counter-arguments put forward by the Commission. In itself a period of 13 months, it seems to me, is not particularly long, at any rate not in a complex technical case and regard being had to the novel circumstances. KYDEP's argument in that respect must thus be rejected. 20. I have no difficulty in accepting the Commission's arguments. It is entirely nor­ mal for the Commission, in the performance of its task of guardian of Community law and manager of the EAGGF, to remind the Member States of the Community rales which they are obliged to apply. Likewise, it is normal for the Commission, in the frame­ work of the administrative cooperation with the Member States, to give its interpretation on the application of the rules on financing 19. KYDEP also alleges that the Commis­ by the EAGGF, which the Commission is sion exacerbated the problems of the Greek obliged to apply in the framework of the cereals sector by sending a telex report to the 21 annual approval of the EAGGF accounts. Member States on 24 July 1986 (see para­ graph 10 above). The sending of that report is alleged to be an entirely unlawful action and to have caused serious loss. Essentially it 21 — See Article 5(2)(b) of Regulation (EEC) No 729/70 of the led to a prohibition on offering for interven­ Council of 21 April 1970 on the financing of the common agricultural policy (OJ, English Special Edition 1970(1), tion, or granting export refunds, in respect of p. 218).

'No refund shall be granted on products which are not of sound and fair marketable quality, or on products intended for human consumption whose characteristics or condi­ tion exclude or substantially impair their use Since the annex makes no mention of radio­ for that purpose.' activity the a contrario inference to be drawn is, it is said, that cereals contaminated with radioactivity must be regarded as being of 22 — OJ 1977 L 174, p. 15. sound and marketable quality. That reason­ 23 — OJ 1979 L 317, p. 1. ing cannot be taken seriously.

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OPINION OF MR VAN GERVEN — CASE C-146/91

The alleged infringement of the prohibition Finally, KYDEP states that the discrimina­ of discrimination tory treatment of the Greek cereals sector following the accident at Chernobyl was exacerbated by the fact that the Commission, though the cereal was not marketable, imposed a co-responsibility levy on 2 367 000 tonnes of the Greek cereal in question.

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25 — The only fact to which KYDEP refers is that only the Greek Government sought compensation for the conse­ quences of Chernobyl in the Council and in the Committee of Permanent Representatives. In support of that allegation 25. Finally, I do not consider that KYDEP KYDEP cites certain Council documents. According to the Council those arc documents which under Article 18 of the can demonstrate an infringement of the prin­ Rules of Procedure of the Council (OJ 1979 L 268, p. 1), are subject to the secrecy rule and in respect of which no ciple of non-discrimination by pointing to authorization was requested in order that they be submitted the fact that the co-responsibility levy was to the Court. Consequently, the Court may not take cogni­ zance of them. However that may be, the fact that only one charged in respect of cereal which could not government requested the adoption of measures cannot be taken as proof that a problem is solely of concern to that be considered for intervention. Article 4(5) Member State. of Regulation No 2727/75 on the common

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OPINION OF MR VAN GERVEN — CASE C-146/91

The alleged infringement of the principle of proportionality

If I understand KYDEP's arguments cor­ rectly, it is saying that the measures adopted went further than was necessary in order to achieve those objectives, in particular that the maximum levels of radioactive contami­ 26. According to KYDEP, in adopting nation adopted (370 Bq/kg for milk the measures contained in Regulation and 600 Bq/kg for all other products

26 — OJ 1986 L 139, p. 29. 27 — As an annex to its rejoinder the Commission appended a 28 — Judgment in Case 116/82 Commission v Germany [1986] scientific study in which both situations were explained. ECR 2519, paragraph 21.

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KYDEP v COUNCIL AND COMMISSION

concerned including cereals; see paragraph 6) depended on the environmental awareness of were stricter than necessary to ensure the public opinion in the different countries. health of the consumer.

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OPINION OF MR VAN GERVEN — CASE C-146/91

(paragraph 24), KYDEP puts forward no which are clearly identified and labelled other argument to show that those maxi­ "food preparation for infants", mums were stricter than was necessary. Con­ sequently, there is no evidence available of an infringement of the principle of proportion­ ality.

•— 600 Bq/kg for all other products con­ cerned.'

The manifestly incorrect assessment of the facts

According to KYDEP this provision con­ tains two serious shortcomings: in the first place it makes provision solely for milk and not for cereals and other products, for the 29. KYDEP submits that the maximum tol­ maximum level of radioactivity at the retail erances, as laid down in Regulation trade level; secondly, radioactivity is mea­ No 1707/86, indicate a manifestly incorrect sured for wheat although wheat is not assessment of the facts. As I have already intended directly for human consumption stated above (paragraph 6), Article 3 of that but is always first processed into flour. Yet regulation provided that: the level of radioactivity of flour is normally one-half of that of wheat, as measured on the pericarp (the part protecting the grain). All that, it is said, shows that flour is manifestly treated more favourably than wheat.

In its defence the Commission deals sepa­ 31. With regard to the generality of rately with the two problems raised by KYDEP's arguments which contain no sin­ KYDEP. With regard to the different treat­ gle scientific or other determining element, ment of milk, on the one hand, and all other and the counter-arguments put forward by products, on the other hand, the Commis­ the Council and the Commission, KYDEP's sion states that it was only possible in the claim on this point, it seems to me, must also case of milk to establish a level applicable to be dismissed. For it has in no way been the processed product, because in the case of proved that the Council 'manifestly and other products, in particular wheat, there are gravely exceeded the limits of its competenc­ so many different methods of processing and es'. Moreover, I share the Commission's provisions that it is in practice not possible incomprehension regarding the interest that to establish standards for processed prod­ KYDEP might have in the matters it alleges. ucts. In its reply KYDEP simply stated that it did not agree with this factual assessment. Again with regard to the special treatment of milk the Commission points out that the standard for milk was stricter than that applicable to other products including wheat, and that it thus fails to understand what interest KYDEP can have in challenging that The alleged infringement of the free move­ difference. ment of goods and the freedom to export

As regards the allegedly favourable treatment 32. KYDEP submits that the acts and omis­ of flour in contrast to wheat, the Commis­ sions of the Council and the Commission, in sion confirms that the level of radioactivity particular the failure to adopt a decision at

34. I think it is clear from the foregoing that 33. As counsel for KYDEP stated at the KYDEP has been unsuccessful in seeking to hearing, this is not really a separate allegation show that the Council and/or the Commis­ but a logical implementation and extension sion misdirected themselves in such a way as of the other allegations. The Council and the to incur liability under the second paragraph Commission also refer to their defence con­ of Article 215 of the EEC Treaty. Conse­ cerning the other allegations, in particular to quently, it is not necessary to examine the their defence against the allegation of an alleged loss and the causal link, and infringement of Article 39 of the EEC KYDEP's claim must be rejected in its Treaty: the Community was not competent entirety. Because the arguments of KYDEP to adopt more far-reaching measures than it on loss and causality are not very clear, and had already adopted (see paragraph 15 remain so even after KYDEP's response to above), the telex at issue was entirely lawful the Court's request for supplementary infor­ (paragraph 18) and the measures adopted as a mation, the Council and the Commission whole by the Community institutions and have not really been able to examine in detail the Member States served as far as possible the arguments of KYDEP on these points. to preserve the unity of the' market and trade Should the Court take a different view and with non-member countries (paragraphs 27 consider that KYDEP has adequately dem­ and 28). Since KYDEP submits no other onstrated the existence of a fault on the part arguments, I may likewise refer to my earlier of the Council and/or the Commission, observations and conclude therefrom that those institutions must in any event be KYDEP's submissions must be rejected on afforded the possibility of presenting argu­ this point too. ment on these points.