C-52/92

COMMISSION v PORTUGAL

OPINION OF ADVOCATE GENERAL TESAURO delivered on 5 May 1993 *

Mr President, disease and the risk of infection in Spain, the Members of the Court, main supplier of pigs to Portugal.

For the sake of completeness, I would add that during the course of the infringement 1. In these proceedings the Commission procedure the Portuguese Republic extended seeks a declaration by the Court that by its ban on imports in three successive deci- deciding to close its borders to pig imports sions to France (1 July 1991), the United from certain Member States the Portuguese Kingdom (21 November 1991) and to Den- Republic has infringed Commission mark (10 March 1992). The Portuguese Gov- Decision 91/237/EEC of 25 April 1991 con- ernment stated at the hearing that the ban on cerning further protection measures relating pig imports from these countries was lifted to a new pig disease 1 and has failed to fulfil from 1 April 1993. its obligations under the EEC Treaty.

However, the harmonization measures set Under Article 26 of Directive 90/425/EEC out in Directive 64/432/EEC were amended there were two different deadlines for Mem- by Council Directive 90/425/EEC of 26 June ber States to comply with the provisions of 1990 concerning veterinary and zootechnical the directive: the deadline for compliance checks applicable in intra-Community trade with Article 10 is two months after notifica- in certain live animals and products with a tion, that is 27 September 1990; and the view to the completion of the internal mar- deadline for compliance with all the other ket. 3 In particular, Article 14 replaced Arti- articles was 31 December 1991, subsequently cle 9 of Directive 64/432/EEC, formally at extended to 1 July 1992. 4 least, by a new Article 9, which in fact tack- les a problem of a different type in that it provides that a Member State which has a national control programme for certain con- tagious diseases may submit that programme to the Commission for approval provided it It was precisely Article 10(4) of Directive meets certain criteria. 90/425/EEC that the Commission took as the legal basis for its Decision 91/237/EEC, which lists measures to prevent the spread of a new pig disease and places certain obliga- tions on Member States of dispatch. Under Articles 2 to 5 they are obliged to destroy all products from infected holdings and may not send to other Member States pigs from these holdings. In particular, Belgium, Ger- many and Holland may not send to other Member States production pigs from high- The question of precautionary measures, on health-risk municipalities. 5 the other hand, is covered in Article 10 of Directive 90/425/EEC, which sets out the duties of Member States of dispatch and des- tination and of the Commission to prevent and combat zoonoses and other diseases. Under that article the Commission is to 4. The essence of the dispute is that the adopt the necessary measures after reviewing Commission considers the measure closing the situation in the Standing Veterinary borders to be a clear contravention of Committee (paragraph 4), while the Member Decision 91/237/EEC, since it prevents State of destination may only take the pre- imports which are permitted under the cautionary measures provided for in Com- decision. Again in the view of the Commis- munity rules following the checks referred to sion, such a measure cannot be justified in Article 5 of the directive (paragraph 1, either by Article 9 of Directive 64/432/EEC, third subparagraph) and, under certain cir- since this provision has been replaced by cumstances, may take interim protective Article 10 of Directive 90/425/EEC and is measures pending the measures which are thus no longer in force, or by Articles 36 and normally to be taken by the Commission (paragraph 1, subparagraph 4).

The Portuguese Government claims that it adopted its decision not to protect its domestic market but as a precautionary measure objectively required for the protec- tion of health and it believes that Article 9 of It is apparent from the arguments outlined Directive 64/432/EEC does provide a legal and, indeed, it was stressed at the hearing basis for this measure. Whilst it accepts that that the Commission's real complaint against the provisions of Article 10 of Directive the Portuguese Government is not so much 90/425/EEC are intended to replace the safe- the contravention of Decision 91/237/EEC, guard mechanism in Article 9 of Directive which in fact merely imposes certain obliga- 64/432/EEC and that, in principle, under tions on Member States of dispatch, as in Article 26 of Directive 90/425/EEC those particular the fact that it has infringed Arti- provisions should come into operation two cle 10 of Directive 90/425/EEC in that that months after the date of notification of the article sets out the procedure to be followed directive, the Portuguese Government points where the existence of a contagious disease is out that Member States of destination could established and 'harmonizes' the safeguard not implement Article 10 before the inspec- mechanism by empowering the Commission tion measures set out in Article 5 of the to adopt measures in this area. Directive were actually implemented, and that the deadline of 1 July 1992 for their transposition into national law had not yet expired on the date when the decision was taken to close the borders.

In the final analysis, the Commission has in the Portuguese Government should have effect charged the Portuguese Government transposed Article 5 of Directive with contravention of Article 10 in connec- 90/425/EEC, that is the rules concerning tion with a specific national measure rather inspection measures, into its national legisla- than contravention of the decision which is tion, before the deadline set for transposition mentioned formally only in the form of by the Directive itself, if it thought it neces- order sought. The very fact that, throughout sary to do so to make Article 10 apply. the proceedings the parties discussed at Indeed, while it is true that the Portuguese length and exclusively whether or not Article Government could have done so, there is 10 had harmonized the procedure for the obviously no basis for requiring such adoption of precautionary measures and 'advance' transposition where the applicabil- whether that article was fully applicable as of ity of Article 10 would be actually depen- 27 September 1990 quite obviously shows dent on the entry into force of the inspection that the issues were clear and well defined. measures.

I - 2970

COMMISSION y PORTUGAL

Article 10: from this point of view the only dependent on the implementation of other important factor is the actual knowledge of provisions of Directive 90/425/EEC. the existence of a disease. Once disease is known to exist, regardless of the means, the mechanism in Article 10 must be set in motion, and hence it is up to the Commis- sion to adopt the necessary measures, which it did in this instance by adopting Decision 91/237/EEC. 9. A subsidiary argument of the Portuguese Government was that its decision had a legal basis in Articles 100a(4) and 36 of the Treaty. As far as Article 100a(4) is concerned, I would simply point out that, as the Commis- sion has said, that provision can be invoked only where the Community act in question Furthermore, the option of carrying out was adopted on the basis of Article 100a, checks at borders and putting infected ani- which is not the case here as Directive mals into quarantine, measures which are 90/425/EEC was adopted on the basis of provided for by Article 5 of Directive Article 43 of the Treaty. Moreover, even in 90/425/EEC and on whose implementation its defence, the Portuguese Government had the Portuguese Government claims the dropped the reference to this provision. applicability of Article 10 depends, was in fact already provided for by Directive 64/432/EEC. Article 5 of Directive 90/425/EEC in essence simply reiterates and clarifies the content of Article 6 of Directive 64/432/EEC whereby Member States of des- tination are empowered to carry out checks on imported animals at borders and if neces- It thus remains to be considered whether the sary to adopt the measures considered Portuguese Government can legitimately appropriate under the Community legisla- invoke Article 36 as the legal basis for the tion on this subject, including the quarantin- contested national measure. Its argument is ing of the animals in question (see in partic- that in a situation where national systems for ular Article 6(3)). monitoring the movement of live animals within the Community were not fully har- monized, the measures adopted by the Com- mission in Decision 91/237/EEC were inad- equate and the reliance on Article 36 was thus justified.