C-183/95

(1) Council Directive 91/493/EEC I - 4319

(2) Council Directive 90/675/EEC I - 4322

(3) Commission Decision 95/119/EEC I - 4323

B — The relevant national legislation I - 4326

C — The Agreement on the application of sanitary and phytosanitary measures ... I - 4326

III — Facts I - 4329

B — Insufficient statement of reasons for the Commission's decision I - 4336

(1) Extent of the Commission's powers under Article 19 of Directive

90/675 I - 4336

(2) Sufficient statement reasons for the contested decision I - 4339

C — Infringement of the principle of proportionality I - 4341

(1) Was the measure adopted appropriate to the objective pursued? I - 4341

(3) Balancing of advantages and disadvantages I - 4347

D — Infringement of the principle of equal treatment I - 4348

E — Infringement of the principle of the protection of legitimate expectations ... I - 4349

F — Breach of the Agreement on the application of sanitary and phytosanitary

measures I - 4350

(1) Admissibility I - 4351

for Trade and Industry) has submitted to the Court for a preliminary ruling pursuant to Article 177 of the Treaty a question concern­ ing the validity of Commission Decision 95/119/EC of 7 April 1995 concerning cer­ tain protective measures with regard to fish­ 3. At the same time, this case also gives the 1 ery products originating in Japan. Court the opportunity to rule for the first time on the question whether the provisions of the Agreement on the application of sani­ tary and phytosanitary measures (hereinafter 2. This case concerns a review by the Court 'the Agreement'), 3 which forms part of of the validity of measures for the protection

2 — OJ 1990 L 373, p. 1. 1 — OJ 1995 L 80, p. 56. 3 — OJ 1994 L 336, p. 40.

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AFFISH v RIJKSDIENST KEURING VEE EN VLEES

Annex 1A to the Agreement establishing the checks and inspections which those products World Trade Organization (hereinafter 'the must undergo (Articles 10 to 12). WTO' ), have direct effect.

II — The legal framework 6. Article 10 sets forth the principle that the provisions governing the importation of fish­ ery products from third countries must be at least equivalent to those governing the pro­ A — The Community provisions duction and placing on the market of Com­ munity products. The provision is worded as follows:

'1 . For each third country or group of third countries, fishery products must fulfil the (c) the actual health conditions during the specific import conditions ..., depending on production, storage and dispatch of fish­ the health situation in the third country con­ ery products intended for the Commu­ cerned. nity;

2. In order to allow the import conditions to (d) the assurances which a third country can be fixed, and in order to verify the condi­ give on the compliance with the stan­ tions of production, storage and dispatch of dards laid down in Chapter V of the fishery products for consignment to the Annex. Community, inspections may be carried out on the spot by experts from the Commission and the Member States.

4. The import conditions referred to in para­ graph 1 shall include:

3. When fixing the import conditions of fishery products referred to in paragraph 1, (a) the procedure for obtaining a health cer­ particular account shall be taken of: tificate which must accompany consign­ ments when forwarded to the Commu­ nity;

(a) the legislation of the third country;

(b) the placing of a mark identifying the fishery products, in particular with the (b) the organization of the competent auth­ approval number of the establishment of ority of the third country and of its origin, except in the case of frozen fish­ inspection services, the powers of such ery products, landed immediately for services and the supervision to which canning and bearing the certificate pro­ they are subject, as well as their facilities vided for under (a);

6 — Chapter V of the Annex, to which reference is made in para­ graph 3(d), concerns the health control and monitoring of 7 — OJ 1993 L 79, p. 80. production conditions. 8 — OJ 1994 L 366, p. 34.

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OPINION OF MR COSMAS — CASE C-183/95

Directive 91/493. 9 The period of validity timely protection of public health. Article 19 was subsequently extended until 30 June thereof is worded as follows: 1995 by Council Decision 95/49/EC of 27 February 1995.

'1 . If, in the territory of a third country, a disease ..., a zoonosis or other disease or 11. Article 12(1) of Directive 91/493 pro­ phenomenon liable to present a serious vides that the procedure and the inspections threat to animal or public health, or if any to be carried out by the Member States, as other serious animal health or public health well as the safeguard provisions to be imple­ reason so warrants in particular in the light mented, must be laid down on the basis of of the findings of its veterinary experts, the Directive 90/675/EEC, to which express ref­ Commission may, acting on its own initiative erence is made. or at the request of a Member State, adopt one of the following measures without delay and depending on the gravity of the situa­ tion:

(2) Counal Directive 90/675/EEC

9 — From 1 July 1995, Decision 93/185 was replaced by Com- mission Decision 95/328/EC of 27 July 1995 establishing health certification for fishery products from third countries which arc not yet covered by a specific decision (OJ 1995 L 191, p. 32). The period of validity of that decision was fixed as two years. Article 1(1) of the decision provides that 4. Representatives of the Commission may consignments of fishery products introduced into the Com- munity must (a) come from an agreed establishment make an immediate visit to the third country inspected by the competent authority of the third country and (b) be accompanied by a numbered original health cer- concerned. tificate attesting that the health conditions of production, handling, processing, packaging and identification of the products arc at least equivalent to those established by Directive 91/493. The model of the health certificate is laid down in the Annex. 10 — OJ 1995 L 53, p. 30. 11 — Directive already cited in footnote 2.

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6. Without delay the Commission shall 15. Following that visit, a 'preliminary review the situation within the Standing Vet­ report concerning a mission in Japan about erinary Committee. ...' the import of scallops and other fishery products', dated 4 April 1995, was produced.

16. The Community experts concluded that the establishments for scallops and fishery products which they had visited did not (3) Commission Decision 95/119/EC comply with the requirements of Directive 91/493 and that some establishments pre­ sented serious public health risks. Moreover, the checks by the competent authorities were not strict enough and gave no guarantee about the absence of fraud concerning the origin of the products.

12 — In its written observations (point 10), the Commission points out that, with regard to Japan, the specific conditions referred to in Article 11(1) of Directive 91/493 for imports of fishery products have not yet been fixed. On 22 March These remarks concern both establishments 1995, the Japanese authorities sent to the Commission a list of 80 approved establishments. Once the Commission's for scallops and for other fishery products. inspections, provided for by Article 11(2) of Directive 91/493, of the control system operated by those authorities had been carried out and that system had been approved, the specific conditions for imports of the products con- cerned could be fixed. Until then, the Japanese authorities issued health certificates only in respect or fishery products exported to the Community from establishments which complied with the requirements of Directive 91/493. The Community's mission of experts was sent out in order 1.1 The official authority (Ministry of to ascertain what conditions prevailed in the fish-processing establishments in Japan, so that the specific conditions for Health and Welfare, assisted by the Health imports of fishery products from that country could subse- Centres of the Prefectures) does not carry quently be fixed. Following that mission's negative find- ings, which were set out in the report of 4 April 1995, and out a satisfactory check on the establish­ the ensuing adoption of Commission Decision 95/119, the Japanese authorities suspended the issue of health certifi- ments; some establishments presenting seri­ cates as from the beginning of May 1995, and on 7 August ous public health risks were put on the list of 1995 sent to the Commission a new list of two approved establishments. On 7 September 1995, they notified the establishments by the Japanese authority and Commission that they had approved another four establish- ments. Health certificates were again issued but only in declared as complying with the requirements respect of products from those establishments. of Directive 91/493/EEC.

3.4 By letter of 22 March 1995, the Mission 2. Scallop establishments of Japan in Brussels provided the Commis­ sion with a list of 80 establishments which "meet the conditions laid down by Council Directive 91/493/EEC". None of the four establishments, selected by the Japanese authority, met these conditions, at the time of the visit.

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AFFISH v RIJKSDIENST KEURING VEE EN VLEES

4. Conclusion 19. On the basis of that report by its experts, on 7 April 1995, pursuant to Article 19 of Directive 90/675/EEC, the Commis­ sion adopted Decision 95/119/EC concern­ The establishments visited for scallops and ing certain protective measures with regard fishery products did not comply with Coun­ to fishery products originating in Japan, 14

cil Directive 91/493/EEC. Some presented which provided as follows: serious public health risks.

The checks by the competent authority are Article 1 not strict enough and give no guarantee about the absence of fraud concerning the 1 origin of the products.' 3

Article 3 13 — Section 2 of the report, which relates to scallop-processing establishments, reads as follows: 'Thirteen establishments are on the list provided by the Japanese authority. During the visit, five establishments were supposed to be in operation, the seven others being located m arcas where scallop harvesting was not open, due to weather conditions. Out of these five establishments, the mission selected three establishments to be visited, and gave their names on the 'Member States shall amend the measures day of arrival in Tokyo (27 March). Some hours later, the that they apply to imports to comply with mission was informed that one out of the three establish- ments was closed. Therefore, the mission insisted on carry- this decision. They shall inform the Com­ ing out a short visit, which made possible the discovery that 1 this establishment was not meeting Community require- mission thereof.' 6 ments. 2.1 The biotoxines (DSP and PSP) analytical methods, used by official and private accredited laboratories, arc not fully harmonized. 2.2 The official analytical procedures showed that the 14 — Decision cited in footnote 1. matrix to be tested is not the ovary (as indicated in the Commission Decision of 8 April 1994), but the muscle, 15 — That prohibition was subsequently only partly lifted. The which does not concentrate the biotoxines. article in question was replaced, in Commission Decision 2.3 In two out of three establishments visited, the mission 95/537/EC of 6 December 1995 (OJ 1995 L 304, p. 51), by found cartons of frozen scallop plastic bags (muscle and the following text: ovary) in cold stores, labelled in French "Frozen on 10 'Member States shall prohibit the import of bivalve mol- April 1990, best before 10 April 1992". luscs, echinoderms, tunicates and marine gastropods in 2.4 The identification system for process products cannot whatever form originating in Japan.' prevent fraud concerning products coming from non- 16 — Article 2 of Decision 95/119 reads as follows: approved establishments. 'Decision 94/206/EC is repealed'. 2.5 The three establishments visited did not meet the Decision 94/206 of 8 April 1994 (OJ 1994 L 99, p. 44) requirements concerning structure, equipment and hygiene, amended for the second time Commission Decision as laid down by Council Directive 91/493/EEC. Therefore, 92/91/EEC of 6 February 1992 on certain protective mea- the Mission of Japan in Brussels, by letter of 22 December sures with respect to scallops originating in Japan (OJ 1992 1994, declared that the 13 establishments had met the L 32, p. 37), allowing the resumption of imports into the requirements from that date on. They had received a provi- Community. Decision 92/91 prohibited the importation of sional approval between 8 April 1994 and 31 December scallops from Japan. This last decision was amended by 1994, in order to have the opportunity to achieve the Commission Decision 92/293/EEC (OJ 1992 L 155, p. 39) improvements necessary to respect the Community which extended the prohibition to all bivalve molluscs and requirements.' marine gastropods originating in Japan.

20. In order to implement Commission Decision 95/119, the Netherlands Secretary of State for Public Health, Welfare and Sport, acting on the advice of the Minister of 24. Paragraphs 2 and 3 of Article 2 of the Agriculture, the Environment and Fisheries, Agreement, headed 'Basic Rights and Obli­ 17 adopted the Decree of 13 April 1995 gations', read as follows: amending the Warenwetregeling Invoerver­ bod Bepaalde Visserijprodukten uit Japan (Decree, issued pursuant to the Law on Foodstuffs, prohibiting the importation of certain fishery products from Japan, herein­ 18 '2. Members shall ensure that any sanitary after 'the Warenwetregeling'). or phytosanitary measure is applied only to the extent necessary to protect human, ani­ mal or plant life or health, is based on scien­ tific principles and is not maintained without sufficient scientific evidence ... 21. The prohibition entered into force in the Netherlands on 15 April 1995.

3. Members shall ensure that their sanitary and phytosanitary measures do not arbi­ 22. Article 1 of the decree, as amended, pro­ trarily or unjustifiably discriminate between vides that consignments of fishery products Members where identical or similar condi­ originating in Japan may not be introduced tions prevail, including between their own into Netherlands territory in any form what­ territory and that of other Members. Sani­ ever. tary and phytosanitary measures shall not

17 — Staatscourant 1995, p. 74. 19 — This agreement has already been cited in footnote 3. 18 — Staatscourant 1994, p. 86. 20 — OJ 1994 L 336, p. 1.

26. Article 5, headed 'Assessment of Risk 21 — Article 4 of the Agreement, headed 'Equivalence', reads as follows: and Determination of the Appropriate Level '1 . Members shall accept the sanitary or phytosanitary mea­ sures of other Members as equivalent, even if these mea­ of Sanitary or Phytosanitary Protection', sures differ from their own or from those used by other reads as follows: Members trading in the same product, if the exporting Member objectively demonstrates to the importing Member that its measures achieve the importing Member's appropri­ ate level of sanitary or phytosanitary protection. For this purpose, reasonable access shall be given, upon request, to the importing Member for inspection, testing and other rel­ evant procedures. 2. Members shall, upon request, enter into consultations with the aim of achieving bilateral and multilateral agree­ '1 . Members shall ensure that their sanitary ments on recognition of the equivalence of specified sani­ tary or phytosanitary measures.' or phytosanitary measures are based on an

I - 4327

OPINION OF MR COSMAS — CASE C-183/95

assessment, as appropriate to the circum­ 4. Members should, when determining the stances, of the risks to human, animal or appropriate level of sanitary or phytosani­ plant life or health, taking into account risk tary protection, take into account the objec­ assessment techniques developed by the rel­ tive of minimizing negative trade effects. evant international organizations.

5. ...

2. In the assessment of risks, Members shall take into account available scientific evi­ dence; relevant processes and production methods; relevant inspection, sampling and 6. ... when establishing or maintaining sani­ testing methods; prevalence of specific dis­ tary or phytosanitary measures to achieve eases or pests; existence of pest-or disease- the appropriate level of sanitary or phy­ free areas; relevant ecological and environ­ tosanitary protection, Members shall ensure mental conditions; and quarantine or other that such measures are not more trade- treatment. restrictive than required to achieve their appropriate level of sanitary or phytosani­ tary protection, taking into account technical and economic feasibility (1).

30. Between 23 January 1995 and 15 March 1995, Affish purchased 11 consignments of Surimi products from Hanwa.

Ill — Facts

31. At the end of March 1995, Hanwa shipped to the Netherlands two of those consignments of kamaboko, in respect of which health certificates had been issued by the competent Japanese authorities. 27. Affish BV (hereinafter 'Affish') imports, mainly from Japan, and distributes deep- frozen fishery products. Since 1980, it has maintained for that purpose relations with the trading house Hanwa Co. Ltd of Osaka (hereinafter 'Hanwa').

32. By decision of 2 May 1995, issued on the basis of Commission Decision 95/119, the Rijksdienst voor de Keuring van Vee en Vlees (National Department for the Inspec­ tion of Livestock and Meats, hereinafter 'the

28. Hanwa represents four Japanese factories 22 — According to the order for reference, the fish caught is which further process 'Sūrimi', semi- semi-processed at sea into 'Surimi' products which arc further processed in the Japanese factories; the resultant processed fish, into Sūrimi fish products, product is called 'kamaboko'.

I - 4329

34. By application of 3 May 1995, Affish 36. Against that, the Rijksdienst argued that asked the President of the College van the Netherlands authorities were obliged to Beroep voor het Bedrijfsleven, by way of comply fully with the Community decision interim relief, to suspend the enforcement of and were not competent to consider the the Rijksdienst's decision and to declare that question whether the decision had been law­ the Rijksdienst is entitled to refuse to allow fully adopted: that was a matter for the the importation of the aforementioned con­ Court alone. Since the decision did not pro­ signments of fishery products, and of any vide for a transitional period, the Nether­ consignments of fishery products which Aff­ lands Government could not provide for one ish may import in the future, only on either. grounds of the protection of health and life of humans or animals, and that the Rijksdi­ enst would be entitled to base such refusal only on a laboratory investigation, con­ ducted or commissioned by the Rijksdienst, showing that an actual threat to the health and life of humans or animals would result from the importation of the consignments in question. 37. The national court first considered Aff- ish's claim in the alternative and dismissed it on the ground that neither contested Decision 95/119 nor Directive 90/675, nor Community law in general, contains provi­ sions which would allow the Member States, in implementing the decision, to provide for 35. In support of its application to the a transitional arrangement. Furthermore, national court, Affish claimed that contested assuming that the protection of public health Decision 95/119 was invalid on the following within the meaning of Article 19 of Directive four grounds: (a) it conflicted with Article 19 90/675 was actually at stake, there would be of Directive 90/675, (b) it infringed the prin­ no room for taking into account the econ­ ciple of proportionality, (c) it infringed the omic interests of affected traders.

39. The national court questions the pro­ cedure followed by the Commission in adopting the decision. It considers that the aim of the mission of experts was to inspect 41. The national court further points out the state of the fish-processing establish­ that the prohibition affects a particular mar­ ments in Japan in order subsequently to fix, ket, namely, the market in kamaboko prod­ in accordance with Article 11 of Directive ucts, which, at least in the Netherlands, had 91/493, the specific conditions for the impor­ hitherto been free of problems. In addition, tation of fish products. In the national any unreliability of the health certificates court's initial assessment, however, the find­ issued for certain types of product can be ings of the mission of experts do not provide offset by checks at the time of importation of conclusive justification for the decision. the products concerned into the Community. Moreover, it observes that the results of the inspections do not seem to have been dis­ cussed with the persons concerned before the contested decision was adopted.

40. The national court goes on to consider that, of the many dozens of establishments which exist in Japan, the experts visited only four in the north-east of the country. The conclusions in the report do not justify a general prohibition on the importation of 42. The national court further considers that the fact that the Commission was not repre­ sented at the hearing, although it had been 23 — Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süder- dithmarchen and Zuckerfabrik Soest [1991] ECR I-415, paragraph 16 et seq. The conditions set out by the Court in that judgment were clarified in Case C-466/93 Adanta Fruchthandelsgeselhchaft (II) [1995] ECR I-3799, para- 24 — At one of the establishments, the conditions were even graph 35 et seq. assessed as 'satisfactory'.

45. The College van Beroep voor de Bedrijf­ 44. Although the national court maintained sleven has referred the following question to its reservations as regards the supervision the Court for a preliminary ruling: and health checks carried out by the compe­ tent Japanese authorities at the establish­ ments in the region from where Affish imports its products, and thus as regards the reliability of the health certificates issued,

'Regard being had to the considerations set out in this order, is Commission Decision 25 — The Commission was in fact represented at the hearing in a later case before the same court and between the same par- tics (concerning a prohibition on the importation of further consignments of kamaboko, pursuant to Decision 95/119), in which judgment was given on 24 August 1995. 27 — That is, a documentary check, an identity check and, finally, 26 — Already cited in footnote 23. a physical check.

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Preliminary observations 47. Having clarified that, I shall first exam­ ine whether it is necessary to supplement the 29 judgment in Zuckerfabrik with a further requirement, this time of a procedural nature, for the grant of interim relief when a national court questions the validity of a 46. It should be observed first of all that Community act (A). Next, the grounds Affish applied to the national court for the raised against the validity of Commission suspension of the Rijksdienst's decision. Decision 95/119, both by the national court According to the operative part of the order and by Affish in its observations to the for reference, the national court has sus­ 30 Court, must be examined. I shall thus pended the enforcement of Commission Decision 95/119. I am, however, of the opin­ ion that the national court, doubting the validity of contested Decision 95/119, has in 23.. 29 — Already cited in footnote 23 30 — The national court points out that the other grounds relied substance suspended the enforcement of the upon by Affish in order to contest the validity of the administrative act of the competent national decision concern the proportionality of the measure at 28 issue,, viewed in the light of the requirements set forth in issue authority prohibiting the importation of Article 19 of Directive 90 /675 90/ 675.. I am of the opinion that all of Affish's arguments must be examined in turn turn,, even certain consignments of fishery products though the national court has not taken a view on any par­ from Japan, a decision which was adopted argument.. The Court's case-law is clear on this ticular argument point.. In the judgment in Joined Cases 103 point 103//77 and 145 /77 145/ Scholten-Honig [1978 ] ECR 2037 1978] 2037,, paragraphs 16 and 17 17,, the Court considered the validity of a Community regu­ lation on the basis of the grounds for annulment relied on proceedings,, since the national by the plaintiff in the main proceedings 28 — The Italian and the Netherlands Governments point this court had asked the Court in general terms for a ruling on observations.. out in their observations the question whether the regulation in question was valid valid..

(A) The need to supplement the judgment in 50. I am of the opinion that it is not neces­ Zuckerfabrik sary for the Court to take a view on this point. My objection is that the national court 31 has not directly raised this question. It is true that there have been a number of occa­ sions when the Court has interpreted provi­ (1) Admissibility sions even though the national court did not 32 expressly request it to do so. However, on each occasion when it did so, this was solely in order to give the national court a helpful reply which would enable it subsequently to resolve the dispute pending before it. I am 48. In its order for reference, the national thus of the opinion that an answer to this court merely observes that the fact that the question is neither necessary nor useful for Commission was not represented at the hear­ the purpose of answering the question ing, despite being invited to attend by the referred by the national court for a prelimi­ President at the request of the Rijksdienst, nary ruling, nor does it have to be answered hindered the proper assessment of the con­ clusions set forth in the experts' report on their visit to the establishments concerned, and consequently also the examination of the 31 — The national court did invite the Commission to explain its validity of the contested decision. point of view at the hearing, even though the Commission was unable to attend. As was observed at the hearing, instances can be cited (as in the United Kingdom, for example) in which the national court has called on the Community institution to explain the reasons why it adopted a particular act. 32 — See, for example, Case 70/77 Simmenthal [1978] ECR 1453, paragraph 57; Case C-114/91 Claeys [1992] ECR I-6559, paragraph 21 in conjunction with paragraph 10; Case 49. According to the Commission, this case C-280/91 Viessmann [1993] ECR I-971, paragraph 17, and the Opinion of Advocate General Jacobs in that case gives the Court an opportunity to rule for (point 14).

51. With regard to the question of the extent to which it is necessary to supplement the Zuckerfabrik judgment and, more specifi cally, whether it is necessary for the Court to lay down procedural rules governing the 52. Although the recognition of such a manner in which national courts grant 34 requirement is theoretically of interest, I am interim relief, I must observe that the not in favour of it. The national court cannot Court is being asked by the Commission to assess the validity of a Community act, and lay down a procedural rule which would it must therefore refer a question for a pre guarantee the right of the Community insti liminary ruling whenever it has doubts about tutions to defend themselves in the event of the validity of one of their acts being called the validity of such an act.

See also Joined Cases C-422/93, C-423/93 and C-424/93 Zabola [1995] ECR 1-1567, paragraph 29. 35 — In practice, this would mean that the Parliament would 34 — Let me point out that the national court invited the Com have the right to defend itself whenever any of its acts pro mission to explain its point of view at the hearing, but that duced legal effects or was adopted in accordance with the the Commission was prevented from doing do for reasons co-decision procedure under Article 189b of the Treaty, that unconnected with the case. It was, however, represented is, jointly with the Council, the Commission and the Euro during the hearing of a later application for similar judicial pean Central Bank. relief, brought by Affish before the same court. 36 — Already cited in footnote 23.

53. According to Affish, in adopting Decision 95/119, the Commission infringed Article 19 of Directive 90/675 in several respects. In particular, it argues that the Commission cannot be regarded as the Community legislature, and that it therefore does not have a wide discretion under Article 19. But even if it did have such a dis­ cretion, it would still have to give a proper 55. Article 19 of Directive 90/675 confers statement of the legal and factual reasons exclusively on the Commission a wide discretion since, 'depending on the gravity forming the basis of a measure as restrictive as an import prohibition in respect of fishery products from Japan, namely the Sūrimi products imported by Affish, which had 39 — The Court has ruled on the Commission's powers in this field in Case 27/85 Vandemoortele [1987] ECR 1129, para­ hitherto undergone all veterinary checks graph 14. In that judgment, which concerned the scope of inside and outside the Community without the implementing powers granted in principle to the Com­ 38 mission in regard to the common agricultural policy, the any problem. Court held (paragraph 14) that 'it follows from the context of the Treaty in which Article 155 must be placed and also from practical requirements that the concept of implemen­ tation must be given a wide interpretation'. Since 'only the Commission is in a position to keep track of agricultural market trends and to act quickly when necessary, the 37 — In addition, the national court can always ask the Commu­ Council may confer on it wide powers of discretion and nity institution which adopted the measure for information action in that sphere, and when it docs so the limits of those in order to obtain a clear picture of the factual context of powers must be determined in the light of the essential gen­ the dispute pending before it; see, for example, the order eral aims of the market organization'. of 13 July 1990 in Case C-2/88 Imm. Zwartfeld [1990] With regard to the Council's powers in the context of the ECR 1-3365. common agricultural policy, see, for guidance, Case 38 — At the hearing, Affish argued that the hypothetical risk C-122/94 Commission v Council [1996] ECR 1-881, para­ from hygiene deficiencies at the fish-processing establish­ graph 18, which deals with State aid in the wine sector, and ments was very small because the fish used for Sūrimi is my Opinion in that case, as well as the earlier judgment caught in Alaska and Canada and processed into semi­ in Case 138/79 Roquette Frères [1980] ECR 3333, para­ finished products at sea. graph 25.

40 — However, the Commission's wide discretion does not mean that there is no supervision of the decisions which it adopts 57. To my mind, the question of what facts in exercising its powers. If the indeterminate legal concepts contained in Article 19(1), whose more precise definition is or situations ultimately constitute a 'serious left to the Commission's discretion, were excessively wid- threat', 'serious reasons' or a 'grave situation' ened, they would cease to be effective. Those concepts can- not cover every symptom of disease or zoonosis, or any must be assessed from case to case, taking kind of circumstance, because their meaning would then be lost and, as indeterminate legal concepts, they would have account of many factors such as, for merely nominal status without any substantive binding example, the nature of the product, its pos­ effect or, ultimately, any practical utility. 41 — The sixth recital in the preamble to Directive 90/675 states sible susceptibility to rapid deterioration, or that 'provision must be made for safeguard arrangements; ... the possibility of thorough and conclusive in this context, the Commission must be able to act, par- ticularly by visiting the places concerned and adopting mea- checks at both the production stage and sures appropriate to the circumstances'.

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62. The Court has ruled in many cases not light of the findings of its veterinary experts. only on the extent of the powers of the The Commission can act not only when, in Community institutions pursuant to Treaty the territory of a third country, a disease or provisions relating to the implementation of zoonosis occurs or spreads, from which a the common agricultural policy, but also on serious threat to human and animal health is the limits of its powers of review when those likely to arise, but also if such action is war institutions enjoy a wide discretion and have ranted by other serious animal health or to evaluate a complex economic situation. public health reasons. Thus the Court has taken the view that, in the case of a common organization of the

not only of products which threaten public in Case 8/65 Acciaierie e Ferriere Pugliesi [1966] ECR 1.

66. The first recital in the preamble to con­ tested Commission Decision 95/119 reads as follows: 'Whereas a mission of experts of the Commission went to Japan to check the con­ ditions of production and processing of fish­ ery products exported to the Community; 64. It should first be recalled that, under whereas according to the observations of Article 190 of the Treaty, acts of the Com­ these experts, the official guaranties given by munity institutions must state the reasons on the Japanese authorities are not adhered to which they are based. As the Court has con­ and the conditions of production and storage 44 sistently held, however, the statement of of fishery products show serious defects as reasons required by Article 190 must be regards hygiene and control which can con­ 'appropriate to the nature of the measure in stitute risks to public health'. question. It must show clearly and unequivocally the reasoning of the institu­ tion which enacted the measure so as to inform the persons concerned of the justifi­ cation for the measure adopted and to enable the Court to exercise its powers of review. It has also been held that the statement of rea­ sons for a measure is not required to specify the matters of fact or of law dealt with, pro­ 67. The second recital in the preamble reads vided that it falls within the general scheme as follows: 'Whereas Commission Decision of the body of measures of which it forms 94/206/EC prohibits the import of consign­ part'. ments of bivalve molluscs and marine gastro­ pods originating in Japan other than scallops and other Pectinidae, frozen or processed'.

69. Examination of the Community experts' report shows that they directed their obser­ vations (sections 2 and 3 of the report) pri­ marily at the serious shortcomings of the veterinary checks carried out by the compe­ tent Japanese authorities, at the same time pointing out the serious public health risks which existed at the time of the visits (see, in particular, points 1.4, 2.3 and 3.2 of the 71. I am likewise of the opinion that the report). statement of reasons for the contested Com­ mission decision may not be regarded as insufficient because it is too brief. It is true that the reasons in question do not include an exhaustive enumeration of all the factors in the Commission's reasoning, do not cite in full the conclusions of the mission of experts sent out to Japan, and do not explain why a less restrictive measure would not 70. The report as a whole, to which the first have been appropriate. However, as an act recital expressly refers, but especially point 3 adopted under a discretionary power, the therein, sets out the reasons why the condi­ contested decision does contain, albeit in tions at the fish-processing establishments summarized form, mention of factual cir­ visited, in particular their structure, equip­ cumstances which the Commission took into ment and hygiene, the manufacturing prac­ consideration, and the legal conclusions jus­ tices and the deficiencies in the veterinary tifying its adoption. It is precisely because checks carried out by the competent Japa­ the decision is an act based on a discretion­ nese authorities, were not only inconsistent ary power that a summary statement of with the provisions of Directive 91/493, but reasons is sufficient, as Advocate General 46 also presented serious public health risks. In Lagrange has also pointed out. view of the nature of the fishery products concerned, which, as the Commission points out, can only be effectively checked at the 46 — See his Opinion in Joined Cases 36/59, 37/59, 38/59 and production stage, there were thus serious 40/59 Geitling v High Authority [1960] ECR 423.

76. As the national court observes, points 1.3 to 1.5 of the report indicate that insuffi­ cient attention was paid to critical aspects of 74. Affish considers that the contested the production process, such as water supply, decision infringes the principle of propor­ for example, and verification of every batch. tionality which also governs Article 19 of 48 It also notes that the four establishments Directive 90/675. In particular, it maintains from which Affish obtains its products com­ that the measure selected by the Commission ply fully with the Community requirements. was neither appropriate nor necessary for It points out that the conclusions of the mis­ 49 sion of experts are not a sufficient basis for such a restrictive measure since there had 47 — See also, for example, Case 185/83 University of Groningen been no actual complaints about particular [1984] ECR 3623, paragraph 38; Case 203/85 Nicolei Instrument [1986] ECR 2049, paragraph 10; Case 167/88 products which could justify the adoption Association generale des producteurs de pié et autres céréales of safeguard measures under Article 19 of [1989] ECR 1653, paragraph 34; Joined Cases C-121/91 and C-122/91 CT Control and JCT Benelux [1993] ECR 1-3873, paragraph 31. 48 — According to Affish, Article 19 contains a double propor­ tionality test, because on the one hand the reasons justify­ ing the measures adopted must be stated, and on the other, 49 — Neither the national court nor Affish disputes the reliability the measure selected must be commensurate with the situ­ of the conclusions of the mission of experts with regard to ation which has arisen. the establishments visited.

80. I must therefore begin by examining the objective of the contested decision (95/119) in order to determine thereafter whether the measure adopted by the Commission is 78. According to settled case-law, by virtue appropriate and necessary in order to achieve of the principle of proportionality, 'measures that objective, and whether its disadvantages imposing financial charges on economic outweigh its advantages. operators are lawful provided that they are appropriate and necessary for meeting the objectives legitimately pursued by the legis­ lation in question. Of course, when there is a choice between several appropriate measures, the least onerous measure must be used and the charges imposed must not be dispropor­ 50 81. It is clear from the first recital in the pre­ tionate to the aims pursued.' amble that the objective of the decision is the protection of public health which would be put at risk by the consumption of fishery products from Japan since serious defects as regards hygiene have been found to exist.

include 'a contribution to a high level of experts (section 1 and points 3.1 and 3.2 of health protection'. The Court went on to the report) and the public health risks pre­ state: 'That objective is reiterated in the first sented by the defects identified. subparagraph of Article 129(1) of the Treaty, under which the Community is to contribute towards ensuring a high level of human health protection. The third subparagraph of Article 129(1) further specifies that health protection requirements are to form a con­ stituent part of the Community's other poli­ 53 cies.' It is significant, moreover, that in (2) Was the measure adopted necessary? that order the Court considered that 'efforts to achieve the objectives of the common agricultural policy cannot disregard require­ ments of public interest, such as the protec­ tion of consumers or of the health and life of humans and animals, which the Community institutions must take into account in exer­ 54 cising their powers.' 84. According to Affish, the problem of defective control arises only in a different region of Japan from that where Affish obtains its products, and a general prohibi­ tion on imports from Japan was not a meas­ ure which was necessary to achieve the objective pursued.

(a) Inspections by sampling results of an inspection by sampling carried out in a sufficiently reliable manner, and on the conclusions of experts, that is, scientists with specialized knowledge who are able to make a full assessment of the actual situa 56 tion and to produce a report on the basis 57 of their findings in relation to the whole of 58 86. In considering the need for the measure which they have inspected certain parts. adopted by the Commission, the question arises of how far the results of an inspection by sampling can suffice to justify the general prohibition on fishery products from Japan imposed by the Commission.

87. In my opinion, on-the-spot inspections necessary technical knowledge in the various fields in which the scientific instruments concerned are used or the mem- by sampling were the proper way to verify bers of that group are advised by experts having that knowledge' (paragraphs 21 and 22). conditions at Japanese fish-processing estab 57 — See Case C-413/92 Germany v Commission [1994] ECR lishments which, as is clear from the experts' I-3781, paragraph 13, which concerned the grant of aid for processing skimmed milk into casein and cascinates.

. . to adduce 88. Support for this view can be found in the evidence that the methods adopted by the Commission were not appropriate for the type of inspection to be car- case-law of the Court, which has held that ried out and that the results obtained were unreliable' the Commission may base its action on the (paragraph 25).

91. Since Affish has not shown that all the establishments from which it obtains its products comply with Community require­ (a) The fact that the Japanese authorities ments, its argument that the Commission themselves had designated the establish­ 6 was not entitled to base its decision on the ments to be inspected 1and thus the region where inspection would take 62 place, and where the conditions of

59 — See point 34 et seq. of the Opinion of Advocate General Gulmann in Case C-385/89 Greece v Commission, cited in footnote 58. 60 — See Joined Cases C-161/90 and C-162/90 Petruzzi and 61 — It stands to reason that the establishments which they Longo [1991] ECR I-4845, paragraphs 17 and 18, which selected arc among the average, if not the best. concerned the examination by sampling of certain charac­ 62 — As stated by the Commission at the hearing, in reply to a teristics of olive oil. question from the Court on this point.

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tities. Moreover, inspection at the pro duction stage is the rationale underlying the Community's directives on veteri (b) As the experts point out in their report nary health inspections, and in particular 65 (point 3.3), because of the deficiencies in Directive 91/493. the checks carried out by the competent Japanese regional authorities and the incorrect identification of batches of fish, there is no guarantee that the exported products complied with the require ments of Directive 91/493 and came from an approved establishment.

over. It is also the method used in the Codex Alimentarius mals were adequately identified, it was impossible to deter of the Food and Agriculture Organization of the United mine where they came from or whether they had at any Nations (FAO). time in their life belonged to a herd in which cases of BSE 65 — The Annex to Directive 91/493 lays down conditions appli had been found. In that regard, the United Kingdom stated cable to factory vessels, during and after landing, general at the hearing that only animals infected or suspected of conditions for establishments on land, special conditions being infected by BSE were recorded and it did not chal for handling fishery products on shore, arrangements with lenge the Commission's figure of 11 000 cases of animals regard to health control and monitoring of production con affected by BSE whose herd of origin was not identifiable*. ditions, and rules on the packaging, identification, storage See also paragraph 75 of that order. and transport of the products concerned.

68 — In Germany v Council Council,, cited in footnote 51 51,, paragraph 7878,, the Court recognized that the freedom to pursue a trade or business is one of the general principles of Community law law,, 66 — The importance attached to inspection at the production absolute,, but must be pointing out that that principle is not absolute stage is also clear from Article 11 (2) of Directive 91 11( 91//493 493,, function.. Consequently viewed in relation to its social function Consequently,, the under which fishery products imported from third coun­ freedom to pursue a trade or profession may be made sub­ conditions.. Those condi­ tries must fulfil specific import conditions restrictions,, particularly in the context of a common ject to restrictions fixed,, inter alia tions are fixed alia,, after inspection on the spot of the organization of the market market,, provided that those restrictions production,, storage and dispatch of the fish- conditions of production in fact correspond to objectives of general interest pursued cry products for consignment to the CommunityCommunity.. by the Community and do not constitute constitute,, with regard to 67 — As the Finnish Government rightly points out in its obser­ pursued,, a disproportionate and intolerable inter­ the aim pursued vations,, this power of the Commission is very important vations important,, ference impairing the very substance of the rights guaran­ Community,, particularly for the small countries of the Community teed;; see also Schräder teed Schräder,, cited in footnote 5050,, paragraph 15 15;; which do not have the resources needed in order to carry Case 5/88 Wachauf [1989 1989] ] ECR 2609 2609,, paragraph 18 18;; and checks.. out the necessary veterinary checks Case C-177 C-177/ /90 Kühn [19921992]] ECR I-35 I-35,, paragraph 1616..

69 — In its order in Case C-180C-180//96 R, cited in footnote 52 52,, after 100. In my opinion, the plaintiff's argument interests,, the Court dismissed the balancing the conflicting interests is unsubstantiated since Affish has not United Kingdom's application for suspension of the opera­ tion of Commission Decision 96 96//239 239/ /EC of 27 March 1996 shown that the situation as regards condi­ on emergency measures to protect against bovine spongi­ form encephalopathy (OJ 1996 L 78 78,, p. 47 ). To that end it 47). tions of production and marketing is the stated (in paragraphs 91 to 93 93)) that that:: 'It is true that the fore­ same in Korea and Thailand as it is in Japan, going analysis has shown that damage to commercial and social interests is likely to result from maintaining the and that the Commission has therefore export ban in force for the time being and that a part of such damage would not easily be reparable if the main infringed the higher principle of equal treat­ action were to be upheld upheld.. That damage cannot however ment. outweigh the serious harm to public health which is liable to be caused by suspension of the contested decision decision,, and which could not be remedied if the main action were sub­ dismissed'.. It concluded as follows sequently dismissed' follows:: 'Scientists have as yet only an imperfect knowledge of Creutzfeldt- Jakob disease and and,, more particularly particularly,, its recently-discovered Sec,, for example 70 — Sec example,, Case C-311 C-311/ /90 Hierl [ 1992 1992]] ECR I-2061 I-2061,, variant.. ... Since the most likely explanation of this fatal dis­ variant paragraph 18 18;; Scholten-ffonig Scholten-ffonig,, cited in footnote 30 30,, para­ ease is exposure to BSE BSE,, there can be no hesitation hesitation.. Whilst graphs 25 to 27 27;; Case 203 203//86 Spain v Council [19881988]] ECR acknowledging the economic and social difficulties caused 4563,, paragraph 10 4563 10;; Case 84 84//87 Erpelding [1988 1988]] ECR 26472647,, by the Commission's decision in the United Kingdom Kingdom,, the paragraph 2929;; Joined Cases C-267 C-267//88 to C-285 C-285//88 Wuidart Court cannot but recognize the paramount importance to and Others [1990 1990]] ECR I-435 I-435,, paragraph 13 13;; and Case be accorded to the protection of health' (emphasis added added).). C-63 C-63/ /93 Fintan Duff [19961996]] ECR I-569 I-569,, paragraph 2626..

(E) Infringement of the principle of the pro- 103. According to the Rijksdienst, since the tection of legitimate expectations contested Commission decision did not set a transitional period or expressly provide for one to be set prior to its entry into force, the Netherlands Government was not entitled to 71 lay down any such period. 101. Affish maintains that Article 19 of Directive 90/675 left some room for the principle of the protection of legitimate expectations to be taken into account but that the Commission disregarded that prin ciple when it adopted the contested decision (95/119).

73 seeable'. The Court continued: 'It is settled 102. In its observations, the Italian Govern case-law that in the sphere of the common ment argues in favour of the validity of the organizations of the markets, whose purpose contested Commission decision and recog involves constant adjustments to meet nizes that in this case the Member States do changes in the economic situation, economic not have the same wide margin of discretion agents cannot legitimately expect that they as they have in implementing the measures will not be subject to restrictions arising out necessary to comply with a Community of future rules of market or structural directive, but points out that Decision policy'. The Court also pointed out that 'the 95/119, and in particular Article 3 thereof, principle of the protection of legitimate does not expressly set a time-limit within expectations may be invoked as against which Member States must comply there Community rules only to the extent that the with.

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situation which can give rise to a legitimate uniform application of Community law and 74 75 expectation'. the effectiveness of the measure adopted. If a Member State had fixed a transitional period for consignments already shipped, it would, in my view, have infringed Article 189 of the Treaty, pursuant to which a decision is binding in its entirety upon all those 76 105. In view of the Court's consistent case- to whom it is addressed. law, I consider Affish's allegation that the Commission has infringed the principle of the protection of legitimate expectations to be unfounded. The provision on the basis of which Decision 95/119 was adopted imposes an obligation to achieve a certain result, 108. On all those grounds, the absence of namely the protection of public health. From transitional measures cannot affect the valid­ the time when the Commission found itself ity of Commission Decision 95/119. obliged, on account of the serious deficien­ cies identified by the mission of experts in the veterinary checks carried out, to declare the prohibition imposed by it immediately enforceable in order to protect public health, the Member States were obliged to comply (F) Breach of the Agreement on the applica- with it. tion of sanitary and phytosanitary measures

106. It is precisely because the objective pur­ sued by the decision was the protection of 109. This argument put forward by Affish public health that it would, in my opinion, concerns the interpretation and direct effect have been injudicious to leave the timing of the Agreement on the application of sani­ 77 open in order to accommodate the legitimate tary and phytosanitary measures. Affish expectations of the individuals affected. Con­ claims that, by its decision, the Commission sequently, it was of little relevance whether a has breached the Agreement, the provisions few consignments were shipped from Japan of which, according to Affish, may be relied before or after 7 April 1995. on by undertakings and private individuals

(1) Admissibility

(2) The direct effect of the provisions of the Agreement

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more detailed implementing measures. In my order to contest before a court the lawful­ opinion, this question must be examined in ness of a Community act, having regard to the context of the set of agreements reached the primacy of international agreements con­ in the Uruguay Round multilateral negotia­ cluded by the Community over provisions 80 84 tions (1986-1994). of secondary Community legislation. An analysis of the Agreement in the light of both its object and purpose and of its provi­ sions as a whole may help us to answer the question whether or not it has direct effect.

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settlement of conflicts between the contract­ Community act expressly refers to specific 86 89 ing parties'. The Court analyzed in turn provisions of GATT'. the features of the former GATT and found that 'the GATT rules are not unconditional and that an obligation to recognize them as rules of international law which are directly applicable in the domestic legal systems of the contracting parties cannot be based on the spirit, general scheme or terms of 7 GATT', 8 118. I shall examine whether the provisions in question, both of the Agreement Estab­ lishing the World Trade Organization and of 90 the new General Agreement, are capable of producing direct effect in accordance with the criteria set out by the Court and, more particularly, whether individuals can be regarded as entitled to rely directly on the provisions of the Agreement.

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as to the provisions on the settlement of dis­ 120. The Agreement is aimed at the applica­ putes between the contracting parties. tion of sanitary and phytosanitary measures and its provisions must undoubtedly be interpreted in the light of all the rules result­ ing from GATT 1994. More particularly, with regard to Articles 2 and 5, I am of the opinion that they are not so clearly and spe­ cifically worded that the individual may rely 93 on them before the national courts. As is

However, the spirit of negotiations, which characterized the old GATT, is not altogether absent from the new GATT. Thus, the possibility of compensation or the suspension of concessions or other obligations continues to be available to Members (Article 22(1) of the Understanding) for the settlement or prevention of disputes. Furthermore, the quasi-judicial character of the DSB is diminished by the fact that Article IX of the WTO Agree- ment, headed 'Decision-Making', provides, notwithstanding the practice of decision-making by consensus introduced by GATT 1947 (paragraph 1), that the Ministerial Conference and the General Council composed of representatives of all the Members, that is, political (intergovernmental) bodies, 93 — In Case 87/75 Bresciani [1976] ECR 129, paragraph 25, the are to have exclusive authority to adopt interpretations of Court held that Article 2(1) of the Convention of Associa- the Agreement and of the Multilateral Trade Agreements tion between the European Economic Community and the

. . contains a clear p. 184) rather limits the scope which a Member has for and precise obligation which is not subject, in its imple- adopting safeguard measures in order to prevent very large mentation or effects, to the adoption of any subsequent volumes of imports or the risk of serious injury to its measures. In those circumstances, Article 53(1) must be domestic industry from like or indirectly competitive prod- considered as directly applicable . . .'. Accordingly, the Court ucts (Article 2), but allows the adoption of such measures concluded (paragraph 28), an importer of spirits from other (while offering adequate compensation for the adverse Member States or from Greece was entitled to rely before a effects of the measure on the trade of the Members con- national court on, inter alia, Article 53(1) of the Association cerned), in particular, reduction of the obligations resulting Agreement with Greece. from GATT 1994 (Article 8; see also Article 5). More spe- Case C-18/90 Kziber [1991] ECR I-199 concerned the cifically, there is provision for suspending the application of question of the extent to which the Cooperation Agreement concessions or other obligations of a similar nature result- between the European Economic Community and the ing from GATT 1994 to the trade of the Member applying Kingdom of Morocco, signed in Rabat on 27 April 1976

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clear from the terms of the Agreement, most 121. The need for more detailed implement­ of the provisions of the contested articles (2 ing measures becomes apparent on examina­ and 5) are addressed to the Members of the tion of a series of provisions of the Agree­ 9 World Trade Organization 4 andalthough ment. For example, Article 2(2) of the they contain obligations to act or to refrain Agreement provides that a sanitary or phy- 95 from acting, they also require supplemen­ tosanitary measure may not be maintained tary implementing measures, that is, more without 'sufficient scientific evidence'. It is detailed implementing provisions to be for the competent authorities to determine 96 adopted, as the Court has pointed out in what constitutes 'sufficient' scientific evi­ 98 similar cases in which it has reviewed the dence. 97 direct effect of international agreements.

Further, account': in my opinion, the verb form here must be con strued as having mandatory force. the adoption of more detailed implementing 96 — In Case C-277/94 Taflan-Met [1996] ECR 1-4085, the Court did not deny that Decision No 3/80 of the Associa tion Council of 19 September 1980 on the application of the social security schemes of the Member States of the Euro pean Communities to Turkish workers and members of conclusion, reached by the Commission, can again be found their families (OJ 1983 C 110, p. 60) is binding on the Con in Council Regulation (EEC) No 2641/84 of 17 September tracting Parties, but answered the question referred for a 1984 on the strengthening of the common commercial preliminary ruling as follows: 'So long as the supplemen policy with regard in particular to protection against illicit tary measures essential for implementing Decision No 3/80 commercial practices (OJ 1984 L 252, p. 1), which was at have not been adopted by the Council, Articles 12 and 13 issue in that case: that regulation confers on the operators of that decision do not have direct effect in the territory of concerned the right to rely, in their complaint lodged with the Member States and are therefore not such as to entitle the Commission, on the provisions of GATT in order to individuals to rely on them before the national courts'. See have it established whether the practices by which they also the earlier judgments in Kziber, cited in footnote 93, claim to have been injured arc unlawful. paragraph 15, and Case 12/86 Demirel [1987] ECR 3719, In Case C-69/89 Nakajima v Council, cited in footnote 89, paragraph 14. which concerned the applicability of Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against 97 — It can be inferred from the Court's case-law that, until the dumped or subsidized imports from countries not members Community has adopted the necessary implementing mea of the European Economic Community (OJ 1988 L 209, sures for the purpose of fulfilling its obligations under p. 1), the Court ruled that the possibility of questioning the GATT, it cannot be compelled to do so by judicial means

For example, in Case 70/87 Fediol, cited Community (see paragraphs 28 to 31). in footnote 89, the Court held (paragraph 20) that the flex The Court also followed that approach in Germany v ibility which is a feature of the provisions of GATT 'does Council, cited in footnote 51, paragraph 111). not, however, prevent the Court from interpreting and 98 — The Commission observes that there is disagreement applying the rules of GATT with reference to a given case, between the Community and its commercial partners on in order to establish whether certain specific commercial the question whether there is 'sufficient' scientific evidence practices should be considered incompatible with those in order to prohibit the use of hormones in cattle-breeding,

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measures is therefore necessary. The same delay application for two years (Article 14). problem arises with regard to Article 5(4) At the same time, there is provision for spe­ which provides that, when determining their cial and differential treatment for those appropriate level of sanitary or phytosani- countries' products (Article 10). tary protection, 'Members should ... take into account the objective of minimizing negative trade effects'.

99 — This is clear from Article XXIV: 12 as interpreted by the Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade 1994 124. Any assumption that all the provisions (OJ 1994 L 336, p. 16), which reads as follows: of the Agreement are unconditional is 'Each Member is fully responsible under GATT 1994 for the observance of all provisions of GATT 1994, and shall refuted by the fact that the least-developed take such reasonable measures as may be available to it to ensure such observance by regional and local governments countries may delay application of its provi­ and authorities within its territory.' sions for a period of five years following the 100 — OJ 1994 L 336, p. 22. date of entry into force of the WTO Agree­ 101 — Article 14 reads as follows: 'Members agree to give effect to the Agreement on the ment, while other developing countries may application of sanitary and phytosanitary measures'.

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menting measures to be necessary for the with the conclusion of GATT 1994 and the entry into force of the Agreement. WTO Agreement, as the Commission has 105 also pointed out.

analysis. In the absence of a corresponding provision in the text of Decision 94/800, that recital cannot by itself preclude the direct effect of the provisions of the Agreement. 129. Although I have concluded that the That is why an analysis of the wording, provisions of the Agreement do not have scheme and spirit of the Agreement and, in direct effect and that individuals may not general, of the agreements reached in the Uruguay Round multilateral negotiations, was necessary. The existence of that 103 105 — Moreover, in explaining the inclusion of this recital in the recital merely reflects the fact that the preamble to Decision 94/800, the Commission states that weighty reasons which led the Court to hold other contracting parties (the United States and Canada) were of the opinion that GATT 1994 does not have direct that no direct effect could be conferred on effect. In its view, that is also why, in the absence of reci 104 procity, GATT cannot have direct effect in the Commu GATT 1947 have not ceased to apply nity. I consider that argument to be irrelevant for the pur pose of answering the question whether or not the Agreement has direct effect, because the Commission does nor substantiate its assertion and because, as the Court has stated: 'According to the general rules of international law there must be bona fide performance of every agreement. 102 — Under the fourth recital in the preamble to the Agreement Although each contracting party is responsible for execut on Agriculture, cited in footnote 100, the Members are ing fully the commitments which it has undertaken, it is

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rely on them before the national courts, nev­ results in arbitrary or unjustified discrimi­ ertheless, should the Court rule otherwise, nation between Members where identical or and having regard to the Court's settled similar conditions prevail, as well as between case-law under which the primacy of inter­ their own territory and that of other Mem­ national agreements concluded by the Com­ bers, and has been applied in such a way as munity over secondary Community legisla­ to constitute a disguised restriction on inter­ tion means that such legislation 'must, so far national trade. as is possible, be interpreted in a manner that 106 is consistent with those agreements', I shall for the sake of completeness examine to what extent the Commission decision is con­ trary to Articles 2 and 5 of the Agreement.

131. Second, according to Affish, the Com­ mission acted in breach of Article 2(3) of the Agreement since the measure adopted by it 134. The sixth recital in the preamble to the Agreement refers to the guidelines and recommendations developed by the Codex 106 — See Commission v Germany, cited in footnote 84, para­ graph 52. In Case C-70/94 Werner [1995] ECR I-3189, Alimentarius Commission as the basis for paragraph 23, and Case C-83/94 Leifer [1995] ECR any sanitary and phytosanitary measures 1-3231, paragraphs 23 and 24, the Court interpreted Coun­ cil Regulation (EEC) No 2603/69 of 20 December 1969 adopted by Members. That is also stipulated establishing common rules for exports (OJ, English Special Edition (II), p. 590) in the light of the provisions of Article by Article 3(1) of the Agreement. As the XI of GATT 'which can be considered to be relevant for Commission contends, its action is based on the purposes of interpreting a Community instrument governing international trade'. and is in conformity with internationally

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accepted principles and procedures which are accordance with Article 2(1) of the Agree­ not inconsistent with the Agreement. ment, to adopt the contested decision.

139. To recapitulate, let me reiterate that, under the Community legislation in force, the Commission is required to act on the 137. Since the mission of experts drew atten­ basis of uniform rules with regard to the tion in its report (point 3) to the inadequacy determination of the health conditions which of the checks carried out by the Japanese fishery products, whether or not of Commu­ authorities at the establishments visited and nity origin, must satisfy; that seems to me to to the serious public health risks resulting be shown by the principle of equivalence from the conditions of production and pack­ contained in Article 10 of Directive 91/493. aging of the products concerned, in my view Since, moreover, the Commission took as the the Commission was lawfully entitled, in basis for its decision reliable information supplied by experts, I am of the opinion that Affish's allegation that the Commission drew an 'arbitrary and unjustified distinction 107 — The Commission states that the Codex Alimentarius Commission publishes internationally recommended between Members where identical or similar codes of practice, in particular in the field of fishery prod- ucts. The two most important principles in that commis- conditions prevail' and that the measure sion's recommendations are the identification of possible adopted by it constitutes a 'disguised restric­ public health risks arising at the production stage, and the control of critical points in the production process. tion on international trade' within the mean-

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140. The national court and Affish raise the question whether the Commission used its powers under Article 19 of Directive 90/675 as a means of bringing pressure to bear on 143. Moreover, the facts, as set out in the third countries in order to induce the health experts' report and in the first recital in the authorities in those countries to tighten up preamble to the decision, viewed as a whole, their supervision. In other words, were those show that there were serious grounds for powers used, not for the protection of the adopting measures for the protection of pub­ health of the consumer, but as an instrument lic health, since serious defects as regards of commercial policy, in order to bring about hygiene and control had been identified at the adoption in Japan of a harmonized sys­ the fish-processing establishments visited. tem of controls for fish-processing establish­ That is why, in adopting its decision, the ments, equivalent to the system which exists Commission had regard above all to protect­ in the Community? ing public health, as it is obliged to do pur­ 11 suant to Directive 90/675. 0

(2) Abuse of process 'abuse of process' constitutes a special sub­ category within the wider concept of 'misuse of powers'. 1It implies that, by circum­ venting the relevant provisions laying down the procedure to be followed in taking a 145. Affish maintains that, in sending a mis­ decision, the institution in question has sion of experts to Japan, the Commission adopted the measure by following another followed the procedure under Article 11 of procedure, prescribed for a different pur­ Directive 91/943 with a view to adopting the 112 pose. contested act. However, according to Affish, the procedure in question is intended to allow specific import conditions to be fixed and should not have been used as the basis for an import prohibition under Article 19 of Directive 90/675. Hence the question arises whether there has been an abuse of process on grounds which could lead the Court to 147. Affish's argument cannot be accepted. declare Decision 95/119 void. Within the scope of its powers under Article 19 of Directive 90/675, the Commission may assess whether a serious animal health or public health reason requires it to act, and to that end it was entitled to take into account 146. As a ground for annulment of a meas­ the disturbing conclusions of the experts sent ure adopted by a Community institution, out by it.

VI — Conclusion

148. In view of the foregoing considerations , I propose that the Court should answer the question referred to it by the College van Beroep voor het Bedrijfsleven for a preliminary ruling as follows:

Consideration of the question raised has disclosed no factor of such a kind as to affect the validity of Commission Decision 95 / 119 / EC of 7 April 1995 concerning certain protective measures with regard to fishery products originating in Japan .