C-147/96

1. By an action commenced on 3 May third countries drawn up pursuant to 1996 the Kingdom of the Netherlands Article 23(3)(a) of Directive 92/46 and in challenged the decision of the Commission accordance with the procedure laid down of the European Communities, communi- in Article 31 of that directive. That list was cated in its letter of 26 February 1996 to established by Commission Decision 94/70/ the Prime Minister of the Netherlands EC of 31 January 1994 drawing up a Antilles, refusing to include the Nether- provisional list of third countries from lands Antilles in the list of third countries which Member States authorise imports of drawn up pursuant to Article 23 of Council raw milk, heat-treated milk and milk-based Directive 92/46/EEC of 16 June 1992 lay- products. 2 ing down the health rules for the produc- tion and placing on the market or raw milk, heat-treated milk and milk-based pro- ducts 1 (hereinafter 'Directive 92/46' or 'the Directive'). 3. The Netherlands Antilles are a third country within the meaning of Directive 92/46. 3 They do not, however, appear on the list referred to in Article 23 of the Directive and, consequently, dairy products 2. Directive 92/46 lays down the health from that country cannot be exported to rules applicable to dairy products produced the Community. within the Community (see Chapter II of the Directive) and provides that the condi- tions applicable to imports from third countries of the products covered by the Directive must be at least equivalent to those laid down in Chapter II for Commu- 4. Following a series of discussions and nity production (see Chapter III of the exchanges of letters between the Nether- Directive and, in particular, Article 22). In lands, the Netherlands Antilles and the the interests of uniform application of the Commission in 1995 concerning the Neth- conditions laid down with regard to erlands Antilles' request to be included in imports from third countries, in order to the list, the Commission carried out an on- be imported into the Community, milk and the-spot veterinary inspection on milk-based products must satisfy certain 29 November 1995 designed to establish requirements including the condition that whether the Community health rules for they come from a country on the list of

5. The Netherlands Government takes issue with the Commission's exclusion of the Netherlands Antilles from the list which 7. It should also be observed that Decision it drew up pursuant to Article 23(3)(a) of 94/70, which was in force at the time of the Directive 92/46, arguing that the Commis- facts set out in point 4 of this Opinion, and sion based its refusal on irrelevant facts and which was held, in DADI and Douane- infringed a number of laws. 4 Agenten, to be invalid, was revoked and replaced by Commission Decision 95/340/ EC of 27 July 1995 drawing up a provi- sional list of third countries from which Member States authorise imports of milk and milk-based products and revoking 6. Some time after the Netherlands Gov- Decision 94/70/EC. 6Decision 95/340 came ernment commenced the present action, the into force on 2 February 1996, following Court of Justice gave its decision in DADI the series of exchanges between the Nether- and Douane-Agenten, 5a preliminary refer- lands, the Netherlands Antilles and the ence case concerning, inter alia, the validity Commission and the inspection carried out of Decision 94/70. The Court held Decision by the Commission, all of which took place 94/70 to be invalid inasmuch as the list of in 1995. The decision's entry into force third countries drafted by the Commission nevertheless preceded the letter to the had not been drawn up in accordance with Prime Minister at issue in the present action and thus also the action subsequently brought by the Netherlands. In my view, 4 — In particular, the Netherlands Government claims that the Commission gave insufficient reasons for the contested however, the existence of Decision 95/340 decision, failed to comply with the procedure laid down in Article 31 of Directive 92/46, conttavened the principle that does not alter the conclusion reached in the a party has the right to be heard and the principle that preceding paragraph. Indeed, Decision measures must be meticulously prepared, infringed Arti- cle 2(2) of the Agreement on the Application of Sanitary 95/340 in no way differs from Decision and Phytosanitary Measures adopted in the context of the 94/70 in so far as concerns the aspects Uruguay Round of Multilateral Trade Negotiations (1986- 1994) (OJ 1994 L 336, p. 40), conttavened the principle of which led to that decision being ruled proportionality and, lastly, infringed Article 103 of Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community (OJ 1991 L 263, p. 1). 5 — Cited in footnote 3. 6 — OJ 1995 L 200, p. 38.