C-221/97

SCHRODER AND OTHERS v COMMISSION

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER delivered on 16 June 1998 *

1. The appellants contest the judgment of 15 The facts of the case according to the Court April 1997 in Case T-390/94, in which the of First Instance Court of First Instance dismissed their claim for compensation under Article 178 and the second paragraph of Article 215 of the EC Treaty. 1They had claimed that the Court of First Instance should order the Commission to pay them compensation of DEM 173 174.45 for the damage suffered as a result of a series 3. Having regard to the sequence of events, of decisions adopted by the Commission in which led the Commission to adopt a series order to control classical swine fever in the of decisions over a very short time, I consider Federal Republic of Germany in 1993 and that the preferred course is simply to tran­ scribe the section of the judgment of the 1994. Court of First Instance headed 'The cases of classical swine fever which appeared in Ger­ many in 1993-1994 and the measures taken by the Commission'.

p. 47, hereinafter 'Decision 93/364'). Since, When a first case of classical swine fever had according to the preamble, the risk of infec­ been diagnosed in Belgium in pigs imported tion was limited to a geographically limited from Germany, Belgium, by Ministerial area, Article 1 provided that 'Germany shall Decree of 14 October 1993, prohibited the not send to other Member States live pigs importation of pigs from Germany and the coming from those parts of its territory Commission, by Decision 93/539/EEC of 20 described in Annex I' of the decision, namely October 1993 concerning certain protection to certain districts of the Länder Niedersa­ measures relating to classical swine fever in chsen, (West) Mecklenburg-Vorpommern, Germany and repealing Decision 93/364 (OJ Schleswig-Holstein, Nordrhein-Westfalen and 1993 L 262, p. 67, hereinafter 'Decision Rheinland-Pfalz. Whilst noting that Germany 93/539'), extended the prohibitions on the had taken measures and, in particular, estab­ exportation of pigs to the entire territory of lished protection and surveillance zones in Germany. accordance with Directive 80/217, the Com­ mission, however, obliged it, in Article 2 of Decision 93/364, to introduce appropriate measures of an equivalent level to ensure that the disease was not spread from those parts of its territory which were subject to restric­ tions to other parts. Article 3 of Decision 93/364 provided that Germany was not to send to other Member States fresh pigmeat and pigmeat products obtained from pigs coming from holdings situated in parts of its Commission Decision 93/553/EEC of 29 territory described in Annex I. October 1993 amending Decision 93/539 (OJ 7 1993 L 270, p. 4), prolonged until 4 November 1993 the export prohibitions initially appli­ cable until 29 October 1993.

Commission Decision 94/27/EEC of 20 Jan­ uary 1994 concerning certain protection mea­ sures relating to classical swine fever in Ger­ many and repealing Decision 93/566 (OJ 1994 Commission Decision 93/621/EC of 30 L 19, p. 31, hereinafter 'Decision 94/27'), November 1993 amending Decision 93/566 based on Article 10 of Directive 90/425, and replacing Decision 93/539 (OJ 1993 changed the extent of the territories covered L 297, p. 36, hereinafter 'Decision 93/621') by the bans on dispatch. Only certain com­ defined the territory covered by the bans on munes of three districts of the Land Nieder­ dispatch according to communes and no sachsen remained covered by the bans. The longer according to districts. According to commune of Bramsche was amongst the com­ the Commission, all communes whose terri­ munes listed in Annex I to that decision. tory was included in total or in part in a radius of 20 km around the holdings in which cases of classical swine fever had been reported were covered. The commune of Bramsche in which the applicants' holding is located was amongst the communes of the district of Osnabrück listed in the new Annex I to the amended Decision 93/566.

When new cases of classical swine fever were reported in other regions of Niedersachsen, Article 1(1) of Commission Decision 94/178/EC of 23 March 1994 concerning cer­ tain protection measures relating to classical Commission Decision 93/671/EC of 10 swine fever in Germany and repealing Deci­ December 1993 (OJ 1993 L 306, p. 59, here­ sions 94/27/EC and 94/28/EC (OJ 1994 inafter 'Decision 93/671'), as well as Com­ L 83, p . 54, hereinafter 'Decision 94/178') mission Decision 93/720/EC of 30 December extended to the entire territory of the Land 1993 (OJ 1993 L 333, p. 74, hereinafter 'Deci­ Niedersachsen the bans on dispatch not only

6. The first plea in the action for compensa­ The applicants' holding has not been affected tion alleged breach of the principle of non­ by classical swine fever but is located in the discrimination in relation to Belgium and the parts of the territory covered by the bans on Land Nordrhein-Westfalen and discrimina-

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tion arising from the definition of areas 9. The Court of First Instance, after pointing according to administrative boundaries. out that the rights relied on were not absolute but might be subject to restrictions imposed in the general interest, considered the aim pursued by the measures adopted (to control an epizootic disease which was causing fatali­ ties and might affect the whole of the Com­ munity's pig-farming industry) and found it to be of sufficient importance to render the 7. The Court of First Instance analysed the bans on dispatch lawful. differences between the situations in the Land Niedersachsen (where there was a very high level of outbreaks of classical swine fever) and in Belgium and the Land Nordrhein- Pfalz: the differences were such that the situ­ ations were not comparable. As regards the 10. The third plea in the action for compen­ criterion of delimiting areas according to sation alleged breach of the principle of pro­ administrative boundaries, the Court found portionality. In the applicant's view the con­ that this offered the best guarantees of effica­ tested decisions were disproportionate because ciously monitoring and implementing the their holding was not affected by classical measures adopted and that it did not infringe swine fever and, in those circumstances, pre­ the principle of non-discrimination. ventive or emergency vaccination would have been sufficient.

The objection of inadmissibility raised by the Commission

16. The appeal against the judgment at first instance is based on two pleas, which allege breach of the rights of the defence and infringe­ ment of Community law. 14. The Commission alleges in limine that the appeal is inadmissible, since it disregards the nature of that remedy: instead of relying on pleas in law and legal arguments, as pro­ vided for in Article 112 of the Rules of Pro­ cedure of the Court of Justice, the applicants are putting forward questions of fact, are criticising certain aspects of the findings of 17. The appellants allege, first, that the Court fact in the judgment, even going as far as to of First Instance breached the rights of the offer evidence, are raising new questions and, defence by failing to take account of part of finally, are merely reiterating the arguments the submissions they had put forward during at first instance. the proceedings.

15. Although I agree with a large part of those objections, I consider that the appeal should not be declared inadmissible in its entirety, 18. Under this plea the appellants raise a but that each of the arguments put forward number of points against the statements in a should be examined in order to ascertain number of paragraphs of the judgment in whether it is inadmissible or to determine support of their claim that the Court of First whether or not it is to be upheld. It is evident Instance made incorrect findings of fact or on reading the appeal that as well as pleas failed to take account of the content of the which are manifestly inadmissible it contains application and the reply or the arguments others which refer to questions of law sus­ put forward at the hearing.

The appellants claim to have maintained that the delimitation of the areas to those affected by the bans on the basis of admin­ The appellants claim that this statement is istrative boundaries was inappropriate and inaccurate.

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(5) Paragraph 129 of the judgment states: '... 22. What the appellants are really attempting Second, the restrictions applied only to to do by means of this plea is to challenge the geographically limited parts of territory findings of fact made by the Court of First which were particularly at risk. ...' Instance, something which goes beyond what is permissible in the context of an appeal. The first plea does not raise any questions of law that require analysis but is concerned solely with disagreements as to the truth of the facts put forward. The Court of Justice has con­ sistently held that an appeal may be based The appellants maintain that it was impos­ only on grounds relating to the infringement sible for them to sell their pigs to their of rules of law, to the exclusion of any appraisal traditional customers and that the Court 2 of the facts. The first plea is therefore mani­ of First Instance did not consider the festly inadmissible. effects of the measures on their holdings.

Second plea 20. The first plea cannot be upheld. The right to be heard in the course of judicial proceed­ ings does not mean that the court must in its decision deal in full with all the claims of each and every party. The court, after hearing the parties and assessing the evidence, is required to uphold or reject the various heads of claim in the application and to provide rea­ sons for its decision. That is precisely what the Court of First Instance did throughout its lengthy and fully reasoned judgment.

(i) First part of the plea 28. Furthermore, in the case of legislative measures which imply a decision of economic policy, non-contractual liability is incurred only where the Community institution which adopted the act manifestly and gravely disre­ 24. The appellants maintain that since the garded the limits of the discretion conferred contested decisions are not legislative mea­ on it. sures it is wrong in law to judge them according to the criteria which the Court of Justice has laid down in relation to Commu­ nity liability in respect of measures of that type. 29. In its judgment in the Cases of Brasserie 3 du Pêcheur and Factortame the Court of Justice summarised this doctrine on the scope of the non-contractual liability of the Com­ munity in the matter of legislative measures 25. They further claim that if it had applied as follows: the criteria applicable in the case of liability for administrative measures the Court of First Instance would have been bound to hold that the measures adopted by the Commission were unlawful, so that the applicants' right to — 'The system of rules which the Court has compensation, resulting from that non­ worked out with regard to Article 215 of contractual liability, would have been estab­ the Treaty, particularly in relation to lia­ lished. bility for legislative measures, takes into account, inter alia, the complexity of the situations to be regulated, difficulties in the application or interpretation of the 26. As we well know, in interpreting Article texts and, more particularly, the margin of 215 of the Treaty the Court of Justice has discretion available to the author of the stated that the requirements which must be act in question.' satisfied in order for the Community to incur liability are the illegality of the conduct of a Community institution, actual damage and the existence of a relationship of cause and effect between the illegal conduct and that — 'Thus, in developing its case-law on the damage. non-contractual liability of the Commu­ nity, in particular as regards legislative measures involving choices of economic 27. As regards the first requirement, the policy, the Court has had regard to the Court's case-law has drawn a distinction wide discretion available to the institu­ between administrative measures and legisla­ tions in implementing Community poli­ tive measures, Liability is incurred in respect cies.' of the latter type of measure only where there is a particularly clear breach of Community law, more specifically an infringement of a 3 — Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur v superior rule of law for the protection of Germany and The Queen v Secretary of State for Transport, ex parte Factortame and Others [1996] ECR I-1029, para­ individuals. graphs 43 to 45.

30. That case-law, which the Court of Justice itself describes as restrictive and which, in my opinion — which is consistent, in part, with 4 that of other Advocates General — should 32. In theory, a legislative measure is distin­ perhaps be modified somewhat in order to guished by being general, abstract and per­ adapt it to the evolution of the 'general prin­ manent, by being applicable to a succession ciples common to the laws of the Member of different situations and by the fact that the States' on the matter (second paragraph of persons for whom it produces legal effects are not identified individually but defined in gen­ eral terms. An administrative measure, on the 4 — In his Opinion in the Brasserie du Pêcheur and Factortame other hand, merely implements or applies a Cases, cited above, Advocate General Tesauro observes that pre-existing rule and is addressed to one or this case-law has identified '— in particular with regard to the unlawfulness of the conduct imputable to the institutions — conditions which are so restrictive as to make it extremely difficult to obtain damages against a Community institution' (point 63). Elsewhere in his Opinion (footnote 76) he further points out that, according to the case-law in question, it would 5 — See, in that regard, Case 101/76 Koninklijke Schloten Honig seem as if all Community legislative measures involved choices v Council and Commission [1977] ECR 797 (paragraphs 7 and of economic policy. 9).

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more individually identified persons, while its according to objective criteria. For such per­ application in time generally 'exhausts' its sons the decisions are general in scope and effectiveness. produce the same legal effects as any other measure.

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36. Was it absolutely necessary, then, to place 38. The appellants make no comment on this the contested decisions in one or other of the last aspect; and as regards the rejection of the two categories, as though they were water­ four other fundamental grounds of their claim, tight compartments? Therein, in my opinion, which alleged that the Commission had lies the key to the appeal; and the correct infringed superior rules of law, the decision answer, in my view, is that it was not neces­ of the Court of First Instance is applicable sary to do so, since whatever the solution irrespective of whether the measures in ques­ adopted, the outcome in the present case tion were administrative measures or legisla­ would have been the same. It follows that tive measures. this ground of appeal leads nowhere: even accepting, for the sake of argument, that the contested decisions were merely administra­ tive measures, it has not been demonstrated that, in such a hypothesis, the first require­ ment to be satisfied in order for the Commu­ nity to incur non-contractual liability, namely the illegality of the decisions on which the 39. The 'defects' of illegality which the appli­ appellants base their claim, was fulfilled. 7 cants attributed to the contested decisions (by classifying them as administrative measures) were in reality alleged infringements of supe­ rior rules of law for the protection of indi­ viduals. Had any such infringements been found to exist, the result would have been the same irrespective of whether the decisions were classified as administrative measures or as legislative measures. On the other hand, once their claim had been rejected on this point, the nature of the allegedly illegal mea­ sure was irrelevant.

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41. The first part of the second plea is there­ sufficient account of the fundamental subjec­ fore of no avail for the purpose of having the tive right of the individual to observance of judgment set aside: even if, for the sake of and respect for his individual fundamental argument, its underlying premiss were rights'. accepted, upholding this part of the plea would do nothing to establish the illegality of the contested decisions; that illegality, in its turn, formed the basis of their action.

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missible in an appeal directed specifically to judgment which it is sought to have set aside obtain a determination on any errors of law and the legal grounds on which the claim to contained in the contested judgment. that effect is based. This requirement is not met if the appeal simply repeats or literally reproduces the pleas in law and argument for­ mulated before the Court of First Instance, including those based on facts which that court has found not to be established.

(b) The alleged breach of the principles of proportionality and non-discrimination

48. As regards the questions of fact referred to above, I refer to what I said when exam­ 46. This part of the second plea is also inad­ ining the first plea. missible, since the appellants (a) merely reit­ erate the allegations set out in their applica­ tion and their reply before the Court of First Instance and (b) pursue what are pure ques­ tions of fact, such as the comparison between certain areas and other areas among those (iii) Third part of the second plea affected by swine fever, or whether or not it would have been more appropriate to use methods of defining areas according to cer­ tain technical or other criteria.

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the reasoning in the contested judgment in 53. In paragraphs 157 to 161 of its judgment relation to the interpretation of Directive the Court of First Instance analysed the way . 90/425. in which Directive 90/425 allows bans on dis­ patch within a Member State as a corollary to the bans on dispatch to other States. Para­ graph 156 of the judgment, however, cited case-law merely to show that Directive 90/425 51. The only specific criticism which they generally permits the adoption of protective make of the judgment in that regard concerns measures. paragraph 156, where the Court of First Instance observed that '... in its judgment in Case C-52/92 Commission v Portugal [1993] ECR 1-2961 the Court of Justice has already confirmed the legality of a Commission deci­ sion adopted on the basis of Article 10 of 54. The criticism of that paragraph of the Directive 90/425 which prohibited certain judgment is therefore manifestly unfounded. Member States from sending to other Member States production pigs from high-risk munici­ palities'. In the appellants' opinion that case-law cannot be invoked against their argu­ ment, since it does not refer to a ban on dis­ patches within a Member State. 55. It follows, then, that the first plea and the second part of the second plea must be declared inadmissible and the first and third parts of the second plea must be rejected. 52. The criticism would be relevant if the Court of First Instance had been endeav­ ouring in that passage to state the reasons for the part of its judgment relating to the justi­ fication of the restrictions of movements of animals within a particular State. In reality, 56. Under Article 69(2) and Articles 118 and however, the Court did that in paragraphs 122 of the Rules of Procedure, where the 157 to 161 of the judgment, not in paragraph Court of Justice dismisses the appeal it must 156, which relates to another matter. order the unsuccessful party to pay the costs.