C-477/98

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OPINION OF ADVOCATE GENERAL ALBER delivered on 13 April 2000 *

I — Introduction heads contain so-called specified risk mate- rial (skull, brain, eyes, etc.) the import of which has been prohibited by the United Kingdom in order to combat BSE. Con- sequently, the consignment, which was accompanied by a veterinary health certific- 1. The reference for a preliminary ruling in ate issued pursuant to Council Directive the present case is concerned, in essence, 64/433/EEC (see point 5 et seq. in part- with the question whether a Member State IIA)(1) below), was seized and destroyed. may take precautionary measures for the protection of health where corresponding Community rules have already been enacted but have not yet entered into force.

4. According to the Commission's decision, which has not yet entered into force (see point 12 et seq. in part 11(A)(3) below), specified risk material must be destroyed upon removal at the point of production. 2. This involves the question whether a The national court further wishes to know national measure of that kind — in this whether the point of production is the place case, a measure prohibiting imports of at which the animals are slaughtered. animal products in the context of the eradication of bovine spongiform encepha- lopathy (BSE) — is permissible under Arti- cle 9(1) of Directive 89/662/EEC (see point 11 in part II(A)(2) below) or, if not, under Article 36 of the Treaty. II — Legal framework

3. The applicant in the main proceedings, a Northern Ireland company, imports whole (A) Community law bovine heads from Ireland, from which it removes the cheek meat. However, those

(d) have been inspected post mortem by an official veterinarian ...; 6. In particular, Article 3 of the fresh meat directive provides as follows:

1 — Council Directive 64/433/EEC of 26 June 1964 on health problems affecting intra-Community trade in fresh meat (e) bear a health mark ...; (OJ, English Special Edition 1963-1964, p. 185), in the version contained in Council Directive 91/497/EEC of 29 July 1991 amending and consolidating Directive 64/433/EEC on health problems affecting intra-Community trade in fresh meat to extend it to the production and marketing of fresh meat (OJ 1991 L 268, p. 69), as last amended by Council Directive 95/23/EC or 22 June 1995 amending Directive 64/433/EEC on conditions for the production and marketing of fresh meat (OJ 1995 L 243, p. 7). (f) to (h)...

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B. cuts or pieces smaller than those refer- directive. Thus, the eighth recital reads as red to in section A, or boned meat: follows:

(a) are boned or cut in a cutting '... in the context of trade between the plant ... [which is] approved and Member States, the rules laid down in supervised ...; Council Directive 89/662/EEC... should also be applied'.

'Whereas, however, with regard to certain epizootic diseases, different health situ- ations still prevail in the Member States and whereas, pending a Community approach on the methods to combat these The Member State of origin shall immedi- diseases, the question of checking intra- ately implement the control or precaution- Community trade in livestock should for ary measures provided for in Community the time being be left to one side and a rules, in particular the determination of the documentary check should be permitted buffer zones provided for in those rules, or during transport; whereas, in view of the adopt any other measure which it deems current state of harmonisation and pending appropriate. Community rules, goods that are not the subject of harmonised rules should comply with the requirements of the State of destination provided that the latter are in conformity with Article 36 of the Treaty;'. The Member State of destination or transit which, in the course of a check referred to in Article 5, 4has established the existence of one of the diseases or causes referred to in the first subparagraph may, if necessary, take the precautionary measures provided 11. However, Article 9 — contained in for in Community rules. Chapter III headed 'Common provi- sions' — provides as follows with regard to outbreaks of diseases which may con- stitute a serious hazard to animals or to human health: Pending the measures to be taken in accordance with paragraph 4, the Member State of destination may, on serious public or animal-health grounds, take interim protective measures with regard to the establishments concerned 5or, in the case of an epizootic disease, with regard to the 'Article 9 3 — Council Directive 82/894/EEC of 21 December 1982 on the notification of animal diseases within the Community (OJ 1982 L 378, p. 58). 4 — This concerns checks in the country of destination. 1. Each Member State shall immediately 5 — According to Article 2(3) of the directive, 'establishment' means any undertaking which produces, stores or processes notify the other Member States and the animal products.

5. ...'.

(a) destroyed by incineration; 6 — Emphasis added, on account of the relevance of the wording in question to the present case. 7 — This concerns the procedure to be followed by the Standing Veterinary Committee. 8 — OJ 1997 L 216, p. 95.

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or, to review new scientific advice. In addition, the Standing Veterinary Committee had not given a positive vote on the initial proposal regarding the measures to be taken.

(b) provided that the colour of the dye is detectable after processing, processed and subsequently incinerated, buried, burned as fuel or otherwise disposed of by a similar method which precludes the risk of transmission of a TSE'. 9 17. It should additionally be noted that, for the same reasons, and as a result of a lengthy disagreement about the causes and transmissibility of BSE, the Commission's proposal 'for a regulation of the Parliament 14. The 19th recital in the preamble to the and the Council laying down rules for the Commission Decision states that steps must prevention and control of certain trans- be taken to ensure that the tissues in missible spongiform encephalopathies', 11 question, that is to say, the SRM, 'are presented by it on 7 January 1999, has removed and stained at the point of pro- likewise not yet been adopted. duction, and subsequently destroyed by incineration'.

21. The applicant, Eurostock Meat Mar- 'A person shall not import into Northern keting Ltd, carries on business at Newry, Ireland from any place outside the United County Down, Northern Ireland. Accord- Kingdom, the Channel Islands and the Isle ing to the information supplied by the of Man — national court, it is 'engaged in the meat- trade and in particular the removal from bovine heads of cheek meat and the pre- paration of the cheek meat for human consumption'. That activity consists, inter alia, in the deboning — in Northern Ire- land — of bovine heads imported from (a) any class I specified risk material...; Ireland and the export of the meat thus extracted to other parts of the United Kingdom and, since 1987, to France. After extracting the cheek meat from the bovine head, the applicant treats the remainder of the skull as if it were classified as specified risk material (SRM). (b) ....'

24. Consequently, that court has referred the following questions to the Court of (b) is the point of production for those Justice for a preliminary ruling: purposes the place at which the animals are slaughtered?

(1) May a Member State take interim (4) If the answer to Question 1 is no, may protective measures in accordance with a Member State none the less justify Article 9(1) of Council Directive under Article 36 of the Treaty on the 89/662/EEC when the Commission grounds of the protection of human has adopted Decision 97/534/EC pur- health measures including a prohibi- suant to Article 9(4) of that Directive tion on the importation from another but postponed the coming into effect of Member State of: that Decision?

(a) specified risk material within the meaning of the said Decision; or (2) If the answer to Question 1 is yes, before the Member State may take such interim protective measures what, if any, degree of certainty, probability or possibility is required that the Com- mission will put into effect the said (b) bovine heads containing such spe- Decision? cified risk material?

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26. The applicant maintained in the pro- ceedings before the national court that the prohibition on imports imposed by the 1997 Order constitutes a measure having 27. The Member States participating in the equivalent effect to a quantitative restric- proceedings 13 and the Commission refer tion on the free movement of goods, and first of all to the substantial risks linked to that it therefore infringes Article 30 of the BSE. They base their approach on the EC Treaty (now Article 28 EC) and is argument that, so long as no Community neither justified nor permissible under measure has yet entered into force, Art- Community law. With regard to the first icle 9 of Directive 89/662 allows the Mem- question, the applicant states that the ber States to adopt protective measures imported bovine heads had been subjected where there exist serious public or animal to veterinary control in the Member State health grounds for so doing. of origin and were accompanied by a health certificate in conformity with the fresh meat directive. The principles laid down in Article 9 of Directive 89/662 are applic- able only if a Member State has given notice that there has been an outbreak of diseases or other causes likely to constitute a serious hazard to animals or to human 28. The participants in these proceedings health. For that reason, the fourth sub- consider that the second question does not paragraph of Article 9(1) is applicable only in urgent cases in which protective mea- sures are justified on serious public or 13 — Apart from the German Government, which restricts its animal health grounds. Such measures observations to the response to be given to the third question.

29. As regards the third question, concern- ing the place at which the SRM is to be removed, the applicant and the German Government consider that this should be done at the cutting plant. Since — accord- ing to the applicant — the Commission V — Analysis Decision does not prohibit the transporta- tion of bovine heads, the most effective and appropriate place at which to check the products derived therefrom is the cutting plant. The German Government cites the fresh meat directive, according to which the recovery of head muscle is permissible only in the cutting plant. The Netherlands (a) The first question Government and the United Kingdom Government maintain that the meat is to be removed immediately after the animal is slaughtered, since that is the surest way of preventing cross-contamination. 31. By its first question, the national court seeks to know whether a Member State may take interim protective measures pur- suant to Article 9(1) of Directive 89/662/EEC where the Commission has adopted a decision under Article 9(4) of 30. As regards the fourth question, the that directive but has postponed the entry applicant is alone in asserting that a into effect of that decision.

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35. Where measures have been adopted by the Commission but are not yet in force, 33. According to Article 129 of the EC this can affect only the content of the Treaty (now, after amendment, Article 152 precautionary measures taken by the Mem- EC), a 'high level of human health protec- ber State concerned. Since the latter meas- tion' must be ensured in all Community ures may not conflict with the measures to measures. Consequently, where such meas- be taken by the Commission, it may be ures on the part of the Commission are still necessary, following publication of the pending, it must be open to the Member prospective proposals of the Commission, States to ensure that high level of health and depending on the circumstances, for protection by taking their own precaution- the Member State to bring its measures into ary measures. line with those to be taken by the Commis- sion. However, this does not alter the fact that Member States are empowered to adopt their own measures.

34. Moreover, it is apparent from the scheme of Article 9 — and also from its 36. The 1997 Order contains a general spirit and purpose — that it is best to prohibition on the importation of specified

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Directive 89/662 where the Commission 42. Since the adoption of a Community act- has adopted a decision pursuant to Art- represents the culmination of a comprehen- icle 9(4) of that directive but has postponed sive political debate in which all the its entry into force. Member States take part, no single Mem- ber State can be expected to be able to foresee the result of that debate and to coordinate its own measure with that result. The only obligation on such a Member State is to comply, when adopting measures, with the applicable primary and secondary legislation.

(b) The second question

40. The second question referred concerns 43. It should be noted, however, that the the extent to which, in order for a Member exercise of that power by a Member State State to be entitled to take interim protect- may not have the effect that the adoption ive measures pursuant to the fourth sub- by it of unilateral measures ultimately paragraph of Article 9(1) of Directive jeopardises the attainment of the objective 89/662, it must be certain, probable or aimed at by the Community measure. possible that the Commission will bring its Particularly in such a sensitive area as decision into force. zoonoses, and especially BSE, the legisla- tion of individual Member States must not be liable to jeopardise, let alone frustrate, the aim of the Community legislature.

41. As is apparent from the remarks made above in relation to the first question, the fact that the decision adopted by the Commission has not yet taken effect — that is to say, that it has not yet entered into force — is enough to entitle a Member (c) The third question State to take action pursuant to the fourth subparagraph of Article 9(1) of Directive 89/662. In that connection, the Member States' power unilaterally to adopt protect- ive measures by way of precaution does not depend on the degree of probability that a 44. By its third question, the national court given decision of the Commission will enter seeks to ascertain whether Article 4(1) of into force. The sole decisive factor is that the Commission Decision requires specified the area concerned is not yet covered by a risk material to be removed and stained at Community measure. the point of production and whether the

point of production for those purposes 47. In the present case, the measure means the place at which the animals are adopted by the Member State — namely, slaughtered. the 1997 Order — may correspond so closely to the Commission Decision that the national court is unable to determine the proceedings pending before it without an interpretation of the Community provi- sion. However, no indication to that effect is to be inferred from the order for 45. First of all, it must again be stressed reference. that the Commission Decision has not yet entered into force and does not, therefore, constitute a legal act applicable at the time of the main proceedings. The Court of Justice has repeatedly declined to express a view in response to hypothetical ques- 48. In order to take into account the tions. 14 It has stated as the reason for this possibility that the Court may nevertheless approach that to provide an answer to a decide, having regard to Article 4(1) of the hypothetical question from a national court Commission Decision, that it is necessary is not objectively necessary in order to to answer the question referred to it, the enable a decision to be given in the following should be noted. proceedings before that court. The Court has indicated that it is clearly not compe- tent to express a view on questions which cannot objectively make any contribution to the resolution of the dispute in the proceedings before the national court. 49. Article 4(1) of the Commission Deci- sion is to be understood as providing merely that SRM is to be stained with a dye on 'removal' and either destroyed by incineration or processed and subsequently incinerated, buried, burned as fuel or otherwise disposed of by a similar method 46. However, it has also consistently ruled which precludes the risk of transmission of that· it is solely for the court making the a TSE. reference to determine and establish, in the context of Article 177 of the EC Treaty (now Article 234 EC), the need for a preliminary ruling on the question or questions referred by it in order to enable it to deliver judgment. 15 50. It cannot, however, be inferred from that decision that transportation of bovine heads from slaughterhouses to cutting 14 — See, for example, paragraph 18 of the recent judgment of 18 November 1999 in Case C-275/98 Unitron Scandinavia plants — subject to compliance with the A/S, [1999] ECR I-8291, and the decisions referred to therein. requisite safety measures — is either pre- 15 — See, for example, paragraph 13 of the recent judgment of cluded or necessary. The 19th recital in the 13 January 2000 in Case C-254/98 Scbutzverband gegen unlauteren Wettbewerb v TK-Hetmdienst Sass, [2000] preamble to the decision states that there ECR 1-151, and the decisions referred to therein. are no effective controls or tests which can

51. However, for the purposes of interpret- ing the provision, reference should also be made to the fresh meat directive. The question can in any event by answered solely by reference to that directive. Art- icle 3(1)(A) thereof provides that only car- (d) The fourth question cases, half carcases and quarters may be transferred from a slaughterhouse. Subse- quently, and especially for reasons of hygiene, any further cutting of the meat may be carried out only in the cutting 54. An answer to this question is requested plant, and not in the slaughterhouse. Con- in the event that the answer to the first sequently, the only SRM which may be question is in the negative. The national removed in a slaughterhouse is that which court seeks, in that eventuality, to know is accessible without any further cutting of whether a Member State may justify under the meat, subject to the further condition Article 36 of the EC Treaty, on the grounds that the slaughterhouse in question must of the protection of human health, meas- meet the same hygienic and technical ures including a prohibition on the impor- criteria as a cutting plant. tation of SRM or bovine heads containing such SRM.

52. On the other hand, no rules are laid 55. As is apparent from the answer to be down specifying the cutting plant in which given to the first question, it was possible in

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principle to adopt the 1997 Order at issue 58. Directive 89/662 does not lay down on the basis of the fourth subparagraph of any limitation as to imports of bovine meat Article 9(1) of Directive 89/662. However, or bovine meat products. In essence, it the power to adopt such a measure must regulates the allocation of powers of veter- also satisfy other provisions of Community inary control in intra-Community trade law which are applicable and must fulfil the and provides, in the fourth subparagraph criteria laid down in Article 36 of the EC of Article 9(1), that Member States are to Treaty. be permitted to take precautionary mea- sures by way of protection where a Com- munity measure is still pending.

57. Before considering whether it may be justified on grounds of the protection of human health under Article 36 of the Treaty, it is first necessary to establish whether any Community harmonisation 60. The regulation proposed by the Com- provisions apply in this area. While Art- mission, laying down rules for the preven- icle 36 allows the maintenance of restric- tion and control of certain transmissible tions on the free movement of goods on spongiform encephalopathies (see point 17 grounds of the protection of the health and above), may constitute such a harmonisa- life of humans, which constitutes a funda- tion measure; however, it has not yet been mental requirement recognised by Commun- adopted. ity law, recourse to Article 36 is no longer possible where Community directives pro- vide for harmonisation of the measures necessary to attain the specific objective which would be furthered by reliance on that provision. 16 61. Consequently, until the Commission 16 — Case C-350/97 Momees v Unabhängiger Verwaltungsse- Decision enters into force, a Member State nat für Kärnten [1999] ECR I-2921, paragraph 24, and is entitled to rely on Article 36 of the EC Case C-5/94 The Queen v MAFF ex parte Healey Lomas [1996] ECR I-2553, paragraph 18. Treaty in order to adopt legislation impos-

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ing, on grounds of the protection of the proportionality of the measure, it must be health and life of humans, restrictions on observed that, in view of the significant risk the free movement of goods. and the urgent need to take action, no less drastic measure was clearly available which could have guaranteed an adequate level of health protection. Reference may also be made in this connection to the matters set- out in point 38 above. 62. It is not disputed that the 1997 Order was adopted in the context of the BSE threat with a view to protecting human and animal health.

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VII— Conclusion

67. In the light of the foregoing, I conclude that the questions referred for a preliminary ruling should be answered as follows:

(1) A Member State may take interim protective measures pursuant to the fourth subparagraph of Article 9(1) of Council Directive 89/662/EEC of 11 Decem- ber 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market where the Commission has adopted a decision pursuant to Article 9(4) of that directive but has postponed its entry into force.

(2) The Member States' power in that connection unilaterally to adopt protective measures by way of precaution does not depend on the degree of probability that a given decision of the Commission will enter into force; the sole decisive factor is that the area concerned is not yet covered by a Community measure.