C-365/99

3 — OJ 1990 L 224, p. 29. 1 — Original language: French. 4 — OJ 1993 L 62, p. 49. 2 — OJ 1998 L 311, p. 23. J — OJ 1989 L 395, p. 13.

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per million animals over two years of demonstrate effective compliance with the age (second recital) and, in particular, a decision and with the relevant national sharp increase in the incidence of BSE measures to protect against BSE. since June 1998 (third recital);

6. Under Article 14, the Portuguese Repub- — the fact that a mission carried out by lic is required to send the Commission the Food and Veterinary Office of the every four weeks a report on the applica- Commission from 28 September to tion of the protective measures taken 2 October 1998 confirmed the findings against TSEs in accordance with Commu- of previous missions, namely that, nity and national provisions and on the despite an overall improvement, there results of the programmes referred to in were still certain shortcomings in the Article 13. enforcement of the measures to control BSE risk factors (third recital).

7. Article 15 provides in addition that 'the Commission shall carry out Community 4. Article 2 of the decision also prohibits inspections on-the-spot in Portugal...: the export to other Member States or to third countries of live bovine animals and bovine embryos, meat meal, bone meal, and meat-and-bone meal of mammalian origin. (a) [to] verify the application of the provi- sions of this decision, in particular in relation to the implementation of offi- cial controls;

3. This decision shall be amended, where appropriate, after consultation of the appropriate scientific committee, in accor- dance with the procedure laid down in Article 17 of Directive 89/662/EEC.' 13. It should be noted that the action falls to be considered under the default proce- dure.

9. The Portuguese Republic did not bring an action for the annulment of Decision 98/653. 14. As the Commission did not lodge a defence within the time prescribed, the Portuguese Republic applied for judgment by default under Article 38 of the EC Statute of the Court of Justice and Arti- 10. On 28 July 1999, the Commission cle 94 of the Rules of Procedure. adopted Decision 1999/517/EC amending Decision 98/653/EC concerning emergency measures made necessary by the occurrence 6 — OJ 1999 L 197, p. 45.

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15. But, in order for the Court to give such The first plea a judgment, it is necessary, under Arti- cle 94(2) of the Rules of Procedure, for it first to consider whether the application initiating proceedings is admissible, whe- ther the appropriate administrative formal- 19. In the first plea, the Portuguese Gov- ities have been complied with, and whether ernment asserts that in so far as emergency the application appears well founded. measures such as the prohibition laid down in Article 4 of Decision 98/653 involve exceptions to the principle of free move- ment of goods, they can only be adopted if it is demonstrated that they are genuinely necessary. 16. There is therefore no question of allowing the applicant's claims to benefit from a presumption of truth.

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was very noticeably improved in 1999, the Decision 1999/517 is properly supported measures prescribed by the Community by a statement of reasons as to matters of legislation having been diligently imple- fact and law. mented and the recommendations made by the experts duly taken into account.

27. The Portuguese Government's argu- ment is based on a false premiss. It 23. The Portuguese Government does not maintains that, according to the criteria deny that the last mission carried out established by the OIE, Portugal was, in before the adoption of the contested deci- 1998 as well as in 1999, a zone with a low sion, from 14 to 18 June 1999, indicated BSE incidence rate. certain improvements still to be made, but considers that these only concerned points of detail.

28. However, the successive versions of the Animal Health Code of the OIE show clearly that in 1998 it did not yet include 24. Between 1998 and 1999 the situation a definition of low incidence zones nor, for had changed completely so that, if Decision that matter, of high incidence zones, the 98/653 might appear to be justified, there definitions still being under consideration. was no justification at all for the extension Definitions are only provided in the 1999 of the prohibition for six months by version of the Code. Decision 1999/517.

29. For a zone to be classified as having a low incidence rate it is necessary, amongst 25. I do not find that argument persuasive, other conditions, for there to have been for various reasons. Before setting these fewer than 100 cases of BSE per million out, it should first be made clear that there animals over two years of age, calculated is no question of discussing in the context over the past 12 months. For a zone to be of this action the validity of Decision classified as having a high incidence rate it 98/653. is necessary, amongst other conditions, for there to have been more than 100 cases of BSE per million animals over two years of age, calculated over the same period.

32. Either the Commission and the Portu- guese Government did not read the same 36. In fact, the report compiled following reports or, more probably, they do not have the mission of 22 February to 3 March the same conception of what constitutes a 1999, although noting a very marked detail. improvement as regards both the adoption and the enforcement of legislation, states that there is nevertheless progress to be made concerning compliance with the export ban (inadequate and badly orga- nised road checks), withdrawal of specified 33. The sixth recital of the contested deci- risk materials, compliance with the ban on sion states that those missions, together the use of animal meal (no controls at farm with a mission carried out from 19 to level) and controls on movement of animals 23 April, which the Portuguese Govern- (interval between the birth of an animal ment does not mention at all, 'concluded and its marking, problems concerning that serious efforts and considerable pro- knowledge of birth cohorts). gress had been made in the implementation of risk management measures in a short period, despite not all measures being adequately enforced.'

37. In the summary report concerning the mission of the Food and Veterinary Office carried out in Portugal from 19 to 23 April 1999 in order to inspect fresh meat estab- 34. The Portuguese Government is cer- lishments (Council Directive 64/433/EEC tainly justified in considering that, given of 26 June 1964 on health problems affect- the initial situation, the progress recorded ing intra-Community trade in fresh meat;

OJ, English Special Edition 1963-1964, is intended. It must be noted, however, that p. 185) and trade in fresh meat (Directive in the sixth recital of Directive 98/653 it 89/662) it is stated, inter alia, that non- was expressly pointed out that 'the prohi- approved establishments operate illegally, bition on the dispatch of bovine products without the competent authorities, who are can be limited in time, provided 7 that a risk well aware of the fact, having adopted assessment conducted on the basis of the measures to remedy the situation, that there findings of a mission of the Food and are serious shortcomings concerning Veterinary Office, taking into account the hygiene at slaughter and that identification evolution of the disease, demonstrates that of animals does not satisfy the requirements appropriate measures have been taken to of Community legislation. manage any risk, and that the relevant Community and national measures are complied with and effectively enforced'. In the fifth and sixth recitals of the contested decision the Commission noted both that between 1998 and 1999 the number of cases per million animals over 38. These various shortcomings appear so two years of age had risen from 105.6 to serious to the authors of the report that 211, and that the reports of missions they recommend that the Commission carried out did not describe a situation seriously consider bringing proceedings totally under control, as 'those missions against the Portuguese Republic for failure concluded that serious efforts and consid- to comply with numerous provisions of erable progress had been made in the Community legislation. implementation of risk management mea- sures in a short period, despite not all measures being adequately enforced'. It is plain, therefore, that the Commission has been able to show convincing reasons to justify extending the prohibition for an additional six months. 39. The report compiled following the mission carried out from 14 to 18 June 1999 does not mention such serious short- comings, but emphasises the fact that it is not yet possible to positively ascertain whether the measures adopted by the Portuguese authorities in response to the recommendations contained in the preced- ing reports have been adequately imple- 41. Finally, I would observe, although it is mented and have had the expected effects. not relevant to assessment of the legality of the contested decision at the date on which it was adopted, that in Commission Deci- sion 2000/104/EC of 31 January 2000 amending Decision 98/653 concerning emergency measures made necessary by

45. There remains, however, the possibility that in certain cases there may be valid reasons for the Commission to go beyond The second plea the OIE's recommendations and that, given such reasons, it would be fruitless for an applicant to allege breach of the Animal Health Code, which is non-binding within 42. With regard to the second plea put the Community legal order. forward by the Portuguese Government, a comment on a point of principle must be made. In alleging breach of the Animal Health Code of the OIE the Portuguese Government implies that the Commission was required to abide by that Code. However, that has not yet been established. 46. In the present case, however, it is completely unnecessary to raise this issue, as there is no inconsistency between the recommendations of the Animal Health Code and the prohibition imposed by the contested decision. Contrary to what the 43. In my opinion, the provisions which the Portuguese Government maintains Portu- Commission was obliged to observe are gal was, at the time of its adoption, a high those which constitute the legal basis of its incidence zone and the Animal Health decision, that is, Directives 90/425 and Code provides that bovine meat can only 89/662. The Animal Health Code of the be exported from such zones under certain OIE does not lay down provisions which strict conditions, which are laid down in bind the Community institutions. Article 3.2.13.10.

44. Clearly, its provisions can, and even, in my opinion, must, be taken into considera- tion in assessing whether the Community 47. These conditions include an effective ban on feed containing meat-and-bone meal, the existence of a permanent system 8 — OJ 2000 L 29, p. 36. for the identification of cattle enabling

The third plea 50. If further evidence was required, it would be found in Decision 2000/104, the fifth and sixth recitals of which provide: 52. In the third plea, the Portuguese Gov- ernment claims in essence that consultation of the Standing Veterinary Committee prior to adoption of the contested decision was vitiated by irregularities, in so far as it did 'Portugal put forward a first proposal for a not have either the report drawn up date-based scheme to the Commission on following the mission carried out in Portu- 3 December 1999; this scheme must be gal from 14 to 19 June 1999, or the

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periodic reports sent by the Portuguese give its comments within 25 working days authorities to the Commission in accor- of the receipt of the written report from the dance with Article 14 of Decision 98/653. Commission'. That withholding of information vitiated the Committee's favourable opinion of the draft decision proposed by the Commis- sion.

56. To be precise, in the present case the report was sent to the Portuguese Republic, according to its own statement, on 14 July 1999, which was within the time-limit. It 53. The fact that the report of the mission reached the Portuguese Permanent Repre- was not available to the Committee is sentation on 19 July, that is, after the beyond doubt, and it should be noted that meeting of the Standing Veterinary Com- the recitals of the contested decision refer only to the missions of February to March mittee. and April 1999.

57. Starting from 19 July, the Portuguese 54. In my opinion, if the report of the June Government had the period laid down in mission had been available on 16 July, Article 7(1) within which to make its when the Standing Veterinary Committee comments. There was therefore no possibi- met, the Portuguese Republic's plea would lity of giving the Standing Veterinary Com- incontestably be well founded. mittee a definitive report for the day of its meeting.

64. I can therefore only conclude that the Portuguese Government's third plea is 61. As the Portuguese Government impli- unfounded. citly acknowledges, when it points out that the mission between February and March, carried out three months after the adoption of Decision 98/653, took place too early for improvements to have been found, there would have been no point in sending a mission to Portugal in May 1999, as there was very little probability of its having been able to remedy, at that time, the short- The fourth plea comings found between February and March and in April. Postponing the meet- ing of the Standing Veterinary Committee would not have made sense either because, 65. For the fourth plea it is possible to be given the time-limits set by Article 7(1), relatively brief, in so far as consideration of one could not count on a definitive report the first two pleas has shown that the being available at the end of July, and the contested decision taken by the Commis- Commission had to adopt a decision by sion was appropriate to the practical situa- 31 July at the latest as the prohibition in tion in Portugal as regards BSE. Article 4 of Decision 98/653 expired on 1 August 1999.

66. The Portuguese Government claims that Portugal is not a significant exporter 62. As for the monthly reports sent by of bovine meat and that, for this reason, its Portugal, they are unilateral documents exports are easy to check. I do not find this which are certainly very useful to the argument in the least convincing. Commission, in so far as they enable it to plan missions precisely and to define their object, but I do not believe that they can constitute a factor to be taken into account by the Standing Veterinary Committee when taking a decision concerning the 67. In the first place, it is not in fact the BSE situation in Portugal. quantities exported that count as regards

68. The Portuguese Government also states that, despite the fact that it had a very high 70. As regards Switzerland, while it is true BSE incidence rate, the United Kingdom that it is affected by BSE, it cannot be has been authorised to resume exports and considered that the problems there have, at that exports of bovine meat to the Com- any time, attained the same degree of munity from Switzerland have not been seriousness as those in Portugal. Although prohibited, when that country is far from during the mission which was carried out being free from BSE. from 8 to 12 February 1999 by the Food and Veterinary Office the experts observed a certain number of shortcomings and drew up some recommendations, their report did not advocate a prohibition on Swiss 69. As regards the United Kingdom, while exports to the Community and assesses it is true that it is the Member State which very positively the programme of control has been most affected by BSE, it must be and eradication set up by the Swiss autho- noted that, if resumption of exports has rities. been authorised, it is because the United Kingdom adduced evidence that it had put in place one of the schemes recommended by the OIE, which I described in my examination of the Portuguese Govern- 71. I therefore do not believe it possible to ment's second plea. It must also be recalled consider that the Portuguese Government's that it was only well after the measures fourth plea, concerning breach of the stipulated in the Animal Health Code were principle of proportionality, is well foun- implemented that those exports were ded.

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