T-38/99

Sociedade Agrícola do Monte da Senhora do Carmo SA, a company incorporated under Portuguese law, established in Almeirim, Portugal,

Sociedade Agrícola de Perescuma SA, a company incorporated under Portuguese law, established in Almeirim,

José de Barahona Núncio, businessman, residing at Evora, Portugal, and

Francisco Luís Pinheiro Caldeira, farmer and businessman, residing at Campo Maior, Portugal,

represented by Carlos Botelho Moniz and Júlia Rola Roque, of the Lisbon Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

applicants,

APPLICATION, first, for suspension pursuant to Article 185 of the EC Treaty (now Article 242 EC) of operation of Article 2(a) of Commission Decision 98/653/EC of 18 November 1998 concerning emergency measures made necessary by the occurrence of bovine spongiform encephalopathy in Portugal (OJ 1998 L 311, p. 23), inasmuch as it prohibits the dispatch from Portugal to Spain and France of fighting bulls intended for cultural and sporting events held in those two Member States, and, second, for the grant of authorisation pursuant to Article 186 of the EC Treaty (now Article 243 EC), subject to certain conditions, for the dispatch of those animals from Portugal to Spain and France,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

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Order

3 In recital 3 in the preamble to the contested decision, the Commission states that missions on issues related to bovine spongiform encephalopathy ('BSE') were carried out in Portugal in 1996, from which it was apparent that not all risk factors were adequately managed. In addition, a follow-up mission, conducted by the Food and Veterinary Office from 28 September to 2 October 1998, confirmed certain continued shortcomings in the enforcement of the measures to control the risk factors. According to the Commission, the sharp increase in the incidence of BSE, in particular since June 1998, raises serious concerns with regard to the development of the disease in the near future. On the basis of that mission, the Commission concluded that due to deficiencies thus found to exist in the implementation of Community legislation on prevention, surveillance and eradication of the disease, no adequate guarantees can be provided regarding the BSE history of the herds of origin and herds through which bovine animals pass and regarding the dams of bovine animals.

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ORDER OF 9. 8. 1999 — JOINED CASES T-38/99 R, T-39/99 R, T-40/99 R, T-41/99 R, T-42/99 R, T-45/99 R AND T-48/99 R

4 It is evident from recital 6 in the preamble to the contested decision that the level of risk of propagating or introducing the disease from live cattle to uninfected animal populations is deemed to be considerable.

5 Article 2 of the contested decision provides :

'Portugal shall ensure that the following are not dispatched from its territory to other Member States or to third countries :

7 By applications lodged at the Registry of the Court of First Instance on 12 February 1999, 13 applicants brought before the Court of First Instance actions for annulment of Article 2(a) of the contested decision, inasmuch as it prohibits the dispatch from Portugal of fighting bulls intended for cultural and sporting events held in Spain and France.

8 Those actions were joined when they were registered, in order to form only one single case to which was given the number T-38/99 to T-50/99.

9 By separate document lodged at the Registry of the Court of First Instance on 19 April 1999, seven of the applicants in the main proceedings brought, pursuant to Articles 185 and 186 of the EC Treaty (now Articles 242 EC and 243 EC) and Article 104 et seq. of the Rules of Procedure of the Court of First Instance, an application for interim measures. They claim that the judge hearing the application should:

— suspend the operation of Article 2(a) of the contested decision, inasmuch as it prohibits the dispatch from Portugal to Spain and France of fighting bulls intended for cultural and sporting events held in those two Member States;

— adopt any other interim measure which he deems appropriate;

— order the Commission to pay the costs in their entirety.

12 As regards the system of control applicable to fighting bulls, that draft report (p. 18) states:

'As regards fighting bulls, according to the information provided on breeding and feeding, there appear to be minimal risks that these animals have been exposed to significant quantities of contaminated [mammalian meat and bone meal], although compounds are usually provided to bulls at least several months before fighting.... On this basis, the mission had a favourable approach on the possible exemption of fighting bulls from the export ban.'

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13 On 3 June 1999, the judge hearing the application for interim measures granted the applicants' request of 31 May 1999. The draft report was immediately sent to the Commission which was invited to submit its observations.

14 In its observations lodged at the Registry of the Court of First Instance on 4 June 1999, the Commission requested that that document be withdrawn from the file or, in the alternative, that it be declared as of no relevance.

19 On 13 July 1999, the applicants sent to the Registry of the Court of First Instance a supplementary document.

20 By decision of the judge hearing the application for interim measures of 21 July 1999, the production in evidence of that new document was denied so that it was neither placed in the file nor sent to the defendant.

Law

21 Under Articles 185 and 186 of the Treaty in conjunction with Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21), the Court of First Instance may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures.

22 Article 104(2) of the Rules of Procedure provides that an application for the adoption of interim measures must state the circumstances giving rise to the urgency and the pleas of fact and law establishing a prima facie case for the measures applied for. Those requirements are cumulative, so that an application for interim measures must be dismissed if one of them is absent (order of the President of the Court of First Instance of 15 July 1998 in Case T-73/98 R Prayon-Rupel v Commission [1998] ECR II-2769, paragraph 25).

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25 In connection with their first plea, the applicants assert that no case of BSE has ever been detected amongst fighting bulls in Portugal. Furthermore, none of the inspection missions undertaken by the Commission in Portugal before the adoption of the contested decision concerned those animals and the specific system of control to which they are subject. Finally, the systems of control ante and post mortem which are applied in Spain and France are absolutely reliable and guarantee the effective destruction of the carcasses if it is justified on health grounds.

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ORDER OF 9. 8. 1999 — JOINED CASES T-38/99 R, T-39/99 R, T-40/99 R, T-41/99 R, T-42/99 R, T-45/99 R AND T-48/99 R

26 By their second plea, the applicants claim that, as regards the reasons which may justify the application to fighting bulls of the prohibition on dispatching bovine animals from Portugal, the reasoning on which the contested decision is based is inconsistent and inappropriate. The Commission has taken no account of the particular situation of bulls of that breed in its analysis.

27 In connection with their third and fourth pleas, the applicants claim that the prohibition on dispatching fighting bulls from Portugal with the aim of preventing the risks of propagating BSE is an ineffective and disproportionate measure. The objective of protecting public health does not require, in the particular case of fighting bulls, the adoption of a measure as restrictive as the absolute prohibition on dispatching those animals from Portugal.

28 The applicants submit that, in any event, the risks of propagating BSE are prevented in a completely effective way by the mere destruction of the carcasses of fighting bulls originating in Portugal. In this respect, the applicants claim that compliance with the rules laid down in the document entitled 'Guarantees relating to the dispatch of fighting bulls from Portugal to Spain and France' which they have drawn up and annexed to their observations will be such as to ensure that the dispatch of those animals does not carry any risk to public health.

33 Third, the Commission points out that the purpose of the contested decision is to protect public health, a requirement in the general interest of which it must take account in the exercise of its powers. Furthermore, it would be contrary to the principle of proportionality to provide for a derogation in favour of fighting bulls, since they fulfil the same conditions as those which prompted the adoption of the contested decision.

Urgency

34 The applicants claim that, at the time when they lodged the present application for interim measures, all the agreed and/or planned sales for the 1999 bull­ fighting season, in France and Spain, were already jeopardised. Moreover, if the operation of the contested decision were not suspended, the applicants would also have their sales of fighting bulls jeopardised for the 2000 season.

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ORDER OF 9. 8. 1999 —JOINED CASES T-38/99 R, T-39/99 R, T-40/99 R, T-41/99 R, T-42/99 R, T-45/99 R AND T-48/99 R

35 The amount of the damage caused by the contested decision is calculated for each of the applicants as follows :

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The balance of interests

39 The applicants claim that the measures applied for do not in any way affect the applicability of the strict regimes of control established in Portugal , Spain and France , in so far as they effectively prevent any risk of disease. They conclude that those measures , if they were granted , would not in any way undermine the public interest.

40 The Commission denies that the interests of the applicants may prevail over the objective of the protection of public health.

Findings of the judge bearing the application for interim measures

44 According to the figures put forward by the applicants relating to the total production of fighting bulls in Portugal in 1998, 75 % of that production was sold in that country alone for the purpose of sporting and cultural events. The applicants, in their capacity as Portuguese producers of fighting bulls, are not, therefore, at first sight, prevented by the contested decision from releasing the majority of their production for that purpose onto the national market.

45 Moreover , it can be inferred from the arguments of the parties that the meat of fighting bulls which would not be exported outside Portugal could , if necessary, be sold in that State, even if that solution is financially less profitable .

46 Finally, it should be noted, first, that the damage invoked by each of the applicants is financially quantifiable, in accordance with the method of calculation set out in their application for interim measures, and, second, that the elements which they included in that method of calculation clearly presuppose that their economic survival is not at stake and that the positions lost on the French and Spanish markets can be regained. The damage which they invoke is not, therefore, irreparable.

47 It follows that the applicants have not succeeded in proving that the requirement as to urgency was met.

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Luxembourg, 9 August 1999.

H. Jung B. Vesterdorf

Registrar President

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