C-1/00

4. That decision was based on: (i) Council 2. The first measures to combat this disease Directive 90/425/EEC of 26 June 1990 were naturally adopted in the United King- concerning veterinary and zootechnical dom, in 1988. They were supplemented by checks applicable in intra-Community Community measures from 1990 when the trade in certain live animals and products magnitude of the epidemic and the risks it with a view to the completion of the entailed were apprehended. internal market, 3 as last amended by Council Directive 9 2 / 1 1 8 / E E C of 17 December 1992 laying down animal health and public health requirements gov- erning trade in and imports into the Community of products not subject to the said requirements laid down in specific Community rules referred to in Annex A (I) to Directive 89/662/EEC and, as regards 3. Guided by the precautionary principle, pathogens, to Directive 90/425/EEC; 4and those Community measures became stricter (ii) Council Directive 89/662/EEC of over the years as alarming findings were made by the competent scientific bodies, 2 — OJ 1996 L 78, p. 47. 3 —OJ 1990 L 224, p. 29. 1 — Original language: French. 4 — OJ 1993 L 62, p. 49.

I - 9993

OPINION OF MR MISCHO — CASE C-1/00

11 December 1989 concerning veterinary 94/474/EC and repealing Decision 96/239/ checks in intra-Community trade with a EC, 7the ban was lifted, subject to very view to the completion of the internal strict conditions, for certain meat and meat market, as last amended by Directive products from bovine animals slaughtered 92/118. 5 It was adopted after the United in Northern Ireland, within the framework Kingdom authorities, to be more precise the of a scheme for the certification of herds for Spongiform Encephalopathy Advisory export (the Export Certified Herds Scheme; Committee, had revealed that there was 'the ECHS'). probably a link between a new form of Creutzfeldt-Jakob disease and the con- sumption of meat from cattle which had contracted BSE.

1 August 1996 and eligible under the Date- dom and at the time of slaughter the Based Export Scheme ('the DBES'). following conditions are shown to have been met:

11. However, its proposal did not receive a favourable opinion from the Standing Veterinary Committee. It was therefore (a) the animal has been clearly identifiable submitted to the Council, as laid down by throughout its life, enabling it to be Article 17 of Directive 89/662. traced back to the dam and herd of origin; its unique eartag number, date and holding of birth and all movements after birth are recorded either in the animal's official passport or on an 12. The Council did not act within the official computerised identification time-limit set, but did not decide against and tracing system; the identity of its the proposed measures by a simple majority dam is known; either, and so the Commission adopted the measures itself, by Decision 98/692/EC of 25 November 1998 amending Decision 98/256. 9

(b) the animal is more than six months but less than 30 months of age, determined by reference to an official computer record of its date of birth, and in the 13. The DBES, which was thus added to case of animals from Great Britain, the the ECHS, is set out in detail in the new animal's official passport; Annex III to Decision 98/256 inserted by Decision 98/692.

(c) the competent authority has obtained 14. Animals eligible under the DBES are and verified positive official evidence defined in point 3 of that annex, which that the dam of the animal has lived for states: at least six months after the birth of the eligible animal;

'Meat must be traceable back to the DBES- eligible animal, or after cutting, to the (d) all labelling and certification require- animals cut in the same batch, by means of ments after slaughter to the point of an official tracing system until the time of sale'. 11 slaughter. After slaughter, labels must be capable of tracing fresh meat and products referred to in Article 6(1)(b) and (c) back to the eligible animal to enable the consign- ment concerned to be recalled. Food for domestic carnivores must be traceable by 17. After carrying out the checks required means of accompanying documents and by Article 6(5) of Decision 98/256 as records.' 10 amended by Decision 98/692, adjudging them satisfactory and informing the Mem- ber States, on 23 July 1999 the Commis- sion adopted Decision 1999/514/EC setting the date on which dispatch from the United Kingdom of bovine products under the date-based export scheme may commence by virtue of Article 6(5) of Council Deci- sion 98/256/EC. 12 The date set was 16. Furthermore, the United Kingdom 1 August 1999. must 'have detailed protocols in place covering:

18. It was the refusal of the French Repub- lic to adopt the measures necessary to comply with Decision 98/256, as amended (a) tracing and controls prior to slaughter; by Decision 98/692, and Decision

10 _ Annex III to Decision 98/256, as inserted by Decision 11 — Point 9 of Annex III. 98/692, point 7. 12 — OJ 1999 L 195, p. 42.

I - 9996

COMMISSION v FRANCE

1999/514 that led the Commission to bring opinion that the risk of Great Britain against that State the action for failure to exporting infected beef and veal cannot be fulfil obligations under consideration, regarded as totally overcome', issued a registered as Case C-1/00. First, I will set negative opinion on the draft order. out how the case has arisen.

13 — JORF of 2 December 1998, p. 18169. 14 — Article 11 of Law No 98535 of 1 July 1998 (JORF of The French authorities propose to make 2 July 1998, p. 10056). available to the Commission all of France's

I - 9997

OPINION OF MR MISCHO — CASE C-1/00

scientific expertise necessary for the Com- the measures taken by the United Kingdom munity assessment of these scientific data.' made any risk to human health from the United Kingdom DBES at least comparable to that in other Member States.

28. The Commission thus initiated the procedure under Article 226 EC. On 1 December 1999 the French authorities requested a one-week extension to enable 25. The SSC emphasised that its analysis of them to obtain a fresh opinion from the the risk from BSE depended on the Com- AFSSA on the terms of a protocol of mission and the Member States ensuring understanding which had been drawn up that proposed measures to eliminate or in the meantime, on 24 November 1999, limit the risk were followed meticulously. It following three technical meetings held on noted that the assurance from the United 5, 12 and 15 November between the Kingdom DBES was very dependent on French and United Kingdom authorities maintenance of the feed ban, compliance and the Commission. with the 30-month rule and clear evidence that the risk from maternal transmission was minimised. Given those conditions and bearing in mind the SSC's previous analyses of the risk to public health within the 29. That fresh opinion, delivered on European Union, the SSC considered that 6 December 1999 and described by the

I - 9998

COMMISSION v FRANCE

— the need to provide that the measures taken may be reversed in order to stop 33. Since the Commission took the view immediately any exposure of consu- that it could not be satisfied with that reply, mers to a risk which is confirmed it sent a reasoned opinion to the French subsequently.' Republic on 14 December 1999 allowing it five working days to comply with its obligations flowing from Decisions 98/256 and 1999/514.

30. On 8 December 1999 the Prime Min- ister's press office issued a press release announcing that 'France is not currently 34. That reasoned opinion was replaced by able to lift the ban on British beef and veal'. a second one, dated 16 December 1999,

I - 9999

OPINION OF MR MISCHO — CASE C-1/00

39. In fact, on the same day, that is to say 29 December 1999, the French Republic brought an action for annulment, registered as Case C-514/99, against 'the decision by which the Commission is alleged to have 36. They also stated that the Commission refused to amend or repeal its Decision had not taken account of the minority 1999/514/EC of 23 July 1999 setting the opinions expressed within the TSE/BSE ad date on which dispatch from the United hoc group, a failure which, in their eyes, Kingdom of bovine products under the revealed a breach of the precautionary date-based export scheme may commence principle, and pointed out that they had by virtue of Article 6(5) of Council Deci- always contested the date for the resump- sion 98/256/EC'. The Court dismissed that tion of exports set by the Commission. action as manifestly inadmissible by order of 21 June 2000. 15 It held that there was no decision by the Commission and that the French Republic should have brought an action for failure to act, a step which it had not taken. 37. In their view, the protocol of under- standing drawn up on 24 November 1999 had become entirely irrelevant, having regard to the refusal of a majority of Member States to endorse the Commis- sion's interpretation concerning traceability 40. Since the Commission established that requirements set out in Annex II thereto the French Republic had not complied with and to the Commission's decision to pro- pose deferring implementation of manda- tory labelling of beef and veal. 15 — France v Commission [2000] ECR I-4705.

'(1) declare that, by refusing to adopt the measures necessary in order to comply with Council Decision 98/256/EC of The objection of inadmissibility put for- 16 March 1998 concerning emergency ward by the French Republic measures to protect against bovine spongiform encephalopathy, amending Decision 94/474/EC and repealing Decision 96/239/EC, as amended by 42. The French Government puts forward Commission Decision 98/692/EC, in two pleas in support of its objection of particular with Article 6 thereof and inadmissibility, the first alleging defects in Annex III thereto, and with Commis- the pre-litigation procedure and the proce- sion Decision 1 9 9 9 / 5 1 4 / E C of dure before the Court, the second alleging 23 July 1999 setting the date on which infringement by the Commission of the dispatch from the United Kingdom of principle of collegiality. The first plea bovine products under the date-based divides into four complaints, which I will export scheme may commence by vir- consider in turn. tue of Article 6(5) of Council Decision 98/256/EC, in particular with Article 1 thereof, and, especially, by refusing to permit the marketing within its terri- tory of products eligible under that scheme ("the DBES"), which are cov- ered by Article 6 and Annex III refer- red to above, after 1 August 1999, the The plea alleging procedural defects French Republic has infringed those two decisions, in particular the provi- sions referred to above, and the EC 43. In the French Government's submis- Treaty, in particular Articles 28 and sion, by sending the letter of formal notice 10; before the AFSSA issued its second opinion, the Commission infringed the principle that the subject-matter of the dispute must be clearly defined and failed to have regard to the objective of the pre-litigation proce- dure, which is to give the Member State concerned the opportunity to comply with (2) order the French Republic to pay the its obligations under Community law or to costs.' avail itself of its right to defend itself. Those

48. I must confess that I do not see how this complaint could affect the admissibility of the action. 45. The French Government was perfectly free, if it considered it appropriate having regard to the discussions which had taken place during November 1999, to consult the AFSSA a second time before deciding whether or not it was going to comply with the requirements flowing from Decision 49. It is true that the Commission did 1999/514, but the Commission was just as maintain that the French Government had free to decide that, having regard to the failed to put forward legal arguments but, persistent refusal of the French Republic to even if, in so doing, it was mistaken as to comply with a decision which had been in the nature of the arguments raised against effect since 1 August, the moment had it, wrongly regarding them as political, I do come to carry out the first step in the not see how that would render the pre- procedure laid down by Article 226 EC. litigation procedure defective.

I - 10002

COMMISSION v FRANCE

50. The question whether, notwithstanding will be for the Court to penalise that the existence of a Commission decision mistake, with the consequence that the requiring it to lift the ban, the French action could be dismissed, but that cannot Republic was entitled not to do so appears affect the action's admissibility. to me to be precisely a substantive legal question, which is for the Court to decide once the action has been brought.

I - 10003

OPINION OF MR MISCHO — CASE C-1/00

58. In the present instance, the time-limits period sought, a fact which proves that, in were indeed very short, but not too short, setting short time-limits, the Commission, in my view. while needing the French Government to define its position clearly and definitively in order to be able to plan the continuation of the procedure, did not mean to corner that government. 59. When the letter of formal notice was sent, the Commission had been endeavour- ing for weeks to persuade the French Republic to comply with Decision 1999/514 and finally lift the ban which should have been lifted from 1 August 62. As to the assertion that the setting of 1999. The French Government cannot very short time-limits reveals a misuse of therefore maintain that it could have been powers, the Commission seeking thereby to caught unawares, particularly as it had achieve the same result as through the already prepared the draft ministerial order initiation of proceedings for interim relief, for lifting the ban, which had been con- whose outcome would, according to the sidered by the AFSSA in September. It was French Government, have been open to also fully aware that the Commission doubt, I am of the view that, in the absence attached great importance to that question of any evidence, that assertion is pure and that it was determined to achieve the supposition. lifting of the ban, even if this meant having to bring an action for failure to fulfil obligations, should the French Government not soften its position.

65. Finally, as regards the complaint alle- The plea alleging infringement of the ging that the Commission did not display principle of collegiality the same conscientiousness in inducing the Federal Republic of Germany to lift the ban, which it too had maintained beyond 1 August 1999, suffice it to state that the Commission has considerable discretion 68. I thus come to the second plea, alleging when carrying out the task conferred on it that the principle of collegiality was by Article 211 EC of ensuring that the infringed. Treaty and secondary legislation are applied, and that it is therefore not for the French Government to criticise the method adopted by the Commission to reach the outcome which it intended to achieve, namely the lifting of the ban by all the Member States. 69. In the French Government's submis- sion, it was unlawful to bring the action on the basis of an authorisation given by the college to Commissioner Byrne and Presi- dent Prodi on 22 December 1999 when the Commission was not yet acquainted with the reply of the French Republic to the reasoned opinion. 66. Slightly mischievously, it could indeed be pointed out that it appears after the event that the approach followed with regard to the Federal Republic of Germany proved to be judicious, because that Mem- ber State has in fact lifted the ban whereas the French Republic persists in its refusal 70. The French Government states that and that, if the French Government con- that reply contained at least two new sidered it unacceptable for the Commission matters, namely express reliance on the to tolerate the German Government's main- precautionary principle and the announce- tenance of the ban, Article 227 EC offered ment that an action was being brought for the possibility of circumventing that iner- annulment of the Commission's refusal to tia. go back on its decision to lift the ban on British beef and veal, which, had they been brought to the attention of the college and discussed by it, could have led it to adopt a decision different from that taken on 22 December 1999.

74. The college was not unaware that, from the French point of view, the refusal was justified by the existence of 'plausible but unquantifiable risks', to repeat the Substance of the case words of one of the AFSSA's reports, that is to say it was claimed to be authorised by the requirements of the precautionary prin- ciple. 78. In its application, the Commission's main submission is that the French Repub- lic cannot unilaterally avoid applying deci- 16 — Case C-191/95 Commission v Germany [19981 ECR I-5449. sions formulated in clear, precise and 17 — Case C-272/97 Commission v Germany [19991 ECR unconditional terms which, under Arti- I-2175. cle 249 EC, are binding on it. However, it 18 — Case C-198/97 Commission v Germany [1999] ECR also concerns itself with rejecting the I-3257.

I - 10006

COMMISSION v FRANCE

84. The French Government notes that, on 81. In any event, inasmuch as the condi- the Commission's own admission both in tions laid down by Annex III to Decision its application and in the 13th recital in the 98/256, as amended by Decision 98/692,_ preamble to Decision 98/692, traceability were materially fulfilled, it was required to and labelling constitute an essential ele-

I - 10007

OPINION OF MR MISCHO — CASE C-1/00

ment of the DBES, inasmuch as they must Each Member State is invited to notify to make it possible to prevent the dispatch of the Commission and the other Member all or part of an animal or the marketing of States the model of the distinct mark which all or part of that animal, if it becomes has been chosen. In the light of the apparent subsequently that the animal was experience gained, the Commission will ineligible. It seeks to raise in defence the endeavour to clarify and complete if needed Commission's own interpretation of the existing Community legislation, for Annex III to Decision 98/256, as amended instance based on the system of mutual by Decision 98/692, given in Annex II to assistance and/or by adopting a decision the protocol of understanding drawn up on based on Article 6(1)(f) of Directive 24 November 1999. That document states 64/433/EEC and/or Article 17 of Directive as follows: 77/99/EEC and/or Article 7(5) of Directive 94/65.

'The Commission declares that, in accor- dance with its obligations as regards trace- Furthermore the Commission confirms that ability and recall, and following Decision where traceability cannot be established, a 98/256/EC as amended by Decision Member State is in a position to refuse, in 98/692/EC, each Member State, in order conformity with Community law and in to guarantee the effectiveness of this mea- particular, with Article 7 of Directive sure based on the precautionary principle, 89/662/EEC, meat or products containing shall take binding measures with a view to such meat 19 which do not clearly comply maintaining maximum traceability by with this obligation. ensuring that all meat and all products dispatched from the United Kingdom in accordance with Annex II and III of that Decision: This declaration will be addressed to all the Member States.'

86. It also points out that Council Directive 92/59/EEC of 29 June 1992 on general 89. Finally, the French Government finds product safety 21 makes traceability one of confirmation of that abandonment in the the preferred techniques of preventive report of the inspection mission to the action. United Kingdom with regard to implemen- tation of Decision 98/256, as amended by Decision 98/692, carried out from 20 to 24 March 2000 by the Food and Veterin- ary Office, noting that the section of the report on inspections covers only traceabil- ity from the farm to final packaging in the 87. The French Government contrasts this cutting plant, leaving outside the scope of consensus on the usefulness and necessity its investigation traceability after the cut- of traceability with the deficiencies which it ting plant, in particular at the time of considers it has identified in relation to the dispatch or later. legislation governing the movement of bovine products covered by the DBES that are exported from the United Kingdom.

90. That report also appears to the French Government to be revealing for another 88. It states that, when, in November 1999, reason, inasmuch as it draws attention to it became apparent within the Standing the fact that, in the absence of full imple- Veterinary Committee that a majority of mentation in the United Kingdom of Com- Member States did not see the benefit of mission Regulation (EC) No 494/98 of 27 February 1998 laying down detailed rules for the implementation of Council 20 — See paragraph 102. Regulation (EC) No 820/97 as regards the 21 — OJ 1992 L 228, p. 24. application of minimum administrative

94. As regards Article 10 EC, the French Government contends that it is the Com- 91. This leads the French Government to mission which has failed to cooperate in contest the ability of the Commission to good faith, stating that the French Govern- complain that it has not implemented a ment 'requested and sustained the debate decision which, contrary to Article 249 EC, concerning application of the rules on is not in fact binding in its entirety, since traceability at the meetings of the Standing the whole of the traceability/labelling Veterinary C o m m i t t e e on 23 and aspect of Decision 98/256, as amended by 24 N o v e m b e r 1999 and 6 Decem- Decision 98/692, has been abandoned. ber 1999', while the Commission purely and simply abandoned the idea of requiring application of the provisions of Decision 98/256, as amended by Decision 98/692, concerning traceability and labelling and did not, in interpreting and applying Deci- sion 98/256, as amended by Decision 92. It is surprised, furthermore, that the 98/692, take sufficient account of public Commission could have adopted Decision health considerations despite being 1999/514, when Article 6(5) of Decision required to do so by Article 152 EC and 98/256, as amended by Decision 98/692, the Court's case-law, in particular the required it to verify 'the application of all judgment in United Kingdom v Commis- the provisions of this Decision' before sion, cited above. setting the date for the lifting of the ban.

95. As regards Article 28 EC, the French Government takes the view that, since the 93. The French Government submits that, risk of animals and humans being infected even if it was only after adopting Decision with BSE is a serious public-health pro- 1999/514 that the Commission discovered blem, it is entitled, under Article 30 EC, to that the conditions for lifting the ban were endeavour to ensure a high level of protec- not all met, it was for the Commission to exercise its power under Article 6(6) of 23 — Anicie 6(5) provides that 'the Commission shall review the provisions of this Article at least every three months and shall take appropriate measures in accordance with the procedure laid down in Article 17 of Directive 89/662/ 22 — OJ 1998 L 60, p. 78. EEC'.

96. Given the doubts which the detection of BSE in a cow born after 1 August 1996 was able to create with regard to the assurance that the DBES is supposed to provide, the French Government considers 99. In view of the Court's judgment in Case that its attitude is fully justified by con- C-414/97, 25 referred to by the French siderations of public health as referred to in Government in its rejoinder, proceeding in Article 30 EC. It also states that it has had that way may, however, be allowed by the regard to the principle of proportionality, freedom to exercise rights of defence. Faced since an order of 11 October 1999 24 has with this situation, in which the arguments authorised the transit of DBES products of one party do not truly respond to those across French territory to other Member of the other, one might be tempted to States which have lifted the ban despite the examine the arguments set out by the traceability and labelling problems. Commission in its application only in so far as they are contested by the French Republic and to examine directly the arguments of the French Government in the light of the arguments set out in the reply.

97. How sound are those various argu- ments? It should be stated first of all that, while the Commission expected the French Republic to take up the arguments which it 100. However, I will not proceed in that had put forward in its reply to the reasoned way because it has appeared to me that a opinion and, consequently, sought to coun- thorough examination of the arguments set ter those arguments when drafting its out in the application could prove very application, the French Republic, in its useful for subsequently distinguishing those defence, unveiled a different defence strat- of the various points of disagreement egy· between the parties where there are con-

104. That is stated to be impossible by 101. The Commission is undoubtedly right settled case-law which I consider entirely when it states that, under Article 249 EC, a well founded. It appears to me that, where decision is binding upon those to whom it a Member State is notified of a decision, is addressed. However, the correctness of with which it is obliged to comply by that statement far from concludes the Article 249 EC, it can be required to discussion as to whether the French Repub- examine that decision with a view to lic has infringed its obligations under the forming an opinion on its legality and, if Treaty, because the mere finding that a that examination reveals a problem as to its Member State has not complied with legality, to bring an action for annulment secondary legislation imposing obligations within the time-limit laid down by Arti- on it does not lead, in itself, to the cle 230 EC. conclusion that obligations imposed by the Treaty have been infringed.

105. For that reason, in my view, the 102. It is also necessary to have ascertained French Government could not properly first that the Member State was not able to base its defence on a plea that Decision rely on another provision of Community 98/256, as amended by Decision 98/692, law of a higher, or at least equivalent, order and Decision 1999/514 were unlawful. If it or on a general principle of law permitting had objections to put forward against the it, in so far as a certain number of DBES as such, for example because that conditions are met, not to apply, even if scheme did not appear to it to be capable of only temporarily or subject to complying reducing the risk of infection to a level such with certain procedural requirements, the that public-health requirements were genu- decision addressed to it. inely protected, it was for it to bring an

108. In other words, when Decision 98/692 106. I am all the more surprised that it did was adopted, the lifting of the ban could be not do so because the Commission's pro- seen merely as a medium or long term posal had received a negative opinion when prospect, which it did not appear expedient it was considered by the Standing Veter- to rule out by initiating proceedings imme- inary Committee and had been unable to diately. Be that as it may, it is unnecessary gather the majority necessary for its adop- to express a view on the reasons, whatever tion when it was considered by the Council. they may have been, for which the French Thus the DBES, to say the least, had not Government did not believe that it had to been a self-evident step when the Commis- bring proceedings for the annulment of sion proposed it and one or other of the Decision 98/692. Member States which opposed its adoption by the Council could have been expected to react when the Commission, exercising its powers under Directive 89/662 in such a case, decided to impose it none the less, relying on the fact that the Council had not decided against the proposed measures by a simple majority. 26 109. The only finding that can be made is that the French Government did not con- test, at the proper time, the establishment of the DBES. Nor did it bring an action for the annulment of Decision 1999/514 within the time-limit laid down by Article 230 EC. That inaction, both when the DBES was adopted as a means of lifting the ban and 107. The documents in the case do not when the date was set for the resumption of reveal why the French Government did not exports under that scheme, made it extre- react at the time. The fact that it did not mely problematical to bring an action for initiate proceedings is perhaps explained by annulment subsequently, that is to say after the fact that Decision 98/692 did not have the time-limit had expired, short of obtain- the effect of allowing British exports to be ing an extension of time, for which Arti- resumed immediately, since it left the cle 230 EC makes no provision. To that Commission to check that all the condi- end, the French Republic would have had to argue convincingly, first, that it was only after the expiry of the time-limits for 26 — See the final recital in the preamble to Decision 98/692 and bringing proceedings that the French Gov- Article 18 of Directive 89/662. ernment came into possession of the infor-

114. While the approach of seeking to obtain an extension of time from the Court 112. As regards Decision 1999/514, the could appear extremely risky in the absence arguments put forward by the French of support from any judicial precedent, it Government appear more convincing. was open to the French Government, with- Given that Decision 98/256, as amended out coming up against the slightest proce- by Decision 98/692, provided that the dural problem, to trigger off a review of Commission would set the date for the Decision 1999/514, and doubtless of Deci- commencement of exports under the DBES sion 98/256, as amended by Decision 'after having verified the application of all 98/692, by means of an action for failure the provisions of this Decision', it seems to act. It needed only to call on the

I - 10014

COMMISSION v FRANCE

Commission to amend that decision, in order in France v Commission, cited above, view of the new information which it the Commission 'had not previously claimed to have, and, in the event of an received an express request for the amend- express refusal, to bring an action for the ment of Decision 1999/514, but had merely annulment of the refusal or, in the absence received some allegedly new evidence of a reaction from the Commission, to which might alter the legal and factual bring an action under Article 232 EC. context taken into consideration.

I - 10015

OPINION OF MR MISCHO — CASE C-1/00

I - 10016

COMMISSION v FRANCE

this is a control or risk management and position, in the sense that it is intended not a scientific issue'. 27 Further on, the merely to recall that, once the Commission opinion states: 'The SSC emphasises that its establishes that the conditions laid down by analyses of the risk from BSE depend on the Decision 98/256, as amended by Decision Commission and Member States ensuring 98/692, are in fact all fulfilled, it cannot that proposed measures to exclude or limit defer setting the date for the resumption of the risk are followed meticulously'. 28 It exports, in which case the statement is cannot be stated more clearly that nothing perfectly correct. Or it seeks to describe a may be derived from the SSC's opinions as factual situation, in the sense that it is to be regards the traceability and labelling mea- read as meaning that the Commission had, sures actually implemented, while the SSC's before adopting Decision 1999/514, in fact favourable opinion on the DBES is based established that all the necessary conditions on the assumption that those measures are were fulfilled, in which case the statement in fact implemented with the utmost vigour. is not only formally challenged by the French Government as to its correctness but also gives rise to several questions when compared with the Commission's interpre- tative declaration forming Annex II to the document entitled 'protocol of understand- ing' referred to above.

128. There is, in my view, no need to read 131. A quite different reaction is called for, between the lines to understand, on reading on the other hand, by the assertion, con- that declaration, that in November 1999 tained in the Commission's application, the Commission had not yet received that the French Republic cannot invoke notification from the Member States of Article 30 EC in order to justify the impe- the choices made with regard to the specific diment to the free movement of goods, marking and that it in no way ruled out the contrary to Article 28 EC, which resulted possibility that supplementary legislative from its refusal to comply with Decision measures might be necessary in order to 98/256, as amended by Decision 98/692, ensure complete traceability and appropri- and Decision 1999/514. The Commission ate labelling. asserts in this connection that, 'since, moreover, the veterinary and health requirements applying to products covered by the DBES and to their dispatch outside the United Kingdom (like most of the veterinary field) are subject to Community harmonisation constituting a coherent and exhaustive system whose very purpose is to 129. Furthermore, the protocol of under- ensure that human and animal health are standing states that 'the existing Commu- protected, the ban cannot, according to the nity legislation already provides for trace- settled case-law of the Court of Justice, be ability but not in a very transparent or justified by France by reference to Arti- rapid manner'. In my view, the value of cle 30 of the EC Treaty'. traceability which does not provide for transparency may be questioned.

Member State from having recourse to No 999/2001 of the European Parliament Article 30 EC, it appears to me that the and of the Council of 22 May 2001 laying question must be raised of the level from down rules for the prevention, control and which it is necessary to assess the degree of eradication of certain transmissible spongi- harmonisation actually achieved. form encephalopathies, 30 which may claim to achieve full harmonisation even though it expressly leaves certain issues outside its field of application, the DBES, which the regulation retains without substantial amendment, is placed in Chapter C of 134. Is it necessary to look from the level of Annex VIII and thus constitutes only a the conditions under which beef and veal small fragment of the legislation as a from the United Kingdom may enter the whole. markets of the other Member States, as the Commission claims, or from that of the fight against BSE?

to the DBES as a means of partially lifting in which, consequently, allegations of a the ban could, whatever the reservations of lack of sincere cooperation do not seem to the AFSSA, claim justification from the me really to have a place and are, in any authority of the opinions of the SSC, the event, without practical consequence. Commission's statement that it was required to adopt Decision 1999/514 on the date upon which it did so may leave room for certain doubts. 144. The French Government also puts forward, in that pleading, arguments cast- ing doubt on the very substance of the DBES but, in addition to being founded on facts subsequent to the date upon which the action was brought, those arguments are of 141. Finally and above all, I have estab- interest only in so far as recourse to lished that it is difficult to argue that there Article 30 EC is permissible in the present was obviously full Community harmonisa- case, a question which, at this stage in my tion, precluding absolutely recourse to reflections, remains open. Article 30 EC to justify the French Repub- lic's refusal to authorise imports of pro- ducts covered by the DBES.

145. On the other hand, it is possible to disregard from the outset the French Gov- ernment's argument that the Commission has not proved the existence of the breach of obligations since it is unable to refer to a 142. The arguments put forward by the single case where United Kingdom meat French Government in its defence add little presented as covered by the DBES has been to that critical reading of the Commission's turned back at the French border. application.

147. I will therefore pass immediately to refusal by bringing protective clauses into consideration of the arguments exchanged play. In its submission, in order for recourse in the reply and rejoinder, where the lines of to be had to a protective clause, the argument could be refined. procedure laid down by the provision establishing the possibility of applying such a clause must be followed, and it cannot therefore be accepted that a Member State, after acting entirely unilaterally, without indicating that it intended to rely on the 148. In its reply, the Commission, after possibility offered by a given provision and pleading the inadmissibility of the argu- without having sent to the Commission the ments of the French Government seeking to notifications prescribed by that provision, call into question the validity of Decision may, when its conduct is criticised, plead 98/256, as amended by Decision 98/692, that its action fell within the framework of and Decision 1999/514 which it is alleged recourse to a protective measure. to have refused to apply, a submission which, as set out above, I consider to be correct, also contests, in a subsidiary sub- mission, the ability of the French Govern- ment to rely on facts and evidence subse- quent to the adoption of those decisions. 151. In other words, dressing up after the event is impermissible. The Commission refers, in support of its objection, to Case C-112/97 Commission v Italy. 31 149. I can but agree with the Commission so far as concerns reliance on such facts and evidence in order to find fault with the legality of the decisions at issue. On the other hand, I cannot see what there is to prevent the French Government, where its reasoning is not in terms of legality, from 152. The French Government contends in justifying its conduct by recourse to docu- its rejoinder that that judgment is irrelevant ments subsequent to the adoption of the inasmuch as it was not until the stage of the decisions or even to the commencement of pre-litigation procedure that the Italian the action, but casting light on the actual Republic pleaded the protective clause. position at the time when the Commission thought that it had to adopt the decision which partially lifted the ban, or confirm- ing, in its view, the validity of its refusal to apply that decision.

154. The French Government is surprised that the Commission refuses to regard that communication as tantamount to notifica- tion of the intention to adopt a protective measure when the Court's judgment in 157. The Commission is thus right in Eurostock 32 shows that, after the United raising the judgment in Commission v Italy, Kingdom notified a protective measure cited above, against the French Govern- forming part of the fight against BSE to ment. It may be noted in passing that the the Commission under an irrelevant direc- lack of due notification also precludes the tive, the Commission informed it that the French Government from bringing its refu- notification did not meet the requirements sal to lift the ban for DBES products within of the relevant directive, enabling it to send the framework of Council Directive 92/59, a fresh notification in accordance with as it seeks to do in its defence and rejoinder. those requirements.

155. In the French Government's view, the Commission has failed to comply with its obligation to cooperate with it in good 158. Either the DBES amounts to full faith. harmonisation, in which case Directive 92/59 is inapplicable, or it does not, in which case it was indeed open to the French Government to seek to act under Article 6 of that directive, but under Article 7 156. It seems to me, however, that the thereof it was mandatory for it to give action taken by the French Government in notification, at least pursuant to Directive the present case and that of the United 89/662, since Directive 92/59 does not require specific notification where that is also prescribed under specific Community 32 — Case C-477/98 Eurostock [2000] ECR I-10695. legislation.

163. In the present case, however, Deci- sions 98/256 and 1999/514 were nothing 160. While that was indeed the case in other than Community measures, partially Eurostock, it cannot be maintained that lifting the ban and modifying Decision Decision 98/256, as amended by Decision 96/239 which, precisely pursuant to Arti- 98/692, and Decision 1999/514 were not cle 9(4) of Directive 89/662, had intro- applicable in the autumn of 1999. As I have duced a complete ban on beef and veal pointed out above, it is possible to question from the United Kingdom. whether the conditions laid down by Deci- sion 98/256, as amended by Decision 9 8 / 6 9 2 , were met when Decision 1999/514 was adopted, but that is another question and does not in any way allow it to be claimed that Decision 1999/514, which, like any Community measure, bene- fited from the presumption of validity, was 164. The French Government's position not applicable. thus consists in maintaining that a Member State may rely on the fourth subparagraph of Article 9(1) of Directive 89/662 to adopt a national protective measure strengthening a Community measure adopted as a pro- tective measure pursuant to Article 9(4) of that directive. That is not acceptable in my view. If a Member State is not satisfied with a Community protective measure, it must 161. Even if the French Government had bring its objection before the Court for intended, by sending a copy of the AFSSA's decision. It is not for it to act unilaterally. opinion, to bring itself within the legal framework of the adoption of a protective measure under the fourth subparagraph of Article 9(1) of Directive 89/662 and had expressly informed the Commission of that fact, I do not think that it would have been entitled to classify its refusal to lift the ban as a protective measure permitted by that 165. On the other hand, the problem directive. presents itself in a different manner when

the Member State relies on Article 30 EC. 167. In that case, the Court stated that a The Commission returns to this question in Member State cannot prohibit, pursuant to its reply but the arguments which it puts Article 36 of the EC Treaty, the dispatch of forward are not persuasive. It simply states livestock to a Member State suspected by it that the Community legislation applicable of not ensuring that a directive relating to to the DBES is exhaustive in nature, 'given animal slaughter methods is applied cor- that it sets out in detail and very strictly, in rectly. However, the context of the present Article 6 of Decision 98/256/EC, as amen- case is entirely different. A Member State is ded by Decision 98/692, and in Annex III being asked to stop prohibiting imports of thereto, inter alia the conditions under beef and veal originating from another which animals are eligible for the DBES, Member State seriously affected by BSE the rules applicable in slaughterhouses, even though it is not in dispute that, despite cutting plants and cold-stores and on the fact that exports of beef and veal from transportation, the tissues to be removed that Member State are conditional upon and the applicable rules on controls and there being an effective traceability and tracing'. labelling system, the detailed rules for which Community legislation does not however define, a majority of the Member States refuse to put in place national legislation ensuring such traceability and labelling. 166. However, as we have seen, if the assessment is conducted from the stand- point of the establishment of a comprehen- sive regime for combating BSE, only Reg- ulation No 999/2001 can be regarded as achieving that. Even from the standpoint of the DBES regime, it would be found that, 168. Even apart from the fact that it is while Annex III to Decision 98/256, as difficult to put animal welfare and the amended by Decision 98/692, admittedly protection of human health on the same establishes the principle of traceability and plane, can it seriously be considered that labelling, it does not lay down the rules Community provisions which do not lay which Member States other than the United down the rules to be observed by the Kingdom should adopt for that purpose, a Member States other than the United King- situation which it is difficult to regard as dom, whose existence and observance are amounting to Community harmonisation. essential in order for human health not to The Commission none the less puts for- be jeopardised, achieve full harmonisation, ward the contrary view, since it relies on preventing a Member State which estab- the judgment in Hedley Lomas, 33in which lishes that nothing has been done to that the Court held that, where there is Com- end from restricting the free movement of munity harmonisation, a Member State goods on public-health grounds? cannot invoke Article 36 of the EC Treaty (now, after amendment, Article 30 EC) on the ground that the rules which brought about that harmonisation are not observed in another Member State.

171. It therefore remains to determine whether the French refusal to lift the ban complies with the conditions laid down by the Court's case-law regarding recourse to 174. Notwithstanding the Commission's Article 30 EC. The fact that the refusal is assertions in its reply, the French position intended to protect public health is not thus appears consistent as regards meat open to debate. It is necessary, however, to covered by the ECHS. While the French establish the precise nature of the risk to Government accepted a partial lifting of the public health which existed in the present ban in respect of those products, although case. traceability and labelling were no better ensured than in the case of DBES products if the Commission is to be believed, that is because the certified herds scheme offered many more guarantees as to the state of health of the animals from which the meat 172. It will be recalled that the SSC con- came. sidered that products complying with the DBES were no more dangerous than beef and veal produced in the other Member States. I will therefore not enter into the discussion between the Commission and the French Republic concerning the defec- tive implementation in the United Kingdom 175. While the allegation of discrimination of Regulation No 494/98 and the conclu- can therefore be dismissed, in order for the

I - 10025

OPINION OF MR MISCHO — CASE C-1/00

French refusal to be capable of being France, from the border up until the stage founded on Article 30 EC the measure of sale to the ultimate consumer. must also be appropriate and proportion- ate. As regards appropriateness, the French Government's position is sounder on indir- ect imports than on direct imports.

178. It was entirely up to the French Government to enact national rules requir- 182. The fact that a Member State may ing such traceability and labelling in legitimately exercise the powers accorded

I - 10026

COMMISSION v FRANCE

to it by Article 30 EC does not mean that it the products leave the United Kingdom, the is entitled to call the existing Community French authorities are quite clearly unable measures into question. It may only make to adopt national measures restoring trace- good the deficiencies which they still con- ability and enabling a consignment of tain. products which prove to be contaminated to be recalled, and the import ban then appears to be a perfectly appropriate mea- sure, given the fundamental importance of traceability under the DBES.

183. A Member State which has recourse to Article 30 EC in a context where there are already Community measures designed to ward off the danger against which it seeks to act does not have the same scope for action as it does where no Community 187. It is true that that ban could be measure exists in the field in question. criticised with regard to observance of the principle of proportionality, inasmuch as it is possible for DBES products to pass in transit through another Member State but to remain traceable and correctly labelled none the less.

184. Therefore, the French Republic went beyond the limits set by Article 30 EC in prohibiting direct imports of DBES pro- ducts, a transgression which quite obviously cannot be remedied by the fact that it authorised the transit of those 188. However, I accept that, in the absence products. of precise Community regulations relating to the method for ensuring traceability and to the labelling particulars to be included, so far as concerns DBES products, the French Government could resort to a general ban not drawing a distinction, which might be difficult to apply in practice 185. As regards indirect imports, the given the complexity of the distribution French refusal to lift the ban appears, by chains, between the Member States of contrast, to be an appropriate measure. origin.

— dismiss the action as to the remainder;

— order each party to bear its own costs.

I - 10028