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OPINION OF ADVOCATE GENERAL CHRISTINE STIX-HACKL delivered on 9 October 2 0 0 1 1

I — Introductory remarks I I — Legislative background

A — Regulation (EC) No 820/97

1. This dispute between the Parliament and the Council is one of a number of cases 2. Regulation No 820/97 was adopted in relating to the beef sector.2 By the present response to the BSE crisis to improve the action the Parliament is seeking the annul- transparency of the conditions for the ment of Council Regulation (EC) production and marketing of beef and beef No 2772/1999 of 21 December 1999 pro- products. Whereas Title I (Article 1 to viding for the general rules for a compul- Article 11) governs the identification and sory beef labelling system 3 (hereinafter registration of bovine animals, Title II 'Regulation No 2772/1999'). These pro- (Articles 12 to 20) covers the labelling of ceedings essentially relate to the legal basis beef and beef products. for this regulation, that is to say Council Regulation (EC) No 820/97 of 21 April 1997 establishing a system for the identifi- cation and registration of bovine animals and regarding the labelling of beef and beef p r o d u c t s 4 (hereinafter 'Regulation No 820/97'). It also raises the fundamental 3. Article 3 reads: question as to whether and on what conditions the Council may enact measures on the basis of other acts adopted by it alone or together with the Parliament. 'The system for the identification and 1 — Original language: German. registration of bovine animals shall com- 2 — See, to that effect, Case C-269/97 Commission v Council prise the following elements: [20001 ECR I-2257 and pending Case C-1/00 concerning infringement proceedings against the French Republic in connection with the lifting of the ban on British beef; see also Case C-477/98 Eurostock Meat Marketing v Depart- ment of Agriculture for Northern Ireland [20001 ECR I-10695 and Case C-365/99 Portugal v Commission [2001] ECR I-5645. 3 — OJ 1999 L 334, p. 1. 4 — OJ 1997 L 117, p. 1. (a) eartags to identify animals individually;

4. Article 12(1) reads (in part):

'If an operator or an organisation, as — indications relating to the health mark defined in Article 13, wishes to label beef as provided for in Directive 64/433/ at the point of sale in such a way as to EEC and other similar indications provide information concerning the origin provided for in the relevant veterinary or certain characteristics or production legislation...'.

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5. Article 19 reads: 3. Member States shall submit to the Com- mission, by 1 May 1999, reports on the implementation of the labelling system for beef. The Commission shall submit to the Council a report on the situation regarding the implementation of beef labelling sys- ' 1 . A compulsory beef-labelling system tems in the different Member States. shall be introduced which shall be obliga- tory in all Member States from 1 January 2000 onwards. However, this compulsory system shall not exclude the possibility for a Member State to decide to apply the system merely on an optional basis to beef 4. However, Member States where there is sold in that same Member State. The a sufficiently developed identification and labelling system provided for in this Reg- registration system for bovine animals may ulation shall apply until 31 December before 1 January 2000 impose a compul- 1999. sory labelling system for beef from animals born, fattened and slaughtered on their territory. Furthermore, they may decide that one or more of the items of informa- tion referred to in Article 16(1) and (2) must be indicated on labels. On the basis of the report provided for in paragraph 3, the Council, acting by a qualified majority on a proposal from the Commission, shall therefore take a decision before 1 January 2000 on the general rules for a compulsory beef-labelling system to apply as from that date, in accordance with 5. A compulsory system as provided for in the Community's international commit- paragraph 4 must not lead to any disrup- ments. tion of trade between the Member States.

6. On 13 October 1999 the Commission presented to the Parliament and the Coun- cil a report on the implementation of beef labelling systems in the Member States, as prescribed by Article 19(3) of Council Regulation (EC) No 820/97. 5 In that report the Commission noted certain fail- ings by the Member States in relation to the 9. In its report the Commission emphasises identification and registration of bovine that the rapid adoption of the second animals and in particular that animal pass- proposal is necessary to avoid a collapse ports were available only for animals born in the optional labelling system and its after 1 January 1998 and that difficulties automatic replacement by a compulsory existed regarding the transfer of informa- system with no general rules to guide it. tion about a particular animal if it was Furthermore, the Commission points out exported. Furthermore, it had not been that it reserves the possibility to present to possible to set up the databases by the the Council an urgent proposal before the prescribed date. end of 1999 if the Council and the Parlia-

5 — COM(1999) 486 final. 6 — COM(1999) 486 final, p. 10.

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ment have failed to adopt the proposals by 2. Content of Regulation No 2772/1999 that time. This proposal based on Arti- cle 19 of Regulation (EC) No 820/97 is intended to avoid a legal void through the expiry of the optional system. 7

13. The second recital in the preamble reads:

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15. Article 1 reads: By orders of the President of 4 August and 13 September 2000, the Court granted the Kingdom of Spain and the Commission leave to intervene in support of the form of order sought by the Council. ' 1 . Operators and organisations marketing beef within the meaning of Article 13 of Regulation (EC) No 820/97 shall label it in accordance with the rules referred to in the first, third and fourth indents of the second subparagraph of Article 12(1) of Regula- 17. The Parliament claims that the Court tion (EC) No 820/97. should annul Regulation No 2772/1999 and, should it do so, maintain the effects of the regulation until the Council adopts a new measure on the basis of Article 152 EC, and order the defendant to pay the However, Member States may continue to costs. have recourse to the possibility provided for in Article 19(4) of Regulation (EC) No 820/97 after 1 January 2000. In this case, the provisions of Article 19(5) of Regulation (EC) No 820/97 shall continue to apply. 18. The Council and the interveners sup- porting it contend that the Court should dismiss the action as unfounded and order the applicant to pay the costs. The Com- mission further contends that the Court 2. The rules relating to the voluntary should, if it annuls the regulation, maintain system, which applied until 31 December its effects. 1999 in accordance with the provisions of Article 19 of Council Regulation (EC) No 820/97, will continue to be applicable to any voluntary indication, additional to the obligatory labelling system referred to in paragraph 1.'

20. The Parliament submits that the Coun- cil lacked competence either to prolong the 22. The Parliament accepts that the second application of the voluntary beef labelling subparagraph of Article 19(1) of Regula- system beyond 31 December 1999, or to tion No 820/97 grants the Council the postpone the introduction of the compul- power to adopt implementing provisions sory beef labelling system. Even if it were under Article 19(2). assumed that the Council reserved the right to adopt implementing provisions in respect of Regulation No 820/97, the prin- ciple relating to the compulsory labelling system and a relevant date of entry into force were laid down in that regulation. By amending those elements the Council had not adopted an implementing provision, but amended the regulation. 23. Furthermore, the Parliament disputes the Council's contention concerning a derived legal basis, which, in the present case, is characterised by a simplified deci- sion-making procedure, that is to say it disputes the contention that the Council is permitted to adopt a legislative act relating to the common agricultural policy without consulting the Parliament, arguing that to do so is contrary to Article 37 EC.

21. The reference contained in the first subparagraph of Article 1(1) of Regulation No 2772/1999 to the applicable provisions listed in Regulation No 820/97 is only confirmative in nature in that it relates to the existing legislation, that is to say to the 24. According to the consistent case-law of labelling of foodstuffs pursuant to Directive the Court, particularly as regards the 79/112, to Regulations No 1208/81 and common agricultural policy, implementing No 1186/90, and to identification pursuant measures may be adopted in accordance

25. In the submission of the Parliament, no third kind of act exists in addition to legislative acts and implementing provi- sions. Either Regulation No 2772/1999 is a legislative act and must comply with the procedural requirements which the Treaty 28. Even if it is assumed that the Council lays down in respect of its adoption, or it does in fact have a legislative power of the must be construed as an implementing third kind, the Parliament points out that measure in the sense contemplated in the power laid down in Article 19(1) of Article 202 EC. Regulation No 820/97 relating to its scope rattorte materiae and rattorte temporis is limited, that is to say that it does not, in any event, empower the Council to postpone the entry into force of a compulsory 26. The Parliament recalls that according labelling system beyond 1 January 2000. to the wording of the second subparagraph of Article 7(1) EC, '[e]ach institution shall act within the limits of the powers con- ferred upon it by this Treaty'. According to the case-law of the Court, 8 the rules regarding the manner in which the Com- munity institutions arrive at their decisions are laid down in the Treaty and are not at 29. As regards the Council's argument that the disposal of the Member States or of the it would have had to state reasons for institutions themselves. reserving the right to exercise implementing powers, the Parliament submits that it is not convincing in law. What is decisive is not the Council's intention but the fact that a specific, objective situation has been created. Moreover, in view of present 27. In the submission of the Parliament, the comitology practice the Parliament doubts Treaty does not empower the Council, as a in general that the Council always takes care to state grounds as to whether or why it reserves the right to adopt implementing 8 — Case 68/86 United Kingdom v Council [1988] ECR 855, paragraph 38. provisions itself.

33. That contention of the Council is, it maintains, confirmed by the fact that the Commission made provision for the parti- cipation of the Parliament in the decision- 31. In the submission of the Council, it making process in its second proposal of does not follow from the Treaty that any October 1999 relating to the derived legal legislative measure relating to the common basis. agricultural policy is subject to the Parlia- ment's participation in the consultation or co-decision procedure. On the contrary, the Community legislature may provide that in a legislative act adopted by means of the consultation or co-decision procedure a legal basis may be prescribed which does 34. In the light of the experimental nature not provide for the participation of the of the measure adopted and the difficulty European Parliament. which its application might entail, the Council decided to create a derived legal basis which enabled it, on the basis of the experience in applying the optional system, to make any adjustments which might prove necessary in order to develop it into a compulsory system. 32. Furthermore, the Council contends that the comparison which the Parliament makes between the implementing provi- sions in Article 11(5) and (6) of the Com- mission's proposal which resulted in Reg- ulation No 820/97 and the general rules within the meaning of the second subpar- 35. Furthermore, the Council points out agraph of Article 19(1) thereof is erro- that on 17 July 2000 the Parliament and neous. In amending the Commission's pro- the C o u n c i l a d o p t e d R e g u l a t i o n posal in this respect, the Council intended No 1760/2000 which replaced Regulation to create a derived legal basis to adopt not No 820/97. That regulation was based on implementing provisions but rather general Articles 37 and 152(4)(b) EC. The adop- rules for a compulsory beef labelling sys- tion of Regulation No 1760/2000 shows

8 — Appraisal

37. In the submission of the Spanish Gov- ernment, the Council was competent to 40. In considering whether or not the adopt Regulation No 2772/1999 on the Council had competence to base Regula- basis of Article 19 of Regulation tion No 2772/1999 on Article 19 of Reg- No 820/97. Regulation No 2772/1999 lays ulation No 820/97, it is necessary first to down general rules for a compulsory label- examine the content of that provision. It is ling system by referring to the second then necessary to ask whether Regulation subparagraph of Article 12(1) of Regula- No 2772/1999 fulfils the requirements laid tion No 820/97. down in Article 19.

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As regards competence, Article 19(1) pro- vides that the Council is to have compe- tence, although the formulation 'take a 46. Even if the provisions which the Coun- decision' does not define the form of the act cil adopted by Regulation No 2772/1999 in question. As regards procedure, Arti- were classified as a compulsory labelling cle 19 provides that on the basis of a system, they do not constitute 'general Commission report provided for in Arti- rules' within the meaning of Article 19(1) cle 19(3) the Council is to take a decision of Regulation No 820/97. By such 'general acting by a qualified majority on a proposal rules' the Community legislature no doubt from the Commission. Article 19 also con- meant something different from the infor- tains a temporal requirement. The decision mation set out in Article 12 and the is to be taken before 1 January 2000. recourse of Member States to the possibility of imposing a compulsory system set out in Article 19. Instead, the Community legis- lature clearly intended to go beyond the labelling system already provided for in Regulation No 820/97 and to create addi- Regulation No 2772/1999 fulfils those pro- tional rules. Otherwise, the provision relat- cedural requirements. ing to 'general rules' would be superfluous.

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Contrary to the contention of the Commis- Regulation No 2772/1999 could have been sion, it is not, consequently, sufficient that based. legal provisions on labelling are laid down at all.

V — Second plea: infringement of the prerogatives of the Parliament 52. In the submission of the Council, essentially the two following objectives are pursued by Regulation No 2772/1999: 49. In connection with the second plea it is firstly, thereby to gain the time necessary to necessary to consider on which legal basis introduce an effective compulsory labelling

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system to be adopted by the co-decision the judgment in Case C-269/97 9 that procedure; and secondly to fulfil, as far as Article 152 EC was not the correct legal possible, the desire expressed by the Parlia- b a s i s for a d o p t i n g R e g u l a t i o n ment to limit the transitional period to No 2772/1999 and thus that that regula- eight months. In the light of those circum- tion was not to be adopted by the co- stances, the Council considers that the decision procedure. prerogatives of the Parliament have not been infringed.

56. As regards the judgment in Case C-267/97, the Parliament submits that it concerned the legal basis before the Treaty 53. The Council recalls that in the context of Amsterdam entered into force. In respect of the first reading the Parliament sought to of the period thereafter Article 152(4)(b) provide for a compulsory labelling system EC was undeniably the correct legal basis which laid down a number of requirements for a regulation such as Regulation relating to information even though the No 2772/1999. Parliament must have known that that information was not available and that this would have resulted in an almost complete ban on the marketing of beef. This would have been difficult to reconcile with the principle of proportionality and would have led to disputes with operators who might have claimed that the Community B — Appraisal had incurred non-contractual liability.

6 3 . M o r e specifically, R e g u l a t i o n No 2772/1999 firstly limits itself to a 60. It is therefore first necessary to consider reference to the provisions of Regulation which objective Regulation No 2772/1999 No 820/97 concerning labelling and, sec- pursues, that is to say whether or not it ondly, prolongs the validity of certain pursues objectives of agricultural policy or provisions of Regulation No 820/97 which health policy. are valid for a limited period only. As is clear from the second subparagraph of Article 1(1) of Regulation No 2772/1999, the Member States may continue to intro- duce or maintain their own compulsory labelling systems. The optional labelling 61. As is clear in particular from the system also remains in force. second, third and fourth recitals in its preamble, Regulation No 2772/1999 is intended to establish general rules for a compulsory labelling system. Therefore, in terms of objectives the rules concerned are 64. If no compulsory labelling system is rules such as those relating to the matters also thereby established but instead the addressed in Title II of Regulation existing system of Regulation No 820/97 is No 820/97, that is to say rules on the taken over, the provisions concerned do labelling of beef and beef products, and not indeed constitute provisions which have as rules such as those concerning the identifi- their direct objective the protection of cation and registration of bovine animals public health. under Title I. Consequently, the regulation could constitute a measure within the meaning of Article 152(4)(b) EC, that is

66. As is clear from the judgment in Case C-269/97, in accordance with the previous 69. Upon the entry into force of the Treaty legal situation, that is to say in accordance of Amsterdam the legal situation changed with the third subparagraph of Arti- in so far as 'health protection requirements' cle 129(1) of the EC Treaty, health protec- no longer form 'a constituent part of the tion requirements formed a constituent part Community's other policies', but instead 'a of the Community's other policies and high level of human health protection shall therefore had to be taken into account in be ensured in the definition and implemen- connection with the common agricultural tation of all Community policies and activ- policy. 11 Therefore, even if a regulation ities' in accordance with Article 152(1) EC. 'will have positive effects for the protection The upward revaluation of the health of public health', it has to be adopted on policy was effected as much by this 'ensur- the basis of Article 43 of the EC Treaty ing' as by the express inclusion of Com- (now Article 37 EC). 12 munity activities ('actions'). That revalua- tion also finds expression in the positioning of that provision at the beginning of the article. 14

67. However, in this connection it must be borne in mind that as regards the adoption of an act it is the legal situation at the time at which it was adopted which is decisive, a n d in t h e c a s e of R e g u l a t i o n No 2772/1999 that was that obtaining on 21 December 1999. 70. That aspect, in connection with the creation of the new legal basis — Arti- cle 152(4)(b) EC — underscores the inten- tion of the 'authors of the Treaties' to lay

increased stress on the provisions relating No 820/97 in no way alters the fact that to public health also so far as their nature recourse must be had not to the legal basis as a legal basis vis-à-vis Article 37 EC is which was appropriate at the time when concerned and to emphasise their indepen- Regulation No 820/97 was adopted but to dent character. 15 that which was appropriate at the time when the new act was adopted. That is because provisions such as those contained in Regulation No 820/97 may no longer be founded on the same legal basis after the entry into force of the Treaty of Amster- dam. 71. Although Article 152 EC provides, in the same way as Article 129 of the EC Treaty, the previous provision, that acts are to be adopted in accordance with the co- decision procedure, Article 152(4)(b) EC differs from the relevant previous provision in that under Article 152(4)(b) 'measures in 2. Article 37 EC, read in conjunction with the veterinary and phytosanitary fields Article 152(4)(b) EC which have as their direct objective the protection of public health' are to be adopted 'by way of derogation from Arti- cle 37'. This expresses the intention of the parties to the Treaty to limit the scope of Article 37 EC. 16 For the Parliament, Arti- 73. If it is not possible to regard the core of cle 152 EC is relevant in so far as such Regulation No 2772/1999 as having as its measures are, precisely, subject to the co- direct objective the protection of public decision procedure and not, as was pre- health, it is necessary to consider whether viously the case within the agricultural or not it should have been founded on a policy, to a mere consultation procedure. dual legal basis, that is to say on Article 37 In a deliberate departure from the case-law EC and Article 152(4)(b) EC. Even follow- of the Court, it is no longer the subject- ing the entry into force of the Treaty of matter of the act but rather the objective Amsterdam, the question arises as to whe- thereof which is to be decisive. 17 ther or not a dual legal basis was necessary. The n a r r o w terms in which Arti- cle 152(4)(b) EC is formulated suggests that Article 37 EC retains a broad scope.

76. Where health protection forms only one of several components or objectives of an act, Article 37 EC remains one legal basis among others. This follows from the 78. However, if it is considered, contrary to fact that Article 152(4)(b) EC is aimed at the view taken here, that Regulation measures which 'have as their direct objec- No 2772/1999 also pursues two objectives tive the protection of public health.' 22 and discloses two components, that is to say the protection of human health and objectives of agricultural policy in the beef sector, it is also necessary, according to the case-law of the Court, 23 to consider whe- ther the legislative procedures laid down in the two legal bases, that is to say Article 37 EC and Article 152 EC, are compatible. 77. However, as has been shown above, by This requirement is fulfilled because the co- taking over only parts of Regulation decision procedure prescribed in Arti- No 820/97, Regulation No 2772/1999 pur- cle 251 EC for acts based on Arti- cle 152(4)(b) EC is compatible with the merely consultative procedure provided for 19 — Joined Cases C-164/97 and C-165/97 Parliament v Coun- cil [1999] ECR I-1139, paragraph 14; Case 165/87 in respect of acts based on Article 37 EC in Commission v Council [1988] ECR 5545, paragraphs 6 to 13. so far as, as the procedure which provides 20 — Joined Cases C-164/97 and C-165/97, cited in footnote 19, for more extensive rights of the Parliament, paragraph 14; Case C-70/88 Parliament v Council [1991] ECR I-4529, paragraph 17; and Case C-271/94 Parliament v Council [1996] ECR I-1689, paragraphs 32 and 3 3 . 21 — Case C-42/97, cited in footnote 18, paragraph 63. 23 — Joined Cases C-164/97 and C-165/97, cited in footnote 19, 22 — Hix, 'Artikel 37, paragraph 14'; in: Schwarz (publisher), aragraph 14; Case C-300/89 Commission v Council EU-Kommentar, 2000. P 19911 ECR I-2867, paragraphs 17 to 2 1 .

82. The Parliament submits that the Coun- cil failed on two counts to comply with the obligations imposed by Regulation No 820/97. Firstly, it changed the content 3. Conclusion thereof by prolonging the optional beef labelling system and postponing the intro- duction of the compulsory labelling system without having recourse to the co-decision procedure, as required by the Treaty. Sec- ondly, the Council failed to comply with the obligation laid down in Article 19 of Regulation No 820/97, namely to adopt general rules for a compulsory beef label- 80. Since the Council based Regulation ling system before 1 January 2000. No 2772/1999 on Article 19 of Regulation No 820/97 and not on Article 152(4)(b) EC, it excluded the participation of the Parliament through the co-decision proce- dure and thereby infringed the prerogatives of the Parliament. Even if it is considered that recourse should have been had to a 83. The Parliament points out that in d u a l legal b a s i s for R e g u l a t i o n Article 19(2) of Regulation No 820/97 the No 2772/1999, that is to say Arti- Council reserved the right to reduce the cle 152(4)(b) EC and Article 37 EC, the content of the compulsory labelling system. Council infringed the prerogatives of the It states that it was able to do so on the Parliament. basis of reports from the Commission.

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86. The Parliament further recalls that the Council itself had laid down the date of 1 January 2000. The Parliament fails to see how the difficulties involved in applying Article 19 of Regulation No 820/97 could 89. As regards the failure of the Member justify the adoption of Regulation States to act in respect of the identification No 2772/1999. and registration of bovine animals, the Parliament claims to have discovered an inconsistency on the part of the Commis- sion. In spite of the various failings on the part of the Member States it was possible, in the submission of the Parliament, at least to adopt certain rules concerning a com- 87. The Parliament acknowledges that it is pulsory labelling system in the light of not possible to expect a co-decision proce- Article 19(3) of Regulation No 820/97.

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90. The Council submits that it has not on how the Commission exercises its role infringed Regulation No 820/97 but as guardian of the Treaties must be instead exploited a mechanism for which rejected. The Council can proceed only on Article 19 of the regulation itself makes the basis of the economic and legal situa- provision and whose lawfulness per se is tion which actually exists and not a 'hypo- also not disputed by the Parliament. thetical situation'.

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States to provide for a labelling system does Parliament seeks the annulment of an act of not constitute an infringement of proce- the Council and not a declaration of failure dural provisions. That is because provisions to act on the part of the Council, this aspect on labelling are laid down which are need not be examined further. binding on operators.

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VIII— Costs ordered to pay the costs. Since the Council is unsuccessful in its submissions, it must be ordered to pay the costs. As interveners, the Kingdom of Spain and the Commission 108. Under Article 69(2) of the Rules of must bear their own costs pursuant to Procedure, the unsuccessful party is to be Article 69(4) of the Rules of Procedure.

IX — Conclusion

109. In the light of the foregoing I therefore propose that the Court should:

(1) annul Council Regulation (EC) N o 2772/1999 of 21 December 1999 providing for general rules for a compulsory beef labelling system;