C-241/01

OPINION OF MR MISCHO — CASE C-241/01

OPINION OF ADVOCATE GENERAL MISCHO delivered on 2 July 2002 1

1. By deciding, in the context of managing bovine products under the date-based the health crisis unleashed by the outbreak export scheme may commence by virtue of bovine spongiform encephalopathy of Article 6(5) of Decision 98/256. 4 ('BSE'), to apply in its territory precaution- ary measures going beyond what the Com- munity authorities judged necessary, the French Government placed itself in the position of having to face simultaneously challenges in various forums. 3. Although the Court had not yet decided on that action for failure to fulfil obli- gations (Case C-1/00), on 25 June 2000 the National Farmers' Union, a professional body representing the farmers of England and Wales, brought before the Conseil d'État (Council of State) (France) an action for annulment of the French Government's implicit rejection of its applications for the ban to be lifted. That court found that the legality of the decisions which it was requested to annul was necessarily con- ditional on Decisions 98/692 and 1999/514 2. Thus, the Commission brought an action being valid and thus decided to use the for failure to fulfil obligations against the procedure prescribed in Article 234 EC in French Republic because of its refusal to order to refer questions to the Court on end the ban on British beef as provided by that subject. In consequence, by decision of Council Decision 98/256/EC of 16 March 28 May 2001 registered under number 1998 concerning emergency measures to C-241/01, it referred three questions to protect against bovine spongiform encep- the Court in order to ascertain: halopathy, amending Decision 94/474/EC and repealing Decision 96/239/EC, 2 as amended by Commission Decision 98/692/EC of 25 November 1998, 3 and Commission Decision 1999/514/EC of 23 July 1999 setting the date on which dispatch from the United Kingdom of '(1) whether, having regard to the legis- lative nature of Commission Decision 1 — Original language: French. 2 — O J 1998 L 113, p. 32. 3 — OJ 1998 L 328, p. 28. 4 — OJ 1999 L 195, p. 42.

(2) whether, at the date of the decisions taken by the French authorities, the abovementioned Commission decisions — Council Decision 98/256/EC of were valid, having regard to the pre- 16 March 1998 concerning emerg- cautionary principle laid down in ency measures to protect against Article 174 of the Treaty establishing bovine spongiform encephalo- the European Community; p a t h y , a m e n d i n g Decision 94/474/EC and repealing Decision 96/23 9/EC, in the version resulting from Commission Decision 98/692/EC of 25 November 1998, in particular with Article 6 and (3) whether a Member State may draw Annex III, and from the provisions of Article 36 of the EC Treaty (now, after amendment, Article 30 EC) the power to prohibit imports of agricultural products and live animals, inasmuch as Directives 89/662/EEC and 90/425/EEC cannot be regarded as harmonising the meas- ures needed in order to attain the — Commission Decision specific objective of protecting the 1999/514/EC of 23 July 1999 set- health and life of humans provided ting the date on which dispatch for by that article.' from the United Kingdom of bov- ine products under the date-based export scheme may commence by virtue of Article 6(5) of Decision 9 8 / 2 5 6 , in particular with Article 1,

4. Meanwhile, on 13 December 2001, the Court delivered its judgment in Case 5 — Case C-1/00 Commission v france 12001) ECR 1-9989.

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constitute a serious hazard to animals or to equate, it may, in collaboration with the human health. The Member State of origin Member State concerned and pending the shall immediately implement the control or meeting of the Standing Veterinary Com- precautionary measures provided for in mittee, take interim protective measures Community rules, in particular the deter- with regard to products from the region mination of the buffer zones provided for in affected by the epizootic disease or from a those rules, or adopt any other measure given establishment. These measures shall which it deems appropriate. The Member be submitted to the Standing Veterinary State of destination or transit which, in the Committee as soon as possible to be con- course of a check referred to in Article 5, firmed, amended or cancelled in accord- has established the existence of one of the ance with the procedure laid down in diseases or causes referred to in the first Article 17. subparagraph may, if necessary, take the precautionary measures provided for in Community rules. Pending the measures to be taken in accordance with paragraph 4, the Member State of destination may, on serious public or animal-health grounds, 4. The Commission shall in all cases review take interim protective measures with the situation in the Standing Veterinary regard to the establishments concerned or, Committee at the earliest opportunity. It in the case of an epizootic disease, with shall adopt the necessary measures for the regard to the area of protection provided products referred to in Article 1 and, if the for in Community rules. The measures situation so requires, for the originating taken by Member States shall be notified products or products derived from those to the Commission and to the other products in accordance with the procedure Member States without delay. laid down in Article 17. The Commission shall monitor the situation and, by the same procedure, shall amend or repeal the decisions taken, depending on how the situation develops.

'A bovine animal is DBES-eligible if it has been born and reared in the United King- (d) the dam of the animal has not devel- dom and at the time of slaughter the oped BSE and is not suspected of following conditions are shown to have having contracted BSE.' been met:

11. The traceability requirements are set (a) the animal has been clearly identifiable out in point 7 of Annex III, according to throughout its life, enabling it to be which: 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 official computerised identification 'Meat must be traceable back to the DBES- and tracing system; the identity of its eligible animal or, after cutting, to the dam is known; animals cut in the same batch, by means of an official tracing system until the time of slaughter. After slaughter, labels must be capable of tracing fresh meat and products referred to in Article 6(l)(b) and (c) back to the eligible animal to enable the consign- ment concerned to be recalled. Food for (b) the animal is more than six months but domestic carnivores must be traceable by less than 30 months of age, determined means of accompanying documents and by reference to an official computer records.'

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12. Furthermore, the United Kingdom is 14. The Commission used that power in required, under point 9 of Annex III, to adopting Decision 1999/514, which sets the 'have detailed protocols in place covering: date for the resumption of dispatches under the DBES at 1 August 1999.

16. When the Commission, concerned by this lack of action, reminded it about its obligations, the French Government sent the Commission an opinion of the Agence (d) all labelling and certification require- française de sécurité sanitaire des aliments ments after slaughter to the point of (French Food Safety Agency, 'the AFSSA'), sale.' according to which, having regard to current scientific knowledge and the epi- demiological data then available, the risk of the United Kingdom exporting infected beef and veal could not be regarded as overcome. The French Government relied on that opinion to issue a firm refusal to lift 13. It was for the Commission, after having the ban. Since that refusal was never verified the application of all the provisions subsequently withdrawn, in spite of the of Decision 98/256, as amended, on the hopes of a settlement raised by the agree- basis of Community inspections and after ment between the French and United King- having informed the Member States, to set the date on which dispatch of the products covered by the DBES could commence. 8 — JORI' of 2 December 1998, p. 18169.

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dom Governments and the Commission of 20. The fact that the Court has, in the a draft protocol of understanding during terms set out above, found that the French the first two weeks of November, the Republic failed to fulfil its obligations does Commission initiated and carried through not, however, make it possible to assert the infringement procedure which cul- that all the arguments of the French minated in the abovementioned judgment Government have been held to be in Commission v France. unfounded, so that it would be sufficient for the purposes of my Opinion in the present case for me to refer to the above- mentioned judgment in Commission v France.

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not challenged by means of an action for nature' and, second, the grounds of invalid- annulment by the Member State to which ity put forward relate to 'significant they were addressed is, of itself, not of great changes in the factual or legal circum- assistance to us in the present case. stances occurring after the expiry of [the] time-limit [for challenging them]'.

23. In fact, the refusal to the French Government arose in the context of infringement proceedings, whereas the issue facing the Conseil d'État, and on 26. I am, however, of the opinion that the which it has referred a question to the question of principle is unavoidable and Court, is raised in a completely different that I must start by analysing it at the risk, context. of course, if I reach a negative answer, of afterwards considering whether exceptions may be envisaged in respect of particular cases, such as that identified by the Conseil d'État.

The first question

28. On the basis of the fact that, under the concerned to counter an argument which fourth paragraph of Article 189 of the EC might be raised against the coherence of the Treaty (now the fourth paragraph of solution thus adopted in the light of the Article 249 EC), a decision addressed by system of remedies overall, explained that: the Commission to a Member State is binding in its entirety upon that State, the Court stated that, '[i]n so far as the Member State to [which] it is addressed considers that it is unable to comply with that decision because it is legally '[a]lthough it is true that the validity of a unfounded, it may contest the legality Community measure may be called in thereof by having recourse to the legal question by means of the procedure for remedies available to it under Article 173 obtaining a preliminary ruling referred to in of the Treaty on the conditions laid down Article 177 of the Treaty, in spite of the by that provision'. expiry of the period laid down in the third paragraph of Article 173, such a pro- cedure, which is laid down in respect of all measures adopted by the institutions and corresponds solely to the requirements of the national courts, is nevertheless sub- 29. Those conditions include the time- ject to objectives and rules different from limits within which applications must be those which govern the applications lodged which 'are intended to safeguard referred to in Article 173 of the Treaty, legal certainty by preventing Community and cannot justify a derogation from the measures which involve legal effects from principle of the time-barring of applications being called in question indefinitely'. If as a result of the expiry of the periods those time-limits expire without the within which proceedings must be brought, Member State concerned bringing an action without thereby depriving Article 173 of its for annulment, that State is prohibited once legal significance.' and for all from challenging the validity of the decision by means of a plea of illegality, under Article 184 of the EC Treaty (now Article 241 EC), raised against the action for failure to fulfil obligations brought by the Commission. 31. The ambiguity attaching to what seems more like an obiter dictum than a clearly imposed limit to the solution adopted by the Court in the particular case was dis- pelled when, in TWD Textilwerke Deggen- dorf, 10 the Court was directly faced with 30. Not to impose that prohibition would the issue of the validity of a decision, be, according to the Court, 'impossible to against which an action for annulment had reconcile with the principles governing the not been brought in due time, being called legal remedies established by the Treaty in question in a reference for a preliminary and would jeopardise the stability of that ruling. system and the principle of legal certainty upon which it is based'. Intellectual honesty dictates that I make it clear that, in para- 10 —Case C-188/92 TWD Textiltverke Deggendorf [1994] graph 24 of that judgment, the Court, ECR I-833.

33. In fact, neither the German Govern- 35. The Court's answer was of exemplary ment nor the undertaking concerned had clarity. Having recalled that a decision taken that opportunity. When the German which has not been challenged by the authorities had requested the undertaking addressee within the time-limit laid down to reimburse the amounts unlawfully by Article 173 of the Treaty becomes received, that undertaking had brought an definitive as against him and that the action before the national courts, claiming undertaking in receipt of individual aid that the Commission decision was unlaw- which is the subject-matter of a Commis- ful. The dispute came before the Court by sion decision has the right to bring an means of a reference for a preliminary action for annulment under the second ruling, by which the national court, most paragraph of Article 173 of the Treaty judiciously, did not raise only the question even if the decision is addressed to a of the validity of the decision in question, Member State, the Court held that it was but also the question whether that validity appropriate to apply to that undertaking was still open to discussion in the proceed- the case-law arising out of the ruling in ings before it. Commission v Belgium, cited above, in respect of a Member State's pleading the illegality of such a decision in the context of proceedings for non-compliance.

34. On that point, its question was worded as follows: 36. In that regard, it set out the following considerations:

'Is a national court bound by a decision of the EEC Commission adopted pursuant to Article 93(2) of the [EC] Treaty when '16 That case-law, according to which it is hearing an appeal regarding the implemen- impossible for a Member State which is

17 It follows from the same requirements of legal certainty that it is not possible for a recipient of aid, forming the 38. It is difficult to imagine, if only in the subject-matter of a Commission light of the principle of equality of arms in decision adopted on the basis of judicial proceedings, that what, before a Article 93 of the Treaty, who could national court, may not be used as a ground have challenged that decision and who of defence by an individual may be so used allowed the mandatory time-limit laid by a government. down in this regard by the third para- graph of Article 173 of the Treaty to expire, to call in question the lawful- ness of that decision before the national courts in an action brought against the measures taken by the national auth- orities for implementing that decision. 39. The requirements of the principle of legal certainty and those flowing from the coherent organisation of the Community system of remedies cannot vary according to whether it is an individual or a Member State which, although it had the oppor- 18 To accept that in such circumstances tunity to bring an action for annulment the person concerned could challenge pursuant to Article 173 of the Treaty, the implementation of the decision in failed to do so. proceedings before the national court on the ground that the decision was unlawful would in effect enable the person concerned to overcome the definitive nature which the decision assumes as against that person once the time-limit for bringing an action has 40. On the contrary, the fact that the expired.' challenge is prohibited as against the indi-

vidual on the sole ground that he would very least, to convince the Court that it have been permitted to bring an action for should not be applied in the present case. annulment against the decision brought to his attention, although it was not addressed to him, must necessarily result in the application of the same prohibition as against the Member State to which that decision was specifically addressed. 43. The first argument which it puts for- ward to that effect is based on the fact that the grounds of the invalidity of Decisions 98/692 and 1999/514 became apparent only after the expiry of the time-limit for bringing an action for annulment, so that the Government cannot be reproached for having allowed that time-limit to pass without reacting and that it should there- 41. The maxim vigilantibus non dormienti- fore be accepted that, exceptionally, the bus subveniunt jura, which Advocate Gen- Government cannot be time-barred as a eral Jacobs recalled in his Opinion in TWD result of having failed to bring an action for Textilwerke Deggendorf, is not applicable annulment. solely to individuals, but should clearly be applied to all persons subject to the Com- munity legal order, just as Mr Jacobs' comment to the effect that the limitation period laid down in Article 173 of the Treaty 'would be deprived of all sense and 44. According to its arguments, '...that purpose if a person who undoubtedly has exception must be restricted to new factors locus standi to challenge a decision under of which the Member State was not able to Article 173 could simply ignore the be aware in the context of its own legal and decision and contest its validity in sub- territorial competences, like those resulting sequent proceedings brought to enforce the from inquiries and checks which would not decision' is not limited to challenges to be revealed by other Member States or by validity from individuals. the Commission in the context of its own competences. In order to be taken into account, those new factors must be such as to cast doubt, in law or in fact, on the purpose and effectiveness of the operative part of the act whose validity is at issue. They must therefore be of a significant nature.' 42. That rule in TWD Textilwerke Deg- gendorf, subsequently confirmed by Wiljo, 11 is not disputed by the French Government. However, the Government does attempt to limit its scope or, at the 45. That is specifically true, unsurprisingly, of the factors casting doubt on the reliabil- ity of the DBES which came to the notice of 11 — Case C-178/95 W1//0 |1997| ECR 1-585. the French Government.

48. Let me point out, first of all, that, in my view, although the Court used the expression 'even if', it was to indicate that

51. What Mr Jacobs asserts, and with 12 — Case C-6/99 Greenpeace France and Others [2000] ECR I-1651. which I am in perfect agreement, is that, 13 — On that subject, see below my arguments in respect of the in the legal field, nothing is unchangeable third question. and that, in particular, what is justified 14 — Joined Cases C-248/95 and C-249/95 SAM Schiffahrt and Stapf [1997] ECR 1-4475. today will perhaps no longer be so tomor-

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row, with the result that the duty of every 1999/514 in the light of the new factors legislature is, first, to check, if not con- which it believed it had discovered and stantly at least periodically, that the rules either to challenge any refusal by means of which it has imposed still meet the needs of an action for annulment or, if there were no society and, second, to amend or even reply to its request, to bring an action for repeal the rules which have ceased to have failure to act against the Commission. any justification and are thus no longer appropriate in the new context in which they must produce their effects.

55. As we know, but as we find difficult to understand, the Government did not take that course, which would have enabled it to submit before the Court evidence which it 52. Between that statement and the revival believes is condemnatory of the DBES in of a right to bring an action which was not the light of the requirements of the pre- exercised when the rule was made, there is cautionary principle. a gap, if not a chasm, which appears unbridgeable to anyone who is concerned about legal certainty.

according to which the nature of a Com- ment as to whether, in the light of the rule munity act is not apparent from its form in TWD Textilwerke Deggendorf, the but from its scope, it analyses the decisions applicant undertaking was able to chal- at issue, which were addressed to all the lenge the validity of certain provisions of a Member States, as putting in place actual regulation before the national courts, that: legislation on the movement of certain bovine products from the United Kingdom, in order to reach the conclusion that, as legislative acts, those decisions fall within the scope of Article 184 of the Treaty and may therefore have the plea of illegality raised against them. 'It is sufficient, on that point, to note that, since the contested provisions are contained in a Community regulation and are addressed in general terms to categories of persons defined in the abstract and to situations determined objectively, it is not obvious that an action by the applicants challenging that regulation under 58. However, let me state immediately that Article 173 of the Treaty would have been that argument cannot succeed in the light admissible. of the most recent developments in the case-law of the Court. Although, as from TWD Textilwerke Deggendorf, it appeared that the element to be taken into account in determining whether the validity of a Community act could be challenged before the national courts was not the nature of The reference to TWD (Textilwerke Deg- the act but the presence or absence of an gendorf), which concerned a company opportunity for the person concerned to which was undoubtedly entitled, and which challenge the validity of that act by means had been informed that it was entitled, to of an action for annulment, the subsequent bring an action for annulment of the case-law has not only sanctioned that Community act whose validity it was indi- access to the courts via an action for rectly challenging before a national court, annulment as a sole criterion, but has is therefore irrelevant' (paragraphs 15 and drawn from it the strictest inferences. 16).

an undertaking may raise before the 62. In that case, a question on the validity national court the invalidity of provisions of an anti-dumping regulation was referred in a directive which it did not challenge by to the Court by a national court before means of an action for annulment before which an importing undertaking was claim- the Community judicature, that '[i]t should ing the reimbursement of duties which it be noted that the judgment in TWD had had to pay, on the ground that that Textilwerke Deggendorf concerned a com- regulation had been annulled as the result pany which, unquestionably, was entitled of an action brought by other operators. and had been informed that it was entitled to bring an action for annulment of the Community act whose validity it was challenging by a plea of illegality before a national court. On this point, in the case of Community directives whose contested 63. After having recalled that that annul- provisions are addressed in general terms ment could affect only the duties payable to Member States and not to natural or on products imported by those operators legal persons, it is not obvious that an and therefore did not apply to Nachi action by Eurotunnel challenging Europe, the Court refused to examine Articles 28 and 28k under Article 173 of whether the regulation should also be held the Treaty would have been admissible to be invalid vis-à-vis Nachi Europe, since (see, with respect to a regulation, Case that undertaking had not sought the annul- C-241/95 R v Intervention Board for ment of the regulation although, as an Agricultural Produce, ex parte Accrington importer associated with the exporter, Beef and Others [1996] 1-6699, paragraph whose resale prices for the products in 15)' (paragraphs 28 and 29). By con- question had formed the basis of the sequence, the Court agreed to examine the constructed export price applied by the complaints raised before it, by means of a regulation in order to establish the dump- reference for a preliminary ruling, against ing margins operated by the exporter, it the validity of provisions in a directive would undoubtedly have had standing to which were not of direct concern, within do so. the meaning of Article 173 of the Treaty, to the undertaking which was challenging them.

65. It is thus indeed the impossibility of The Court has also pointed out that this using the action for annulment to challenge general principle confers on any party to the Community measure, and that alone, proceedings the right to challenge, for the which determines the availability of the purpose of obtaining the annulment of a right to contest the validity of that act decision of direct and individual concern to before a national court, the form and the that party, the validity of previous acts of nature of the measure being immaterial. the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled under Article 230 EC to bring a direct action challenging those acts by which it was thus affected without having been in a position 66. In the present case, the French Govern- to ask that they be declared void (Case ment clearly had standing to challenge 92/78 Simmenthal v Commission [1979] Decisions 98/692 and 1999/514, so that it ECR 777, paragraph 39, and TWD Tex- is prohibited on the ground that it is tilwerke Deggendorf, paragraph 23). time-barred from contesting their validity before the Conseil d'État by the case-law developed as from TWD Textilwerke Deg- gendorf, irrespective of the legislative effect which those decisions might have. However, this general principle, which has the effect of ensuring that every person has or will have had the opportunity to chal- lenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as The second question against an individual in regard to whom it must be considered to be an individual decision and who could undoubtedly have sought its annulment under Article 230 EC, a fact which prevents that individual from 67. Since I have thus established that the pleading the illegality of that regulation Conseil d'État's first question should

69. First, by requesting the Court to assess 72. Since observance of that principle the validity of the Community decisions at forms part of Community action, there issue 'at the date of the decisions taken by can be no question of the Member States' the French authorities' rejecting the appli- relying on it in order to obstruct at will the cations from the National Farmers' Union, application of measures adopted in the the Conseil d'État not only feigns ignorance context of that action. of the fact that the validity of an act must be assessed by reference to the date on which it was adopted, but seems to adopt an approach according to which the person who refuses to comply with such an act could, through the choice of the date on which he expresses his refusal, choose the 73. Third, judicial review of the observance time, possibly far removed from that at of the precautionary principle must be which the act was adopted, at which he exercised with caution. wishes the appropriateness of the measures taken to be assessed.

74. Since that principle is to be applied in situations of great uncertainty, we cannot 70. This, let us be clear, seems to me expect the courts to impose their own unacceptable from every point of view, convictions, the possible basis of which is since it shows total disdain for legal difficult to discern, moreover, in the realm certainty and opens the way to a form of of scientific problems.

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75. It is obviously not a question of remov- 78. Lastly, however the precautionary prin- ing the application of the precautionary ciple is expressed, it is not disputed that the principle from the sphere of judicial review, application of that principle does not have but merely of recognising that the courts the effect of avoiding the application of can, in this field, only exercise minimal other principles which are just as funda- review since the political authorities must mental. That is particularly true of the be granted a broad discretion. principle of proportionality, which can be said to be inseparable from the precaution- ary principle, but also of the principle of non-discrimination.

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which seeks to ascertain whether 'a Tedeschi 19 and Commission v Italy, 20 in Member State may draw from the provi- which it was held that: sions of Article 36 of the EC Treaty (now, after amendment, Article 30 EC) the power to prohibit imports of agricultural products and live animals, inasmuch as Directives 89/662/EEC and 90/425/EEC cannot be regarded as harmonising the measures 'where Community directives provide for needed in order to attain the specific the harmonisation of the measures necess- objective of protecting the health and life ary to ensure the protection of animal and of humans provided for by that article'. human health and establish Community procedures to check that they are observed, recourse to Article 36 is no longer justified and the appropriate checks must be carried out and the measures of protection adopted within the framework outlined by the harmonising directive'.

81. As the National Farmers' Union, the United Kingdom Government and the Commission propose to the Court, refer- 83. It is therefore necessary to determine ence should first be made, in this respect, to whether, having regard to the legislation the case-law of the Court on the possibility applicable to the fight against BSE, we are of applying Article 30 EC when harmon- in that situation. ising measures have been adopted.

The French Government points out that Directives 89/662 and 90/425 cannot, as such, be interpreted as pursuing an objective of combating 85. On that matter, I would point out, first BSE and its h u m a n v a r i a n t , of all, that it is beyond question that Creutzfeldt-Jakob disease ('CJD'). Directives 89/662 and 90/425, cited in the Moreover, the measures taken against third question referred by the Conseil the spread of BSE and CJD in the d'État, do not in any way achieve harmon- context of the protective clauses of isation of the laws and regulations of the those two directives did not constitute Member States in respect of the protection full harmonisation of preventive meas- of humans against BSE. ures (Opinion of Advocate General Alber in Eurostock 22 and my Opinion in Commission v France 23 ). Full har- monisation was achieved only by the a d o p t i o n of R e g u l a t i o n (EC) No 999/2001 of the European Parlia- ment and of the Council of 22 May 86. As the Court recalled in Eurostock, 2001 laying down rules for the pre- 'Directive 89/662, which was adopted with vention, control and eradication of a view to the establishment of the internal certain transmissible spongiform market, is designed to eliminate veterinary encephalopathies, 2 4which did not checks at the Community's internal fron- enter into force until 1 January 2001; tiers by concentrating on checks to be carried out at the place of dispatch and organising those that can be carried out at 21 — OJ 1990 L 224, p. 29. the place of destination. Thus, Article 1 of 22 — Case C-477/98 Eurostock [2000] ECR 1-10695, points 58 Directive 89/662 provides that Member to 61 of the Opinion. 23 — Cited above, points 168 to 170. States are to ensure that the veterinary 24 — OJ 2001 L 147, p. 1. checks to be carried out on products of

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Member States, the competent Community ation of those products by way of interim institution has laid down in detail the protective measures within the meaning of precautions and control measures to be the fourth subparagraph of Article 9(1) of applied to herds of cows, in slaughter- Directive 89/662 and it took the view that houses, in cutting plants and during trans- it was not necessary to answer the question portation. on the applicability of Article 30 EC.

96. That said, the fact that Article 30 EC is no longer applicable in this area does not in 94. It is thus permissible to conclude that any way deprive the other Member States the Community legislature has ‘occupied of the power to take interim protective the terrain' and that there is no longer measures if there is a problem. room for protective measures pursuant to Article 30 EC.

97. In that regard, different situations may arise. 26 Thus, in a certain number of cases, the Member State may use Article 9(4).

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98. First, as the United Kingdom Govern- 102. It is true that that procedure is ment and the Commission have accepted in different from that under Article 30 EC in the course of the present proceedings, even the sense that, if a Member State took a where the Commission has taken measures protective measure on the basis of the latter pursuant to Article 9(4) of Directive provision, it would be for the Commission 89/662, a Member State may take tempor- to bring before the Court any action for ary protective measures, provided that failure to fulfil obligations. However, in those measures are justified by factors both cases, the protective measures may be which the Commission had not been able introduced on the initiative of the Member to take into account previously. State and it is, in the final analysis, for the Court to judge their merits.

99. In my opinion, that might be true, for example, if it were to turn out that BSE could be spread by means other than those so far accepted. 103. Second, in Eurostock, the Court accepted that a Member State can prohibit the importation of material presenting risks as regards BSE, by way of an interim protective measure within the meaning of the fourth subparagraph of Article 9(1) of Directive 89/662, where the Commission 100. In that case, the Member State must, has adopted a decision pursuant to however, notify those measures to the Article 9(4) of that directive, but where Commission and to the other Member the date on which the measures laid down States without delay (fourth subparagraph by that decision are to become applicable of Article 9(1)). has been postponed.

105. That is confirmed by Commission v Decision 98/256 in its original version and France, cited above. In that judgment, the the associated right to refuse imports which Court in fact noted that there were dif- flowed from it for the French Republic ficulties in interpreting and consequently in which remained applicable. implementing Decision 98/256, as amended, as regards the traceability requirements imposed on all the Member States, which were neither clear nor precise. Those difficulties were clarified by the protocol of understanding in question in that case and the Court took the view that the French Republic had to have a reason- able period for implementing Decisions 98/256, as amended, and 1999/514, 'as 108. The same would be true, in the second interpreted and clarified by the protocol of place, if it turned out that the exporting understanding'. Member State did not apply the DBES with sufficient rigour and that meat not com- plying with that scheme reached the border of the other Member States. In that case, those States could, similarly, consider that it is still the Community protective meas- ure, that is the ban on dispatching products not complying with the DBES, which applies.

106. The Court accordingly considered that the infringement consisting of a failure to implement those decisions was proved only from expiry of the period allowed to the French Republic for complying with the reasoned opinion, that is to say after 30 December 1999.

— the French Republic was not able to invoke Article 30 EC in order to ban imports of beef and veal or bovine products from the United Kingdom which satisfied the requirements imposed by Council Decision 98/256/EC of 16 March 1998 concerning emergency measures to protect against bovine spongiform encephalopathy, amending Decision 94/474/EC and repealing Decision 96/239/EC, as amended by Commission Decision 98/692/EC of 25 November 1998, and Commission Decision 1999/514/EC of 23 July 1999 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 Decision 98/256.

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