C-276/01

OPINION OF MRS STIX-HACKL — CASE C-276/01

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 22 October 2002 1

I — Introductory remarks I I — Relevant legislation

A — Community law

2. Article 6(1) of the directive provides, inter alia:

' 1 . The following shall be subject to inspec- tion:

6. Paragraph 17(1)(2)(b) of the LMBG 2. The analyses shall be carried out by states: official laboratories. Member States may also empower other laboratories to carry out these analyses.'

'It is prohibited to place on the market in the course of business, without sufficiently precise labelling, foodstuffs the composi- tion of which docs not correspond to accepted standards, thus diminishing their value to a not inconsiderable degree, in 4. Article 12(1) of the directive provides: particular their nutritional value and the level of consumer satisfaction they offer'.

7. Paragraph 52(1 )(9) of the LMBG states:

' 1 . Member States shall take the measures necessary to ensure that natural and legal persons concerned by the inspection have a right of appeal against measures taken by the competent authority for the purpose of 'A custodial sentence of up to one year or a inspection.' fine shall be imposed on any person who,

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III — Facts and main proceedings known whether the individual retail traders informed Mr Steffensen or the company that samples had been taken. Nor has it been possible to clarify whether the sample results were in each case notified in suffi- 10. The company Böklunder Plumrose cient time to enable Mr Steffensen or G m b H & Co. KG manufactures small Böklunder Plumrose GmbH & Co. KG to Bockwurst sausages, which are sold in apply for a second opinion. retail outlets in glass jars with metal lids. Mr Steffensen, the person subject to inspec- tion in the main proceedings, is responsible for production supervision.

11. Over the past number of years public 14. By a decision of 13 September 2000 authorities have on various occasions taken imposing a monetary fine, the fines office from retail outlets samples of products of the Schleswig-Flensburg local authority manufactured by Böklunder Plumrose imposed on Mr Steffensen a fine in the GmbH & Co. KG. The products in ques- amount of DEM 500. He is accused of tion were, in each case, small Bockwurst infringing Paragraphs 17(I)(2)(b), 52(I)(9) sausages in glass jars with metal lids. and 53(1) of the LMBG. An appeal was lodged against that decision in due and proper form and within the specified time- limit.

IV — Questions referred

V — Question 1

17. Taking the view that that question involved the interpretation of Community law, the Amtsgericht Schleswig decided, on 5 July 2 0 0 1 , to refer the following ques- tions to the Court of Justice for a pre- A — Submissions of the parties liminary ruling under Article 234 EC:

18. The German Government takes the view that, although Article 7(1) of the 1. Is Article 7(1) of Council Directive directive is to be understood as meaning 89/397/EEC of 14 June 1989 on the that the person subject to inspection should official control of foodstuffs to be be entitled to an unconditional right to construed as conferring on the manu- choose whether or not to seek a second facturer of a product a directly appli- opinion, that provision does not establish a cable right to apply for a second directly applicable right to do so. Directly opinion in the case where public auth- applicable rights can arise only in the case orities have taken from a retail outlet a of non-existent or defective transposition of sample of the manufacturer's product the directive.

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20. Consequently, it contends, the manu- facturer's right to be able to apply for a second opinion follows not from the direct applicability of the directive but from the LMBG as interpreted in accordance with the directive. 23. The Danish Government submits that the term 'those subject to inspection' refers exclusively to those undertakings from which samples are actually taken. In its view, it follows from the wording and the context of the second subparagraph of 21. The Italian Government submits that Article 7( 1 ) of the directive that it is only the analysis referred to in Article 7( 1 ) of the to these undertakings, and not to those at directive serves to establish infringements previous stages in the marketing chain, that of Community law and that the adversarial Member States are to afford the oppor- nature of the proceedings and the right to a tunity to apply for a second opinion. An fair hearing of the person subject to inspec- inspected undertaking is free to inform the tion are therefore to be safeguarded. More relevant operators at previous stages in the specifically, therefore, either the taking of marketing chain about the inspection meas- samples itself must be carried out in the ures taken and to send any samples to the presence of the person subject to inspection manufacturers or to subject the samples to or that person must actually be given the a second opinion together with the manu- opportunity to apply for a second opinion. facturers or at the manufacturers' request. Although the rules governing adversarial Moreover, legal certainty for the undertak- proceedings are at the discretion of the ings responsible for the infringement of Member States, the protection of the rights legislation on foodstuffs is also taken into of those involved must in any event be account by the right of appeal under guaranteed, which is not the case where the Article 12 of the directive.

24. With regard to the 'necessary steps', the Article 7(1) of the directive is an uncon- Danish Government contends, in the event ditional and sufficiently clear provision that operators at previous stages in the which, by way of exception, is capable of marketing chain are also to be regarded as establishing a subjective right accruing to being among 'those subject to inspection', individuals from a directive, although the that the directive does not impose an wording of that provision removes any obligation on the authorities to inform doubts in this regard. those operators that samples are being t a k e n . In its v i e w , t h e s e c o n d subparagraph of Article 7(1) is not suffi- ciently clear, precise and unconditional to support the inference of such a right (to information) on the part of manufacturers. 27. It goes on to state that where, as in the After all, the fact that the authorities leave present case, so much time passes between behind a second sample with the retailer is the taking of a sample by the inspection sufficient to afford operators at previous authorities and the imposition of a fine on stages in the marketing chain the oppor- the basis of the sample that the person tunity to apply for a second opinion. subject to inspection cannot exercise his right to a second opinion, the authorities infringe not only the right to a second opinion under Article 7(1), but also the right of the person subject to inspection to an effective appeal under Article 12. 25. The Commission takes the view that, after samples are taken, those subject to inspection clearly have a right to a second opinion under the second subparagraph of Article 7(1). In its submission, this is 28. As regards the issues of practical apparent, on the one hand, from the 13th implementation raised by the German and recital in the preamble to the directive and, Danish Governments, it was stated at the on the other, from the fact that those hearing that this could be achieved in ways subject to inspection would otherwise not other than those suggested by those two be able to assert fully the right of effective governments; a second, frozen sample appeal laid down in Article 12 of the could be kept by the authorities, for directive. In the Commission's view, the example. word 'gegebenenfalls' ('if appropriate') [see footnote 14] restricts the right to apply for a second opinion only in so far as the second opinion can be in any way relevant.

30. In this connection, the parties to the proceedings clearly proceed on completely different assumptions of emphasis in their submissions, a fact which can be explained by the wording of the provision which the Court has been asked to interpret in this case. Firstly, the second subparagraph of 32. As is apparent from the order for Article 7(1) refers to an obligation on reference, however, the referring court Member States to take the 'necessary steps' proceeds on the premiss that the necessary specifically to ensure that those subject to steps under Article 7( 1 ) of the directive inspection 'may apply for' a second were not sufficiently taken by Paragraph 42 opinion. To that extent the obligation to of the LMBG, and that it was not made create the conditions for applying for a possible to apply for a second opinion. The second opinion appears at first sight to take manufacturer's right to a second opinion, if priority over granting the actual right to a he has one, has thus been infringed. That second opinion. very issue, whether the directive establishes such a right for individuals which it is for the courts to protect, is addressed in the first question referred.

in any event, 'rules of Community law must mented in national law by the end of the be fully and uniformly applied in all the period prescribed. 6 Member States from the date of their entry into force and for so long as they continue in force' and 'every national court must, in a case within its jurisdiction, apply Com- munity law in its entirety and protect rights 35. A provision of Community law is which the latter confers on individuals'. 4 sufficiently precise in order to be relied That principle, that national courts must upon by individuals and applied by courts effectively enforce and protect rights con- where it unequivocally constitutes an obli- ferred on individuals by Community law gation. 7 applies irrespective of whether, in a par- ticular case, those rights can be inferred from national law (as interpreted in accord- ance with Community law) or derive from directly effective Community law where this has been inadequately transposed. It is 36. Moreover, a provision is unconditional ultimately for the national courts to decide where it constitutes an obligation which is whether the full effect of the directive or of neither qualified by any condition, nor any right which it confers on individuals is subject, in its performance or effects, to to be ensured by interpreting national the taking of any measure either by the implementing provisions in accordance institutions of the Community or by the with the directive. 5 Member States. 8

37. In my opinion, in the light of the objective and contents of the directive, 9 Article 7(1) exhibits those characteristics, in particular as regards the question whether those subject to inspection have a right to a second opinion.

discretion in implementing at national level 40. As the Commission has rightly sub- the 'necessary steps' to facilitate appli- mitted, that conclusion is confirmed by the cations for a second opinion, 10 that fact 13th recital in the preamble to, and alone does not rule out the possibility that Article 12(1) of, the directive. The 13th the directive is sufficiently clear and precise recital in the preamble to the directive as regards the grant of the right to a second states that the 'legitimate rights' of under- opinion. After all, as the Court has already takings 'must be preserved, in particular the so held, even if a directive allows the right to manufacturing secrecy and the Member States a varying degree of latitude, right of appeal'. individuals may not be denied the right to rely on provisions of the directive insofar as, owing to their particular subject-matter, they are capable of being severed from the general body of provisions and applied as such. 11

41. Article 12 of the directive lays down specific rules to preserve the 'legitimate right' to lodge an appeal. Under that provision, the Member States are to take the measures necessary 'to ensure that natural and legal persons concerned by the inspection have a right of appeal against measures taken by the competent 39. It should be noted, firstly, that, taken authority for the purpose of inspection'. In by itself, the wording of Article 7(1) per- this respect, that provision can be regarded mits the conclusion that it is intended not as reflecting and laying down the general only to make it possible to apply for a principle of effective (judicial) protection second opinion, but ultimately to grant a which underlies the constitutional tradi- right to do so ('that those subject to tions common to the Member States. 13 inspection may'). This is more readily apparent from other language versions. 12

VI — Question 2

44. Lastly, I share the view expressed by A —• Submissions of the parties the Commission and the German Govern- ment in the conclusion to their submissions that the word 'gegebenenfalls' in the second subparagraph of Article 7(1) must not be interpreted as a restriction or qualification 46. In connection with the provisions laid of the right to a second opinion. Rather, down in Article 6 of the ECHR (European this element merely reflects the fact that the Convention for the Protection of Human provision confers a discretion on those Rights and Fundamental Freedoms), subject to inspection. They have a right to Mr Steffensen submitted that, in this case, apply for a second opinion, but they also that provision serves only as a criterion for have a choice as to whether or not to interpreting the directive and is applicable exercise that right depending on the par- to this case too, a circumstance not altered ticular circumstances, such as, for example, even by the fact that the conduct at issue is whether or not the authorities' findings classified in German law as a summary criticise the product. 14 offence. The case-law of the European Court of Human Rights, he contends, can be construed as conferring the right to a second opinion in matters involving evi- dence based on complex examination pro- cedures. That is precisely the case with inspections of foodstuffs.

45. In the light of the foregoing consider- ations, it follows, therefore, that

47. The German Government takes the 14 — Moreover, the English version of that provision contains view that, even in cases where a manu- no such element and merely states: 'may apply for a second opinion'. facturer or other persons subject to inspec- I - 3748

51. With regard to Article 6 of the ECHR and the case-law of the European Court of 49. The German Government submits that Human Rights concerning that article, the such procedural rules must of course Danish Government submits that the provi- comply with the requirements of Commu- sions of the ECHR apply only to judicial nity law, but they do in this case. For, on proceedings and not to the preliminary the one hand, they do not infringe the administrative proceedings pending in this prohibition on discrimination because case. Moreover, it contends, the adversarial infringements of procedural requirements system has been safeguarded. laid down in the directive are dealt with in exactly the same way as irregularities in proceedings concerning the enforcement of provisions of purely national law. On the other hand, the enforcement of Community law is not rendered impossible in practice 52. Even in the light of Article 6 of the by the principle of the free evaluation of ECHR, the Commission opposes a prohib- evidence and therefore fulfils the require- ition — an absolute one at least — on the ment of effectiveness. In its view, the use of findings from samples inspected second opinion under the directive does solely by the public authorities. It takes not serve any purpose in itself, but is rather the view that the rights conferred on those

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15 — The detailed rules of judicial procedure referred to include national rules of evidence also; see the judgments in Case 199/82 San Giorgio [1983] ECR 3595, paragraph 17, and 5 4 . Generally s p e a k i n g , the referring Case C-228/98 Dounias [2000] ECR I-577, paragraph 69. court's second question concerns the rela- 16 — See, to that effect, the judgments in Case 33/76 Rewe- Zentralfinanz and Rewe-Zentral [1976] ECR 1989, tionship between Community law and paragraph 5, Case 45/76 Comet [1976] ECR 2 0 4 3 , national procedural provisions. The refer- paragraphs 13 and 16, Joined Cases C-430/93 and C - 4 3 1 / 9 3 van Schijndel and van Veen [1995] ring court would like to know whether ECR I-4705, paragraph 17, Case C-261/95 Palmisani [1997] ECR I-4025, paragraph 2 7 , Case C-246/96 Magor- findings which criticise a manufacturer's rian and Cunningham [1997] ECR I-7153, paragraph 37, product may be used as evidence in pro- and Joined Cases C-279/96, C-280/96 and C-281/96 Ansaldo Energia and Others [1998] ECR I - 5 0 2 5 , ceedings before a court if it has not been paragraph 16.

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61. It follows from the case-law of the Court that that question must be analysed by reference to the role of the rule of evidence in question 'in the procedure, its progress and its special features, viewed as a whole, before the various national 58. As regards the national rules of evi- instances. In the light of that analysis the dence in question, the documents before the basic principles of the domestic judicial Court show that, in general, German system, such as protection of the rights of procedural law contains no such prohib- ition on the use of evidence and does not therefore distinguish according to whether 17 — See the judgements in [2000] ECR I-10465, C A S e C-88/99RoquetteFreres paragraph 31 et seq., and C a s e legal remedies relate to measures by the C-228/98 (cited i n footnote 15), paragraph 70.

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the defence, the principle of legal certainty legal protection against measures taken by and the proper conduct of procedure, must, the competent authority for the purpose of where appropriate, be taken into consider- inspection. ation'. 18

63. Under the principle of effectiveness as applied to this case, Community law there- fore precludes the use of findings against which the manufacturer has not been able to apply for a second opinion where this 66. Lastly, the parties to the proceedings makes it virtually impossible or excessively considered the question whether and to difficult to provide actual and effective what extent the right to a fair trial laid down in Article 6 of the ECHR imposes a prohibition on the use as evidence of 18—Judgments in Case C-312/93 Peterbroeck, Van Campen- hout & Cie[1995] ECR I-4599, paragraph 14, and Joined findings obtained in circumstances such as Cases C-430/93 and C-431/93 (cited in footnote 16), those of this case. paragraph 19. 19 — See point 41 above. 20—Judgments in Case 222/84 (cited in footnote 3), paragraph 18, and Case 222/86 Heylens and Others 21 — See the judgment in Cbaralampos (cited in footnote 15), [1987] ECR 4097, paragraph 14. paragraph 71.

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70. For example, in the judgment in Kahn, cited by the Danish Government, which 68. It follows from the case-law of the concerned the use of a tape recording as European Court of Human Rights that, evidence in criminal proceedings in breach although the convention does not lay down of the principle of legality, the European rules on evidence as such, the particular Court of Human Rights based its decision proceedings considered as a whole, includ- largely on the fact that the defendant in ing the way in which evidence was taken, those proceedings had sufficient opportun- must meet the requirements of a fair trial ity to challenge the authenticity of the within the meaning of Article 6(1) of the ECHR. 22 Among those requirements are, above all, the adversarial nature of pro- 23 — See, for example, Eur. Court H. R., Vermeulen v. Belgium, judgment of 20 February 1996, Reports of Judgments and Decisions 1996-1, p. 233, j 33, Nideröst-Huber v. Switzerland, judgment of 18 February 1997, Reports of 22 — Inter alia, Eur. Court H. R., Schenk v. Switzerland, judgments and Decisions 1997-I, p. 101, § 23, and Morel judgment of 12 July 1988, Series A no. 140, p. 29, §§45 v. France, judgment of 6 June 2000, Reports of Judgments and 46, and Mantovanelli v. France, judgment of 18 March and Decisions 2000-VI, $ 27. 1997, Reports of judgments and Decisions 1997-11, 24 — See, for example, Eur. Court H. R-, Schenk v. Switzerland pp. 436—37, J 34. (cited in footnote 22), § 46.

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recording and to raise objections to its use opinion fulfils the requirements of a fair in court. 25 trial within the meaning of Article 6(1) of the ECHR is therefore determined on the basis of the specific circumstances of the case concerned, and in particular the type of findings involved and their impact on the decision-making process, and the availabil- ity of possible means of ensuring an effective defence other than a second opinion.

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VII — Conclusion

74. I propose that the Court answer the questions referred for a preliminary ruling as follows:

(1) Article 7(1) of Directive 89/397/EEC is to be construed as conferring on the manufacturer a directly applicable right to apply for a second opinion in the case where public authorities have taken from a retail outlet a sample of the manufacturer's product for purposes of analysis and that sample has failed to satisfy certain criteria imposed by the legislation on foodstuffs.

(2) Community law precludes the use of findings which are based on samples removed by public authorities and on which it has not been made possible for the manufacturer of the product criticised in those findings to apply for a second opinion, where it would otherwise be virtually impossible or excessively difficult to pursue an effective legal remedy against the inspection measures taken by the authorities. It is for the national court to examine whether, in the absence of a second opinion available to the manufacturer in the national proceedings and in view of the specific circumstances of the case, there is an appropriate means by which he can effectively defend himself against the authorities' criticism or produce counter-evidence.