According to the Advocate General, the Commission's decision prohibiting the United Kingdom from exporting live cattle, meat and other products obtained from bovine animals to other Member States or to non-member countries is valid

The facts

BSE, better known as "mad cow disease", is a degenerative brain disease characterized by the appearance of sponge-like formations in brain tissue and by the presence of an abnormal protein - prion protein. Not only does BSE affect many animal species, it also affects humans. The exact nature of the infectious agents is unknown; according to the information currently available, BSE would appear to have its origin in the use, as cattle feed, of meat and bone meal containing the infectious agent. The first case of BSE was identified in 1986 in the United Kingdom. The United Kingdom therefore adopted a number of preventive measures, prohibiting the use of the suspect proteins in ruminant feed and - as from November 1989 - banning the sale or use in foods intended for human consumption of certain specified bovine offal or of bovine heads, with the exception of the tongue. The Commission also imposed, by a 1994 decision, a number of bans on the exportation of live cattle and fresh meat to other Member States, and established a system for the identification and registration of the animals concerned.

In March 1996, having identified fresh cases of Creutzfeldt-Jacob disease occurring in young persons and displaying atypical clinical signs, an independent scientific body which advises the United Kingdom Government emphasized the need to apply the existing mechanisms for protection and supervision, and to ban the use of mammalian meat and bone-meal in feed.

Practically at the same time, a number of Member States closed their frontiers to live cattle or beef and veal coming from the United Kingdom; some non-member countries banned imports of those products from the European Union as a whole.

By the decision of 27 March 1996, the Commission finally banned the United Kingdom from exporting to other Member States or to non-member countries live bovine animals or meat of bovine animals, or various products derived therefrom.

Cases C-157/96 and C-180/96

Two cases were brought before the Court of Justice:

• a reference for a preliminary ruling was made by the High Court of Justice, Queen's Bench Division. The National Farmers' Union, a trade association, brought proceedings before the English courts challenging the measures adopted by the British authorities on the basis of the Commission decision on the ground that they are vitiated by the invalidity of the decision itself. (The Union argues that the Commission lacked competence to adopt the decision - it was authorized only to adopt measures to ensure protection against a serious health hazard, whereas the main purpose of the decision was to reassure consumers; second, the Commission had no authority to ban exports to non-member countries; third, the decision was neither necessary nor sufficient to attain the objective pursued).

• a direct action was brought by the United Kingdom against the Commission, seeking annulment of the decision on essentially the same grounds as those put forward by the National Farmers' Union (the United Kingdom also maintains that the decision gives rise to unfair discrimination between United Kingdom producers and those from other Member States, and covers products which fall outside the scope of the Commission's powers).

At the same time, the United Kingdom had applied to the Court for suspension of operation of the decision and other interim measures, but the Court dismissed the application on 12 July 1996.

The office of Advocate General

The Advocate General's role is to assist the Court by delivering a reasoned opinion on the cases before it and proposing to the Court how the issues to be addressed might be resolved. The Advocate-General discharges his responsibilities with total impartiality and in complete independence; his opinion does not bind the Court.

The Opinion

The Commission's competence

Council Directives 90/425 and 89/662 (on veterinary checks and trade in live animals) confer on the Commission wide powers to adopt the measures necessary to combat serious hazards to animals and humans: health is a priority objective which justifies restrictions on the free movement of goods and is regarded as fundamental to the Common Agricultural Policy. The gravity of BSE and the danger of its transmissibility to man constituted a real risk which vindicates the decision. The ban on exports to non-member countries - not precluded by the Directives - is an indispensable tool for ensuring that the decision is truly effective, that is to say, for preventing - through containment of the territory affected - the ban on exports to other Member States from being thwarted by "transit" through non-member countries. The strict controls already placed on imports from the United Kingdom had, moreover, proved to be insufficient.

The reasons for the decision

The duty to state reasons is laid down by Article 190 of the Treaty. Its aim is to ensure that the reasoning followed in adopting a measure is clearly disclosed so that the persons concerned are made aware of the justification for its adoption and the Court enabled to exercise its power of review. Any plea that the statement of reasons lacks cogency must be put forward separately.

The Commission's intention (as described in the fifth recital in the preamble to the decision) was to avoid the twin risks of the disease's transmissibility and the attendant concern, widespread among consumers. The reasoning is thus consistent.

The principle of proportionality

The United Kingdom maintains that the national and Community measures which had already been adopted prior to the decision were sufficient to ensure the protection of health.

In actual fact, the emergence of new and serious facts induced the United Kingdom itself to take additional measures.

Furthermore, in the absence of irrefutable scientific evidence, the Court of Justice has no basis on which to assess the adequacy or otherwise of the measure. The Commission, on the other hand, which is assisted by technical bodies, has a sufficiently wide margin of discretion. Moreover, a measure can be held invalid only if it is manifestly inappropriate. In the light of the scientific uncertainties and in the absence of reliable national controls - and given the urgency of the situation - the Commission's decision, however, cannot be regarded as manifestly inappropriate. The absolute ban on exports to all non-member countries is necessary in order to ensure the effectiveness of all the other measures adopted. The alternative solutions proposed by the parties are in any event incapable of preventing the risk of fraud or of reimportation. More specifically, the lack of any general system for marking the animals makes it impossible to ascertain, in the case of every bovine animal, whether it has been infected by feed or by contact with other animals.

The principle of non-discrimination and the fundamental objectives of the Common Agricultural Policy

This principle, which is a specific enunciation of the general principle of equality, requires that similar situations should not be treated differently unless differentiation is objectively justified. So far as concerns British producers, the fact that 97.9% of cases of BSE in Europe have been recorded in the United Kingdom is an objective reason for treating them differently from their counterparts in other Member States. However, as regards British consumers, it is clear that the legal basis of the decision was in any event inappropriate to cover a ban on the marketing of domestic meat in the United Kingdom, which would have been very expensive to monitor. Furthermore, even though one of the fundamental objectives of the Common Agricultural Policy is to stabilize markets and to ensure reasonable prices, the protection of health constitutes a primary and inescapable requirement underlying all Community policies.

The ban on exports of "derived products"

These are products which enter the food chain or are used in the pharmaceutical and cosmetics industries. The United Kingdom maintained that such products had not been clearly defined, that insufficient reasons had been given on this aspect of the Decision, and that the Commission could not ban exports of such products since the Treaty gives it no power to do so. In actual fact, the preamble to the decision makes the reasons for the ban quite clear by explaining that it extends to all derived products which are liable to create a risk. Furthermore, the decision was addressed specifically to the United Kingdom which, having regard to its detailed knowledge of the situation, could not have been unaware of the products covered by it.

This press release, which is available in all the official languages, is issued solely for Press purposes. It is not an official Court document and is in no way binding on the Court.For additional information please contact Tom Kennedy, telephone (00 352) 4303-3355 or Gillian Byrne, telephone (00352) 4303-3366 or send a fax to 4303-2500.

(1) This press release is available in all the official languages.