Since the appearance of bovine spongiform encephalopathy (BSE, or ?mad cow disease'), the United Kingdom Government has adopted a number of measures to combat that disease, aimed at reducing the risk to human health. At the same time, it also established the Spongiform Encephalopathy Advisory Committee ("SEAC'), an independent scientific body set up to advise the Government. In a statement dated 20 March 1996 SEAC confirmed that ?the most likely explanation' for the appearance of a new variant of Creutzfeldt-Jakob disease, an encephalopathy affecting human beings, was exposure to BSE.

On 27 March 1996 the Commission, responding to the recommendations regarding the protection of public health issued by SEAC and to an opinion delivered by the Scientific Veterinary Committee of the European Union, adopted an emergency decision banning the export from the territory of the United Kingdom to other Member States and to third countries of bovine animals and bovine meat or products obtained from it.

The National Farmers' Union (NFU) and nine undertakings engaged in the raising for sale, feeding, transport and export of bovine animals and in trade in beef-related products brought an action before the High Court of Justice (England) in which they are contesting various measures adopted by the United Kingdom authorities pursuant to the Commission's decision. The High Court referred to the Court of Justice a question concerning the validity of that decision. The United Kingdom brought separate proceedings seeking annulment of the decision. It also applied for suspension of the operation of the contested decision, but that application was dismissed by the Court on 12 July 1996.

In both cases, the arguments regarding the invalidity of the decision concerned, in particular, the question whether the Commission was competent to adopt that decision, whether it misused its powers and whether it breached the principle of proportionality.

As regards the Commission's powers in the matter, the Court observes that the purpose of the directives from which those powers are derived is to enable the Commission to intervene rapidly in order to prevent a disease affecting animals or a threat to human health from spreading. The new information provided by SEAC significantly altered the perception of the risk which BSE represented for human health, and thus authorised the Commission to adopt safeguard measures.

The applicable legislation shows that, in the event of a disease constituting a serious hazard to animals or humans, the immobilisation of the animals and/or products and their containment within a specified territory constitutes an appropriate measure. In order for such containment to be effective, it is necessary to impose a total ban on the movement of animals and products outside the frontiers of the Member State concerned, thereby affecting exports to third countries. Furthermore, those directives do not expressly preclude the Commission from banning exports to third countries.

Having regard, first, to the probable link between BSE and a fatal disease affecting humans for which no known cure yet exists and, second, to the uncertainty as to the adequacy and effectiveness of the measures previously adopted by the United Kingdom and the Community, the Court considers that the Commission did not clearly exceed the bounds of its discretion in seeking to contain the disease within the territory of the United Kingdom by banning the export from that territory to other Member States and to third countries of bovine animals and derived products.

The argument concerning misuse of powers was based on the fact that the reasons for the decision referred to consumer concern. Moreover, the decision allegedly purported to constitute a measure designed to support the beef sector. However, the analysis of the reasons for a decision must relate to the whole of the text, and not to a single element taken in isolation. Such an analysis shows that the Commission adopted the provisional measures out of concern as to the risk of transmissibility of BSE to humans, and there is no evidence to support the argument that the Commission's exclusive or main purpose was to allay consumer concern or to achieve an economic end rather than the protection of health.

As regards a possible breach of the principle of proportionality, the Court notes that when the contested decision was adopted there was great uncertainty as to the risks posed by live animals, bovine meat and derived products. Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent. Consequently, in view of the seriousness of the risk and the urgency of the situation, a temporary export ban cannot be regarded as a manifestly inappropriate measure and the Commission displayed due caution by imposing a general ban on exports of bovine animals, bovine meat and derived products pending the production of more detailed scientific information.

The Court notes, in particular, that it was only by banning exports to third countries that it was possible to ensure the effectiveness of the measure by containing within the territory of the United Kingdom all animals and products likely to be infected with BSE; it would not have been possible wholly to exclude the re-importation of meat in another form or to prevent deflections of trade if exports to certain third countries had been allowed to continue.

This release is an unofficial document issued for use by the media; it is not binding on the Court of Justice.

For the text of the judgment in full, please consult our Internet website www.curia.eu.int from 3 p.m. today. For additional information, please contact Tom Kennedy - tel: (352) 4303 3355; fax: (352) 4303 2731.