JUDGMENT OF THE COURT

5 May 1998 (1)

(Agriculture — Animal health — Emergency measures against bovine spongiformencephalopathy — 'Mad cow disease‘)

In Case C-157/96,

REFERENCE to the Court under Article 177 of the EC Treaty by the High Courtof Justice, Queen's Bench Division (United Kingdom), for a preliminary ruling inthe proceedings pending before that court between

The Queen

and

Ministry of Agriculture, Fisheries and Food,

Commissioners of Customs & Excise,

ex parte:         National Farmers' Union,

            David Burnett and Sons Ltd,

            R.S. and E. Wright Ltd,

            Anglo Beef Processors Ltd,

            United Kingdom Genetics,

            Wyjac Calves Ltd,

            International Traders Ferry Ltd,

            MFP International Ltd,

            Interstate Truck Rental Ltd,

            Vian Exports Ltd,

interveners:         Anglo Dutch Meat Exports Ltd,

            Beck Food Group Ltd,

            First City Trading Ltd,

            Weddel Swift Ltd,

            Carrex August Ltd,

            Meatal Supplies (Wholesale Meats) Ltd,

            Meat Marketing Services (UK) Ltd,

            NWL (Ireland) Ltd,

            Hibernia Foods plc,

            Duggins Ltd (D.T.),

            Swallow Foods International Ltd,

            British Association of Sheep Exporters,

on the validity of Article 1 of Commission Decision 96/239/EC of 27 March 1996on emergency measures to protect against bovine spongiform encephalopathy (OJ1996 L 78, p. 47),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, C. Gulmann, H. Ragnemalm,M. Wathelet, R. Schintgen (Presidents of Chambers), G.F. Mancini, J.C. Moitinhode Almeida, J.L. Murray, D.A.O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann andL. Sevón (Rapporteur), Judges,

Advocate General: G. Tesauro,

Registrar: L. Hewlett, Administrator,

after considering the written observations submitted on behalf of:

—    the National Farmers' Union and others, by Stuart Isaacs QC and CliveLewis, Barrister, instructed by Badhams Thompson, Solicitors,

—     Anglo Dutch Meat Exports Ltd and others, by Nicholas Green, Barrister,instructed by Michael Parker and Conor McGuire, Solicitors,

—    the British Association of Sheep Exporters, by David Vaughan QC andConor Quigley, Barrister, instructed by Anthony M. Burstow, Solicitor,

—    the United Kingdom Government, by Lindsey Nicoll, of the TreasurySolicitor's Department, acting as Agent, and by Paul Lasok QC and DavidAnderson, Barrister,

—    the Council of the European Union, by Arthur Brautigam and Moyra Sims,Legal Advisers, acting as Agents,

—    the Commission of the European Communities, by James MacDonald Flett,of its Legal Service, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the National Farmers' Union and others,represented by Stuart Isaacs, Clive Lewis and Sarah Moore, Barrister, the BritishAssociation of Sheep Exporters, represented by David Vaughan and ConorQuigley, the United Kingdom Government, represented by Lindsey Nicoll, and byPaul Lasok and David Anderson, the Council, represented by Arthur Brautigamand Moyra Sims, and the Commission, represented by James Macdonald Flett, atthe hearing on 2 July 1997,

after hearing the Opinion of the Advocate General at the sitting on 30 September1997,

gives the following

Judgment

1.

    By order of 3 May 1996, received at the Court on 8 May 1996, the High Court ofJustice, Queen's Bench Division, referred to the Court for a preliminary rulingunder Article 177 of the EC Treaty a question on the validity of Article 1 ofCommission Decision 96/239/EC of 27 March 1996 on emergency measures toprotect against bovine spongiform encephalopathy (OJ 1996 L 78, p. 47, hereinafter'the decision‘).

2.

    That question was raised in proceedings in which the National Farmers' Union, atrade association which represents the majority of farmers in England and Wales,and nine undertakings engaged in the raising for sale, feeding, lairage, transportand export of livestock, bovine semen and embryos and the processing and exportof beef and beef-related products (hereinafter referred to collectively as 'theNFU‘) are contesting various acts adopted pursuant to Article 1 of the decision bythe Ministry of Agriculture, Fisheries and Food and the Commissioners of Customsand Excise. Twelve parties have intervened in the main proceedings in support ofthe applicants. The first to eleventh interveners are meat exporters and membersof the International Meat Traders Association, whilst the twelfth is the BritishAssociation of Sheep Exporters, which claims to have suffered serious injury inconsequence of the decision, since it has resulted in the discontinuance of the

transportation of sheep by ferries, which is not economically viable for exports ofsheep alone.

3.

    The decision was adopted by the Commission following the issue on 20 and24 March 1996 of two statements by the Spongiform Encephalopathy AdvisoryCommittee ('SEAC‘), an independent scientific body which advises the UnitedKingdom Government, concerning the existence of a possible link between bovinespongiform encephalopathy ('BSE‘) and Creutzfeldt-Jakob disease.

4.

    That decision is based on the EC Treaty, on Council Directive 90/425/EEC of 26June 1990 concerning veterinary and zootechnical checks applicable inintra-Community trade in certain live animals and products with a view to thecompletion of the internal market (OJ 1990 L 224, p. 29), as amended by CouncilDirective 92/118/EEC of 17 December 1992 laying down animal health and publichealth requirements governing trade in and imports into the Community ofproducts not subject to the said requirements laid down in specific Communityrules referred to in Annex A (I) to Directive 89/662/EEC and, as regardspathogens, to Directive 90/425/EEC (OJ 1993 L 62, p. 49), in particular Article10(4) thereof, and on Council Directive 89/662/EEC of 11 December 1989concerning veterinary checks in intra-Community trade with a view to thecompletion of the internal market (OJ 1989 L 395, p. 13), as amended by Directive92/118, in particular Article 9 thereof.

5.

    The first subparagraph of Article 10(1) and Article 10(4) of Directive 90/425provide as follows:

'1. Each Member State shall immediately notify the other Member States and theCommission of any outbreak in its territory, in addition to an outbreak of diseasesreferred to in Directive 82/894/EEC, of any zoonoses, diseases or other cause likelyto constitute a serious hazard to animals or to human health.

...

4. The Commission shall in all cases review the situation in the Standing VeterinaryCommittee at the earliest opportunity. It shall adopt the necessary measures forthe animals and products referred to in Article 1 and, if the situation so requires,for the products derived from those animals, in accordance with the procedure laiddown in Article 17. The Commission shall monitor the situation and, by the sameprocedure, shall amend or repeal the decisions taken, depending on how thesituation develops.‘

6.

    Article 1 of Directive 90/425 refers to live animals and products which are coveredby the directives listed in Annex A and those referred to in the first paragraph ofArticle 21, that is to say, the products listed in Annex B to that directive.

7.

    The first subparagraph of Article 9(1) and Article 9(4) of Directive 89/662 provideas follows:

'1. Each Member State shall immediately notify the other Member States and theCommission of any outbreak in its territory, other than an outbreak of diseasesreferred to in Directive 82/894/EEC, of any zoonoses, diseases or other cause likelyto constitute a serious hazard to animals or to human health.

...

4. The Commission shall in all cases review the situation in the Standing VeterinaryCommittee at the earliest opportunity. It shall adopt the necessary measures forthe products referred to in Article 1 and, if the situation so requires, for theoriginating products or products derived from those products in accordance withthe procedure laid down in Article 17. The Commission shall monitor the situationand, by the same procedure, shall amend or repeal the decisions taken, dependingon how the situation develops.‘

8.

    Article 1 of Directive 89/662 refers to products of animal origin which are coveredby the directives listed in Annex A and those referred to in Article 14, that is tosay, the products listed in Annex B to that directive.

9.

    The preamble to the decision refers to the publication of new scientific information,the announcement of additional measures taken by the United KingdomGovernment (deboning of carcasses of bovine animals over 30 months of age inlicensed plants supervised by the Meat Hygiene Service, classification of trimmingsas specified bovine offal and prohibition of the use of mammalian-derived bonemeal in feed for all farm animals), the measures banning imports adopted byvarious Member States and the opinion of the Scientific Veterinary Committee. The fifth, sixth and seventh recitals read as follows:

'Whereas, under current circumstances, a definitive stance on the transmissibilityof BSE to humans is not possible; whereas a risk of transmission cannot beexcluded; whereas the resulting uncertainty has created serious concern amongconsumers; whereas under the circumstances and as an emergency measure, thetransport of all bovine animals and all beef and veal or derived products from theUnited Kingdom to the other Member States should be temporarily banned;whereas the same prohibitions should also apply to exports to non-Membercountries so as to prevent deflections of trade;

Whereas the Commission will carry out in the coming weeks a Communityinspection in the United Kingdom to evaluate the application of the measurestaken; whereas the significance of the new information and the measures to betaken must be subjected to detailed scientific study;

Whereas this Decision must therefore be reviewed once all the above elementshave been examined‘.

10.

    Article 1 of the decision provides as follows:

'Pending an overall examination of the situation and Community provisionsadopted to protect against bovine spongiform encephalopathy notwithstanding, theUnited Kingdom shall not export from its territory to the other Member States orthird countries:

—    live bovine animals, their semen and embryos,

—    meat of bovine animals slaughtered in the United Kingdom,

—    products obtained from bovine animals slaughtered in the United Kingdomwhich are liable to enter the animal feed or human food chain, andmaterials destined for use in medicinal products, cosmetics orpharmaceutical products,

—    mammalian derived meat [meal] and bone-meal.‘

11.

    Having regard to the arguments raised by the parties, the national court, uncertainas to the validity of the decision, decided to stay the proceedings and to refer thefollowing question to the Court of Justice for a preliminary ruling:

'Is Article 1 of Commission Decision 96/239/EC of 27 March 1996 invalid in wholeor in part, in particular because the Commission lacked the power or else misusedthe power to adopt the Commission decision or because it infringes the principleof proportionality?‘

12.

    It is necessary to examine in turn the various pleas in law in the light of which thenational court has asked the Court to assess the validity of Article 1 of the decision.

The plea alleging lack of competence on the part of the Commission

13.

    The NFU claims, first, that the decision was not adopted with a view to affordingprotection against any serious hazard to human health, which would have justifiedthe exercise by the Commission of its competence under Directives 90/425 and89/662. The United Kingdom and the Commission had already adopted measuresregarded as necessary for the protection of public health since 1988, and the newinformation published on the appearance of certain cases of Creutzfeldt-Jakobdisease in the United Kingdom did not indicate that there was a new risk. Bycontrast, the Commission took no steps in relation to meat and live bovine animalsexported prior to the decision.

14.

    Furthermore, Directives 90/425 and 89/662 do not authorise the Commission to banexports from the United Kingdom to third countries. No provision for such a banis contained in those directives, and it was not open to the Commission to actoutside the framework of expressly defined powers. As for the attempt to justifythe extension of the ban 'so as to prevent deflections of trade‘, it does not warrantthe adoption of a decision which goes beyond what is necessary in order to preventproducts exported from the United Kingdom to a third country from being re-imported into the Community.

15.

    Finally, if the Commission did not wholly lack competence to adopt the decision,in the submission of the NFU it did lack competence to prohibit the export ofcertain products, given the absence of any risk from bovine semen, bovine embryos,live calves under six months of age, fresh bovine meat from animals aged less thantwo-and-a-half years at slaughter, tallow and gelatin.

16.

    The first eleven interveners in the main proceedings, who are associations andexporters of bovine meat, challenge in particular the legality of the decisioninasmuch as it prohibits exports to third countries. In their view, such a prohibitionis not justified under Directives 90/425 and 89/662, since there is no meaningful ormaterial risk of deflections of trade or of the re-importation into the Communityof beef from the United Kingdom. The number of third countries which mayexport fresh bovine meat or meat products to the Community is small and bothmeat and products must satisfy the rigorous conditions laid down in Communitylegislation. Furthermore, exports to third countries are eligible for export refundsand, in that connection, the United Kingdom authorities conduct tests to establishthat the product has passed customs control and has been marketed in the countryof destination. Finally, there are import duties on beef even if, at the outset, it isof Community origin.

17.

    Those parties consider that the Commission's arguments relating to fraudulentpractices are unfounded or, in any event, that they could not justify a totalworldwide ban but rather specific prohibitions following consultation with theauthorities of the third countries concerned and the national authorities of MemberStates liable to re-import the diverted beef. In any event, a ban should have beenadopted under the specific measures governing imports of beef from thirdcountries, and not under measures aimed at the internal market.

18.

    Those eleven interveners in the main proceedings consider, therefore, that thepowers conferred on the Commission by Directives 90/425 and 89/662 did notpermit it to adopt a measure of such far-reaching effect as a worldwide ban. In anyevent, it was for the governments and traders of third countries, and not for theCommission, to determine their own policy with regard to beef from the UnitedKingdom.

19.

    The United Kingdom Government denies that the decision is justified by the needfor containment: such a measure is not appropriate in the case of BSE, which is nota contagious disease.

20.

    According to the United Kingdom Government, the Commission had nocompetence to adopt measures applicable to trade with third countries. Directives90/425 and 89/662 are concerned only with checks applicable 'in intra-Communitytrade ... with a view to the completion of the internal market‘. Those directivesare not concerned with animals or products intended for export to a third countryexcept in so far as there is a risk to human or animal health within the Communitywhile the animal or product in question is still within the Community, for example,while it is in transit through the territory of a Member State (see, in particular,Article 3(1)(g) of Directive 90/425 and Article 3(2) of Directive 89/662). Consequently, the Commission had no competence to ban exports from the UnitedKingdom to third countries that do not involve transit through the territory ofanother Member State. Moreover, the cattle posed no hazard to animal or humanhealth since BSE is not contagious. Finally, if the beef or beef products did posea risk, its assessment and the adoption of measures based on the Animal HealthCode of the International Office of Epizootics was a matter for third countries, notthe Commission.

21.

    The Council states that Directives 90/425 and 89/662 form part of a coherent andexhaustive body of law established in order to substitute a set of common rules forunilateral action on the part of each Member State pursuant to Article 36 of theTreaty. It considers that, in enacting Directives 90/425 and 89/662, it has expresslyand specifically empowered the Commission to take all the necessary measures asregards both live animals and products of animal origin. In view of the broaddiscretion enjoyed by the Commission under the safeguard clauses, the Councilsubmits that, by acting in a prudent manner and pursuing the safest option forpublic health, the Commission has neither made a manifest error in its assessmentof the risk to animal and human health nor manifestly exceeded the powersconferred on it.

22.

    The Council considers that the emergency measures were correctly applied toCommunity exports to third countries. Article 43 of the EC Treaty constitutes anappropriate and sufficient legal basis in relation to trade in agricultural productswith third countries and there is nothing in Directives 90/425 and 89/662 to warrantthe conclusion that the Council has expressly limited the powers of the Commissionunder the safeguard clause by explicitly excluding exports to third countries. Moreover, public health requirements are indivisible and universal and it wouldhave been indefensible to apply dual standards, depending on whether the productswere destined for the Community or for third countries. In any event, theextension of an export ban to third countries was already justified for the solereason of preventing deflections of trade.

23.

    With particular regard to the question whether a serious new risk had appeared,the Commission considers that, although BSE already existed, the SEACannouncements reclassified the disease: it was no longer regarded merely asaffecting cattle, but as a hazard to human health. That new information modifiedthe risk assessment and justified the Commission's intervention pursuant toDirectives 90/425 and 89/662. The Commission further emphasises that there isnothing to suggest that the new cases of Creutzfeldt-Jakob disease resulted fromexposure prior to the ban on specified bovine offal; on the contrary, SEACrecommended that additional steps be taken. Moreover, infected feed is notnecessarily the main route of transmission. Finally, the 1988 feed ban had takena long time to become effective, the 1989 specified bovine offal ban was ineffectiveand the bovine control system was inadequate since over 11 000 cases of BSE hadnever been traced to their herd of origin.

24.

    With regard to the measures which it was empowered to adopt under Directives90/425 and 89/662, the Commission observes, first, that in matters concerning thecommon agricultural policy the Community legislature has a broad discretion. TheCouncil may be prompted to confer on the Commission wide implementing powers,since the Commission alone is able continually and closely to monitor trends on theagricultural markets and to act with urgency if the situation so requires. Suchpowers are all the more justified when they are to be exercised in accordance witha procedure which allows the Council to reserve its right to intervene. Finally,Article 10(4) of Directive 90/425 and Article 9(4) of Directive 89/662 are draftedin very wide terms and empower the Commission to act 'in all cases‘ and to adopt'the necessary measures‘. In so far as it imposes a ban on the movement ofanimals and products outside a specified area of the Community, that is to say, acontainment measure, the decision is appropriate.

25.

    Next, the Commission submits that a careful reading of Article 10(4) of Directive90/425 and Article 9(4) of Directive 89/662 reveals no provision which precludesit from taking such measures as may be necessary in relation to third countries. Given the urgency of the situation and the fact that BSE was essentially a problemin the United Kingdom, it would clearly have been inappropriate and ineffectiveto seek to use legislation relating to animals and products from third countries,since that would have necessitated the amendment of the directives relating toimports into the Community or negotiations with third countries.

26.

    In order to determine whether, in adopting the contested decision, the Commissionwas acting within the framework of the powers conferred on it by Directives 90/425and 89/662, it is necessary to determine whether the conditions governing theadoption of safeguard measures in accordance with those directives were fulfilled,whether it was open to the Commission to ban exports and whether that ban couldextend to third countries.

27.

    Article 10(1) of Directive 90/425 and Article 9(1) of Directive 89/662 provide thatthe adoption of safeguard measures is permitted where there is an 'outbreak ... ofany zoonoses, diseases or other cause likely to constitute a serious hazard toanimals or to human health‘.

28.

    In the present case, it is necessary to determine in particular whether theannouncements by SEAC that BSE was 'the most likely explanation‘ for theoutbreak of the new variant of Creutzfeldt-Jakob disease justified the adoption ofsafeguard measures, given that BSE had already existed for a number of years, thatmeasures had been adopted both by the United Kingdom and by the Communityand that the risk which that disease posed to humans had already been taken intoconsideration.

29.

    According to Directives 90/425 and 89/662, the Commission's power to adoptsafeguard measures is justified by the fact that a zoonosis, disease or other causeis likely to constitute a serious hazard.

30.

    The objective of Directives 90/425 and 89/662 is to enable the Commission tointervene rapidly in order to prevent the propagation of a disease affecting animalsor a threat to human health. It would be contrary to that objective if theCommission were to be precluded from adopting the necessary measures inresponse to the publication of new information significantly altering what is knownabout a disease, particularly as regards its transmissibility or its consequences, onthe ground that the disease had been in existence for a long time.

31.

    In the present case, the new information contained in the SEAC announcementswas that a link between BSE and Creutzfeldt-Jakob disease had ceased to be atheoretical hypothesis and had become a possibility. According to 'the most likelyexplanation‘, the cases of Creutzfeldt-Jakob disease were linked to exposure toBSE before the introduction of the specified bovine offal ban in 1989.

32.

    Despite the fact that BSE previously existed, the new information provided bySEAC significantly altered the perception of the risk which that disease representedfor human health, and thus authorised the Commission to adopt safeguardmeasures in accordance with Directives 90/425 and 89/662.

33.

    As regards the Commission's powers, Directives 90/425 and 89/662 are drafted invery wide terms, inasmuch as they authorise the Commission to adopt 'thenecessary measures‘ for live animals, products derived from such animals, productsof animal origin and products derived from those products, without imposing anyrestrictions as to the temporal or territorial scope of those measures.

34.

    It follows from the provisions of Directives 90/425 and 89/662 that only animals andproducts of animal origin which fulfil the conditions laid down by those directivesmay be the subject of trade. The authorities of the Member States of dispatch arerequired to check that those conditions are fulfilled before issuing export

authorisations (Articles 3 and 4 of Directive 90/425 and Articles 3 and 4 ofDirective 89/662).

35.

    Directives 90/425 and 89/662 provide that, in the event of discovery, at the placeof destination of a consignment or during transport, of the presence of a zoonosisor disease, or any cause likely to constitute a serious hazard to animals or humans,the competent authorities of the Member State of destination may order that theanimal or consignment of animals be put in quarantine at the nearest quarantinestation or slaughtered and/or destroyed (first subparagraph of Article 8(1)(a) ofDirective 90/425) or that the batch of products of animal origin be destroyed orused in any other way laid down by Community rules (first subparagraph of Article7(1)(a) of Directive 89/662).

36.

    Those provisions suffice to show that, in the event of a zoonosis or disease, or anycause likely to constitute a serious hazard to animals or humans, the immobilisationof the animals and/or products and their containment within a specified territoryconstitutes an appropriate measure, since it may result from decisions taken by theauthorities either of the Member State of export or of the Member State of import.

37.

    It is clear that, in order for such containment to be effective, it may in some casesbe necessary to impose a total ban on the movement of animals and productsoutside the frontiers of the Member State concerned, thereby affecting exports tothird countries.

38.

    It should be noted in that regard that Directives 90/425 and 89/662 do not expresslypreclude the Commission from banning exports to third countries. Nor, as theAdvocate General states in point 23 of his Opinion, can such a restriction beinferred from the fact that the directives in question refer to checks 'applicable inintra-Community trade‘, since the powers of the Commission are linked only to theneed for the measures adopted in order to ensure the protection of health in asingle market.

39.

    Lastly, it must be recalled that, since the Commission enjoys a wide measure ofdiscretion, particularly as to the nature and extent of the measures which it adopts,the Community judicature must, when reviewing such measures, restrict itself toexamining whether the exercise of such discretion is vitiated by a manifest error ora misuse of powers or whether the Commission did not clearly exceed the boundsof its discretion (Case 98/78 Racke v Hauptzollamt Mainz [1979] ECR 69, paragraph5).

40.

    In the present case, the publication of new scientific information had establisheda probable link between a disease affecting cattle in the United Kingdom and afatal disease affecting humans for which no known cure yet exists.

41.

    Having regard, first, to the uncertainty as to the adequacy and effectiveness of themeasures previously adopted by the United Kingdom and the Community and,second, to the risks regarded as a serious hazard to public health (see paragraph 63of the order of 12 July 1996 in Case C-180/96 R United Kingdom v Commission[1996] ECR I-3903), the Commission did not clearly exceed the bounds of itsdiscretion in seeking to contain the disease within the territory of the UnitedKingdom by banning the export from that territory to other Member States and tothird countries of bovine animals, meat of bovine animals and derived products.

The plea alleging misuse of powers

42.

    According to the NFU, even if the Commission were competent to adopt thedecision, it nevertheless misused its powers. It is clear from the way in which thefifth recital in the preamble to the decision is worded that its purpose was not somuch to protect public health as to allay consumer concern.

43.

    It must be recalled in that regard that misuse of powers is defined by settled case-law as the adoption by a Community institution of a measure with the exclusive ormain purpose of achieving an end other than that stated or evading a procedurespecifically prescribed by the Treaty for dealing with the circumstances of the case(see, in particular, Case C-84/94 United Kingdom v Council [1996] ECR I-5755,paragraph 69).

44.

    As the Advocate General states in point 21 of his Opinion, it would not be right,for the purposes of describing the objective of the contested decision, to isolate,from amongst all the recitals in the preamble to that decision, the phrase relatingto concern among consumers.

45.

    Whilst the objective of a decision is to be determined by an analysis of the recitalsin its preamble, that analysis must relate to the whole of the text, and not to asingle element taken in isolation. In the present case, the recitals in the preambleto the decision, read as a whole, show that the Commission was prompted to adoptthe provisional measures by concerns as to the risk of transmissibility of BSE tohumans, after examining the measures adopted by the United Kingdom andconsulting the Scientific Veterinary Committee and the Standing VeterinaryCommittee.

46.

    There is thus no evidence to support the argument that the Commission's exclusiveor main purpose was to allay consumer concern. Consequently, it has not beenestablished that there was a misuse of powers.

The plea alleging breach of the principle of proportionality

47.

    The NFU relies on four grounds in support of the view that the decision must beregarded as disproportionate in its entirety or, alternatively, in respect of certainproducts. It submits, first of all, that the ban was unnecessary given both theexistence of Community and United Kingdom measures which had already beenadopted and the fact that the new information provided on 20 March 1996, inwhich SEAC indicated a possible link between BSE and Creutzfeldt-Jakob disease,did not suggest that a ban on the products specified in Article 1 of the decision wasnecessary or appropriate. Next, it observes that there was no evidence of the needfor a ban on exports to third countries for reasons of public health or to reassureconsumers, or of the existence of any deflection of trade. It emphasises, moreover,that the consequences of the decision, which is applicable for an unlimited period,in particular as regards the United Kingdom beef industry, are disproportionate tothe underlying aim, even if the decision fulfils requirements relating to theprotection of public health. Finally, it considers that less restrictive measures couldhave been adopted. In the case of third countries, provision could have been madefor a prohibition on re-importation into the Community, together with anappropriate certification system. As regards the other Member States, recoursecould have been had to a system of certification and/or labelling to the effect thatthe meat came from United Kingdom herds which had not had a case of BSE andwere fed on a diet which did not include animal protein.

48.

    The British Association of Sheep Exporters considers that, by adopting the decisionwithout taking into account the effects thereof on the live sheep export trade, theCommission manifestly failed to exercise its discretion properly and, in so doing,infringed the principle of proportionality coupled with the principle of goodadministration.

49.

    The United Kingdom Government considers that the ban on exports to thirdcountries, purportedly imposed in order to prevent deflections of trade, is in breachof the principle of proportionality, since it is not an appropriate means ofaddressing the risk involved, is not necessary and is not proportionate. The bancaused serious injury to traders operating on third-country markets, even thoughthe risk of trade deflection is largely illusory, having regard to the restricted numberof third countries authorised to export bovine animals, fresh bovine meat and meatproducts to the Member States of the Community, the strict conditions applied toexports, the checks carried out pursuant to the rules on export refunds and theexistence of import duties. The requirements imposed in respect of bovine semenand embryos make it impossible to import any products from the United Kingdominto a Member State via a third country.

50.

    Finally, the United Kingdom Government takes the view that a less restrictivemeasure to prevent the re-importation of unwanted beef into the Community wouldhave been to apply the directives specifically designed to regulate the importationof beef from third countries, such as Council Directive 90/675/EEC of 10 December1990 laying down the principles governing the organisation of veterinary checks on

products entering the Community from third countries (OJ 1990 L 373, p. 1) andCouncil Directive 91/496/EEC of 15 July 1991 laying down the principles governingthe organisation of veterinary checks on animals entering the Community fromthird countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC(OJ 1991 L 268, p. 56).

51.

    The Commission points out that its decision is a containment measure, designed toeradicate the disease, combined with market and other support measures. Itconsiders that containment is universally recognised as a legitimate response to aproblem such as that in the present case, in order to prevent the disease fromspreading. The United Kingdom was identified as the relevant area of containmentbecause, for various reasons, it was not sufficient to create local containment zonesand 99.7% of all confirmed BSE cases had occurred in the United Kingdom. TheCommission also submits that the directives relating to specific diseases providethat areas of containment are to be set having regard to natural barriers andadministrative controls.

52.

    In the Commission's view, the decision is justified as regards live animals onaccount of the reassessment of the significance of existing doubts, particularly inrelation to the presence of the BSE agent in young animals, the uncertaintiesassociated with the system for tracing animals and identifying those that were atrisk, the lack of certainty regarding the age at which the animal will be slaughteredand the risk of vertical or horizontal transmission.

53.

    In the case of semen, the ban was lifted after an opinion was delivered by theScientific Veterinary Committee. However, that does not affect the validity of thecontested decision, which was justified, as an emergency measure, by the risk ofvertical transmission, by research which was still in progress to establish theincidence of transmission in the case of embryo transfer in cows inseminated withsemen from bulls with confirmed BSE, and by the absence of a recent opinion ofthe Scientific Veterinary Committee on the subject.

54.

    A similar line of reasoning applies in respect of embryos, as does the observationof the Scientific Veterinary Committee that there is evidence of transmission ofscrapie by embryo transfer.

55.

    The Commission refers to existing doubts in relation to meat, in particular asregards the operation of the system for the identification and tracing of animals inthe United Kingdom and the effective implementation of the control measures toensure removal of specified bovine offal. The Commission also points out that allmeat contains small amounts of lymphatic tissue and that one of the members ofthe Scientific Veterinary Committee did not exclude the risk posed by muscle meat.

56.

    Similar considerations apply in the case of derived products, such as tallow andgelatin. Mammalian-derived meat meal and bone meal is considered to be theprincipal cause of the BSE epidemic.

57.

    The Commission also considers that the contested decision was justified in so faras it relates to exports to third countries. Those exports account for no more thanabout 5% of United Kingdom beef production; hence the extension of the ban tothose countries was a relatively small price to pay in order to ensure the completeeffectiveness of the containment measures. There was a risk of re-importation ofthe animals, the meat or derived products, possibly in another form and, in certaincases, with another origin. Furthermore, there was a real risk of fraud, bearing inmind the available data on irregularities in relation to export refunds. Accordingto the Commission, the effectiveness of the measures adopted would have beenundermined had they not covered exports to third countries; in that sense, theprohibition on exports to third countries is an integral and necessary part of thedecision and is therefore consistent with the principle of proportionality. Moreover,it is doubtful that failure to act in relation to exports to third countries would havebeen consistent with the obligations imposed on the Council and the Commissionby the Treaty, in particular the obligation to take into account the position ofCommunity agricultural produce on world markets, and with the Community'sbilateral and multilateral international obligations.

58.

    In the Commission's view, no alternative measures could have been taken. ACommunity-wide ban on specified bovine offal would not have contributed to theeradication of BSE; it would have been of very limited use given the negligibleincidence of BSE in the other Member States. Moreover, a great deal of timewould have been needed for the effective implementation of such a measure, whichwas inappropriate given the urgency of the situation. Improved control andcertification of certain types of beef would have been an inadequate response, giventhe urgency of the matter and the doubts as to effectiveness of the control systemsin the United Kingdom.

59.

    Finally, the Commission observes that, in order to assess the proportionality of thecontested decision, it is necessary to examine it in the light of the package ofmeasures adopted, costing some ECU 2.5 billion (including adjustment of theintervention thresholds, exceptional support measures in the United Kingdom andin other Member States, calf processing premiums, income support for beef andveal farmers, special measures for exporters, private storage aid for veal, exportrefunds, measures to promote and market quality beef and veal, and research).

60.

    It must be recalled that the principle of proportionality, which is one of the generalprinciples of Community law, requires that measures adopted by Communityinstitutions do not exceed the limits of what is appropriate and necessary in orderto attain the objectives legitimately pursued by the legislation in question; whenthere is a choice between several appropriate measures recourse must be had tothe least onerous, and the disadvantages caused must not be disproportionate tothe aims pursued (Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph13, and Joined Cases C-133/93, C-300/93 and C-362/93 Crispoltoni [1994]ECR I-4863, paragraph 41).

61.

    With regard to judicial review of compliance with the abovementioned conditions,in matters concerning the common agricultural policy the Community legislaturehas a discretionary power which corresponds to the political responsibilities givento it by Articles 40 to 43 of the Treaty. Consequently, the legality of a measureadopted in that sphere can be affected only if the measure is manifestlyinappropriate having regard to the objective which the competent institution isseeking to pursue (Fedesa and Others, cited above, paragraph 14, and Crispoltoni,cited above, paragraph 42).

62.

    At the time when the contested decision was adopted, there was great uncertaintyas to the risks posed by live animals, bovine meat and derived products.

63.

    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 realityand seriousness of those risks become fully apparent.

64.

    That approach is borne out by Article 130r(1) of the EC Treaty, according to whichCommunity policy on the environment is to pursue the objective inter alia ofprotecting human health. Article 130r(2) provides that that policy is to aim at ahigh level of protection and is to be based in particular on the principles thatpreventive action should be taken and that environmental protection requirementsmust be integrated into the definition and implementation of other Communitypolicies.

65.

    The decision was adopted as an 'emergency measure‘ 'temporarily‘ banningexports (fifth recital in the preamble). Moreover, the Commission acknowledgesin the preamble to the decision the need for the significance of the newinformation and the measures to be taken to be subjected to detailed scientificstudy and, consequently, the need to review the contested decision following anoverall examination of the situation (seventh recital).

66.

    As regards live animals, and in the light of the export ban already imposed byCommission Decision 94/474/EC of 27 July 1994 concerning certain protectionmeasures relating to bovine spongiform encephalopathy and repealing Decisions89/469/EEC and 90/200/EEC (OJ 1994 L 194, p. 96), itself amended byCommission Decision 95/287/EC of 18 July 1995 (OJ 1995 L 181, p. 40), the exportban resulting from the decision relates only to cattle aged under six months bornto cows not known or suspected to be affected by BSE. However, the scientificuncertainty concerning the manner in which BSE is transmitted, particularly asregards its transmissibility through the mother, coupled with the lack of a systemfor tagging animals and controlling their movements, has meant that there can beno certainty that the mother of a calf is completely free from BSE or, even if sheis, that the calf itself is completely unaffected by the disease.

67.

    Consequently, the ban on the export of live bovine animals cannot be regarded asa manifestly inappropriate measure.

68.

    As regards bovine meat, it is sufficient to recall that, because the disease has a longincubation period, all animals aged six months or more had to be treated aspotentially infected with BSE, even if they showed no signs of the disease. Specialmeasures had been adopted in the United Kingdom, relating to the slaughtering ofanimals and the cutting of meat. However, it was only from May 1995 onwardsthat unannounced visits were made to United Kingdom undertakings to checkcompliance with those measures (Bovine Spongiform Encephalopathy in GreatBritain, A Progress Report, November 1995, paragraph 16); those checks revealedthat a significant proportion of slaughterhouses were failing to comply with thelegislation.

69.

    Moreover, as is apparent from the report of the Scientific Veterinary Committeeof 11 July 1994, meat invariably contains some residual nervous and lymphatictissues. Similarly, according to the statement of one of the members of thatcommittee, annexed to the opinion of the Scientific Veterinary Committee of22 March 1996, it was not possible, on the basis of the available scientific data, toexclude the danger of transmission of the infection through muscle meat.

70.

    As is apparent from that opinion, the Scientific Veterinary Committee concludedthat, on the available data, it was not possible to prove that BSE was transmissibleto humans. However, in view of the possibility of such transmissibility, which theCommittee had always considered, it recommended that the measures recentlyadopted by the United Kingdom concerning the deboning of carcasses from cattleaged over 30 months in approved establishments should be implemented for intra-Community trade and that the Community should adopt appropriate measures asregards the ban on the use of meat meal and bone meal in animal feed. TheCommittee further considered that any contact of spinal cord tissue with fat, boneand meat must be excluded, failing which the carcass should be treated as specifiedbovine offal. Finally, the Committee recommended that research on the questionof transmissibility of BSE to humans be continued. Annexed to that opinion wasthe following statement by one of the members of the Committee: 'On the basisof the limited scientific data, which are only based on the evaluation carried outwith material from nine cattle, we cannot be confident indeed that muscle meatfrom cattle does not constitute a danger for transmission of BSE infection.‘

71.

    It follows that the ban on exports of bovine meat likewise cannot be regarded asa manifestly inappropriate measure.

72.

    As regards semen and embryos, it is sufficient to recall that when the contesteddecision was adopted the risk of vertical transmission had not been definitivelyexcluded.

73.

    In so far as other products, such as tallow and gelatin, are concerned, theCommission must be regarded as having displayed appropriate caution by banning

the export of those products pending completion of an overall examination of thesituation.

74.

    The ban on exports to third countries was appropriate since it ensured theeffectiveness of the measure by containing within the territory of the UnitedKingdom all animals and products likely to be infected with BSE. It would nothave been possible, by limiting the number of third countries from which importswere authorised and by imposing import controls, wholly to exclude the possible re-importation of meat in another form or to prevent deflections of trade.

75.

    The United Kingdom has suggested possible alternative measures. However, inview of the seriousness of the risk and the urgency of the situation, the Commissiondid not react in a manifestly inappropriate manner by imposing, on a temporarybasis and pending the production of more detailed scientific information, a generalban on exports of bovine animals, bovine meat and derived products.

76.

    Consequently, the Commission has not breached the principle of proportionality.

77.

    It follows from the foregoing that the Commission was competent to adopt thedecision and that, by adopting it, it did not misuse its powers or breach theprinciple of proportionality.

78.

    The answer to be given to the national court must therefore be that considerationof the question referred has disclosed no factor capable of affecting the validity ofArticle 1 of the decision.

Costs

79.

    The costs incurred by the United Kingdom Government and by the Council and theCommission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in theaction pending before the national court, the decision on costs is a matter for thatcourt.

On those grounds,

THE COURT,

in answer to the question referred to it by the High Court of Justice, Queen'sBench Division, by order of 3 May 1996, hereby rules:

Consideration of the question referred has disclosed no factor capable of affectingthe validity of Article 1 of Commission Decision 96/239/EC of 27 March 1996 onemergency measures to protect against bovine spongiform encephalopathy.

Rodríguez Iglesias Gulmann Ragnemalm Wathelet        Schintgen            Mancini Moitinho de Almeida Murray Edward Puissochet Hirsch Jann                     Sevón

Delivered in open court in Luxembourg on 5 May 1998.

R. Grass

G.C. Rodríguez Iglesias

Registrar

President

1: Language of the case: English.