According the Court, this interim protective measure was justified in light of the risks presented by such materials in relation to BSE pending the application of a Commission decision which forbids their use
By decision of 30 July 1997, the Commission decided to prohibit the use of materials presenting risks, in other words the head, including the brain and eyes, tonsils and spinal cord of bovines of 12 months or over. The date on which the measures laid down by the decision were to become applicable were postponed on a number of occasions, firstly by the Commission and subsequently by the Council, to 30 June 2000.
The relevant legislation in Northern Ireland was amended in 1996 so as to define specified risk material as encompassing the head (including the brain but excluding the tongue), spinal cord, spleen, thymus, tonsils and intestines of a bovine animal six months old or over which has died in the United Kingdom or been slaughtered there.
This legislation was completed on 29 December 1997 by the prohibition of imports into Northern Ireland of materials presenting risks or related foodstuffs from outside the United Kingdom, the Channel Islands and the Isle of Man. This order was notified to the Commission, according to the Community rules, on 20 January 1998.
Eurostock is engaged in Northern Ireland in the removal from bovine heads of cheek meat and the preparation of that cheek meat for human consumption. The company has been engaged for 13 years in the deboning of bovine heads imported from Ireland and exports the meat extracted to other parts of the United Kingdom, and since 1987, to France.
On 9 January 1998, the British authorities seized and condemned a consignment of bovine heads which had been imported by Eurostock from Ireland although accompanied by health certificates. The British authorities considered that the consignment contained specified risk material.
Eurostock brought proceedings before the High Court of Justice which held that the Order of 29 December 1997 was neither justified nor authorised under Community law.
On appeal, the Court of Appeal of Northern Ireland has asked to Court of Justice the following: may a Member State take interim protective measures to prohibit the importation of bovine heads containing material presenting risks as regards bovine spongiform encephalopathy where the Commission has adopted a decision requiring the removal of an prohibiting the use of such material but where the date on which the measures provided for by that decision are to become applicable has been postponed.
The Court firstly states that Community law applies to fresh bovine meat which is commercialised in the Member States.
The Court then analyses the compatability with Community law of a safeguard measure adopted by a Member State which would consequently prevent the importation of bovine meat which is regularly on the market of another Member State.
The Court observes that the Member State of destination (in this case the United Kingdom) may for serious reasons relating to public health or animal protection, take interim protective measures pending European Commission measures which are to be brought into application.
The non-immediate effect of the Commission decision , due to the postponement, does not preclude, according to the Court, a Member State from taking such interim protective measures.
The Court then examines the conditions in which the Commission decision was adopted in 1997. This decision considers the United Kingdom as a country with a high incidence of BSE and that it was justifiable for it to take the necessary interim protective measures. Furthermore, the Commission considered in its decision that certain Member States which are particularly exposed may take additional measures regarding the removal of risk material emanating from animals slaughtered on their territory.
According to the Court, the reasons for the postponement of the decision do not contain any indication that the danger would have decreased.
Therefore, as no Community protection scheme was established on the date of the adoption of the British measures, the United Kingdom was allowed to adopt the protective measures according to Community law.
Finally, the Court considers that these measures were justified and proportionate in relation to the end result: the importation of bovine heads may be prohibited where they contained materials of high infectivity and the slaughtering and transport methods used gave rise to a serious risk of contamination of healthy tissues, especially on account of leakage of cerebrospinal fluid onto cheek meat.
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