These two cases, which are being dealt with together, both raise the question of the validity of Commission Decision 96/239/EEC of 27 March 1996 on emergency measures to protect against bovine spongiform encephalopathy (BSE).
In case C-180/96 the United Kingdom argues, inter alia, that the contested decision is unlawful on the grounds that an export ban designed to allay concern among consumers is not within the scope of the Commission's powers or the margin of discretion allowed to it. It further argues that the ban is not and cannot be justified on the basis of any serious hazard to animal or human health and is therefore an unlawful obstacle to the free movement of goods within the Community and that the adoption of the export ban and its continuation constitute a misuse of powers. Finally the United Kingdom argues that the decision is disproportionate and that it discriminates between consumers and producers in the United Kingdom and those in other Member States.
The ten applicants in case C-157/96 are the National Farmers' Union (NFU), a trade association which represents the majority of farmers in England and Wales, and nine undertakings engaged in raising, feeding, lairage, transport and export of livestock, bovine semen and embryos and the processing and export of beef and beef-related products. They have been granted leave to apply to the High Court of Justice, London, for judicial review of various measures taken by the relevant British ministries (Ministry of Agriculture and Customs and Excise) in order to implement the Commission Decision.
Uncertain as to the validity of the Commission Decision in the light of the arguments raised by the parties, the High Court of Justice, Queen's Bench Division decided to suspend the proceedings and to refer a question on the validity of that decision to the Court of Justice for a preliminary ruling.
The order for reference from the High Court was lodged at the Court registry on 8 May 1996 and the United Kingdom's application was lodged on 24 May 1996. In addition to its principal application, the United Kingdom lodged an application for the immediate suspension of Article 1 of the contested decision either in whole or in part pending the final decision as to the legality of that decision. By an order of 12 July 1996 the Court dismissed that application on the ground that damage to commercial and other interests which was likely to result from maintaining the export ban in force could not outweigh the serious harm to public health which was liable to be caused by suspension of the contested decision and which could not be remedied if the main action was subsequently dismissed.
In today's proceedings the full Court will hear oral argument on behalf of the National Farmers' Union, the United Kingdom Government, the European Commission and the Council of the European Union which has intervened in case C-180/96 in support of the Commission.
At the end of the hearing the case will be adjourned while Advocate General Tesauro prepares an opinion on the case in which he will analyze the arguments of the parties and propose a solution to each of the two cases. Following the delivery of his opinion the Court will deliberate upon the case and deliver judgment at a later date.
The pleadings and written observations of the parties in each case have been summarized in a Report for the Hearing. For a copy of those reports or further information about this case please contact Tom Kennedy, telephone (00352) 4303 3355 or Gillian Byrne (00352) 4303 3366 Fax: (00352) 4303 2500.
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