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Date Posted: 02:35:02 08/03/06 Thu
Author: Week of 7 to 11 July 2003
Subject: PROCEEDINGS OF THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES






PROCEEDINGS OF THE COURT OF JUSTICE AND THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES


Week of 7 to 11 July 2003


n° 20/03


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I. JUDGMENTS


Court of Justice


Case C-246/00

Commission of the European Communities v Kingdom of the Netherlands

Transport


Case C-11/00

Commission of the European Communities v European Central Bank

Law governing the institutions


Case C-15/00

Commission of the European Communities v European Investment Bank

Law governing the institutions


Joined Cases C-20/00 and C-64/00

Booker Aquaculture Ltd,

Hydro Seafood GSP Ltd v The Scottish Ministers

Principles of Community law


Case C-472/00 P

Commission of the European Communities v Fresh Marine Company A/S

Commercial policy


Case C-87/01 P

Commission of the European Communities v Council of European Municipalities and Regions (CEMR)

Principles of Community law


Case C-165/01

Betriebsrat der Vertretung der Europäischen Kommission in Österreich v Europäische Gemeinschaften, Kommission der Europäischen Gemeinschaften

Staff Regulations of Officials



Court of First Instance


Case T-132/01

Euroalliages,

Péchiney électrométallurgie,

Vargön Alloys AB,

Ferroatlántica, SL v Commission of the European Communities

Commercial policy


Case T-374/00

Verband der freien Rohrwerke eV,

Eisen- und Metallwerke Ferndorf GmbH,

Rudolf Flender GmbH & Co. KG v Commission of the European Communities

Competition


Case T-65/02

Michelle Chetaud v European Parliament

Staff Regulations of Officials


Case T-220/00

Cheil Jedang Corp v Commission of the European Communities

Competition


Case T-223/00

Kyowa Hakko Kogyo Co. Ltd,

Kyowa Hakko Europe GmbH v Commission of the European Communities

Competition


Case T-224/00

Archer Daniels Midland Company,

Archer Daniels Midland Ingredients Ltd v Commission of the European Communities

Competition


Case T-230/00

Daesang Corp,

Sewon Europe GmbH v Commission of the European Communities

Competition


Case T-102/00

Vlaams Fonds voor de Sociale Integratie van Personen met een Handicap v Commission of the European Communities

Social policy


Case T-22/01

Petros Efthymiou v Commission of the European Communities

Staff Regulations of Officials


Case T-156/01

Laboratorios RTB, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), Giorgio Beverly Hills, Inc.

Intellectual property


Case T-162/01

Laboratorios RTB, SL v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Intellectual property


Case T-234/01

Andreas Stihl AG & Co. KG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Intellectual property



II. OPINIONS


Case C-138/02

Brian Francis Collins v Secretary of State for Work and Pensions


Case C-500/01

Commission of the European Communities v Kingdom of Spain


Case C-8/02

Ludwig Leichtle v Bundesanstalt für Arbeit


Case C-58/02

Commission of the European Communities v Kingdom of Spain


Case C-100/02

Gerolsteiner Brunnen GmbH & Co. v Putsch GmbH


Case C-320/02

Förvaltnings AB Stenholmen v Riksskatteverket


Joined Cases C-199/01 P and C-200/01 P

IPK-München GmbH v Commission of the European Communities


Case C-353/01 P

Olli Mattila v Council of the European Union, Commission of the European Communities


Case C-408/01

Adidas-Salomon AG and Adidas Benelux BV v Fitnessworld Trading Ltd


Case C-263/02 P

Commission of the European Communities v Jégo-Quéré et Cie SA




1. I. JUDGMENTS




Court of Justice







Case C-246/00

Commission of the European Communities v Kingdom of the Netherlands

Transport






10 July 2003


((Failure by a Member State to comply with its obligations · Directive 91/439/EEC · Driving licences · Mutual recognition · Compulsory registration · Calculation of the duration of validity)

(Sixth Chamber)


By application lodged at the Court Registry on 20 June 2000, the Commission of the European Communities brought an action for a declaration that, by adopting and maintaining in force Articles 107(1), 108(1)(h), 109 and 111(1)(a) of the Wegenverkeerswet (Road Traffic Law) of 21 April 1994, as amended ('the WVW 1994‘) and Article 100 of the Reglement Rijbewijzen (Decree on driving licences) of 28 May 1996, as amended by the Decree of 18 June 1996 ('the RR‘), the Kingdom of the Netherlands has failed to comply with its obligations under Articles 1(2) and 6(1)(c) of, and point 4 of Annex III to, Council Directive 91/439/EEC of 29 July 1991.


The action


Procedure for registering driving licences issued by another Member State


By its first complaint, the Commission criticises the Kingdom of the Netherlands for having infringed Article 1(2) of Directive 91/439 by having established a compulsory registration system for driving licences issued by other Member States one year after the licence holder's establishment in the Netherlands and for having provided for a registration procedure which, by its cumbersomeness, is barely distinguishable from the procedure for exchanging driving licences.


In the present case, it is clear that although road traffic safety, which is the objective pursued by Article 1(3) of Directive 91/439, is among the imperative reasons of public interest which may justify a restriction on fundamental freedoms guaranteed by the EC Treaty, and although the measure in dispute here is in effect applied to Netherlands nationals and nationals of other Member States alike and appears to be appropriate for attaining the objective pursued, the compulsory registration of driving licences goes beyond what is necessary to attain the objective pursued.


Next, the registration at issue here is also not essential in order to enable the competent authorities to ensure that the national provisions governing the renewal of driving licences and medical examinations have been complied with, since it is for the holder of the driving licence to prove that the relevant provisions have been complied with. Accordingly, it is sufficient to inform holders of driving licences issued by other Member States of the obligations they have under national legislation when they take the steps necessary to take up residence in the Netherlands and apply the sanctions provided for in the event of non-compliance with the provisions in question.


Calculation of the duration of validity of driving licences issued by other Member States


By its second complaint, the Commission alleges that the Kingdom of the Netherlands has infringed Article 1(2) of Directive 91/439 by providing that the duration of validity of a driving licence issued by another Member State is determined on the basis of the date of issue of that licence in that State rather than the date on which the licence holder took up residence in the Netherlands.


The Court finds, in this connection, that the Commission has not demonstrated how calculating the duration of validity on the basis of the date of issue rather than the date of the holder's taking up residence in the Netherlands undermines Article 1(2) of Directive 91/439 and the principle of the mutual recognition of driving licences laid down therein.


The minimum age requirement for obtaining a Category D driving licence and the periodic medical examination for drivers of category C, C+E, D and D+E vehicles


The Commission's third complaint is based on infringement of Article 6(1)(c) of Directive 91/439 by Article 111(1)(a) of the WVW 1994, on the ground that that provision provides for a minimum age of 18 instead of 21 for obtaining a category D driving licence.


By its fourth complaint, the Commission criticises the Kingdom of the Netherlands for having infringed point 4 of Annex III to Directive 91/439 by not providing for a periodic medical examination for drivers of category C, C+E, D and D+E vehicles in Article 100 of the WVW 1994.


Since it is common ground in the present case that the Kingdom of the Netherlands has not adopted the measures necessary to ensure the transposition of Article 6(1)(c) of, and point 4 of Annex III to, Directive 91/439, the Court finds that the third and fourth complaints are well founded.



The Court:


'1. Declares that, by adopting and maintaining in force Articles 107(1), 108(1)(h) and Article 111(1)(a) of the Wegenverkeerswet (Road Traffic Law) of 21 April 1994, as amended, as well as Article 100 of the Reglement Rijbewijzen (Decree on driving licences) of 28 May 1996, as amended by the Decree of 18 June 1996, together with Article 109(5) of the 1994 Wegenverkeerswet, read in conjunction with Articles 11, 28 and 33 of the Reglement Rijbewijzen, the Kingdom of the Netherlands has failed to comply with its obligations under Articles 1(2) and 6(1)(c) of, and point 4 of Annex III to, Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Council Directive 96/47/EC of 23 July 1996;


2. Dismisses the remainder of the application;


3. Orders the Kingdom of the Netherlands to pay the costs;


4. Orders the Kingdom of Spain to bear its own costs.‘



Advocate General P. Léger delivered his Opinion at the sitting of the Sixth Chamber on 21 November 2002.


Not available.




························






Case C-11/00

Commission of the European Communities v European Central Bank

Law governing the institutions






10 July 2003


(European Central Bank (ECB) · Decision 1999/726/EC on fraud prevention · Protection of the Communities' financial interests · European Anti-Fraud Office (OLAF) · Regulation (EC) No 1073/1999 · Applicability to the ECB · Plea of illegality · Admissibility · Independence of the ECB · Article 108 EC · Legal basis · Article 280 EC · Consultation of the ECB · Article 105(4) EC · Proportionality)

(Full Court)


By application lodged at the Court Registry on 14 January 2000, the Commission of the European Communities brought an action pursuant to Article 230 EC for annulment of Decision 1999/726/EC of the European Central Bank of 7 October 1999 on fraud prevention (ECB/1999/5) ('the contested decision‘).


The application


In its application, the Commission claims that the Court should annul the contested decision on the ground that it infringes Regulation No 1073/1999, in particular Article 4 thereof.


It submits, first, that the eighth recital to, and Article 2 of, the contested decision make clear that, according to that decision, the D-IA is solely responsible for administrative investigations within the ECB so far as combating fraud is concerned. That amounts to the outright negation of both the investigative powers conferred on OLAF by Regulation No 1073/1999 and the applicability of the regulation to the ECB and reflects the line taken by the ECB whilst the regulation was in its preparatory stages.


Second, the Commission argues that in view of the approach taken by the ECB the contested decision includes no measures for implementing Article 4(6) of Regulation No 1073/1999 but instead provides that the staff of the ECB are to inform the Directorate for Internal Audit (”D-IA”) rather than OLAF in any case of fraud.


The applicability of Regulation No 1073/1999


The scope of Regulation No 1073/1999


The ECB submits that Regulation No 1073/1999 must be interpreted so as to exclude the ECB from its scope. It argues in particular that the expression 'bodies, offices and agencies established by, or on the basis of, the Treaties‘ in Article 1(3) of the regulation lacks precision so that, particularly since Article 280(4) EC was chosen as the legal basis for the regulation, it may be construed as not applying to 'bodies‘ whose financial interests are distinct from those of the European Community and are not linked to the latter's budget.


That argument cannot be accepted.


As both the Commission and the interveners have rightly argued, it must be found that the expression 'institutions, bodies, offices and agencies established by, or on the basis of, the Treaties‘ in Article 1(3) of Regulation No 1073/1999 must indeed be interpreted as including the ECB.


It is sufficient to point out in that connection that, regardless of the distinctive features of its status within the Community legal order, the ECB was indeed established by the EC Treaty, as is apparent from the actual wording of Article 8 EC.


It does not follow from either the preamble to, or the provisions of, Regulation No 1073/1999 that the Community legislature intended to draw any distinction between the institutions, bodies, offices and agencies established by, or on the basis of, the Treaties, in particular by excluding those bodies, offices or agencies which have resources distinct from the Community budget.


Instead, the seventh recital to Regulation No 1073/1999 specifically draws attention to the need to extend the scope of OLAF's internal investigations to 'all‘ the institutions, bodies, offices and agencies.


Given the clear terms of Regulation No 1073/1999, there can be no doubt that the regulation must be interpreted as being intended to apply to the ECB, irrespective of whether or not that circumstance is apt to affect the legality of the regulation.


The ECB's plea alleging that Regulation No 1073/1999 is illegal


· Plea alleging lack of legal basis


In support of its submission of illegality, the ECB first puts forward an argument that Regulation No 1073/1999 must be declared inapplicable on the ground that it could not be adopted on the basis of Article 280 EC.


The Court find that contrary to the submissions made by the ECB for the purposes of its first ground of defence, the expression 'financial interests of the Community‘ in Article 280 EC must be interpreted as encompassing not only revenue and expenditure covered by the Community budget but also, in principle, revenue and expenditure covered by the budget of other bodies, offices and agencies established by the EC Treaty.


Second, the fact that a body, office or agency owes its existence to the EC Treaty suggests that it was intended to contribute towards the attainment of the European Community's objectives and places it within the framework of the Community, so that the resources that it has at its disposal by virtue of the Treaty have by their nature a particular and direct financial interest for the Community.


· Plea alleging that the ECB's independence was undermined


There are no grounds which prima facie preclude the Community legislature from adopting, by virtue of the powers conferred on it by the EC Treaty and under the conditions laid down therein, legislative measures capable of applying to the ECB.


Furthermore, the ECB has not established how the fact that it is subject to measures adopted by the Community legislature in the area of fraud prevention and the prevention of any other unlawful activities detrimental to the European Community's financial interests, such as the measures provided for in Regulation No 1073/1999, is such as to undermine its ability to perform independently the specific tasks conferred on it by the EC Treaty.


It is sufficient to state that any defects in the way in which the provisions of the regulation are applied cannot entail its illegality.


· Plea alleging breach of the principle of proportionality


The ECB has not established that the Community legislature made a manifest error of assessment. The legislature was entitled to take the view that notwithstanding the existence of control mechanisms specific to the various institutions, bodies, offices and agencies established by, or on the basis of, the Treaties, including those to which the ECB refers with regard to itself, it was necessary, for the purposes of strengthening the prevention of, and the fight against, fraud, corruption and other irregularities detrimental to the financial interests of the European Community, to set up a control mechanism which is simultaneously centralised within one particular organ, specialised and operated independently and uniformly with respect to those institutions, bodies, offices and agencies.


Since the four pleas put forward by the ECB in support of the objection of illegality based on Article 241 EC have thus been rejected, it must be concluded that Regulation No 1073/1999 applies to the ECB. Thus, it is appropriate to examine whether the contested decision must be annulled because · as the Commission maintains · it infringes the provisions of that regulation.


Infringement of Regulation No 1073/1999


In adopting the contested decision, which is based on the incorrect premiss that Regulation No 1073/1999 does not apply to the ECB and which consequently gives expression to the ECB's intention to assume sole responsibility for combating fraud within it, the ECB failed to apply the system set up by the regulation and, instead of adopting the decision referred to in Article 4(1), second subparagraph, and (6) of the regulation, established a separate system peculiar to the ECB.


In failing to apply Regulation No 1073/1999 and refusing to adapt its internal procedures in such a way as to satisfy the requirements laid down by the regulation, the ECB infringed the regulation, in particular Article 4 thereof, and exceeded the margin of autonomy of organisation which it retains for the purpose of combating fraud.





The Court:


'1. Annuls Decision 1999/726/EC of the European Central Bank of 7 October 1999 on fraud prevention (ECB/1999/5);


2. Orders the European Central Bank to pay the costs;


3. Orders the Kingdom of the Netherlands, the European Parliament and the Council of the European Union to bear their own costs.‘



Advocate General F.G. Jacobs delivered his Opinion at the sitting of the Full Court on 3 October 2002.


He proposed that the Court should:


'(1) declare void Decision No 1999/726/EC of the European Central Bank of 7 October 1999 on fraud prevention;


(2) order the ECB to pay the costs of the Commission;


(3) order the European Parliament, the Council and the Kingdom of the Netherlands to bear their own costs.‘




························






Case C-15/00

Commission of the European Communities v European Investment Bank

Law governing the institutions






10 July 2003


(European Investment Bank (EIB) · Decision of the Management Committee · Action for annulment · Jurisdiction of the Court · Article 237 EC · Protection of the Communities' financial interests · European Anti-Fraud Office (OLAF) · Regulations (EC) No 1073/1999 and (Euratom) No 1074/1999 · Applicability to EIB · Pleas of illegality · Independence of the EIB · Legal bases · Articles 280 EC and 203 EA · Proportionality · Statement of reasons)

(Full Court)


By application lodged at the Court Registry on 19 January 2000, the Commission of the European Communities brought an action under Article 237(b) EC and, in the alternative, under Article 230 EC for annulment of the Decision of the Management Committee of the European Investment Bank of 10 November 1999 concerning cooperation with the European Anti-Fraud Office (OLAF) ('the contested decision‘).


The subject-matter of the application


In its application, the Commission claims that the Court should annul the contested decision on the ground that it infringes Regulations Nos 1073/1999 and 1074/1999, in particular Article 4 thereof.


Its essential submission is that the contested decision is contrary to the powers conferred on OLAF in relation to the conduct of administrative investigations in that it confines the ability to carry out investigations of the EIB to the latter's internal services. The decision likewise violates OLAF's right of access to information held by the EIB by making such access subject, in any given case, to authorisation from the President of the EIB and to conditions which are to be defined by him.


The applicability of Regulations Nos 1073/1999 and 1074/1999


Autonomy of the EIB


By its first ground of defence, the EIB contends that the autonomous status which it enjoys under the EC Treaty is apt to put it beyond the reach of Regulations Nos 1073/1999 and 1074/1999.


In this instance, the Court finds that the EIB has not established how the fact that it is subject to measures adopted by the Community legislature in the area of fraud prevention and the prevention of any other unlawful activities detrimental to the European Community's financial interests, such as the measures provided for in Regulations Nos 1073/1999 and 1074/1999, is incompatible with its special status.


Legal basis of Regulation No 1073/1999


By its second ground of defence, the EIB contends that Regulation No 1073/1999 must be declared inapplicable on the ground that it could not be adopted on the basis of Article 280 EC.


Contrary to the EIB's submission, the expression 'financial interests of the Community‘ in Article 280 EC must be interpreted as encompassing not only revenue and expenditure covered by the Community budget but also, in principle, revenue and expenditure covered by the budget of other bodies, offices and agencies established by the EC Treaty.


Among the factors bearing out such a finding is, first, the fact that the expression is peculiar to Article 280 EC and is different from the terms used in other provisions of Title II of Part Five of the EC Treaty, entitled 'Financial Provisions‘, which refer invariably to the 'budget‘ of the European Community. The same may be said of the fact, pointed to by the Netherlands Government, that the expression 'financial interests of the Community‘ seems wider than the expression 'items of revenue and expenditure of the Community‘ found inter alia in Article 268 EC.


Second, the fact that a body, office or agency owes its existence to the EC Treaty suggests that it was intended to contribute towards the attainment of the European Community's objectives and places it within the Community legal order, so that the resources that it has at its disposal by virtue of the Treaty have by their nature a particular and direct financial interest for the Community.


As regards more specifically the EIB, it may be noted in that respect that it was established by the EC Treaty and is a Community body whose task, as the first paragraph of Article 267 EC provides, is 'to contribute ... to the balanced and steady development of the common market in the interest of the Community‘. It follows that the EIB, by virtue of the EC Treaty, forms part of the framework of the Community.


It follows that the fact that Regulation No 1073/1999 also concerns the EIB, which, having been established by the EC Treaty, by virtue of that Treaty has its own resources distinct from those of the Community budget, does not provide grounds for finding the regulation inapplicable on the basis of Article 241 EC.


Legal basis of Regulation No 1074/1999


By its third ground of defence, the EIB contends that Regulation No 1074/1999 must be declared inapplicable under Article 156 EA on the ground that it could not be adopted on the basis of Article 203 EA.


Those arguments cannot be accepted.


First, it is a fact, as the Advocate General has stated at paragraph 139 of his Opinion, that the mere circumstance that the EIB is not mentioned in the Euratom Treaty cannot prevent the provisions of that Treaty, or the measures adopted under it, from applying, where appropriate, to the EIB.


Second, contrary to the EIB's assertion, Article 183a EA does encapsulate an independent objective of protecting the financial interests of the European Atomic Energy Community (see, by analogy, Case C-209/97 Commission v Council [1999], paragraph 29).


The EIB is therefore wrong to maintain that a measure such as Regulation No 1074/1999, which indisputably has the aim of combating fraud affecting the European Atomic Energy Community's interests, was not adopted for the purpose of attaining one of the objectives of that Community.


Infringement of Regulations Nos 1073/1999 and 1074/1999


In that regard, it must be pointed out, as the Commission has claimed, that the contested decision infringes Article 4 of Regulations Nos 1073/1999 and 1074/1999 in a number of ways.


First, it follows, first, from paragraph 4 of Part I of the contested decision that internal investigations at the EIB are carried out only by Internal Audit, in accordance with the Rules of Procedure of the EIB, and, second, from paragraphs 5 to 8 of Part I of that decision that cooperation with OLAF is limited in that regard to having an internal investigation carried out by Internal Audit at the request of the Director of OLAF and communicating the results of the investigation to him.


Second, paragraphs 9 and 10 of Part I of the contested decision provide that access by OLAF to information held by the EIB depends, in each individual case, on the authorisation of the President of the EIB and that the President is to determine the rules governing such access.


Read in the light of the preamble to the contested decision, which states expressly that the decision was adopted taking into account the legal framework of the EIB as laid down by the EC Treaty and the EIB Statute, moreover,

the various provisions described above clearly reflect a decision on the part of the EIB to regard Regulations Nos 1073/1999 and 1074/1999 as not applicable to it.



The Court:


'1. Annuls the Decision of the Management Committee of the European Investment Bank of 10 November 1999 concerning cooperation with the European Anti-Fraud Office (OLAF);


2. Orders the European Investment Bank to pay the costs;


3. Orders the Kingdom of the Netherlands, the European Parliament and the Council of the European Union to bear their own costs.‘



Advocate General F.G. Jacobs delivered his Opinion at the sitting of the Full Court on 3 October 2002.


He proposed that the Court should:


'(1) declare void the Decision of 10 November 1999 of the Management Committee of the European Investment Bank concerning cooperation with the European Anti-Fraud Office (OLAF);


(2) order the EIB to pay the costs of the Commission;


(3) order the European Parliament, the Council and the Kingdom of the Netherlands to bear their own costs.‘




························






Joined Cases C-20/00 and C-64/00

Booker Aquaculture Ltd,

Hydro Seafood GSP Ltd v The Scottish Ministers

Principles of Community law






10 July 2003

Preliminary ruling

(Directive 93/53/EEC · Destruction of fish stocks infected by viral haemorrhagic septicaemia (VHS) and infectious salmon anaemia (ISA) · Compensation · Obligations of the Member State · Protection of fundamental rights, particularly of the right to property · Validity of Directive 93/53)

(Full Court)


By orders of 11 January 2000 (C-20/00) and 18 February 2000 (C-64/00) the Court of Session (Scotland) referred to the Court for a preliminary ruling several questions on the interpretation of the principles of Community law on the protection of fundamental rights, in particular of the right to property, and on the validity of Council Directive 93/53/EEC of 24 June 1993 introducing minimum Community measures for the control of certain fish diseases.


Facts in the main proceedings and the questions referred


Case C-20/00


McConnell Salmon Limited ('MSL‘) was acquired by Booker in 1995 and 1996. MSL had entered into a lease of a turbot farm on the Isle of Gigha (United Kingdom) in 1993. At the same time it had purchased a turbot stock of year classes 1991 and 1993. It subsequently introduced further turbot to the farm, of year class 1994. The farm was, at that time, situated in an approved zone under Directive 91/67, as amended.


In August 1994, an outbreak of Viral haemorrhagic septicaemia ('VHS‘) was confirmed at that farm, and, in September 1994, the Secretary of State for Scotland served a notice (hereinafter 'the 1994 Notice‘) on MSL under Regulation 7 of the Diseases of Fish (Control) Regulations 1994.


The fish in year classes 1993 and 1994 were not of a commercial size when the 1994 Notice was served and thus had to be killed and destroyed in accordance with paragraph 4 thereof. The fish in year class 1991, which were then of commercial size, were slaughtered for marketing or processing for human consumption, in accordance with paragraph 5 of that notice.


As a result of that outbreak of VHS, Decision 92/538 was amended by Commission Decision 94/817/EC of 15 December 1994, so as to redefine the approved zones with regard to VHS as including '[t]he territory of Great Britain except the island of Gigha‘.


MSL claimed compensation from the Secretary of State for the loss it had allegedly suffered as a result of the slaughter and destruction of the 1993 and 1994 fish, and the slaughter and forced early marketing of the 1991 fish. In May 1996, the Secretary of State informed the petitioner in the main proceedings that he considered that it had no legal right to compensation, and, moreover, that it would be inappropriate to make an ex gratia payment, on the ground that the Government had a long-established policy of not paying compensation to those subjected to measures taken for the control of fish diseases.


Booker commenced an action against the Secretary of State seeking judicial review of Regulation 7 of the Diseases of Fish (Control) Regulations 1994 and of the decision refusing compensation taken by the Secretary of State in May 1996. At first instance, the Lord Ordinary in the Court of Session (Scotland) (United Kingdom) found that the Secretary of State had acted illegally by failing to provide either legislative or administrative means for payment of any compensation where slaughter orders were made under that regulation.


The Secretary of State appealed against that decision. The Scottish Ministers, who had in law succeeded the Secretary of State, adopted his position in relation to the claim for compensation and proceeded with the appeal.


Since it took the view that the outcome of the main proceedings depended on the interpretation of Community law, the Court of Session (Scotland) decided to stay proceedings and to refer a number of questions to the Court for a preliminary ruling.


Case C-64/00


Hydro Seafood operates several salmon farms in western Scotland. In 1998, those farms were affected by an outbreak of ISA. Pursuant to Regulation 5 of the Diseases of Fish (Control) Regulations 1994, the Secretary of State served several notices (hereinafter 'the 1998 Notices‘) on Hydro Seafood between May and July 1998 requiring the slaughter of its stocks of fish which were not yet of marketable size and the marketing of its stocks which were of such size.


Hydro Seafood complied with the 1998 Notices. It claimed however that, besides the loss resulting directly from the destruction and early sale of its fish stocks, it had incurred further significant costs through the stringent practical measures imposed by the 1998 Notices. Hydro Seafood therefore claimed compensation from the Secretary of State for its losses, which it estimated at GBP 14 million. The latter rejected the claim and refused any compensation.


In March 1999, Hydro Seafood commenced an action against the Secretary of State for judicial review of that decision refusing compensation. Having succeeded the Secretary of State, the Scottish Ministers adopted the same position.


Since it took the view that the main action raised similar but not identical questions to those referred to the Court in Case C-20/00, the Court of Session (Scotland) decided to stay proceedings and to refer a number of questions to the Court for a preliminary ruling.


The first and second questions in Cases C-20/00 and C-64/00 and the fourth question in Case C-64/00


It should be noted, at the outset, that Directive 93/53 provides that, at farms infected by certain diseases, Member States are to adopt, among others, the following measures:


· in relation to List I diseases, all fish showing clinical signs of disease are to be regarded as high-risk material and must be destroyed under the supervision of the official service. All live fish must be killed and destroyed

under the supervision of the official service, or, in the case of fish which are of marketable size and show no clinical signs of disease, be slaughtered under the supervision of the official service with a view to their marketing or processing for human consumption (first paragraph of Article 6, subparagraph (a), of Directive 93/53);


· in relation to List II diseases, the restoration of a zone's approval under Directive 91/67, as amended, is subject to fulfilment of the requirements of Annex B to that directive, particularly the slaughter of all fish at the infected farms and the destruction of the infected or contaminated fish. The official service may, however, authorise the fattening of fish to be slaughtered until they reach commercial size (Article 9 of Directive 93/53).


In that context, the first two questions referred for a preliminary ruling in both Case C-20/00 and Case C-64/00, as well as the fourth question referred in Case C-64/00, are intended to ascertain, firstly, whether Directive 93/53, in so far as it imposes minimum control measures for List I diseases, is invalid because it infringes the fundamental right to property and, secondly, whether the measures adopted by a Member State against List I and List II diseases in implementing that directive are incompatible with that right, where neither the directive nor the national implementing measures provides for the award of compensation to affected owners.


It must be stated at the outset that no right of compensation for the benefit of owners whose fish have been destroyed or slaughtered following the implementation of such measures follows either from the scheme or from the terms of Directive 93/53.


It is therefore necessary to determine whether, in the absence of compensation for affected farmers, Directive 93/53 is compatible with the fundamental right to property.


It is apparent from the preamble of Directive 93/53 that it too fulfils a double function. Firstly, it enables the taking of control measures as soon as the presence, on a farm, of a List I or II disease is suspected, so that immediate and effective action can be implemented once the presence of the disease is confirmed. Secondly, as an outbreak of disease can quickly spread and become epizootic, causing the death of numerous fish as well as disturbances on such a scale that the profitability of aquaculture can be seriously reduced, that directive seeks to prevent the spread of the disease, in particular by carefully monitoring movements of fish and products liable to spread the infection.


Directive 93/53 therefore seeks to contribute to the completion of the internal market in aquaculture animals and products and forms part of a regime intended to introduce minimum Community measures for the control of certain fish diseases. Accordingly, the measures which that directive imposes are in conformity with objectives of general interest pursued by the Community.


As to whether, taking into account the objective sought and in the absence of compensation, the restrictions on the right to property resulting from those measures constitute a disproportionate and intolerable interference impairing the very substance of the right to property, it must be observed that those measures are urgent and are intended to guarantee that effective action is implemented as soon as the presence of a disease is confirmed and to eliminate any risk of the spread or survival of the pathogen.


Further, the measures referred to do not deprive farm owners of the use of their fish farms, but enable them to continue to carry on their activities there.


In effect, the immediate destruction and slaughter of all the fish enable owners to restock the affected farms as soon as possible.


Those measures therefore enable the resumption of the transportation and placing on the market in the Community of species of live fish susceptible to List I and II diseases, with the result that all interested parties, including fish farm owners, may benefit as a result.


It follows from all the preceding considerations that the minimum measures of immediate destruction and slaughter laid down by Directive 93/53 in order to control List I diseases do not constitute, in the absence of compensation for affected owners, a disproportionate and intolerable interference impairing the very substance of the right to property.


In circumstances such as those in the main proceedings, the implementation by a Member State of control measures against List II diseases, which are similar to the minimum measures which the Community has laid down for List I diseases and which do not provide for compensation, corresponds to objectives of general interest pursued by the Community and does not constitute a disproportionate and intolerable interference impairing the very substance of the right to property.



The Court ruled:


'1. Examination of the fourth question referred for a preliminary ruling in Case C-64/00 has disclosed no factor of such a kind as to affect the validity of Council Directive 93/53/EEC of 24 June 1993 introducing minimum Community measures for the control of certain fish diseases, by reason of its laying down minimum measures to control diseases in List I in Annex A to Council Directive 91/67/EEC of 28 January 1991 concerning the animal health conditions governing the placing on the market of aquaculture animals and products, as amended by Council Directive 93/54/EEC of 24 June 1993, without providing for compensation for owners affected by those measures.


2. The measures for the immediate destruction and slaughter of fish implemented by a Member State in order to control List I and II diseases in the context of the application of Directive 93/53, which are, respectively, identical and similar to the minimum measures which the Community has laid down for List I diseases and which do not provide for compensation, are not, in circumstances such as those in the main proceedings, incompatible with the fundamental right to property.


3. In circumstances such as those in the main proceedings, the fact that the outbreak of the disease is due or not due to the fish owner's fault has no bearing on the compatibility with the fundamental right to property of the measures imposed by a Member State in order to control List I and II diseases in the context of the application of Directive 93/53.‘



Advocate General J. Mischo delivered his Opinion at the sitting of the Full Court on 20 September 2001.


He proposed that the Court should answer as follows:


'(1) In Case C-20/00























Website - http://www.curia.europa.eu/en/actu/activites/act03/0320en.htm

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