Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04

Joined Cases C-453/03, C-11/04, C-12/04 and C-194/04

ABNA Ltd and Others

v

Secretary of State for Health and Others

(References for preliminary rulings from the

the High Court of Justice (England and Wales), Queen’s Bench Division

(Administrative Court), from the Consiglio di Stato and from

the Rechtbank ‘s-Gravenhage)

(Animal health and public health requirements – Compound feedingstuffs for animals – Indication of the exact percentages of the components of a product – Infringement of the principle of proportionality)

Summary of the Judgment

1.Acts of the institutions – Choice of legal basis – Criteria – Measure concerning compound feedingstuffs – Measure contributing directly to the protection of public health – Adoption on the basis of Article 152(4)(b)EC – Legality

(Art. 152(4)(b) EC; European Parliament and Council Directive 2002/2)

2.Protection of public health – Compound feedingstuffs – Directive 2002/2 – Public-health protection objective – Difference in treatment objectively justified

(Art. 152(1) EC; European Parliament and Council Directive 2002/2, Art. 1(1)(b) and 1(4))

3.Protection of public health – Compound feedingstuffs – Directive 2002/2 – Principle of proportionality – Obligation on manufacturers to indicate to customers the exact composition of a feedingstuff – Breach – Obligation to indicate the percentages of the ingredients of a feedingstuff – Breach – None

(European Parliament and Council Directive 2002/2, Art. 1(1)(b) and 1(4))

4.Protection of public health – Compound feedingstuffs – Directive 2002/2 – Application – Condition – Adoption of a positive list of feed materials designated by their specific names – None

(European Parliament and Council Directive 2002/2, recital (10) in the preamble)

5.Acts of the institutions – Grant by a national court of suspension of the application of a Community measure – Referral to the Court by way of a reference for a preliminary ruling on the appraisal of validity – Power of the administrative authorities of the other Member States to suspend application of that measure pending the judgment of the Court – No such power

1.In the context of the organisation of the powers of the Community, the choice of the legal basis for a measure must rest on objective factors which are amenable to judicial review. Those factors include, in particular, the aim and content of the measure. Directive 2002/2 on the circulation of compound feedingstuffs is based on Article 152(4)(b)EC, which allows the adoption of measures in the veterinary and phytosanitary fields having as their direct objective the protection of public health. It follows from an examination of the recitals in the preamble to that directive that the objective pursued by the Community legislature, when it adopted, in Article 1(1)(b) and 1(4), the provisions relating to the indication of feed materials for animal feedingstuffs, was to respond to the need to have more detailed information in regard to the indication of the components of feedingstuffs in order to ensure, inter alia, the traceability of potentially contaminated feed materials for the purpose of identifying specific batches, a matter beneficial to public health. Those provisions are therefore likely to contribute directly to the pursuit of the objective of safeguarding public health and were thus able to be validly adopted on the basis of Article 152(4)(b)EC.

(see paras 54-57, 60)

2.The objective pursued by Directive 2002/2 on the circulation of compound feedingstuffs, namely the protection of public health, may justify a difference in treatment, particularly when one bears in mind the obligation under Article 152(1)EC to ensure a high level of human health protection in the definition and implementation of all Community policies and activities. Furthermore, even though it may be possible to demonstrate that measures as restrictive as those in Article 1(1)(b) and 1(4) of Directive 2002/2 may also be justified in areas in which such measures have not yet been taken, such as that of foodstuffs intended for human consumption, that does not constitute a sufficient reason for taking the view that the measures adopted within the area which is the subject of the Community measures in issue are not lawful on the ground of their discriminatory character. If that were not so, this would have the effect of bringing the level of public health protection down to that of the existing legislation which provides the least protection.

(see paras 64 and 65)

3.Article 1(1)(b) of Directive 2002/2 on the circulation of compound feedingstuffs, which requires manufacturers of compound feedingstuffs to indicate, at a customer’s request, the exact composition of a feedingstuff, is invalid in the light of the principle of proportionality. That obligation impacts seriously on the economic interests of manufacturers, as it obliges them to disclose the formulas for the composition of their products, at the risk of those products being used as models, possibly by customers themselves, and those manufacturers cannot obtain the benefit of the investments which they have made in terms of research and innovation.

Such an obligation cannot be justified by the pursued objective of protecting public health and manifestly goes beyond what is necessary to attain that objective. First, that obligation is independent of any problem relating to feedingstuff contamination and has to be met only if the customer so requests. Furthermore, the indication, on the labelling, of the percentages within brackets should normally make it possible to identify a feedingstuff suspected of being contaminated, in order to assess the degree of danger which it represents in relation to the weight indicated and to decide, if necessary, to withdraw it temporarily pending the results of laboratory analyses, or for the establishment of the traceability of the product by the public authorities concerned. Finally, irrespective of the control procedures in relation to food safety established within the framework of Regulation No 178/2002, which was adopted on the same day as Directive 2002/2, Article 1(5) of the latter provides that manufacturers of compound feedingstuffs are obliged to make available to the authorities responsible for carrying out official inspections, on request, any document concerning the composition of feedingstuffs intended to be put into circulation which enables the accuracy of the information given by the labelling to be verified.

By contrast, Article 1(4) of that directive, which imposes the obligation to indicate, within brackets, the percentages of the ingredients making up a feedingstuff, does not infringe the principle of proportionality because, within the framework of the broad discretion which the Community legislature is recognised as having in this area, that obligation is a measure which is liable to contribute to the objective of safeguarding animal and human health. It makes it possible to identify the ingredients of a feedingstuff that are suspected of having been contaminated without awaiting the results of laboratory analyses and to withdraw that feedingstuff rapidly from use.

(see paras 69, 76, 82-86, operative part 3)

4.Directive 2002/2 on the circulation of compound feedingstuffs must be interpreted as meaning that its application is not subject to the adoption of the positive list of feed materials designated by their specific names, as provided for in recital (10) in the preamble to that directive.

It follows from the wording of that recital that the establishment of a proposal for a positive list of feed materials can constitute only an aspiration on the part of the Community legislature. That recital envisages merely the carrying-out of a feasibility study, the drafting of a report and the submission of an appropriate proposal which takes account of the conclusions reached in that report. Moreover, the content of that recital is not reproduced in the operative part of the directive and examination of the latter does not in any way indicate that its implementation is contingent on the adoption of that positive list. More specifically, it does not appear that the labelling obligation cannot be complied with in the absence of such a list or that the repeal of Directive 91/357 laying down the categories of feed materials which may be used for the purposes of labelling compound feedingstuffs for animals other than pet animals made it impossible to implement Directive 2002/2, as manufacturers can, in the absence of Community rules, or even national rules, in that regard, use current specific designations of the feed materials.

(see paras 95-98, operative part 4)

5.Even in the case in which a court of a Member State forms the view that the conditions have been satisfied under which it may suspend application of a Community measure, in particular where the question of the validity of that measure has already been referred to the Court of Justice, the competent national administrative authorities of the other Member States cannot suspend application of that measure until such time as the Court has ruled on its validity. National courts alone are entitled to determine, taking into consideration the specific circumstances of the cases brought before them, whether the conditions governing the grant of interim relief have been satisfied.

The coherence of the system of interim legal protection requires that national courts should be able to order suspension of enforcement of a national administrative measure based on a Community regulation, the legality of which is contested. However, the uniform application of Community law, which is a fundamental requirement of the Community legal order, means that the suspension of enforcement of administrative measures based on a Community regulation, whilst it is governed by national procedural law, in particular as regards the making and examination of the application, must in all the Member States be subject, at the very least, to conditions which are uniform so far as the granting of such relief is concerned and are the same as those of an application for interim relief brought before the Court. In order to determine, in particular, whether the conditions relating to urgency and the risk of serious and irreparable damage have been satisfied, the national court dealing with an application for interim relief must examine the circumstances particular to the case before it and consider whether immediate enforcement of the measure which is the subject of the application for interim relief would be likely to result in irreversible damage to the applicant which could not be made good if the Community measure were to be declared invalid. As the court responsible for applying, within the framework of its jurisdiction, the provisions of Community law and consequently under an obligation to ensure that Community law is fully effective, the national court, when dealing with an application for interim relief, must take account of the damage which the interim measure may cause to the legal regime established by a Community measure for the Community as a whole. It must consider, on the one hand, the cumulative effect which would arise if a large number of courts were also to adopt interim measures for similar reasons and, on the other, those special features of the applicant’s situation which distinguish it from the other economic operators concerned. In particular, if the grant of interim relief may represent a financial risk for the Community, the national court must be in a position to require the applicant to provide adequate guarantees.

National administrative authorities are not in a position to adopt interim measures while complying with the conditions for granting such measures as defined by the Court. In the first place, the actual status of those authorities is not in general such as to guarantee that they have the same degree of independence and impartiality as that which national courts are recognised as having. Likewise, it is not certain that such authorities would benefit from the exercise of the adversarial principle inherent to judicial proceedings, which allows account to be taken of the arguments put forward by the different parties before the interests in issue are weighed one against the other at the time when a decision is being taken.

(see paras 103-109, 111, operative part 5)