Regina v Minister of Agriculture, Fisheries and Food and Secretary of State For Health, ex Parte Fedesa and Others: ECJ 13 Nov 1990

ECJ 1. Community law – Principles – Legal certainty – Protection of legitimate expectations – Prohibition of the use in livestock farming of certain substances having a hormonal action in the absence of unanimity as to their harmlessness – Infringement – None (Council Directive 88/146) 2. Community law – Principles – Proportionality – Prohibition of an economic activity – Whether disproportionate – Assessment criteria – Discretionary power of the Community legislature in the field of the common agricultural policy – Judicial review – Limits (EEC Treaty, Arts 40 and 43) 3. Community law – Principles – Equal treatment – Harmonization measure applied equally to all the Member States – Differing effects depending on the previous state of national law – Discrimination – None 4. Agriculture – Approximation of laws – Prohibition of the use in livestock farming of certain substances having a hormonal action – Objectives pursued – Choice of legal basis – Article 43 of the Treaty – Misuse of powers – None
(EEC Treaty, Arts 39 and 43, Council Directive 88/146) 5. Measures adopted by the Community institutions – Procedure for enactment – Preparatory documents not affected by a procedural defect occurring at the stage of the final decision in the Council leading to annulment by the Court – Adoption of a new measure on the basis of earlier preparatory documents -Legality 6. Measures adopted by the Community institutions – Application ratione temporis – Period for compliance by the Member States with a directive expiring prior to its adoption – Retroactive effect – Permissibility in the light of the objective to be attained and in the absence of any infringement of the principle of the protection of legitimate expectations – Limits -Principle of non-retroactivity of penal provisions (Council Directive 88/146, Art. 10)
1. Having regard to the divergent appraisals by the national authorities of the Member States, reflected in the differences between existing national legislation, of the dangers which may result from the use of certain substances having a hormonal action, the Council, in deciding in the exercise of its discretionary power to adopt the solution of prohibiting them, neither infringed the principle of legal certainty nor frustrated the legitimate expectations of traders affected by that measure. 2. In accordance with the principle of proportionality, which is one of the general principles of Community law, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question, it being understood that when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. However, with regard to judicial review of compliance with those conditions it must be borne in mind that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue. 3. Although a harmonization measure which is intended to standardize previously disparate rules of the Member States inevitably produces different effects depending on the prior state of the various national laws, there cannot be said to be discrimination where it applies equally to all Member States. 4. A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case. That was not so in the case of Directive 88/146 prohibiting the use in livestock farming of certain substances having a hormonal action, which was adopted by the Council on the basis of Article 43 of the Treaty alone. By regulating conditions of the production and marketing of meat in order to improve its quality while curbing surplus production, that directive falls within the scope of the measures provided for by the common organization of the markets in meat and thus contributes to the attainment of the objectives set out in Article 39 of the Treaty. 5. The annulment by a judgment of the Court of a Council directive on account of a procedural defect concerning solely the manner in which it was finally adopted by the Council does not affect the preparatory acts of the other institutions. Therefore, these acts need not be repeated when the Council adopts a new directive replacing the one which has been annulled. Changes occurring in the interval in the composition of those institutions are of no effect since they do not affect the continuity of the institutions themselves. Whether or not a subsequent change in circumstances must be taken into consideration is for each institution to assess. 6. By fixing 1 January 1988 as the date of expiry of the period for implementation of Directive 88/146 prohibiting the use in livestock farming of substances having a hormonal action, Article 10 of the directive gives it retroactive effect in so far as the directive was adopted and notified in March 1988. Outside the criminal sphere, such retroactive effect is permissible, since, first, the directive replaced an earlier directive annulled because of a procedural defect, and the Council considered it necessary in order to avoid a temporary legal vacuum during the period between the annulment of one instrument and its replacement by a lawfully adopted text with regard to the existence of a basis in Community law for national provisions adopted by the Member States in order to comply with the directive which was annulled, and, secondly, there was no infringement of the legitimate expectations of the traders concerned, in light of the rapid succession of the two directives and the reason for which the first one was annulled. As regards the criminal sphere, on the other hand, Article 10 of the directive cannot be interpreted as requiring Member States to adopt measures which conflict with Community law, in particular with the principle that penal provisions may not have retroactive effect, which Community law incorporates, as a fundamental right, among its general principles. Nor may it provide a basis for criminal proceedings instituted under provisions of national law which may have been adopted in implementation of the annulled directive and whose sole basis is to be found therein.
In relation to an alleged infringement of the principle of legal certainty: ‘ . . having regard to the discretionary power conferred on the Council in the implementation of the common agricultural policy, be limited to examining whether the measure in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceeded the limits of its discretion.’
and . . ‘The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.’

Citations:

C-331/88, R-88/14, [1990] EUECJ R-88/146, [1990] ECR I-4023

Links:

Bailii

Statutes:

EEC Treaty 39 43, Council Directive 88/146

Jurisdiction:

European

Cited by:

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Lists of cited by and citing cases may be incomplete.

European, Agriculture, Health

Leading Case

Updated: 06 April 2022; Ref: scu.134975