ECJ Order – 1. It is open to the Court hearing an application for interim relief to order the suspension of the operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as it must, in order to avoid serious and irreparable damage to the applicant’ s interests, be made and produce its effects before a decision is reached in the main action. The Court is also to balance the interests at stake. Suspension and other measures granted under Article 186 of the Treaty must, moreover, be provisional inasmuch as they must not prejudge the points of law or fact in issue or neutralize in advance the effects of the decision subsequently to be given in the main action.
In the context of that overall examination, the Court hearing the application enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a preestablished scheme of analysis by reference to which the need to order interim measures must be assessed.
2. The urgency of an interim measure must be considered by reference to whether it is necessary to make a provisional ruling in order to avoid the occurrence of serious and irreparable harm as a result of immediate application of the measure contested in the main action. As regards the nature of the harm which may be invoked, it must be noted that the Member States are responsible for those interests, in particular of an economic and social nature, which are regarded as general interests at national level and are thereby entitled to defend such interests before the courts. They may therefore invoke damage affecting a whole sector of their economy, in particular when the contested Community measure may entail unfavourable repercussions on the level of employment and the cost of living.
3. Where an applicant seeking suspension of operation of a measure invokes the risk of its suffering serious and irreparable harm, the Court hearing the application must determine, when balancing the interests at stake, whether the possible annulment of the contested decision by the Court seised of the main action would allow the situation brought about by its immediate implementation to be reversed and, conversely, whether suspension of the operation of that decision would be such as to prevent its being fully effective in the event of the main application being dismissed.
4. An application by the United Kingdom for suspension of the operation of Commission Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy or even of part of it, or for interim measures qualifying its application, cannot be granted. Whilst some of the pleas in law put forward by the Member State contesting the lawfulness of that decision cannot be wholly ruled out at the stage of examination of the interim application, the Commission has none the less presented serious arguments as to the lawfulness of its decision as a whole. Furthermore, the balancing of the interests at stake inevitably leads to recognition that the protection of public health against a fatal risk, which can in no way be ruled out in the present state of scientific knowledge, must take precedence over the economic and social damage which the Member State may invoke as being likely to result from the application of the said decision, even if that damage is not easily reparable.
Europa In order for an act of the Council or the Commission to form the subject-matter of an action for annulment, it must be intended to have legal effects. That is not the position in the case of an act of the Commission which reflects its intention, or that of one of its departments, to follow a particular line of conduct or which merely confirms a previous act in such a way that annulment of the confirmatory act would follow from annulment of the previous act.
In adopting Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy, which imposes, on a temporary basis, a total ban on exports of bovine animals, bovine meat and derived products from the territory of the United Kingdom to the other Member States and to third countries, the Commission acted within the framework of the powers conferred on it by Directives 90/425 and 89/662 concerning veterinary and zootechnical checks applicable in intra-Community trade. First, the conditions governing the adoption of safeguard measures in accordance with those two directives were fulfilled, particularly since the power to adopt such measures is justified by the fact that a zoonosis, disease or other cause is likely to constitute a serious hazard. Second, having regard, in particular, to the fact that the directives are drafted in very wide terms, without imposing any restrictions as to the temporal or territorial scope of the measures concerned, it does not appear that the Commission clearly exceeded the bounds of its broad discretion in seeking to contain the disease within the territory of the United Kingdom by banning exports from that territory to other Member States and to third countries. Lastly, the decision is not vitiated by misuse of powers, since the Commission was prompted to act by concerns as to the risk of transmissibility of bovine spongiform encephalopathy to humans, after examining the measures adopted by the United Kingdom and consulting the Scientific Veterinary Committee and the Standing Veterinary Committee, its exclusive or main purpose not being to protect economic interests rather than health.
Decision 96/239 on emergency measures to protect against bovine spongiform encephalopathy, which imposes, on a temporary basis, a total ban on exports of bovine animals, bovine meat and derived products from the territory of the United Kingdom to the other Member States and to third countries, fulfils the requirement to provide a statement of reasons, does not breach the principles of proportionality, non-discrimination or legal certainty and is in accordance with the objectives of the common agricultural policy set out in Article 39(1) of the Treaty. As regards, more particularly, the principle of proportionality, it was open to the Commission, in view of the great uncertainty as to the risks posed by the animals and products concerned, to take the protective measures in issue without having to wait until the reality and seriousness of those risks became fully apparent. As regards the principle of non-discrimination laid down in the second subparagraph of Article 40(3) of the Treaty, the fact that, at the time of adoption of the decision, almost all the cases of bovine spongiform encephalopathy in Europe were recorded in the United Kingdom meant that the situation in that Member State could not be regarded as comparable with that in the other Member States.
Article 43 of the Treaty is the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the achievement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty. In that connection, and having regard to the importance of the role played by the free movement of animals, animal products and products of animal origin in achieving those objectives, Article 43 constituted the appropriate legal basis for the adoption of Directives 90/425 and 89/662 concerning veterinary and zootechnical checks applicable in intra-Community trade, even though those directives authorise the Commission incidentally to adopt safeguard measures covering `products of animal origin’, `products derived from those products’ and `products derived’ from animals which are not included in Annex II to the Treaty.
Citations:
Times 06-May-1998, C-180/96, [1996] EUECJ C-180/96R
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Citing:
See Also – United Kingdom v Commission (Rec 1996,p I-3903) (Order) ECJ 12-Jul-1996
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Cited by:
Cited – United Kingdom v Commission ECJ 5-May-1998
Agriculture – Animal health – Emergency measures against bovine spongiform encephalopathy – ‘Mad cow disease’ . .
Lists of cited by and citing cases may be incomplete.
European, Agriculture, Health, Animals
Updated: 03 June 2022; Ref: scu.161875
