On the other hand, the Advocate General takes the view that the refusal to lift the ban on indirect imports is justified in the absence of a complete set of Community rules concerning traceability and labelling.
Community measures based on the precautionary principle have been adopted since 1990 to combat bovine spongiform encephalopathy (BSE).
On 27 March 1996 a Commission decision banned the export of cattle, beef and veal and derived products from the United Kingdom to the other Member States and non-member countries. Amendments were subsequently made to that decision as the scientific investigation of BSE progressed.
The total ban established in 1996 was accordingly lifted, subject to very strict conditions (product traceability back to the animal, its dam and its herd of origin; the animal's age), from 1 June 1998 for meat products from cattle slaughtered in Northern Ireland within the framework of a scheme for the certification of herds for export (the Export Certified Herds Scheme - ECHS).
By a decision of 25 November 1998, the Commission established the Date-Based Export Scheme (DBES) in order to permit the resumption of exports from the United Kingdom of meat and meat products from cattle born after 1 August 1996.
On 23 July 1999 the Commission set 1 August 1999 as the date from which the export of animals born after 1 August 1996 could commence.
Since the French Republic refused to apply that decision, the Commission asked the Court of Justice of the European Communities for a declaration that France had failed to fulfil its Community obligations.
Advocate General Jean Mischo delivered his Opinion in that case today.
The Advocate General's Opinion is not binding on the Court. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the case assigned to them.
First, the Advocate General recalls the Court's case-law according to which a Member State cannot claim that a Community measure is unlawful when defending itself against a complaint that it has failed to apply that measure. France could have brought an action before the Court for the annulment of the measures permitting exports to be resumed. However, the French Government neither challenged the DBES in due time nor brought an action against the Commission decision of 23 July 1999.
The Advocate General observes that France would not have been entirely without solid arguments for challenging the date for resumption of exports, given the Community requirements laid down in 1998. In 1999 the Commission still had not received notification from all the Member States of the choices made with regard to specific marking, so that complete traceability and appropriate labelling were not ensured.
Also, the Advocate General agrees with the Commission's assertion that a Member State cannot take refuge behind a national scientific body (in the present case the Agence française de sécurité sanitaire des aliments - the French Food Safety Agency) to oppose a Commission decision based on a scientific opinion of a Community body (the Scientific Steering Committee) which has assessed the objections of the national body and held them unfounded.
Since, in the Advocate General's view, the legality of the decision by the Commission therefore cannot be considered, he examines France's arguments concerning the possibility, in the absence of full Community harmonisation, of relying on the exception under which a Member State may oppose the free movement of goods. He determines that, while the principles of traceability and labelling were established, the regime set up to combat BSE did not lay down the rules which the Member States other than the United Kingdom were to adopt.
In those circumstances, the Advocate General is of the view that there was not full harmonisation in 1999 - if only because it was not until 2001 that a regulation was adopted laying down rules, applicable from 1 July 2001, for the prevention, control and eradication of certain transmissible spongiform encephalopathies - and that under the EC Treaty there was therefore room for national measures to protect public health.
The Advocate General therefore analyses whether France's conduct was justified having regard to the protection of public health and did not amount to discrimination against United Kingdom meat.
- As regards products coming directly from the United Kingdom and complying with the strict rules of the DBES, the Advocate General considers that the French Government could not oppose the lifting of the ban and that it was up to it alone to adopt national measures for maintaining traceability and labelling, from the entry of the products into France until their sale to the ultimate consumer.
- The refusal to lift the ban appears, by contrast, to be an appropriate measure for indirect imports (imports of products coming from the United Kingdom via another Member State): it is notpossible for the French authorities to restore traceability and organise any recall of a contaminated consignment if the effect of the products passing through the market of another Member State is to introduce a break in the traceability process which is ensured by the Community mechanism until the products leave United Kingdom territory.