The Court nevertheless stresses the importance of a reliable tracing system for protecting public health. It also finds that certain difficulties in applying Community decisions were the result of unclear legislation.
Various measures adopted by the Council and the Commission since 1990 have established a programme for combatting bovine spongiform encephalopathy (BSE). On 27 March 1996 a complete ban on all forms of bovine products from the United Kingdom was decided upon, following the announcement of a probable link between that disease and a variant of Creutzfeldt- Jakob disease affecting human beings. Arrangements were made for the gradual lifting of that ban from June 1998.
The ban was lifted first in relation to meat and meat products from cattle slaughtered in Northern Ireland falling within the Export Certified Herds Scheme (ECHS). Subsequently, a decision of 25 November 1998 laid down the conditions for the export of beef, veal and other bovine products from the United Kingdom falling within a scheme founded on the animal's date of birth (Date-Based Export Scheme - DBES). The conditions of this scheme related to the identification and traceability of animals: only animals born after 1 August 1996 - the date upon which the use of meat-and-bone meal was prohibited - whose origin and precise descent were traceable could be exported.
On 23 July 1999 the Commission, having verified that the protective arrangements were applied correctly, set 1 August 1999 as the date for the lifting of the ban and the resumption of imports of beef, veal and derived products from the United Kingdom to the other Member States.
France refused to implement that decision and authorised solely the transit of such products through its territory, relying on the opinion of the French Food Safety Agency.
On 4 January 2000 the Commission brought an action before the Court of Justice of the European Communities for a declaration that the French Government had failed to comply with its Community obligations by refusing to permit United Kingdom beef which met Community requirements to be marketed in France from 1 August 1999.
The Commission maintained that the date set under Community decisions for the resumption ofexports was binding on the Member States which therefore could not shelter behind doubts or problems of interpretation in order not to apply those decisions. It added that the ban could not be justified since the products concerned were covered by Community harmonisation constituting a coherent and exhaustive system for ensuring that human and animal health were protected.
The French Government argued in particular that the lack of reliability of the DBES and the absence of Community harmonisation concerning labelling and traceability in the Member States of beef, veal and derived products of United Kingdom origin, coupled with inadequate programmes of detection tests, meant that it could not lift the ban.
The Court stated that this questioning of the effectiveness of the DBES must be interpreted as a challenge to the legality of the Community decisions which established that scheme. The French Government should, if necessary, have brought in due time appropriate proceedings for reviewing the legality of the measures adopted by the Community institutions (whether the initial decision relating to the DBES or the decision of 23 July 1999 lifting the ban), a review which was now impossible in infringement proceedings brought against that Member State.
With regard to the traceability of products - a fundamental condition of the DBES - which according to France did not exist beyond United Kingdom cutting plants, the Court emphasised that traceability is essential up to the point of sale in order to enable a consignment not fulfilling the conditions of the DBES to be recalled.
The Court found that such traceability was not guaranteed at the time of the Commission decision of 23 July 1999 lifting the ban, in particular as regards meat and products subject to the DBES which had been cut, processed or rewrapped.
A protocol of understanding had been concluded on 24 November 1999 between the United Kingdom, France and the Commission. It provided that products directly dispatched to France could be made subject to specific identification. The other Member States were to take binding measures to ensure that all meat and derived products dispatched from the United Kingdom were marked and labelled and that the marking was retained after cutting, processing or rewrapping on their territory. Improvement of the tracing system depended on mutual assistance between Member States; however, some Member States had expressly ruled out distinct marking for United Kingdom meat.
The Community rules on traceability laid down by the DBES were not in fact binding. Furthermore, other Community regulations merely contained provisions governing the power of the Member States to impose a system for the labelling of beef and veal. It was not until 17 July 2000 that a complete system of tracing and mandatory labelling was established, applicable to animals slaughtered from 1 September 2000.
At the time when the Commission adopted its decision of 23 July 1999 to lift the ban, it was thus for the Member States to take the necessary measures in relation to marking and traceability.
The Court held with regard to traceability that France's arguments were apposite in so far as they concern United Kingdom products subject to the DBES which have been cut, processed or rewrapped in another Member State for subsequent export to France without their having a distinct mark capable of identifying them, should consignments be recalled. However, the Court found that the Commission had not shown that France prevented imports of beef, veal or other bovine products from other Member States on that ground. It dismissed the action so far as concerns such incorrectly marked products.
On the other hand, the Court concluded that France has failed to fulfil its obligations by refusing to permit the marketing in its territory of correctly marked or labelled products subject to the DBES. Traceability requirements have existed since 1 June 1998, that is to say since the ECHS was set up. Since the protocol of understanding of 24 November 1999, France has been fully informed as to its obligations and has been able to arrange for products dispatched directly to its territory to be traceable. The French Government had to lift the ban within a reasonable periodand the Court held that it had thus failed to fulfil its obligations from 30 December 1999, the deadline set by the Commission for compliance by France with its obligations.
However, noting that the Commission's application is allowed only as to part and that certain difficulties of implementation were the result of unclear Community legislation, the Court ordered the costs to be shared between France and the Commission, two thirds to be borne by France and one third by the Commission.