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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Bellio F.lli (Agriculture) [2004] EUECJ C-286/02 (01 April 2004) URL: https://www.bailii.org/eu/cases/EUECJ/2004/C28602.html Cite as: [2004] EUECJ C-286/02, [2004] EUECJ C-286/2, [2004] ECR I-3465 |
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JUDGMENT OF THE COURT (Third Chamber)
1 April 2004
(1)
(Agriculture - Animal health - Protection measures with regard to transmissible spongiform encephalopathies - Use of animal proteins in animal feed)
In Case C-286/02, REFERENCE to the Court under Article 234 EC by the Tribunale di Treviso (Italy) for a preliminary ruling in the proceedings pending before that court between Bellio F.lli Srland
Prefettura di Treviso on the interpretation of Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein (OJ 2000 L 306, p. 32) and Commission Decision 2001/9/EC of 29 December 2000 concerning control measures required for the implementation of Decision 2000/766 (OJ 2001 L 2, p. 32),THE COURT (Third Chamber),
after considering the written observations submitted on behalf of:
- Bellio F.lli Srl, by F. Capelli and R. Bordignon, avvocati, - the Italian Republic, by I.M. Braguglia, acting as Agent, and P. Palmieri and M. Fiorilli, avvocati dello Stato, - Ireland, by D.J. O'Hagan, acting as Agent, and N. Butler BL, - the Kingdom of Norway, by I. Høyland and A. Enersen, acting as Agents, - the Commission of the European Communities, by C. Cattabriga and V. Di Bucci, acting as Agents,having regard to the Report for the Hearing,
after hearing the oral observations of Bellio F.lli Srl, represented by F. Capelli, the Italian Republic, represented by P. Palmieri, Ireland, represented by D.C. Smyth BL, the Kingdom of Norway, represented by A. Enersen, and the Commission, represented by V. Di Bucci, at the hearing on 4 December 2003,
after hearing the Opinion of the Advocate General at the sitting on 29 January 2004,
gives the following
'Without prejudice to future developments of case-law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two Treaties, shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of this Agreement.'
'The provisions of Articles 11 and 12 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between the Contracting Parties.'
'Provisions and arrangements that apply to fish and other marine products are set out in Protocol 9.'
'The Community shall apply no quantitative restrictions on imports or measures having equivalent effect on the products listed in Appendix 2. In this context the provisions of Article 13 of the Agreement shall apply.'
HS Heading No | Description of goods |
...2301... | ...Flours, meals and pellets, of meat or meat offal, of fish or of crustaceans, molluscs or other aquatic invertebrates, unfit for human consumption; greaves:... |
'In the light of the above, as a precautionary measure, it is appropriate to prohibit on a temporary basis the use of animal protein in animal feed, pending a total re-evaluation of the implementation of Community legislation in Member States.'
'1. Member States shall prohibit the feeding of processed animal proteins to farmed animals which are kept, fattened or bred for the production of food. 2. The prohibition referred to in paragraph 1 shall not apply to the feeding of: - fishmeal to animals other than ruminants, in accordance with control measures to be fixed in accordance with the procedure laid down in Article 17 of Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (OJ 1989 L 395, p. 13, as most recently amended by Directive 92/118 "Directive 89/662"), - ...'
Decision 2001/9
'Member States shall authorise the feeding of fishmeal to animals other than ruminants only in accordance with the conditions laid down in Annex I.'
'1. Fishmeal shall be produced in processing plants dedicated only to fishmeal production, which are approved for this purpose by the competent authority in accordance with Article 5(2) of Directive 90/667/EEC. 2. Before release for free circulation in Community territory, each consignment of imported fishmeal shall be analysed in accordance with Commission Directive 98/88/EC [of 13 November 1998 establishing guidelines for the microscopic identification and estimation of constituents of animal origin for the official control of feedingstuffs (OJ 1998 L 318, p. 45)]. 3. Fishmeal shall be transported directly from the processing plants to the establishments manufacturing animal feed, by means of vehicles which at the same time do not transport other feed materials. If the vehicle is subsequently used for the transport of other products, it shall be thoroughly cleaned and inspected before and after the transport of fishmeal. 4. Fishmeal shall be transported directly from the border inspection post to the establishments manufacturing animal feed, in accordance with the conditions laid down in Article 8 of Directive 97/78/EC, by means of vehicles which at the same time do not transport other feed materials. If the vehicle is subsequently used for the transport of other products, it shall be thoroughly cleaned and inspected before and after the transport of fishmeal. 5. By way of derogation from points 3 and 4, intermediate storage of fishmeal may be allowed only if it is carried out in dedicated storage plants which are authorised for this purpose by the competent authority. 6. Feedingstuffs containing fishmeal can be produced only in establishments manufacturing animal feed which do not prepare feedingstuffs for ruminant animals and which are authorised for this purpose by the competent authority. By way of derogation from this provision, the production of feedingstuffs for ruminant animals in establishments which also produce feedingstuffs containing fishmeal for other animal species may be permitted by the competent authority on condition that: - the transport and storage of feed materials destined to ruminant animals [are] completely separate from feed material prohibited for feeding to ruminant animals, and - the storage, transport, manufacturing and packaging facilities for the compound feedingstuffs destined to ruminant animals are completely separate, and - records detailing the purchases and uses of fishmeal and the sales of feedingstuffs containing fishmeal are made available to the competent authority, and - routine tests are carried out on feedingstuffs destined to ruminant animals to ensure that prohibited processed animal proteins as defined by Article 1 of Decision 2000/766/EC are not present. 7. The labelling of feedingstuffs containing fishmeal shall clearly indicate the words "it contains fishmeal - cannot be fed to ruminant animals". 8. Bulk feedingstuffs containing fishmeal shall be transported by means of vehicles which at the same time do not transport feed for ruminant animals. If the vehicle is subsequently used for the transport of other products, it shall be thoroughly cleaned and inspected before and after the transport of bulk feedingstuffs containing fishmeal. ...'
Directive 98/34/EC
- 'in January 2000, Bellio imported from Norway a consignment of fish flour, subsequently purchased by Mangimificio SAPAS Sas of San Miniato (PI), for the production of feedingstuffs for animals other than ruminants; - from samples taken at the premises of SAPAS Sas during on-the-spot inspections carried out by competent officers of the Judicial Police of the Service for the Protection of Hygiene and Health, the fish flour was found to contain fragments of unidentified animal bones, with the result that the consignments of fish flour supplied by the applicant were seized; - independent analysis carried out on behalf of Bellio found the fish flour to contain fragments of mammalian bone tissue amounting to less than 0.1%; - the review of the analysis carried out by the Board of Health on 27 September 2001 confirmed the presence of bone fragments; - on the basis of the fragments of mammalian bone tissue found, an administrative sanction was imposed on Bellio F.lli Srl pursuant to Article 17(a) and the first and third paragraphs of Article 22 of Law No 281 of 15 February 1963, as subsequently amended and supplemented, "for having sold a simple feedingstuff, namely fish flour, packaged and marketed in such a way as to mislead the purchaser as to the composition, type and nature of the product, and which appears from analysis not to conform to the representations, indications and descriptions on the label and in the contract documentation accompanying the product", in the form of an order for the confiscation and destruction of 36 sacks of the fish flour, as identified in Seizure Order No 17 of 21 February 2001, and an order to pay a fine of EUR 18 597.27, without prejudice to any other related and/or consequential order, whether interlocutory or final.'
'1. Are the first indent of Article 2(2) of Decision [2000/766] and Article 1(1) of Decision [2001/9], read together with the other Community rules on which those provisions are based, to be interpreted as meaning that the accidental presence of an unforeseen or prohibited substance in fish flour used in the production of feedingstuffs for animals other than ruminants may be considered to be acceptable de jure or de facto and that, accordingly, traders are allowed a reasonable level of tolerance? 2. If so, in the light of the principle of proportionality and the precautionary principle, and in consideration of the Community provisions applicable in the domains in which reference is made to accidental contamination of food-industry products and indications are given of relevant levels of tolerance, does an accidental contamination of 0.1%, and in any case of not more than 0.5%, of fragments of mammalian bone in fish flour intended for the production of feedingstuffs for animals other than ruminants warrant the adoption of a drastic sanction such as the complete destruction of that fish flour? 3. Does the exclusion of any tolerance in relation to the presence of the substances mentioned in the preceding questions amount to the introduction of a technical standard within the meaning of Directive [83/189] which would have to have been notified in advance to the European Commission? 4. Are the provisions of Articles 28 and 30 EC on the free movement of goods, applicable to Norway on the basis of Articles 8 to 16 of the [EEA] Agreement, to be interpreted, with reference to the provisions contained in Decision 2000/766 and Decision 2001/9 cited in Question 1 above, as meaning that a Member State may not require zero tolerance in a situation such as that described in Questions 1 and 2 above?'
Observations submitted to the Court
Reply of the Court
The third question
On those grounds,
THE COURT (Third Chamber)
in answer to the questions referred to it by the Tribunale di Treviso by order of 26 June 2002, hereby rules: 1) The first indent of Article 2(2) of Council Decision 2000/766/EC of 4 December 2000 concerning certain protection measures with regard to transmissible spongiform encephalopathies and the feeding of animal protein, and Article 1(1) of Commission Decision 2001/9/EC of 29 December 2000 concerning control measures required for the implementation of Decision 2000/766, together with the other Community rules on which those provisions are based, must be interpreted as meaning that the presence, even accidental, of unauthorised substances in fish flour used in the production of feedingstuffs intended for animals other than ruminants is not permitted and that they allow traders no level of tolerance. The destruction of consignments of contaminated flour is a preventive measure provided for by Article 3(1) of Decision 2000/766. 2) Article 13 of the European Economic Area Agreement of 2 May 1992 must be interpreted as meaning that Decisions 2000/766 and 2001/9 are not incompatible therewith.
Rosas |
Schintgen |
Colneric |
R. Grass |
A. Rosas |
Registrar |
President of the Third Chamber |
1 - Language of the case: Italian.