Judgments nº T-138/03 of Court of First Instance of the European Communities, December 13, 2006

• Resolution Date: December 13, 2006
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-138/03

(Common agricultural policy – Animal health – Bovine spongiform encephalopathy (‘mad cow disease’) – New variant Creutzfeldt-Jakob disease – Action for damages – Non-contractual liability – Community liability in the absence of unlawful conduct of its institutions – Damage – Causal link – Procedural defects – Parallel national proceedings – Limitation period – Inadmissibility)

In Case T‑138/03,

É. R., O. O., J. R., A. R., B. P. R., residing in Vaulx-en-Velin (France),

T. D., J. D., D. D., V. D., residing in Palaiseau (France),

D. E., É. E., residing in Ozoir-la-Ferrière (France),

C. R., residing in Vichy (France), H. R., M. S. R., I. R., B. R., M. R., residing in Pau (France),

C. S., residing in Paris (France),

represented by F. Honnorat, lawyer,

applicants,

v

Council of the European Union, represented initially by M. Balta and F. Ruggeri Laderchi, and subsequently by M. Balta and F. Florindo Gijón, acting as Agents,

and

Commission of the European Communities, represented initially by D. Booss and G. Berscheid, and subsequently by G. Berscheid and T. van Rijn, acting as Agents,

defendants,

APPLICATION for compensation under Article 235 EC and the second paragraph of Article 288 EC for damage allegedly suffered by the applicants as a consequence of the infection and subsequent death of members of their families who developed a new variant of Creutzfeldt-Jakob disease linked to the appearance and spread within Europe of bovine spongiform encephalopathy, for which the Council and the Commission are alleged to be liable,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of R. García-Valdecasas, President, J.D. Cooke and I. Labucka, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 16 February 2006,

gives the following

Judgment

Facts

I – Outbreak of bovine spongiform encephalopathy and new variant Creutzfeldt-Jakob disease, and Community and national measures to combat those diseases

1 Bovine spongiform encephalopathy (‘BSE’), or ‘mad cow disease’, is one of a group of diseases known as transmissible spongiform encephalopathies, which are characterised by brain degeneration and a sponge-like appearance of the nerve cells under microscopic analysis. These diseases are preceded by a silent incubation period, during which the infected, apparently healthy, subjects show no clinical sign of the disease. The probable origin of BSE was a change in the preparation of cattle feed, which contained proteins derived from sheep infected with scrapie. Transmission of the disease came about mainly through the ingestion of feed, in particular meat-and-bone meal, containing the infective agent that had not been eliminated.

2 BSE was detected for the first time in the United Kingdom in 1986. The epizootic disease developed rapidly in that country, rising from 442 cases at the end of 1987 to a maximum annual incidence of nearly 37 000 cases in 1992. Since the early 1990s cases of BSE have been recorded in other Member States.

3 In July 1988 the United Kingdom decided to prohibit the sale of feed for ruminants containing proteins derived from ruminants and to prohibit breeders from feeding ruminants with such feed (the ‘ruminant feed ban’ contained in the Bovine Spongiform Encephalopathy Order 1988, SI 1988/1039, and subsequently amended).

4 The Community institutions have also, since July 1989, adopted provisions to deal with BSE. Most of these measures were taken on the basis 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) and Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (OJ 1990 L 224, p. 29), which allow the Commission to take protective measures where there is a risk to animals or to human health.

5 Thus, Commission Decision 89/469/EEC of 28 July 1989 concerning certain protection measures relating to BSE in the United Kingdom (OJ 1989 L 225, p. 51) introduced a number of restrictions on intra-Community trade in bovine animals born in the United Kingdom before July 1988. That decision was amended by Commission Decision 90/59/EEC of 7 February 1990 (OJ 1990 L 41, p. 23), which extended the ban on exporting bovine animals from the United Kingdom to include any bovine animal over the age of six months. Commission Decision 90/261/EEC of 8 June 1990 amending Decision 89/469 and Decision 90/200/EEC concerning additional requirements for some tissues and organs with respect to BSE (OJ 1990 L 46, p. 29) provided that observance of that ban was to be guaranteed by the affixation to the animals of a special mark and by the use of a system of computer records in order to enable animals to be identified. Furthermore, Commission Decision 90/134/EEC of 6 March 1990 (OJ 1990 L 76, p. 23) added BSE to the list of diseases notifiable under Council Directive 82/894/EEC of 21 December 1982 on the notification of animal diseases within the Community (OJ 1982 L 378, p. 58).

6 Commission Decision 90/200/EEC of 9 April 1990 concerning additional requirements for some tissues and organs with respect to BSE (OJ 1990 L 105, p. 24) introduced a series of measures designed to limit intra-Community trade between the United Kingdom and other Member States in certain tissues and organs – brain, spinal cord, tonsils, thymus, spleen, intestines – derived from bovine animals aged more than six months at slaughter. It also prohibited sending other tissues and organs for uses other than human consumption, and provided that any bovine animal which showed clinical suspicion of BSE was to be slaughtered separately and its brain was to be examined for evidence of the disease. If BSE was confirmed, the decision required the animal’s carcass and offal to be destroyed. Commission Decision 92/290/EEC of 14 May 1992 concerning certain protection measures relating to bovine embryos in respect of BSE in the United Kingdom (OJ 1992 L 152, p. 37) required all the Member States to ensure that no embryos of the bovine species derived from females in which BSE was suspected or confirmed were sent to other Member States. As regards the United Kingdom, that decision prohibited the export of embryos derived from animals born before 18 July 1988 and required the adoption of the measures necessary in order to identify the donor animals.

7 Commission Decision 94/381/EC of 27 June 1994 concerning certain protection measures with regard to BSE and the feeding of mammalian derived protein (OJ 1994 L 172, p. 23) prohibited the feeding of mammalian derived protein to ruminants throughout the Community; however, Member States which enforced a system that made it possible to distinguish between animal protein from ruminant and non-ruminant species could be authorised by the Commission to permit the feeding to ruminants of protein from other mammalian species.

8 In 1995 the Creutzfeldt-Jakob Disease (‘CJD’) Surveillance Unit in Edinburgh (United Kingdom) identified 10 cases of CJD. This incurable, fatal neurological disease attacks humans and belongs to the family of human spongiform encephalopathies. The cases identified displayed a form that was sufficiently different from classic CJD to be described as new variant CJD (‘nvCJD’). The patients were all young (19 to 41 years old, 29 years old on average), they had suffered from the disease for a relatively long period (13 months on average), and their disease was of a clinical type that differed from classic CJD and displayed completely new histological features that were discovered at autopsy.

9 In a statement which it issued on 20 March 1996, the Spongiform Encephalopathy Advisory Committee (‘the SEAC’), an independent scientific body which is responsible for advising the United Kingdom Government on BSE, referred to these 10 cases of nvCJD, noting that ‘although there [was] no direct evidence of a link … the most likely explanation at [that stage was] that these cases [were] linked to exposure to BSE before the introduction of the [specified bovine offal] ban in 1989’.

10 On 27 March 1996 the Commission adopted Decision 96/239/EC on emergency measures to protect against BSE (OJ 1996 L 78, p. 47), which prohibited the export of any bovine animal and any meat of bovine animals or products obtained from them from the territory of the United Kingdom to other Member States or third countries. That decision concerned in particular: (i) live bovine animals, their semen and embryos; (ii) meat of bovine animals slaughtered in the United Kingdom; (iii) products obtained from bovine animals slaughtered in the United Kingdom which were liable to enter the animal feed or human food chain, and materials destined for use in medicinal products, cosmetics or pharmaceutical products; and (iv) mammalian derived meat-and-bone meal.

11 The European Parliament set up a temporary committee of inquiry into BSE on 18 July 1996. On 7 February 1997 that committee adopted a report on alleged contraventions or maladministration in the implementation of Community law in relation to BSE, without prejudice to the jurisdiction of the Community and national courts. The report pointed to poor management of the BSE crisis by the Commission, the Council and the United Kingdom authorities and criticised the operation of the Community committees responsible for veterinary and animal health matters.

12 Commission Decision 97/534/EC of 30 July 1997 on the prohibition of the use of material presenting risks as regards transmissible spongiform encephalopathies (OJ 1997 L 216, p. 95) prohibited the use of what was known as ‘specified risk material’ (‘SRM’), namely, first, the skull, including the brain and eyes, tonsils and spinal chord of bovine...