The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Rodríguez Iglesias
• ECLI: ECLI:EU:C:1990:391
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-331/88
• Date: 13 November 1990
• Celex Number: 61988CJ0331

Judgment of the Court (Fifth Chamber) of 13 November 1990. - The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others. - Reference for a preliminary ruling: High Court of Justice, Queen's Bench Division - United Kingdom. - Substances having a hormonal action - Validity of Directive 88/146/EEC. - Case C-331/88.

European Court reports 1990 Page I-04023

Summary Parties Grounds Decision on costs Operative part

Keywords

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1 . Community law - Principles - Legal certainty - Protection of legitimate expectations - Prohibition of the use in livestock farming of certain substances having a hormonal action in the absence of unanimity as to their harmlessness - Infringement - None

( Council Directive 88/146 )

2 . Community law - Principles - Proportionality - Prohibition of an economic activity - Whether disproportionate - Assessment criteria - Discretionary power of the Community legislature in the field of the common agricultural policy - Judicial review - Limits

( EEC Treaty, Arts 40 and 43 )

3 . Community law - Principles - Equal treatment - Harmonization measure applied equally to all the Member States - Differing effects depending on the previous state of national law - Discrimination - None

4 . Agriculture - Approximation of laws - Prohibition of the use in livestock farming of certain substances having a hormonal action - Objectives pursued - Choice of legal basis - Article 43 of the Treaty - Misuse of powers - None

( EEC Treaty, Arts 39 and 43, Council Directive 88/146 )

5 . Measures adopted by the Community institutions - Procedure for enactment - Preparatory documents not affected by a procedural defect occurring at the stage of the final decision in the Council leading to annulment by the Court - Adoption of a new measure on the basis of earlier preparatory documents - Legality

6 . Measures adopted by the Community institutions - Application ratione temporis - Period for compliance by the Member States with a directive expiring prior to its adoption - Retroactive effect - Permissibility in the light of the objective to be attained and in the absence of any infringement of the principle of the protection of legitimate expectations - Limits - Principle of non-retroactivity of penal provisions

( Council Directive 88/146, Art . 10 )

Summary

1 . Having regard to the divergent appraisals by the national authorities of the Member States, reflected in the differences between existing national legislation, of the dangers which may result from the use of certain substances having a hormonal action, the Council, in deciding in the exercise of its discretionary power to adopt the solution of prohibiting them, neither infringed the principle of legal certainty nor frustrated the legitimate expectations of traders affected by that measure .

2 . In accordance with the principle of proportionality, which is one of the general principles of Community law, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question, it being understood that when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued . However, with regard to judicial review of compliance with those conditions it must be borne in mind that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty . Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue .

3 . Although a harmonization measure which is intended to standardize previously disparate rules of the Member States inevitably produces different effects depending on the prior state of the various national laws, there cannot be said to be discrimination where it applies equally to all Member States .

4 . A decision may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case . That was not so in the case of Directive 88/146 prohibiting the use in livestock farming of certain substances having a hormonal action, which was adopted by the Council on the basis of Article 43 of the Treaty alone . By regulating conditions of the production and marketing of meat in order to improve its quality while curbing surplus production, that directive falls within the scope of the measures provided for by the common organization of the markets in meat and thus contributes to the attainment of the objectives set out in Article 39 of the Treaty .

5 . The annulment by a judgment of the Court of a Council directive on account of a procedural defect concerning solely the manner in which it was finally adopted by the Council does not affect the preparatory acts of the other institutions . Therefore, these acts need not be repeated when the Council adopts a new directive replacing the one which has been annulled . Changes occurring in the interval in the composition of those institutions are of no effect since they do not affect the continuity of the institutions themselves . Whether or not a subsequent change in circumstances must be taken into consideration is for each institution to assess .

6 . By fixing 1 January 1988 as the date of expiry of the period for implementation of Directive 88/146 prohibiting the use in livestock farming of substances having a hormonal action, Article 10 of the directive gives it retroactive effect in so far as the directive was adopted and notified in March 1988 .

Outside the criminal sphere, such retroactive effect is permissible, since, first, the directive replaced an earlier directive annulled because of a procedural defect, and the Council considered it necessary in order to avoid a temporary legal vacuum during the period between the annulment of one instrument and its replacement by a lawfully adopted text with regard to the existence of a basis in Community law for national provisions adopted by the Member States in order to comply with the directive which was annulled, and, secondly, there was no infringement of the legitimate expectations of the traders concerned, in light of the rapid succession of the two directives and the reason for which the first one was annulled .

As regards the criminal sphere, on the other hand, Article 10 of the directive cannot be interpreted as requiring Member States to adopt measures which conflict with Community law, in particular with the principle that penal provisions may not have retroactive effect, which Community law incorporates, as a fundamental right, among its general principles . Nor may it provide a basis for criminal proceedings instituted under provisions of national law which may have been adopted in implementation of the annulled directive and whose sole basis is to be found therein .

Parties

In Case C-331/88,

REFERENCE to the Court under Article 177 of the EEC Treaty by the High Court of Justice, Queen' s Bench Division, for a preliminary ruling in the proceedings pending before that court between

The Queen

and

The Minister for Agriculture, Fisheries and Food and The Secretary of State for Health,

ex parte :

Fédération européenne de la santé animale ( Fedesa ),

Pitman-Moore, Inc .,

Distrivet SA,

Hoechst ( UK ) Ltd,

National Office of Animal Health Ltd,

Donald Leslie Haxby CBE and

Robert Sleightholme,

on the validity of Council Directive 88/146/EEC of 7 March 1988 prohibiting the use in livestock farming of certain substances having a hormonal action ( Official Journal 1988 L 70, p . 16 ),

THE COURT ( Fifth Chamber ),

composed of : J . C . Moitinho de Almeida, President of the Chamber, G . C . Rodríguez Iglesias, Sir Gordon Slynn, R . Joliet and M . Zuleeg, Judges,

Advocate General : J . Mischo

Registrar : D . Louterman, Principal Administrator,

after considering the observations submitted on behalf of

the applicants in the main proceedings, by Christopher Carr and Thomas Sharpe, barristers;

the Government of the Kingdom of Spain, by Javier Conde de Saro, Director-General for the Coordination of Legal and Institutional Relations with the European Communities, and Rosario Silva de Lapuerta, abogado del Estado in the Legal Department for matters before the Court of Justice, acting as Agents;

the United Kingdom of Great Britain and Northern Ireland, by Susan Hay, of the Treasury Solicitor' s Department, and by Richard Plender, barrister;

the Government of the Italian Republic, by Pier Giorgio Ferri, avvocato dello Stato, acting as Agent;

the Council of the European Communities, by Moyra Sims, a member of its Legal Department, and by Bjarne Hoff-Nielsen, Legal Adviser, acting as Agents;

the Commission of the European Communities, by Blanca Rodríguez Galindo and Grant Lawrence, members of its Legal Department, and Dierk Booss, Legal Adviser, acting as Agents;

having regard to the Report for the Hearing and further to the hearing on

13 December 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 8 March 1990,

gives the following

Judgment

Grounds

1 By an order of 20 September 1988, which was received at the Court on 14 November 1988, the High Court of Justice, Queen' s Bench Division, referred to the Court for a preliminary...