A. Tempelman (C-96/03) and Mr and Mrs T.H.J.M. van Schaijk (C-97/03) v Directeur van de Rijksdienst voor de keuring van Vee en Vlees.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2004:766
• Date: 02 December 2004
• Celex Number: 62003CC0096
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-97/03,C-96/03

Conclusions de l'avocat général

Conclusions de l'avocat général

1. The present references for a preliminary ruling by the College van het Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) (the Netherlands) originate in appeal proceedings brought by Mr Tempelman and by Mr and Mrs Van Schaijk against the Directeur van de Rijksdienst voor de keuring van Vee en Vlees (Director of the Government Meat and Livestock Inspectorate). Both cases arose as a consequence of the 2001 outbreak of foot-and-mouth disease (FMD) and concern Dutch measures of preventive slaughter.The referring court is uncertain as to whether the measures contested in the main proceedings were taken in conformity with Community law and raises questions as to the discretion of Member States to take eradication measures that appear to go beyond the measures expressly provided for by Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease. (2)

I – Community legal framework

2. The relevant Community legal framework for the present cases consisted, at the material time, of the following acts: Council Directive 90/425/EEC of 26 June 1990, (3) Directive 85/511 as amended by Council Directive 90/423/EEC of 26 June 1990 (4) and Commission Decision 2001/246/EC of 27 March 2001 laying down the conditions for the control and eradication of foot-and-mouth disease in the Netherlands in application of Article 13 of Directive 85/511. (5)

3. Article 10 of Directive 90/425 reads, in so far as relevant to the present requests for a preliminary ruling:

‘1. Each Member State shall immediately notify the other Member States and the Commission of any outbreak in its territory, in addition to an outbreak of diseases referred to in Directive 82/894/EEC, of any zoonoses, diseases or other cause likely to constitute a serious hazard to animals or to human health.

The Member State of dispatch shall immediately implement the control or precautionary measures provided for in Community rules, in particular the determination of the buffer zones provided for in those rules, or adopt any other measure which it deems appropriate.

The Member State of destination or transit which, in the course of a check referred to in Article 5, has established the existence of one of the diseases or causes referred to in the first subparagraph may, if necessary, take the precautionary measures provided for in Community rules, including the quarantining of the animals.

Pending the measures to be taken in accordance with paragraph 4, the Member State of destination may, on serious public or animal health grounds, take interim protective measures with regard to the holdings, centres or organisations concerned or, in the case of an epizootic disease, with regard to the buffer zone provided for in Community rules.

The measures taken by Member States shall be notified to the Commission and to the other Member States without delay.

…

4.The Commission shall in all cases review the situation in the Standing Veterinary Committee at the earliest opportunity. It shall adopt the necessary measures for the animals and products referred to in Article 1 and, if the situation so requires, for the products derived from those animals, in accordance with the procedure laid down in Article 17. The Commission shall monitor the situation and, by the same procedure, shall amend or repeal the decisions taken, depending on how the situation develops.’

4. Articles 1, 2, 4, 5 and 13 of Directive 85/511, as amended by Directive 90/423, read as follows:

‘Article 1

This Directive defines the Community control measures to be applied in the event of outbreaks of foot-and-mouth disease, whatever the type of virus concerned.

Article 2

For the purposes of this Directive …

[t]he following definitions shall … apply:

...

(c) “infected animal” means any animal of a susceptible species:

– in which clinical symptoms or post-mortem lesions which may arise from foot-and-mouth disease have been ascertained, or

– in which the presence of foot-and-mouth disease has been officially ascertained following a laboratory examination;

(d) “animal suspected of being infected” means any animal of a susceptible species showing clinical symptoms or post-mortem lesions which are such that the presence of foot-and-mouth disease may reasonably be suspected;

(e) “animal suspected of being contaminated” means any animal of a susceptible species which may – according to the epizootiological information collected – have been directly or indirectly exposed to the foot-and-mouth virus.

Article 4

1. Member States shall ensure that, where a holding contains one or more animals suspected of being infected or of being contaminated with foot-and-mouth disease, official means of investigation to confirm or rule out the presence of the disease are set in motion immediately and, in particular, that the official veterinarian takes the necessary samples, or has them taken, for laboratory examination.

As soon as the suspected infection is notified, the competent authority shall have the holding placed under official surveillance and shall in particular order that:

– a census be made of all categories of animals of susceptible species and that, in respect of each of these categories, the number of animals already dead, infected or liable to be infected or contaminated be recorded; the census must be kept up to date to take account of animals born or dying during the period of suspicion; the information in the census must be produced on request and may be checked at each visit;

– all animals of susceptible species on the holding be kept in their living quarters or some other place where they can be isolated;

– no animals of susceptible species enter or leave the holding;

– no animals of other species enter or leave the holding without the authorisation of the competent authority;

– all movement from the holding of meat or carcases of animals of susceptible species or of animal feed, utensils, objects or other substance, such as wool or waste or rejected matter, liable to transmit foot-and-mouth disease be prohibited, unless authorised by the competent authority;

…

2. The competent authority may extend the measures provided for in paragraph 1 to adjoining holdings should their location, their configuration, or contacts with animals from the holding where the disease is suspected give reason to suspect possible contamination.

…

Article 5

As soon as it has been confirmed that one or more of the animals defined in Article 2(c) are on a holding, the competent authority shall introduce the following measures:

(1) the official veterinarian takes adequate samples or has them taken for examination by the laboratory referred to in Annex I, where these samples and examinations have not been taken or carried out during the period of suspicion in accordance with the first subparagraph of Article 4(1);

(2) in addition to the measures listed in Article 4(1), the following measures are taken without delay:

– all animals of susceptible species on the holding shall be slaughtered on the spot under official supervision in such a way as to avoid all risk of spreading the foot-and-mouth virus;

– after being slaughtered, the aforementioned animals shall be destroyed under official supervision in such a way that there is no risk of spreading the foot-and-mouth virus;

…

(4) the competent authority may extend the measures provided for in paragraph 1 to adjoining holdings should their location, their configuration, or contacts with animals from the holding where the disease has been recorded give reason to suspect possible contamination.

…

Article 13

1. Member States shall ensure that:

— the use of foot-and-mouth vaccines is prohibited,

…

3. Notwithstanding the provisions of paragraph 1 concerning the use of foot-and-mouth disease vaccine, it may be decided, when foot-and-mouth disease has been confirmed and threatens to become extensive, that emergency vaccination using technical procedures guaranteeing the animals’ total immunity may be introduced. In this case, the measures to be taken shall include:

— the extent of the geographical area in which emergency vaccination is to be carried out,

— the species and the age of the animals to be vaccinated,

— the duration of the vaccination campaign,

— a specific standstill of vaccinated animals and their products,

— the special identification and special registration of the vaccinated animals,

— other matters appropriate to the emergency situation.

The decision to introduce emergency vaccination shall be taken by the Commission in collaboration with the Member State concerned, acting in accordance with the procedure laid down in Article 16. This decision shall have particular regard to the degree of concentration of animals in certain regions and the need to protect special breeds.

However, by way of derogation from the first subparagraph, the decision to introduce emergency vaccination around the outbreak may be taken by the Member State concerned following notification to the Commission, provided that basic Community interests are not endangered. This decision shall be immediately reviewed in the Standing Veterinary Committee in accordance with the procedure laid down in Article 16.’

5. Commission Decision 2001/246/EC, based on Article 10 of Directive 90/425 and Article 13 of Directive 85/511, provides as follows in Articles 1 and 2:

‘Article 1

For the purpose of this Decision the following definitions shall apply:

1. “Pre-emptive killing” shall mean the killing of susceptible animals on holdings within a certain radius around holdings placed under the restrictions laid down in Articles 4 or 5 of Directive 85/511/EEC.

It is aimed at the urgent reduction of numbers of animals of susceptible species in an infected area.

2. “Suppressive vaccination” shall mean...