Case T‑817/14

Zoofachhandel Züpke GmbH and Others

v

European Commission

‛Non-contractual liability — Health policy — Combating avian influenza — Prohibition of the importation of captured wild birds into the European Union — Regulation (EC) No 318/2007 and Implementing Regulation (EU) No 139/2013 — Sufficiently serious breach of rules of law conferring rights on individuals — Manifest and serious disregard for the limits of discretion — Proportionality — Duty of care — Articles 15 to 17 of the Charter of Fundamental Rights’

Summary — Judgment of the General Court (Eighth Chamber), 17 March 2016

1. Non-contractual liability — Conditions — Unlawfulness — Sufficiently serious breach of EU law — Legislation on health policy — Requirement that the institution concerned manifestly and seriously disregard the limits on its discretion

   (Arts 43 TFEU and 340, second para., TFEU)

2. EU law — Principles — Proportionality — Scope

   (Art. 5(4) TEU)

3. EU law — Principles — Precautionary principle — Scope

   (Arts 11 TFEU, 168(1) TFEU, 169(1) and (2) TFEU, and 191(1) and (2) TFEU)

4. Agriculture — Approximation of laws on animal health — Veterinary checks in intra-community trade in live animals and products of animal origin — Directive 91/496 — Safeguard measures concerning imports from a third country — Concept — Commission regulations imposing restrictions on the importation into the EU of certain birds without reference to a specific third country — Not included

   (Commission Regulations No 318/2007 and No 139/2013; Council Directive 91/496, Art. 18(1))

5. Agriculture — Approximation of laws on animal health — Veterinary checks in intra-community trade in live animals and products of animal origin — Regulations No 318/2007 and No 139/2013 prohibiting importation of wild birds captured in their natural environment — Limitation of imports to birds bred in captivity in an approved breeding establishment — No infringement of the principle of proportionality or the precautionary principle

   (Art. 43 TFEU; Commission Regulations No 318/2007 and No 139/2013; Council Directive 92/65)

6. Agriculture — Approximation of laws on animal health — Veterinary checks in intra-community trade in live animals and products of animal origin — Regulations No 318/2007 and No 139/2013 prohibiting importation of wild birds captured in their natural environment — Non-application of the prohibition to birds bred in captivity — No breach of principle of proportionality

   (Commission Regulations 318/2007 and No 139/2013)

7. EU law — Principles — Principle of sound administration — Duty of diligence — Scope

8. Agriculture — Approximation of laws on animal health — Veterinary checks in intra-community trade in live animals and products of animal origin — Regulations No 318/2007 and No 139/2013 prohibiting importation of wild birds captured in their natural environment — No disproportionate restriction of the freedom to choose an occupation, the freedom to conduct a business and the right to property

   (Charter of Fundamental Rights of the European Union, Arts 15 to 17; Commission Regulations No 318/2007 and No 139/2013)

1.  For the EU to be non-contractually liable, the first condition, relating to the unlawful conduct alleged against the institution or organ concerned, requires there to be a sufficiently serious breach of a rule of law intended to confer rights on individuals. That requirement seeks, whatever the nature of the unlawful measure in question, to avoid the situation where the risk of having to bear the losses alleged by the undertakings concerned hinders the ability of the institution concerned fully to exercise its competences in the general interest, both in the context of its activities that are regulatory or involve economic policy choices and in the sphere of its administrative competence, but without thereby leaving individuals to bear the consequences of flagrant and inexcusable misconduct.

   Where there may be a sufficiently serious breach of rules of law in the context of health policy, such a breach must be based on a manifest and serious disregard of the limits on the wide discretion enjoyed by the EU legislature when exercising its powers on the common agricultural policy under Article 43 TFEU. The exercise of that discretionary power implies the need for the EU legislature to anticipate and evaluate ecological, scientific, technical and economic changes of a complex and uncertain nature. In that regard, while studies and scientific opinion have to be taken into account by the EU institutions, the political choice of determining an appropriate level of protection for society lies with those institutions and not with the scientists.

   (see paras 41-43)

2.  See the text of the decision.

   (see para. 50)

3.  The precautionary principle is a general principle of EU law, stemming from Article 11 TFEU, Article 168(1) TFEU, Article 169(1) and (2) TFEU and Article 191(1) and (2) TFEU, requiring the authorities in question, in the particular context of the exercise of the powers conferred on them by the relevant rules, to take appropriate measures to prevent specific potential risks to public health, safety and the environment, by giving precedence to the requirements related to the protection of those interests over economic interests. Thus, where there is scientific uncertainty as to the existence or extent of risks to human health, the precautionary principle allows the institutions to take protective measures without having to wait until the reality and seriousness of those risks become fully apparent or until the adverse health effects materialise. Furthermore, where it proves to be impossible to determine with certainty the existence or extent of the alleged risk because of the insufficiency, inconclusiveness or imprecision of the results of studies conducted, but the likelihood of real harm to public health persists should the risk materialise, the precautionary principle justifies the adoption of restrictive measures, provided that they are non-discriminatory and objective.

   (see para. 51)

4.  Regulations Nos 318/2007 and 139/2013 laying down animal health conditions for imports of certain birds into the Union and the quarantine conditions thereof do not constitute protective measures based on Article 18(1) of Directive 91/496 laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries, but, in accordance with their legal bases, lay down, for all third countries, general health conditions for imports of animals into the European Union. The legal bases underpinning those regulations contain no reference to a specific third country in which there is a proven health risk.

   (see paras 60, 61)

5.  Rules which make the importation of birds into the European Union conditional on them coming from third countries which are able to offer guarantees equivalent to those prevailing in the Union, as contained in Regulations Nos 318/2007 and 139/2013, are consistent with the purposes and requirements of Directive 92/65 laying down animal health requirements governing trade in and imports into the Community of animals, semen, ova and embryos not subject to animal health requirements laid down in specific Community rules referred to in Annex A (I) to Directive 90/425/EEC, and with the precautionary principle, and are not disproportionate.

   In that regard, concerning the requirement in Regulations Nos 318/2007 and 139/2013 that animals must come from an approved breeding establishment, where they are bred in captivity, and not from the natural environment, in view of the uncertainty surrounding the state of captive wild birds’ health, it must be held that that requirement, together with the requirement for an effective veterinary system, is an essential condition of health monitoring and preventive control in the third country of origin, which, in turn, are conditions of compliance by that third country with the guarantees equivalent to those prevailing in the European Union and its inclusion on the list of third countries from which the importation of animals into the European Union is authorised. Accordingly, the prior authorisation principle, laid down on the legal bases of the said regulations and in accordance with the precautionary principle, must be applied in reliance, not on presumptions as to the general health situation in the third country of origin, but on obtaining guarantees as to the health monitoring of birds bred in an establishment approved by that country. Those guarantees make it possible, in particular, to determine with sufficient scientific certainty whether the country is disease free, independently of its geographic position and of such presumptions.

   It follows that, in so far as a prohibition of imports of captured wild birds into the European Union is the corollary of the guarantees required by the principle of prior authorisation of third countries, the Commission, by requiring such guarantees in Regulations Nos 318/2007 and 139/2013, in the exercise of its wide discretion under Article 43 TFEU, did not make a manifest error or commit a serious breach of the principle of proportionality or the precautionary principle. Similarly, as regards the proportionality of the geographic scope of the prohibition on the importation of captured wild birds into the European Union, the Commission could have exceeded its discretion and breached the principle of proportionality only by failing to authorise the importation of such birds from manifestly avian-influenza-free areas. However, in the absence of evidence clearly showing, in a sufficiently probative manner, that certain countries or certain continents, in particular South America and Oceania, are permanently free and exempt from the avian influenza virus, or that, generally, captured wild birds do not represent any risk of spreading that virus, it must therefore be stated that scientific uncertainty about the risk of the spread of avian influenza in the EU by imports of captured wild birds from third countries throughout the world persists to a high degree.

   (see paras 66, 68-72, 84, 85)

6.  Having regard to Regulations Nos 318/2007 and 139/2013, the Commission cannot be accused of adopting a manifestly disproportionate measure by drawing a distinction between wild birds and captive bred birds. As regards risk prevention, wild birds differ from captive bred birds inasmuch as, in the case of the latter birds, it is possible to impose stringent health controls from birth, which may even extend to the breeding of such birds in a closed environment or include isolation in the case of poultry.

   (see paras 91, 93)

7.  See the text of the decision.

   (see para. 107)

8.  The freedom to choose an occupation, the freedom to conduct a business and the right to property are fundamental rights enshrined in Articles 15 to 17 of the Charter of Fundamental Rights. However, those rights do not constitute absolute prerogatives, but must be viewed in relation to their social function. Consequently, the exercise of those rights may be restricted, provided those restrictions in fact correspond to objectives of public interest pursued by the European Union and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights thus guaranteed.

   Regulations Nos 318/2007 and 318/2007 pursue a legitimate aim of general interest, namely to protect human and animal health against the risk of the avian influenza virus spreading, and are not manifestly disproportionate for that purpose. Therefore, they cannot be regarded as a disproportionate and intolerable interference which infringes upon the very substance of the rights to property and to carry out an economic activity. In that regard, any fall in turnover or any loss of profits associated with a differential in the resale price between captive bred birds and birds captured in their natural environment cannot constitute an infringement upon the very substance of fundamental rights, which is far wider than commercial opportunity.

   (see paras 126, 128, 129, 132)