61988J0062

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1 . Action for annulment - Action against a measure based on the EEC Treaty - Submissions - Infringement of the EAEC or ECSC Treaties - Admissibility

( EEC Treaty, Art . 173, first paragraph )

2 . Measures adopted by institutions - Choice of legal basis - Criteria

3 . Measures adopted by institutions - Statement of the reasons on which they are based - Obligation - Scope

( EEC Treaty, Art . 190 )

4 . Common commercial policy - Scope - Importation of agricultural products - Determination of maximum permitted levels of radioactive contamination - Inclusion

( EEC Treaty, Art . 113; Council Regulation No 3955/87 )

1 . The need for a complete and consistent review of legality requires the first paragraph of Article 173 to be construed as not depriving the Court of jurisdiction to consider, in proceedings for the annulment of a measure based on a provision of the EEC Treaty, a submission concerning the infringement of a rule of the EAEC or ECSC Treaties .

2 . In the context of the organization of the powers of the Community, the choice of the legal basis for a measure, which may influence its content in so far as it determines the procedure to be followed for its adoption, must be based on objective factors which are amenable to judicial review .

3 . Although Article 190 of the Treaty compels a reference to the Commission' s proposal in measures which may be adopted only on a proposal from the Commission, it does not thereby impose the obligation to indicate whether or not the measure in question is in conformity with that proposal .

4 . By subjecting the release for free circulation of certain agricultural products originating in non-member countries to compliance with maximum permitted levels of radioactive contamination, Regulation No 3955/87 pursues the aim of ensuring that agricultural products and processed agricultural products intended for human consumption and likely to be contaminated are introduced into the Community only according to common arrangements which safeguard the health of consumers, maintain, without having unduly adverse effects on trade between the Community and non-member countries, the unified nature of the market and prevent deflections of trade . It follows that, according to its objective and its content, the regulation seeks to regulate trade between the Community and non-member countries; accordingly it comes within the common commercial policy within the meaning of Article 113 of the EEC Treaty .

In Case C-62/88

Hellenic Republic, represented by Giannos Kranidiotis, Special Secretary in the Ministry of Foreign Affairs, and Ilias Laïos, legal adviser in the Ministry of Agriculture, assisted by Konstantinos Stavropoulos, a legal assistant in the Ministry of Foreign Affairs, and Meletis Tsotsanis, a lawyer in the Ministry of Agriculture, with an address for service in Luxembourg at the Greek Embassy, 117 Val-Sainte-Croix,

applicant,

v

Council of the European Communities, represented by Bernhard Schloh, an adviser in the Council' s Legal Department, assisted by Micail Vitsentzatos, a member of that department, acting as Agent, with an address for service at the office of Joerg Kaeser, Director of the Legal Department of the European Investment Bank, 100 boulevard Konrad-Adenauer,

defendant,

supported by

( 1 ) United Kingdom, represented by Jacqueline Gensmantel, of the Treasury Solicitor' s Department, acting as Agent, with an address for service in Luxembourg at the British Embassy, 14 boulevard Roosevelt,

( 2 ) Commission of the European Communities, represented by Marie José Jonczy, a Legal Adviser of the Commission, and Xenophon Yataganas and Theofanis Christoforou, members of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, Wagner Centre, Kirchberg,

interveners,

APPLICATION under Article 173 of the EEC Treaty for the annulment of Council Regulation ( EEC ) No 3955/87 of 22 December 1987 on the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power-station ( Official Journal 1987, L 371, p . 14 ),

THE COURT

composed of : O . Due, President, C . N . Kakouris and M . Zuleeg ( Presidents of Chambers ), T . Koopmans, R . Joliet, J . C . Moitinho de Almeida and G . C . Rodríguez Iglesias, Judges,

Advocate General : M . Darmon

Registrar : J.-G . Giraud

having regard to the Report for the Hearing and further to the hearing on 29 November 1989,

after hearing the Opinion of the Advocate General delivered at the sitting on 14 February 1990,

gives the following

Judgment

1 By application lodged at the Court Registry on 26 February 1988, the Hellenic Republic brought an action under the first paragraph of Article 173 of the EEC Treaty for the annulment of Regulation ( EEC ) No 3955/87 of 22 December 1987 on the conditions governing imports of agricultural products originating in third countries following the accident at the Chernobyl nuclear power-station ( Official Journal 1987, L 371, p . 14 ).

2 That regulation, which was adopted by a qualified majority on the basis of Article 113 of the EEC Treaty, subjects the release for free circulation of certain agricultural products originating in non-member countries to compliance with maximum permitted levels of radioactive contamination . It requires the Member States to verify compliance with those levels and for that purpose provides for a system for the exchange of information centrally organized by the Commission . In the event of non-compliance with those maximum permitted levels, the regulation requires the requisite measures to be taken, which may include prohibition of the importation of the products in question .

3 . In support of its application the Hellenic Republic makes two submissions . The first concerns infringement of the EEC and EAEC Treaties and misuse of powers by reason of the illegality of the legal basis of the contested regulation . The second submission is that the statement of the reasons on which the regulation is based is inadequate .

4 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court .

The legal basis of the contested regulation

5 The first submission, which has two limbs, concerns the legal basis of the contested regulation .

6 In the first limb, the Hellenic Republic claims that, by basing Regulation No 3955/87 on Article 113 of the EEC Treaty, the Council infringed the EEC and EAEC Treaties . The Hellenic Republic states that the regulation is concerned exclusively with protection of the health of the general public in the Member States against the consequences of the Chernobyl nuclear accident and should therefore have been based on Article 31 of the EAEC Treaty or on Articles 130r and 130s of the EEC Treaty, possibly in conjunction with Article 235 of the EEC Treaty .

7 The Council contends that the first limb of the first submission is inadmissible in so far as it relates to an infringement of the EAEC Treaty, on the ground that the applicant cannot claim an infringement of that Treaty in an action brought solely under the EEC Treaty .

8 Pursuant to the first paragraph of Article 173 of the EEC Treaty "the Court of Justice shall review the legality of acts of the Council and the Commission other than recommendations or opinions . It shall for this purpose have jurisdiction in actions brought ... on grounds of ... infringement of this Treaty or of any rule of law relating to its application ...". The need for a complete and consistent review of legality requires that provision to be construed as not depriving the Court of jurisdiction to consider, in proceedings for the annulment of a measure based on a provision of the EEC Treaty, a submission concerning the infringement of a rule of the EAEC or ECSC Treaties .

9 It follows that the Council' s objection as to the partial inadmissibility of the first limb of the first submission must be dismissed .

10 As regards the choice of legal basis, it must first be pointed out that that choice may influence the content of the contested measure in so far as the procedural requirements connected with the enabling provisions in question are not the same from one piece of legislation to the next .

11 In the present case, Article 113(2 ) and ( 4 ) provide that in matters of common commercial policy the Council, on a proposal from the Commission, is to act by a qualified majority without the need for the Parliament or the Economic and Social Committee to be involved . By contrast, Article 31 of the EAEC Treaty, although providing that the Commission is to have the right to make proposals and providing for the same majority in Council deliberations as Article 113, requires an opinion to be obtained from the Economic and Social Committee and the Parliament to be consulted . According to Article 130s of the EEC Treaty, the Council, acting unanimously on a proposal from the Commission and after consulting the Parliament and the Economic and Social Committee, is to decide what action is to be taken by the Community regarding environmental matters, subject to the Council being entitled to define those matters on which decisions are to be taken by a qualified majority . Article 235 of the EEC Treaty for its part provides that, if action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and the Treaty has not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after consulting the Parliament, is to take the appropriate measures .

12 Since the procedural requirements of Article 113 of the EEC Treaty are thus different from those of Article 31 of the EAEC Treaty and from those of Articles 130s and 235 of the EEC Treaty, the Council' s decision to adopt as the legal basis for the contested regulation Article 113 of the EEC Treaty rather than Article 31 of the EAEC Treaty or Article 130s of the EEC Treaty, possibly in conjunction with Article 235 of the latter Treaty, is capable of influencing the content of the measure . An incorrect choice of legal basis, if established, would not therefore constitute a purely formal defect . In those circumstances, it is necessary to decide whether the regulation in question could be validly adopted on the basis of Article 113 of the EEC Treaty .

13 The Court held in its judgment of 26 March 1987 in Case 45/86 Commission v Council (( 1987 )) ECR 1493, paragraph 11, that in the context of the organization of the powers of the Community the choice of the legal basis for a measure must be based on objective factors which are amenable to judicial review .

14 As far as the objective pursued is concerned, the preamble to Regulation No 3955/87 indicates that "the Community must continue to ensure that agricultural products and processed agricultural products intended for human consumption and likely to be contaminated are introduced into the Community only according to common arrangements" and that those "common arrangements should safeguard the health of consumers, maintain, without having unduly adverse effects on trade between the Community and third countries, the unified nature of the market and prevent deflections of trade ".

15 Regulation No 3955/87 establishes uniform rules regarding the conditions under which agricultural products likely to be contaminated may be imported into the Community from non-member countries .

16 It follows that, according to its objective and its content, as they appear from the very terms of the regulation, the regulation is intended to regulate trade between the Community and non-member countries; accordingly it comes within the common commercial policy within the meaning of Article 113 of the EEC Treaty .

17 Recourse to Article 113 as the legal basis for the contested regulation cannot be excluded on the ground that Article 30 et seq . of the EAEC Treaty lay down specific rules governing the basic standards for protection of the health of the general public against the dangers arising from ionizing radiation . Those provisions, which appear in a chapter entitled "Health and Safety", which forms part of the second title of the EAEC Treaty entitled "Provisions for the encouragement of progress in the field of nuclear energy", are intended to provide for the protection of public health in the nuclear sector . They are not intended to regulate trade between the Community and non-member countries .

18 The fact that maximum permitted levels of radioactive contamination are fixed in response to a concern to protect public health and that the protection of public health is also one of the objectives of Community action in environmental matters, in accordance with the Article 130r(1 ), likewise cannot remove Regulation No 3955/87 from the sphere of the common commercial policy .

19 Articles 130r and 130s are intended to confer powers on the Community to undertake specific action on environmental matters . However, those articles leave intact the powers held by the Community under other provisions of the Treaty, even if the measures to be taken under the latter provisions pursue at the same time any of the objectives of environmental protection .

20 Moreover, that interpretation is confirmed by the second sentence of Article 130r(2 ), pursuant to which "environmental protection requirements shall be a component of the Community' s other policies ". That provision, which reflects the principle whereby all Community measures must satisfy the requirements of environmental protection, implies that a Community measure cannot be part of Community action on environmental matters merely because it takes account of those requirements .

21 As regards the Greek Government' s reference to the need to base Regulation No 3955/87 also on Article 235, it need merely be stated that, as the Court has held, use of that article as the legal basis for a measure is justified only where no other provision of the Treaty gives the Community institutions the necessary power to adopt the measure in question ( see most recently the judgment of 30 May 1989 in Case 242/87 Commission v Council (( 1989 )) ECR 1425, paragraph 6 ).

22 Since the contested regulation comes within the sphere of the common commercial policy and thus has an appropriate legal basis in Article 113, as is apparent from the foregoing, recourse to Article 235 is excluded .

23 The first limb of the first submission must therefore be dismissed .

24 In the second limb of the first submission, the Greek Government claims that the Council misused its powers by choosing Article 113 of the EEC Treaty as the legal basis for Regulation No 3955/87 solely in order to be able to decide by a qualified majority and thus avoid the unanimous decision required by Article 130s of the EEC Treaty .

25 However, as stated above, Article 113 of the EEC Treaty is the appropriate legal basis for the contested regulation . The Council cannot therefore be accused of misusing its powers by following the procedure laid down in that article for the adoption of that regulation .

26 Since the second limb of the first submission likewise cannot be upheld, the submission as to the illegality of the legal basis must be dismissed in its entirety .

The requirement to state reasons ( Article 190 of the EEC Treaty )

27 The second submission concerns an infringement of Article 190 of the EEC Treaty .

28 The Hellenic Republic complains that the Council did not indicate in the contested regulation whether or not it was in conformity with the proposal from the Commission . That omission, it claims, infringes the principle of legal certainty since it deprives interested parties of the possibility of verifying whether the measure in question was adopted in accordance with Article 149(1 ) of the EEC Treaty . Pursuant to that provision, where an act of the Council is adopted on a proposal from the Commission, unanimity is required for the Council to adopt an act constituting an amendment to that proposal . The Greek Government does not claim, however, that the contested measure was adopted in breach of that procedure .

29 Pursuant to Article 190 of the EEC Treaty, "regulations, directives and decisions of the Council and of the Commission ... shall refer to any proposals or opinions which were required to be obtained pursuant to this Treaty ". The very terms of that provision show that, although it requires a reference to the Commission' s proposal in measures which may be adopted only on a proposal from the Commission, it does not thereby impose the obligation to indicate whether or not the measure in question is in conformity with that proposal .

30 The second submission thus likewise cannot be upheld .

31 Since neither of the applicant' s submissions has been successful, the action must be dismissed .

Costs

32 Under Article 69(2 ) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs . Since the Hellenic Republic has failed in its submissions, it must be ordered to pay the costs .

On those grounds,

THE COURT

hereby :

( 1 ) Dismisses the application;

( 2 ) Orders the Hellenic Republic to pay the costs .