Report for the Hearing in Case C-331/88
I — Facts and procedure
Council Directive 81/602/EEC of 31 July 1981 concerning the prohibition of certain substances having a hormonal action and of any substances having a thyrostatic action (Official Journal 1981 L 222, p. 32) prohibits the placing on the market of certain hormonal substances for administering to animals of all species.
The first two paragraphs of Article 5 provide that:
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), which is at issue in the present case, regulates the use of the five substances referred to in Article 5 of Directive 81/602. Article 2 of Directive 88/146 prohibits the administration to farm animals of the first three of the substances referred to (the natural hormones), except for therapeutic purposes, and prohibits absolutely the other two substances (the artificial hormones).
The first two recitals in the preamble to the contested directive give the following reasons for the prohibition:
Under Article 10 of the directive in question the Member States were to comply with the directive by 1 January 1988 at the latest.
The directive at issue was adopted on 7 March 1988 and notified to the Member States on 11 March 1988. Its contents, including the date for its implementation, are identical to the contents of Council Directive 85/649/EEC of 31 December 1985 prohibiting the use in livestock farming of certain substances having a hormonal action (Official Journal 1985 L 382, p. 228). The latter directive was declared void by the Court in its judgment in Case 68/86 United Kingdom v Council [1988] ECR 885, on the ground that, by failing to comply with the procedure laid down in Article 6(1) of the Council's Rules of Procedure, the Council had infringed an essential procedural requirement.
The applicants in the main proceedings, who are manufacturers, producers or distributors of veterinary medicines or associations in the field of animal health which carry on their activities throughout Europe and the United States and a veterinarian and a farmer, are challenging before the national court the validity of a national legislative measure, namely Statutory Instrument 1988 No 705: The Medicines (hormone growth promoters) (prohibition of use) Regulations 1988, which implement, in part, the contested Directive 88/146, on the ground that the directive in question is invalid.
That national measure replaced with effect from 13 April 1988 Statutory Instrument 1986 No 1876: The Medicines (hormone growth promoters) (prohibition of use) Regulations 1986, which were adopted to implement Directive 85/649.
Taking the view that the dispute involved an assessment of the validity of the directive in question, the High Court of Justice, Queen's Bench Division, decided by order of 20 September 1988 to stay the proceedings and refer to the Court of Justice of the European Communities the following questions for a preliminary ruling under Article 177 of the EEC Treaty:
The order of the Queen's Bench Division of the High Court of Justice was registered at the Court on 14 November 1988.
Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted on 15 February 1989 by the Government of the Kingdom of Spain, represented by Javier Conde de Saro, Director-General for Legal and Institutional Coordination within the European Communities, and Rosario Silva de Lapuerta, abogado del Estado (State Attorney) in the Legal Department for matters concerning the Court of Justice;
on 17 February 1989 by the Council of the European Communities, represented by Moyra Sims, a member of its Legal Department, and by Bjarne Hoff-Nielsen, Legal Adviser;
on 21 February 1989 by the Commission of the European Communities, represented by Blanca Rodríguez Galindo and Grant Lawrence, members of its Legal Department, and Dierk Booss, Legal Adviser;
on 28 February 1989 by the United Kingdom of Great Britain and Northern Ireland, represented by Susan Hay, of the Treasury Solicitor's Department, and by Richard Plender, barrister;
on 1 March 1989 by the applicants in the main proceedings, represented by Christopher Carr and Thomas Sharpé, barristers;
on 2 March 1989 by the Government of the Italian Republic, represented by Pier Giorgio Ferri, avvocato dello Stato.
Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to assign the case to the Fifth Chamber and open the oral procedure without any preparatory inquiry.
II — Summary of the written observations submitted to the Court
1. The first question (principle of legal certainty)
2. The second question (principle of proportionality)
3. The third question (principle of equality)
4. The fourth question (misuse of power)
5. The fifth question (adequate statement of reasons)
6. The sixth question (infringement of essential procedural requirements)
7. The seventh question (the principle that legislation should not be retroactive in effect)
8. Proposed answers
In conclusion, the applicants in the main proceedings take the view that Directive 88/146 is void because of the Council's failure to take account of the known facts concerning health and quality, its reliance on irrational anxiety (for which the evidence is, at best, uncertain) and the severely damaging and intrusive effects of the directive are factors which combine together to suggest that the Council should have considered other ways of educating and protecting customers and of harmonizing the law. Directive 88/146 is also tainted by procedural defects which render it void.
The United Kingdom concludes that the Court should declare that Directive 88/146 is invalid by reason of its infringement of legitimate expectations, alternatively by reason of its inconsistency with the principle of proportionality, alternatively by reason of its infringement of an essential procedural requirement and that the Court should declare that the remaining questions submitted by the High Court do not call for an answer.
The Spanish Government, the Council and the Commission, which — like the Italian Government —consider that Directive 88/146 is valid, propose that the answer to be given by the Court should be that consideration of the questions raised by the High Court has disclosed no factor of such a kind as to affect the validity of Directive 88/146.
1 Language of the case: English.