1 By an application lodged at the Court Registry on 22 April 1987, the Commission of the European Communities brought an action under the first paragraph of Article 173 of the EEC Treaty for the annulment of Council Directive 87/64 of 30 December 1986 amending Directive 72/461 on health problems affecting intra-Community trade in fresh meat and Directive 72/462 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries ( Official Journal 1987, L 34, p . 52 ).
2 Council Directive 72/461 of 12 December 1972 on health problems affecting intra-Community trade in fresh meat ( Official Journal, English Special Edition 1972 ( 31 December ), p . 3 ), as amended in particular by Council Directive 85/322 of 12 June 1985 ( Official Journal 1985, L 168, p . 41 ), lays down the health requirements which must be fulfilled by animals from which fresh meat is obtained for intra-Community trade . Council Directive 72/462 of 12 December 1972 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries ( Official Journal, English Special Edition 1972 ( 31 December ), p . 7 ), as amended in particular by Council Directive 83/91 of 7 February 1983 ( Official Journal 1983, L 59, p . 34 ), lays down health and veterinary inspection requirements for the importation of the products referred to therein from non-member countries .
3 In order to facilitate the importation from non-member countries of glands and organs, including blood, for pharmaceutical manufacturing purposes and in order that the same facilities should be applied in intra-Community trade in those products, the Council adopted Directive 87/64 which is at issue in these proceedings .
4 That directive is based on Articles 100 and 113 of the EEC Treaty, whereas the Commission had proposed Article 43 as the legal basis, as it had done previously for the abovementioned Directives 72/461 and 72/462, which were adopted by the Council on the basis of Articles 43 and 100 of the EEC Treaty .
5 The Commission, supported by the Kingdom of the Netherlands, considers that the contested directive should have been adopted on the basis of Article 43 alone, whereas the Council, supported by the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Denmark, considers that it was right to take Articles 100 and 113 as the legal basis .
6 Reference is made to the Report for the Hearing for a fuller account of the background to 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 .
7 It should be noted at the outset 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 ( judgment of 26 March 1987 in Case 45/86 Commission v Council (( 1987 )) ECR 1493, paragraph 11 ).
8 It should further be observed that in this case the argument with regard to the correct legal basis is not a purely formal one, because Articles 100 and 43 entail different rules regarding the manner in which the Council may arrive at its decision . The choice of the legal basis could thus affect the determination of the content of the contested directive .
9 Consequently it is necessary to consider whether, as the Commission maintains, the contested directive should have been based on Article 43 of the EEC Treaty, to the exclusion of Articles 100 and 113 .
10As the Court has held in its judgments of 23 February 1988 in Cases 68/86 and 131/86 United Kingdom v Council (( 1988/))ECR 855 and 905 respectively, Article 43 of the Treaty is the appropriate legal basis for any legislation concerning the production and marketing of agricultural products listed in Annex II to the Treaty which contributes to the achievement of one or more of the objectives of the common agricultural policy set out in Article 39 of the Treaty . There is no need to have recourse to Article 100 of the Treaty where such legislation involves the harmonization of provisions of national law in that field .
11In the same judgments the Court pointed out that Article 38(2 ) of the Treaty gives precedence to specific provisions in the agricultural field over general provisions relating to the establishment of the common market and that consequently, even where the legislation in question is directed both to objectives of agricultural policy and to other objectives which, in the absence of specific provisions, are pursued on the basis of Article 100 of the Treaty, that article, a general one under which directives may be adopted for the approximation of the laws of the Member States, cannot be relied on as a ground for restricting the field of application of Article 43 of the Treaty .
12 In the light of the foregoing considerations it is necessary to examine, on the one hand, whether or not the products concerned by the contested directive fall under Annex II to the Treaty and, on the other hand, whether or not that directive contributes to the achievement of one or more of the objectives of the common agricultural policy .
13 It follows from the abovementioned judgments that satisfaction of those two requirements suffices to link the legislation in question to the sphere of agriculture and thus to Article 43 of the Treaty . The fact that common organizations of the market in the sector concerned are already in existence constitutes a very significant indication in that respect but, contrary to what was maintained in support of the Council' s conclusions, it is not imperative .
14 In order to ascertain whether the products covered by the directive fall under Annex II to the Treaty, it is necessary to consider how they are to be classified under the nomenclature for the classification of goods established by the Convention of 15 December 1950 ( United Nations Treaty Series, Vol . 347, p . 127 ), known as the Brussels Nomenclature, to which Annex II to the Treaty refers .
15 It should first be pointed out that, under the Explanatory Notes to the Brussels Nomenclature published by the Customs Cooperation Council in 1966, glands and organs must be classified in Chapter 2 ( Meat and edible meat offals ) when they are "suitable for human consumption" and blood falls in any event under Heading 05.15 ( Animal products not elsewhere specified or included; dead animals of Chapter 1 or Chapter 3, unfit for human consumption ), a heading which includes "animal blood, edible or not, liquid or dried ". The products classified under those headings are covered by Annex II to the Treaty .
16 On the other hand, also pursuant to those Explanatory Notes, glands and organs are to be classified under headings which are not listed in Annex II, namely under Heading 05.14 ( Ambergris, castoreum, civet and musk; cantharides; bile, whether or not dried; animal products, fresh, chilled or frozen, or otherwise provisionally preserved, of a kind used in the preparation of pharmaceutical products ) if they are "unfit, by reason of their nature or of the manner in which they are put up, for human consumption" and under Heading 30.01 ( Organo-therapeutic glands or other organs, dried, whether or not powdered : organo-therapeutic extracts of glands or other organs or of their secretions; other animal substances prepared for therapeutic or prophylactic uses, not elsewhere specified or included ) if they are "dried" and therefore also unfit for human consumption .
17 It follows that glands and organs do not fall under Annex II to the Treaty unless they are fit for human consumption . Blood is covered by Annex II in any event .
18 It must further be pointed out that the contested directive concerns "glands and organs, including blood" only if they are fit for human consumption . The directive merely amends certain conditions relating to the trade in those products, without extending or restricting the material scope of the two directives which it amends . That scope is defined in Article 1 of Directive 72/461, to which Article 2 of Directive 72/462, as amended by the abovementioned Directive 83/91, refers .
19 In the words of Article 1(1 ) of Directive 72/461, that directive is to "apply to intra-Community trade in fresh meat of domestic bovine animals, swine, sheep and goats and solipeds ". Article 1(2 ) specifies that "all parts of these animals which are fit for human consumption shall be considered to be meat ".
20 Contrary to the United Kingdom' s contention, no distinction should be made in that connection according to whether glands and organs are "suitable for human consumption" by reason of their nature (" propres à la consommation humaine en raison de leur espèce ") or "fit for human consumption" by reason of the manner in which they are put up (" propres à la consommation humaine en raison de leur état de présentation "). No such distinction is apparent from the wording of Directive 72/461 or from the Explanatory Notes to the Brussels Nomenclature relied on by the United Kingdom .
21 Consequently products cannot be regarded as fit for human consumption within the meaning of Directive 72/461 and the abovementioned headings of the Brussels Nomenclature (" fit" or "suitable" as the case may be ) if they do not fulfil that condition either by reason of their nature or by reason of the manner in which they are put up .
22 It follows that the products covered by Directives 72/461 and 72/462 and thus by the contested directive are products which fall under Annex II to the Treaty .
23 As regards the question whether or not the contested directive contributes to the achievement of objectives of the common agricultural policy, it must be held first of all that, as the Commission has pointed out, in seeking to enable the pharmaceutical manufacturing industry to procure an agricultural raw material at reasonable prices and in sufficient quantities, the contested directive contributes to assuring the availability of supplies and ensuring that supplies reach consumers at reasonable prices, which are objectives referred to in Article 39(1)(d ) and ( e ) of the Treaty .
24 It should be pointed out in that connection that, contrary to what was maintained in support of the Council' s conclusions, supplying the demands of industry should not be excluded from those objectives . There is nothing in Article 39 to justify such an exclusion and, moreover, many agricultural products are subjected to industrial processing . It would be quite arbitrary to exclude them on that ground from the sphere of the common agricultural policy .
25 As regards the undisputed fact that the contested directive, whether considered in isolation or in the context of the directives which it amends, is also aimed at protecting public health, it is sufficient to point out that it follows from the abovementioned judgments of 23 February 1988 in Cases 68/86 and 131/86 that efforts to achieve objectives of the common agricultural policy cannot disregard requirements relating to the public interest, such as, in particular, the protection of health, and that the fact that measures adopted in the context of the common agricultural policy pursue at the same time objectives which, in the absence of specific provisions, are pursued on the basis of Article 100 of the Treaty, does not remove those measures from the field of application of Article 43 .
26 Recourse to Article 113 as a legal basis for the contested directive was justified by the Council on the ground that the directive aims to facilitate importation of the products concerned into the Community .
27 In that connection, it must first be stated that the purpose of the contested directive is to provide uniform rules on the conditions under which the products concerned may be marketed, not only when they originate from non-member countries but also in intra-Community trade .
28 It must further be pointed out that the mere fact that the contested directive also concerns imports into the Community does not suffice to make Article 113 applicable . It is apparent from Article 40(3 ) of the Treaty that measures taken in the context of the common agricultural policy may also affect importation and exportation of the products concerned .
29 The contested directive accordingly falls within the field of application of Article 43 of the EEC Treaty and in consequence the Council was not justified in adopting it on the basis of Articles 100 and 113 of the Treaty . It must therefore be declared void .
Costs
30 Under Article 69(2 ) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party' s pleading . Since the Council has failed in its submissions it must be ordered to pay the costs, but not those incurred by the interveners because the United Kingdom and the Danish Government also failed in their submissions and the Netherlands Government did not ask for costs .
On those grounds,
THE COURT
hereby :
( 1 ) Declares void Council Directive 87/64 of 30 December 1986 amending Directive 72/461 on health problems affecting intra-Community trade in fresh meat and Directive 72/462 on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries;
( 2)Orders the Council to pay the costs, but not those incurred by the interveners, who are to bear their own costs .
