Mise à jour : 5 mai 2010 (Rédaction initiale : 5 mai 2010 )

Analyses Sectorielles

II-9.2: A Decision handed down by the European Court of Justice on Feb. 25, 2010 on German BSE testing standards defends member state’s prerogatives in determining the amount of risk their populations shall be exposed to.

par Alex Raiffe

Main information

The European Court of Justice upheld German regulations on Bovine Spongiform Encephalitis (BSE, or ‘mad cow disease’) testing, which were more stringent than those required by the European Union, on the grounds that Member States are alone legitimate to determine the level of public health protection they guarantee their citizens.



Context and Summary

On May 5, 2001, the European Parliament and Council passed European Regulation 999/2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies.

This Regulation obliged Member States to conduct BSE tests on bovines aged 30 months and older, but allowed them to conduct BSE tests on animals ages 24 months when these animals belonged to certain high-risk populations. Furthermore, according to Recital 7 of the Regulation, Member States could conduct on “other bovine animals on a voluntary basis, in particular where those animals are considered to present a higher risk, provided it is done without disrupting trade.”

We remind you that European Regulations have immediate and full legal force in all EU Member States national legal systems, without their having to pass a national law implementing the provisions of the Regulation. Therefore, a European Regulation immediately becomes part of national legislation.

With this in mind, Germany had passed a specific national law (1 December 2000, BGBl. 2000 I, p. 1659), modified by the German Regulation of 25 January 2001 (BGBl. 2000 I, p. 164), requiring all bovine animals to be tested at 24 months of age.

Therefore, the Müller Fleisch GmbH. Corporation sued the German Government over the fees it charged for BSE testing, claiming that the German legislation in this area was incompatible with the European Regulation on the subject: because European Regulations are not supposed to be interpreted by Member States, Müller Fleisch claimed that Germany’s stricter legislation was illegal under European legislation, and that German legislation in this area represented a disruption of free trade within the European Union.

However, the ECJ rejected Müller Fleisch’s suit, on the grounds that Recital 7 of the European Regulation allowed member states a margin of interpretation.

Recalling the principle that restrictions on trade must be proportionate to the public health goal at hand, the Court decided that stricter testing conditions in Germany do not represent a disproportionate disruption of trade.

Brief commentary

This decision confirms that the ECJ is becoming the strongest advocate within the EU for Member State’s prerogatives.

Indeed, the ECJ is increasingly defending the principle that Member States alone have the democratic legitimacy required to determine the risk-exposure of their populations. Indeed, the European Commission is not legitimate to make law in lieu of a democratically elected government when these laws concern areas such as public health. It is completely legitimate for Member States to impose extra restrictions in the domain of public health, without such restrictions being per se a restriction on free trade within the EU.

In this sense, the ECJ ruled that Germany was allowed to keep legislation requiring that pharmacies by owned by pharmacists, without such a restriction constituting an disproportional restriction on free movement of capital and services (ECJ, 19/05/09, affairs C-171/07 & C-172/07, Apothekerkammer des Saarlandes et al.). Indeed, German law required that pharmacies—because they sell potentially dangerous medicines—be owned and operated by pharmacists, who alone are competent to advise and protect the public against misuse of medicine. The ECJ decided that this goal was compatible with the restriction on free movement on capital and services that these measures implied.

See also infra Sector Report II.10-1, Two decisions by the European Union’s General Court jeopardise the European Emission Trading Scheme, for an analogous analysis by the EU General Court, which decided that the European Commission was incompetent to replace member states in deciding the amount of emissions quotas to be issued, and to determine their price. This is another example of the European Union court system defending member states sole legitimacy (against the European Commission) in deciding the amount of risk that they expose their populations to.

We can only applaud the ECJ’s decision, which upholds the principle of democratic self-determination as concerns social protection and exposure to risk; and that technical experts cannot make decisions for national communities in areas such as healthcare policy.

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