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The Community's hormones regime was established in 1981, extended in
1988, and further extended and consolidated in 1996.
[58] As it currently stands it prohibits,
subject to certain derogations, the use in stockfarming of certain substances
having a hormonal or thyrostatic action, and beta-agnostics. This prohibition
extends to categories of hormones which are naturally occurring and to those
which are synthetically produced. The regime prohibits further, again subject
to derogations, the placing on the market or the slaughter for human
consumption of farm or acquaculture animals which contain the prohibited
substances, or to which such substances have been administered. The derogations
concern the administration of such substances for therapeutic or zootechnical
purposes, and are subject to a range of substantive and procedural safeguards.
This hormones regime has always been controversial within the
European Community. It came to form the subject matter of a number of cases
before the European Court. These were brought variously by non-governmental
organizations representing business and agricultural interests,
[59] by companies manufacturing and
distributing animal 'health' products, [60]
and by the government of the United Kingdom, supported by Denmark.
[61] While the majority of such cases were
found to be inadmissible pursuant to Article 173(4) EC, the Court addressed the
substantive issues posed in the direct action brought by the United Kingdom and
in Fedesa which came before it by way of a preliminary ruling. While, in
the former, the Court annulled the directive at issue, as being in breach of an
essential procedural requirement, in neither case did the Court question the
substantive legality of the measures. Thus, in Fedesa, the Court
observed that:
Even if it were to be held...that the principle of legal certainty requires any measure adopted by the Community institutions to be founded on a rational and objective basis, judicial review must, having regard to the discretionary power conferred on the Council in the implementation of the common agricultural policy, be limited to examining whether the measure in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceed the limits of its discretion. [62]
It is particularly important to note that the Court did not seek to assess the accuracy of the applicants' claim based on the existence of scientific evidence demonstrating the safety of the hormones at issue. Rather, in upholding the measure, the Court stressed not only the divergent appraisals of the Member States on the question of the safety of hormones, but also the negative position adopted by the European Parliament, the Economic and Social Committee and a number of consumer organizations, each of which had expressed strong opposition to an earlier Commission proposal to relax to the Community's hormones regime. Thus, '...in view of the divergent appraisals which had been made, traders were not entitled to expect that a prohibition on administering the substances in question to animals could be based on scientific data alone'. [63] The Court's refusal to evaluate the scientific basis of the directive reflects both its 'light touch' approach to the review of legislative acts adopted within the framework of the CAP, [64] and also the multiple aims pursued by the directive. The recitals to the directive refer not only to considerations relating to human health, but also to the Community interest in preventing competitive distortions and barriers to intra-Community trade. Reference is also made to 'consumer anxieties and expectations' and to the capacity of this harmonizing measure to bring about an increase in the consumption of the product concerned. Social and political conceptions of risk thus find voice before the European Court in assessing the validity of this legislative measure. An obligation attaching to the Commission (pursuant to the 1981 directive) to take account of scientific developments 'does not pre-empt the conclusions which may be drawn therefrom by the Council in the exercise of its discretion'. [65]
[58] See Council Directive 96/22/EC OJ
1996 L125/3, which represents an extension and consolidation of the previous
legislation.
[59] Case 160/88
Federation europeenne de la sante animale and others v. Council
[1988] ECR 6399; Case 160/88R Federation europeenne de la sante animale and
others v. Council [1988] ECR 4121; Case 34/88 Cooperative
agricole de l'Anjou et du Poitou and others v. Council [1988] ECR
6265
[60] Case 376/86 Distrivet
SA v. Council [1988] ECR 0209; Case C-331/88 R v.
Secretary of State for Helath ex parte Fedesa and others [1990]
ECR I-4023
[61] Case 68/86 United
Kingdom of Great Britain and Northern Ireland v. Council [1988] ECR
0855
[62] Supra n. 54,
Fedesa, para. 8
[63] Ibid. para. 10
[64] For a discussion of this see Craig, P.P.,
'Legality, Standing and Substantive Review in Community Law' (1994) 14 OJLS
507.
[65] Supra n. 60,
Fedesa, para. 10
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