Injunction offers best hope to end beef ban

Date: 25/04/1996

By Michael Mann

FACING an EU united behind the measure, the UK government's best hope of forcing an end to the ban on UK beef exports imposed because of fears over BSE lies in convincing the president of the European Court of Justice to grant it an injunction.

Court officials believe that it could take as little as two or three weeks to decide whether 'interim measures' to halt the ban can be granted.

Persuading the Court that the measures are causing such serious and irreparable damage to its beef industry that they must be suspended pending a final judgement will not be easy for the UK.

Nor will it be easy, however, for the Court to decide whether to agree to an injunction. It will have to weigh up the consequences of suspending the ban if it is ultimately found to be legal, against the damage to the UK of rejecting its challenge if the full Court eventually finds in London's favour.

When asked to give an example of a similar dispute in the past, officials scratch their heads and shrug their shoulders. “We've never seen anything like this before,” said a Commission spokesman.

But Court officials point out that injunctions have been granted in other high-profile cases, such as the Commission's successful attempt to force Greece to lift its embargo against the Former Yugoslav Republic of Macedonia.

A verdict on the main case is unlikely to follow until much later. The average length of proceedings before the Court is about 17 to 18 months, and even certain short cuts would not produce a result for about ten months.

The UK call for the ban to be annulled is based on its firm belief that the measures are unjustified on scientific grounds, are disproportionate, and - in extending the export ban to third countries - go well beyond the Commission's powers.

The Commission has so far been noticeably and unusually cagey about publicly defining precisely the legal basis for the ban on exports to non-EU countries. Officially, the ban falls under Article 43 of the treaty, which covers the harmonisation of veterinary legislation. But it has justified the measures on the grounds that they are designed to ensure that no British beef is reimported into the Union after export to a third country.

The Commission has also said it is vital to protect the reputation of European beef as a whole, so that it is not tarred with the same brush as British produce.

According to senior officials, the Commission has wide-ranging powers under safeguard clauses in a series of intra-Community veterinary control directives aimed at protecting human health.

They admit the rules do not say explicitly that such measures cover trade with third countries, but officials claim that the question of consumer confidence - which is increasingly being given as the main reason for the ban - is inextricably linked to public health. “The rules cover public health, and the reason for the market collapse is the concern over public health,” said one.

Clearly, the judges will face a delicate problem in deciding whether the Commission was within its rights in extending the terms of its decision beyond the EU's external borders. Court officials refer to a case in the mid 1980s, where the Court judged that the Commission had acted within its rights in penalising a wood pulp cartel, even though those involved were non-EU members.