The General Court (the court in first instance) of the European Court of Justice has held against the Commission in Case T-333/10 Animal Trading Company. The English version of the judgment was not yet available at the time of writing.
The applicants seek compensation for the harm which they have suffered as a result of, first, the European Commission ban on the importation of birds caught in the wild, which entered into effect in October 2005 in the light of the avian flu phenomenon, second, the extensions of that ban, and, third, the restrictions which have been in force since 1 July 2007 on the importation of birds and which, de facto, continue the prohibition of the importation of birds caught in the wild.
Applicants’ arguments centered on firstly the executive power of the Commission – with the General Court holding however that the Commission’s action was not ultra vires. The Court subsequently re-iterated its case-law that in looking after human and animal life and health, the European Institutions enjoy a large discretion in light of the precautionary principle. However it also held that in pursuing this wide remit, the Commission diligently has to take account of all available information, and has to follow due process in acquiring such information.
The Court held that the general import ban (and subsequent extensions) had cast the net too wide, given that no assessment was made of the risks presented by imports of birds other than in regions where avian flu had been present. The Commission had not diligently chased relevant information.
The Case is perhaps a relief from the findings in Gowan, however the judgment may be appealed to the ECJ on a point of law – which may not be that obvious for the European Commission to find.