U-I-113/04

If a petition to commence proceedings for the review of the constitutionality and legality of a regulation is evidently unfounded, the Constitutional Court dismisses such.

U-I-113/04

8 July 2004

 

R U L I N G

 

At a session held on 8 July 2004 in proceedings to decide on the petitions of Jata Emona Ltd. company and others, represented by Anton Marolt, lawyer in Ljubljana, the Constitutional Court

 

d e c i d e d a s f o l l o w s:

 

The implementation of Item (l) of Para. 1 of Art. 12 and Item (a) of Para. 5 of Art. 14 of the Rules on the Quality, Labelling and Packing of Feedingstuffs in Circulation (Official Gazette RS, No. 34/03) is until the final decision of the Court of Justice of the European Communities on the validity of Art. 1(1)(b) of Directive 2002/2/EC of the European Parliament and of the Council of 28 January 2002 amending Council Directive 79/373/EEC on the circulation of compound feedingstuffs and repealing Commission Directive 91/357/EEC (OJ L No. 63 of 6 March 2002, p. 23) and Art. 1(4) of the same Directive, in the scope amending Article 5c(2)(a) of Council Directive 79/373 on the marketing of compound feedingstuffs (OJ L No. 86 of 6 April 1979, p. 30), is suspended.

 

R e a s o n i n g

 

A.

 

1. The petitioners – business companies which manufacture and sell feedingstuffs and mixtures of feedingstuffs – proposed the review of the constitutionality of Item (l) of Para. 1 of Art. 12 of the Rules on the Quality, Labelling and Packing of Feedingstuffs in Circulation (hereinafter the Rules), which provides that mixtures of feedingstuffs that are not intended for pet animals must be labelled in circulation in a manner such that they contain the statement where it is possible to obtain the data on the precise percentage of every separate feedingstuff in the mixture of feedingstuffs (the name, address, telephone number and e-mail of the legal entity or the natural person). Furthermore, the petitioners proposed the review of the constitutionality of Item (a) of Para. 5 of Art. 14 of the Rules, which provides that the contents of a mixture of feedingstuffs intended for all kinds of animals, except for pet animals, must be labelled so that separate feedingstuffs are stated together with their proportions in a descending order of precedence, provided that allowed deviation amounts to +/– 15 percents at most. They opined that the challenged provisions were inconsistent with Arts. 33, 60, 67, 69, 74 and 87 of the Constitution.

 

2. According to the petitioners, the composition of a certain mixture of feedingstuffs (the proportion between separate feedingstuffs that compose such a mixture of feedingstuffs) is a result of constant research and the investment of large resources in development. Thus, the precise composition of mixtures of feedingstuffs means their "know-how", a type of intellectual property and a business secret. Constant investment in the development of the effectiveness of mixtures of feedingstuffs allegedly ensures the petitioners the preservation or increase in their market share. By the challenged Rules provisions their intellectual property loses any economic meaning, as the investment would allegedly give them no advantages and benefits. By the publication of the data on the precise percentage of the contents of separate feedingstuffs in a mixture of feedingstuffs, the competition could entirely destroy the meaning and protection of intellectual property as competitors would market the same products at lower prices, without expenses of investment in research and development, and without compensation. Thereby the petitioners will lose their market shares, which entails an irreparable damage. Moreover, the petitioners stated that the challenged provisions are otherwise in conformity with Items (d), (e) and (l) of Art. 5 and Item (a) of Para 2 of Art. 5.c of Directive 2002/2/EC of the European Parliament and of the Council of 28 January 2002 amending Council Directive 79/373/EEC on the circulation of compound feedingstuffs, and repealing Commission Directive 91/357/EEC (hereinafter the Directive). However, what is allegedly disputed is the legal validity of the mentioned provisions of the Directive. This was allegedly established by the European Association of Feedingstuffs Producers (FEDEC) in its letter to the President of the EU Council, by several member states, and also by certain courts which have in their concrete proceedings allegedly suspended the internal acts adopted for the assumption of obligations determined for member states by the Directive. To that effect, they allegedly initiated proceedings of preliminary ruling before the Court of Justice of the European Community (hereinafter the EC Court). The petitioners proposed that the Constitutional Court suspend the implementation of the challenged Directive provisions pending the final decision of the EC Court on the validity of the disputed Directive provisions, and annul ab initio the challenged Rules provisions after the decision of the EC Court on the legality of the mentioned Directive provisions.

 

3. In its reply, dated 6 May 2004, the Ministry of Agriculture, Forestry and Food (hereinafter the Ministry) rejected the petitioners' assertions, and stated that the challenged Rules provisions entirely assume Items (d), (e) and (l) of Art. 5 and Item (e) of Para 2 of Art. 5.c of the Directive. It explained that the area of feedingstuffs is closely related to ensuring the health appropriateness of food, as feedingstuffs could lead to the remnants of harmful materials in food, which caused health inappropriateness of food. Furthermore, it warned that, concerning the assumed obligations in conformity with Article 3.a of the Constitution, Slovenia is obliged to respect full implementation of principles and provisions of European Union (hereinafter the EU) regulations. Disrespect for Community regulations could result in sanctions of the prohibition and limitation of appearing in the Community market.

 

B.

 

4. The petitioners challenged the Rules provisions, for which the Ministry asserted that they meant the implementation of the obligations determined by the Directive for Slovenia as a member state of the EU,. The Rules were adopted on the basis of Art. 3.5, Art. 4.6 and Art. 6.3 of the Feedingstuffs Act (Official Gazette RS, No. 13/02 – hereinafter ZKrmi), which authorizes it for the issuance of Rules on the conditions regarding the appropriate quality of feedingstuffs for the breeding of certain kinds and categories of animals (Art. 3.5 of ZKrmi), the determination of the type of packaging for feedingstuffs, supplements and premixes (Art. 6.3 of ZKrmi), and more detailed regulation of the manner of labelling feedingstuffs in circulation (Art. 4.6 of ZKrmi).[1]

5. Art. 5 of the Directive determines that the member states of EU are obliged to prescribe that a mixture of feedingstuffs must not be sold (marketed) if the particulars are not clearly, and in a manner that cannot be erased, labelled in the place intended for labelling, on the package, container, or accompanying document. Moreover, it determines that such a manner and contents of labelling are the responsibility of the manufacturer, of that who packs a mixture, the importer, the seller or distributor, who has the main office inside the Community. Item (d) of Art. 5 determines that, in conformity with Art. 5.c of the Directive, all the particulars of mixtures of feedingstuffs must be labelled, with the exception of those that are intended for pet animals. Item (e) of Art. 5 of the Directive prescribes that the contents of analytical particulars is labelled in mixtures of feedingstuff in cases stated in Part A of the Annex to the Directive. Furthermore, Item (l) of Art. 5 of the Directive determines the obligation of the member states of the EU that mixtures of feedingstuffs that are not intended for pet animals are labelled in circulation with the information: "that the precise percentage of every separate used feedingstuff may be obtained from: …" (the name of the legal entity or natural person, the address or the main office, the telephone number and e-mail of the responsible person), and that this information is provided upon customers' request. Moreover, Item (2)(a) of Art. 5.c of the Directive states that mixtures of feedingstuffs, except for the mixtures intended for pet animals, must be labelled so that separate feedingstuffs are stated together with their proportion in a descending order of precedence, provided that allowed deviation amounts to +/– 15 percents at most.

 

6. Art. 3 of the mentioned Directive requires that the member states until 6 March 2003 adopt and publish regulations necessary for the implementation of the Directive, and begin to apply such on 6 November 2003. Pursuant to Art. 53 of the Act on the Conditions of the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic, and on the Adjustment of the Treaties on which the European Union is based (OJ[2] L No. 236, dated 23 September 2003 and Official Gazette RS, No. 12/04, MP, No. 3/04), from the accession onwards it is considered that the directives determined in Art. 249 of the EC Treaty are addressed at the new member states, provided that the mentioned directives were addressed at all present member states, whereby it is presumed that the new member states were officially informed of the directives at the accession. This means that the Republic of Slovenia is (at least) from the date of accession, i.e. from 1 May 2004, onwards obliged to apply the measures prescribed by the Directive.

 

7. According to Art. 3.a of the Constitution, legal acts and decisions adopted in the framework of international organizations to which Slovenia transfers the exercise of a part of sovereign rights are in Slovenia applied in conformity with the legal regulation of these organizations. Pursuant to the explicit provision of Art. 249.3 of the Treaty establishing the European Community (consolidated text), OJ C No. 325 of 24 December 2002 and Official Gazette RS, No. 27, MP, No. 7/04 – hereinafter the EC Treaty), a directive is a legal act which is for every member state to which it is addressed binding with respect to the goal which must be achieved, however it leaves to the authorities of a member state to select the type and method necessary for achieving the goal. This entails that, by adoption and publication, directives do not automatically become part of the legal order of a member state, but become such only with the regulation which is for their implementation adopted by member states. Directives in themselves in principle oblige only the authorities of the member states to which they are addressed, to regulate a certain legal area in conformity with the goals of a directive. Despite the fact that the above-mentioned entails that a directive generally gives member states a certain field of discretion in the selection of means for achieving the obliged result,[3] in the case at issue it is necessary to establish that, in the part also emphasized by the petitioners, the disputed Directive is binding in a manner such that it does not give a member states the mentioned freedom in achieving the goals of the Directive. Thus, in conformity with the Directive, the Rules in the challenged provisions substantively assume what is already determined in the Directive, and thereby in the challenged manner regulate the labelling of feedingstuffs in circulation. The mentioned entails that, regardless of the fact that the petitioners formally required the implementation and, subsequently, annulment ab initio of the challenged Rules provisions, they actually substantively challenged the provisions of the Directive, which prescribes the disputed obligations. The petitioners asserted that the Directive was invalid for several reasons. First, there was allegedly no basis for its adoption in Article 152(4)(b) of the EC Treaty, which enables the adoption of only those measures whose direct goal is the protection of public health. According to the petitioners' request, the requirement of the Directive does not contribute to the mentioned goal, as for the control of a mixture of feedingstuffs the mentioning of particulars suffices, not also of their proportion in percentages. For the mentioned reason, the requirements of the Directive were allegedly contrary also to the principle of proportionality. With the requirement to disclose the percentages of the composition of feedingstuffs, which represent companies' business secret, the Directive allegedly also interferes with intellectual property, free economic initiative of companies, and results in the exclusion of competition rules. The validity of the Directive is an issue upon which the EC Court decides, in accordance with Art. 230.1 and Item (b) of Para. 1 of Art. 234 of the EC Treaty.[4]

 

8. Accordingly, the Constitutional Court did not need to take a position whether it is empowered, on the basis of Art. 160.1.3 of the Constitution, to review the conformity of regulations (statutes and executive regulations) with the Constitution also in a case which concerns a regulation that means the direct transposition of a European directive into the internal legal order. As the petitioners proposed the suspension of the Rules, it had to review whether the conditions for suspension were fulfilled in the case at issue. According to Art. 161.1 of the Constitution, the Constitutional Court may under the conditions determined by statute until the final decision entirely or partially suspend the implementation of an act whose constitutionality or legality it is reviewing. In accordance with Article 39 of the Constitutional Court Act (Official Gazette RS, No. 15/94 – hereinafter ZUstS), the Constitutional Court may suspend the implementation of a statute or other regulation if severe irreparable consequences could develop due to its implementation. As also the issue of the validity of the Directive, on which the Rules are based, is raised in the case at issue, the Constitutional Court did not need to address the issue whether and under which conditions the Constitutional Court could suspend the implementation of the Rules if there was only the issue of its conformity with the Constitution. In the system of legal protection as ensured by the Community law,[5] individuals have the possibility to challenge before the courts of a member state both the regulations of the member state which transpose Community acts into the internal legal order, as well as the acts of Community institutions themselves, and in proceedings before the courts of member states require their temporary suspension. In such cases they also have the right to require from state courts to institute proceedings of preliminary ruling before the EC Court on the validity of presumably disputed Community acts. The position of the EC Court is also that, due to the harmonization of the system of temporary protection, it is necessary that the courts of member states, in cases in which the validity of a Community act or an act that is based on such act is disputed, issue temporary injunctions by which they suspend the implementation of challenged acts or acts issued on their basis, only given the fulfilled uniform conditions which must correspond to the conditions under which the EC Court may suspend the implementation of the challenged act or issue a necessary temporary injunction (Art. 243 of the EC Treaty) in proceedings before such.

 

9. The first condition that the EC Court[6] set for the issuance of temporary injunctions in the mentioned cases requires that the court faces a serious doubt concerning the validity of a Community act on the basis of which the challenged regulation of a member state is based. As it concerns the issue of the validity of a Community act whose invalidity can only be established by the EC Court, it is necessary in such cases that the court of a member state institutes proceedings of preliminary ruling before the EC Court in conformity with Article 234 of the EC Treaty, whereby it is obliged to state in a request for preliminary ruling the reasons due to which it opined that the Community act was prima faciae invalid. Only if an issue of the validity of a disputed act was already raised before the EC Court for the same reasons for which the court of a member state doubts the validity of the Community act, this court is not obliged by this obligation. Furthermore, a temporary injunction is allowed only in cases of necessity in which an individual is threatened by a serious and irreparable damage. In deciding on whether to suspend, or not, the challenged act, the court must consider also the interests of the Community and, in the review of all the mentioned conditions, respect any decision of the EC Court or the Court of First Instance regarding the legality of the act or regarding the application of temporary measures which demand comparable temporary protection at the level of the Community.[7]

 

10. In the case at issue the petitioners referred to the judgment of the Higher Court of England and Wales (Queens' Bench Division, Administrative Court), dated 6 October 2003, which they also enclosed, by which the court suspended the implementation of a domestic regulation issued on the basis of the disputed Directive provisions, and instituted proceedings of preliminary ruling before the EC Court. From the publication of the mentioned preliminary ruling in Official Journal of the EU No. C 7/22, of 10 January 2004, it follows that the English court submitted to the EC Court the question of validity of Art. 1(1)(b) of Directive 2002/02 and/or Art. 1(4) of Directive 2002/02 in the scope in so far as they, by requiring the statement of percentages, are amending Art. 5c(2)(a). As the reasons due to which it established serious doubt as to their validity, the court mentioned lack of a legal basis in Art. 152(4)(b) of the EC Treaty, the violation of the fundamental right to property, and the violation of the principle of proportionality (Case C-453/03). The temporary suspension of regulations of member states issued on the basis of the disputed Directive was for similar reasons also adopted by the French State Council (Conseil d'État)[8] and the Italian State Council (Consiglio di Stato)[9]. Concerning the above-said, the Constitutional Court established that there was a serious doubt as to the validity of the mentioned Directive. In view of the fact that the request for preliminary ruling as submitted to the EC Court by the English court entirely covers the reasons which also in the petitioners' opinion point to the fact that the disputed provisions of the mentioned Directive are invalid, and due to which also the Constitutional Court found a serious doubt as to their validity, it is not necessary that the request for preliminary ruling as regards the validity of the disputed Directive provision is also submitted by the Constitutional Court.

 

11. Regarding the condition of necessity it is necessary to establish that the disclosure of business secrets and know-how of a company, as required by the challenged Rules and the Directive, in the opinion of the Constitutional Court, entails a threatening serious and irreparable damage. The Constitutional Court followed the petitioners' assertions according to which the disclosure of business secrets to the public makes it possible for rival companies to be acquainted with the data, and consequently enables the use of such. The losing of market shares in such cases is logical and also in the opinion of the Constitutional Court supports the conclusion that the damage which the petitioners are facing is not only serious, but also irreparable. Furthermore, the result the Constitutional Court achieved on the basis of balancing the consequences of temporary suspension in the light of the interests of the Community speaks in favour of the temporary suspension of the challenged Rules provisions. On the basis of temporary injunctions which were already issued in other member states (England, France, Italy), by which the courts of these states suspended the implementation of domestic regulations in the part in which these regulations follow the requirements of the Directive as to the disclosure of percentages of compound feedingstuffs, it is possible to conclude that the interests of the Community, which in the first place require the uniform application of Community law in the entire territory of the EU, will not be affected by the suspension of the implementation of the mentioned Rules provision in the territory of the Republic of Slovenia. Quite the contrary: concerning the fact that the disputed Directive provisions in a certain part of the EU already at present do not have any effect, the implementation of the challenged Rules provisions could have a negative impact on the conditions of competition. Additionally, it is also possible to agree with the petitioners' assertions that the basic goal of the disputed provisions, which is to ensure public health, will not be jeopardized with the suspension of the challenged Rules provisions in view of the fact that the legal regulation has hitherto, i.e. until the coming into force of the amendments contained in the disputed Directive, already enabled access to all the data regarding the presence of individual particulars in a mixture of feedingstuffs.

 

12. Accordingly, the Constitutional Court establishes that all the conditions for the suspension of the implementation of a regulation of a member state by which a Community act (the Directive in the case at issue) is transposed into the internal legal order are fulfilled. Therefore, the Constitutional Court suspended the challenged Rules provisions until the decision of the EC Court in Case C-453/03.

C.

 

13. The Constitutional Court reached this Decision on the basis of Art. 39 of ZUstS, composed of: Dr. Dragica Wedam Lukić, President, and Judges Dr. Janez Čebulj, Dr. Zvonko Fišer, Lojze Janko, Marija Krisper Kramberger, LL.M., Milojka Modrijan, Dr. Ciril Ribičič, Dr. Mirjam Šrk and Jože Tratnik. The Decision was reached by six votes in favour against three. Judges Fišer, Krisper Kramberger and Škrk voted against.

 

dr. Dragica Wedam Lukić

President

 

Notes:

[1]ZKrmi was adopted in the framework of the State Program for the Assumption of the Legal Order of the European Union (NPAA); Reporter NA, No. 89/01, EPA 2344 III.

[2]UL is the designation of the Official Journal of the European Communities or the Official Journal of the European Union.

[3]Eventually, it is an instrument of the harmonization (adjustment) of the legal orders of member states, not of unification.

[4]That this is within its exclusive power, the EC Court decided in Case 314/85, Firma Foto-Frost (1987) ECR 4199, where it also explicitly stated that the courts of member states are not empowered to reach a decision on the invalidity of a Community act, but may establish that a Community act is valid.

[5]C-213/89 Factortame and others (1990) ECR I-2433; joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest (1991) ECR I-451.

[6]See ibidem, the decision in Case Zuckerfabrik and the decision in Case C-465/93 Atlanta Fruchthandelsgesellschaft (1995) ECR I-3761.

[7]Atlanta Fruchthandelsgesellschaft, ibidem, Paragraph 51.

[8]N. 260768 dated 29 October 2003.

[9]Ordinanza n. 7992 dated 4 December 2003.

 

 

U-I-113/04

7 February 2006

 

D E C I S I O N

At a session held on 7 February 2007 in proceedings to examine the petition of the companies Jata Emona, Inc., Ljubljana, Perutnina Ptuj, Inc., Ptuj, Pivka Perutninarstvo, Inc., Košana, Tovarna močnih krmil Črnci, Inc., Apače, and cooperative Kmetijska zadruga Krka, C. Ltd., Novo mesto, all represented by Aton Marolt, attorney at law in Ljubljana, the Constitutional Court

d e c i d e d a s f o l l o w s:

1. The petition to commence proceedings for the review of the constitutionality and legality of Art. 14.5.a of the Rules on the Quality, Labelling, and Packing of Feedingstuffs in Circulation (Official Gazette RS, Nos. 34/03, 110/05, and 80/06) is dismissed.

 

2. The proceedings to examine the petition to commence proceedings for the review of the constitutionality of Art. 12.1.I of the Rules on the Quality, Labelling, and Packing of Feedingstuffs in Circulation are discontinued.

R e a s o n i n g

A.

1. The petitioners – business companies which manufacture and sell feedingstuffs and mixtures of feedingstuffs – proposed the review of the constitutionality of Art. 12.1.I of the Rules on the Quality, Labelling, and Packing of Feedingstuffs in Circulation (hereinafter the Rules), which provides that mixtures of feedingstuffs that are not intended for pet animals must be labelled in circulation in a manner such that they contain a statement of where it is possible to obtain data on the precise percentage of every separate feedingstuff in the mixture of feedingstuffs (the name, address, telephone number, and e-mail of the legal entity or natural person). Furthermore, the petitioners proposed the review of the constitutionality of Art. 14.5.a of the Rules, which provides that the contents of mixtures of feedingstuffs intended for all kinds of animals, except for pet animals, must be labelled so that separate feedingstuffs are stated together with their proportions in descending order of quantity, provided that allowed deviations amount to +/– 15 percent at most. They opined that the challenged provisions were inconsistent with Arts. 33, 60, 67, 69, 74, and 87 of the Constitution.

2. According to the petitioners, the composition of a particular mixture of feedingstuffs (the proportion of the separate feedingstuffs that compose such a mixture of feedingstuffs) is a result of continuous research and the investment of large resources in development. Thus, the precise composition of mixtures of feedingstuffs embodies "know-how", a type of intellectual property and a business secret. Continuous investment in the development of the effectiveness of mixtures of feedingstuffs allegedly allows the petitioners to maintain or increase their market share. The challenged provisions of the Rules nullify any economic value of their intellectual property , as the investment would allegedly provide them no advantages or benefits. With the publication of the data on the precise percentage of the contents of the individual feedingstuffs in a mixture of feedingstuffs, the competition could entirely nullify the value and protection of intellectual property, as competitors would market the same products at lower prices, without the expenses of investment in research and development, and without compensation. Thereby the petitioners will lose market share, which entails irreparable damage. Moreover, the petitioners stated that the challenged provisions are otherwise in conformity with Items (d), (e), and (l) of Art. 5 and Item (a) of Art. 5c.2 of Directive 2002/2/EC of the European Parliament and of the Council of 28 January 2002 amending Council Directive 79/373/EEC on the circulation of compound feedingstuffs, and repealing Commission Directive 91/357/EEC (hereinafter the Directive). However, what is allegedly disputed is the legal validity of the mentioned provisions of the Directive. This was allegedly established by the European Association of Feedingstuffs Producers (FEDEC) in its letter to the President of the EU Council, by several member states, and also by certain courts which have in their concrete proceedings allegedly suspended the internal acts adopted for the assumption of obligations determined for member states by the Directive. To that effect, they allegedly initiated proceedings for a preliminary ruling before the Court of Justice of the European Community (hereinafter the ECJ). The petitioners proposed that the Constitutional Court suspend the implementation of the challenged Directive provisions pending the final decision of the ECJ on the validity of the disputed Directive provisions, and annul ab initio the challenged Rules provisions after the decision of the ECJ on the legality of the mentioned Directive provisions.

3. In its reply dated 6 May 2004, the Ministry of Agriculture, Forestry, and Food (hereinafter the Ministry) rejected the petitioners' assertions, and stated that the challenged provisions of the Rules entirely restate Items (d), (e), and (l) of Art. 5 and Item (e) of Art. 5c.2 of the Directive. It explained that the field of feedingstuffs is closely related to ensuring the appropriate health level of food, as feedingstuffs could lead to the remnants of harmful materials ending up in food [for humans], resulting in unhealthy food. Furthermore, it warned that, concerning the assumed obligations, in conformity with Article 3.a of the Constitution, Slovenia is obliged to fully implement the principles and provisions of European Union (hereinafter the EU) regulations. Not following Community regulations could result in the sanctions of a prohibition on or limitation of trading in the Community market.

B. – I.

4. By Order No. U-I-113/04, dated 8 July 2004 (Official Gazette RS, No. 83/04), on the basis of Art. 39 of the Constitutional Court Act (Official Gazette RS, No. 15/94 – hereinafter the ZUstS), the Constitutional Court suspended the implementation of Art. 12.1.I and Art. 14.5.a of the Rules until the final decision of the ECJ on the validity of Art. 1.1.b of Directive 2002/2/EC of the European Parliament and of the Council of 28 January 2002 amending Council Directive 79/373/EEC on the circulation of compound feedingstuffs and repealing Commission Directive 91/357/EEC (OJ L No. 63 of 6 March 2002, p. 23) and Art. 1.4 of the same Directive, in the scope of amending Article 5c.2.a of Council Directive 79/373 on the marketing of compound feedingstuffs (OJ L No. 86 of 6 April 1979, p. 30).

5. By the judgment of 6 December 2005 in the case of ABNA and others, C-453/03, C-11/04, C-12/04 and C-194 (ZOdl., pp. I-10423 – hereinafter the ABNA judgement), the ECJ inter alia decided that Art. 1.1.b of the 2002/2 Directive, which imposes on feedingstuffs producers the obligation to make available the precise components of feedingstuffs at the request of a consumer, was invalid due to the violation of the principle of proportionality, however, it decided that Art. 1.4 of the mentioned Directive was not invalid.

6. The petitioners proposed the appointment of an expert. They substantiated their proposal by stating that the Constitutional Court could thereby obtain an expert opinion regarding the assertion that stating the particular ingredients of individual feedingstuffs in the mixtures of feedingstuffs suffices for the purpose of health protection, and that there is no need to mention their proportion in percentages. The Constitutional Court establishes that the state of facts which is the basis for the examination of the petition has been sufficiently explained already on the basis of the documents submitted. Therefore, it decided not to appoint an expert.

B. – II.

7. By the Rules on the Amendment to the Rules on the Quality, Labelling, and Packing of Feedingstuffs in Circulation (Official Gazette RS, No. 80/06), the challenged provision of Art. 12.1.I of the Rules ceased to apply during the proceedings for the examination of the petition. Thus, in accordance with Art. 47 of the ZUstS, the Constitutional Court called on the petitioners to state whether they still wished to pursue the petition filed in this part, and if they do, to demonstrate their legal interest.

8. The petitioners informed the Constitutional Court by their letter of 30 August 2006 that in the mentioned part they no longer wished to pursue the petition. The Constitutional Court considered such statement to be a withdrawal of the petition, thus it discontinued the proceedings in this part (Item 2 of the operative provisions).

B. – III.

9. Consequently, what is still challenged by the petitioners is just Art. 14.5.a of the Rules, which provides that the contents of mixtures of feedingstuffs intended for all kinds of animals, except for pet animals, must be labelled so that separate feedingstuffs are stated together with their proportions in descending order of quantity, provided that allowed deviations amount to +/– 15 percent at most.

10. Art. 3a of the Constitution determines that pursuant to a treaty ratified by the National Assembly by a two-thirds majority vote of all deputies, Slovenia may transfer the exercise of part of its sovereign rights to international organizations which are based on respect for human rights and fundamental freedoms, democracy, and the principles of the rule of law and may enter into a defensive alliance with states which are based on respect for these values. An example of such treaty is the Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union (OJ L No. 236 dated 23 September 2003 and Official Gazette RS, No. 12/04, MP, No. 3/04 – MPPEU), by which Slovenia transferred part of its sovereign rights to the EU. This simultaneously entails that in certain areas it also transferred normative regulation to the EU. Member States have namely mutually agreed that henceforth they would consider certain of their powers to be matters of common interest, concerning which activities carried out within the organization or those carried out through such will be much more effective and beneficial than if performed individually (see the opinion in Rm 1/97 dated 5 June 1997, Official Gazette RS, No. 40/97 and OdlUS VI, 86).

11. The legal basis for the adoption of Directive 2002/2 was Art. 152.4.b of the Treaty establishing the European Communities (consolidated text, OJ C 321/E/06 of 29 December 2006 and Official Gazette RS, No. 27/04, MP, No. 7/04 – hereinafter the TEC), which determines that the Council, acting in accordance with the procedure referred to in Art. 251 and after consulting the Economic and Social Committee and the Committee of Regions, contributes to the achievement of the objective referred to in this article through the adoption of measures, by way of derogation from Art. 37, in the veterinary and phytosanitary fields, which have as their direct objective the protection of public health. In the ABNA judgment the ECJ established that Art. 152.4.b of the TEC is a correct and appropriate legal basis for taking measures necessary for the protection of public health[1]. In conformity with Art. 249.3 of the TEC, for every Member State to which it is addressed[2] a directive is obligatory concerning the objective that is to be achieved, however, it leaves it to the Member States to choose the form and methods for such. Thus, a directive always requires that Member States transpose such into their legal systems. Art. 3 of the mentioned 2002/2 Directive requires that by 6 March 2003 Member States adopt and promulgate regulations which are necessary for the implementation of the 2002/2 Directive, and begin to apply such on 6 November 2003. As regards Art. 53 of the Act, concerning the conditions of accession, cited already in note 2, for new Member States this obligation has existed since 1 May 2004. In the concrete case it is necessary to consider that the Rules were adopted due to the transposition of an EU directive into the Slovene legal system, and are therefore a so-called implementing regulation.

12. Neither Art. 3.a of the Constitution nor Art. 249.3 of the TEC determines by which legal act EU law is to be transposed into the Slovene legal system. Thus, the fact that the Rules are an implementing regulation does not exclude the jurisdiction of the Constitutional Court, or limit such. This in the considered case entails that both the Constitution and the principle of the separation of legislative, executive, and judicial powers regulated in such (Art. 3.2) are to be respected. This principle namely excludes the possibility that administrative authorities would amend or independently regulate legislative matters. The relevant question of constitutionality that the Constitutional Court considered in this case referred to the question of the existence of a statutory basis for regulation in the challenged Rules, and consequently to the question of its conformity with Art. 120.2 of the Constitution (and not with Art. 87 of the Constitution, as erroneously asserted by the petitioners).

13. In accordance with Art. 120.2 of the Constitution, administrative authorities perform their work independently within the framework and on the basis of the Constitution and laws. The principle of the binding effect of the Constitution and laws on state authorities and, in the framework of such, the legality principle in the adoption of regulations are, as basic constitutional principles, closely connected with the principles of a democratic and law-governed state (Arts. 1 and 2 of the Constitution). Concerning the normative activity of the state administration, these principles entail that in the adoption of regulations the state administration is substantively bound by the Constitution and laws. Accordingly, administrative authorities do not have the right to adopt regulations without them being substantively based on a law – however, it is not necessary that the explicit authority for the implementation of which regulation is adopted be determined in the law. The so-called executory clause (a statutory provision that a regulation is to be adopted by a certain time limit) only entails that the legislature did not (entirely) leave the adoption of regulations to the judgment of the executive power, but it imposed on such the obligation to regulate certain issues, and determined a time limit for such (see also Constitutional Court Decision No. U-I-305/96, dated 22 April 1999, Official Gazette RS, No. 36/99 and OdlUS VIII, 82 and Decision No. U-I-264/99, dated 28 September 2000, Official Gazette RS, No. 97/2000 and OdlUS IX, 226). Regarding the imposition of obligations or the granting of authority to adopt regulations, executory clauses can be general (e.g. not determining precisely what is to be done in connection with the regulation) or completely precise (precisely determining the subject-matter that the regulation may deal with). It falls within the legislature's discretion which type of executory clause it chooses in a concrete case. Thereby it is only limited by the constitutionally defined relations between the legislative and executive power. As already the principle of the separation of powers (Art. 3.2 of the Constitution) excludes the possibility that administrative authorities amend or independently regulate statutory subject-matter, an executory clause may not contain the authority on the basis of which regulations would contain provisions for which there is no basis already in the law; in particular they must not leave to a regulation the independent determination of rights and obligation.

14. The challenged Rules had an explicit statutory basis in Art. 4 of the Feedingstuffs Act (Official Gazette RS, No. 13/02 et seq. – hereinafter ZKrmi), which in Para. 4.4. determined that feedingstuffs must be labelled in a manner that contains data on raw-material composition, nutritious materials, and additives. Concerning the above-mentioned, it is possible to conclude that ZKrmi already regulated the obligation to label feedingstuffs. In Art. 4.6 of ZKrmi the legislature also authorized the Minister to precisely prescribe the manner of labelling feedingstuffs. During the proceedings for examining the petition the new Feedingstuffs Act was adopted (Official Gazette RS, No. 127/06 – hereinafter ZKrmi-1), which repealed ZKrmi and, for the regulations adopted on the basis of such, determined in Art. 31.2 that they continue to apply until the coming into force of the regulations adopted on the basis of this law. However, also the new ZKrmi-1 regulates the obligation to label feedingstuffs, as in Art. 6.1 it determines that feedingstuffs in circulation must be labelled in a prescribed manner. Furthermore, Art. 6.6. of Zkrmi-1 determines that the Minister prescribe a more precise manner of labelling feedingstuffs if EU regulations do not determine otherwise. Therefore, the new law contains a more general executory clause than was determined in ZKrmi. However, according to the Constitutional Court, the challenged provision of the Rules does not amend or independently regulate the obligations of legal entities or natural persons who circulate feedingstuffs. Thus, the petitioners' allegations are unsubstantiated.

15. Moreover, the petitioners alleged that the challenged provision of the Rules violated Arts. 33, 60, 67, 69, and 74 of the Constitution. As was already mentioned, a directive generally gives Member States a certain degree of discretion in selecting the means for reaching an obligatory result. Nevertheless, in the mentioned case we cannot neglect the finding that the 2002/2 Directive is in the part which also the petitioners emphasized obligatory to such an extent that Member States are given none of the above-mentioned freedom in achieving the objectives of the 2002/2 Directive. In accordance with the 2002/2 Directive, the challenged Rules provision restates in terms of substance what was already determined in the 2002/2 Directive. This entails that by formally requiring the annulment ab initio of the challenged Rules provision, in terms of substance the petitioners challenge the 2002/2 Directive provision which prescribes the obligation to label feedingstuffs. Concerning Art. 1.4 of the 2002/2 Directive, the ECJ already established that from the view of the principle of proportionality there was no element that would affect its validity[3], and that it does not violate fundamental rights, in particular the right to property and the right to freely carry out one's profession[4].

16. Although the founding treaties of the EU [i.e., the EC] were limited to the objectives of economic integration, i.e. to forming a customs union and a common market, in which a political union that would contain a catalogue of human rights was not mentioned, with the aid of the case law of the ECJ a path towards recognizing human rights as an integral part of the EU legal system was gradually built. Upon their formal recognition and the amendments made to the founding treaties, respect for human rights and fundamental freedoms became one of the basic principles on which the EU is based. Thus, from Art. 6.1 and Art. 6.2 of the Treaty on the European Union (consolidated text, OJ C 321 E/06 of 29 December 2006 and Official Gazette RS, No. 27/04, MP, No. 7/04) it follows that the EU is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, i.e. principles which are common to all Member States, and respects the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, and which as general principles of Community law result from the constitutional traditions common to the Member States. Additionally, one of the key objectives of the EU is to promote the proportionate, balanced, and sustainable development of economic activities, a high level of employment and social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competition and convergence of economic effects, a high level of protection and improvement of the quality of the environment, raising the level and quality of life, and economic and social cohesion and solidarity between Member States by establishing a common market and an economic and monetary union, and by carrying out common policies or activities in the entire Community (Art. 2 of the TEC). In order to achieve this objective, the internal market was established, for which what is typical is the elimination of impediments to the free flow of goods, persons, services, and capital between Member States.

17. Among other rights, EU law also protects the right to property[5], which includes both the right of ownership and the rights of intellectual property, the right to carry out economic activities[5], and in particular free competition and the four freedoms connected with such (the free flow of goods, persons, services, and capital). The rights in the mentioned case correspond in terms of substance to the rights determined in Arts. 33, 60, 67, and 74 of the Constitution. As the mentioned human rights do not ensure more rights than are protected by EU law, concerning the case at issue and considering the specific circumstances of this case, i.e., that the challenged provision of the Rules is completely identical to the provision of Art. 1.4. of the 2002/2 which the ECJ by its judgment in the ABNA case already established was valid, the petition is also in this part evidently unsubstantiated.

18. Accordingly, the Constitutional Court dismissed the petition in this part as evidently unsubstantiated (Item 1 of the operative provisions).

19. The Constitutional Court adopted this Order on the basis of Arts. 6 and 26.2 of the ZUstS, composed of: Dr. Janez Čebulj, President, and Judges Dr. Zvonko Fišer, Lojze Janko, Marija Krisper Kramberger, LL.M., Milojka Modrijan, Dr. Mirjam Šrk, and Dr. Dragica Wedam Lukić. The Order was adopted unanimously.

 

Dr. Janez Čebulj

President

 

 

Notes:

[1] See the judgment in the above-mentioned case of ABNA and others, Paras. 52–61 of the reasoning.

[2] In accordance with Art. 53 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ L 236 of 23 September 2003 and Official Gazette RS, No. 12/04 – hereinafter the Act concerning the conditions of accession), upon accession the new Member States are considered to be addressees of directives and decisions within the meaning of Art. 249 of the TEC Treaty, provided that those directives and decisions have been addressed to all the present Member States; the new Member States are thereby considered to have received notification of such directives and decisions upon accession.

[3] Id, Para. 85 of the reasoning.

[4] Id, Paras. 86–88 of the reasoning.

[5] See, e.g., the ECJ judgment of 13 December 1979, in the case of Liselotte Hauer v. the Land of Rheinland-Pfalz, 44/79, Recueil, p. 3727.

[6] See, e.g., the ECJ judgment of 27 September 1979 in the case of SpA Eridania-Zuccherifici nazionali et SpA Società italiana per l'industria degli zuccheri proti Ministre de l'agriculture et des forêts, Ministre de l'industrie, du commerce et de l'artisanat in SpA Zuccherifici meridionali, 230/78, Recueil, p. 2749.