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Cite as: [1997] EUECJ C-183/95

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JUDGMENT OF THE COURT

17 July 1997 (1)

(Veterinary inspection - Protective measure - Principle of proportionality - Principle of the protection of legitimate expectations - Validity of Commission Decision 95/119/EC)

In Case C-183/95,

REFERENCE to the Court under Article 177 of the EC Treaty by the President of the College van Beroep voor het Bedrijfsleven (Netherlands) for a preliminary ruling in the proceedings pending before that court between

Affish BV

and

Rijksdienst voor de Keuring van Vee en Vlees

on the validity of Commission Decision 95/119/EC of 7 April 1995 concerning certain protective measures with regard to fishery products originating in Japan (OJ 1995 L 80, p. 56),

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.L. Murray and L. Sevón (Rapporteur), Presidents of Chambers, P.J.G. Kapteyn, C. Gulmann, D.A.O.

Edward, J.-P. Puissochet, G. Hirsch, P. Jann, H. Ragnemalm and M. Wathelet, Judges,

Advocate General: G. Cosmas,

Registrar: H.A. Rühl, Principal Administrator,

after considering the written observations submitted on behalf of:

- Affish BV, by W. Knibbeler, of the Rotterdam Bar,

- the Netherlands Government, by A. Bos, Legal Adviser at the Ministry of Foreign Affairs, acting as Agent,

- the Italian Government, by U. Leanza, Head of the Legal Affairs Department at the Ministry of Foreign Affairs, acting as Agent, assisted by P.G. Ferri, Avvocato dello Stato,

- the Finnish Government, by H. Rotkirch, Ambassador, Head of the Legal Department at the Ministry of Foreign Affairs, acting as Agent,

- the Commission of the European Communities, by T. van Rijn, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of Affish BV, represented by W. Knibbeler; the Netherlands Government, represented by M.A. Fierstra, Assistant Legal Adviser at the Ministry of Foreign Affairs, acting as Agent; the United Kingdom Government, represented by L. Nicoll, of the Treasury Solicitor's Department, acting as Agent, and D. Anderson, Barrister; and the Commission, represented by T. van Rijn and P.J. Kuyper, Legal Adviser, acting as Agent, at the hearing on 24 September 1996,

after hearing the Opinion of the Advocate General at the sitting on 10 December 1996,

gives the following

Judgment

By decision of 24 May 1995, received at the Court on 12 June 1995, the President of the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty a question concerning the validity of Commission Decision
95/119/EC of 7 April 1995 concerning certain protective measures with regard to fishery products originating in Japan (OJ 1995 L 80, p. 56; 'the contested decision').

The question arose in proceedings for interim relief between Affish BV ('Affish') and the Rijksdienst voor de Keuring van Vee en Vlees (National Department for the Inspection of Livestock and Meats; 'the Rijksdienst') concerning prohibition of the importation of consignments of fishery products originating in Japan.

Legal background

Council Directive 91/493/EEC of 22 July 1991 laying down the health conditions for the production and the placing on the market of fishery products (OJ 1991 L 268, p. 15), and, in particular, Articles 10 to 12 thereof, contains veterinary health provisions on the importation of fishery products from third countries.

The first paragraph of Article 10 of that directive lays down the principle that provisions applied to imports of fishery products from third countries are to be at least equivalent to those governing the production and placing on the market of Community products. Article 11(1) provides that specific import conditions are to be fixed for each third country or group of third countries, depending on the health situation in the third country concerned.

Article 11(7) of the same directive provides that: 'Pending the fixing of the import conditions referred to in paragraph 1, the Member States shall ensure that the conditions applied to imports of fishery products from third countries shall be at least equivalent to those governing the production and placing on the market of Community products.'

By a number of successive Council and Commission decisions, transitional measures were adopted concerning the certification of fishery products from third countries, in order to facilitate the implementation of the system laid down by Directive 91/493.

Under Article 12 of the latter directive, the rules and principles laid down by Council Directive 90/675/EEC of 10 December 1990 laying down the principles governing the organization of veterinary checks on products entering the Community from third countries (OJ 1990 L 373, p. 1) are to apply, notably as regards the organization of and follow up to the inspections to be carried out by the Member States and the protective measures to be implemented.

Article 19 of Directive 90/675 provides for the possibility of adopting protective measures. According to Article 19(1):

'If, in the territory of a third country, a disease referred to in [Council] Directive 82/894/EEC [of 21 December 1982 on the notification of animal diseases within the Community (OJ 1982 L 378, p. 58)], a zoonosis or other disease or phenomenon liable to present a serious threat to animal or public health, or if any other serious animal health or public health reason so warrants, in particular in the light of the findings of its veterinary experts, the Commission may, acting on its own initiative or at the request of a Member State, adopt one of the following measures without delay and depending on the gravity of the situation:

- suspend imports coming from part or all of the third country concerned, and where appropriate from the transit third country,

- set special conditions in respect of imports coming from part or all of the third country concerned.'

On the basis of Article 19 of Directive 90/675, the Commission adopted the contested decision. Article 1 of the latter provides that: 'Member States shall prohibit the import of consignments of fishery products in whatever form originating in Japan.' Article 3 provides that Member States are to amend the measures that they apply to imports in order to comply with that decision, and are to inform the Commission thereof.

The first and third recitals in the preamble to the contested decision are worded as follows:

'Whereas a mission of experts of the Commission went to Japan to check the conditions of production and processing of fishery products exported to the Community; whereas according to the observations of these experts, the official guarantees given by the Japanese authorities are not adhered to and the conditions of production and storage of fishery products show serious defects as regards hygiene and control which can constitute risks to public health;

Whereas it is necessary to suspend the import of all fishery products originating in Japan pending improvement of the conditions of hygiene and control of production ...'

In the Netherlands, the contested decision was implemented by the Decree of 13 April 1995 (Staatscourant 1995, p. 74) amending the Warenwetregeling Invoerverbod bepaalde visserijprodukten uit Japan (Decree, issued pursuant to the Law on Foodstuffs, prohibiting the importation of certain fishery products from Japan; Staatscourant 1994, p. 86). Article 1 of the decree, as amended, which came into force on 15 April 1995, provides that consignments of fishery products originating in Japan may not be brought on to Netherlands territory in any form whatever.

The main proceedings

Affish is a private company established in Rotterdam (Netherlands). It imports deep-frozen fish products primarily from Japan and distributes them on the Community market. For that purpose, it maintains relations with the trading house Hanwa Co. Ltd of Osaka (Japan), which represents four Japanese manufacturers who process 'Surimi' - a fish processed at sea into a semi-prepared product - into a fish product known as 'kamaboko'.

By decision of 2 May 1995, the Rijksdienst, relying on the contested decision, refused Affish authorization to import certain consignments of 'kamaboko' originating in Japan and dispatched at the end of March 1995. Health certificates for those consignments had been issued by the Japanese authorities.

On 3 May 1995 Affish submitted an application for interim relief before the President of the College van Beroep voor het Bedrijfsleven, requesting that the Rijksdienst's decision be suspended, and that the Rijksdienst be restrained from prohibiting the importation of the aforesaid consignments of fishery products and any consignments from Japan that Affish might import in the future, save on grounds concerning the protection of the life and health of humans and animals, any such prohibition to be supported by laboratory tests carried out by the Rijksdienst or at its behest.

In support of its application, Affish maintained that the contested decision was invalid on the grounds that it infringed Article 19 of Directive 90/675 and the principle of proportionality, as well as the principle of equality in that it placed products imported from Japan at a disadvantage compared with those imported from Thailand or Korea.

Affish also argued that the contested decision infringed Articles 2, 4 and 5 of the
Agreement on the application of sanitary and phytosanitary measures (OJ 1994 L 336, p. 40; 'the Agreement') forming part of Annex I A to the Agreement establishing the World Trade Organization, approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1). Furthermore, even if the Agreement were to be regarded as not capable of having direct effect within the Community, Community law, and Article 19 of Directive 90/675 in particular, should be interpreted in the light of that Agreement.

In the alternative, Affish maintained that, when implementing the contested decision, the Kingdom of the Netherlands had disregarded the Community principle of the protection of legitimate expectations by not making transitional provision in the national legislation for consignments en route.

In his order for reference, the President of the College van Beroep voor het Bedrijfsleven began by setting forth the preliminary report of the Commission's mission of experts, referred to in the first recital in the preamble to the contested decision and carried out between 27 and 31 March 1995. That report, dated 4 April 1995, sets out (i) general considerations concerning the establishments preparing fishery products, (ii) the results of, inter alia, the experts' visit to three Japanese establishments specializing in the production of scallops, and (iii) the findings of their visit to four establishments preparing other fishery products and to the Tokyo fish market. The report concludes: 'The establishments visited for scallops and fishery products did not comply with Council Directive 91/493/EEC. Some presented serious public health risks. The checks by the competent authority are not strict enough and give no guarantee about the absence of fraud concerning the origin of the products.' The report also includes individual reports of the visits to the seven establishments.

The national court went on to reject Affish's alternative argument on the ground that neither the contested decision, nor Directive 90/675, nor any other provision of Community law allowed Member States to make implementation of the decision subject to transitional arrangements for consignments already dispatched.

Finally, the national court took the view that, prima facie, there were serious doubts as to the validity of the contested decision, particularly with regard to the conditions set out in Article 19 of Directive 90/675. Moreover, since Affish's other pleas in law amounted to an assertion that the contested measure was disproportionate in relation to that same provision, there was no need to consider them separately.

The President of the College van Beroep voor het Bedrijfsleven accordingly suspended the Rijksdienst's decision in relation to certain specified consignments, pending a preliminary ruling by the Court of Justice on the question referred. That suspension was made conditional on:

- the Rijksdienst having those consignments of fish products investigated as thoroughly as possible in accordance with the present state of the art for possible defects from the point of view of the protection of health and life of humans and animals;

- the Rijksdienst authorizing the release of those consignments for circulation in the Community only if it takes the view, on the basis of that investigation, that no defects appear to be present.

The question referred for a preliminary ruling

The question referred for a preliminary ruling by the President of the College van Beroep voor het Bedrijfsleven is worded as follows:

'Regard being had to the considerations set out in this order, is Commission Decision 95/119/EC of 7 April 1995 valid in so far as it extends to Surimi fish products, also referred to as kamaboko, as imported by the applicant, which come from regions of Japan other that those in which the establishments investigated by a mission of experts from the Commission were located according to their report of 4 April 1995, or at least from establishments other than those investigated, and in relation to products which, following appropriate investigation upon their importation into the Community, showed no sign of health risks?'

Procedure

The Commission requests the Court of Justice to extend its case-law concerning the conditions on which a national court may suspend a measure by a national administrative authority which is based on a Community measure whose validity has been challenged. In those circumstances, the Commission submits, the Community institution which adopted the measure in question should have the opportunity to make its views known in an appropriate manner before the national court.

It is well-established case-law that the right to determine the questions to be submitted to the Court devolves upon the national court or tribunal alone (see, in particular, Joined Cases C-134/91 and C-135/91 Kerafina v Greek State and Others [1992] ECR I-5699, paragraph 16). In this case, the procedural point raised by the Commission falls outside the subject-matter of the question referred.

Moreover, it is apparent from the order for reference and the Commission's observations that the Commission was invited by Affish to arrange to be represented at the hearing before the national court, at the request of the latter, but that, owing to a combination of circumstances, it did not respond to that invitation.

Accordingly, there is no need to rule on the question raised by the Commission.

Consideration of the question referred

The order for reference shows that, by his question, the President of the College van Beroep voor het Bedrijfsleven is effectively asking whether, inasmuch as the contested decision imposes a total prohibition on the importation of consignments of fishery products from the whole of Japanese territory, it should be declared invalid on the ground that it infringes the principle of proportionality as set out in Article 19(1) of Directive 90/675. It is also necessary, in the light of all the observations submitted to the Court and the oral arguments before it, to examine whether the contested decision constitutes a misuse of powers and to ascertain its
validity in relation to the principle of equality, the principle of the protection of legitimate expectations and Article 190 of the EC Treaty.

As for the allegation by Affish that the Agreement has been infringed, the College van Beroep voor het Bedrijfsleven has not asked the Court to examine the contested decision in the light of that Agreement, nor is it necessary for the Court to carry out such an examination of its own motion.

The alleged infringement of the principle of proportionality

As the import prohibition laid down in the contested decision may be imposed on consignments of fishery products from the whole of Japan and, in particular, on consignments from regions other than those where the establishments visited by the Commission's mission of experts were situated, the national court asks whether it complies with the principle of proportionality.

On that point, the Court's case-law shows that, in order to establish whether a provision of Community law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see Case C-233/94 Germany v Parliament and Council [1997] ECR I-0000, paragraph 54).

In the circumstances in question, that principle finds specific expression in Article 19(1) of Directive 90/675, which provides that the protective measure decided upon by the Commission is to depend on the gravity of the situation. That measure may take the form either of the suspension of imports or the fixing of specific conditions for imported products. In either case, the measure may be extended to the whole of the third country concerned or limited to products from part of it.

It is therefore necessary to examine whether the contested decision infringes Article 19(1) of Directive 90/675, inasmuch as it neither limits the suspension of imports of fishery products to a part of Japanese territory, nor opts for a protective measure that is otherwise less stringent, and inasmuch as it allegedly resulted in an excessive restriction on Affish's business activity.

As regards the territorial effect of the import prohibition, first of all the Commission cannot be blamed for restricting its inspections to a limited number of establishments exporting fishery products, since, in the first place, those inspections were reliable, and, secondly, their results could be extrapolated in an appropriate manner to describe the situation in the third country concerned as a whole. To visit a large number of establishments, or all of them, is impossible in practice, even if for no other reason than to comply with the requirement of speed that applies to the adoption of protective measures in public health matters.
Moreover, in organizing inspections, the Commission is dependent upon the authorities of the third country concerned.

As for the reliability of the inspections carried out by the mission of experts, that has not been called into question by any of the parties in this case.

With regard to the possibility of extrapolating the results of the inspections carried out in the selected establishments, the first point to make is that, since the selection was made by the Japanese authorities, the Commission was entitled to regard those establishments as representative of Japanese establishments as a whole, and not just of those with the worst hygienic conditions.

Moreover, the report of the mission of experts shows, first, that the Japanese official authority (the Ministry of Health and Welfare, assisted by the health centres of the prefectures) did not exercise adequate supervision over the establishments concerned and declared establishments which constituted severe public health risks to be in compliance with Directive 91/493, and, secondly, that the imprecise labelling of consignments of the products made it impossible to identify with certainty what establishments the products came from and what manufacturing process had been used. In those circumstances, and in the absence of effective central supervision for the country as a whole, a prohibition limited to products from certain regions of Japan would, as the Commission has pointed out, have given no guarantee that products from an establishment situated in another region, where all the health rules were complied with, would not be mixed up with products not from that region.

Finally, the fact that Affish imported 'kamaboko' products from establishments that had not incurred the slightest criticism on veterinary health grounds is insufficient, in itself, to demonstrate that the contested decision was disproportionate. Since, as has been shown above, the Commission was entitled to draw general conclusions for the whole of Japan from the findings of the mission of experts, further observations concerning certain specific establishments cannot call those conclusions back into question. In that regard, protective measures are, by nature, capable of being modified to take account of changes in the situation and of new information.

On the question whether the Commission should have chosen a type of measure other than the suspension of imports, it should be noted that the possibility of carrying out an inspection of the Japanese products upon importation was raised in the proceedings before both the national court and this Court.

On that point, the Netherlands and Finnish Governments and the Commission argue that, by reason of the nature of fishery products, health inspections carried out at the production stage are considerably more effective and more practical than
inspections carried out at the import stage. Those assertions have not been contradicted by the other parties concerned.

Moreover, as the Advocate General has pointed out in paragraphs 93 and 94 of his Opinion, the procedure adopted constitutes the basis of the veterinary and health directives, and of Directive 91/493 in particular.

So far as concerns the allegedly excessive restriction of its business activity, Affish maintains that the contested decision is likely to endanger its viability, since a significant part of its revenue comes from the importation of fishery products from Japan.

According to the case-law of the Court, the freedom to pursue a trade or business is not absolute, but must be viewed in relation to its social function. It may, therefore, be restricted, especially in the context of a common organization of the market, provided that the restrictions imposed in fact correspond to objectives of general interest pursued by the Community and do not, in relation to the aim pursued, constitute disproportionate and intolerable interference, impairing the very substance of the right guaranteed (see, in particular, Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 78). The importance of the objectives pursued may justify restrictions which have adverse consequences, and even substantial adverse consequences, for certain traders (see, on that point, Case C-331/88 R v MAFF, ex parte Fedesa [1990] ECR I-4023, paragraph 17).

Even if assessed in relation to the economic consequences which it may entail for importers in a situation such as that in which Affish finds itself, the contested decision cannot be regarded as constituting disproportionate interference, since it fulfils the requirements of proportionality laid down by Article 19(1) of Directive 90/675. Those requirements are in fact intended to ensure that due attention is paid to the interests of traders. That is all the more so in this case, as the protection of public health which the contested decision is intended to guarantee must take precedence over economic considerations (see, on that point, the order in Case C-180/96 R United Kingdom v Commission [1996] ECR I-3903, paragraph 93).

It follows from the above that the contested decision is not contrary to the principle of proportionality as set out in Article 19(1) of Directive 90/675.

The alleged misuse of powers

Affish argues that, in adopting the contested measure, the Commission misused its powers in two respects.

First, the protective measure is designed not to protect public health but to exert pressure on the Japanese authorities to strengthen health supervision in that country.

Secondly, the Commission should not have used the results of the experts' mission to Japan as the basis for issuing an import prohibition under Article 19 of Directive 90/675, when that mission's task had been to determine specific import conditions pursuant to Article 11 of Directive 91/493.

The Court has consistently held (see, in particular, Case C-84/94 United Kingdom v Council [1996] ECR I-5755, paragraph 69) that misuse of powers may be defined as the adoption by a Community institution of a measure with the exclusive or main purpose of achieving an end other than that stated or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case.

With regard to the aims pursued by the Commission, it has been found at paragraph 36 of this judgment that the deficiencies identified in the supervision exercised by the Japanese authorities in fact contributed to the assessment that the standard of hygiene of products from Japan as a whole could not be guaranteed. Moreover, Affish has produced no evidence to show that, in adopting the contested decision, the Commission was pursuing an objective other than that for which power in that area was conferred upon it by Article 19 of Directive 90/675.

As regards the procedure followed, suffice it to note that the fact that the mission of experts was sent to Japan in order to determine specific import conditions pursuant to Article 11 of Directive 91/493 is irrelevant to the question whether there has been any misuse of powers, since that mission assessed the standard of hygiene of the establishments preparing fishery products and the system of supervision and accordingly supplied information which was relevant for the purposes of Article 19 of Directive 90/675.

The Court therefore finds that the Commission did not misuse its powers by adopting the contested decision.

The alleged infringement of the principle of equality

Affish argues that, since the contested decision did not cover Surimi fish products of Thai or Korean origin, which are in competition with the Japanese products in question, it gives rise to an unjustified difference in treatment between importers of such products from Japan and importers of the same products from Thailand and Korea. In its submission, the Commission should have sent a mission of experts to Thailand and Korea before adopting the measures affecting Japanese kamaboko. The contested decision therefore infringes the principle of equality.

In that respect, the Court finds that Affish has not produced any evidence to show that the situation in Korea and Thailand, from the point of view of conditions of hygiene and supervision of the production of fishery products exported to the Community, is comparable to that which prevailed in Japan or that the Commission failed to check those conditions. In any event, the Commission cannot be required, when faced with a situation constituting a threat to public health, to delay the adoption of a protective measure in relation to one third country so as to enable health conditions to be checked in all the other third countries which export the same products to the Community.

The Court therefore finds that the principle of equality has not been infringed by the contested decision.

The alleged infringement of the principle of the protection of legitimate expectations

Since, at the time when the contested decision was adopted, certain consignments of fishery products had already been dispatched to the Community, the Finnish Government questions the validity of the decision in the light of the principle of the protection of legitimate expectations. That particular point has also been raised by Affish, the Italian Government and the Commission.

It is therefore necessary to examine whether the contested decision should have made express provision for transitional measures in respect of consignments already en route.

In that regard, even if the Community had first created a situation capable of giving rise to legitimate expectations, an overriding public interest may preclude transitional measures from being adopted in respect of situations which arose before the new rules came into force but which are still subject to change (see, on that point, Case 74/74 CNTA v Commission [1975] ECR 533, paragraph 44; Case 84/78 Tomadini v Amministrazione delle Finanze dello Stato [1979] ECR 1801, paragraph 20; Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraphs 16 and 19; and the order in Case C-51/95 P Unifruit Hellas v Commission [1997] ECR I-727, paragraph 27). The objective of the contested decision, namely the protection of public health, constitutes an overriding public interest of that kind.

As for the possibility of recourse to a protective measure consisting in the inspection upon importation of consignments of fishery products already dispatched, the reasons for excluding that type of supervision set out in paragraphs 39 and 40 of this judgment apply equally to consignments which were en route at the date of the contested decision. Furthermore, the Commission was unable to adapt the protective measure to the specific circumstances of a single importer or a single
importing Member State, but had to take into account imports of fishery products from Japan to the Community's territory as a whole.

It follows that the principle of the protection of legitimate expectations has not been infringed by the contested decision.

The alleged infringement of Article 190 of the Treaty

In the context of its argument concerning infringement of the principle of proportionality, Affish maintains that the Commission failed to indicate the circumstances which could have served as a basis for the adoption of the contested decision.

For its part, the Netherlands Government observes that it would have been desirable for the Commission to state, in the preamble to its decision, the reasons why it considered that a less stringent measure was inappropriate for the protection of public health.

The Commission's reply is that the reasons given for its decision, although brief, clearly indicate that the production and supervision of fishery products in Japan were seriously defective in matters of hygiene. In addition, a statement to the effect that a less stringent measure would not have been sufficient would not have made the contested decision any more comprehensible.

In that respect, it should be noted that, whilst the statement of reasons required by Article 190 of the Treaty must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure so as to enable the persons concerned to ascertain the reasons for it and to enable the Court to exercise its review, it is not required to go into every relevant point of fact and law. The question whether a statement of reasons satisfies those requirements must be assessed with reference not only to its wording but also to its context and the entire body of legal rules governing the matter in question (see, in particular, Case C-122/94 Commission v Council [1996] I-881, paragraph 29).

In this case, the preamble to the contested decision clearly shows that the Commission adopted the protective measure in dispute after sending a mission of experts on the spot, and that those experts found serious defects in matters of hygiene and supervision of the conditions of production and storage of fishery products which could constitute risks to public health.

Given the nature of the contested decision, and in particular the time-frame within which it had to be adopted, the Commission was entitled to confine itself to indicating in general terms the procedure followed and the essential factors which constituted the basis of its assessment, without repeating the details of the report
of the mission of experts or providing a specific statement of the reasons why other possibilities had been discarded.

The contested decision is not therefore vitiated by an insufficient statement of reasons.

In the light of all the above considerations, the answer to the national court's question must be that examination of the contested decision has not revealed any factor of such a kind as to affect its validity.

Costs

On those grounds,

THE COURT,

in answer to the question referred to it by the President of the College van Beroep voor het Bedrijfsleven, by decision of 24 May 1995, hereby rules:

Examination of Commission Decision 95/119/EC of 7 April 1995 concerning certain protective measures with regard to fishery products originating in Japan has not revealed any factor of such a kind as to affect its validity.

Rodríguez Iglesias
Murray Sevón

Kapteyn Gulmann Edward Puissochet

Hirsch Jann Ragnemalm Wathelet

Delivered in open court in Luxembourg on 17 July 1997.

R. Grass G.C. Rodríguez Iglesias

Registrar President

1: Language of the case: Dutch.