Article 16 - Freedom to conduct a business
Article 17 - Right to property
Article 47 - Right to an effective remedy and to a fair trial
Article 51 - Field of application
On those grounds, the Court (Sixth Chamber) hereby rules:
Commission Decisions 2006/105/EC of 15 February 2006 concerning certain interim protection measures in relation to suspected cases of highly pathogenic avian influenza in wild birds in Hungary and 2006/115/EC of 17 February 2006 concerning certain protection measures in relation to highly pathogenic avian influenza in wild birds in the Community and repealing Decisions 2006/86/EC, 2006/90/EC, 2006/91/EC, 2006/94/EC, 2006/104/EC and 2006/105/EC must be interpreted as meaning that they do not preclude (i) national measures such as the administrative decisions of 15 and 21 February 2006 ordering the establishment of a protection zone in the administrative territory of Csátalja and Nagybaracska (Hungary) and prohibiting the movement of poultry within that zone or (ii) an administrative opinion such as that of 23 February 2006, refusing to grant an undertaking such as the appellant in the main proceedings permission to keep turkeys in its rearing enclosure at Nagybaracska.
First, Decisions 2006/105 and 2006/115 must be interpreted to the effect that they neither include nor refer to any provisions establishing a system of compensation for damage caused by the measures for which they provide and, second, the Court of Justice does not have jurisdiction to rule on the legality of a provision of national law such as that at issue in the main proceedings — which does not provide for full compensation, including in respect of loss of profit, for damage sustained as a result of the adoption, in accordance with EU law, of national protection measures against avian influenza — in the light of the right to an effective remedy, the right to property and the freedom to conduct a business.
1) This request for a preliminary ruling concerns the interpretation of (i) Council Directives 92/40/EEC of 19 May 1992 introducing Community measures for the control of avian influenza (OJ 1992 L 167, p. 1), and 2005/94/EC of 20 December 2005 on Community measures for the control of avian influenza and repealing Directive 92/40/EEC (OJ 2006 L 10, p. 16), (ii) Commission Decisions 2006/105/EC of 15 February 2006 concerning certain interim protection measures in relation to suspected cases of highly pathogenic avian influenza in wild birds in Hungary (OJ 2006 L 46, p. 59) and 2006/115/EC of 17 February 2006 concerning certain protection measures in relation to highly pathogenic avian influenza in wild birds in the Community and repealing Decisions 2006/86/EC, 2006/90/EC, 2006/91/EC, 2006/94/EC, 2006/104/EC and 2006/105/EC (OJ 2006 L 48, p. 28) and (iii) Articles 16, 17 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
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4) If the response to the second question is in the negative, may the appellant base a claim for compensation to recover loss of profits directly on a violation of the provisions of the Charter … (Article 16, concerning freedom to conduct a business, Article 17, concerning the right to property, and Article 47, concerning the right to an effective remedy and to a fair trial), if the interim measures taken by the Member State in the course of the implementation of EU law for the purpose of protection against highly pathogenic avian influenza caused damage to the appellant but the legal rules of the Member State relating to compensation for the damage caused restrict the submission of such claims and exclude the opportunity to submit a claim for loss of profits?
45) By its second and fourth questions, which it is appropriate to consider together, the referring court asks, in essence, whether Decisions 2006/105 and 2006/115 establishing measures for the control of avian influenza must be interpreted as meaning that they include or refer to provisions establishing a system of compensation for any damage caused by the measures for which they provide and, if they do not, whether the fact that a provision of national law excludes loss of profits from compensation for any damage caused by national protection measures such as those at issue in the main proceedings, which have been taken in accordance with Decisions 2006/105 and 2006/115, infringes the freedom to conduct a business, the right to property and the right to an effective remedy laid down in, respectively, Articles 16, 17 and 47 of the Charter.
51) In the second place, in so far as the referring court raises the question of the compatibility of the system established by the national legislature for providing compensation for damage caused by the adoption of the measures at issue in the case before it with the freedom to conduct a business, the right to property and the right to an effective remedy, as guaranteed by the Charter, it is appropriate to start by making the point that, under the national legislation in issue in the main proceedings, an economic operator, who is obliged to cooperate in connection with an epidemiological measure, is entitled to compensation for loss caused by that cooperation, with the exception of loss of profits.
54) Furthermore, under Article 51(1) of the Charter, which governs its field of application, the provisions of the Charter are addressed to the Member States only when they are implementing EU law. That provision confirms the Court’s settled case-law, according to which the fundamental rights guaranteed in the legal order of the European Union are applicable in all situations governed by EU law, but cannot be applied outside such situations. Where a legal situation does not come within the scope of EU law, the Court does not have jurisdiction to rule on it and any provisions of the Charter relied upon cannot, of themselves, form the basis for such jurisdiction (see, to that effect, Case C‑617/10 Åkerberg Fransson EU:C:2013:105, paragraphs 17, 19 and 22, and the order in Case C‑258/13 Sociedade Agrícola e Imobiliária da Quinta de S. Paio EU:C:2013:810, paragraphs 18 to 20).
