Facts
In the fight against the bovine spongiform encephalopathy (BSE) disease, the Federal Council issued new regulations at the end of 2000 that made the marketing of fertilizers containing animal meal subject to a licensing requirement. X. AG, which previously could distribute such fertilizers without a license, then asserted a claim for damages against the federal government, as it had to destroy its inventory or could only sell it with difficulty.
The Federal Appeals Commission for State Liability and the Federal Supreme Court rejected the claim for damages by X. AG. The Federal Supreme Court justified this as follows:
Considerations
Unlawfulness: The Federal Office of Agriculture did not act unlawfully by making fertilizers containing animal meal subject to a licensing requirement as of January 1, 2001, even if they were not used in agriculture. This measure was based on the powers of the Federal Office under the Ordinance on Substances, in order to prevent the risk of spreading BSE prions through fertilizers.
Proportionality: The licensing requirement served important public interests, was appropriate and necessary to prevent contamination of the environment with infectious material. The Federal Office acted proportionately in implementing these measures.
Protection of Legitimate Expectations: X. AG could not expect to continue…