Facts
Bovine spongiform encephalopathy (BSE), commonly known as "mad cow disease", was first diagnosed in the United Kingdom in November 1986. The British authorities announced this epizootic at the 56th General Session of the International Office of Epizootics (OIE) held from May 16 to 20, 1988 in Paris. The disease then spread to Ireland in 1989, and then to continental Europe, affecting Switzerland and Portugal in 1990, and France in 1991.
In Switzerland, the Federal Veterinary Office (OVF) initially estimated that the BSE problem had a specifically British character and that the risk of contamination in Switzerland was low. Apart from a few measures, no particular ban was taken until the first case of BSE appeared in Switzerland on November 2, 1990.
Subsequently, Switzerland took numerous measures to combat BSE, including a ban on the use of animal meal in ruminant feed, a ban on the import of British animal meal, and various other measures to prevent the spread of the disease.
Despite these efforts, BSE spread in Switzerland, with a total of 230 cases recorded by the end of 1996. After 1996, the number of new cases decreased, but cases of "cattle born after the ban" (BAB) appeared, raising the question of the risk of cross-contamination in mills and on farms.
Considerations
The condition of unlawfulness within the meaning of Art. 3 para. 1 LRCF requires that the State, through its organs or agents, has violated provisions intended to protect a legal interest. Art. 9 LFE appears as an implicit concretization of the precautionary principle, committing the authorities to take the measures indicated by the circumstances to prevent the appearance and spread of an epizootic.
However, the federal offices had a relatively wide margin…