The Queen contra Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Ltd.

JurisdictionEuropean Union
CourtCourt of Justice (European Union)
Writing for the CourtMancini
ECLIECLI:EU:C:1995:193
Docket NumberC-5/94
Date20 June 1995
Procedure TypeReference for a preliminary ruling
Celex Number61994CC0005
EUR-Lex - 61994C0005 - EN 61994C0005

Opinion of Mr Advocate General Léger delivered on 20 June 1995. - The Queen v Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Ltd. - Reference for a preliminary ruling: High Court of Justice, Queen's Bench Division - United Kingdom. - Free movement of goods - Protection of animals - Harmonizing directive - Article 36 of the EC Treaty - Non-contractual liability of a Member State for breach of Community law. - Case C-5/94.

European Court reports 1996 Page I-02553


Opinion of the Advocate-General

++++

Facts and procedure

1 Does the existence of a harmonizing directive allow a Member State to rely on Article 36 of the EC Treaty in order to justify measures restricting exports? Does a Member State which refuses to grant an export licence, in circumstances contrary to Article 34 of the EC Treaty, incur liability? What are the conditions governing such an action for compensation?

2 These are the main questions which have been submitted by the High Court in a case having the following factual and legal background.

3 Council Directive 74/577/EEC of 18 November 1974 on stunning animals before slaughter, (1) which is based on Articles 43 and 100 of the EEC Treaty, is intended to remove the disparities between Member States' legislation in the field of animal protection and provides that: `For the slaughter of animals belonging to the following species: bovine animals, swine, sheep, goats and solipeds, Member States shall ensure that suitable measures are taken to induce death as rapidly as possible after stunning, in accordance with appropriate procedures.' (2) The directive does not harmonize the procedures for monitoring compliance with its provisions.

4 The Kingdom of Spain was required to comply with Directive 74/577 from 1 January 1986, the date of its accession to the Community.

5 The directive was transposed in Spain by way of the Royal Decree of 18 December 1987, (3) which reproduces, inter alia, the provisions of Article 1 of the directive. The Decree does not provide for any penalties in the event of failure to comply with its provisions.

6 Since it took the view that live animals exported to Spain were suffering, in that State's slaughterhouses, treatment contrary to the directive, the United Kingdom Ministry of Agriculture, Fisheries and Food systematically refused to issue licences for exports of live animals for slaughter to Spain from April 1990 to 1 January 1993.

7 It was for this reason that an application made on 7 October 1992 by Hedley Lomas (Ireland) Ltd (`Hedley Lomas') for a licence to export live sheep to a Spanish slaughterhouse was turned down.

8 Since it takes the view that the slaughterhouse in question, which had been approved since 1986, complied with the Community directives and that the United Kingdom authorities had no evidence to the contrary, Hedley Lomas has applied to the High Court for judicial review of the implied decision of refusal. It also seeks damages.

9 While it does not deny that the refusal to grant a licence amounted to a quantitative restriction on exports, the United Kingdom Ministry relies on Article 36 of the Treaty.

10 The High Court has referred the following questions to the Court for a preliminary ruling:

`(1) Does the existence of a harmonizing directive (Directive 74/577/EEC), which does not contain any sanctions or procedures for non-compliance, prevent a Member State (Member State A) from relying on Article 36 of the EEC Treaty to justify measures restrictive of exports in circumstances where an interest specified in that article is threatened by the failure of another Member State (Member State B), as a matter of fact, to secure the results required by the directive?

If the answer to Question 1 is in the negative,

(2) In the circumstances described in Question 1, does Article 36 entitle Member State A to prohibit the export of live sheep to Member State B for slaughter

(i) generally; or

(ii) in a case where the stated destination of the sheep is a slaughterhouse in Member State B in respect of which Member State A does not have evidence that the provisions of the directive are not complied with?

If the answer to Question 1 is in the affirmative, or if the answer to Question 2 is in the negative, and in the circumstances of this case,

(3) Is Member State A liable as a matter of Community law to compensate a trader in damages for any loss caused to the trader by the failure to grant an export licence in breach of Article 34 and, if so, under what conditions does such liability arise and how is such compensation to be calculated?'

Question 1

11 Two issues will be addressed in turn. First: can a Member State rely on Article 36 of the Treaty where a harmonizing directive is silent about procedures for monitoring the measures which it introduces? (I). Second: with regard to a harmonizing directive protecting an interest covered by Article 36 of the Treaty (protection of the health and life of animals), can a Member State rely on Article 36 in order to restrict exports to a Member State which fails to comply within its territory with the requirements of the directive? (II).

I - Can a Member State rely on Article 36 of the Treaty where a harmonizing directive is silent on the matter of procedures for monitoring the measures which it introduces?

12 It is common ground that the refusal by the United Kingdom authorities to issue export licences is a measure having an effect equivalent to a quantitative restriction on exports.

13 Is the United Kingdom entitled to rely on Article 36 of the Treaty to justify such a measure even though a harmonizing directive based on Article 100 of the Treaty regulates the matter?

14 Once a harmonizing directive has been adopted, Member States can no longer impose requirements other than those provided for by the directive, on condition that the harmonization introduced is complete.

15 If harmonization is only partial or if the directive confers on Member States national powers to apply it or introduce measures of control, Articles 36 and 100 of the Treaty can apply at the same time.

16 Thus, as the Court ruled in its judgment in Van Bennekom: (4)

`It is only when Community directives, in pursuance of Article 100 of the Treaty, make provision for the full harmonization of all the measures needed to ensure the protection of human and animal life and institute Community procedures to monitor compliance therewith that recourse to Article 36 ceases to be justified. It is, however, not in dispute that such is not the case with the directives dealing with pharmaceutical products. It is therefore necessary to consider whether measures which restrict the marketing of vitamins may be justified by Article 36 of the Treaty.' (5)

17 It follows that in so far as there has not been full harmonization in the area of protection of animals regarding their export to other Member States, it is for Member States to adopt the necessary measures of control within the context of Article 36 of the Treaty.

18 That is precisely the case with regard to Directive 74/577 here before the Court.

19 Under Article 1, `... Member States shall ensure that ... measures are taken ...'. Article 2 provides that: `The competent authority in accordance with national legislation shall ensure that stunning is performed by means of equipment approved ...'. Finally, Article 5 provides that: `The Member States shall ... bring into force the laws, regulations and administrative provisions necessary to comply with this Directive ...'.

20 The directive does not therefore set out Community procedures to monitor compliance with it. It does not establish an appropriate framework within which such controls might be carried out, unlike, for example, Directive 73/173/EEC (6) dealt with in the judgment in Ratti, (7) or Directive 74/63/EEC (8) addressed by the Court in its judgment in Tedeschi v Denkavit. (9)

21 Member States were thus required, under the directive, to adopt the measures necessary to ensure compliance within their territory with the obligation to stun animals before slaughter, to carry out controls in the slaughterhouses covered by the directive, and to take all appropriate measures, such as making slaughterhouses subject to an approval procedure.

II - Can a Member State rely on Article 36 of the Treaty in order to restrict exports to a Member State which fails to comply within its territory with the requirements of the directive?

22 Is a Member State entitled to rely on Article 36 in order to adopt measures for protecting animals against possible breaches of the Treaty within the territory of other Member States? Can Article 36 be the subject of extraterritorial application?

23 It is clear that in this case the United Kingdom is relying on Article 36 - and thus inhibiting the free movement of the animals in question - not in order to protect those animals against maltreatment in its own territory, to improve their protection there or to take account of a situation particular to its national territory. The United Kingdom is here taking into account the Community interest and is drawing the consequences of an alleged breach of the directive's provisions by another Member State. Is the United Kingdom entitled to rely on Article 36?

24 It should first of all be noted that it has not been established that the Kingdom of Spain is in breach of its obligations under the directive. In any event, no such breach has been demonstrated by the United Kingdom. The issue of a breach was discussed both by the applicant in the main proceedings (10) and by the Commission, (11) which, moreover, did not consider it appropriate to institute Treaty-infringement proceedings against the Kingdom of Spain.

25 This ought, in my opinion, to be sufficient for the Court to hold that the United Kingdom is not...

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