C-141/81

on the interpretation of the relevant provisions of Community law in order to enable that court to decide whether the Netherlands legislation regarding enclosures for fatting calves is compatible with those provisions,

THE COURT (Second Chamber )

composed of: O . Due , President of Chamber , A. Chloros and F. Grévisse, Judges,

Advocate General : Sir Gordon Slynn Registrar : H . A. Rühl , Principal Administrator

gives the following

JUDGMENT

"Article 4: Article 2 of the above-mentioned Royal Decree is worded as follows: Fatting calves must be able to lie down on each side in a natural manner; they "The conditions to which enclosures must be able to stand and, when in a intended for keeping fatting calves must standing position, must be able to move conform are as follows: their heads freely. (a) between sunrise and sunset there must be at least enough light to Article 5: enable the animals and their immediate surroundings to be clearly (1) The internal width and length of the distinguished; enclosures in which fatting calves weighing not more than 100 kg are (b) the dimensions of the enclosure must kept must be at least 60 cm and be such as to allow the animals easily 160 cm respectively. to lie down on each side and to be able to stand easily and, in the (2) The internal width and length of the standing position, to move their enclosures in which fatting calves heads freely." weighing more than 100 kg are kept must be at least 70 cm and 170 cm respectively. 3. Considering that the matter before it raised questions of Community law, the Kantongerecht decided, pursuant to Article177 of the EEC Treaty, to stay the proceedings and to ask the Court: Article 7 :

"whether or not the Royal Decree of 8 In derogation from the provisions of September 1961 (Staatsblad, p. 2961) Article 5, it is permitted to keep in

HOLDIJK

JUDGMENT OF 1. 4. 1982 — JOINED CASES 141 TO 143/81

In that regard, Alpuro drew attention to A — The defendant in the main the fact that fatting calves fall within the proceedings in Case 143/81, scope of Regulation No (EEC) 805/68 of the Council, of 27 June 1968, on the Veevoederbednjf "Alpuro" BV (herein common organization of the market in after referred to as "Alpuro") points out beef and veal (Official Journal, English that in the Netherlands 83 % of calves Special Edition 1968, p. 187) and that for slaughter are kept in enclosures national measures which might alter the which are between 55 and 64 cm wide pattern of imports or exports or and that the calves are usually sold as influence the formation of market prices soon as they attain a weight of about 200 are incompatible with such an organiz kg· ation (judgment of 29 November 1978 in Case 83/78 Pigs Marketing Board [1978] It states that 90 % of Netherlands veal ECR 2347). Within the framework of production is exported, that practically such organizations, the Member States the whole of such exports are to other are not permitted to adopt additional Member States and that the Netherlands measures which are such as to jeopardize is far from being the biggest veal the equality of treatment of traders exporter in the Community.

calves. A decrease in the fattening of that national restrictions on production calves would moreover bring great affect — or at any rate are capable of pressure to bear on the prices of very affecting — trade within the Community young calves. and must therefore be regarded as measures having an effect equivalent to Alpuro adds that these cases are the first quantitative restrictions within the in which the Public Prosecutor's Office meaning of Article 30 of the Treaty

(judgment of 30 October 1974 in Case (Official Journal 1980 C 196, p. 1) 190/73 Van Haaster [1974] ECR 1123; inviting the Commission to submit judgment of 18 May 1977 in Case proposals regarding the keeping of layer 111/76 Van den Hazel [ 1977] ECR 901). hens in cages, the Commission's replies to written questions Nos 104/80 (Official Journal C 201 of 6 August The application of the disputed 1980, p. 1), 1333/80 (Official Journal Netherlands provisions would affect such C 56 of 16 March 1981, p. 14) and trade since it would entail a fall in 2232/80 (Official Journal C 134 of 4 production by reason of the fact that the June 1981, p. 36), in which the number of calves permitted to be kept in Commission announced that a research each production unit would be lower, programme was being initiated regarding the cost price of fatting calves would other animal species as well, and the increase and the fatting-calf trade would Proposal for a Directive which the move to countries which apply less strict Commission submitted to the Council on rules. 5 August 1981 laying down minimum standards for the protection of laying hens kept in battery cages (Official Journal C 208 of 18 August 1981, p. 5). Similarly, according to Alpuro, the measures at issue cannot be justified by virtue of Article 36 of the Treaty, which For those reasons Alpuro considers that refers only to the health of animals and protection for animals in intensive not to their well-being. farming must be provided by Community provisions applicable to all producers in the Community, ensuring that conditions Alpuro adds that in its judgment of 2 of competition are not distorted. July 1974 in Case 173/73 Italy v Commission [1974] ECR 709, paragraph 19 of the decision, the Court admitted Accordingly, Alpuro proposes that the that changes in production costs brought question submitted should be answered about by unilateral national measures as follows: necessarily affect trade between the Member States. The Court further recognized, in its judgment of 6 June 1978 in Case 147/77 Commission v Italy "Article 30 of the Treaty (. . .) and Regu­ [1978] ECR 1337, paragraph 2 of the lation (. . .) No 805/68 exclude all decision, that disparities in national unilateral national provisions laying provisions governing the protection of down rules regarding the minimum animals are of such a nature as to affect dimensions for enclosures intended for directly the functioning of the common the keeping of fatting calves, in so far as market since the costs arising from such such rules differ from those which are requirements are variable from one permissible and usual in the other Member State to another. Member States."

for the Protection of Animals kept for be considered in relation to the Farming Purposes. objectives and the régimes of such organizations, namely the sundardi- zation of conditions of production and It considers that Articles 38 to 47 of the marketing within the Community in Treaty do not preclude a measure such order to enable traders to compete on as the one at issue. the same terms and to ensure the proper functioning of the market (judgment of 23 January 1975 in Case 31/74 Galli It points out that in its judgment of 8 [1975] ECR 47; judgment of 29 June November 1979 in Case 15/79 1978 in Case 154/77 Dechmann [1978] Groenveld [1979] ECR 3409, the Court ECR 1573). In the fields covered by the interpreted the prohibition contained in common organizations of the markets, Article 34 of the Treaty as a principle of such organizations must in general non-discrimination, in so far as that operate on an exclusive basis. On the Article "concerns national measures other hand, where a national measure which have as their specific object or falls outside those fields, that argument is effect the restriction of patterns of export not applicable and there is no reason to and thereby the establishment of a attribute to Article 34 an interpretation difference in treatment between the which extends beyond the principle of domestic trade of a Member State and its non-discrimination. export trade in such a way as to provide a particular advantage for national production or for the domestic market of In order to determine whether national the State in question at the expense of rules fall within a field covered by a the production or of the trade of other common organization of the market, the Member States". purpose of the measures is decisive (judgment of 10 March 1981 in Joined Cases 36 and 71/80 Irish Creamery Milk It notes that the Court attributed a much Suppliers Association and Others v wider scope to the prohibition contained Government of Ireland and Others [1981] in Article 34, interpreted within the ECR 735, paragraph 19 of the decision, context of a market organization, and judgment in Case 111/76 Van den namely that it is a prohibition which Hazel, cited above). excludes any national system of regu- lations which might impede directly or indirectly, actually or potentially, trade within the Community (judgment in The object of the disputed measure, Case 190/73 Van Haaster cited above namely enhancement of the welfare of and judgment of 26 February 1980 in fatting calves, falls within an area to Case 94/79 Vriend [1980] ECR 327). which, having regard to the purpose of According to that interpretation, a Regulation No 805/68, that market measure which does not exclusively refer organization does not extend. to exports, and even a measure which refers exclusively to the production stage, may fall within the prohibition The fact that in general the majority of (judgments in Case 190/73 Van Haaster the existing market organizations still and in Case 111 /76 Van den Hazel. allow the Member States some scope for adopting national measures relating to the welfare of animals may be seen from That broad interpreution of Article 34 in the Council resolution of 22 July 1980 the context of market organizations must on the protection of layer hens in cages.

It is precisely because that scope for the points out that the Court goes to great adoption of measures still exists that the lengths to remedy any deficiencies in Council decided to harmonize the decisions making references, by re- national provisions. formulating questions whose wording is less than perfect. The Netherlands Government takes the view that neither the common organiz- The Danish Government states that such ation of the market nor Article 34, tolerance on the part of the Court must interpreted in its context, precludes the not however be allowed to deprive of all measure in question.

to national courts' decisions making The Netherlands Government concludes references to it. that the Member States in principle still have the power to introduce measures intended to ensure the well-being of According to the Danish Government, it animals. They should not however use is incumbent upon the national court to that power so as to jeopardize the elect to what extent it will formulate its objectives or the functioning of the questions in abstract terms and to what common organizations of the markets. extent it will relate them to the facts of As regards the régime introduced by the case. On the one hand, the questions Regulation No 805/68 of the Council, should not be formulated in a manner so there are no grounds for fearing such a abstract that they are reduced to a result. request for interpretation of more or less ill-defined provisions of Community law. C — In its observations, the Danish On the other hand, it is unnecessary to Government confines itself to giving a repeat each detail of fact or of law in the general description of the manner in case pending before the national court in which national courts should, in its connection with which the questions are opinion, formulate references for prel- submitted. iminary rulings and present their decisions making such references.

It acknowledges that Article 20 of the Protocol on the Statute of the Court of Justice of the EEC contains no specific In that respect, the Danish Government rules regarding the formulation of considers that decisions making references for preliminary rulings. It references must:

(5) Set out the reasons for the national court's doubts regarding the interp­ It considers that the Community has the necessary authority, under Articles 40 retation or validity of rules of and 43 of the Treaty, to adopt rules Community law, which should be regarding the enclosures in which fatting specified in detail. calves must be kept, in so far as to do so is necessary to achieve the objectives of Article 39. So far, the European None of the essential requirements set Community has not however exercised out above is satisfied in the judgments that authority. making references in the present cases, since they merely mention the "EEC The Commission takes the view that so Treaty" without further specifying which long as no Community rules exist, it is article of it or which area of Community the responsibility of the Member States law the national court has in mind. to adopt the necessary rules. The Similarly, the judgments making the Netherlands rules cannot therefore be references in question contain no contested on the ground of lack of description of the national rules, or of jurisdiction. Moreover, even if the the decree or law which form pan of European Community had acceded to them. They include only an extremely the European Convention on the brief reference to the facts of the case Protection of Animals kept for Farming and the reasons for the national court's Purposes, the Netherlands rules could doubts are not clearly set out. The fact not be contested, as they are not that the documents relating to the case incompatible with the provisions of that are placed before the Court of Justice is Convention. On the contrary, it might of no assistance to the Member States or even be considered that the Netherlands other interested parties who are entitled rules give effect to the Convention. to submit observations under Article 20 of the Protocol on the Statute of the Court of Justice of the EEC, since their As regards the question whether the knowledge of the case is based disputed Netherlands rules are exclusively on the decisions making the compatible with Article 30 et seq. of the references to the Court. Treaty, the Commission notes in the first place that those rules make no distinction between fatting calves In the present cases, the Danish produced in the Netherlands, fatting Government considers that the calves imported into the Netherlands and incomplete judgments making the fatting calves intended for export from

On the other hand, it might well be claimed that the rules are capable of The Commission finds it hard to see how bringing about an improvement in the the Netherlands rules in question, which quality of veal production. However, apply objectively to the production of even if it is admitted that the fatting calves, whether intended for the Netherlands rules restrict the production national market or for export, can confer of fatting calves, the Commission finds it any particular advantage. difficult to see how such a limitation might affect imports or exports between For that reason, the Commission Member States. considers that neither Article 30 nor Article 34 of the Treaty can be interpreted in the sense that the As far as Article 30 is concerned, the Netherlands rules are incompatible with Commission refers to the views already those provisions. Even if that view were expressed in the ninth recital in the rejected and it were concluded that the preamble to its Directive No 70/50 of 22 Netherlands rules were incompatible December 1969, based on the provisions either with Article 30 or with Article 34, of Article 33 (7), on the abolition of it would, in the Commission's view, have measures which have an affect equivalent to be admitted that, in the light of the to quantitative restrictions on imports provisions of Article 36 of the Treaty, and are not covered by other provisions the Netherlands rules are justified in any adopted in pursuance of the EEC Treaty case on the ground of the protection of (Official Journal, English Special Edition the health of animals. It does not see 1970 (I), p. 17), namely that the effects how those rules can constitute a means of measures which apply equally to of arbitrary discrimination or a disguised domestic and imported products are not restriction on trade between Member as a general rule quivalent to those of States. quantitative restrictions, particularly where the measures in question do not have an effect on the free movement of The Commission therefore proposes that goods over and above that which is the Court should reply as follows to the intrinsic to the rules in question. The questions submitted by the Netherlands disputed Netherlands rules, which apply court: equally to national and imported products, do not have any such effect. "Under Community law as now in force, a national measure prohibiting the As far as Article 34 is concerned, the keeping of fatting calves in enclosures Commission refers to the Groenveld which do not conform to certain pre­ judgment (Case 15/79) cited above, and scribed dimenstions is not incompatible to the judgment of 14 July 1981 in Case with the provisions of the Treaty or with 155/80 Oebel [1981] ECR 1993), in secondary legislation based thereon."

HOLDIJK

The formulation of the reference for a preliminary ruling

4 In the written observations which it submitted to the Court, the Danish Government pointed out that the judgments making the references did not indicate the provisions of the Treaty or the area of Community law to which the national court referred or the reasons for its doubts as to the compatibility of the national provisions with those of Community law or for its view that a reply to the question raised was necessary for the consideration of the cases pending before it. Moreover, that information could not be gathered from the extremely succinct summary of the facts or from the reference to the national provisions. The Danish Government therefore concludes that the incomplete judgments making the references did not enable it to submit observations on the substance of the case in accordance with Article 20 of the Protocol on the Statute of the Court of Justice of the EEC and it set out the information which in its opinion every decision making a reference should include.

vations is safeguarded, in view of the fact that, by virtue of the above- mentioned provision, only the decisions making the references are notified to the interested parties.

7 Although in the present cases the judgments making the references do not make apparent the grounds for the question referred to the Court for a pre­ liminary ruling with the clarity advocated in the case-law mentioned above, they nevertheless enable the conclusion to be drawn that the national court's doubts relate to the question whether a condition imposed by national legislation on livestock production falling within a common organization of the market is compatible with Community law. Thus, the proceedings in question form part of a series of cases in which, in the absence of specific Community provisions, the Court has already considered whether conditions of that kind are compatible with the rules on the free movement of goods and with those establishing a common organization. Accordingly, in view of the fact that there is an opportunity to expand upon the written observations in the course of the oral procedure, it cannot be said that because of the very succinct nature of the judgments making the references the Member States have been deprived of the opportunity to submit observations relevant to the answer to be given to the question submitted for a preliminary ruling.

8 As regards the wording of the question, it should be noted that it is not for the Court, in proceedings under Article 177 of the Treaty, to adjudicate upon the compatibility of existing or proposed national rules with Community law but only upon the interpretation and validity of Community law. It is appropriate therefore to regard the question submitted as asking whether Community law must be interpreted as meaning that a Member State may not, with a view to the protection of animals, maintain or introduce unilateral rules concerning enclosures for fatting calves.

11 As regards Article 34 of the Treat}·, the Court has repeatedly held (most recently in its judgment of 14 July 1981 in Case 153/80 Oebel [1981] ECR 1993) that that article concerns national measures which have as their specific object or effect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of A Member State and its export trade, in such a way as to provide a particular advantage for national production or for the domestic market of the State question. That is not the case where a provision lays down the minimuri standards for enclosures for fatting calves, without making any distinction as to whether the animals or their meat are intended for the national marker for export.

12 As regards the rules on the common organization oi the agnciii'i .\, markets, it should in the first place be emphasized that the estabhshment • ·* such an organization pursuant to Article 40 oi the Treaty does not have the effect oi exempting agricultural producers from any national provision intended to attain objectives other than those covered in the organization, even though such provisions mav, by affecting the conditio.:·· of production, have an impact on the volume or the cost of nation. production and therefore on the operation oi the Common Market in the

JUDGMENT OF 1. 4. 1982 — JOINED CASES 141 TO 143/81

sector concerned. The prohibition of any discrimination between producers in the Community, laid down in Article 40 (3), refers to the objectives pursued by the common organization and not to the various conditions of production resulting from national rules which are general in character and pursue other objectives.

HOLDIJK

On those grounds,

THE COURT (Second Chamber)

in answer to the questions submitted to it by the Kantongerecht Apeldoorn, by judgments of 21 May 1981, hereby rules:

As it stands at present, Community law does not prevent a Member State from maintaining or introducing unilateral rules concerning the standards which must be observed in the installation of enclosures for fatting calves with a view to protecting the animals and which apply without distinction to calves intended for the national market and to calves intended for export.

Due Chloros Grévisse