Súdny dvor Európskej únie·14.10.1987

C-131/86

ECLI:EU:C:1987:441

Súd: Súdny dvor Európskej únie
IČS: 61986CC0131
Zdroj: eur-lex.europa.eu ↗

OPINION OF MR MISCHO — CASE 131/86

OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 14 October 1987*

Mr President, Commission v Council [1987] ECR 1493, in Members of the Court, which the Court held that

'concerning the Commission's interest in 1. In support of its action for the annulment bringing proceedings ... it is sufficient to of Council Directive 86 / 113 / EEC of 25 observe that Article 173 of the EEC Treaty March 1986 laying down minimum draws a clear distinction between the right standards for the protection of laying hens of action available to the Community kept in battery cages (Official Journal 1986, institutions and the Member States, on the L 95, p. 45), the United Kingdom has made one hand, and that available to natural or the following two submissions: legal persons, on the other, in so far as the first paragraph of Article 173 gives the Commission and any Member State the (1) The contested directive is based solely right to bring an action for annulment to on Articles 42 and 43 of the EEC challenge the legality of any Council regu Treaty to the exclusion of Article 100. lation without making the exercise of that right conditional on proof of an interest in bringing proceedings' (paragraph 3). (2) The version of the directive notified to it and published in the Official Journal 4. What was true in that case in respect of differs from the version voted on and an action for annulment brought by the adopted by the Council. Commission against a Council regulation is equally true in this case, brought by a Member State against a Council directive, 2. The fact that the United Kingdom's since Article 173 puts the institutions and action is thus founded on considerations of the Member States on the same footing and legal basis, procedure and form rather than concerns all acts of the Council and the of substance has led the Council to question Commission with the sole exception of its interest in bringing proceedings, recommendations and opinions. The action especially since the United Kingdom states of the United Kingdom is therefore that it trusts that should the contested admissible. directive be annulled the Council will, in order to achieve the aims in question, adopt a new directive largely identical in content A — The legal basis of Directive (paragraph 10 of the application) and that it 86/113/EEC would in principle approve of the adoption of such a measure (paragraph 28 of the 5. In its judgment of 26 March 1987 the reply). Court pointed out that where the dispute as to the correct legal basis concerns Treaty articles laying down different rules for the 3. On that point I need merely refer to the adoption of measures by the Council, it is judgment of 26 March 1987 in Case 45/86 not purely formal in scope inasmuch as the

* Translated from the French.

UNITED KINGDOM v COUNCIL

choice of the legal basis may have conse these directives [concerning matters of quences for the content of such measures health and health policy affecting intra- (paragraph 12). Community trade in fresh meat and in bovine animals and swine] should be based exclusively on Article 43. They have agreed 6. That is the case here, since under Article to the solution adopted only in order to 43 the Council may act by a qualified make it possible — owing to the importance of these texts for the creation of a single majority, whereas Article 100 requires market in the relevant areas — for these unanimity. directives to enter into force at the earliest opportunity ... '

7. The Court had previously stated that

and that 'in the context of the organization of the powers of the Community the choice of a legal basis for a measure may not depend 'all the delegations retain their complete simply on an institution's conviction as to freedom as regards the legal basis for any the objective pursued but must be based on directives which might be adopted in the objective factors which are amenable to same or similar fields . . . thereafter'. judicial review' (paragraph 11).

11. The same is true of those few directives 8. It therefore seems prudent, in examining concerned more directly with animal this dispute, not to attach too much welfare, mentioned at page 7 of the importance to the more or less standard Council's defence and page 19 of its practice of adopting most directives in the rejoinder. veterinary, feed and phytosanitary sectors on the basis of both Article 43 and Article 100. 12. As for Council Decision No 78 / 923 / EEC of 19 June 1978, concerning the conclusion of the European Convention 9. That practice has never been approved by for the Protection of Animals kept for the Commission, and its proposals in such Farming Purposes (Official Journal 1978, L matters continue to be based solely on 323, p. 12), its value as a legal precedent Article 43. Furthermore, a number of seems to me to be even more dubious. It is Member States have accepted the practice odd to note that it is based additionally on only in the context of a political Article 100, although the only acts which compromise reached within the Agriculture the Council may adopt on that basis are Council at its meeting in June 1964. directives. (It is a little as if the Council had given the act disputed in these proceedings the form of a regulation but had based it on 10. Indeed, it appears from the document Articles 43 and 100.) of that date submitted by the Council as Annex II to its Rejoinder that 13. Having said that, what are the objective factors which should have guided the 'the Belgian, French, Italian, Luxembourg Community institutions in their choice of and Netherlands delegations consider that the legal basis for the contested directive?

OPINION OF MR MISCHO — CASE 131/86

14. First of all, as its title indicates and as not in itself one of the objectives of the Article 1 states, it lays down minimum Community'. standards for the protection of laying hens kept in battery cages. These standards 19. How, then, could measures to protect concern on the one hand the dimensions of laying hens be taken under the EEC Treaty? battery cages (Article 3) and on the other the conditions for laying hens kept in battery cages (Article 4), as laid down in the 20. The reply to that question may be annex to the directive. found in the same decision, since the Council stated that 15. The annex contains provisions concerning in particular the form and type 'there are disparities between existing of materials employed for constructing national laws on the protection of animals cages, the design and size of cage openings, kept for farming purposes which may give insulation, ventilation, lighting, the main rise to unequal conditions of competition and tenance of equipment, feeding and rest which may consequently have an indirect periods for the animals, their care and the effect on the proper functioning of the inspections which must be made. Virtually common market' all those provisions are intended to avoid any injury or unnecessary suffering to the and that animals and to safeguard their health and welfare. 'the Convention deals with matters which are covered by the common agricultural 16. Furthermore, there can be no doubt policy'. that the Council's objective, from the political point of view, so to speak, was indeed that of improving the lot of laying 21. These remarks also explain why the hens. Member States wished to act together, in the framework of the Community, rather than in the framework of the Council of 17. That concern may be seen clearly in the Europe or separately. Council resolution of 22 July 1980 on the protection of layer hens in cages (Official Journal 1980, C 196, p. 1), which gave 22. The recital in the preamble to that political impetus to the Community's decision concerning disparities in national activity which resulted in the adoption of legislation is repeated word for word in the the contested directive. The Council agreed Council resolution of 22 July 1980. It also that appears in a slightly more elaborate form in the Commission's proposal for a directive 'the keeping of layer hens in cages must be laying down minimum standards for the subject to compliance with minimum protection of laying hens kept in battery standards and criteria established in order to cages and in Document 11489/85 of the ensure the protection of these animals'. General Secretariat, Agrileg 252 of 18 December 1985, on the basis of which the Council voted at its meeting on 25 and 26 18. From the legal point of view, however, March 1986. 1 That document, like the the Council was obliged to recognize, as it Commission proposal, goes on to state that did as early as 19 June 1978 in its decision approving the European Convention for the 1 — Since the preamble to the directive as it was notified is Protection of Animals kept for Farming disputed by the United Kingdom, I shall base my reasoning solely on the preamble to the text submitted by the Purposes, that 'the protection of animals is Committee of Permanent Representatives to the Council.

UNITED KINGDOM v COUNCIL

'there is therefore a need to establish quences in this case if the Treaty had priority parameters and to define common intended to give the Community institutions minimum requirements applicable in all the task of establishing a common policy on intensive housing systems, in order to enable animal welfare and if Article 100 were the the market to operate satisfactorily in provision defining the Community's powers comparison, in particular, with Article 39 of in that respect. the Treaty, while bearing in mind the need to protect animals . . . '.

27. As we have seen, the protection of animals is not in itself one of the objectives of the Community. As for Article 100, it 23. In its judgment of 1 April 1982 in requires the Council, acting unanimously on Joined Cases 141 to 143/81 Holdijk [1982] a proposal from the Commission, to adopt ECR 1299, the Court, for its part, had 'directives for the approximation of such clearly shown that problems of animal provisions laid down by law, regulation or welfare were to be assessed in the more administrative action in Member States as general context of the establishment and directly affect the establishment or func functioning of the common market, tioning of the common market'. particularly in the field of agriculture.

28. It is thus because it makes possible the 24. With regard to this case, it appears approximation of the Member States' legis from the documents I have just cited that lation that Article 100 might come into the Council based its power to adopt the consideration, and not because it makes it directive on laying hens on the existence of possible to protect animals. disparities in national legislation and on the harmful consequences which they might have for the operation of the common market in agricultural products. 29. It cannot be said, however, that there is a 'Community policy on the approximation of legislation' whose legal basis is Article 100 in the same way as there is a 'common agricultural policy' whose legal basis is 25. The United Kingdom infers from this Article 43. Article 100 is not the only that the directive should have been based on provision of the Treaty which allows the both Article 43 and Article 100, since 'the Community institutions to harmonize necessity of mentioning the article national legislation. The approximation of empowering the author to adopt a binding laws is an instrument used by the Treaty for Community measure is particularly pressing the purposes of different common policies. in a case in which the measure has a bearing on two or more Community policies, in relation to which the Treaty applies different procedural requirements' (para 30. It is sufficient in that regard to refer to graph 15 of the application). Articles 27 (customs matters), 54 (freedom of establishment), 56 (special treatment for foreign nationals on grounds of public policy, public security or public health), 57 26. That assertion cannot be disputed, but I (mutual recognition of diplomas and access think it could only have significant conse to activities as self-employed persons) and

OPINION OF MR MISCHO —CASE 131/86

66 (freedom to provide services). Only Treaty and the courses of action for which Article 99, on the harmonization of legis it provided, such as those laid down in lation concerning turnover taxes, excise Articles 100, 155 and, where appropriate, duties and other forms of indirect taxation, 235' (paragraph 63). states that it is 'without prejudice to the provisions of Articles 100 and 101'. It follows that all the other articles referred to constitute a lex specialis in relation to 33. Having regard to all the foregoing Articles 100 and 101 and must therefore be remarks, the problem with which the Court given priority. is faced in this case may be defined as follows: 'Does Article 43, in relation to Articles 100 and 101, constitute a further lex specialis allowing the institutions to adopt measures harmonizing national legisla- 31. The reference in Article 99 to Article tionsuch as those which appear in the 101 leads me to wonder, moreover, whether directive? If Article 43 constitutes an appro Article 100 is really the provision which priate and sufficient legal basis, recourse to should contend with Article 43 in this case, Article 100 or Article 101 is unnecessary. or whether it is not Article 101 instead. Article 101 provides in particular that, after the end of the first stage of the transition period, the Council is to adopt, by a 34. What is the position, then, in regard to qualified majority, the necessary directives Article 43? where a difference between the provisions laid down by law, regulation or adminis trative action in Member States is distorting 35. (a) That article does not use the the conditions of competition in the expression 'harmonization of legislation', common market and the resultant distortion but to my mind it grants the institutions needs to be eliminated. powers even broader than those conferred by Articles 100 and 101 since Article 43 (3) provides as follows:

32. In any event, the Council is correct to emphasize that by virtue of the maxim lex specialis derogat legi generali Article 100 (and 'The Council may, acting by a qualified in my view Article 101 too) should apply majority and in accordance with paragraph only in the absence of any specific provision 2, replace the national market organizations permitting the harmonization of national by the common organization provided for in legislation, in particular by means of Article 40 (2) if: directives. I should point out that the Court has already upheld that principle, in holding in its judgment of 8 April 1976 in Case (a) … 43/75 Defrenne v Sabena [1976] ECR 455, that

(b) such an organization ensures conditions for trade within the Community similar 'in the absence of any express reference in to those existing in a national market'. Article 119 to the possible action to be taken by the Community for the purposes of implementing the social policy, it is appro 36. As a matter of principle, therefore, right priate to refer to the general scheme of the from its establishment a common organ-

UNITED KINGDOM v COUNCIL

ization of the market should create 40. In that judgment the Court upheld the conditions similar to those existing in a legality of the regulation which, on the basis national market. If that is not the case, the of Article 43, introduced the co-responsi institutions have the power and even the bility levy in the dairy sector. Similarly, in duty to intervene at any time in order to its judgment of 24 October 1973 in Case supplement the common organization of the 5/73 Balkan v Hauptzollamt Berlin-Packhof market or to prevent measures in force in [1973] ECR 1091 it held that monetary certain Member States (in this case, compensatory amounts should normally be Denmark and the United Kingdom) or introduced by virtue of the powers measures which may be adopted from conferred on the Council by Articles 40 and jeopardizing, on one point or another, the 43. uniformity of the market.

41. It should also be noted that under 37. For that purpose the Council may use Article 40 (2) (a) the common organization regulations as well as directives (Article 43 of the market may be limited to common (2) in fine). rules on competition.

38. (b) It might be asserted, without fear of error, that the intention of the authors of 42. Rules such as those laid down in the the Treaty was that 'the common organ directive could therefore have been adopted ization of agricultural markets' should lead directly on the basis of Article 43, even in to the harmonization of national legislation the absence of an organization of the even if it did not take the form of a market as complex as that which has been 'European market organization' (Article 40 established. (2) (c)). Indeed, there can be no more complete harmonization than a common policy based on common rules applicable in 43. (c) It cannot reasonably be denied that all Member States. the directive in question pursues objectives laid down in Article 39 of the Treaty, in particular that of ensuring a fair standard of 39. As the Court itself pointed out in its living for the agricultural community (while judgment of 21 February 1979 in Case avoiding distortions of competition). It may 138/78 Staking v Hauptzollamt Hamburg- be added, as the Commission points out, Jonas [1979] ECR 713, that stabilization of the market requires optimum productivity, not maximum productivity. 'Article 43 of the Treaty must be interpreted in the light of Article 39, which sets out the objectives of the common agricultural 44. (d) Article 2 (1) of the regulation on the policy, and Article 40, which regulates its common organization of the market in implementation by providing inter alia that eggs, 2based on Articles 42 and 43, provides in order to attain the objectives set out in for the possibility of adopting, in respect of Article 39 a common organization of agri products covered by that organization of cultural markets shall be established and the market, 'measures to promote better that this organization may include all measures required to attain the said 2 — Council Regulation No 2771/75 of 29 October 1975, objectives' (paragraph 4). Official Journal 1975, L 282, p. 49.

OPINION OF MR MISCHO — CASE 131/86

organization of production, processing and common organization of the market in eggs marketing'. and thus on the basis of Articles 42 and 43 alone, have adopted marketing standards amounting to regulation of the conditions of production. 45. Article 2 (2) provides for the adoption of marketing standards for eggs; such standards were adopted by Regulation No 48. Indeed, in its observations the 2772/75, 3 subsequently amended several Commission correctly points out that the times. 4A Commission implementing regu market organizations for fruit and lation 5authorizes the following indications vegetables, fisheries products and wine lay on packs containing eggs: free-range eggs, down common packing and quality semi-intensive eggs, deep-litter eggs and standards. perchery eggs (barn eggs). The annex to the regulation lays down very precise conditions to be met by undertakings producing eggs 49. Nor should it be forgotten that in the of any of those four categories. With regard to stocking density, for example, the area of fisheries the Community has successive standards are one hen per 10 m , ² restricted total allowable catches and the ² 2 one hen per 2.5 m , seven hens per m and, conditions under which fish may be caught in the last category, 25 hens per m on ² (vessel characteristics, fishing methods, condition that each hen has at least 15 cm mesh sizes). Similarly, in the dairy sector the of perch space. restriction of quantities which may be brought into intervention amounts to regu lation of the conditions of production.

46. The Commission could at the same time 50. (e) In accordance with the principle that have authorized an indication 'battery eggs' a common organization may include all the and laid down standards for the keeping of measures necessary to achieve the objectives hens in battery cages. It did not do so laid down in Article 39, Articles 42 and 43 because, 'in view of current commercial have traditionally been the only legal bases practice, it seems unnecessary to provide for of common organizations of the market, specific indications for the eggs of laying even if they include provisions which would hens kept in batteries' (fourth recital in the normally fall under other articles of the preamble to Regulation No 1943/85). It is Treaty. true that such an indication would hardly have contributed to improved marketing of such eggs. 51. That is true first of all with regard to the free movement of goods, since the Court has held that 47. The fact remains that the Commission could, on the basis of the regulation on the 'the provisions of the Treaty relating to the 3 — Council Regulation No 2772/75 of 29 October 1975, abolition of tariff and commercial barriers Official Journal 1975, L 282, p. 56. to intra-Community trade . . . are to be 4 — See Council Regulation No 1831/84 of 19 June 1984 (Official Journal 1984, L 172, p. 2) and Council Regulation regarded as an integral part of the common No 3341/84 of 28 November 1984 (Official Journal 1984, organization of the market'. 6 L 312, p. 7). 5 — Commission Regulation No 1943/85 of 12 July 1985 amending Regulation No 95/69 as regards certain 6 — See the judgment of 29 November 1978 in Case 83/78 Pigs marketing standards for eggs (Official Journal 1985, L 181, Marketing Board v Redmond [1978] ECR 2347, in p. 34). particular at paragraph 55.

UNITED KINGDOM v COUNCIL

52. It is equally true in respect of trade with for implementing the measures specified in non-Member countries. For example, the this title.' regulation on the common organization of the market in eggs contains provisions taking account 'in appropriate manner and 56. It must therefore be concluded that at the same time of the objectives set out in where, in relation to products listed in Articles 39 and 110 of the Treaty', 7but the Annex II of the Treaty, a measure is regulation is not based additionally on intended to contribute to the achievement of Article 113 of the Treaty. the objectives of the common agricultural policy as defined in Article 39, and especially where national organizations have been replaced by one of the forms of 53. Moreover, in relation to Article 113 the common organization provided for in Court pointed out in its aforementioned Article 40 (2), Article 43 is an appropriate judgment of 26 March 1987 with regard to and sufficient legal basis for the adoption by the system of generalized tariff preferences the Council of common standards for the that 'the existence of a link with devel protection of animals in order to avoid any opment problems does not cause a measure distortion of competition and to permit the to be excluded from the sphere of the normal and satisfactory functioning of the common commercial policy as defined by common organization of the markets in the Treaty' (paragraph 20). question.

57. The United Kingdom's submission 54. Similarly, it seems to me legitimate to concerning Article 100 of the Treaty cannot consider that the fact that the contested therefore be upheld. directive is also intended, through the harmonization of conditions of competition, to protect animals does not cause it to be excluded from the sphere of the common B — Procedural irregularities agricultural policy.

58. It is not disputed that the preamble to the directive, in the version notified on 15 55. (f) Finally, it must not be forgotten that April 1986 to the Member States and the common agricultural policy is not published in the Official Journal, differs in restricted to the common organization of certain respects from the text submitted to agricultural markets, referred to in Article the Council at its meeting on 25 March 40 of the Treaty. On the contrary, on the 1986, as reproduced in Council Document basis of Article 43 (2) the Community No 11489/85 Agrileg 252 of 18 December institutions are empowered (if not obliged) 1985. to adopt the necessary measures for 'working out and implementing the common agricultural policy, including the 59. The applicant regards these changes as replacement of the national organizations procedural irregularities justifying the by one of the forms of common organ annulment of the directive. For the Council, ization provided for in Article 40 (2), and they constitute minor rewording intended to express more clearly and accurately thein- 7 — See the thirteenth recital in the preamble to Council Regu- lation No 2771/75, supra, footnote 2. tentions of the Community legislature. Such

OPINION OF MR MISCHO — CASE 131/86

purely formal changes not affecting the the Rules of Procedure gives the General substance of the instrument itself are Secretariat the task of carrying out a final permissible. revision of texts in the light of the Council's discussions.

What are we to think of this? 63. Under Article 8 (2) of the Rules of Procedure 'any member of the Council may oppose discussion if the texts of any proposed amendments are not drawn up in 60. It should be said first of all that we are such of the said languages as he may faced with a paradoxical situation: the specify'. That provision shows that Council, in its capacity as Community amendments to meeting documents must at legislator, is telling us that it is not troubled the very least be available in writing in one by the fact that one of its legal measures of the official languages before the Council was amended after the fact by its adminis adopts a position. It is true that the trative staff. Certainly, I agree with the Council that the changes made to the Council's discussions rarely concern the preamble did have the merit of showing wording of the preamble to an act which it more clearly the legal basis on which the adopts. But where the preamble must be Council was able to legislate in this regard. amended in accordance with changes made to the operative part of the act during the meeting or for other reasons the text must always, in my view, be returned to the 61. Nevertheless, I find it unacceptable that Council itself for final approval unless the the text of a Council measure should be Council expressly decides to the contrary. changed after the fact by the General Secre Otherwise, such an act could not be tariat. The Secretariat is simply an adminis regarded as having been adopted by the trative department. Its legal basis is to be Council for the purposes of the first found in Article 17 of the Council's Rules paragraph of Article 189 of the Treaty. 8 of Procedure, which provides that 64. It is no coincidence that the Council has developed the practice, at the end of its 'The Council shall be assisted by a General meetings, of referring texts to the Secretariat under the direction of a Committee of Permanent Representatives Secretary-General.' (Coreper) or to the Special Committee on Agriculture for final revision in so far as that is found to be necessary. Even if that task is carried out, from the practical point 62. Although Article 15 of those Rules of of view, by the secretariat, it is on the Procedure allows the President of the request of Coreper or of the Special Council to entrust to the Secretary-General Committee on Agriculture and underthe the task of notifying directives, decisions control and responsibility of one of those and recommendations on his behalf, that committees. It is they who ensure that the cannot include the' right for the result of such revision is in accordance with Secretary-General or his assistants to the Council's decisions. change a text once it has been adopted by the Council. In particular, no provision of 65. Finally, it is Coreper, an organ provided for by the Treaties 9 (which the Special 8 — Rules of Procedure adopted by the Council on 24 July 1979 on the basis of Article5 of the Treaty of 8 April 1965 establishing a single Council and a single Commission of 9 — Article 4 of the Treaty of 8 April 1965 establishing a single the European Communities (79/868/ECSC, EEC, Council and a single Commission of the European Euratom, Official Journal 1979, L 268, p. 1) Communities (Official Journal 1967, L 152, p. 2).

UNITED KINGDOM v COUNCIL

Committee on Agriculture is not), which Commission first alters its proposal so that it determines whether the final version of the becomes identical to the text which the act should be approved by the Council Council is about to adopt. Such an under the written procedure or by inclusion amendment of the Commission's proposal is in part A of the agenda of a subsequent usually effected by an oral statement by the Council meeting (see Article 2 (6) of the member of the Commission taking part in Rules of Procedure). the discussion, who must of course have been empowered by the Commission to take such action. During the oral procedure the Commission confirmed that that in fact 66. Even the verification of agreement happened in this case. between the different language versions of texts adopted by the Council is carried out according to a procedure which allows the 71. All this delicate mechanism would Member States to ensure that the scope of clearly be disrupted if alterations of a more the Council's decision is not altered, even in than purely formal nature were made to the a single language version. Meetings of the text of an act after the Council had taken its 'legal/linguistic experts' group (officials of decision. the secretariat) are announced to the Member States by telex, and they are invited to send representatives if they so desire. 72. That is true even where such alterations concern only the preamble of an act. In Community law the statement of the reasons on which acts of the institutions are 67. In establishing those procedures the based, expressly required by Article 190 of Council clearly intended to ensure absolute the Treaty, is extremely important. The conformity between acts published or Court has emphasized on several occasions notified and the decisions taken. that

68. It should also be recalled that 'Community measures must include a statement of the facts and law which led the institution in question to adopt them, so as to make possible review by the Court and so 'where, in pursuance of this Treaty, the that the Member States and the nationals Council acts on a proposal from the concerned may have knowledge of the Commission, unanimity shall be required for conditions under which the Community an act constituting an amendment to that 10 institutions have applied the Treaty.' proposal' (Article 149).

73. In this case it must be concluded that 69. A decision by a qualified majority is the conditions under which the competent thus possible only where the Council simply institution, the Council, adopted the follows the Commission's proposal. directive on laying hens are those set out in the preamble to the document of the Council secretariat of 18 December 1985 bearing the number 11489/85 Agrileg 252. 70. However, since virtually all Commission proposals are, altered by the Council, a vote 10 — Judgment of 26 March 1987 in Case 45/86 Commission v by a qualified majority is possible only if the Council [1987] ECR 1493, at paragraph 5.

OPINION OF MR MISCHO — CASE 131/86

74. The majority of the members of the the time of their adoption and by the Council clearly considered that the text of Secretary-General.' the operative part of that directive and the reasons set out in the preamble justified the 76. It is true that only the preamble to the adoption of that measure by a qualified directive was not approved in those terms by majority on the basis of Article 43 of the the Council. I do not think it possible, Treaty alone. however, to separate the preamble from the rest of the measure. It is the whole 'directive' of 25 March 1986 that must be 75. Neither at the meeting, nor by the annulled. written procedure, nor by the part A procedure did the Council approve the text 77. Since, on the other hand, a directive in of the directive in the version signed by the the terms of Document 11489/85 was President-in-Office on 25 March 1986, validly adopted by the Council for the notified to the Member States and published purposes of the first paragraph of Article in Official Journal, L 95 of 10 April 1986 189, it is sufficient that, after the judgment (p. 45). The Council thus did not adopt, for of the Court, the President-in-Office at the the purposes of Article 189, a directive in time of its adoption should sign it and those terms. It did however adopt a notify it to the Member States. No further directive in the terms of Document discussion in the Council is necessary. 11489/85, since it was that text which was put to the vote. A distinction may indeed be 78. If however the Court were not, in these made between an adopted text and a signed proceedings, to deal with theissue text since under Article 9 of the Rules of concerning Article 100, that problem would Procedure : certainly arise again immediately in the Council and in the event of a further vote by a qualified majority would in all prob 'the texts of the acts adopted by the Council ability result in a second application to the shall be signed by the President-in-Office at Court, focused exclusively on that question.

Conclusion

79 . On the grounds set out above I propose that the Court uphold the second submission of the United Kingdom and annul Council Directive 86 / 113 / EEC of 25 March 1986 laying down minimum standards for the protection of laying hens kept in battery cages .

80. With regard to costs, it should be borne in mind that although the applicant has succeeded it did fail in its principal submission. I therefore propose that , pursuant to the first subparagraph of Article 69 (3) of the Rules of Procedure , each of the original parties should bear its own costs and that the applicant should also bear the costs incurred by the Commission , which intervened only in respect of that submission.