C-128/94
ECLI:EU:C:1995:284
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HONIG v STADT STOCKACH
OPINION OF ADVOCATE GENERAL LÉGER delivered on 14 September 1995 *
1. The Bundesverwaltungsgericht has provides, in particular, that all cages must referred to the Court for a preliminary rul have a minimum surface area of: ing a question concerning the compatibility of a regulation adopted by the Federal Min ister for Food, Agriculture and Forestry with Article 3(1 )(a) of Council Directive 88/166/EEC of 7 March 1988 complying with the judgment of the Court of Justice in — 530 cm 2 as from 1 July 1989; 5 Case 131/86 (annulment of Council Direc tive 86/113/EEC of 25 March 1986 laying down minimum standards for the protection of laying hens kept in battery cages). '
— 550 cm 2 as from 1 January 1993. 6
2. The question arose in the course of a dispute between Hans Hönig and the 4. Mr Hönig is a poultry farmer and raises town of Stockach 2 and the Land Baden- laying hens in battery cages. The birds, Württemberg. 3 which weigh over 2 kg, are housed in fives in cages with an area of 2 125 cm 2 ; thus each hen has an average of 425 cm 2 space.
3. O n 1 January 1988 a regulation came into force in Germany on the protection of laying 5. Notwithstanding the notice he received 4 hens kept in battery cages. As regards hens from the Land administrative authorities 7 weighing more than 2 kg the regulation to the effect that he would be prosecuted for failing to comply with the regulation on laying hens, Mr Hönig informed the * Original language: French. 1 — Hereinafter 'Directive 88/166' or 'the directive' (OJ 1988 L 74, p. 83). 2 — Hereinafter 'Stockach'. 5 — Ibidem, Article 2(1), second indent, in conjunction with 3 — Hereinafter 'the Lanď. Article 2(2). 4 — Regulation of 10 December 1987, BGBl. I, p. 2622 (herein 6 — Order for reference, p. 2 of the English translation. after 'the regulation on laying hens'). 7 — Sute Veterinary Office, Radolfzell.
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administration that he would continue to run national rules stricter than those laid down his business as in the past and at the same by the Community legislature; however, it time brought an action for a declaratory also considers that there is doubt as to the judgment before the Verwaltungsgericht interpretation to be given to the Community against the Land and Stockach. 8 text and therefore has decided to stay the proceedings and refer to the Court of Justice for a preliminary ruling on the following question:
6. In support of that action he claims that the regulation on laying hens is incompatible with Community law and in particular with 'Is Article 3(1 )(a) of the Annex to Council Article 3 of the directive. H e maintains that Directive 88/166/EEC of 7 March 1988 to be the purpose of the directive is to eliminate interpreted as meaning that it obliges the distortion of competition between Commu- Member States to lay down the minimum nity poultry farmers. By failing to adhere cage area specified in the directive, without strictly to the conditions laid down in the leaving any scope for more stringent national Community text, the regulation on laying requirements?' hens created conditions which were less favourable for German poultry farmers, thus creating unequal conditions of competition as between Member States in that sector, which was contrary to the purpose of the Directive. 7. I consider that the reply to that question should be in the negative, for three essential reasons: the wording of the Community text, its ratio legis, and the case-law of the Court of Justice.
His application was dismissed as unfounded and his appeal was rejected; he then appealed against the latter decision to the Bundesver- waltungsgericht.
8. In the first pUce, as regards the wording of Article 3(l)(a) of the directive, it is as fol- lows:
That court considers that Article 3 of the directive permits Member States to impose
'(a) at least 450 cm 2 of cage area, measured 8 — Order for reference, p. 3 of the English translation. in a horizontal plane which may be used
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without restriction, in particular not adopted by the Council as early as 1976 10 including non-waste deflection plates and explained in its resolution of 22 July liable to restrict the area available, shall 1980 as follows: be provided for each laying hen.'
'... the keeping of layer hens in cages must be 9. In my view, 9 the wording of the Commu- subject to compliance with minimum stan- nity provision at issue is entirely unequivo- dards and criteria established in order to cal: the words 'at least' indicate that the ensure the protection of these animals; Community legislature has laid down a min- imum threshold, which means that Member States may not adopt rules less favourable as regards the protection of the hens; in other words, they may not go below the Commu- nity standards. However, Member States ... appropriate rules for this purpose should may raise the threshold and impose on their be adopted by the Council, acting on a pro- own territory standards which are stricter, posal from the Commission, before that is to say which are more favourable to 1 November 1981'. » the hens. If, as Mr Hönig maintains, the leg- islature had intended to ensure uniform application strictly to the letter of that stan- dard, the wording would have been quite different, for instance: 'the cage area is to be 450 cm 2 ' or '... must be 450 cm 2 ...'. 11. The directive lays down not only the dimensions of the cages used for battery farming, 12 but also the conditions governing such farming methods, u which are set out in the Annex to the directive.
10. That view is supported by an analysis of all the provisions of the directive and the context in which it was adopted.
The directive is addressed to the Member States and not, as Mr Hönig maintains, to poultry farmers. That is indicated by both
Directive 88/166 forms part of a common action programme for animal protection 10 — Proposal for a Council decision adopting the European Convention on the protection of animals kept for farming purposes (OJ 1976 C 133, p. 6). 11 — Resoludon on the protection of layer hens in cases (OJ 1980 C 196, p. 1). 9 — Sec also the observations of the Commission, the United 12 — Article 3 of the directive. Kingdom, the German Government and the defendant. 13 — Article 4.
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the wording and the sense of the provisions; Consequently, to maintain as does Mr Hönig in accordance with Article 189 of the E C that the cage area available for battery hens Treaty, Article 12 expressly provides so. 14 determined by Article 3(l)(a) of the directive Moreover, it would be unreasonable and is a fixed measure and that it is not permitted ineffective to make poultry farmers responsi- to increase it would run counter to the aim ble individually for providing a cage area per of the Community text. hen greater than that provided for by Article 3(l)(a) of the directive: they have no interest in doing that.
12. That remark brings us to the second The repeated, if not systematic, use of the reason for maintaining that the reply to the words 'at least' 1 5 and the adjective 'mini- question referred by the national court must mum' 16 emphasize the Community legisla- be in the negative: the ratio legis of the Com- ture's aim of providing measures for the pro- munity text. tection of poultry in intensive farming systems, in accordance with the intentions it had expressed as early as 1976. 17 Moreover, the title of the directive and Article 1 there- of 18 make this abundantly clear.
13. The objective pursued by the Commu- nity legislature is twofold. It is on the one hand to protect the animals farmed, 20 and on It may therefore be said that the standards the other hand to reduce inequalities in con- laid down by the directive are primarily ditions of competition as between Member intended to avoid any injury or unnecessary States in this particular sector (the market in suffering for the animals and to safeguard eggs and poultry), which are attributable to their health and welfare. 19 the different national rules in this area. 21
14 — 'This directive is addressed to the Member Sutes.' 20 — First recital in the preamble to the directive: 'whereas the 15 — Article 3(1 )(a), (b), (c) and (d) and, in the Annex to the Community has ... approved (the European Convention on directive, points 8 and 11. the protection of animals kept for farming purposes) by Decision 78/923/EEC ...; whereas the keeping of laying 16 — In the title, the third recital in the preamble and Article 1. hens in battery cages is the most widely used means of egg 17 — See, in particular, the fifth and sixth recitals in the preamble production in the Community ...; whereas ... this means of to the proposal for a Council decision approving the Euro- housing may, in certain cases, lead to unnecessary and pean Convention on the protection of animals kept for excessive suffering on the part of the animal'. farming purposes, referred to above. 21 — Second recital in the preamble to the directive: '... the 18 — 'This directive lays down the minimum standards for the national laws at present in force in the field of the protec- protection of laying hens kept in battery cages/ tion of animals kept for farming purposes present differ- 19 — See paragraph 15 of the Opinion of Advocate General Mis- ences which may distort conditions of competition and in cho in Case 131/86 United Kingdom v Council [1988] consequence interfere with the smooth running of the orga- ECR 905. nization of the common market in eggs and poultry'.
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In order to strike the right balance between decision to harmonize the standards applica- the conflicting interests of ble to animals kept for farming purposes was made essentially with a view to eliminating unequal conditions of competition in that field'. «
— the economic necessity of reducing pro- duction costs, and
— the moral and ethical necessity of intro- ducing rules protecting animals, '... the preparatory documents show that the directive was also conceived with a view to ensuring better treatment for laying hens, along the lines of the Convention referred to above. However, it must be emphasized that, as was pointed out above, varying national and to reconcile them, 2 2 the Community rules regarding agricultural products which legislature sought to lay down, as a first step, may affect the proper functioning of a com- common minimum standards. mon organization of the market, such as, in this case, differing conditions for the keeping of laying hens, may be harmonized on the basis of Article 43 of the Treaty alone, and there is no need to have recourse to Article 100'. u 14. That analysis has been confirmed by the Court of Justice in its judgment in United Kingdom v Council, cited above, in which it stated:
'... the survey of the preparatory measures 15. Contrary to what the plaintiff in the referred to by the parties shows that the main action has maintained, the directive has not one purpose — to remove inequalities in conditions of competition between Member 22 — Third recital in the preamble to the directive (the emphasis States — but two, since it seeks also to is mine): 'whereas there is therefore a need to establish pri- ensure the protection of animals. ority parameters and to define common minimum require- ments applicable in all intensive housing systems, in order to enable the market to operate satisfactorily in comparison, in particular, with Article 39 of the Treaty, while bearing in mind the need to protect animals; whereas it is necessary for this purpose, as a first step, to establish Community 23 — Paragraph 26. measures for laying hens in battery cages'. 24 — Paragraph 27.
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Moreover, the directive has not led to the the facts before the Court today with those abolition of disparities between Member on which the Court ruled on 22 June 1993 in States' legislation, but has merely reduced Philip Morns Belgium and Others27 and them. In the absence of agreement between Gallaher and Others. 2S the Member States, full harmonization of the rules applicable to battery hens has not been achieved. 25 On this point, it should be noted that the words 'as a first step' in the third recital in the preamble and the fourth and fifth recitals not only emphasize that the Community text is merely a stage but also hint of reforms yet to come. The Court held that where the directive did not seek full harmonization 29 and provided that the purpose of the Community provi- sion, considered in the light of all its provi- sions, was respected, 3° Member States were free to go beyond the minimum require- ments laid down: M
16. The last argument in support of this view is to be found in the case-law of the Court of Justice. 'The expression "at least" contained in both articles must be interpreted as meaning that, if they consider it necessary, Member States are at liberty to decide that the indications and warnings are to cover a greater surface area in view of the level of public awareness of the health risks associated with tobacco consumption'. 32
17. The Court was called upon recently t o 27 — Case C-222/91 [1993] ECR 1-3469. rule on the interpretation of provisions con- 28 — Case C - l l / 9 2 [1993] ECR 1-3545. 29 — Gallaher, cited above, paragraph 22 (the emphasis is mine): tained in Council Directive 89/622/EEC of 'Admittedly, as the applicants in the main proceedings have 13 November 1989, 26 which also laid down tointed out, this interpretation of the provisions may imply
minimum standards. It is useful to compare f ess favourable treatment for national products in compari- son with imported products and leaves in existence some inequalities in conditions of competition. However, those consequences are attributable to the degree of harmoniza- tion sought by the provisions in question, which lay down minimum requirements*
25 — See the Commission's observations on this point, pages 30 — Philip Morris Belgium, cited above, paragraphs 8 to 11, and 8 and 9 of the French translation. Gallaher, cited above, paragraphs 11 to 14. 26 — Directive on the approximation of the laws, regulations and 31 — Philip Morris Belgium, cited above, paragraph 17, and Gal- administrative provisions of the Member States concerning laher, cited above, paragraphs 20, 22 and 23. the labelling of tobacco products (OJ 1989 L 359, p. 1). 32 — Gallaher, cited above, paragraph 20.
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18. In conclusion, for the reasons set out above, I propose the following reply to the question which has been referred:
Article 3(l)(a) of the Annex to Council Directive 88/166/EEC of 7 March 1988 complying with the judgment of the Court of Justice in Case 131/86 (annul- ment of Council Directive 86/113/EEC of 25 March 1986 laying down minimum standards for the protection of laying hens kept in battery cages) is to be inter- preted as permitting Member States to lay down stricter national rules regarding cage area for laying hens kept in battery cages.
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