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OPINION OF ADVOCATE GENERAL ALBER delivered on 17 October 2002 1

I — Introduction Directive 90/425/EEC of 26 June 1990 concerning veterinary and zootechnical checks applicable in intra-Community trade in certain live animals and products 1. The present reference for a preliminary with a view to the completion of the ruling involves the question whether a internal market 2('Directive 90/425'). That health certificate issued pursuant to Direc- directive imposes responsibility for veterin- tive 91/68/EEC for animals for fattening ary checks in cross-border trade on the also covers animals intended for slaughter, place of departure within the Member State for which a separate health certificate of dispatch. The Member States of desti- exists. Also in issue is the compatibility nation may limit themselves to veterinary with Community law, in particular the spot checks at the place of final destination. provisions governing the free movement of goods, of national protective measures against the dangers posed by Transmissible Spongiform Encephalopathy ('TSE').

3. Article 10 governs — as a safeguard clause — the adoption of protective meas- II — Legal framework ures in the event of an outbreak of diseases likely to constitute a hazard to animals or to human health. The first subparagraph of Article 10(1) imposes on Member States an obligation to notify the other Member 1. Community law States and the Commission in the event of an outbreak of such diseases. In cases of this kind, however, the second subpara- (a) Directive 90/425/EEC graph of Article 10(1) authorises the Member States of dispatch in particular to implement precautionary measures. The third subparagraph of Article 10(1) auth- orises Member States of destination or 2. Trade in live animals within the Com- transit to adopt precautionary measures if, munity forms the subject-matter of Council in the course of checks, they establish the

6. Article 9 provides that animals must, (b) Directive 91/68/EEC during transportation, be accompanied by a health certificate signed by an official veterinarian and conforming to Annex E. Annex E contains three models for health certificates: Model I for sheep intended for 4. Trade specifically in sheep is also regu- slaughter, Model II for sheep intended for lated by Council Directive 91/68/EEC of fattening, and Model III for sheep intended 28 January 1991 on animal health con- for breeding. The only difference between ditions governing intra-Community trade Models I and II is that the latter contains an in ovine and caprine animals 3('Directive additional certification that the animals are 91/68'). Article 3 provides that sheep eligible for entry into an (officially) brucel- intended for slaughter must fulfil the con- losis-free holding. ditions laid down in Article 4, while sheep for breeding and fattening must fulfil the conditions laid down in Articles 4, 5 and 6.

5. Article 4 lays down a number of basic conditions governing trade (identification and registration of sheep, absence of spec- ified diseases). Article 5 sets out further conditions for sheep for breeding or fatten- 7. Article 10(1) refers, with regard to ing with regard to protection against bru- checks at origin, the organisation of the cellosis. Article 6 imposes additional checks to be carried out by the Member requirements on trade in sheep for breeding State of destination, and follow-up and with regard to disease protection. Concern- protective measures, to the abovemen- ing scrapie, Article 6(b)(i), third indent, tioned Article 10 of Directive 90/425.

10. The recitals in the preamble to the order of December 1996 stated that it had been adopted in view of the alarming number of outbreaks of BSE infection in Ill — Facts the United Kingdom, France, Portugal and Ireland. It was further stated that, in view of the different health situation existing within its own territory, Italy did not consider it necessary to adopt, in regard 12. The parties to the main proceedings entered in June 1997 into a contract, 5 — Emphasis added. governed by English law, for the export of

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three lorryloads of live sheep from England 15. That request was refused on the ground to Italy. The High Court has established that the requirement that a TSE declaration that the claimant in the main proceedings, be provided constituted an unlawful restric- Joseph Lennox ('Lennox'), was aware that tion on trade. Lennox sought payment of the defendant in the main proceedings, GBP 57 254.40 from ILCO on the basis Industria Lavorazione Carni Ovine that Lennox had fulfilled its contractual ('ILCO'), operated an abattoir. The parties obligations to deliver the sheep. ILCO did not, however, discuss whether the sheep counterclaimed for damages for unspecified were intended for immediate slaughter or losses. for further fattening prior to slaughter. The sheep were to be delivered to ILCO's place of business.

IV — Questions submitted for preliminary ruling

13. When the sheep arrived, ILCO informed the claimant in the main proceed- 16. In the dispute pending before it, the ings that the health certificates produced High Court of Justice, Queen's Bench were incorrect inasmuch as they stated that Division (Commercial Court), has referred the sheep were intended for fattening. It the following questions to the Court for a requested Lennox to send certificates to preliminary ruling: cover sheep intended for slaughter, as the animals would otherwise have to be returned to the United Kingdom.

certificate, does the responsibility has been registered in the last six for identifying the correct certifi- years."? cate prior to export rest on the exporter or on the recipient of the sheep, or is it for the applicable national law of the contract to determine which party bears this responsibility? (b) If the answer to Question 2(a) is No, where the exporter has other- wise fulfilled its obligations under the applicable law of the contract to deliver the sheep to the recipi- ent's place of business, is a national court required, in civil proceedings (c) Where a consignment of sheep is between the exporter and the exported from one Member State recipient concerning their contrac- to another Member State and the tual rights and obligations regard- sheep are for slaughter on arrival ing the importation of the sheep, to and where the accompanying ignore any obligation under the health certificate is a Model II national law of the Member State certificate, is the national law of of destination that the accompany- the State of destination entitled to ing health certificate include the make the importation unlawful on said declaration?' the ground that the certificate is not a Model I certificate?

V — Submissions of the parties and 2. (a) In July 1997, was it compatible appraisal with Community law, in particular Articles 28 EC to 30 EC (ex Articles 30 to 36) and/or Article 152 EC (ex Article 129 of the EC Treaty) and/or Articles 6 EC and 174 EC (ex Article 130r of the A — The first question EC Treaty) and Council Directives 89/662/EEC, 90/425/EEC and 91/68/EEC for a Member State to require that the health certificates 1. The correct health certificate required pursuant to Article 9 of Directive 91/68/EEC include the following declaration: "The ani- mals referred to in this certificate were born and raised on farms in which no case of Transmissible 17. The first part of this question concerns Spongiform Encephalopathy (TSE) the relationship between the different

18. Lennox, the Commission and the Irish Government take the view that submission of a Model II certificate is also adequate to cover animals intended for slaughter. The purpose of Directive 91/68 is to guarantee 20. The different models of health certifi- that the animals which are the subject of cates correspond to the respective purposes trade meet specified health standards. The for which animals are traded within the conditions for issuing a health certificate Community. This follows from the fourth for animals for fattening (Model II) are recital in the preamble to and Article 3(1) stricter than those for slaughter animals and (2) of Directive 91/68. Accordingly, (Model I) and contain all details required different inspections are to be carried out for slaughter animals. The reason for this is by veterinary officers in accordance with that animals intended for slaughter come Articles 4 to 6 of the directive and different into no further contact with other animals. characteristics are to be certified. This argues in favour of drawing a clear dis- tinction between the three models of health certificates and not allowing a certificate issued for sheep intended for fattening to be treated as sufficient to cover trade in sheep that are intended for slaughter. 19. ILCO, in contrast, takes the view that Directives 89/662, 90/425 and 91/68 required animals to be accompanied by the appropriate health certificates, and thus in the present case by a Model I health certificate covering animals intended for slaughter. It bases its legal construction on 21. This formal approach fails, however, to the wording of Article 9 of Directive 91/68, take account of the fact that there is a which provides that animals 'must' be substantive overlap between the various accompanied by a certificate conforming requirements imposed on the checks to be to Annex E. A contrary interpretation carried out and the certificates to be issued.

They stand in a vertical relationship to one the facts of the present case, nothing to another. The least extensive requirements substantiate the fear that health protection are those imposed on sheep for slaughter. standards may be weakened. The animals Under Article 3(1) of Directive 91/68 they in question, after all, satisfied stricter must simply comply with the requirements requirements than those applicable to sheep of Article 4 of the directive for a Model I intended for slaughter. To that extent there health certificate to be issued. In contrast, was no weakening, but rather a reinforce- stricter requirements obtain for sheep ment, of the standards of protection. This intended for fattening and breeding. Not ought not to have resulted in any restriction only must they satisfy the requirements of on the marketing of the animals. Article 4, but sheep for fattening must also satisfy those of Article 5 and sheep for breeding those laid down in Articles 5 and 6 in order that a Model I (sheep for fattening) or Model III (sheep for breeding) health certificate can be issued for them. 24. According to the first recital in its The fact that all animals must satisfy the preamble, Directive 91/68 is intended to requirements imposed on sheep intended facilitate trade in sheep and goats. In issue for slaughter suggests that a Model II was the establishment of uniform animal health certificate should also be allowed health requirements designed to avoid the to suffice for sheep intended for slaughter. spread of infectious or contagious diseases (third recital in the preamble). The ultimate purpose for which the animals are moved, that is to say, the reason for which they are the subject of trade, is in this regard 22. Considered also in the light of the relevant only inasmuch as it determines Directive's meaning and objective of ensur- the level of the health checks to be carried ing that sheep can be traded within the out. Propriety of trade, on which ILCO Community in a manner which gives rise to bases its argument, is not a matter which no animal health concerns, there are no the directive is intended to protect. obvious grounds for insisting on a Model I health certificate. The requirements for sheep intended for fattening include all animal health requirements that are imposed on sheep for slaughter. In this way it can be guaranteed that all checks 25. As commercial considerations do not required for sheep intended for slaughter therefore stand in the way of the construc- have been carried out. tion being put forward here, the answer to the first part of the question must be that, where a consignment of sheep is exported from one Member State to another Member State and the sheep are intended 23. The question arises as to whether this for slaughter on arrival, the requirement interpretation is tenable for purposes of under Article 9 of Directive 91/68 is com- trade. In regard to the misgivings expressed plied with where the accompanying health by ILCO concerning concealment of the certificate is not a Model I certificate, as in reason for which animals are being traded, Annex E to the directive, but is a Model II it can be stated that there is, at any rate on certificate.

(b) Appraisal

(a) Submissions of the parties 30. Directive 89/662 regulates veterinary checks of animal products and products of animal origin. The present case, however, concerns trade in live sheep and for that reason Directive 89/662 is not applicable in 28. ILCO infers from Directives 89/662, the present context. 90/425 and 91/68 an obligation on the consignor of the animals to take all steps to ensure that it is aware of the purpose of the consignment and accordingly obtain the appropriate health certificates. The direc- tives established a system under which the 31. Directives 90/425 and 91/68 specify the requisite veterinary checks are carried out veterinary checks required for intra-Com-

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munity trade and the health certificates to veterinary checks be carried out and the be issued on the basis of the intended health certificates required for the consign- purpose to which the animals are to be put. ment be issued in the Member State of On the question as to who determines that dispatch. purpose, the directives do not set out any, or at least no express, rules.

35. By the third part of the first question, the High Court seeks to ascertain whether 33. This reading of the provisions of Direc- national law may declare importation to be tive 90/425 also finds support in the fact unlawful if the animals intended for that neither that directive not Directive slaughter are accompanied by a Model II 91/68 determines who is responsible for health certificate. carrying out the veterinary checks. Neither of the two directives provides that the appropriate certificate under Annex E to Directive 91/68 is to be requested by the exporter. The fact that the checks are to be carried out at the place of dispatch does, it (a) Submissions of the parties is true, suggest that it is the exporter who must request the certificate. That is, how- ever, not a necessary conclusion under the provisions of Community law. Those provisions do not exclude the possibility 36. Lennox takes the view that a Member that the importer must request that the State may not adopt measures under which

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38. Against this, ILCO expresses the view 37. The Commission also takes the view that Member States are perfectly entitled to that a national provision may not have the take measures designed to ensure com- result that the importation of sheep for pliance with Community law. Consign- slaughter that are accompanied by Model II ments of animals which, as it considers health certificates is treated as being unlaw- the situation to be here, are not accom- ful. The Irish Government concurs with this panied by the proper documentation may view. According to the Commission, the be made subject to penalties and classified resolution of this problem depends on as unlawful. This will in particular be whether or not the Community-law provi- compatible with Community law if care sions constitute exhaustive harmonisation. has been taken to ensure that the consign- It concludes that Directives 91/68 and ment can, if necessary, be returned to the 90/425 exhaustively regulate trade in Member State of dispatch. sheep. This follows from the first two recitals in the preamble to Directive 91/68, which allude to the legislative disparities between Member States and the need to remove such disparities. It further follows from the seventh recital in the preamble that Member States are no longer entitled (b) Appraisal to adopt measures without Commission approval. The Commission also refers to the detailed rules set out in Articles 3, 4, 5 and 6 of the directive, which list precisely the requirements to be complied with. The Commission further reinforces its view by arguing that, via Article 10 of Directive 39. The answer to this question follows 91/68, the rules laid down in Directive from the answer to the first part. Where a I - 7104

40. If, on the other hand, one takes the view, as expressed here, that a Model II health certificate does, under Community B — The second question law, suffice for trade in sheep intended for slaughter, such trade cannot be declared unlawful under national law. National law would otherwise be placed in opposition to 1. Compatibility of the Italian measure Community law. That is impermissible with the free movement of goods under the principle that Community law must take precedence. That principle requires that national law be disapplied to the extent to which it is incompatible with Community law. 6If Community law thus regards trade in sheep intended for 42. In the first part of the second question, slaughter for which a Model II health the High Court seeks to ascertain whether certificate has been issued as being lawful Articles 28 EC to 30 EC, 152 EC, 6 EC and for the purposes of Article 9 of Directive 174 EC and Directives 89/662, 90/425 and 91/68 are to be construed as precluding national rules which require that the health certificates issued pursuant to Directive 6 — The most famous examples or this case-law on the primacy of Commumty law are Cases 6/64 Costa [1964] LCR 585, 91/68 must also include a declaration that at p. 593 et seq., and 106/77Simmenthal [1978| ECU 629, at paragraphs 17 and 18. This relates to primacy in regard the animals concerned originate from a to application; see Joined Cases C-10/9" to C 22/9" holding that has been TSE-free for six IN.CO.GE.90 and Others [1998] ECR I-6307, paragraph 21. years.

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46. The Commission and the Irish Govern- ment also consider that the requirement 44. ILCO, in contrast, takes the view that that a TSE declaration be submitted is Directives 91/68, 90/425 and 89/662 did compatible with Community law. not effect exhaustive harmonisation, with Although Italy could not invoke the result that Member States were free to Article 30 EC, as Directives 90/425 and take protective measures by invoking 91/68 had resulted in exhaustive harmon- Article 30 EC. The directives do not cover isation, the conditions governing the safe- the case of a Member State of destination guard clause in Article 10(1) of Directive which, in the absence of any threat, does 90/425 were satisfied. Member States were not adopt precautionary protective meas- entitled to adopt temporary measures on ures in regard to its own livestock herds but the basis of that provision. has sound reasons for adopting measures to protect the health of animals and people within its territory against threats existing in other Member States. That protective measures in the form of a requirement that a TSE declaration be produced were justi- 47. The Commission points out that the fied is confirmed by the fact that the United provision was originally drafted to deal Kingdom itself provided during the period with outbreaks of very rapidly spreading diseases such as foot-and-mouth disease. Regard being had to the meaning and 7 — Case C-5/94 Hedley Lomas [1996] ECR I-2553. purpose of this provision, however, its

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48. The Commission and the Irish Govern- ment take the view that these formal and substantive requirements of Article 10 of Directive 90/425 were complied with in the present case. While the combating of 49. Article 28 EC prohibits quantitative scrapie is already regulated in Article 6 of restrictions on imports and all measures Directive 91/68, that provision is not having equivalent effect between Member applicable here in so far as the present case States. A measure having equivalent effect does not involve the eradication of that is any measure which is capable of directly disease in Italy. Account should be taken of or indirectly, actually or potentially, hin- the fact that the independent scientific dering intra-Community trade. 8 The obli- committee advising the United Kingdom gation to produce a TSE declaration, in Government (the Spongiform Encephalo- addition to the issue of a health certificate pathy Advisory Committee (SEAC)) pub- as defined in Directive 91/68, makes the lished a report in July 1996 which stated importation of sheep into Italy more dif- that it could not be ruled out that BSE ficult and thus constitutes a measure having might also be transmissible to sheep and an effect equivalent to a quantitative might erroneously be diagnosed as scrapie. restriction prohibited under Article 28 EC. In this situation, and in the absence of appropriate Community legislation, the Italian Government was entitled to adopt 8 — Case 8/74 Dassonville [ 1974] ECR 837, paragraph 5; Joined Cases C-267/91 and C-268/91 Keck and Mithouard [1993] interim measures. Those measures were ECR I-609-, paragraph 11.

50. This raises the question of the extent to which the rule can be justified under Article 30 EC. According to the recitals in the preamble to the order of 24 December 1996, that legislation was intended to 53. The veterinary and zootechnical checks provide protection against BSE. It thus applicable to trade in live animals are in sought to guarantee protection of the principle regulated in Directive 90/425. health and life of humans and animals. That directive does not envisage the sub- Article 30 EC recognises this in principle as mission of a TSE declaration, as required a ground of justification. by Italy. As Advocate General Mischo stated in his Opinion in the National Farmers' Union case, Directive 90/425 only organises the procedures under which measures necessary for the protection of health are to be adopted but does not, of itself, prescribe those measures. 10 Adop- 51. According to settled case-law, where tion by Member States of health-protection Community directives provide for the har- measures are for that reason not excluded monisation of the measures necessary to by Directive 90/425. The adoption of ensure the protection of animal and human protective measures is, however, made health and establish Community pro- subject in Article 10 of the directive to cedures to check that they are observed, specified conditions. recourse to Article 30 EC can no longer be justified. The appropriate checks must be carried out and the measures of protection adopted within the framework outlined by the harmonising directives. 9The order for reference considers Directives 89/662, 90/425 and 91/68 to be harmonising direc- tives of this kind. 54. For trade in sheep account must also be taken of Directive 91/68. Article 6(b)(i), third indent, imposes inter alia the con- dition on animals for breeding that they must come from a holding on which no case of scrapie has been confirmed for at 52. As already stated, Directive 89/662 is least two years. To that extent protection not applicable to the present case as it against the dangers posed by scrapie is regulated for breeding animals. No similar 9 — Case 5/77 Tedeschi [1977] ECR 1555, paragraph 35; Case 251/78 Denkavit Futtermittel [1979] ECR 3369, paragraph 14; Case C-52/92 Commission v Portugal [1993] 10 — Opinion of Advocate General Mischo of 2 July 2002 in ECR I-2961, paragraph 17; and Case C-112/97 Commis- Case C-241/01 National Farmers' Uttion, Judgment of sion v Italy [1999] ECR I-1821, paragraph 54. 22 October 2002, ECR I-9079, I-9082, paragraph 87.

(iii) Applicability of Article 10 of Directive 55. Community-law protective measures 90/425 against the clangers posed by scrapie were first adopted by way of Commission Decision 97/534/EC of 30 July 1997 on the prohibition of the use of material presenting risks as regards transmissible spongiform encephalopathies. 11 Its entry into operation was initially postponed because of political difficulties and in fact 57. Two arguments have been put forward it ultimately never came into force. It was against application of Article 10 of Direc- replaced by Commission Decision tive 90/425 to the facts of the present case. 2000/418/EC of 29 June 2000 regulating First, ILCO objects that Article 10 of the use of material presenting risks as Directive 90/425 finds no application in regards transmissible spongiform encepha- cases in which a Member State of desti- lopathies and amending Decision nation has not adopted any precautionary 94/474/EC, 12 which entered into force on measures with regard to its own livestock 30 June 2000. In addition, the Commission herds but wishes to adopt measures to also adopted on 23 April 1998 Decision afford protection against dangers poten- 98/272/EC on epidemio-surveillance for tially existing in other Member States. transmissible spongiform encephalopathies Second, it is pointed out that, according and amending Decision 94/474/EC, 13 to its wording, Article 10 of Directive which came into force on 1 May 1998. 90/425 presupposes that there has been an outbreak of disease. Scrapie, however, is not a new disease. It is simply the knowl- 11 — OJ 199- L 216, p. 95. 12 — OJ 2000 L. 158, p. 7 6. edge as to the dangers which may be posed 13 _ OJ 1998 I. 122, p. 59. by scrapie that is new.

61. The Court, however, has already ruled that the existence of new information on 59. The Court has ruled, in regard to the the dangers posed by a disease known of parallel provision in Article 9 of Directive for a long time is comparable to the 89/662, that a Member State may prohibit outbreak of a new disease. This justifies imports of bovine heads containing risk the adoption of safeguard measures in material in regard to BSE by way of a accordance with Directive 90/425. 17 Appli- precautionary measure of protection. 14 cation of Article 10 of Directive 90/425 in The present case also concerned action the present case will thus not fail on this taken by the Member State of destination, objection either. not that of dispatch, and the measure was also adopted on a precautionary basis and not as the result of any check carried out. The situation in respect of which the Court ruled is thus comparable to that in the present case. The misgivings expressed by ILCO do not therefore, according to the 62. This result is in line with legislative case-law, stand in the way of application of practice and case-law to date. In the Article 10 of Directive 90/425. absence of a specific legal basis, the Com-

15 — See the BSE Vademecum, 3rd edition 1998, paragraph 6, which can be consulted on the internet page of the Commission's Health and Consumer Protection Director- ate-General at www.europa/comm/dgs/health_consumer/ index_en.htm. 60. It still remains to be examined whether 16 — See the introduction to cited Press Notice 01/357 on Article 10 is rendered inapplicable on the 'Questions and Answers on TSE in Sheep and Goats' of 7 November 2001, which can be consulted on the internet page of the Commission's Health and Consumer Pro- tection Directorate-General at www.europa/comm/dgs/ health_consumer/index_en.htm. 14 — Case C-477/98 Eurostock [2000] ECR I-10695, paragraph 17 — Case C-180/96 United Kingdom v Commission [1998] 79. ECR I-2265, paragraph 53.

66. It is clear from the recitals in the preamble to the order of 24 December 1996 that that order was adopted pending the enactment of measures of Community law. The Italian Government's letter of 24 July 1997, submitted by the Commis- sion, emphasises expressly that the measure was taken only because there were no 64. It is for those reasons necessary to appropriate Community rules and was proceed on the basis that Article 10 of intended to apply only as a precautionary provision pending the adoption of Com- 18 — Case C-180/96 United Kingdom v Commission, cited in munity legislation. The Italian legislature footnote 17, and Case C-157/96 National Farmers Union also kept to this undertaking, as the [1998] ECU I-2211. which related to Commission Decision 96/239/EC, and Case C-52/92 Commission v measure was repealed on 15 June 1998 Portugal [1993] ECR I-2961, which concerned Commis- sion Decision 91/237/EEC. after the Commission had adopted 19 — Council Directive 64/432/EEC of 26 June 1964 on animal Decision 98/272/EC, in force from 1 May health problems affecting ultra-Community trade in bov- 1998. The measure was thus indeed a ine animals and swine (OJ. English Special Edition 1963-1964, p. 164). precautionary measure.

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originated from a holding that had been another Member State in so far as it is TSE-free for six years. incompatible with Community law. The parties to the main proceedings base this view of the law on the judgments in Schlachtpluintvee and Unilever. 27

2. Applicability of the law of another Member State that is contrary to Commu- nity law (b) Appraisal

79. The second part of the second question is posed only in the event that the require- ment that a TSE declaration be provided is 82. The Court has consistently ruled that a incompatible with Community law. As the court may not apply those provisions of its Italian provisions are compatible with own legal system that are incompatible Community law, there is strictly no need with Community law. So far as can be to address this part of the question, which ascertained, however, the case-law to date will accordingly be examined in what has always involved the conflict between follows only by way of alternative sub- Community law and the law of the court mission in the event that the Court should before which the dispute in the main not accept the above solution. proceedings has been brought. The present case is distinguishable in so far as it relates to a conflict between Community law and the law of a Member State other than that in which the dispute is being dealt with. The question thus arises as to whether the 80. The High Court wishes to know primacy of Community law holds good whether the courts of a Member State also in the context of the application of may refrain from applying, in civil proceed- foreign law, with the result that foreign law ings involving contractual obligations, a at variance with Community law must be legal provision of another Member State left unapplied. that is contrary to Community law.

that may stand in the way of securing the own legal system, to refrain from applying primacy of Community law. Examination legal measures at variance with Commu- of foreign legal rules is characteristic of nity law. If that court were not to refrain cases involving private international law. from applying Italian legal rules that are The result is merely that the court of the contrary to Community law, its decision State in which the legal dispute has been would breach Community law and give rise brought applies the provisions of the law of to an infringement of the Treaty by the another State. In the dispute in the main United Kingdom. proceedings in the present case, the English court is applying Italian law. Since the judgment in the Granitai case, 28it has been settled law that all Italian courts, and not only the Corte Costituzionale, are obligated to disapply Italian law to the extent to 86. Merely for the sake of completeness, I which it is incompatible with Community should point out that the question sub- law. There is no obvious reason why an mitted does not give any cause for 'special English court should not proceed in the vigilance' on the Court's part within the same manner when applying Italian law. meaning of the Foglia v Novello decision. 29 There are no obvious reasons why the Court should be overly cautious in assessing national provisions of a Member State other than that of the referring court, which is a problem arising in Der Weduwe, 84. This result, which follows from the a case still pending before the Court. 30 functions and duties of a court, finds support in the argument that the primacy of Community law can best be guaranteed in this manner. The primacy of Community law holds true in both the English and the 87. On the basis of these considerations, Italian legal systems. Measures of national the answer to the second part of the law that are contrary to Community law question should be that, in civil proceedings cannot be applied. The fact that the law is between an exporter and an importer applied by the court of another Member concerning their contractual obligations State does not deprive it of its link to regarding the importation of sheep, a Community law. national court may refrain from applying a provision of the national law of the State of destination providing that the accom- panying health certificate must include a TSE declaration in so far as that provision is incompatible with Community law. This, 85. Account must also be taken of the fact however, is not necessary in the present that the English court is required, under its case.

(2) Where a consignment of sheep is exported from one Member State to another, in which the sheep are intended for slaughter on arrival and where the accompanying health certificate is a Model II certificate, national law declaring the importation to be unlawful on the ground that the certificate is not a Model I certificate may not be applied.

(3) On their proper construction, Articles 28 EC to 30 EC, 152 EC, 6 EC and 174 EC and Directives 90/425/EEC and 91/68 did not, in July 1997, preclude national rules which required the health certificates issued pursuant to Directive 91/68 also to include certification that the animals concerned originated from a holding that had been TSE-free for six years. I-7117