1 BY THREE JUDGMENTS DELIVERED ON 21 MAY 1981 , WHICH WERE RECEIVED AT THE COURT ON 5 JUNE 1981 , THE KANTONGERECHT ( CANTONAL COURT ) APELDOORN REFERRED TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION FOR A PRELIMINARY RULING ON THE INTERPRETATION OF COMMUNITY LAW IN ORDER TO ENABLE IT TO JUDGE WHETHER THE PROVISIONS OF NETHERLANDS LAW ON ENCLOSURES FOR FATTING CALVES ARE COMPATIBLE WITH THAT LAW .
2 THE WORDING OF THE QUESTION WAS IDENTICAL IN THE THREE JUDGMENTS WHICH WERE DELIVERED IN CRIMINAL PROCEEDINGS AGAINST A FARMER , A DEALER IN FODDER AND A COMPANY PRODUCING ANIMAL FEEDING-STUFFS , ALL OF WHOM ARE ACCUSED OF HAVING KEPT FATTING CALVES IN ENCLOSURES WHICH DID NOT MEET THE REQUIREMENTS OF ARTICLE 2 ( B ) OF THE ROYAL DECREE OF 8 SEPTEMBER 1961 ( STAATSBLAD ( OFFICIAL GAZETTE ) 296 ) IMPLEMENTING ARTICLE 1 OF THE LAW ON THE PROTECTION OF ANIMALS , IN SO FAR AS THE DIMENSIONS OF THE ENCLOSURES WERE SUCH THAT THE ANIMALS WERE NOT ABLE TO LIE DOWN UNHINDERED ON THEIR SIDES .
3 THE KANTONGERECHT CONSIDERED THAT TO DEAL WITH THOSE CASES IT WAS ESSENTIAL TO DETERMINE WHETHER , WITH REGARD TO THE KEEPING OF FATTING CALVES , THAT DECREE WAS CONTRARY TO OR INCOMPATIBLE WITH THE EEC TREATY AND IF SO WHETHER THAT WOULD ALSO BE THE CASE IF A SET OF SPECIFIC RULES , WHICH STILL DID NOT EXIST , WERE ADOPTED IN AN AMENDED DECREE IN THAT REGARD . FOR THAT REASON , THE COURT INSTRUCTED THE OFFICIER VAN JUSTITIE ( PUBLIC PROSECUTOR ) TO SEND THE FILE ON THE CASE TO THE COURT OF JUSTICE AND TO ASK THE COURT TO GIVE A RULING ON THAT QUESTION .
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 .
5 IN THAT REGARD , IT SHOULD BE NOTED THAT GUIDELINES OF THAT KIND ARE ALREADY TO BE FOUND IN THE CASE-LAW OF THE COURT . THUS , IN ITS JUDGMENT OF 16 DECEMBER 1981 ( CASE 244/80 FOGLIA V NOVELLO ( 1981 ) ECR . . .), THE COURT STATED THAT NATIONAL COURTS MUST EXPLAIN ON WHAT GROUNDS THEY CONSIDER AN ANSWER TO THEIR QUESTIONS TO BE NECESSARY FOR JUDGMENT OF THE MAIN PROCEEDINGS , IF THOSE GROUNDS ARE NOT UNEQUIVOCALLY EVIDENT FROM THE FILE ON THE CASE . FURTHERMORE , IN ITS JUDGMENT OF 12 JULY 1979 ( CASE 244/78 , UNION LAITIERE NORMANDE ( 1979 ) ECR 2663 ), THE COURT INDICATED THAT THE NEED TO GIVE AN INTERPRETATION OF COMMUNITY LAW WHICH WAS OF USE TO THE NATIONAL COURT MADE IT ESSENTIAL TO DEFINE THE LEGAL CONTEXT IN WHICH THE INTERPRETATION REQUESTED SHOULD BE PLACED . IN ITS JUDGMENT OF 10 MARCH 1981 ( JOINED CASES 36 AND 71/80 , IRISH CREAMERY MILK SUPPLIERS ASSOCIATION ( 1981 ) ECR 735 ), IT ADDED THAT IT MIGHT BE CONVENIENT , IF CIRCUMSTANCES PERMITTED , FOR THE FACTS OF THE CASE TO BE ESTABLISHED AND FOR QUESTIONS OF PURELY NATIONAL LAW TO BE SETTLED AT THE TIME WHEN THE REFERENCE WAS MADE TO THE COURT OF JUSTICE .
6 AS THE DANISH GOVERNMENT HAS RIGHTLY EMPHASIZED , THE INFORMATION FURNISHED IN THE DECISIONS MAKING THE REFERENCES DOES NOT SERVE ONLY TO ENABLE THE COURT TO GIVE HELPFUL ANSWERS BUT ALSO TO ENABLE THE GOVERNMENTS OF THE MEMBER STATES AND OTHER INTERESTED PARTIES TO SUBMIT OBSERVATIONS IN ACCORDANCE WITH ARTICLE 20 OF THE PROTOCOL ON THE STATUTE OF THE COURT ( EEC ). IT IS THE COURT ' S DUTY TO ENSURE THAT THE OPPORTUNITY TO SUBMIT OBSER 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 PRELIMINARY 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 .
THE ANSWER TO BE GIVEN
9 AS IT STANDS AT PRESENT , COMMUNITY LAW CONTAINS NO SPECIFIC RULES FOR THE PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES . ACCORDINGLY , THE REVIEW REQUESTED IN THE REFERENCE FOR A PRELIMINARY RULING MAY BE CONFINED TO THE GENERAL RULES ON THE FREE MOVEMENT OF GOODS AND ON THE COMMON ORGANIZATIONS OF THE MARKETS IN THE AGRICULTURAL SECTOR .
10 ACCORDING TO ALPURO , THE DEFENDANT COMPANY IN ONE OF THE CASES BEFORE THE NATIONAL COURT , THE ENCLOSURES NOW IN USE IN THE NETHERLANDS FOR FATTING CALVES DO NOT ENABLE THE ANIMALS TO LIE DOWN UNHINDERED ON THEIR SIDES AND THE MAJORITY OF THE ENCLOSURES ALSO FAIL TO CONFORM TO THE MORE SPECIFIC RULES REGARDING DIMENSIONS CONTAINED IN THE DRAFT DECREE REFERRED TO BY THE NATIONAL COURT . ALTHOUGH THE NETHERLANDS RULES CONCERN ONLY THE PRODUCTION OF CALVES IN THE NETHERLANDS AND THEREFORE IN NO WAY AFFECT IMPORTS INTO THAT MEMBER STATE , THEY NEVERTHELESS , ACCORDING TO THE COMPANY , HAVE AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON EXPORTS AND THUS INFRINGE ARTICLE 34 OF THE TREATY . SINCE 90% OF VEAL PRODUCTION IN THE NETHERLANDS IS INTENDED FOR EXPORT , ABOVE ALL TO OTHER MEMBER STATES , THE IMPOSITION ON NETHERLANDS PRODUCERS OF CONDITIONS STRICTER THAN THOSE IMPOSED ON PRODUCERS IN OTHER MEMBER STATES IS NECESSARILY LIABLE TO AFFECT THE OPERATION OF THE COMMON ORGANIZATIONS OF THE MARKETS WITH REGARD NOT ONLY TO VEAL BUT ALSO TO MILK PRODUCTS , SINCE SKIMMED MILK IS AN ESSENTIAL FEEDING-STUFF FOR FATTING CALVES . SUCH CONDITIONS THEREFORE ALSO CONTRAVENE THE COMMUNITY RULES ESTABLISHING THE COMMON ORGANIZATIONS OF AGRICULTURAL MARKETS , AND ALSO ARTICLE 40 ( 3 ) OF THE TREATY ACCORDING TO WHICH SUCH ORGANIZATIONS ARE TO EXCLUDE ANY DISCRIMINATION BETWEEN PRODUCERS IN THE COMMUNITY .
11 AS REGARDS ARTICLE 34 OF THE TREATY , THE COURT HAS REPEATEDLY HELD ( MOST RECENTLY IN ITS JUDGMENT OF 14 JULY 1981 IN CASE 155/80 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 IN QUESTION . THAT IS NOT THE CASE WHERE A PROVISION LAYS DOWN THE MINIMUM STANDARDS FOR ENCLOSURES FOR FATTING CALVES , WITHOUT MAKING ANY DISTINCTION AS TO WHETHER THE ANIMALS OR THEIR MEAT ARE INTENDED FOR THE NATIONAL MARKET OR FOR EXPORT .
12 AS REGARDS THE RULES ON THE COMMON ORGANIZATION OF THE AGRICULTURAL MARKETS , IT SHOULD IN THE FIRST PLACE BE EMPHASIZED THAT THE ESTABLISHMENT OF SUCH AN ORGANIZATION PURSUANT TO ARTICLE 40 OF THE TREATY DOES NOT HAVE THE EFFECT OF EXEMPTING AGRICULTURAL PRODUCERS FROM ANY NATIONAL PROVISIONS INTENDED TO ATTAIN OBJECTIVES OTHER THAN THOSE COVERED BY THE COMMON ORGANIZATION , EVEN THOUGH SUCH PROVISIONS MAY , BY AFFECTING THE CONDITIONS OF PRODUCTION , HAVE AN IMPACT ON THE VOLUME OR THE COST OF NATIONAL PRODUCTION AND THEREFORE ON THE OPERATION OF THE COMMON MARKET IN THE 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 .
13 IN THOSE CIRCUMSTANCES , THE ABSENCE OF ANY PROVISION FOR THE PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES IN THE REGULATIONS ESTABLISHING COMMON ORGANIZATIONS OF THE AGRICULTURAL MARKETS CANNOT BE INTERPRETED AS RENDERING THE NATIONAL RULES IN THAT FIELD INAPPLICABLE PENDING THE POSSIBLE ADOPTION OF COMMUNITY PROVISIONS AT A LATER STAGE . SUCH AN INTERPRETATION WOULD BE INCOMPATIBLE WITH THE COMMUNITY ' S CONCERN FOR THE HEALTH AND PROTECTION OF ANIMALS , AS EVINCED , INTER ALIA , BY ARTICLE 36 OF THE TREATY AND BY COUNCIL DECISION NO 78/923/EEC , OF 19 JUNE 1978 , CONCERNING THE CONCLUSION OF THE EUROPEAN CONVENTION FOR THE PROTECTION OF ANIMALS KEPT FOR FARMING PURPOSES ( OFFICIAL JOURNAL 1978 , L 323 , P . 12 ).
14 IT IS APPROPRIATE THEREFORE TO STATE IN REPLY TO THE QUESTION REFERRED TO THE COURT FOR A PRELIMINARY RULING THAT , 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 .
COSTS
15 THE COSTS INCURRED BY THE GOVERNMENT OF THE NETHERLANDS , BY THE DANISH GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE DEFENDANTS IN THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .
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 .
