Important legal notice

61986C0131

European Court reports 1988 Page 00905

Opinion of the Advocate-General

Mr President, Members of the Court, 1 . In support of its action for the annulment of Council Directive 86/113/EEC of 25 March 1986 laying down minimum standards for the protection of laying hens kept in battery cages ( Official Journal 1986, L 95, p . 45 ), the United Kingdom has made the following two submissions : ( 1 ) The contested directive is based solely on Articles 42 and 43 of the EEC Treaty to the exclusion of Article 100 . ( 2 ) The version of the directive notified to it and published in the Official Journal differs from the version voted on and adopted by the Council . 2 . The fact that the United Kingdom' s action is thus founded on considerations of legal basis, procedure and form rather than of substance has led the Council to question its interest in bringing proceedings, especially since the United Kingdom states that it trusts that should the contested directive be annulled the Council will, in order to achieve the aims in question, adopt a new directive largely identical in content ( paragraph 10 of the application ) and that it would in principle approve of the adoption of such a measure ( paragraph 28 of the reply ). 3 . On that point I need merely refer to the judgment of 26 March 1987 in Case 45/86 Commission v Council (( 1987 )) ECR 1493, in which the Court held that "concerning the Commission' s interest in bringing proceedings ... it is sufficient to observe that Article 173 of the EEC Treaty draws a clear distinction between the right of action available to the Community institutions and the Member States, on the one hand, and that available to natural or legal persons, on the other, in so far as the first paragraph of Article 173 gives the Commission and any Member State the right to bring an action for annulment to challenge the legality of any Council regulation without making the exercise of that right conditional on proof of an interest in bringing proceedings" ( paragraph 3 ). 4 . What was true in that case in respect of an action for annulment brought by the Commission against a Council regulation is equally true in this case, brought by a Member State against a Council directive, since Article 173 puts the institutions and the Member States on the same footing and concerns all acts of the Council and the Commission with the sole exception of recommendations and opinions . The action of the United Kingdom is therefore admissible . A - The legal basis of Directive 86/113/EEC 5 . In its judgment of 26 March 1987 the Court pointed out that where the dispute as to the correct legal basis concerns Treaty articles laying down different rules for the adoption of measures by the Council, it is not purely formal in scope inasmuch as the choice of the legal basis may have consequences for the content of such measures ( paragraph 12 ). 6 . That is the case here, since under Article 43 the Council may act by a qualified majority, whereas Article 100 requires unanimity . 7 . The Court had previously stated 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 simply on an institution' s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review" ( paragraph 11 ). 8 . It therefore seems prudent, in examining this dispute, not to attach too much importance to the more or less standard practice of adopting most directives in the veterinary, feed and phytosanitary sectors on the basis of both Article 43 and Article 100 . 9 . That practice has never been approved by the Commission, and its proposals in such matters continue to be based solely on Article 43 . Furthermore, a number of Member States have accepted the practice only in the context of a political compromise reached within the Agriculture Council at its meeting in June 1964 . 10 . Indeed, it appears from the document of that date submitted by the Council as Annex II to its Rejoinder that "the Belgian, French, Italian, Luxembourg and Netherlands delegations consider that these directives (( concerning matters of health and health policy affecting intra-Community trade in fresh meat and in bovine animals and swine )) should be based exclusively on Article 43 . They have agreed to the solution adopted only in order to make it possible - owing to the importance of these texts for the creation of a single market in the relevant areas - for these directives to enter into force at the earliest opportunity ..." and that "all the delegations retain their complete freedom as regards the legal basis for any directives which might be adopted in the same or similar fields ... thereafter ". 11 . The same is true of those few directives concerned more directly with animal welfare, mentioned at page 7 of the Council' s defence and page 19 of its rejoinder . 12 . As for 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 ), its value as a legal precedent seems to me to be even more dubious . It is odd to note that it is based additionally on Article 100, although the only acts which the Council may adopt on that basis are 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 Articles 43 and 100 .) 13 . Having said that, what are the objective factors which should have guided the Community institutions in their choice of the legal basis for the contested directive? 14 . First of all, as its title indicates and as Article 1 states, it lays down minimum standards for the protection of laying hens kept in battery cages . These standards concern on the one hand the dimensions of battery cages ( Article 3 ) and on the other the conditions for laying hens kept in battery cages ( Article 4 ), as laid down in the annex to the directive . 15 . The annex contains provisions concerning in particular the form and type of materials employed for constructing cages, the design and size of cage openings, insulation, ventilation, lighting, the maintenance of equipment, feeding and rest periods for the animals, their care and the inspections which must be made . Virtually all those provisions are intended to avoid any injury or unnecessary suffering to the animals and to safeguard their health and welfare . 16 . Furthermore, there can be no doubt that the Council' s objective, from the political point of view, so to speak, was indeed that of improving the lot of laying hens . 17 . That concern may be seen clearly in the Council resolution of 22 July 1980 on the protection of layer hens in cages ( Official Journal 1980, C 196, p . 1 ), which gave political impetus to the Community' s activity which resulted in the adoption of the contested directive . The Council agreed that "the keeping of layer hens in cages must be subject to compliance with minimum standards and criteria established in order to ensure the protection of these animals ". 18 . From the legal point of view, however, the Council was obliged to recognize, as it did as early as 19 June 1978 in its decision approving the European Convention for the Protection of Animals kept for Farming Purposes, that "the Protection of Animals is not in itself one of the objectives of the Community ". 19 . How, then, could measures to protect laying hens be taken under the EEC Treaty? 20 . The reply to that question may be found in the same decision, since the Council stated that "there are disparities between existing national laws on the protection of animals kept for farming purposes which may give rise to unequal conditions of competition and which may consequently have an indirect effect on the proper functioning of the common market" and that "the Convention deals with matters which are covered by the common agricultural policy ". 21 . These remarks also explain why the Member States wished to act together, in the framework of the Community, rather than in the framework of the Council of Europe or separately . 22 . The recital in the preamble to that decision concerning disparities in national legislation is repeated word for word in the Council resolution of 22 July 1980 . It also appears in a slightly more elaborate form in the Commission' s proposal for a directive laying down minimum standards for the protection of laying hens kept in battery cages and in Document 11489/85 of the General Secretariat, Agrileg 252 of 18 December 1985, on the basis of which the Council voted at its meeting on 25 and 26 March 1986 . ( 1 ) That document, like the Commission proposal, goes on to state that "there is therefore a need to establish priority parameters and to define common minimum requirements 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 ..." 23 . In its judgment of 1 April 1982 in Joined Cases 141 to 143/81 Holdijk (( 1982 )) ECR 1299, the Court, for its part, had clearly shown that problems of animal welfare were to be assessed in the more general context of the establishment and functioning of the common market, particularly in the field of agriculture . 24 . With regard to this case, it appears from the documents I have just cited that the Council based its power to adopt the directive on laying hens on the existence of disparities in national legislation and on the harmful consequences which they might have for the operation of the common market in agricultural products . 25 . The United Kingdom infers from this that the directive should have been based on both Article 43 and Article 100, since "the necessity of mentioning the article empowering the author to adopt a binding Community measure is particularly pressing 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" ( paragraph 15 of the application ). 26 . That assertion cannot be disputed, but I think it could only have significant consequences in this case if the Treaty had intended to give the Community institutions the task of establishing a common policy on animal welfare and if Article 100 were the provision defining the Community' s powers in that respect . 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 requires the Council, acting unanimously on a proposal from the Commission, to adopt "directives for the approximation of such provisions laid down by law, regulation or administrative action in Member States as directly affect the establishment or functioning of the common market ". 28 . It is thus because it makes possible the approximation of the Member States' legislation that Article 100 might come into consideration, and not because it makes it possible to protect animals . 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 Article 43 . Article 100 is not the only provision of the Treaty which allows the Community institutions to harmonize national legislation . The approximation of laws is an instrument used by the Treaty for the purposes of different common policies . 30 . It is sufficient in that regard to refer to 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 ( mutual recognition of diplomas and access to activities as self-employed persons ) and 66 ( freedom to provide services ). Only Article 99, on the harmonization of legislation concerning turnover taxes, excise duties and other forms of indirect taxation, 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 Articles 100 and 101 and must therefore be given priority . 31 . The reference in Article 99 to Article 101 leads me to wonder, moreover, whether Article 100 is really the provision which should contend with Article 43 in this case, 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 qualified majority, the necessary directives where a difference between the provisions laid down by law, regulation or administrative action in Member States is distorting the conditions of competition in the common market and the resultant distortion needs to be eliminated . 32 . In any event, the Council is correct to emphasize that by virtue of the maxim lex specialis derogat legi generali Article 100 ( and in my view Article 101 too ) should apply only in the absence of any specific provision permitting the harmonization of national legislation, in particular by means of directives . I should point out that the Court has already upheld that principle, in holding in its judgment of 8 April 1976 in Case 43/75 Defrenne v Sabena (( 1976 )) ECR 455, that "in the absence of any express reference in Article 119 to the possible action to be taken by the Community for the purposes of implementing the social policy, it is appropriate to refer to the general scheme of the Treaty and the courses of action for which it provided, such as those laid down in Articles 100, 155 and, where appropriate, 235" ( paragraph 63 ). 33 . Having regard to all the foregoing remarks, the problem with which the Court 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 legislationsuch as those which appear in the directive? If Article 43 constitutes an appropriate and sufficient legal basis, recourse to Article 100 or Article 101 is unnecessary . 34 . What is the position, then, in regard to Article 43? 35 . ( a ) That article does not use the expression "harmonization of legislation", but to my mind it grants the institutions powers even broader than those conferred by Articles 100 and 101 since Article 43 ( 3 ) provides as follows : "The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organizations by the common organization provided for in Article 40 ( 2 ) if : ( a ) ... ( b ) such an organization ensures conditions for trade within the Community similar to those existing in a national market ". 36 . As a matter of principle, therefore, right from its establishment a common organization of the market should create conditions similar to those existing in a national market . If that is not the case, the institutions have the power and even the duty to intervene at any time in order to supplement the common organization of the market or to prevent measures in force in certain Member States ( in this case, Denmark and the United Kingdom ) or measures which may be adopted from jeopardizing, on one point or another, the uniformity of the market . 37 . For that purpose the Council may use regulations as well as directives ( Article 43 ( 2 ) in fine ). 38 . ( b ) It might be asserted, without fear of error, that the intention of the authors of the Treaty was that "the common organization of agricultural markets" should lead to the harmonization of national legislation even if it did not take the form of a "European market organization" ( Article 40 ( 2 ) ( c ) ). Indeed, there can be no more complete harmonization than a common policy based on common rules applicable in all Member States . 39 . As the Court itself pointed out in its judgment of 21 February 1979 in Case 138/78 Stoelting v Hauptzollamt Hamburg-Jonas (( 1979 )) ECR 713, "Article 43 of the Treaty must be interpreted in the light of Article 39, which sets out the objectives of the common agricultural policy, and Article 40, which regulates its implementation by providing inter alia that in order to attain the objectives set out in Article 39 a common organization of agricultural markets shall be established and that this organization may include all measures required to attain the said objectives" ( paragraph 4 ). 40 . In that judgment the Court upheld the legality of the regulation which, on the basis of Article 43, introduced the co-responsibility levy in the dairy sector . Similarly, in its judgment of 24 October 1973 in Case 5/73 Balkan v Hauptzollamt Berlin-Packhof (( 1973 )) ECR 1091 it held that monetary compensatory amounts should normally be introduced by virtue of the powers conferred on the Council by Articles 40 and 43 . 41 . It should also be noted that under Article 40 ( 2 ) ( a ) the common organization of the market may be limited to common rules on competition .

B- Procedural Irregularities

What are we to think of this?

"The Council shall be assisted by a General Secretariat under the direction of a Secretary-General ."

"where, in pursuance of this Treaty, the Council acts on a proposal from the Commission, unanimity shall be required for an act constituting an amendment to that proposal" ( Article 149 ).

"the texts of the acts adopted by the Council shall be signed by the President-in-Office at the time of their adoption and by the Secretary-General ."

(*) Translated from the French .

( 1 )

Since the preamble to the directive as it was notified is disputed by the United Kingdom, I shall base my reasoning solely on the preamble to the text submitted by the Committee of Permanent Representatives to the Council .

( 2 )

Council Regulation No 2771/75 of 29 October 1975, Official Journal 1975, L 282, p . 49 .

( 3 )

Council Regulation No 2772/75 of 29 October 1975, Official Journal 1975, L 282, p . 56 .

( 4 )

See Council Regulation No 1831/84 of 19 June 1984 ( Official Journal 1984, L 172, p . 2 ) and Council Regulation No 3341/84 of 28 November 1984 ( Official Journal 1984, L 312, p . 7 ).

( 5 )

Commission Regulation No 1943/85 of 12 July 1985 amending Regulation No 95/69 as regards certain marketing standards for eggs ( Official Journal 1985, L 181, p . 34 ).

( 6 )

See the judgment of 29 November 1978 in Case 83/78 Pigs Marketing Board v Redmond (( 1978 )) ECR 2347, in particular at paragraph 55 .

( 7 )

See the thirteenth recital in the preamble to Council Regulation No 2771/75, supra, footnote 2 .

( 8 )

Rules of Procedure adopted by the Council on 24 July 1979 on the basis of Article 5 of the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities ( 79/868/ECSC, EEC, Euratom, Official Journal 1979, L 268, p . 1 )

( 9 )

Article 4 of the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities ( Official Journal 1967, L 152, p . 2 ).

( 10 )

Judgment of 26 March 1987 in Case 45/86 Commission v Council (( 1987 )) ECR 1493, at paragraph 5 .