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Towards the end of 1995 the High Court of England and Wales referred to
the European Court for a preliminary ruling in the case R v. Minister
of Agriculture Fisheries and Food ex parte Compassion in World Farming.[1] This reference arose in the context of an
action for judicial review of a ministerial decision refusing to
restrict the export of veal calves from the United Kingdom to other Member
States of the European Union. The minister's decision was predicated upon legal
as well as policy considerations. In particular, his refusal to institute an
export ban reflected his concern to comply with the requirements of Articles 29
and 30 (formerly Articles 34 and 36) of the EC Treaty. The action before the
High Court was brought by a public interest association, acting against a
backdrop of heightened public opposition in the United Kingdom to the 'veal
crate system', or the raising of calves 'in individual box-like structures
where they remain until they are removed for slaughter approximately five
months later'. [2] This system is deployed in a
number of the Member States in the European Union, notably in France.
[3] Public opposition in the United Kingdom was
manifested in widespread protests and demonstrations at those seaports and
airports through which exports of veal calves were routed. Public antipathy was
further reflected in the introduction of a prohibition on the use of the
veal-crate system in the United Kingdom and Northern Ireland.
[4]
The veal-crate system is not
entirely unregulated at a European level. In 1976 a European Convention on
the Protection of Animals kept for Farming Purposes (the Convention) was
adopted within the framework of the Council of Europe. It was approved on
behalf of the European Community in 1978. [5] A
Recommendation concerning cattle was promulgated pursuant to this Convention in
1988. More recently, following intervention by the European Parliament, the
Community adopted a directive laying down minimum standards for the protection
of calves. [6] The first question referred to
the European Court in the case under discussion related to the validity of this
directive, and specifically to its compatibility with the Convention and
subsequent Recommendation. The Court disposed of this issue rapidly, finding
that 'consideration of the Directive has disclosed no factor of such a kind as
to affect its validity'. [7] This reflects both
the breadth of discretion which states enjoy under the Convention, and the
non-binding nature of the Recommendation.
The second question
referred raised issues of more profound significance, concerning the
construction of Community rules on the free movement of goods. Specifically,
the High Court sought to ascertain whether Member States might rely upon the
Article 30 EC exception (formerly Article 36) in order to justify an export ban
which, the parties accepted, constituted a quantitative restriction within the
meaning of Article 29 EC (formerly Article 34). [8] The Court decided that they could not. It did so
exclusively on the basis of its construction of the 1991 directive, without
passing comment upon the scope of the relevant Treaty rules. At one level, the
Court's ruling is unremarkable in view of the (unusual) terms of the directive.
Article 11(2) of this provides that Member States may, from a specified date,
subject to the general rules of the Treaty and to an obligation to inform the
Commission, maintain or apply within their territories stricter rules
for the protection of calves than those laid down in the directive. Thus, in
this case, the directive itself explicitly laid down territorial limits to the
application of more stringent Member State standards. It established 'a right
for Member states to impose [only] on their own undertakings standards
which are higher, without the possibility to oppose free movement',
[9] on the basis of the failure of trading
partners to comply with these higher standards. In this respect Compassion
in World Farming may be compared to the Gallaher case.
[10] In Gallaher it was held that while
the United Kingdom could lawfully impose higher standards on its own
undertakings but could not block the importation of goods from other Member
States, where these complied at least with the minimum standards laid down by
the directive on tobacco labelling. This followed from the text of the
directive itself which, having been based on Article 95 (formerly Article
100a), contained a 'market access' clause. This provides that Member States may
not, for reasons of labelling, prohibit or restrict the sale of products which
comply with the directive.
While relatively (legally) uncontentious
in terms of outcome, the veal calves case highlights an issue of enormous
significance for the trade/environment debate. This concerns the legal capacity
of states to restrict trade with a view to protecting environmental resources
situated outside of their territory. Almost invariably this issue arises in a
context of the application of domestic 'process' as opposed to 'product'
standards; standards pertaining not to the characteristics of the product
itself but to its manner of production. This is exemplified by the veal calves
case, in that the environmental issue arising concerned not the quality of the
veal produced, but the quality of the conditions under which the calves were to
be raised. Yet this case not merely highlights this issue (albeit in
circumstances which are unusual concerned as it is with exports rather than
imports, and with a directive which is unusually explicit in its territorial
scope). It also offers an important insight into how it is that the European
Court has avoided addressing this crucial issue in the context of the EC Treaty
environmental 'exceptions'. [11]
The
1991 veal calves directive lays down minimum standards. Minimum harmonization
is a legislative technique frequently employed by the Community today. In some
areas, such as environmental policy, the Community only enjoys competence to
enact minimum standards. [12] Even in other
areas '...consideration should be given to setting minimum standards, with
freedom for Member States to set higher standards...where this would not
conflict with the objectives of the proposed measure or with the Treaty'.
[13] It has been said of minimum harmonization
measures that they establish a 'floor' of obligations below which Member States
may not sink. The 'ceiling', circumscribing the legitimate scope of more
stringent measures introduced by Member States, is constituted by the EC Treaty
and in particular (in the context of goods) by Articles 28-30 (formerly 30-36)
thereof. [14] This may be illustrated by a
recent case in the area of trade and environment, Aher-Waggon GmbH v.
Bundesrepublik Deutschland.[15] The
facts of this case were as follows.
In 1992 the German Federal Office
of Aviation refused to grant registration for a propeller-driven aircraft
previously registered in Denmark. It did so on the basis that the aircraft did
not comply with domestic German standards regulating noise emissions. The
aircraft did, however, comply with the minimum standards laid down in the
relevant Community directives. The company which owned the aircraft sought
judicial review of this decision and the national court hearing the action
referred to the European Court for a preliminary ruling. Significantly, for the
purposes of the present discussion, the European Court noted that the Community
directive at issue 'merely lays down minimum requirements' and 'allows Member
States to impose stricter noise limits'. [16]
However, in keeping with Weatherill's conception of minimum harmonization
above, the Court went on to observe that Member State autonomy above the
'floor' established by the Community directives on aircraft emission limits is
not without limits. It is necessary to consider whether the more stringent
national standards enacted are consistent with other provisions of Community
law, [17] and in particular with the Treaty
provisions on the free movement of goods. In this respect the Court observed:
National legislation of the kind at issue...restricts intra-Community trade since it makes the first registration in national territory of aircraft previously registered in a Member State conditional upon compliance with stricter noise standards than those laid down by the Directive, while exempting from those standards aircraft which obtained registration in national territory before the Directive was implemented. [18]
Consequently, prima facie, the measures were deemed to fall
within the scope of Article 28 (formerly Article 30). However, the European
Court went on to conclude that such measures were susceptible to justification
on the basis of considerations relating to public health and environmental
protection, both of which constitute mandatory requirements recognized by
Community law. The German measures were, the Court observed, neither
disproportionate nor more restrictive of trade than necessary. It is
significant in this respect that the German rules merely preclude the new
registration of aircraft in Germany where these do not comply with the more
stringent noise emission standards laid down in domestic law. They do not
preclude aircraft registered in other Member States, but not complying with
German law, from being used in German airspace or on German territory.
[19]
While Aher-Waggon raises
some interesting issues concerning the scope of the Community free movement
provisions, in terms of the manner in which the Court characterizes the
Community directive, and the relationship between the directive and the Treaty,
its approach is consistent with traditional conceptions of minimum
harmonization. In this it may be distinguished from the veal calves case. Here
the European Court while recognizing the 'minimum' nature of the obligations
laid down in the 1991 calves directive, insists that this directive is such as
to lay down 'exhaustively common minimum standards'.
[20] As the directive is deemed to constitute
an exhaustive harmonization measure (albeit one laying down minimum standards)
the Court, in keeping with previous jurisprudence, concludes that Member State
recourse to Article 30 (formerly Article 36) is precluded. The legality of the
national measures falls for determination in the light of the directive, this
being characterized in such a way as to represent both 'floor' and 'ceiling' in
terms of Member State obligations.
It is thus apparent,
paradoxically, that, in the view of the European Court, minimum harmonization
may be exhaustive in nature. Indeed in one earlier case the Court (bizarrely in
my view) specifically cites the existence of a minimum harmonization clause in
a directive as evidence of the fact that the measure is such as to exhaustively
regulate Member State powers in the field, and to exclude the application of
stricter national standards vis-à-vis imported goods, though in this
case the directive did not contain a market access clause.
[21] Again, by so doing, the Court side-steps
the issue of whether the national measure in question is compatible with the
Treaty rules on free movement. Interestingly, and perhaps significantly, this
case also concerns a national measure restricting trade with a view to
protecting an environmental resource situated outside of the territory
of the regulating state. [22] Specifically it
concerns a Dutch ban on the marketing of 'dead red grouse', a bird species not
native to the Netherlands and hunted in the United Kingdom in accordance with
the minimum standards laid down in the Wild Birds Directive.
[23]
While there is always a danger of
reading too much into a small number of cases, it does appear to be a
propensity on the part of the Court to characterize environmental directives
laying down minimum standards as exhaustive in nature, where the national
measure is concerned to promote environmental protection outside of the
territory of the regulating state, [24] even
where (c.f. Compassion in World Farming and Gallaher) the
directive not expressly establish the territorial limits to stricter national
measures. While the reasoning of the Court seems supremely contrived in the
context of wild birds directive, in that this contains an explicit minimum
harmonization clause, this approach has enabled the Court to avoid addressing
the politically contentious question of the territorial scope of Article 30
(formerly Article 36) and of the concept of mandatory requirements.
It should be observed that Gourmetterie was in one respect at least a
more difficult case than Compassion in World Farming. Whereas the calves
directive explicitly delimits the territorial scope of application of stricter
national measures, the wild birds directive does not. Consequently, there was,
in respect of the latter, considerable room for doubt as to whether the Dutch
ban was compatible with the directive. It is significant that the Court found
that it was not. The Court held, having regard to the objectives pursued by the
directive, that stricter measures could be enacted only in respect of bird
species occurring within the territory of the regulating state, or in respect
of species which are endangered or migratory which (according to the preamble
of the directive) constitute 'a common heritage of the Community'.
[25] Again, this construction may be
criticized as being textually strained, and misleading in that the directive
establishes a general system of protection for all wild birds.
[26] It does, however, hint at a skepticism on
the part of the Court as regards the legitimacy of trade restrictions adopted
with a view to protecting 'foreign' environmental goods, at least in so far as
these are not conceived as 'shared' - representing part of the common heritage
of humankind. In this way, just as 'the protection of consumers in other Member
States is not, as such, a matter for the Netherlands authorities',
[27] so too environmental interests may be
conceived as territorially bounded, except in the case of those defined as
concerning common or shared resources.
The above discussion has
exemplified the uncertainty which continues to characterize the Community law
approach to the issue of 'extra-territorial protection' in the context of the
trade/environment debate. It is testimony to the creativity of the Court's
reasoning that, as yet, it has not clarified the territorial scope of the EC
Treaty environmental 'exceptions'. The reticence of the European Court on this
point is not matched by a similar degree of restraint on the part of various
GATT panels. [28] This issue lay at the heart
of the two tuna/dolphin panel reports [29] and
arose again, more recently, in the context of the 'shrimp' panel report.
[30] It is to the latter that this paper will
now turn.
[1] Case C-1/96 [1998] ECR I-1251.
[2] Ibid, para. 23.
[3] See, by way of background, Elworthy, S.,
'Crated Calves and Crazy Cows: Live Animals and the Free Movement of Goods' in
Holder, J., The Impact of EC Environmental Law in the United Kingdom
(Wiley, 1997).
[4] This entered into
force in 1990. See, for the measures currently in force, Welfare of
Livestock Regulations (SI 1994 No 2126) and Welfare of Livestock
Regulations (Northern Ireland) (SR 1995 No 172).
[5] Council Decision 78/923/EEC OJ 1978 L323/12.
[6] Council Directive 91/629/EEC OJ
1991 L240/28
[7] Supra n. 1, para. 37.
[8] In an earlier case the High Court
had highlighted difficulties in determining whether Article 29 (formerly
Article 34) applies to an export ban in the light of the Groenveld case
(Case 15/79 [1979] ECR 3409). This limited the scope of Article 29 (34) to
discriminatory measures, c.f. Article 28 (formerly Article 30). See R v.
Minister of Agriculture, Fisheries and Food,ex parte
Roberts [1991] 1 CMLR 555 and Jarvis, M., The Application of
EC Law by National Courts (OUP, 1998) chapter 4, for a full discussion of
this point.
[9] Bernard, N., 'The
Future of European Economic Law in the Light of the Principle of Subsidiarity'
(1996) 33 CMLRev. 633, p. 646.
[10]
Case C-11/92, R v. Secretary of State for Health,ex parte
Gallaher, Imperial Tobacco Ltd., Rothmans Tobacco Ltd. [1993]
ECR I-3545.
[11] I place the word
exceptions in inverted commas because here I have in mind both Article 30
(formerly Article 36), which is an explicit exception to the Treaty prohibition
on quantitative restrictions on imports and exports and measures with
equivalent effect, and the concept of mandatory requirements developed by the
Court in its construction of Article 28 (formerly Article 30). Properly
speaking this concept is relevant in defining the scope of the rule and hence
does not represent an exception to that rule. This discussion of the
territorial scope of the environmental 'exceptions' in a trade context is
relevant also in the context of the application of Article 95(4) and (5)
(formerly Article 100a(4)).
[12]
Article 176 (formerly Article 130t).
[13] Conclusions of the Edinburgh Economic Council
Annex I to Part A (EC Bulletin 12-1992), p. 15.
[14] Weatherill, S., 'Beyond Preemption?
Shared Competence and Constitutional Change in the European Community' in
O'Keefe & Twomey, Legal Issues of the Maastricht Treaty (Wiley
Chancery, 1994), p. 25.
[15] Case
C-389/96, judgment of 14 July 1998, nyr.
[16] Ibid, para. 15.
[17] Ibid, para. 16.
[18] Ibid, para. 18.
[19] Ibid., paras. 19-26. It is noteworthy that the Court
does not consider whether the German rules were discriminatory in that they
treated aircraft previously registered in German before implementation of the
directive differently from those registered in another Member State prior to
this implementation date. This is important because only 'indistinctly
applicable measures' are susceptible to justification on the basis of
'mandatory requirements' rather than on the basis of Article 30 (formerly
Article 36). The list laid down in Article 30 (formerly Article 36) is
exhaustive. While public health is included, environmental protection is not.
See generally, Scott, J., EC Environmental Law (Longmans, 1998), chapter
4.
[20] Supra n. 1, para. 56
[21] Case C-169/89 Gourmetterie van
den Burg [1990] ECR 2143, para. 9.
[22] C.f. Advocate General van Gerven in Gourmetterie
who examines the legality of the measure in question from the perspective of
the Treaty rules on free movement of goods. In his view the measure goes
further than is permitted by the Article 30 (formerly Article 36) 'ceiling' in
that it may not be regarded as proportionate to the objective being pursued. In
this, the Advocate General adopts a traditional 'floor'/'ceiling' approach to
minimum harmonization measure.
[23]
Council Directive 79/409/EEC OJ 1979 L103/1.
[24] See also Case C-5/94 R v.
Ministry of Agriculture, Fisheries and Food,ex parte :
Hedley Lomas (Ireland) Ltd. [1996] ECR I-2553. Here again the Court found
that the existence of a harmonizing directive was such to preclude recourse to
Article 30 (formerly Article 36) in the context of UK restrictions on the
export of live sheep to Spain. Its finding in this respect is less
controversial here given the absence of a minimum harmonization clause in the
directive concerned. However, this case establishes that recourse to this
article is precluded even where it is alleged (or presumably established) that
the directive has not been properly applied by the trading partners concerned.
A Member States may not 'unilaterally adopt, on its own authority, corrective
or protective measures designed to obviate any breach by another Member States
of rules of Community law' (para. 20). On the contrary they 'must rely on trust
in each other to carry out inspections on their respective territories' in
order to ensure the application and effectiveness of Community law' (para. 19).
[25] Supra n. 21, para. 11.
[26] See Kramer, L., European
Environmental Law: Casebook (Kluwer, 1993), pp. 152-159.
[27] See Case C-384/93 Alpine
Investments v. Minister van Financien [1995] ECR I-1141, para. 43.
[28] There is a huge literature
studying the subject of trade and environment within the framework of the
GATT/WTO. For an excellent account of the issues see Esty, D.C., Greening
the GATT: Trade, Environment and the Future (Institute for International
Economics, 1994). See also a recent special issue of RECIEL (Volume 6, Issue 2,
1997) for a discussion of recent controversies and debates. Generally, the
Journal of World Trade carries many articles on this subject. Those individual
contributions upon which I have relied most heavily will be cited in the
footnotes which follow.
[29]
United States Restrictions on Imports of Tuna 30 ILM (1992) 1598
[Tuna/Dolphin I] and 33 ILM 839 (1994) [Tuna/Dolphin II].
[30] United States -- Import Prohibition of
Certain Shrimp and Shrimp Products. All panel and Appellate Body Reports
are now published on the WTO internet site. See http://www.wto.org
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