3 Colum. J. Eur. L. 132 (1996)
Case C-5/94, The Queen v. Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas (Ireland) Ltd., May 23, 1996, 1996 E.C.R. 1-2553.
Geert van Calster. Institute of Environmental Law, Collegium Falconis, Katholieke Universiteit Leuven, Belgium; S.J. Berwin & Co., Brussels.
Internal Market; Harmonization; Export Restrictions; Animal Welfare; EC Treaty Article 5; Member States Liability
- Facts and Procedure
Several questions were referred to the European Court of Justice (ECJ) by the High Court (Queen’s Bench Division) of the United Kingdom in connection with proceedings between Hedley Lomas (Ireland) Ltd. and the Ministry of Agriculture, Fisheries and Food for England and Wales. Hedley Lomas brought action following that Ministry’s refusal to issue a license for the export of live sheep to Spain requested by Hedley Lomas. Between April 1990 and January 1, 1993 the Ministry systematically refused to issue licenses for the export to Spain of live animals for slaughter on the ground that their treatment in Spanish slaughterhouses was contrary to Directive 74/577 of November 18, 1974 on stunning of animals before slaughter (the “Directive”)) The Directive, which is based on Articles 43 and 100 of the EC Treaty, is intended to remove the disparities between the legislation of Member States in the field of protection of animals which directly affect the functioning of the common market. It also seeks, in general, to avoid all forms of cruelty to animals and, as a first step, to avoid all unnecessary suffering on the part of animals when being slaughtered. Articles 1 and 2 of the Directive require Member States to ensure the stunning, by appropriate approved methods, of animals for slaughter of a number of species. The Directive does not harmonize procedures for monitoring compliance with its provisions. Spain had to comply with the Directive as from the date of its accession to the Community on January 1, 1986. The Directive was transposed in Spain by Royal Decree of December 18, 1987. This Decree does not lay down any penalty for breach of its provisions.
Despite the adoption of that decree, the UK Ministry of Agriculture became convinced, in particular on the basis of information obtained from the Spanish Society for the Protection of Animals, that a number of Spanish slaughterhouses were not complying with the rules contained in the Directive. Although it did not have sufficient evidence as to the overall position in Spanish slaughterhouses, the Ministry believed that the information in its possession indicated a degree of non-compliance with the Directive so as to create a substantial risk that animals exported to Spain for slaughter would suffer treatment contrary to the Directive. In 1990, the Commission contacted the Spanish authorities. Following assurances given by the naticnal and regional authorities in Spain regarding the application of the Directive, the Commission decided in 1992 not to take any action under Article 169 of the EC Treaty. The Commission informed the UK authorities that it considered the UK’s general ban on exports of live animals to Spain to be contrary to Article 34 of the EC Treaty and not justifiable under Article 36.
The UK’s general ban was lifted, with effect from January 1, 1993, following a meeting between the UK’s chief veterinary officer and his Spanish counterpart. The purpose of this meeting was to review the progress achieved by Spain in giving effect to the Directive and to examine means of ensuring in future that all animals exported from the UK would be treated in accordance with the Directive. The two governments drew up measures to ensure that animals sent from the UK for immediate slaughter in Spain would be sent only to slaughterhouses which the Spanish authorities had confirmed as meeting Community requirements on animal welfare. On October 7, 1992, Hedley Lomas applied for an export license for a quantity of live sheep intended for slaughter in a specified Spanish slaughterhouse. The license was not issued, even though, according to the information obtained by Hedley Lomas, the slaughterhouse in question had been approved since 1986 and was complying with Community directives on animal welfare and the UK authorities did not have any evidence to the contrary. Hedley Lomas brought proceedings in the High Court in which it seeks, first, a declaration that the refusal by the Ministry to grant it an export license is contrary to Article 34 of the EC Treaty and, second, damages. The Ministry does not deny that the refusal to issue the export license constitutes a quantitative restriction on exports but argues that it was justified under Article 36 and, consequently, was compatible with Community law.
The High Court referred three questions to the ECJ: First, is the export restriction contrary to Articles 34 and 36 of the EC Treaty? If so, is a Member State liable as a matter of Community law for damages for any loss caused to the trader by the failure to grant an export license in breach of Article 34? Moreover, under what conditions does such liability arise and how is compensation to be calculated? The ECJ issued its judgment on May 23, 1996,2 after the opinion of the Advocate General (AG) on June 20, 1995.3
Taking the Hedley Lomas case as a starting point, we shall try and formulate a framework which can be used for future decisions of the ECJ in the context of Article 34. This proposal takes us beyond the ECJ’s judgment, which did not reach beyond the harmonization issue. It also goes one step further than the Advocate-General, who did not look beyond the issue of extraterritoriality.