The application of a Treaty article while a harmonising Directive precludes the right to endorse sanctions for Member State non-compliance, results in a loss of licence for Ireland, when exporting sheep for slaughter.
This led to a preliminary ruling to ascertain if such a Directive could reasonably deny, or even restrict, exportation to Member States failing to uphold the aims of the assigned article.
For clarity, article 43 EC and article 100 EC were designed to reduce the suffering of animals sent for slaughter through the use of stunning and killing within specific guidelines under Directive 74/577/EEC, while article 36 EC includes restrictive measures surrounding the importation and exportation of products (including livestock) when acting in the interests of public safety, security and protection of human, animal and plant life.
When Spain transposed Directive 74/577/EEC it mirrored the terms of article 1 of the Directive with the exception of sanctions for non-compliance, and so the UK Ministry of Agriculture, Fisheries and Food prohibited sheep exportation to Spain through the denial of specific export licences, which left an Irish sheep farmer unable to export his livestock to a fully compliant Spanish slaughterhouse.
Having sought judicial review and damages in the High Court, the court requested a preliminary ruling under article 177 EC, and so asked the European Court of Justice:
1. Did the terms of Directive 74/577/EEC prevent restrictive measures under art.36 EC?
2. Did the effects of art.36 EC have universal effect, or were they subject to specific criteria?
3. Where ineffective, was the Member State applying the article liable for compensation where an export licence was denied?
Whereupon the Court held that:
1. Although the terms of Directive 74/577/EEC did not expressly outline the penalties for non-compliance, it did confer those measures to the Member States in order for legislative powers to ensure the observation of those terms, however the actions taken by the UK were entirely subjective as opposed to evidence-based, therefore to rely upon the effects of article 36 EC was to act without authority when denying the free movement of goods by another Member State.
2. The terms of article 36 EC did not allow one Member State to exercise restrictive powers over another, while the route taken must be one of either action, or complaint to the Commission under article 170 EC or article 186 EC, while continuing to allow the movement of goods unless or until proven correct.
3. When acting in breach of article 43 EC it is the obligation of the acting Member State to provide reparation for damage caused by the breach, as was established in Francovich and others v Italy and Van Gend en Loos v Nederlandse Administratie de Belastingen, and that when deciding the measure of compensation it must rely upon its own domestic legislation observe the principles of non-discrimination and effective remedy when discussing the matter in the courts and calculating the amount payable, while further reminding the parties that:
“A Member State cannot take unilateral action against defaults by other Member States. The Treaty of Rome created an original legal order in which the procedures necessary for establishing and penalizing a breach of its provisions are strictly regulated.”