Danske Svineproducenter v Justitsministeriet.
Date: 2008-05-08
14. Paragraph 6a of Decree No 734 provides:
‘1. In the case of the transport of pigs weighing 40 kg or over, the internal height between each deck – measured from the highest point on the floor to the lowest point on the roof (e.g. the underside of any crossbeams or struts) – shall at least satisfy the following requirements during transport:
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…
3. The mechanical ventilation system shall provide sufficient and evenly distributed ventilation with a nominal ventilation capacity of at least 61 m 3 /h per 100 kg of pig. Where the total journey time for pigs weighing 40 kg and over exceeds eight hours, the rules set out in point 2 of section A in Annex 3 shall also be complied with in so far as a mechanical ventilation system is used.
4. There must at all times be sufficient space inside the animals’ compartment and at each of its levels to ensure that there is adequate ventilation above the pigs where they are in a naturally standing position and their natural movements must not be inhibited under any circumstances.
5. Where the total journey time for pigs weighing 40 kg and over exceeds eight hours, means of transport shall be used which – for example by means of a raisable roof combined with movable decks or similar construction – ensure at all times that an internal inspection height of at least 140 cm can be established on each deck – measured from the highest point on the floor to the lowest point on the ceiling (e.g. the underside of any crossbeams or struts). When setting the internal inspection height at 140 cm, there shall still be at least the height referred to in subparagraph 1 on the upper decks in the case of the transport of animals on several decks.’
15. Paragraph 3 of Decree No 734 contains the following transitional provisions:
‘1. As regards light goods vehicles, heavy goods vehicles, trailer vehicles and semi-trailers etc. which are registered for the first time no later than 15 August 2005, transport operators may, until 15 August 2010 in the case of transport of pigs of more than eight hours’ duration, choose to transport pigs weighing 40 kg and above in accordance with the following rules:
In the case of the transport of pigs weighing 40 kg or over, the internal height between each deck – measured from the highest point on the floor to the lowest point on the roof (e.g. the underside of any crossbeams or struts) – shall at least satisfy the following requirements during transport:
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2. The mechanical ventilation system shall provide sufficient and evenly distributed ventilation with a nominal ventilation capacity of at least 61 m 3 /h per 100 kg of pig.
3. There must at all times be sufficient room inside the animals’ compartment and at each of its levels to ensure that there is adequate ventilation above the animals where they are in a naturally standing position and their natural movements must not be inhibited under any circumstances.
4. During the period before the space requirement referred to in subparagraph 2 applies, there shall be, in the case of the transport of pigs at an internal height of 100 cm, at least 0.42 m 2  per 100 kg of pig.’
The provisions of Decree No 734 concerning loading density
21. First of all, it must be borne in mind that, in accordance with established case-law, the Court may of its own motion, on a proposal from the Advocate General, or at the request of the parties, order the reopening of the oral procedure in accordance with Article 61 of the Rules of Procedure if it considers that it lacks sufficient information or that the case must be dealt with on the basis of an argument which has not been debated between the parties (see order in Case C‑17/98 Emesa Sugar  [2000] ECR I‑665, paragraph 18; Case C‑210/03 Swedish Match  [2004] ECR I‑11893, paragraph 25; and Case C‑466/03 Albert Reiss Beteiligungsgesellschaft  [2007] ECR I‑5357, paragraph 29).
22. Furthermore, Article 234 EC establishes direct cooperation between the Court of Justice and the national courts and tribunals by means of a non-contentious procedure excluding any initiative by the parties, during which the parties are free to submit written observations and may be invited to submit their oral observations at a hearing (see, to that effect, order in Case 6/71 Rheinmühlen Düsseldorf  [1971] ECR 719, paragraph 1, and Case C‑496/04 Slob  [2006] ECR I‑8257, paragraph 34).
23. Moreover, in proceedings under Article 234 EC, which are based on a clear separation of functions between the national courts and tribunals and the Court of Justice, any assessment of the facts in the case is a matter for the national court or tribunal (see, inter alia, Joined Cases C‑211/03, C‑299/03 and C‑316/03 to C‑318/03 HLH Warenvertrieb and Orthica  [2005] ECR I‑5141, paragraph 96, and Case C‑119/05 Lucchini  [2007] ECR I‑6199, paragraph 43). In particular, the Court is empowered to rule only on the interpretation or the validity of Community acts on the basis of the facts placed before it by the national court or tribunal (see, inter alia, Case 104/77 Oehlschläger  [1978] ECR 791, paragraph 4, and Case C‑467/04 Gasparini and Others  [2006] ECR I‑9199, paragraph 41). It is for the national court or tribunal to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see, to that effect, Case 17/81 Pabst & Richarz  [1982] ECR 1331, paragraph 12, and Case C‑291/05 Eind  [2007] ECR I‑0000, paragraph 18).
28. In accordance with established case-law, each of the Member States to which a directive is addressed is obliged to adopt, within the framework of its national legal system, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective that it pursues (see, inter alia, Case C‑336/97 Commission  v Italy  [1999] ECR I‑3771, paragraph 19, and Case C‑321/05 Kofoed  [2007] ECR I‑5795, paragraph 41).
29. In that regard, the Court has already held that the main objective pursued by Directive 91/628 is the protection of animals during transport (see, to that effect, Joined Cases C‑37/06 and C‑58/06 Viamex Agrar Handel and ZVK  [2008] ECR I‑0000, paragraph 29). The fact none the less remains, as is apparent from the second recital in the preamble to Directive 91/628 and the fourth recital in the preamble to Directive 95/29, that Directive 91/628 was adopted within the framework of the Community policy of eliminating technical barriers to trade in live animals and to allow the market organisations to operate smoothly.
30. In addition, it follows from the fourth recital in the preamble to Directive 95/29 that Directive 91/628 is intended to harmonise travelling times and rest periods, feeding and watering intervals, and space allowances, for certain types of animal. Nevertheless, the fact remains that, although Directive 91/628 includes some precise provisions, others are general (see, to that effect, Case C‑350/97 Monsees  [1999] ECR I‑2921, paragraph 26).
31. In those circumstances, Directive 91/628 must be transposed in compliance with the objectives which it pursues and the margin of discretion available to the Member States depends on the level of precision of the provisions of that directive. Moreover, that transposition must be carried out in strict accordance with the principle of proportionality. In that regard the Court has held, in particular, that the principle of proportionality, which is a general principle of Community law and has been affirmed on numerous occasions in the case-law of the Court of Justice, in particular with regard to the common agricultural policy (see, inter alia, Case C‑189/01 Jippes and Others  [2001] ECR I‑5689, paragraph 81, and Case C‑310/04 Spain  v Council  [2006] ECR I‑7285, paragraph 97), must be observed as such both by the Community legislature and by the national legislatures and courts which apply Community law (see, to that effect, Viamex Agrar Handel and ZVK , paragraph 33).
32. Accordingly, it is inherent in the transposition procedure that the Member States were required to comply with the main objective of protecting animals during transport without hindering the attainment of the other objectives pursued by Directive 91/628.
34. By its first and second questions, which can be considered together, the national court asks whether the provisions of point 2(b) of Title A in Chapter I and of the third indent of point 48(3) of Chapter VII of the annex to Directive 91/628 are to be interpreted as meaning that they permit a Member State to introduce:
– national transitional rules under which, in the case of the transport of pigs weighing from 40 kg to 110 kg where the journey time exceeds eight hours, there must be an internal height in respect of each deck – measured from the highest point on the floor to the lowest point on the ceiling – of at least 100 cm where a mechanical ventilation system is used;
– national rules under which, in the case of the transport of pigs weighing 40 kg and over where the total journey time exceeds eight hours, means of transport must be used which ensure at all times that an internal inspection height of at least 140 cm can be established in respect of each deck, whereas the internal height of the other decks in the case of the transport of animals on several decks must be at least 92 cm where the pigs being transported weigh on average 100 kg and where a mechanical ventilation system is used.
40. Rules such as those at issue in the main proceedings, comprising figures for the compartment height in order that transporters may refer to more exact standards than those given in Directive 91/628, fall, in principle, within the margin of discretion conferred on the Member States by Article 249 EC, on condition, however, that those rules, to the extent to which they are liable to impact adversely on the attainment of the directive’s objectives of eliminating technical barriers to trade in live animals and allowing market organisations to operate smoothly, remain objectively necessary and proportionate in order to ensure the attainment of the directive’s main objective of protecting animals during transport.
43. In such circumstances, it cannot be ruled out that the additional cost which compliance with rules such as those at issue in the main proceedings may represent and the technical difficulties to which they may give rise are liable to prevent attainment of the objectives of eliminating technical barriers to trade in live animals and allowing market organisations to operate smoothly, thereby restricting the free movement of goods in respect of both imports and exports.
45. To that end, it must ascertain, first of all, that the additional cost and technical difficulties resulting from the provisions at issue in the main proceedings are not liable to disadvantage pig producers in the Member State which adopted them. Next, it must be satisfied that those provisions are not liable to penalise those producers who wish to export their products in comparison with exporters from other Member States, who would not have to bear the additional cost connected with the technical conversion of road trains. Finally, it must verify that those provisions do not disadvantage pig producers from other Member States which wish to transport animals to Denmark, or via that Member State, and who would also be required to convert road trains in order to comply with the Danish rules.
46. Having regard to the foregoing, the answer to the first and second questions referred must be that rules such as those at issue in the main proceedings, comprising figures for the animal compartment height in order that transporters may refer to more precise standards than those set out in Directive 91/628, may fall within the margin of discretion conferred on the Member States by Article 249 EC, on condition that those rules, which comply with the objective pursued by that directive of protecting animals during transport, do not, contrary to the principle of proportionality, prevent attainment of the objectives, also pursued by Directive 91/628, of eliminating technical barriers to trade in live animals and allowing market organisations to operate smoothly. It is for the national court to establish whether those rules comply with those principles.
The third question
50. A national provision which requires that, in the case of journeys lasting longer than eight hours, the surface available per animal be at least 0.50 m² for pigs of around 100 kg complies with the minimum and maximum standards laid down by the provisions of Directive 91/628 referred to in paragraph 48 of the present judgment. The increase in the minimum required space laid down by such a provision is justified by the journey time and falls within the 20% limit authorised by the Community legislature in those provisions.