The Queen v Minister of Agriculture, Fisheries and Food, ex parte Compassion in World Farming Ltd.
Date: 1998-03-19
36 Secondly, even if the provisions of the Recommendation and of its appendix relating to housing for cattle and their diet may be more precise than those of the Convention, a document of that kind nevertheless does not contain legally binding obligations for the Contracting Parties and therefore for the Community.
41 It should be noted at the outset that, where there is a regulation on the common organisation of the market in a given sector, the Member States are under an obligation to refrain from taking any measures which might undermine or create exceptions to it (see, in particular, Case 148/85 Direction Générale des Impôts v Forest [1986] ECR 3449, paragraph 14). Rules which interfere with the proper functioning of a common organisation of the market are also incompatible with such common organisation, even if the matter in question has not been exhaustively regulated by it (see, to that effect, Case 218/85 Cerafel v Le Campion [1986] ECR 3513, paragraph 13, and Case C-27/96 Danisco Sugar v Allmänna Ombudet [1997] ECR I-0000, paragraph 24).
43 Furthermore, the Court has held that, in particular, any provisions or national practices which might alter the pattern of imports or exports by preventing producers from buying and selling freely within the State in which they are established, or in any other Member State, on the conditions laid down by Community rules are incompatible with the principles of a common organisation of the market (Case 83/78 Pigs Marketing Board v Redmond [1978] ECR 2347, paragraph 58).
46 However, that judgment related to measures which a Member State applied only within its own territory. Furthermore, it was delivered before the Community legislature had adopted the Directive and was expressly founded on the absence, in the provisions governing the common organisation of the market, of any provision for the protection of animals kept for farming purposes (Holdijk and Others, paragraph 13).
47 Next, while Article 36 of the Treaty allows the maintenance of restrictions on the free movement of goods, justified on grounds of public morality, public policy or the protection of the health and life of animals, which constitute fundamental requirements recognised by Community law, recourse to Article 36 is nevertheless no longer possible where Community directives provide for harmonisation of the measures necessary to achieve the specific objective which would be furthered by reliance upon this provision (see, in particular, Case C-5/94 The Queen v MAFF ex parte Hedley Lomas [1996] ECR I-2553, paragraph 18). In such a case, the appropriate checks must be carried out and protective measures adopted within the framework outlined by the harmonising directive (see Case C-323/93 Centre d'Insémination de la Crespelle v Coopérative de la Mayenne [1994] ECR I-5077, paragraph 31). In that regard, the Member States must rely on mutual trust to carry out checks on their respective territories (see, most recently, The Queen v MAFF ex parte Hedley Lomas, paragraph 19).
49 As the Court has held in previous cases, in interpreting provisions of Community law it is necessary to consider not only their wording but also the context in which they occur and the objectives of the rules of which they are part (see, in particular, Case C-128/94 Hönig v Stadt Stockach [1995] ECR I-3389, paragraph 9).
63 In those circumstances, the fact that the Member States are authorised to adopt within their own territory protective measures stricter than those laid down in a directive does not mean that the Directive has not exhaustively regulated the powers of the Member States in the area of the protection of veal calves (see, to that effect, Case C-169/89 Van den Burg [1990] ECR I-2143, paragraphs 9 and 12).
66 CIWF supports recourse to those justifications simply by drawing attention to the views and reactions of a section of national public opinion which believes that the system put in place by the Directive does not adequately protect animal health.  So, in reality, public policy and public morality are not being invoked as a separate justification but are an aspect of the justification relating to the protection of animal health, which is the subject of the harmonising directive.