Opinion of the Advocate-General
1 The `veal crate system', which is criticized for affecting the health and life of veal calves and for being contrary to public morality and public policy, within the meaning of Article 36 of the EC Treaty, has brought about this reference by the Queen's Bench Division of the High Court of Justice.
2 This Court is asked to determine the extent of the right thus afforded to Member States to oppose, on those grounds, the export of animals to other Member States and thereby derogate from the principle of the free movement of goods.
3 The High Court of Justice also refers to the existence of international agreements and a Community directive laying down different standards for the protection of veal calves. It therefore also asks this Court to determine the validity of Council Directive 91/629/EEC of 19 November 1991 laying down minimum standards for the protection of calves, (1) with reference to the European Convention on the Protection of Animals kept for Farming Purposes and the 1988 Recommendation concerning Cattle.
I - Legal background to the dispute
A - The provisions of international law
The European Convention on the Protection of Animals kept for Farming Purposes
4 The European Convention for the Protection of Animals kept for Farming Purposes (hereinafter `the Convention') was drawn up within the Council of Europe `with the aim of protecting animals kept for farming purposes, particularly in modern intensive production systems'. (2) Adopted in that context on 17 March 1976, the Convention was approved in the name of the European Economic Community by Council Decision 78/923/EEC of 19 June 1978. (3)
5 According to Article 1 of the Convention, it applies to the `keeping, care and housing of animals and in particular to animals in modern intensive stock-farming systems'.
6 Chapter I lays down the general principles by which the Convention is to ensure protection of animals in stock-farming systems. Chapter II sets up a Standing Committee and lays down its rules of organization and functioning and defines its powers, whilst Chapter III lays down how the Convention is to enter into force.
7 The provisions of the Convention more particularly devoted to stock-farming systems, to housing space for animals and to provision of water, food and care for them are set out in Articles 3, 3a, 4 and 6.
8 Under Article 9(1), recommendations to the Contracting Parties are to be elaborated and adopted by the Standing Committee for the implementation of the principles set out in the Convention.
9 A Protocol of Amendment to the Convention was approved by Article 1 of Council Decision 92/583/EEC of 14 December 1992 on the conclusion of the Protocol of Amendment to the European Convention for the Protection of Animals kept for Farming Purposes. (4)
The Recommendation concerning Cattle
10 The Recommendation concerning Cattle, dated 21 October 1988 (hereinafter `the Recommendation'), sets out the general requirements relating to the rearing of cattle. (5)
11 Article 20 of the Recommendation provides that it is not to be directly applicable within the national law of the Contracting Parties and is to be implemented according to the method that each such party considers appropriate, that is to say through legislation or through administrative practice.
Appendix C: special provisions for veal calves
12 Appendix C to the Recommendation (hereinafter `the Appendix'), more particularly devoted to veal calves, was adopted on 8 June 1993.
B - Provisions of Community law
Regulation (EEC) No 805/68
13 Regulation (EEC) No 805/68 of the Council of 27 June 1968 on the common organization of the market in beef and veal, (6) provides for a pricing and trading system and, according to Article 1 thereof, covers, inter alia, live animals of the domestic bovine species.
14 The second indent of Article 22(1) prohibits any quantitative restriction or measure having equivalent effect in the internal trade of the Community.
Directive 91/629
15 Directive 91/629 lays down minimum standards for the protection of calves both in order to eliminate differences which may distort conditions of competition within the organization of the common market in calves (7) and in order to ensure the well-being of calves. (8)
16 The first recital states that all the Member States have ratified the Convention and this has been approved by Decision 78/923.
17 The seventh recital in the preamble to the Directive states that the Commission should, on the basis of a report from the Scientific Veterinary Committee, pursue actively scientific research into the most efficient stock-farming system or systems from the point of view of the well-being of calves and that provision should accordingly be made for an interim period to enable the Commission to complete this task successfully.
18 Article 3(1) lays down a transitional period of four years during which all new holdings are to comply with minimum requirements regarding the housing of calves in individual boxes or by tethering in stalls.
19 Article 4(1) requires the Member States to ensure that the conditions for rearing calves comply with the general provisions laid down in the Annex to the Directive. That Annex lays down rules concerning, inter alia, accommodation, feeding and watering of calves.
20 Article 11(2) allows the Member States, in compliance with the general rules of the Treaty, to maintain or apply within the territories stricter provisions for the protection of calves than those laid down in the Directive.
II - Facts and national procedure
21 The facts, as described in the order for reference, are as follows.
22 In recent years, between 500 000 and 600 000 veal calves have been exported each year from the United Kingdom to other Member States of the Community, some of which allow a substantial proportion of these animals to be reared in the `veal crate system'.
23 A `veal crate' is a box-like structure used to house a single veal calf. According to the national court, the term `veal crate system' refers to `a veal production system in which calves are reared in conditions which do not fulfil the requirements as to the minimum width of veal crates and the composition of veal calves' diet laid down in the Convention and the Recommendation ...'. (9)
24 This method of rearing calves has been prohibited in the United Kingdom since 1 January 1990, the date of entry into force of the 1987 Welfare of Calves Regulations.
25 The Royal Society for the Prevention of Cruelty to Animals (hereinafter `the RSPCA') and Compassion in World Farming Limited (hereinafter `CIWF'), the applicants in the main proceedings, whose object is the protection of animals, `consider [the veal crate system] to be inconsistent with the health and well-being of the calves and the cause of unnecessary suffering'. (10)
26 Consequently, the RSPCA and CIWF asked the Minister of Agriculture, Fisheries and Food (hereinafter `the Minister') to have resort to Article 36 of the Treaty and adopt measures restricting exportation of veal calves to Member States in which the veal crate system was likely to be used, `contrary to the standards enforced in the United Kingdom and to the international standards of the Convention, to which all the Member States and the EC have agreed to adhere'. (11)
27 In reply, the Minister stated that the United Kingdom did not have the power to restrict exports of veal calves and that, even in the event that he had such a power, he would not be minded, for policy reasons, to impose a ban.
28 The RSPCA and CIWF then brought proceedings before the High Court of Justice, (12) which submitted the following questions to this Court.
III - The questions referred for a preliminary ruling
29 `Where:-
(a) all of the Member States have become parties to the European Convention for the Protection of Animals kept for Farming Purposes 1976 ("the Convention") and the Convention has been approved by EC Decision 78/923/EEC of 19 June 1978 (OJ 1978 L 323, p. 12);
(b) the 1988 Recommendation concerning cattle ("the Recommendation") has been adopted by the Standing Committee established pursuant to the Convention and has become effective under the terms of the Convention;
(c) the standards laid down by and pursuant to the Convention contain stipulations as to the minimum width of veal crates and the composition of veal calves' diets;
(d) Council Directive 91/629/EEC lays down obligatory minimum standards for the protection of calves which are lower than the standards laid down by and pursuant to the Convention in certain respects, including the width of veal crates and the composition of calves' diets;
(e) the Directive permits Member States to maintain or apply within their territories stricter provisions for the protection of calves than those laid down in this Directive;
(f) veal calves are exported from a Member State ("Member State A") to certain other Member States ("Member States B") which have implemented and/or complied with the Directive but have not implemented and/or complied with the standards indicated at paragraph (c) above although Member State A has implemented and complied with those standards;
(g) the export of calves to face rearing contrary to the Convention is considered to be cruel and immoral by animal welfare organizations and a considerable body of public opinion, supported by authoritative scientific veterinary opinion, in the Member State from which exports occur.
(1) In the circumstances set out above, may Member State A rely on Article 36 of the EC Treaty and, in particular, the grounds of public morality and/or public policy and/or the protection of the health or life of animals contained therein, to justify any restriction in relation to the export of live calves from Member State A with a view to avoiding the rearing of those calves in the veal crate systems in Member States B?
(2) If the effect of provisions of the Directive, if valid, would be to require the answer "no" to be given to Question (1), are those provisions valid?'
30 Before I go on to consider those questions, it is necessary to examine first the factors which, as discussed during the proceedings, could prompt the Court to decline jurisdiction.
IV - Admissibility of the questions referred
31 At the hearing, the French Government, without raising any objection as to admissibility, stated however that the first question was `theoretical, even hypothetical' in the absence of `a measure restricting intra-Community trade'. It considers that the national court cannot judge the necessity or proportionality of a decision which has not been adopted.
32 According to the Court's settled case-law, `it is for the national courts alone, before which the proceedings are pending and which must assume responsibility for the judgment to be given, to determine, having regard to the particular features of each case, both the need for a preliminary ruling to enable them to give judgment and the relevance of the questions which they refer to the Court'. (13) The Court later drew the conclusion that `where the questions submitted by the national court concern the interpretation of Community law, the Court of Justice is, in principle, bound to give a ruling.' (14)
33 It is clear that the questions submitted directly concern Community law since they relate to the interpretation of Article 36 of the Treaty and the assessment of the validity of Directive 91/629.
34 However, the Court has held that, in order to determine its jurisdiction, it has to examine the circumstances in which the Court was called upon by the national court to give a ruling. In this regard, it considers that it cannot give a ruling on a preliminary question submitted by a national court `where it is quite obvious that the interpretation or assessment of validity of a Community rule sought by the national court bears no relation to the actual facts of the main action or its purpose or where the problem is hypothetical and the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it ...'. (15)
35 My first observation is that the link between the questions submitted and the proceedings cannot be seriously contested. The issue in the main proceedings, centred on the adoption of measures restricting exports based on requirements of animal protection, is indissociable from the plea based on Article 36 of the Treaty, which is the subject-matter of the first question. Similarly, the right of a Member State to use Article 36 depends, at least in part, as we will see, (16) on the existence of a directive harmonizing the field concerned, so that the question of the validity of Directive 91/629, which lays down minimum standards for the protection of veal calves, is determinative.
36 Nor is the problem hypothetical. From the explanation of the factual and legal background of the case given by the national court in its order for reference it is clear that the main action concerns the discretion of the Minister to refuse to adopt measures based on Article 36. (17) Examination of the national file reveals that the action, which has been brought by bodies having the protection of animals as their object, seeks precisely to have the Minister's decision set aside. (18)
37 It is true that the proceedings before the national court present the particularity of having arisen not from any positive action taken by the United Kingdom but from a refusal to take any such action. It is therefore the absence of any ministerial decision prohibiting or restricting exports of veal calves to the other Member States which is challenged before the High Court of Justice and which has led to the referral of the questions.
38 Consequently, the interpretation which the Court will give of Article 36 of the Treaty will not necessarily enable the High Court to give an assessment of the lawfulness of the government decision.
39 If that interpretation upholds the right to apply quantitative restrictions on exports, or measures having equivalent effect, on the grounds indicated by the High Court, this Court's ruling could not be of any use in resolving the dispute since Article 36 only lays down a mere right to adopt similar measures and in this case the Minister has stated that he does not consider it expedient to have recourse to them. (19)
40 Those objections do not suffice, however, to call the Court's jurisdiction into question. If, on the other hand, the Court interprets Article 36 as not allowing restrictive measures to be taken in the circumstances of the present case, that would support the lawfulness of the contested decision.
41 Moreover, by the questions which it submits, the High Court of Justice does not expect this Court to enable it to determine the proportionality of a specific measure adopted by the United Kingdom minister. It is only a question of ruling to what extent Article 36 may apply in the circumstances of this case.
42 In those circumstances, and on any view, the questions submitted must be declared admissible.
V - Application of Article 36 of the Treaty
43 By its first question the national court asks in effect whether Article 36 of the Treaty allows a Member State to restrict or prevent the exportation of live animals to another Member State on the ground that public morality, public policy or the health or life of those animals are threatened by the rearing methods used in the Member State of exportation.
44 It should be pointed out first of all that, as the applicant in the main proceedings accepts, `a ban or restriction on exports of live calves from the United Kingdom would constitute a quantitative restriction on exports, or measure of equivalent effect within the meaning of Article 34 of the EC Treaty'. (20)
45 However, in the Hedley Lomas case, the Court reiterated that `Article 36 of the Treaty allows the maintenance of restrictions on the free movement of goods, justified on grounds of the protection of the health and life of animals ...'. (21) Nothing prevents that reasoning from being transposed to the case where the reasons relied on justify, not the maintenance, but the introduction of restrictions.
46 Whilst the free movement of goods is indisputedly one of the pillars of the Community edifice, it is significant that recently the Court referred to the protection of life and health of animals as being a `fundamental requirement recognized by Community law'. (22)
47 The grounds of public morality or public policy, also referred to in Article 36 and to which the national court refers, constitute other reasons capable of justifying a departure, allowed by the Treaty, from the principle of free movement of goods.
48 However, recourse to Article 36 is no longer justified if Community rules provide for the measures necessary to guarantee protection of the interests listed in that Article. (23) In particular, the Member States are bound, where there is a regulation establishing a common organization of the markets in a particular field, to refrain from taking any measures which might undermine or create exceptions to it. (24)
49 In the present case, the beef and veal sector is the subject of a common organization of the markets but, as the Court has held, `... the establishment of such an organization pursuant to Article 40 of the Treaty does not have the effect of exempting agricultural producers from any national provisions intended to attain objectives other than those covered by the common organization, even though such provisions may, by affecting the conditions or production, have an impact on the volume or the cost of national production and therefore on the operation of the common market in the sector concerned ...'. (25)
50 However, Regulation No 805/68, cited above, does not pursue any aim of protecting animals.
51 On the other hand, that concern is at the centre of Directive 91/629, adopted, for harmonization purposes, within the framework of the common agricultural policy. In this regard, the Court has reiterated that recourse to Article 36 is no longer possible `where Community directives provide for harmonization of the measures necessary to achieve the specific objective which would be furthered by reliance upon this provision'. (26)
52 It is therefore necessary to examine the terms of Directive 91/69 in order to determine the latitude left to a Member State which wishes to ensure observance of the aims referred to in Article 36.
A - The degree of harmonization carried out by Directive 91/629
53 Harmonization undertaken by a directive precludes application of Article 36 by a Member State if the protective measures which it lays down specifically concern the field which the authorities having recourse to it wish to protect.
54 In the present case, as I have said, the Directive is entirely devoted to the protection of veal calves, as its title indicates. Above all, some of the rules which it lays down concern the actual system of `veal crates'. Article 3 provides for a minimum standard for the accommodation of veal calves, characterized by strict space measurements. Similarly, paragraphs 11 to 14 of the annex to the Directive lay down minimum rules applicable to the feeding and watering of veal calves. (27)
55 However one assesses, with particular reference to the values laid down by the Convention and the Recommendation, the degree of protection thus laid down, which is the issue raised by the second question, it appears that the fields in which the applicant parties wish Article 36 to be used are in fact dealt with by the Directive.
56 The fact that the applicants claim that the level of protection is insufficient must not be taken as evidence of incomplete harmonization. The criterion based on harmonization of a particular field, designed to allow the competence left to the Member States to be identified, is assessed with regard to the scale of the area covered by Community rules, the main purpose of harmonization being above all to harmonize national laws in a given sector, even if this results in a level which is considered too weak.
57 From this point of view, the Directive fully harmonized the powers of the Member States in the area under consideration.
58 The Member States are certainly authorized to enact more protective measures for the life and health of animals. This could point to the existence of some leeway left by the Directive to Article 36 since, under the first sentence of Article 11(2), `... from the date set in paragraph 1, (28) Member States may, in compliance with the general rules of the Treaty, maintain or apply within their territories stricter provisions for the protection of calves than those laid down in this Directive.'
59 However, whilst the Directive allows the Member States some latitude in the field with which it deals, where their competence in the matter of the protection of animals may still be exercised to a stricter standard, the terms used show that the adoption by a Member State of measures comparable to those provided for by the Directive is allowed only within the boundaries of its own territory and only in accordance with the principles laid down by the Treaty.
60 The measures authorized under Article 11 are therefore confined, by the principle of the free movement of goods, to strictly territorial boundaries; there can be no effect on intra-Community trade. The United Kingdom Government has in fact made use of this power when it prohibited the rearing of veal calves according to the system in question.
61 It would therefore be possible to conclude, like the United Kingdom, (29) that owing to the exhaustiveness of Directive 91/629 recourse to Article 36 is impossible.
62 However, it must be pointed out, as the Commission does, (30) that under Article 3(1) of the Directive, some of the requirements laid down by it for the accommodation of veal calves (31) apply `... from 1 January 1994 and for a transitional period of four years, [to] all holdings newly built or rebuilt and/or brought into use for the first time after that date ...'.
63 Furthermore, Article 3(4) states:
`The duration of use of installations built:
- before 1 January 1994 which do not meet the requirements of paragraph 1 ... shall under no circumstances extend beyond 31 December 2003;
- during the transitional period, in accordance with paragraph 1, shall under no circumstances extend beyond 31 December 2007, unless on that date they comply with the requirements of this Directive.'
64 For reasons related to the progressive adaptation of agricultural holdings to the new standards, the Community legislature has therefore accepted that the new standards are not to apply immediately to all installations. Until the end of 2003, holdings built before 1 January 1994 can escape the standards applicable to those built after that date and for a transitional period of four years. Similarly, holdings built during the transitional period are to be brought into full conformity with the standards before 31 December 2007. (32)
65 Many categories of agricultural holdings, having different levels of protection for veal calves, may therefore co-exist, so that harmonization of the conditions for housing animals will not be truly achieved until that last date. It is only then that all agricultural holdings covered by the Directive will have to comply with the same rules.
66 Consequently, for a number of years yet, the Member States may be obliged to allow the rearing, export or import of veal calves whose method of rearing departs from the protective rules of the Directive, even as amended.
67 In those circumstances, I think it is logical to apply to this case the case-law of the Court which holds that a directive does not have the effect of removing the competence which Article 36 allows Member States when the period it gives them for adopting the provisions necessary to comply with it has not expired. (33)
68 In the present case, Article 3 of the Directive lays down no period for the transposition of the Community standard into national law. It determines the immediate or deferred applicability to the operators concerned of the obligations provided for by the Directive according to the date on which the agricultural holding was built or brought into service.
69 However, the two cases are comparable in that actual implementation of the protective rules laid down by the Directive may be deferred in time.
70 Until the periods for the implementation of the animal housing conditions laid down by the Directive have expired, as at the end of a transposition period, it remains within the power of the Member States to apply Article 36 and this article may serve as a basis for action justified on grounds of the protection of the life and health of animals.
71 I would add that the Directive, which does not have this purpose, is not designed to take into account considerations of public morality and public policy, as referred to in the first preliminary question, as a possible justification for recourse to Article 36.
72 Moreover, a directive might exhaustively harmonize a field concerning the protection of animals but still not pacify pressure groups which, judging the level of protection adopted to be insufficient, would still be likely to disturb public order.
73 For those different reasons, Directive 91/629 does not suffice to prohibit the use of Article 36 in the case submitted to the Court, so that it appears necessary for the Court to rule on the scope of that article.
B - Scope of Article 36
1. The judgment in Hedley Lomas
74 This case may be compared in many respects to the Hedley Lomas case.
75 The two cases specifically concern the fields covered by Article 34 and Article 36 in so far as the latter article is relied on to advocate quantitative restrictions based on grounds of the protection of the life and health of animals.
76 Above all, the most characteristic point in common between them is that the restrictive measure adopted, or sought, has its cause outside the territory of the Member State which adopted it, or which is asked to adopt such a measure, and within the territory of the Community.
77 This circumstance places the Member State concerned in a situation - delicate from the point of view of Community principles and in particular from the point of view of the free movement of goods - in which it is has to judge the necessity or expediency of restricting exports of its goods to another Member State for reasons based on a practice which is largely unknown to it.
78 However, in the Hedley Lomas case, the question was whether Article 36 could be invoked by a Member State to justify a restriction on exports of animals to another Member State on the ground that the latter State was not complying with the requirements of a Community directive providing for harmonization of the measures necessary for achieving the aim in view. In the present case, on the other hand, farmers in some Member States rear veal calves using the `veal crate' method but without contravening the provisions of the directive harmonizing the protection standards.
79 In spite of those differences, the aspects of the problem posed in each of the two cases could have prompted the same approach.
80 The directive in question in Hedley Lomas brought about full harmonization of the measures necessary to achieve the aim covered by recourse to Article 36 but the Minister contended that it was not always respected in the Member State of destination.
81 In the case now before the Court, the directive is applied but it does not bring about full harmonization.
82 In both cases, failure to implement measures enabling the aim stated by Article 36 to be achieved can make recourse to that provision legitimate.
83 However, the factual context of Hedley Lomas, characterized by uncertainty as to the breach of the Community legislation by the Member State of importation, did not allow the Court to rule on this point nor on the fact that the acts in question were going on outside the territory of the State of exportation. (34)
84 The Court made a point of explaining more than once that the decision was given in that context. (35) As a result, the effect of the judgment is relative. (36) The answer given by the Court is confined to the case where non-observance of the provisions of a harmonizing directive would be hypothetical. (37) It is easy to see why, in such a case, a Member State cannot be entitled to take unilateral measures to restrict exports.
85 In view of those particular aspects, I consider that the present case lends itself better to the interpretation of Article 36 invoked to oppose extra-territorial practices.
2. Use of Article 36 to uphold certain of its aims against extra-territorial practices
86 The national court inquires whether a Member State has a right to justify, by reference to considerations relating to public morality, public policy or the protection of the health and life of animals, restrictions on the export of veal calves to Member States in which the `veal crate' system is used.
87 As I explained in my Opinion in Hedley Lomas, (38) I consider that a Member State can rely on Article 36 of the Treaty only in order to ensure protection, within its own national territory, of an interest safeguarded by that article.
88 In that same Opinion, I cite Advocate General Trabucchi who, in his Opinion in the Dassonville case, concluded: `... States can derogate in the said manner [under Article 36] only for the purpose of the protection of their own interests and not for the protection of the interests of other States ... Article 36 allows every State the right to protect exclusively its own national interests. Consequently, for the purpose of protecting industrial and commercial property, each State can restrict the freedom of movement of goods only with reference to the protection of individual rights and economic interests falling under its own sphere of [responsibility].' (39)
89 I simply refer to that part of my Opinion explaining the reasons justifying, in my view, a strict limitation of the scope of Article 36. (40)
90 It follows that export restrictions can be justified only if the acts or practices in question offend against public morality or public policy in the State of exportation.
91 At this stage of development of the European Community, it would not be acceptable for a Member State to be allowed to use that provision to oppose the export of goods on the ground that there might be an infringement, according to its own criteria, to public policy or public morality of the Member State of importation.
92 In the present case, it is common ground that the rearing of animals under the system criticized by CIWF, although practised outside the United Kingdom, produces effects on British territory in which public opinion, like specialized veterinary circles, opposes its maintenance in certain Member States.
93 The situation is not comparable as far as the aim of protecting animals is concerned. In this case, the adverse effect on the health and life of animals resulting from the rearing system in question is produced outside British borders and outside the sphere of responsibility of the United Kingdom of Great Britain and Northern Ireland.
94 I will examine in turn each of the aims of Article 36 of the Treaty to which the preliminary question makes reference.
Public morality
95 Whilst the Court has held that it has competence to assess concepts such as public policy (41) or public security, (42) the strictly national character of which is comparable to that of public morality, it considers nevertheless that: `In principle, it is for each Member State to determine in accordance with its own scale of values and in the form selected by it the requirements of public morality in its territory'. (43)
96 However, on the rare occasions when the Court has had to rule on the protection of public morality, within the meaning of Article 36 of the Treaty, the cases concerned involved national rules in areas about which it may be said that, generally, they are by tradition at the heart of the debate held on this subject in most European societies. (44)
97 Even in these cases, the Court did not, however, fail to point out that the competence of the Member States was recognized `in principle', which leaves the Court with the power to derogate from the rule, if the facts of the case justify this.
98 The formulations used, which contain substantive assessments by the Court of the rules in question, seem to evince the Court's intention to ensure that the meaning of the concept does not shift. In Henn and Darby, the Court stated that it could not be disputed that the statutory provisions in question came within the powers reserved to the Member States by Article 36. (45) In Conegate, in holding that domestic rules banning the importation of certain indecent or obscene goods could not be based on grounds of public morality, the Court held that the fact that goods caused offence could not be regarded as sufficiently serious when the legislation of the Member State concerned did not lay down any prohibition on the manufacture or marketing of those goods on its territory. (46)
99 In the words of the Court's settled case-law, `... Article 36 is not designed to reserve certain matters to the exclusive jurisdiction of Member States but permits national laws to derogate from the principle of the freedom of goods to the extent to which such derogation is and continues to be justified for the attainment of the objectives referred to in that article.' (47) As a derogation from that principle, Article 36 must be interpreted strictly. (48)
100 Despite its specific character, public morality cannot totally escape the rule. Reasons based on this concept may not be invoked at every turn, or else there would be a risk of multiplying obstacles to intra-Community trade.
101 In this regard, I consider it necessary for the Court to assume the right to carry out a minimal review of the content of the concept of public morality, particularly in areas less generally condemned than those with which it has had to deal in the past. The advantage of this approach will be to prevent the concept from being given a broad meaning for the sole purpose of justifying unreasonably restrictive measures. (49)
102 However, the fact remains that public morality varies from one Member State to another, in time and according to the Member States' socio-cultural particularities. Moreover, it is no part of the Court's task to judge values characterizing the public morality of a Member State and which are therefore quite specific to it. Consequently, it would appear to be necessary to allow national authorities sufficient discretion to determine the requirements which ensue from public morality, within the bounds imposed by the Treaty. (50)
103 The complementary task for the Court is to give an interpretation of Article 36 which removes from its scope domestic practices or domestic rules pursuing aims which clearly cannot be a matter of public morality.
104 As far as the present case is concerned, the fact that a Member State should consider that harm unjustifiably caused to the life or health of domestic animals, even for economic purposes, through the use of a particular rearing method is a matter of public morality in that State does not appear to be manifestly contrary to Article 36.
105 According to the national court, `the export of calves to face rearing contrary to the Convention is considered to be cruel and immoral by animal welfare organizations and a considerable body of public opinion, supported by authoritative scientific veterinary opinion, in the Member State from which exports occur'. (51)
106 It must be added, however, that it must be proved by objective scientific evidence that the rearing system in question causes unreasonable harm to the health or life of animals and that the measures adopted must be proportionate to the aim in view, (52) which is for the national court to judge.
107 The national court refers, secondly, to public policy.
Public policy
108 In its judgment in Bouchereau, employing reasoning which can be transposed to the field of free movement of goods, the Court held that: `In so far as it may justify certain restrictions to the free movement of persons subject to Community law, recourse by a national authority to the concept of public policy presupposes, in any event, the existence ... of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society'. (53)
109 In the present case, the applicant in the main proceedings does not claim that public policy has been contravened. The most that is asserted, in the applicant's observations and, to a lesser extent, in the order for reference, is: `The inhumanity of the veal crate system has produced a strong public response in the United Kingdom.' (54)
110 The description thus given of the protest movement which has arisen in the United Kingdom against the use of the rearing system in question does not reveal anything to establish a real threat to public policy. In such a context, this ground provided for by Article 36 cannot be relied on in support of an export restriction.
111 Moreover, it would seem to me to be dangerous for a Community principle - in this case, freedom of movement for goods - to be called in question on the ground that its application provokes a social reaction, if there are no other reasons for limiting its application. (55)
112 Consequently, I conclude that measures restricting exports of animals based on the risk that they may provoke a reaction in national public opinion against the maintenance of a method of rearing animals which is considered to be cruel towards them cannot constitute measures for meeting a public policy objective within the meaning of Article 36.
Protection of the health and life of animals
113 Article 36 does not allow a Member State to restrict its exports on account of extra-territorial circumstances which, even though they produce effects within its population, do not affect on its own national territory the interest protected by this provision.
114 The principle must, in my view, apply to the aim of protecting the health and life of animals.
115 To allow a Member State to prohibit or restrict the export of animals located on its territory in order to protect them against practices affecting their health or life beyond its own borders would in practice mean giving Member States the right to monitor, and even to influence, the practices or rules applied by the other Member States.
116 The Community legislature certainly did not intend Article 36 to be interpreted so broadly. The function conferred on the provision, which is meant to be an instrument at the service of the Member States against unreasonable effects which the free movement of goods has on their fundamental national interests, precludes such an interpretation.
117 In paragraph 20 of its judgment in Richardt and `Les Accessoires Scientifiques', cited above, the Court reaffirmed this principle of strict interpretation of Article 36 thus:
`The Court has stated on several occasions (see the judgment in Campus Oil, cited above, paragraph 37, concerning restriction on imports) that Article 36, as an exception to a fundamental principle of the Treaty, must be interpreted in such a way that its scope is not extended any further than is necessary for the protection of the interests which it is intended to secure. Measures adopted on the basis of Article 36 can therefore be justified only if they are such as to serve the interest which that article protects and if they do not restrict intra-Community trade more than is absolutely necessary.' (56)
118 I am not arguing that the protection of the life and health of animals must give way to the economic requirements of the free movement of goods but, more simply, that, given its function in the Treaty, which largely determines its territorial scope of application, Article 36 is not the appropriate instrument for resolving a case such as that before the national court.
119 Title XVI of the Treaty, on the environment, sets aims and lays down procedures enabling the Community to adopt measures exceeding the strict territorial boundaries of the Member States.
120 The territorial limitation of the scope of Article 36 does not in any way call in question its usefulness in the field of the protection of the health and life of animals. It allows a Member State to combine provisions taken to preserve an animal species threatened on its national territory with measures restricting or prohibiting export by individuals of the species concerned.
121 If, as I propose, the Court holds that recourse cannot be had to Article 36 of the Treaty for reasons other than the incompleteness of the harmonization carried out by the Directive, the second preliminary question, on the validity of Directive 91/629, will not require any reply.
122 If, on the contrary, the Court holds that the Directive, being exhaustive, precludes application of Article 36, I must, in the alternative, examine its validity.
VI - Validity of the Directive
123 The applicant in the main proceedings proposes, likewise in the alternative, that the reply to the second preliminary question should be that the Directive is contrary to the Contravention and to the Recommendation, the clear and unconditional provisions of which are, in its view, binding on the Community. (57)
124 The United Kingdom Government and the French Government, as well as the Council and Commission, on the other hand, consider that examination of the Directive discloses no factor such as to affect its validity.
125 The assessment of the validity of a rule of secondary Community law with reference to international instruments concluded by the Community must follow the criteria which the Court has laid down in connection with procedures relating to the application of the General Agreement on Tariffs and Trade (GATT). In its judgment in Case C-280/93 Germany v Council, the Court held that: `In deciding whether the applicant can rely on certain provisions of GATT to challenge the lawfulness of the Regulation, it should be noted that the Court has held that the provisions of GATT have the effect of binding the Community. However, it has also held that in assessing the scope of GATT in the Community legal system, the spirit, the general scheme and the terms of GATT must be considered.' (58)
A - Integration of the Convention and the Recommendation in Community law
126 No party disputes the Community's competence to conclude the Convention nor the validity of Decision 78/923 which approved its terms. (59)
127 The Community is therefore bound by the Convention, which since its entry into force has formed an integral part of the Community legal order.
128 According to the Court's established case-law, since they are directly linked to the agreement which they implement, measures emanating from a body established by the agreement and entrusted with responsibility for its implementation form part of the Community legal order. (60) In the present case, the Recommendation and Appendix C thereto were adopted by the Standing Committee formed under Article 8 of the Convention. This body `is to be responsible for the elaboration and adoption of recommendations to the Contracting Parties containing detailed provisions for the implementation of the principles set out in Chapter I of this Convention.' (61)
B - The effect of the standards laid down by the Convention and the Recommendation
129 Although the imperative form is used in the provisions of the Convention, with the word `shall' being systematically used to lay down the principles contained in Chapter I, (62) those provisions are for the most part characterized by imprecision.
130 Thus, the housing of animals, their feeding, and the care given to them must, in particular, according to the Convention, be `appropriate to their physiological and ethological needs in accordance with established practice and scientific knowledge'. (63) Similarly, the appropriateness of the housing, feeding, watering and care is to be determined `having regard to their species and to their degree of development, adaptation and domestication'. (64) The freedom of movement for the animals and the food and liquid given to them must not cause the animals `unnecessary suffering or injury'. (65) The same aim is given for the obligation to `thoroughly inspect' the state of health of animals at intervals which are `sufficient' for this purpose. (66) When an animal is killed on the farm, this must `be done competently and ... without causing unnecessary pain or distress to the animals ...'. (67) Finally, natural or artificial breeding or breeding procedures which cause, or are likely to cause, `suffering or injury' are prohibited. (68)
131 The only really precise provisions concern the minimum frequency of inspections of `the condition and state of health' of animals and of technical equipment which must be inspected at least once a day in the case of animals kept in intensive stock-farming systems. (69)
132 No precise rule can be found in the Convention which could call in question the `veal-crate' system as regards its main characteristics, namely the minimal width of the crates and the composition of the calves' food. Consequently, the concern expressed in the Convention to make the Contracting Parties aware about maintaining rearing conditions which respect the well-being of animals in vital areas is not reflected in the definition of standards whose non-observance by the Directive could affect its validity.
133 According to Article 20 of the Recommendation, this text `shall have no direct application within Parties and shall be implemented according to the method that each Party considers adequate, that is through legislation or through administrative practice'.
134 Appendix C which, according to Article 1(3) of the Recommendation, constitutes an integral part of the Recommendation, is subject to the same conditions regarding its entry into force.
135 The provisions of the Recommendation cannot therefore enter into force without implementing measures being taken by the signatories, each one for itself. Any binding force of the Recommendation is suspended upon adoption of such measures, so that the Directive is not subordinate to it. The procedure applicable in the event of failure to implement a recommendation is set out in Article 9(3) and (4) of the Convention. Significantly, this provision allows the Community to bring the effects of the Recommendation to an end simply by giving notice.
136 Irrespective of the conditions for its implementation, the actual content of the Recommendation precludes the calling in question of the validity of the Directive, which, here again, was not bound to observe its provisions. The rules laid down by the Recommendation, being more precise than those laid down by the Convention, are, however, characterized by the use of the conditional tense, at least in relation to the fields concerning the rearing system in question.
137 For example, as regards the space available for animals and their feed - the elements which characterize the rearing system in question - the first and third paragraphs of Article 6(3) of the Recommendation provide that: `The construction of accommodation for cattle ..., whether tethered or in pens, should at all times allow them sufficient freedom of movement to be able to groom themselves without difficulty and sufficient room to lie down, to rest, to adopt sleeping postures and freely to stretch their limbs and rise.
The animals ... should be able to see and touch other cattle.' (70)
138 Article 8 provides: `The space allowance for cattle housed in groups should be calculated in relation to the whole environment, the age, sex, live weight and behavioural needs of the stock, taking account of the presence or absence of horns and the size of the group. Lack of space or overstocking leading to trampling, behavioural or other disorders shall be avoided.' (71)
139 The point is that the conditional nature of those rules precludes them from being recognized as having the slightest binding force and that where, on the other hand, a standard is laid down in mandatory terms, its imprecision renders it unenforceable.
140 Article 10, dealing with feeding, partly falls into this last category. It provides: `All animals shall have appropriate access to adequate, nutritious, hygienic and balanced feed or wholesome liquid each day and to adequate supplies of water of suitable quality, so as to maintain their full health and vigour and to meet their behavioural and physiological needs. Sufficient roughage should be provided daily in accordance with the age and the physiological needs of the animal'. (72)
141 Finally, a reading of Appendix C leads to the same conclusion.
142 As regards the space allowance for calves, point 4, for example, states `The dimensions of the individual pen or stall shall be appropriate to the size of the animal' and `The width of the pen should be not less than ... the height of the calf at the withers ...'. (73)
143 Similarly, point 5 states: `Where possible, the keeping of calves in groups should be advised ...'.
144 The second paragraph of point 8 states: `Calves older than two weeks shall have access to a palatable, digestible and nutritious diet containing a sufficient quantity of iron and roughage appropriate to their age, weight and biological needs ...'. (74)
145 Point 14 states: `Since some systems at present in use are not designed, constructed or operated in such a way as to fulfil all the biological needs of calves, efforts must be made to develop and apply husbandry systems which minimize the risk of injuries and disease and allow for all their biological needs to be met, in particular by providing appropriate feeding regimes and by avoiding barren environments, too restricted areas, and lack of social contact.'
146 It follows that neither the Convention nor the Recommendation create obligations which compel adoption by the Directive.
147 However, the Court does not go by the spirit, scheme or terms of the international agreement of which the Community measure is alleged to be in breach. In its case-law on GATT, it has held that it must also review the legality of the measure in question in the event that `the Community intended to implement a particular obligation entered into within the framework of GATT, or if the Community act expressly refers to specific provisions of GATT ...'. (75)
148 The first recital in the preamble to the Directive explains that all the Member States have ratified the Convention and that the Community has also approved it.
149 Although that reference to the Convention marks the Community's intention to promote improvements in rearing conditions for veal calves, which is already evinced by the title and content of the Directive, the wording of the recital, which merely mentions the stage which the Member States and the Community have reached in the procedure for the adoption of the Convention, and the general nature of the reference, do not support the conclusion that the Community wished to confer binding force on any particular provision of the Convention or of the Recommendation, or that it was its intention to make the Directive serve the purpose of implementing them.
150 Consequently, I do not consider the validity of the Directive to be affected by the provisions of the Convention or of the Recommendation.
VII - Conclusion
151 I therefore propose that the Court should rule as follows in reply to the questions submitted to it.
(1) Article 36 of the EC Treaty must be interpreted as not allowing a Member State, even where no directive provides for full harmonization of the measures necessary to achieve the specific objective which recourse to Article 36 is meant to protect, to invoke grounds of public policy and/or the protection of the health and life of animals in order to justify measures restricting the export of live calves with a view to preventing those calves from being reared in the veal crate system used in another Member State.
Article 36 of the Treaty must be interpreted as allowing a Member State, in the same circumstances, to justify such measures on the grounds of public morality where protection of the health and life of animals is regarded in that Member State as falling within that field, the harm to the health or life of animals resulting from the rearing method in question is established by objective scientific evidence and the measures adopted are proportionate to the objective pursued.
(2) Consideration of Council Directive 91/629/EEC of 19 November 1991 laying down minimum standards for the protection of calves has disclosed no factor of such a kind as to affect its validity.
(1) - OJ 1991 L 340, p. 28 (hereinafter `the Directive' or `Directive 91/629').
(2) - First recital in the preamble to Council Decision 78/923/EEC.
(3) - OJ 1978 L 323, p. 12.
(4) - OJ 1992 L 395, p. 21.
(5) - Recommendation adopted by the Standing Committee of the Council of Europe at its 17th meeting, in accordance with the rules of the Convention.
(6) - OJ, English Special Edition 1968 (II), p. 187.
(7) - Fifth and sixth recitals.
(8) - Seventh recital.
(9) - Paragraph 3(b) of the order for reference.
(10) - Ibid.
(11) - Ibid., paragraph 3(l).
(12) - The RSPCA ceased to be a party to the proceedings before the High Court of Justice pursuant to an order made by that court on 8 May 1997, after the reference had been made to this Court.
(13) - See, for example, the judgment in Case C-104/95 Kontogeorgas [1996] ECR I-6643, paragraph 11.
(14) - Judgment in Case C-415/93 Bosman [1995] ECR I-4921, paragraph 59.
(15) - Ibid., paragraphs 60 and 61 and, more recently, the judgment in Case C-134/95 USSL No 47 di Biella [1997] ECR I-195, paragraph 12).
(16) - Paragraph 51 et seq. of this Opinion.
(17) - Paragraph 3(n) of the order for reference.
(18) - The affidavit of the representative of the RSPCA and CIWF, dated 5 July 1995, is entitled: `In the matter of an application for leave to apply for judicial review against the Minister of Agriculture, Fisheries and Food by the Royal Society for the Prevention of Cruelty to Animals and Compassion in World Farming Limited.'
(19) - Paragraph 3(m) of the order for reference.
(20) - Paragraph 3 of the written observations.
(21) - Judgment in Case C-5/94 The Queen v MAAF, ex parte Hedley Lomas [1996] ECR I-2553, paragraph 18.
(22) - Ibid. In its judgment in Joined Cases 141/81, 142/81 and 143/81 Holdijk and Others [1982] ECR 1299, at paragraph 13, the Court had already referred to the `Community's concern for the health and protection of animals, as evinced, inter alia, by Article 36 of the Treaty and by Council Decision No 78/923/EEC ...'.
(23) - See, for example, the judgment in Case 72/83 Campus Oil and Others [1984] ECR 2727, paragraph 27.
(24) - See the judgment in Case 83/78 Pigs Marketing Board [1978] ECR 2347, paragraphs 56 to 58, or, more recently, the judgment in Case 148/85 Direction Générale des Impôts v Forest [1986] ECR 3449, paragraph 14.
(25) - Judgment in Joined Cases 141/81, 142/81 and 143/81 Holdijk and Others, paragraph 12.
(26) - Judgment in Case C-5/94 Hedley Lomas, cited above, paragraph 18. See also the judgment in Case 5/77 Tedeschi [1977] ECR 1555, paragraph 35, and in Case C-169/89 Van den Burg [1990] ECR I-2143, paragraph 8.$
(27) - Article 4 of the Directive refers to the Annex, thus rendering its content binding, to the same extent as the Directive itself.
(28) - Article 11(1) provides: `Member States shall bring into force the laws, regulations and administrative provisions, including any sanctions, necessary to comply with this Directive not later than 1 January 1994. They shall forthwith inform the Commission thereof.'
(29) - Paragraph 1.7 of its written observations.
(30) - Paragraph 9 of its written observations.
(31) - Those requirements, contained in paragraph 1, are as follows:
`where calves are housed in groups, they must have sufficient unobstructed floor space to be able to turn round and lie down without hindrance of at least 1.5 m2 for each calf of 150 kg live weight,
where calves are housed in individual boxes or by tethering in stalls, the boxes or stalls shall have perforated walls and their width must be no less than 90 cm plus or minus 10%, or 0.80 times the height at the withers.'
(32) - The amendments made by Council Directive 97/2/EC of 20 January 1997, amending Directive 91/629 (OJ 1997 L 25, p. 24), in particular Article 3(3) and (4), do not change the argument nor the conclusions which I think must be drawn. Standards which are stricter and more precise than those laid down by the original Directive 91/629 as regards accommodation and floor space for veal calves are now to apply to new or rebuilt holdings and to those brought into operation after the end of the transitional period. But, although the date for bringing installations built before 1 January 1994 into conformity with the standards of the transitional period remains 31 December 2003, the date for bringing installations of the transitional period into conformity with the new standards is put back to 31 December 2006. Only the level of harmonization chosen by the legislature and the schedule for achieving it have therefore been changed, but not the principle of achieving it in stages. As long as the final stage, to be completed at the end of 2006, has still not been reached, harmonization cannot be regarded as having been fully and effectively achieved.
(33) - Judgment in Case 35/76 Simmenthal [1976] ECR 1871, paragraph 19, and judgment in Case 251/78 Denkavit Futtermittel [1979] ECR 3369, paragraphs 18 to 20.
(34) - I stated in paragraphs 24 and 25 of my Opinion in Hedley Lomas that breach of the Directive was not certain, or at any rate was not demonstrated, which was sufficient for the Court to rule out, in such circumstances, any recourse to Article 36 by the Member State of exportation.
(35) - Ibid., paragraphs 16, 20 and 21.
(36) - Paragraph 16 of the judgment is worded as follows: `It is against that factual background that the first question asked by the national court must be answered.'
(37) - The Court does not consider that a Member State has a right to have recourse to Article 36 in order to `obviate any breach by a Member State of rules of Community law' (judgment in Hedley Lomas, cited above, paragraph 20, my emphasis).
(38) - At paragraph 31.
(39) - Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, at p. 860, cited in my Opinion in Hedley Lomas at paragraph 32.
(40) - Ibid., paragraphs 33 to 39.
(41) - See, in particular, the judgment in Case 231/83 Cullet [1985] ECR 305, paragraphs 32 and 33, and the judgment in Case 34/84 Procureur de la République v Leclerc [1985] ECR 2915, paragraph 9).
(42) - See, in particular, the judgment in Campus Oil and Others, cited above, in which the Court held that `it must be decided whether the concept of public security ... covers reasons such as those referred to in the question raised by the national court' (paragraph 33).
(43) - Judgment in Case 34/79 Regina v Henn and Darby [1979] ECR 3795, paragraph 15. See also the judgment in Case 121/85 Regina v Conegate [1986] ECR 1007, paragraph 14.
(44) - The judgments in Henn and Darby and Conegate, cited above, involved pornography and the judgment in Case C-275/92 Schindler [1994] ECR I-1039, relating, however, to legislation governing a `services' activity, involved lotteries.
(45) - Paragraph 15.
(46) - Paragraph 15.
(47) - Judgment in Case C-350/92 Spain v Council [1995] ECR I-1985, paragraph 21. See also the judgment in Simmenthal, cited above, paragraph 24; Tedeschi, cited above, paragraph 34; Case 153/78 Commission v Germany [1979] ECR 2555, paragraph 5; Denkavit Futtermittel, cited above, paragraph 14; and Campus Oil, cited above, paragraph 32.
(48) - Judgment in Case C-367/89 Richardt and `Les Accessoires Scientifiques' [1991] ECR I-4621, paragraph 20.
(49) - See, to this effect, paragraph 29 of the Opinion of Advocate General Van Gerven in Case C-145/88 Torfaen Borough Council [1989] ECR 3851. A broad interpretation is, incidentally, facilitated by the actual meaning of the expression. Since morality is defined as `Attitude, moral conduct, principles', reference must be made to the term `morals', which means: `All the rules of conduct and values which operate as standards in a society', Le Petit Larousse.
(50) - See the comparable reasoning followed by the Court in the `services' field in Schindler, cited above, paragraphs 60 to 63.
(51) - Paragraph 4(g) of the order for reference.
(52) - See, for example, the judgment in Campus Oil, cited above, paragraph 37, and the judgment in Joined Cases C-13/91 and C-113/91 Debus [1992] ECR I-3617, paragraph 16.
(53) - Judgment in Case 30/77 Regina v Bouchereau [1977] ECR 1999, paragraph 35.
(54) - Paragraph 11 of the applicant's written observations. See also paragraph 13 of those observations and paragraphs 3(b), (j), (i) and 4(g) of the order for reference.
(55) - See, on this point, paragraph 5.3 of the Opinion of Advocate General VerLoren van Themaat in the Cullet case, cited above.
(56) - My emphasis.
(57) - Paragraphs 65 to 68 of its written observations.
(58) - Case C-280/93 Germany v Council [1994] ECR I-4973, paragraph 105.
(59) - I would point out, for the sake of precision, that this competence flows from the power which the Community has, on the internal level, in the matter of common agricultural policy and harmonization of laws. In its judgment in Joined Cases 3/76, 4/76 and 6/76 Kramer and Others [1976] ECR 1279, paragraphs 15 to 20, the Court held that, in the absence of specific provisions of the Treaty authorizing the Community to enter into international commitments in certain fields, reference had to be made `to the general system of Community law in the sphere of the external relations of the Community'. The Court stated that Article 210 of the Treaty, under which the Community has legal personality, `means that in its external relations the Community enjoys the capacity to enter into international commitments over the whole field of objectives defined in Part One of the Treaty ...'. In those circumstances, the Court concluded that `such authority arises not only from an express conferment by the Treaty, but may equally flow implicitly from other provisions of the Treaty ...'. Now, whilst the Treaty does not contain any specific provisions authorizing the Community to enter into international commitments in the field of protection of animals during rearing, Decision 78/923 is based on Articles 43 and 100 of the Treaty, relating to the aforementioned fields of common agricultural policy and harmonization of laws. Moreover, the fourth and fifth recitals in its preamble refer to, respectively, `disparities ... which may give rise to unequal conditions of competition and which may consequently have an indirect effect on the proper functioning of the common market' and to the common agricultural policy. It would therefore appear that the Community concluded the Convention pursuant to powers conferred on it by those instruments, in the corresponding fields and in order to attain the Community aims referred to in Article 3(d), (f) and (h) of the Treaty, as in force on the date of adoption of Decision 78/923. See also the judgment of the Court in Case 22/70 Commission v Council [1971] ECR 263, paragraphs 12 to 19, and Opinion 1/76 [1977] ECR 741, paragraphs 3 and 4.
(60) - Judgments in Case 30/88 Greece v Commission [1989] ECR 3711, paragraph 13, Case C-192/89 Sevince [1990] ECR I-3461, paragraph 9, and Case C-188/91 Deutsche Shell [1993] ECR I-363, paragraph 17.
(61) - Article 9(1) appearing in Chapter II `Detailed implementation'.
(62) - Only Chapter I lays down substantive rules applicable to the field dealt with by the Convention.
(63) - Articles 3a, 4(2) and 5.
(64) - Articles 3a, 4(1) and 5.
(65) - Articles 4(1) and 6, first paragraph.
(66) - Articles 4(1), 6(1) and 7(1).
(67) - New Article 7(2).
(68) - New Article 3 of the Convention, amended by the Protocol of Amendment cited above.
(69) - New Article 7(1) and (3).
(70) - My emphasis.
(71) - My emphasis.
(72) - My emphasis.
(73) - My emphasis.
(74) - My emphasis.
(75) - Judgment in Case C-280/93 Germany v Council, cited above, paragraph 111.
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