B —The Government of the Netherlands points out that the Mestkalverenbesluit is intended to establish certain basic rules intended to ensure the wellbeing of fatting calves. In that respect, that decree conforms to the European Convention for the Protection of Animals kept for Farming Purposes.It considers that Articles 38 to 47 of the Treaty do not preclude a measure such as the one at issue.It points out that in its judgment of 8 November 1979 in Case 15/79 Groenveld [1979] ECR 3409, the Court interpreted the prohibition contained in Article 34 of the Treaty as a principle of nondiscrimination, in so far as that Article “concerns national measures which have as their specific object or effect the restriction of patterns of export and thereby the establishment of a difference in treatment between the domestic trade of a Member State and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the State in question at the expense of the production or of the trade of other Member States”.It notes that the Court attributed a much wider scope to the prohibition contained in Article 34, interpreted within the context of a market organization, namely that it is a prohibition which excludes any national system of regulations which might impede directly or indirectly, actually or potentially, trade within the Community (judgment in Case 190/73 Van Haaster cited above and judgment of 26 February 1980 in Case 94/79 Vriend [1980] ECR 327). According to that interpretation, a measure which does not exclusively refer to exports, and even a measure which refers exclusively to the production stage, may fall within the prohibition (judgments in Case 190/73 Van Haaster and in Case 111 /76 Van den Hazel.That broad interpreution of Article 34 in the context of market organizations must be considered in relation to the objectives and the régimes of such organizations, namely the sundardization of conditions of production and marketing within the Community in order to enable traders to compete on the same terms and to ensure the proper functioning of the market (judgment of 23 January 1975 in Case 31/74 Galli [1975] ECR 47; judgment of 29 June 1978 in Case 154/77 Dechmann [1978] ECR 1573). In the fields covered by the common organizations of the markets, such organizations must in general operate on an exclusive basis. On the other hand, where a national measure falls outside those fields, that argument is not applicable and there is no reason to attribute to Article 34 an interpretation which extends beyond the principle of nondiscrimination.In order to determine whether national rules fall within a field covered by a common organization of the market, the purpose of the measures is decisive (judgment of 10 March 1981 in Joined Cases 36 and 71/80 Irish Creamery Milk Suppliers Association and Others v Government of Ireland and Others [1981] ECR 735, paragraph 19 of the decision, and judgment in Case 111/76 Van den Hazel, cited above).The object of the disputed measure, namely enhancement of the welfare of fatting calves, falls within an area to which, having regard to the purpose of Regulation No 805/68, that market organization does not extend.The fact that in general the majority of the existing market organizations still allow the Member States some scope for adopting national measures relating to the welfare of animals may be seen from the Council resolution of 22 July 1980 on the protection of layer hens in cages. It is precisely because that scope for the adoption of measures still exists that the Council decided to harmonize the national provisions.The Netherlands Government takes the view that neither the common organization of the market nor Article 34, interpreted in its context, precludes the measure in question. If, however, the Court were to consider that measures such as those in question fall within the scope of Article 34, they would have to be justifiable under Article 36, because the purpose for which they are adopted is the protection of the health of animals.The Netherlands Government concludes that the Member States in principle still have the power to introduce measures intended to ensure the wellbeing of animals. They should not however use that power so as to jeopardize the objectives or the functioning of the common organizations of the markets. As regards the régime introduced by Regulation No 805/68 of the Council, there are no grounds for fearing such a result.
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