FREE MOVEMENT OF GOODS

BORREGO CONEJO, ISABEL

Case c-169/17. Judgment of the court (first chamber),14 June 2018

I. INTRODUCTION

As can be seen in the judgement of the Court, this case concerns the interpretation of articles 34,
35 TFEU, and Articles 2.1.a) and 12 of Council Directive 2008/120/EC of 18 December 2008 laying
down minimum standards for the protection of pigs (OJ 2009 L 47, p. 5). The request was made in
proceedings between the Asociación Nacional de Productores de Ganado Porcino and the
Spanish’s State Administration, regarding a royal decree adopted by the Spanish Government
approving quality standards for meat, ham, shoulder ham and loin derived from Iberian pigs.

II. LAW PROVISIONS. EUROPEAN UNION AND SPANISH LAW

Article 7 and 8 of Directive 2008/120 stablish that “there is a need to establish common
minimum standards for the protection of pigs kept for rearing and fattening in order to ensure
rational development of production. Pigs should benefit from an environment corresponding to their
needs for exercise and investigatory behaviour. The welfare of pigs appears to be compromised by
severe restrictions of space.”

Articles 2.1.a) and 12 state that member states have to accomplish certain requirements
concerning the minimum standards above-mentioned. Nevertheless, the Directive allows member
states, in accordance with the general rules of the treaty, maintain or apply stricter provisions for the
protection of pigs that the ones in the Directive, with prior reports to the Commission.

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 Royal Decree 4/2014 of 10 January 2014 established quality standards relating to products such
as ham and loin derived of Iberian pigs’ carcasses in order to be able to use the sales designation
provided for the royal decree. In addition, products registered under EU quality schemes that wish to
use this sales designation provided by the Royal Decree must respect this legislation.

III. FACTS AND PROCEDURE

The association started an ordinary administrative procedure against the Royal Decree before the
Supreme Court of Spain. As the judgement reflect, the Association argues that the Decree “creates a
distortion of competition at European Union level by imposing higher cost on the production of Iberian
pig products in Spain”.

In fact, they claim that the Decree constitutes a quantitative restriction on exports that is
incompatible with article 35 TFEU, as competing producers of other member states don´t have
to bear the cost of the measures imposed by the Spanish administration. The products with the
designation “ibérico de cebo” are in disadvantage compared to other EU producers, as they have to
bear higher cost as a result of the new regulation. They also point out that “nevertheless, it
acknowledges that, under the third additional provision of that decree, the marketing of products
originating from other Member States and bearing similar, comparable or identical designations is to
be permitted in Spanish territory, even if they were not produced in accordance with the provisions
of that decree, provided that they comply with the quality standards of those Member States.”

Additionally, the association defends that the aim of the Royal Decree is not the protection of
pigs, but rather the improvement of product quality. In this way, Directive 2008/120 is not a valid legal
basis for the Royal Decree, as Article 12 only allows the adoption of more stringent national measures
when the aim of the measure is the protection of animals. The Supreme Court decided to refer these
questions to the Court of Justice for a preliminary ruling.

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 IV. DECISION

All in all, three essential questions were asked to the Supreme Court, as will be shown below.
Question one and three are answered together by the Court.

In the first place, the tribunal stablish that article 34 and 35 TFEU do not preclude national
legislation. Article 34 TFEU does not preclude national legislation, since the Decree allows the
importation and marketing of products from Member States other than the State that adopted the
legislation at issue, under the designations they bear according to the state of origin, even if they are
similar, comparable or identical to the designations provided for in the Decree.

Secondly, the EU Court of Justice points out that Article 3.1.a) of Council Directive
2008/120/EC of 18 December 2008 and article 12 of the Directive do not preclude national legislation.
However, the Court notes that the objective of the royal decree is not the protection of pigs, but rather
the improvement of the quality of the products. Consequently, the Royal Decree is not included in the
scope of Directive 2008/120. However, by increasing the minimum floor area to each animal and the
minimum slaughter age, the Decree is not damaging the welfare of the pigs and is not incompatible
with the directive.