EU internal Market. Dog case (0)

1 Hindamata

Can the PB&R company successfully claim any violation of the EU law related rights ?
Examination

Can we say that an animal (a dog) is a good ? – Yes. According to Article 13 TFEU dogs do belong to a “ goods ” category so as it is described in CJEU case law that a good is a product which can be valued in money and which is capable of forming the subject of commercial transactions. Therefore PB&R company and its business is selling dogs, or shall I say goods not just on a local fields, but the movement of goods is linked to abroad EU countries by making a profit of it I shall conclude that it involves a “movement of goods within the EU Member States ” ( Articles 26 and 37).

Is there a restriction of trade in goods?

Can we name an animal, or to be more exact a dog as a “good” – yes, in accordance of Article 13 TFEU: “In formulating and implementing the Union's agriculture , fisheries, transport, internal market , research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements of animals, while respecting the legislative or administrative provisions and customs of the Member States relating in particular to religious rites, cultural traditions and regional heritage”.

Can dogs be a subject of a commercial trading? - Pursuant to Articles 4 and 10(2) of the The Directive on veterinary and zootechnical checks, dogs may be the subject of trade in principle only if certain conditions are met ( Case C‑301/14 Pfotenhilfe-Ungarn eV V Ministerium für Energiewende, Landwirtschaft, Umwelt und ländliche Räume des Landes Schleswig-Holstein).

Are there any measures that may restrict such an action or inaction for free trade within Member States? - According to articles 34 and 35, there could not be any restrictions on export or import of goods within the Member States. A measure having equivalent effect has been defined in Dassonville.

Are there any restrictions for animal trading for commercial or non-commercial purposes ? – yes. Pursuant to Article 3(1) of the Directive on veterinary and zootechnical checks, Member States must ensure that animals covered by the directive may be the subject of trade only if they fulfil a number of conditions. Those animals must, in particular, satisfy the requirements of the relevant directives listed in Annex A and come from holdings, centers or organizations which are subject to regular official veterinary checks.
According to the TFEU free movement provision articles 26 and 37, basically mentioned PB&R company may claim for a compensation from the EU Member State because animals or any kind of goods may and should have no barriers within Union’s member states to move as a part of “free movement agreement”. According to the Treaty , all businesses, which are legal and are operating in Member State(s) should not be banned or there should not be any restrictions added to their businesses within the territory of all states that agreed on “free movement”. According to article 34 and 35 there could not be any restrictions on export or import of goods within the Member States. So based on this particular case there was a ban that influenced company’s export and import procedures which ended as a loss and damage of PB&R’s business.
Unfortunately, the fact that governmental decision on placing restrictions ASAP did made an influence on PB&R (and I have to assume on other EU firms ) business and caused financial damage so why company owners may claim for a compensations. Based on information provided upper there was a valuation of articles:

26 (1):The internal market shall comprise an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of the Treaties;
34&35: Quantitative restrictions on imports/exports and all measures having equivalent effect shall be prohibited between Member States;
37: Member States shall adjust any State monopolies of a commercial character so as to ensure that no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.

Are there any restrictions that may be added for production of import or export? – Yes, if they do not meet with regulations of article 36 of the TFEU
They are free to establish their rights and obligations on the basis of the contract and in determining any terms of the contract that are not contrary to the law. Civil rights may be restricted based on the federal law and only to the extent necessary to protect the foundations of the constitutional order , morality , health, rights and legitimate interests of others , ensure the country 's defense and state security as mentioned in TFEU Article 36. As an opposite example, when Court of Justice find restrictions acceptable: (Case C-157/96 National Farmers’ Union and Others [1998] ECR I-2211.). The Court stated : “where there is uncertainty as to the existence or extent of rights to human health, the institution may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent’. Basically, there are situations when government have to act ASAP, s as shown in this case.

According to all facts provided above , I may assume that there was a direct impact on business of the PB&R Company so as other businesses located abroad (see Cassis de Dijon case).

May we add Art. 37 of the TFEU to the given case? – I do find it possible, thou there aren ’t any direct fact regarding monopoly (Case C-189/95 Franzén v Landskrona Tingsrätt - Sweden case).
I shall assume that there is an indirect valuation of the Article 37 regarding State monopolies of a commercial character. Animal businesses (that includes not only the EU) are in the most of their quantities ether international companies guided from one office, or large local monopolies who do have opportunities financial and physical to obtain their businesses abroad and connect them directly or indirectly. Fact taken from an official website of GreenPeace organization: Factory farms now account for 72 percent of poultry production, 43 percent of egg production, and 55 percent of pork production worldwide1. That gives smaller (lets name then SOHO) businesses less opportunities for growth and expansion.

Principle of proportionality: Regarding the principle of proportionality, it was understandable and reasonable why in this particular case state measures and restrictions were made, or should I say, in such a quick response. I do find those that steps were made with best intentions, or to be more exact “to prevent injuries and protect the society from possible incidents that entailed irreversible consequences .
Principle of proportionality, the issue of the conformity of national measures to this principle is competent to be decided by the courts of the Member States, and the EU Court exercises a supervisory function, guided by considerations of political expediency. So in the decision of the Court of Justice in the case of Cassis de Dijon, there is a clear tendency not to narrow the limits of national regulation indefinitely, but to meet Member State’s needs .
In the system of the EU the principle of proportionality is, so as it should be, a logical continuation of the principle of subsidiarity. Basically, logic which is shown in this particular principle stands for universal re-solving issues and problems of the Union – may I say “locally”. Union should not interrupt or being “too much involved” in public life of the Member States by wasting existing resources on problems that might and should be solved “locally” (without EU’s agencies and commissions) (Article 276 TFEU).

How company can claim/invoke EU law? Please explain available judicial procedure(s) and possible remedy(s) for violation of EU law. (25 points )
Regarding all facts and history of the European Court, every case might be unique and cause an “awake” to the European law. So far, there were many of those examples , which made EU law much more effective and reliable (as an example a case of “ Italy v Commission 2003”, the chocolate issue). Every single act or confrontation of company, State or just a regular citizen reflects how applied system works, makes it better, more efficient and in the end much more effective. Therefore we cannot avoid conflicts because there will always be misunderstanding of law interpretation (s) which made our law environment by itself much more progressive.
In this particular case, there are two opposite conflicts (and points of both are clearly understandable) that had collapsed: business that has been damaged because of the Member States, clearly too fast restrictions, and safety of citizens (which cannot be ignored and inactivity, by itself, tolerated). From the other side of view concerns regarding dogs that do have their owners, who (on the first place ) should be responsible for their pets, clearly haven’t been mentioned in this case at all. I do find important (so as giving a gun allowance) to find out mental (first of all) and financial(for trainings, proper food, medical care etc) aspects of every future owner , to avoid issues when not just people but pets will be suffering from irresponsibility, barbarism and finally indifference of possible owners. Those aspects never ( even nowadays) haven’t been fulfilled which is a huge loss and I would name it as a “loophole” of the EU law system.
So far about dogs, but what would be the most effective juridical procedures? The owner of the PB&R business should definitely make a claim against the Member State’s actions that had provided restrictions to the local instances because there was no opportunity of reasonable
timings for local and overseas business to adapt to a new business field (as an example in the UK so named “Government Claims Program) to the Member State’s national court. Claim should include reference to an existing law, amendments to an existing law and, of course, an explanation or reasonable point of view, in which way did it affected PB&R business.
Secondly, a claim should include Articles (so local, as TFEU’s) that secures businesses within Member State’s field so as within the EU. Under Article 19(3)(b) of the Treaty on European Union (‘TEU’) and Article 267 of the Treaty on the Functioning of the European Union (‘TFEU’), the Court of Justice of the European Union has jurisdiction to give preliminary rulings on the interpretation of Union law and on the validity of acts adopted by the institutions , bodies, offices or agencies of the Union2. Therefore, national courts may submit a request only in a situation when “national proceedings have reached a stage at which the referring court or tribunal is able to define the legal and factual context of the case…3”, so by that Treaty clearly says that there should be prior-actions made before a query to a Court of Justice. Basically, every company what do find it’s writes to be valuated must pass whole juridical hierarchy
If a claim will be rejected, I do find that business should file a claim directly to the EU Commission that has a full power of monitoring directives, federal law and regulations that are being applied in the Member States. Therefore, with an official decision of the EU Commission PB&R company should file a claim to the Court of Justice directly.
Question that stands for choosing the best option in between regulations and directives – well, I would apparently prefer “directive-way” of solving Member States constitutional and legal modifications provided by the Unions to allocate them Member State has more freedom and space to “make it all work ”. In a same time, there should be an opposite response from local authorities who may not avoid basic rights of citizens of the EU by applying restrictions that are against the Unions law.
1 - http://www.greenpeace.org/international/en/campaigns/agriculture/problem/Corporations-Control-Our-Food/
2, 3 - http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32012H1106(01)

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Dog case in EU law violation of EU law rights member member state

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