61982CJ0040_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 40/82
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY RICHARD WAINWRIGHT, ACTING AS AGENT, ASSISTED BY PETER OLIVER, MEMBERS OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
SUPPORTED BY
FRENCH REPUBLIC, REPRESENTED BY GILBERT GUILLAUME, DIRECTOR OF LEGAL AFFAIRS IN THE MINISTRY OF FOREIGN RELATIONS, ACTING AS AGENT, AND BY ALEXANDRE CARNELUTTI, ACTING AS ASSISTANT AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY,
INTERVENER,
V
UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, REPRESENTED BY SIR IAN PERCIVAL, QC, SOLICITOR GENERAL, PETER SCOTT, QC, AND PETER LANGDON-DAVIES, BARRISTER, AND MRS G . DAGTOGLOU AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BRITISH EMBASSY,
DEFENDANT,
SUPPORTED BY
IRELAND, REPRESENTED BY LOUIS J . DOCKERY, CHIEF STATE SOLICITOR, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE IRISH EMBASSY,
INTERVENER,
Subject of the case
APPLICATION FOR A DECLARATION THAT, BY IMPOSING RESTRICTIONS ON IMPORTS OF POULTRYMEAT, EGGS AND EGG PRODUCTS, THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 30 OF THE EEC TREATY,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 4 FEBRUARY 1982 THE COMMISSION OF THE EUROPEAN COMMUNITIES BROUGHT AN ACTION UNDER ARTICLE 169 OF THE EEC TREATY FOR A DECLARATION THAT, BY ADOPTING THE IMPORT BAN AND THE IMPORT LICENSING SYSTEM REFERRED TO IN THE APPLICATION, THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 30 OF THE EEC TREATY .
I - SUBJECT-MATTER OF THE ACTION
2 AS FAR AS THE IMPORT BAN IS CONCERNED, THE APPLICATION STATES THAT AS FROM 1 SEPTEMBER 1981 THE UNITED KINGDOM GOVERNMENT HAS IMPOSED A TOTAL BAN ON THE IMPORTS OF FRESH, FROZEN OR CHILLED POULTRYMEAT, EGGS ( OTHER THAN HATCHING EGGS ) AND EGG PRODUCTS INTO ENGLAND, WALES AND SCOTLAND FROM ALL OTHER MEMBER STATES EXCEPT DENMARK AND IRELAND .
3 ACCORDING TO THE APPLICATION, THESE RESTRICTIONS HAVE BEEN IMPOSED ON THE BASIS OF THE IMPORTATION OF ANIMAL PRODUCTS AND POULTRY PRODUCTS ORDER 1980 ( SI 1980 NO 14 ), AS AMENDED BY AMENDMENT ORDERS OF 1980 AND 1981 ( SI 1980 NO 1934 AND SI 1981 NO 1238 ), WHICH PROHIBITS THE LANDING IN GREAT BRITAIN OF POULTRY PRODUCTS, INCLUDING EGGS AND EGG PRODUCTS, WITHOUT A GENERAL OR SPECIFIC LICENCE ISSUED BY THE APPROPRIATE MINISTRY UNDER THAT ORDER .
4 THE MEASURES IMPOSING NEW RESTRICTIONS ON THE IMPORT OF POULTRY PRODUCTS WITH EFFECT FROM 1 SEPTEMBER 1981 WERE ANNOUNCED BY A NOTICE WHICH WAS PUBLISHED IN THE ' ' LONDON GAZETTE ' '
AND IN THE ' ' EDINBURGH GAZETTE ' '
OF THAT DATE . THESE MEASURES ( HEREINAFTER REFERRED TO AS ' ' THE 1981 MEASURES ' ' ) WERE TO THE EFFECT THAT ALL GENERAL LICENCES FOR THE IMPORT OF POULTRY PRODUCTS FROM OTHER MEMBER STATES WERE REVOKED AND THAT NEW GENERAL LICENCES WERE ISSUED FOR THE IMPORT OF SUCH PRODUCTS FROM DENMARK AND IRELAND . THESE NEW GENERAL LICENCES CONCERN EGGS ( NOT INTENDED FOR HATCHING ), FRESH OR REFRIGERATED CARCASES AND PART CARCASES DERIVED FROM CHICKENS, TURKEYS, DUCKS, GEESE AND GUINEA FOWL, WITH OR WITHOUT ACCOMPANYING OFFAL, AND UNACCOMPANIED OFFALS .
5 THE COMMISSION CLAIMS THAT THE UNITED KINGDOM GOVERNMENT MADE IT KNOWN, AT ABOUT THE SAME TIME, THAT IT DID NOT INTEND TO GRANT ANY LICENCES AT ALL WITH RESPECT TO THE IMPORT OF POULTRY PRODUCTS, INCLUDING EGGS ( NOT INTENDED FOR HATCHING ) AND EGG PRODUCTS, IF THEY CAME FROM MEMBER STATES OTHER THAN DENMARK AND IRELAND, BUT THAT IT WOULD BE PREPARED TO GRANT LICENCES FOR THE IMPORT OF HEAT-TREATED EGG PRODUCTS FROM ANY MEMBER STATE .
6 THE COMMISSION FURTHER STATES THAT, ALTHOUGH THE 1981 MEASURES APPLY ONLY TO IMPORTS INTO ENGLAND, WALES AND SCOTLAND, SIMILAR RESTRICTIONS HAVE BEEN IN FORCE SINCE BEFORE THE UNITED KINGDOM ' S ACCESSION TO THE COMMUNITY IN RESPECT OF IMPORTS OF POULTRY PRODUCTS INTO NORTHERN IRELAND . UNDER THE DISEASES OF ANIMALS ( IMPORTATION OF POULTRY ) ORDER ( NORTHERN IRELAND ) 1965 ( SI 1965 NI NO 175 ), AS AMENDED BY AN AMENDMENT ORDER OF 1968 ( SI 1968 NI NO 106 ), IMPORTS OF CARCASES OF POULTRY AND EGGS, EXCEPT, UNDER CERTAIN CONDITIONS, WHEN COMING FROM IRELAND, ARE SUBJECT TO AN IMPORT LICENSING SYSTEM . IN PRACTICE, NO IMPORT LICENCES ARE GRANTED FOR IMPORTS FROM OTHER MEMBER STATES THAN IRELAND AND DENMARK .
7 THE UNITED KINGDOM RECOGNIZES THAT ITS LEGISLATION ON ANIMAL HEALTH, AS FAR AS POULTRY PRODUCTS ARE CONCERNED, AMOUNTS TO AN IMPORT LICENSING SYSTEM, AND THAT IT ADOPTED THE 1981 MEASURES IN THE MANNER INDICATED BY THE COMMISSION . IT CONTENDS, HOWEVER, THAT THESE MEASURES CANNOT BE CONSIDERED AS A TOTAL IMPORT BAN .
8 ACCORDING TO THE UNITED KINGDOM, THE 1981 MEASURES FORMED PART OF A NUMBER OF ARRANGEMENTS INTENDED TO DEAL IN A MORE EFFECTIVE WAY WITH THE CONTROL OF NEWCASTLE DISEASE IN POULTRY . THE UNITED KINGDOM GOVERNMENT HAD INDEED DECIDED TO REINTRODUCE A COMPULSORY SLAUGHTER POLICY IN CASE OF ANY FUTURE OUTBREAK OF THE DISEASE IN GREAT BRITAIN, IN LINE WITH THE POLICY THAT WAS ALREADY APPLIED IN NORTHERN IRELAND . AS A RESULT, ANY POULTRY FLOCK IN WHICH NEWCASTLE DISEASE WAS CONFIRMED WOULD BE SLAUGHTERED AS FROM 1 SEPTEMBER 1981 ; AS FROM THAT SAME DATE, THE USE OF NEWCASTLE DISEASE VACCINE WOULD BE STOPPED . THE IMPLEMENTATION OF THIS NEW POLICY WOULD RESTORE THE WHOLE OF THE UNITED KINGDOM TO THE HIGHEST INTERNATIONALLY RECOGNIZED DISEASE-FREE CATEGORY FOR POULTRY .
9 THE UNITED KINGDOM GOVERNMENT HAD BEEN AWARE, HOWEVER, OF THE EXTREMELY INFECTIOUS CHARACTER OF NEWCASTLE DISEASE . WITH THE REMOVAL OF VACCINE PROTECTION THE BRITISH POULTRY FLOCK COULD BECOME TOTALLY SUSCEPTIBLE TO INFECTIONS AS A RESULT OF ANY IMPORTS FROM COUNTRIES WHICH MIGHT NOT BE CLEAR OF THE VIRUS OR WHICH PERMITTED FREE USE OF VACCINE . INDEED, THE USE OF VACCINE MIGHT DISGUISE THE PRESENCE OF FIELD VIRUS IN POULTRY . CONSEQUENTLY, IT WAS NECESSARY TO APPLY MORE STRINGENT HEALTH REQUIREMENTS TO IMPORTS OF FRESH, INCLUDING FROZEN, POULTRYMEAT, EGGS AND EGG PRODUCTS INTO GREAT BRITAIN, EXCEPT FOR HEAT-TREATED EGG PRODUCTS IN WHICH THE VIRUS CANNOT REMAIN ACTIVE .
10 THE UNITED KINGDOM GOVERNMENT MADE IT CLEAR, THEREFORE, THAT AS FROM THE DATE OF INTRODUCTION OF THE NEW POLICY, IMPORTS OF THESE PRODUCTS COULD ONLY BE ACCEPTED FROM COUNTRIES WHICH WERE TOTALLY FREE FROM NEWCASTLE DISEASE, WHICH PROHIBITED THE USE OF VACCINE AND WHICH IMPOSED COMPULSORY SLAUGHTER REQUIREMENTS IN THE EVENT OF AN OUTBREAK OF THE DISEASE .
11 IMPORTS FROM ANY MEMBER STATE MEETING THESE THREE CONDITIONS WOULD REMAIN POSSIBLE AFTER 1 SEPTEMBER 1981 . HOWEVER, THE INFORMATION AVAILABLE AT THE TIME SUGGESTED THAT DENMARK AND IRELAND WERE THE ONLY MEMBER STATES ABLE TO SATISFY THESE REQUIREMENTS . AS ANY MEMBER STATE IS FREE TO ADOPT THE SAME SYSTEM AS THE UNITED KINGDOM, IRELAND AND DENMARK, THE MEASURES IN QUESTION CAN, IN THE UNITED KINGDOM ' S OPINION, NOT BE ASSIMILATED TO A TOTAL IMPORT BAN . IT WOULD, IN FACT, BE VERY DESIRABLE IF OTHER MEMBER STATES WERE TO ADOPT THE SAME HIGH STANDARDS OF BIRD HEALTH AS THE UNITED KINGDOM, SINCE SUCH A POLICY, IF GENERALLY FOLLOWED, WOULD PERMIT FREE MOVEMENT OF POULTRY AND POULTRY PRODUCTS THROUGHOUT THE COMMUNITY .
II - SUMMARY OF THE LEGAL ARGUMENTS
12 THE COMMISSION SUBMITS THAT THE RESTRICTIONS ON IMPORTS OF POULTRY PRODUCTS FROM OTHER MEMBER STATES, EXCEPT IRELAND AND DENMARK, AS PRACTISED BY THE UNITED KINGDOM, CONSTITUTE AN INFRINGEMENT OF ARTICLE 30 OF THE TREATY WHICH FORBIDS QUANTITATIVE RESTRICTIONS ON IMPORTS FROM OTHER MEMBER STATES AND MEASURES HAVING AN EFFECT EQUIVALENT TO SUCH RESTRICTIONS, WHICH CANNOT BE JUSTIFIED UNDER ARTICLE 36 OF THE TREATY .
13 THE COMMISSION AGREES WITH THE UNITED KINGDOM THAT THE HIGHEST LEVELS OF FREEDOM FROM ANIMAL DISEASE SHOULD BE THE OBJECTIVE OF ALL MEMBER STATES, BUT IT ADDS THAT MEASURES INTENDED TO REDUCE THE INCIDENCE OF ANIMAL DISEASE MUST REMAIN WITHIN THE BOUNDS LAID DOWN BY THE TREATY .
14 FROM THIS POINT OF VIEW, THE COMMISSION CHALLENGES IN PARTICULAR FOUR ASPECTS OF THE UNITED KINGDOM ' S LEGISLATION AND PRACTICE . IN THE COMMISSION ' S VIEW :
( A ) THE IMPORT LICENSING SYSTEM RESTRICTS IMPORTS MORE THAN IS NECESSARY FOR THE PROTECTION OF ANIMAL HEALTH ;
( B)THE IMPORT BAN RESTRICTS IMPORTS MORE THAN IS NECESSARY FOR THE PROTECTION OF ANIMAL HEALTH ;
( C)AS REGARDS ENGLAND, WALES AND SCOTLAND, THE IMPORT BAN CONSTITUTES A MEANS OF ARBITRARY DISCRIMINATION WITHIN THE MEANING OF THE SECOND SENTENCE OF ARTICLE 36 ;
( D)AS REGARDS ENGLAND, WALES AND SCOTLAND, THE IMPORT BAN CONSTITUTES A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES WITHIN THE MEANING OF THE SECOND SENTENCE OF ARTICLE 36 .
15 THE UNITED KINGDOM CONTENDS THAT THE 1981 MEASURES, FAR FROM CONSTITUTING A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES, ARE FULLY JUSTIFIED UNDER ARTICLE 36, AS THEY ARE AN ESSENTIAL PART OF A POLICY AIMED AT COMPLETE ERADICATION OF NEWCASTLE DISEASE AMONG POULTRY . INDEED, SUCH A POLICY WOULD HAVE THE EFFECT OF FACILITATING, AND NOT OF RESTRICTING, TRADE WITH MEMBER STATES WHICH APPLY THE SAME HIGH STANDARDS OF ANIMAL HEALTH AS THE UNITED KINGDOM .
16 AS FAR AS THE IMPORT LICENSING SYSTEM IS CONCERNED, THE UNITED KINGDOM RECALLS THAT SUCH A SYSTEM HAS BEEN ACCEPTED BY THE COMMUNITY WITH REGARD TO FOOT-AND-MOUTH DISEASE AND TO SWINE FEVER . IN ITS SUBMISSION, THERE IS NO REASON WHY A DIFFERENT APPROACH SHOULD BE CONSIDERED IN THE CASE OF NEWCASTLE DISEASE, AS A SERIOUS OUTBREAK OF THIS DISEASE WOULD HAVE GRAVE ECONOMIC CONSEQUENCES COMPARABLE TO THOSE RESULTING FROM A WIDESPREAD EPIZOOTIC OUTBREAK OF FOOT-AND-MOUTH DISEASE OR SWINE FEVER .
17 THE FRENCH REPUBLIC, INTERVENING, SUPPORTS THE COMMISSION ' S CONCLUSIONS IN SO FAR AS THEY ARE DIRECTED AGAINST THE 1981 MEASURES, IN ITS VIEW, THESE MEASURES CANNOT BE JUSTIFIED UNDER THE FIRST SENTENCE OF ARTICLE 36 AND CLEARLY CONSTITUTE A MEANS OF ARBITRARY DISCRIMINATION AND A DISGUISED RESTRICTION ON IMPORTS OF POULTRY PRODUCTS FROM OTHER MEMBER STATES, IN PARTICULAR FROM FRANCE .
18 IRELAND, INTERVENING, SUPPORTS THE UNITED KINGDOM ' S CONCLUSIONS IN SO FAR AS THE IMPORT LICENSING SYSTEM IS CONCERNED . IN ITS VIEW, SUCH A SYSTEM IS, IN ITSELF, NOT CONTRARY TO ARTICLE 36, BECAUSE THE QUESTION WHETHER IMPORT LICENSING IS JUSTIFIED FOR THE PROTECTION OF ANIMAL HEALTH DEPENDS ON THE PARTICULAR RISKS WHICH IMPORTS OF ANIMAL PRODUCTS INVOLVE FOR THE HEALTH OF LIVESTOCK .
19 MOREOVER, IRELAND MAKES IT CLEAR THAT, AT THE MOMENT OF THE ACCESSION OF IRELAND AND THE UNITED KINGDOM TO THE COMMUNITY, BOTH IRELAND AND NORTHERN IRELAND APPLIED A POLICY OF NON-VACCINATION AND OF COMPULSORY SLAUGHTER . AS A RESULT, POULTRY PRODUCTS MOVED FREELY FROM IRELAND TO NORTHERN IRELAND AND VICE VERSA, WHEREAS NO POULTRY PRODUCTS COULD BE IMPORTED, EITHER INTO IRELAND OR INTO NORTHERN IRELAND, FROM GREAT BRITAIN WHERE VACCINE WAS STILL IN USE .
20 FOR THIS REASON, IRELAND CONTENDS THAT THE LEGAL ARGUMENTS RAISED BY THE COMMISSION WITH REGARD TO THE SYSTEM APPLIED IN NORTHERN IRELAND ARE THE SAME AS THOSE WHICH ARE AT ISSUE IN THE SEPARATE ACTION WHICH THE COMMISSION HAS BROUGHT AGAINST IRELAND ( CASE 74/82 ). IRELAND THEREFORE ASKS THE COURT NOT TO TAKE A DECISION ON THE MEASURES APPLIED IN NORTHERN IRELAND BEFORE CASE 74/82 HAS BEEN HEARD .
III - FACTUAL BACKGROUND
21 BEFORE ASSESSING THE LEGAL ARGUMENTS, THE COURT THINKS IT USEFUL TO SET OUT A NUMBER OF FACTS WHICH MAY HAVE A BEARING ON THE WAY IN WHICH THE PROBLEMS AT ISSUE SHOULD BE APPRECIATED .
22 FIRST, THERE IS AGREEMENT AMONG THE PARTIES THAT IMPORTS OF POULTRYMEAT AND POULTRY PRODUCTS INTO THE UNITED KINGDOM FROM OTHER MEMBER STATES SHOWED A REMARKABLE RISE IN THE YEARS PRECEDING THE INTRODUCTION OF THE 1981 MEASURES . THIS INCREASE CONCERNED IN PARTICULAR IMPORTS OF SLAUGHTERED WHOLE TURKEYS ; IN 1980 IMPORTS OF WHOLE TURKEYS FROM FRANCE SHOWED A STEEP RISE AS COMPARED WITH THOSE IN 1979 .
23 IT IS ALSO AGREED THAT BY MID-1981 THE UNITED KINGDOM GOVERNMENT AND BRITISH PRODUCERS WERE GRAVELY CONCERNED BY THE CONTINUING INCREASE IN THE IMPORTATION OF TURKEYS FROM FRANCE, AND THAT BRITISH POULTRY PRODUCERS MADE IT KNOWN THAT THEY WERE TROUBLED ABOUT GOVERNMENT SUBSIDIES WHICH, THEY ASSERTED, HAD BEEN MADE AVAILABLE TO FRENCH PRODUCERS . IN THESE CIRCUMSTANCES, A CERTAIN PRESSURE WAS PUT ON THE UNITED KINGDOM GOVERNMENT, BY ARTICLES IN THE PRESS AND IN OTHER WAYS, TO TAKE ACTION IN ORDER TO REDUCE IMPORTS OF POULTRY PRODUCTS FROM FRANCE .
24 SECONDLY, THE UNITED KINGDOM DOES NOT DENY THAT THE DATE CHOSEN FOR THE INTRODUCTION OF THE 1981 MEASURES WAS SUCH AS TO PREVENT IMPORTS OF CHRISTMAS TURKEYS FROM FRANCE INTO GREAT BRITAIN FOR THE 1981 SEASON, AND THAT THESE IMPORTS HAD CONSTITUTED A VERY SUBSTANTIAL PART OF THE TOTAL IMPORTS OF TURKEYS IN THE PRECEDING YEARS .
25 IT IS ALSO AN ESTABLISHED FACT THAT FRANCE TRIED TO RETAIN ITS POULTRY OUTLETS ON THE BRITISH MARKET BY INTRODUCING, IN SEPTEMBER 1981, A POLICY ON NEWCASTLE DISEASE WHICH WAS BROADLY SIMILAR TO THE ONE RECENTLY ADOPTED BY THE UNITED KINGDOM . AS FROM 16 SEPTEMBER 1981, IT PROHIBITED THE USE OF VACCINE AND INSTITUTED A POLICY OF COMPULSORY SLAUGHTER IN THE EVENT OF AN OUTBREAK OF DISEASE . THE BRITISH AUTHORITIES REFUSED, HOWEVER, TO ADMIT FRENCH POULTRY PRODUCTS TO THEIR TERRITORY ON THE GROUND THAT FRANCE HAD NOT RESTRICTED POULTRY IMPORTS FROM NON-MEMBER COUNTRIES, NOTABLY FROM SPAIN AND FROM SOME EAST EUROPEAN COUNTRIES, WHERE VACCINE WAS STILL IN USE . THE FRENCH GOVERNMENT MAINTAINS THAT IT HAD PREVIOUSLY BEEN ABLE TO COME TO ARRANGEMENTS WITH SWITZERLAND WHEN OUTBREAKS OF THE DISEASE OCCURRED IN FRANCE BUT NOT IN SWITZERLAND, IN SUCH A WAY THAT FRENCH IMPORTS INTO THAT COUNTRY COULD CONTINUE, ALTHOUGH HEALTH CONTROLS AT THE FRONTIER WERE SUBSTANTIALLY REINFORCED .
26 IT APPEARS FROM INFORMATION GIVEN BY THE COMMISSION THAT DENMARK, ALTHOUGH APPLYING SINCE 1978 A POLICY OF NON-VACCINATION AND COMPULSORY SLAUGHTER, ALLOWS IMPORTS OF FRESH POULTRYMEAT FROM OTHER MEMBER STATES, BUT THAT IT IMPOSES RELATIVELY STRICT HEALTH CONTROLS AT THE FRONTIER IF THE IMPORTS COME FROM MEMBER STATES WHERE NEWCASTLE DISEASE HAS BEEN RECORDED WITHIN THE PAST 12 MONTHS OR WHERE VACCINATION AGAINST THAT DISEASE TAKES PLACE .
27 ACCORDING TO STATISTICS PREPARED BY THE INTERNATIONAL OFFICE OF EPIZOOTICS, THE ONLY MEMBER STATES IN WHICH SOME OUTBREAKS OF NEWCASTLE DISEASE IN 1981 WERE RECORDED WERE ITALY AND GREECE ; IN 1980 THE DISEASE WAS FOUND TO EXIST IN BELGIUM, GERMANY, ITALY AND GREECE . THE LATEST RECORDED OUTBREAK WAS IN 1978 FOR GREAT BRITAIN, IN 1976 FOR FRANCE AND IN 1973 FOR NORTHERN IRELAND . THE COMMISSION STRESSES THAT THESE FIGURES SHOW A STEADY REDUCTION IN MANIFESTATIONS OF THE DISEASE IN THE WHOLE COMMUNITY OVER THE PREVIOUS FIVE YEARS .
28 THE PARTIES AGREE THAT NEWCASTLE DISEASE MAY HAVE SERIOUS ECONOMIC CONSEQUENCES, THAT IT IS A HIGHLY INFECTIOUS DISEASE AND THAT IT IS COMBATED EITHER BY A POLICY AIMED AT CONTROLLING IT AND REDUCING ITS EFFECTS, BY MEANS OF GENERALIZED OR SELECTIVE VACCINATION, OR BY A POLICY AIMED AT ERADICATING IT, UNDER WHICH VACCINATION IS PROHIBITED AND ANY OUTBREAK IS MET BY COMPULSORY SLAUGHTER OF INFECTED FLOCKS .
29 THE PARTIES ALSO ACCEPT THAT VACCINATION MAY MASK THE SUBSISTENCE OF THE DISEASE, AS VACCINATED BIRDS MIGHT, WITHOUT SHOWING THE SYMPTOMS OF THE DISEASE, BE INFECTED WITH FIELD VIRUS CARRIED, FOR EXAMPLE, BY NON-DOMESTICATED BIRDS . FOR THE COMMISSION AND FRANCE, HOWEVER, SUCH A RISK IS PURELY HYPOTHETICAL IN COUNTRIES WHERE VACCINATED AND NON-VACCINATED FLOCKS COEXIST AND WHERE NO OUTBREAK OF NEWCASTLE DISEASE HAS BEEN RECORDED IN RECENT YEARS .
30 FINALLY, THERE IS AGREEMENT AMONG THE PARTIES THAT IN AUGUST 1981 THE PROPORTION OF POULTRY THAT WAS VACCINATED UNDER THE REGULATIONS EXISTING AT THE TIME AMOUNTED TO ABOUT 40 % BOTH IN GREAT BRITAIN AND IN FRANCE . THE FRENCH GOVERNMENT ADDS THAT THE OBJECTIVE OF ITS POLICY AT THE TIME WAS TO VACCINATE LAYING HENS AND BREEDING FOWL, SO THAT EXPORTS OF SLAUGHTERED CHICKEN AND TURKEYS FROM FRANCE NORMALLY INVOLVED ONLY NON-VACCINATED POULTRY .
IV - THE 1981 MEASURES
31 WHATEVER VIEW MAY BE TAKEN OF THE LEGAL MACHINERY USED BY THE UNITED KINGDOM IN INTRODUCING THE 1981 MEASURES, THEY HAVE HAD THE EFFECT OF PREVENTING ANY IMPORTS INTO GREAT BRITAIN OF FRESH AND REFRIGERATED POULTRY PRODUCTS, EGGS ( NOT INTENDED FOR HATCHING ) AND EGG PRODUCTS OTHER THAN HEAT-TREATED EGG PRODUCTS, FROM ALL OTHER MEMBER STATES EXCEPT IRELAND AND DENMARK . THEY ARE THEREFORE TO BE CONSIDERED AS MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS, PROHIBITED BY ARTICLE 30 OF THE TREATY UNLESS IT IS ESTABLISHED THAT THEY ARE JUSTIFIED UNDER ARTICLE 36 ON GROUNDS OF THE PROTECTION OF ANIMAL HEALTH .
32 IN THIS RESPECT, THE MAIN ARGUMENT OF THE UNITED KINGDOM IS THAT THE 1981 MEASURES FORM AN INTEGRAL PART OF ITS NEW POLICY ON ANIMAL HEALTH WITH REGARD TO NEWCASTLE DISEASE AND THAT SUCH A CHANGE IN HEALTH POLICY CANNOT BE CHALLENGED UNDER ARTICLE 36 . IN THE DIVISION OF POWERS BETWEEN THE COMMUNITY AND THE MEMBER STATES, MATTERS OF ANIMAL HEALTH REMAIN WITHIN THE EXCLUSIVE COMPETENCE OF THE MEMBER STATES AS LONG AS NO COMMUNITY HARMONIZATION HAS TAKEN PLACE . THIS WOULD STILL BE THE CASE, IT IS CLAIMED, EVEN THOUGH THE INTRODUCTION OF THE NEW POLICY WAS GREETED WITH RELIEF BY BRITISH POULTRY PRODUCERS, WHO FEARED COMPETITION FROM FRENCH POULTRY ON THE BRITISH MARKET .
33 THIS ARGUMENT IS CORRECT, IN AS FAR AS IT IS FOR EACH OF THE MEMBER STATES TO DETERMINE, AND, IF APPROPRIATE, TO ALTER ITS POLICY RELATING TO ANIMAL HEALTH . UNDER THESE CIRCUMSTANCES, MEMBER STATES ARE, IN PRINCIPLE, FREE TO ADOPT, WITH REGARD TO THE RISKS OF NEWCASTLE DISEASE AMONG POULTRY, EITHER A POLICY OF VACCINATION OR ONE OF NON-VACCINATION AND COMPULSORY SLAUGHTER .
34 HOWEVER, THE ARGUMENT OF THE UNITED KINGDOM DISREGARDS THE FACT THAT THE EFFECTS OF HEALTH POLICY ON IMPORTS FROM OTHER MEMBER STATES CANNOT EXCEED THE LIMITS LAID DOWN BY COMMUNITY LAW . THE UNITED KINGDOM SUBMITS AND THE COMMISSION ACCEPTS, THAT COUNCIL DIRECTIVE NO 71/118, OF 15 FEBRUARY 1971, ON HEALTH PROBLEMS AFFECTING TRADE IN FRESH POULTRY MEAT ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( I ), P . 106 ) MERELY CONTAINS, IN ARTICLE 11, CERTAIN SPECIFIC PROVISIONS ON RESTRICTION OF IMPORTS ON GROUNDS OF ANIMAL HEALTH, AND THAT THESE PROVISIONS DO NOT APPLY TO THE PRESENT CASE . WHATEVER THE INTERPRETATION BE GIVEN TO THESE PROVISIONS, THE COURT CONSIDERS THAT PARAGRAPHS ( 2 ) TO ( 5 ) OF ARTICLE 11 REPRESENT ONLY THE BEGINNING OF A PROCESS OF HARMONIZATION IN THIS FIELD . THEREFORE THE MATTER IS ESSENTIALLY TO BE CONSIDERED UNDER ARTICLE 36 OF THE TREATY, WHICH EXPRESSLY PROVIDES THAT RESTRICTION ON IMPORTS MUST BE JUSTIFIED ON GROUNDS OF PROTECTION OF ANIMAL HEALTH, AND WHICH ADDS, IN THE SECOND SENTENCE, THAT SUCH RESTRICTIONS ARE NOT TO CONSTITUTE A MEANS OF ARBITRARY DISCIMINATION OR A DISGUISED RESTRICTION ON TRADE BETWEEN MEMBER STATES .
35 IN REVIEWING THE FACTS OF THE CASE, THE COURT FINDS IT APPROPRIATE TO EXAMINE FIRST THE SUBMISSIONS OF THE COMMISSION AND THE FRENCH REPUBLIC TO THE EFFECT THAT THE 1981 MEASURES, IN THEIR EFFECTS ON IMPORTS FROM OTHER MEMBER STATES EXCEPT IRELAND AND DENMARK, AMOUNT TO A DISGUISED RESTRICTION ON INTRA-COMMUNITY TRADE WITHIN THE MEANING OF THE SECOND SENTENCE OF ARTICLE 36 .
36 AS THE COURT HAS ALREADY OBSERVED IN ITS JUDGMENT OF 14 DECEMBER 1979 IN CASE 34/79 HENN AND DARBY ( 1979 ) ECR 3795, THE SECOND SENTENCE OF ARTICLE 36 IS DESIGNED TO PREVENT RESTRICTIONS ON TRADE MENTIONED IN THE FIRST SENTENCE OF THAT ARTICLE FROM BEING DIVERTED FROM THEIR PROPER PURPOSE AND USED IN SUCH A WAY AS EITHER TO CREATE DISCRIMINATION IN RESPECT OF GOODS ORIGINATING IN OTHER MEMBER STATES OR INDIRECTLY TO PROTECT CERTAIN NATIONAL PRODUCTS .
37 CERTAIN ESTABLISHED FACTS SUGGEST THAT THE REAL AIM OF THE 1981 MEASURES WAS TO BLOCK, FOR COMMERCIAL AND ECONOMIC REASONS, IMPORTS OF POULTRY PRODUCTS FROM OTHER MEMBER STATES, IN PARTICULAR FROM FRANCE . THE UNITED KINGDOM GOVERNMENT HAD BEEN SUBJECT TO PRESSURE FROM BRITISH POULTRY PRODUCERS TO BLOCK THESE IMPORTS . IT HURRIEDLY INTRODUCED ITS NEW POLICY WITH THE RESULT THAT FRENCH CHRISTMAS TURKEYS WERE EXCLUDED FROM THE BRITISH MARKET FOR THE 1981 SEASON . IT DID NOT INFORM THE COMMISSION AND THE MEMBER STATES CONCERNED IN GOOD TIME, AS THE LETTER IN WHICH THE COMMISSION WAS INFORMED OF THE NEW MEASURES - WHICH TOOK EFFECT ON 1 SEPTEMBER 1981 - WAS DATED 27 AUGUST 1981 . IT DID NOT FIND IT NECESSARY TO DISCUSS THE EFFECTS OF THE NEW MEASURES ON IMPORTS WITH THE COMMUNITY INSTITUTIONS, WITH THE STANDING VETERINARY COMMITTEE OR WITH THE MEMBER STATES CONCERNED .
38 IT SHOULD BE NOTED, IN THIS CONTEXT, THAT WHEN THE UNITED KINGDOM ABANDONED, IN 1964, THE POLICY OF NON-VACCINATION AND COMPULSORY SLAUGHTER CONDUCTED TILL THEN IN GREAT BRITAIN, IN ORDER TO ADOPT A POLICY OF CONTROL OF NEWCASTLE DISEASE BY VACCINATION, THIS CHANGE OF POLICY WAS THOROUGHLY PREPARED BY AN ELABORATE REPORT OF A COMMITTEE OF EXPERTS, BY VARIOUS STUDIES
AND BY PROLONGED DISCUSSIONS AMONG VETERINARY EXPERTS . THE EVIDENCE AVAILABLE IN THE PRESENT CASE DOES NOT SUGGEST THAT ANY COMPARABLE EFFORT WAS MADE BEFORE THE GOVERNMENT DECIDED, IN 1981, TO REINTRODUCE THE POLICY WHICH IT HAD APPLIED BEFORE 1964 . THE DEDUCTION MUST BE MADE THAT THE 1981 MEASURES DID NOT FORM PART OF A SERIOUSLY CONSIDERED HEALTH POLICY .
39 THIS CONCLUSION IS REINFORCED BY THE WAY IN WHICH THE UNITED KINGDOM DEALT WITH FRENCH DEMANDS THAT FRENCH POULTRY PRODUCTS SHOULD BE READMITTED TO GREAT BRITAIN AFTER THE FRENCH REPUBLIC HAD FULFILLED THE THREE CONDITIONS LAID DOWN BY THE UNITED KINGDOM GOVERNMENT, NAMELY THAT THE EXPORTING COUNTRY SHOULD BE TOTALLY FREE FROM OUTBREAKS OF NEWCASTLE DISEASE, SHOULD PROHIBIT VACCINATION AND SHOULD APPLY A POLICY OF COMPULSORY SLAUGHTER IN THE EVENT OF ANY FUTURE OUTBREAK OF THE DISEASE . BY REFUSING FRENCH IMPORTS ON THE GROUND THAT FRANCE HAD NOT CLOSED ITS FRONTIERS TO POULTRY IMPORTS FROM NON-MEMBER COUNTRIES WHERE VACCINE WAS STILL IN USE, THE UNITED KINGDOM ADDED IN FACT A FOURTH CONDITION TO THE THREE WHICH IT HAD PREVIOUSLY STATED IN ITS LETTER TO THE COMMISSION OF 27 AUGUST 1981, AND WHICH IT STILL STATES IN ITS DEFENCE IN THE PRESENT CASE AS THE ONLY APPLICABLE CONDITIONS .
40 TAKEN TOGETHER, THESE FACTS ARE SUFFICIENT TO ESTABLISH THAT THE 1981 MEASURES CONSTITUTE A DISGUISED RESTRICTION ON IMPORTS OF POULTRY PRODUCTS FROM OTHER MEMBER STATES, IN PARTICULAR FROM FRANCE, UNLESS IT CAN BE SHOW THAT, FOR REASONS OF ANIMAL HEALTH, THE ONLY POSSIBILITY OPEN TO THE UNITED KINGDOM WAS TO APPLY THE STRICT MEASURES WHICH ARE AT ISSUE IN THIS CASE AND THAT, THEREFORE, THE METHODS PRESCRIBED BY THE 1981 MEASURES FOR OBTAINING THE HIGH STANDARDS OF ANIMAL HEALTH WHICH THE UNITED KINGDOM GOVERNMENT HAD IN MIND WHEN IT CHANGED ITS POLICY WITH REGARD TO NEWCASTLE DISEASE, WERE NOT MORE RESTRICTIVE THAN WAS NECESSARY FOR THE PROTECTION OF THE HEALTH OF POULTRY FLOCKS IN GREAT BRITAIN .
41 IT FOLLOWS FROM THE INFORMATION GIVEN TO THE COURT DURING THE PROCEEDINGS THAT THERE ARE LESS STRINGENT MEASURES FOR ATTAINING THE SAME RESULT . THUS, THE
MANNER IN WHICH THE DANISH AUTHORITIES DEAL WITH IMPORTS OF POULTRY PRODUCTS FROM OTHER MEMBER STATES - EVEN FROM THOSE WHERE RECENT OUTBREAKS OF NEWCASTLE DISEASE HAVE BEEN RECORDED - SUGGESTS THAT IT IS POSSIBLE TO PRESERVE THE HIGHEST STANDARD OF FREEDOM FROM NEWCASTLE DISEASE WITHOUT COMPLETELY BLOCKING IMPORTS FROM COUNTRIES WHERE VACCINE IS STILL IN USE .
42 THE UNITED KINGDOM MAINTAINS THAT THE SITUATION OBTAINING IN GREAT BRITAIN IS SO MUCH CHARACTERIZED BY MASSIVE POULTRY IMPORTS THAT THE RISKS FOR ANIMAL HEALTH CREATED BY THESE IMPORTS ARE NOT COMPARABLE TO THOSE INCURRED IN COUNTRIES LIKE DENMARK WHICH HAVE ONLY MODEST POULTRY IMPORTS .
43 THIS ARGUMENT IS NOT CONVINCING . IN A SITUATION SUCH AS THE ONE NOW PREVAILING IN GREAT BRITAIN, THE ONLY RISK OF INFECTION OF NATIONAL FLOCKS BY IMPORTED POULTRY PRODUCTS RESIDES IN THE POSSIBILITY THAT SOME OF THE SLAUGHTERED BIRDS, WHICH NORMALLY COME FROM NON-VACCINATED FLOCKS, MAY HAVE BEEN VACCINATED AND MAY HAVE SUBSEQUENTLY BEEN INFECTED WITH FIELD VIRUS, WHICH IS SOMEHOW TRANSMITTED TO A LIVE FLOCK . THERE ARE, MOREOVER, NO CLEAR INDICATIONS AS TO WHETHER THE APPEARANCE OF FIELD VIRUS HAS BEEN CONFIRMED, DURING RECENT YEARS, IN THE MAIN POULTRY EXPORTING MEMBER STATES SUCH AS FRANCE AND THE NETHERLANDS .
44 THE UNITED KINGDOM INSISTS THAT THE CONSEQUENCES MIGHT BE VERY SERIOUS IF THE RISK OF INFECTION SHOULD MATERIALIZE, BUT IT ADMITS THAT THE CHANCE OF SUCH AN OCCURRENCE IS SLIGHT, THOUGH NOT MERELY HYPOTHETICAL . THE COURT CONSIDERS THAT, IN THE SITUATION ACTUALLY PREVAILING NOT ONLY IN GREAT BRITAIN, BUT IN THE COMMUNITY AS A WHOLE, AND IN PARTICULAR IN THE MEMBER STATES WHICH ARE THE PRINCIPAL EXPORTERS OF POULTRY PRODUCTS, THE POSSIBILITY OF INFECTION BY IMPORTED POULTRY PRODUCTS WOULD BE SO MUCH DUE TO SHEER HAZARD THAT IT CANNOT JUSTIFY A COMPLETE PROHIBITION OF IMPORTS FROM MEMBER STATES WHICH ADMIT THE USE OF VACCINE .
45 IT FOLLOWS FROM THESE CONSIDERATIONS THAT, BY APPLYING MEASURES WHICH HAD THE EFFECT OF PREVENTING IMPORTS OF FRESH AND REFRIGERATED POULTRY PRODUCTS, INCLUDING EGGS ( NOT INTENDED FOR HATCHING ) AND EGG PRODUCTS OTHER THAN HEAT-
TREATED EGG PRODUCTS, INTO ENGLAND, WALES AND SCOTLAND FROM ANY MEMBER STATE OTHER THAN IRELAND AND DENMARK, THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY .
46 AS A RESULT, IT IS THE DUTY OF THE UNITED KINGDOM, BY VIRTUE OF ARTICLE 171 OF THE TREATY, TO TAKE ALL THE NECESSARY MEASURES TO COMPLY WITH THIS JUDGMENT . IN THIS CONTEXT THE COURT HAS TAKEN NOTE OF THE COMMISSION ' S STATEMENT THAT IT INTENDS TO CONTACT THE BRITISH AUTHORITIES IN ORDER TO PERMIT, WITHOUT DELAY, THE RE-ESTABLISHMENT OF TRADE WHICH HAS BEEN INTERRUPTED BY THE 1981 MEASURES WHILE AT THE SAME TIME SAFEGUARDING ANIMAL HEALTH IN CONFORMITY WITH THE TREATY .
V - OTHER POINTS AT ISSUE
47 APART FROM THE 1981 MEASURES, THE PRESENT ACTION RAISES TWO FURTHER ISSUES : FIRST, THE BAN ON IMPORTS OF POULTRY PRODUCTS INTO NORTHERN IRELAND FROM OTHER MEMBER STATES, EXCEPT IRELAND AND DENMARK ; SECONDLY, THE UNITED KINGDOM LEGISLATION WHICH CONSTITUTES THE BASIS OF THE MEASURES TAKEN WITH REGARD TO BOTH GREAT BRITAIN AND NORTHERN IRELAND, INASMUCH AS THEY EMBODY AN IMPORT LICENSING SYSTEM . IN THE COMMISSION ' S SUBMISSION, THIS LAST ISSUE ALSO HAS A BEARING ON THE ASSESSMENT OF THE MEASURES ADOPTED WITH REGARD TO IMPORTS OF HEAT-TREATED EGG PRODUCTS INTO ENGLAND, WALES AND SCOTLAND .
48 ON THE FIRST POINT, THE COURT ACCEDES TO THE REQUEST SUBMITTED BY THE IRISH GOVERNMENT . IT WILL NOT GIVE JUDGMENT UNTIL CASE 74/82, COMMISSION V IRELAND, WHICH RAISES SUBSTANTIALLY THE SAME PROBLEMS, HAS BEEN HEARD .
49 ON THE SECOND POINT, THE COURT CONSIDERS THAT IT DOES NOT YET HAVE SUFFICIENT INFORMATION TO BE ABLE TO TAKE A DECISION . BY RENOUNCING ITS RIGHT TO LODGE A REPLY IN THE WRITTEN PROCEEDINGS, AND BY CONCENTRATING ITS ATTENTION, DURING THE ORAL PROCEEDINGS, PREDOMINANTLY ON THE 1981 MEASURES, THE COMMISSION DID NOT FULLY DEVELOP ITS ARGUMENTS ON THE COMPATIBILITY OF AN IMPORT LICENSING SYSTEM WITH ARTICLES 30 AND 36 OF THE TREATY .
50 IN PARTICULAR, THE COMMISSION DID NOT ELABORATE ITS VIEWS ON THE UNITED KINGDOM ' S SUBMISSION THAT COMMUNITY DIRECTIVES HAD ACCEPTED AN IMPORT LICENSING SYSTEM WITH REGARD TO ANIMAL DISEASES OTHER THAN NEWCASTLE DISEASE, AND ON IRELAND ' S SUBMISSION THAT THE TREATY DOES NOT FORBID ANY IMPORT LICENSING SYSTEM FOR REASONS OF ANIMAL HEALTH IN GENERAL, AS THE DISADVANTAGES OF SUCH A SYSTEM HAVE TO BE BALANCED AGAINST THE RISKS WHICH IMPORTS OF ANIMAL PRODUCTS INVOLVE FOR THE HEALTH OF LIVESTOCK .
51 FOR ALL THESE REASONS, IT IS IN THE INTEREST OF A PROPER ADMINISTRATION OF JUSTICE THAT THE COMMISSION SHOULD BE GIVEN AN OPPORTUNITY TO LODGE ITS REPLY, WITHIN A PERIOD TO BE FIXED BY THE PRESIDENT OF THE COURT, ON THE ISSUES WHICH ARE STILL OUTSTANDING, THAT THE DEFENDANT SHOULD RESPOND TO THIS REPLY AND THAT THE INTERVENERS SHOULD BE GIVEN THE OPPORTUNITY TO PRESENT SUCH OBSERVATIONS AS THEY THINK FIT .
52 THE CIRCUMSTANCE THAT, AT PRESENT, THE COURT DOES NOT GRANT THE DECLARATION SOUGHT BY THE COMMISSION WITH REGARD TO THE IMPORT LICENSING SYSTEM, DOES NOT IMPLY THAT THIS SYSTEM MAY BE USED IN A WAY LEADING TO IMPORT RESTRICTIONS SUBSTANTIALLY SIMILAR TO THOSE RESULTING FROM THE 1981 MEASURES .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DECLARES THAT BY APPLYING MEASURES WHICH HAD THE EFFECT OF PREVENTING IMPORTS OF FRESH AND REFRIGERATED POULTRY PRODUCTS, INCLUDING EGGS ( NOT INTENDED FOR HATCHING ) AND EGG PRODUCTS OTHER THAN HEAT-TREATED EGG PRODUCTS, INTO ENGLAND, WALES AND SCOTLAND FROM ANY MEMBER STATE OTHER THAN IRELAND AND DENMARK, THE UNITED KINGDOM HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY ;
2 . RESERVES ITS JUDGMENT ON THE OTHER ISSUES INVOLVED IN THE PRESENT CASE AND INVITES THE COMMISSION TO LODGE ITS REPLY ON THESE ISSUES, WITHIN A PERIOD TO BE FIXED BY THE PRESIDENT OF THE COURT ;
3 . RESERVES THE COSTS .