61998CJ0219_EN
Parties
Grounds
Decision on costs
Operative part
Parties
In Case C-219/98,
REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the House of Lords (United Kingdom) for a preliminary ruling in the proceedings pending before that court between
Regina
and
Minister for Agriculture, Fisheries and Food,
ex parte S.P. Anastasiou (Pissouri) Ltd and Others,
interveners:
Cypfruvex (UK) Ltd and Cypfruvex Fruit and Vegetable (Cypfruvex) Enterprises Ltd,
on the interpretation of Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (OJ 1977 L 26, p. 20), as amended, inter alia, by Council Directive 91/683/EEC of 19 December 1991 (OJ 1991 L 376, p. 29) and Commission Directive 92/103/EEC of 1 December 1992 (OJ 1992 L 363, p. 1),
THE COURT,
composed of: G.C. Rodríguez Iglesias, President, D.A.O. Edward, L. Sevón and R. Schintgen (Presidents of Chambers), P.J.G. Kapteyn, C. Gulmann, J.-P. Puissochet (Rapporteur), G. Hirsch, P. Jann, M. Wathelet and V. Skouris, Judges,
Advocate General: N. Fennelly,
Registrar: L. Hewlett, Administrator,
after considering the written observations submitted on behalf of:
- S.P. Anastasiou (Pissouri) Ltd and Others, by D. Vaughan QC and M. Hoskins, Barrister, instructed by P. Clough, Solicitor,
- Cypfruvex (UK) Ltd and Cypfruvex Fruit and Vegetable (Cypfruvex) Enterprises Ltd, by M.J. Beloff QC and R. Millett, Barrister, instructed by M. Kramer, and S. Sheppard, Solicitors,
- the United Kingdom Government, by J.E. Collins, Assistant Treasury Solicitor, acting as Agent, and P.M. Roth QC and J. Skilbeck, Barrister,
- the Greek Government, by A. Samoni-Radou, Legal Adviser in the Special Department for Community Legal Affairs in the Ministry of Foreign Affairs, N. Dafniou and G. Karipsiadis, lawyers in the same department, acting as Agents,
- the Commission of the European Communities, by E. White, Legal Adviser, and X. Lewis, of its Legal Service, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of S.P. Anastasiou (Pissouri) Ltd and Others, represented by D. Vaughan and M. Hoskins; of Cypfruvex (UK) Ltd and Cypfruvex Fruit and Vegetable (Cypfruvex) Enterprises Ltd, represented by M.J. Beloff and R. Millett; of the United Kingdom Government, represented by R. Magrill, of the Treasury Solicitor's Department, acting as Agent, and by P.M. Roth; of the Greek Government, represented by A. Samoni-Radou, N. Dafniou and G. Karipsiadis; and of the Commission, represented by X. Lewis, at the hearing on 12 January 2000,
after hearing the Opinion of the Advocate General at the sitting on 24 February 2000,
gives the following
Judgment
Grounds
1 By order of 20 May 1998, received at the Court on 15 June 1998, the House of Lords referred to the Court for a preliminary ruling under Article 177 of the EC Treaty (now Article 234 EC) five questions on the interpretation of Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community (OJ 1977 L 26, p. 20), as amended, inter alia, by Council Directive 91/683/EEC of 19 December 1991 (OJ 1991 L 376, p. 29) and Commission Directive 92/103/EEC of 1 December 1992 (OJ 1992 L 363, p. 1), (hereinafter the Directive).
2 Those questions were raised in proceedings between a number of producers and exporters of citrus fruits, including S.P. Anastasiou (Pissouri) Ltd, established in the part of Cyprus to the south of the United Nations Buffer Zone (hereinafter Anastasiou and Others) and the Minister for Agriculture, Fisheries and Food (hereinafter the Minister) concerning the importation into the United Kingdom by Cypfruvex (UK) Ltd and Cypfruvex Fruit and Vegetable (Cypfruvex) Enterprises Ltd (hereinafter together referred to as Cypfruvex) of citrus fruit originating in the part of Cyprus to the north of the Buffer Zone (hereinafter the northern part of Cyprus), shipped to the Community after a port call in Turkey and accompanied by phytosanitary certificates issued by the Turkish authorities.
The relevant legislation
3 Article 12(1) of the Directive, in the version applicable to the imports at issue, provides as follows:
Member States shall lay down, at least as regards the introduction into their territory of the plants, plant products and other objects listed in Annex V, Part B and coming from non-member countries:
(a) that these plants, plant products and other objects and their packaging shall be meticulously inspected on an official basis, either in their entirety or by representative sample, and that, if necessary, the vehicles transporting them shall also be inspected meticulously on an official basis in order to make sure as far as can be determined:
- that they are not contaminated by the harmful organisms listed in Annex I, Part A,
- in the case of the plants and plant products listed in Annex II, Part A, that they are not contaminated by the relevant harmful organisms listed in that part of the Annex,
- in the case of the plants, plant products and other objects listed in Annex IV, Part A, that they comply with the relevant special requirements indicated in that part of the Annex;
(b) that they must be accompanied by the certificates prescribed in Articles 7 and 8 and that a phytosanitary certificate may not be made out more than 14 days before the date on which the plants, plant products or other objects leave the consignor country. The certificates prescribed in Articles 7 and 8 ... shall be issued by authorities empowered for this purpose under the International Plant Protection Convention, or, in the case of non-contracting countries, on the basis of laws or regulations of the country. ...
...
4 Article 12 of the Directive thus refers to Articles 7 and 8 which, like Article 6, concern in principle plants, plant products and other objects originating within the Community.
5 Article 7(1) of the Directive provides that a phytosanitary certificate may be issued where it is considered, on the basis of the examination laid down in Article 6(1) and (2), that the conditions therein are fulfilled. Article 8(2) of the Directive relieves a Member State on whose territory products have been split up or stored or had their packaging changed from carrying out a new examination provided that the products have incurred no phytosanitary risk on its territory. In such cases, the Member State will draw up a phytosanitary reforwarding certificate which it will append to the original phytosanitary certificate.
6 Article 6(1) of the Directive provides that plants, plant products and other objects listed in Annex V, Part A, together with their packaging, are to be meticulously examined on an official basis, either in their entirety or by representative sample and that, if necessary, the vehicles transporting them shall also be officially examined in order to make sure:
(a) that they are not contaminated by the harmful organisms listed in Annex I, Part A;
(b) in the case of the plants and plant products listed in Annex II, Part A, that they are not contaminated by the relevant harmful organisms listed in that part of the Annex;
(c) in the case of the plants, plant products and other objects listed in Annex IV, Part A, that they comply with the relevant special requirements indicated in that part of the Annex.
7 Article 6(4) of the Directive adds that the official examinations provided for in the earlier paragraphs of the article are to be made regularly at the premises of the producer, preferably at the place of production, and must extend to the relevant plants or plant products grown, produced or used by the producer or otherwise present on his premises as well as to the growing medium used there.
8 Lastly, Article 9(1) of the Directive provides that:
In the case of plants, plant products or other objects to which special requirements laid down in Annex IV, Part A apply, the official phytosanitary certificate required pursuant to Article 7 shall have been issued in the country in which the plant, plant products and other objects originate, save:
- in the case of wood, if ...
- in other cases, to the extent that the special requirements laid down in Annex IV, Part A can be fulfilled also at places other than that of origin.
9 For the purposes of the provisions set out above, the citrus fruit at issue in the main proceedings, which originates in the northern part of Cyprus, falls within the class of plants and plant products listed at Annex V and, as such, is subject to phytosanitary inspection. It is at risk of contamination by the harmful organisms listed in Annexes I and II. The special requirements which, under Annex IV, Part A, must be satisfied before importation are that the fruit be free from peduncles (stalks) and leaves and that its packaging bear an appropriate mark of origin.
10 In Case C-432/92 Anastasiou and Others [1994] ECR I-3087 (Anastasiou I) the Court held that the Directive precluded acceptance by the national authorities of a Member State, when citrus fruit is imported from the northern part of Cyprus, of phytosanitary certificates issued by authorities other than the competent authorities of the Republic of Cyprus.
The main proceedings
11 Following the judgment in Anastasiou I, exporters who had until then been shipping citrus fruit from the northern part of Cyprus to the United Kingdom under cover of phytosanitary certificates issued by officials of the Turkish Republic of Northern Cyprus, rather than by the competent authorities of the Republic of Cyprus, concluded an agreement with a company established in Turkey, which provided that the ship carrying the citrus fruit from Cyprus would put in to a Turkish port for less than 24 hours, where Turkish officials would inspect the cargo on board the ship and issue a certificate, before it continued its voyage to the United Kingdom.
12 Anastasiou and Others applied for an order restraining the Minister from allowing citrus fruit imported in those circumstances into the United Kingdom. The order sought was refused by the Court of Appeal, and the appellants appealed against that decision to the House of Lords.
13 Taking the view that the resolution of the dispute called for an interpretation of Community law, the House of Lords stayed proceedings and referred the following questions to the Court for a preliminary ruling:
1. Under Article 12(1)(b) of Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of organisms harmful to plants or plant products, as amended, ... is a Member State entitled to accept (and if so in what circumstances and subject to what conditions) the introduction into its territories of plants as defined in the Directive ("plants") originating in non-member countries and listed in Annex V, Part B of the Directive where those plants are accompanied only by a phytosanitary certificate issued by a non-member country from which the plants have been transported to the Community and not by a phytosanitary certificate issued by the non-member country of origin?
2. Does the answer to Question 1 differ, and if so how, if the relevant plants are subject to special requirements laid down in Annex IV, Part A, Section 1 of the Directive which can be fulfilled in non-member countries other than that of origin within the meaning of Article 9(1) of the Directive?
3. Is the judgment of the Court of Justice in Case C-432/92 Anastasiou [1994] ECR I-3087 to be interpreted and applied so as to preclude the national authorities of a Member State from permitting the importation of citrus fruits originating in the part of Cyprus to the north of the United Nations Buffer Zone when they are accompanied by a phytosanitary certificate which has been issued by the authorities of another non-member country from which those citrus fruits have been transported to the Community?
4. Are the answers to any of the above questions different where:
(a) the relevant plants were never imported into the non-member country in which the phytosanitary certificate which accompanied them to the Community was issued in the sense that they were never unloaded from the ship in question and/or never passed the customs barrier; and/or
(b) the special requirements that applied to the relevant plants had already been satisfied in the country of origin?
5. Are the answers to Questions 1 and 2 different where the relevant plants were submitted for the certification in a non-member country other than that of origin, not for any plant health reasons, but so as not to have to obtain a phytosanitary certificate from the authorities empowered to do so in the country of origin?
The first, second, third and fourth questions referred for a preliminary ruling
14 By its first four questions, which it is appropriate to consider together, the House of Lords asks the Court of Justice whether, and if so, under what conditions, the Directive permits a Member State to allow into its territory plants originating in a non-member country, to which special requirements apply and which, under the Directive, must undergo an inspection evidenced by the issue of a phytosanitary certificate, where those plants are accompanied only by a phytosanitary certificate drawn up by the authorities of a non-member consignor country which is not the country of origin of the plants.
15 Anastasiou and Others, together with the Greek Government, submit that, in such a case, the Directive requires that a phytosanitary certificate be issued by the competent authorities of the country of origin of the plants, even though, where there are certain special requirements that can be satisfied without difficulty elsewhere, an additional certificate may be issued by the authorities of a consignor country other than the country of origin. That interpretation of the Directive, they say, is clear as much from its wording as its purpose.
16 First, regarding the wording of the Directive, they contend that the reference in Article 12(1) to Article 7, which in turn refers to Article 6, means that the requisite phytosanitary certificate can only be issued after a thorough official inspection has been carried out on the premises of the producer, extending not only to the plants grown but also to the products employed or present on the premises and the growing medium used. Such an inspection can only be a matter for the authorities of the country of origin of the plants. Whilst Article 9(1) of the Directive does in certain circumstances and to a limited extent provide an exception to that rule in the case of certification of compliance with certain special requirements, that exception does not mean that, as regards other requirements to which plants are subject, a phytosanitary certificate issued in the country of origin of the plants may be dispensed with.
17 Secondly, they submit that the objective of the Directive, which is to prevent the introduction into and spread within the Community of organisms harmful to plants, admits of no other interpretation. The blanket requirement of thorough phytosanitary controls at the place of production for produce originating within the Community, which has been in place since the date for implementation of Council Directive 91/683/EEC of 19 December 1991 amending Directive 77/93 (OJ 1991 L 376, p. 29), would be pointless if at the same time safeguards of at least a similar level were not required for plants imported from non-member countries. As was recognised in Anastasiou I, the mechanism deployed by the Directive is dependent, in this respect, upon cooperation between the authorities of the importing Member State and those of the exporting country with a view to eliminating harmful organisms. If plant health inspections and the issue of the appropriate certificates were carried out by authorities other than the legal authorities of the country of origin, effective cooperation would not be possible.
18 Cypfruvex, the United Kingdom Government and the Commission, on the other hand, maintain that, in the case of plants which require phytosanitary certification and originate in non-member countries, the certificate may be issued elsewhere than in the country of origin, the only exception being where the produce is subject to special requirements that can only be satisfied in the country of origin.
19 They submit that, when the Directive was amended in 1993, two distinct regimes were established, one for plants of Community origin and the other for plants from non-member countries, the former being subject, as a general rule, to inspection at the place of production and the latter falling under a two-fold obligation of certification in a non-member country and inspection at the point of entry into the territory of the Community. A general requirement that plants of non-Community origin be certified in the country where they are grown would be pointless, and in some cases impossible, and would constitute unjustified discrimination against such plants, contrary to the International Convention for the Protection of Plants and Plant Products, signed in Rome on 6 December 1951.
20 The wording of the Directive reflects that reasoning. Neither Article 12(1) nor any other provision stipulates a particular place for the issue of the phytosanitary certificate, leaving aside the exceptional case, envisaged by Article 9(1), where there are certain special requirements. On the contrary, the title of Annex V refers to plant health inspections in the country of origin or the consignor country. That being so, the reference in Article 12(1) of the Directive, in relation to plants of non-Community origin, to Articles 7 and 8, which concern plants of Community origin, is intended only to clarify the form of the certificate, not to assimilate the rules for phytosanitary inspection applicable to the two different classes of plants. Furthermore, given that, in any event, only a single certificate is required per consignment, Article 9(1) of the Directive would make no sense if that certificate had in all cases to be issued by the authorities of the country of origin.
21 That interpretation is, they say, consistent with the solution reached by the Court in Anastasiou I. In that judgment, the Court confined itself to defining what is meant by the authorities empowered in a non-member country for the purposes of Article 12(1) of the Directive. The necessary cooperation between the competent authorities, which was highlighted in that judgment, could be achieved with the officials of a non-member consignor country, provided that those officials are authorised and recognised, as they are in Turkey. The aim of the Directive is not the elimination of harmful organisms in non-member countries, but the protection of the territory of the Community against the risk of contamination.
22 It should first be observed that, as the Court held at paragraphs 61 and 62 of its judgment in Anastasiou I, the common system of protection against the introduction of harmful organisms in produce imported from non-member countries which is laid down in the Directive is based essentially on a system of checks carried out by experts lawfully empowered for that purpose by the Government of the exporting State and guaranteed by the issue of the appropriate phytosanitary certificate. The checks carried out by importing Member States at the frontier have significant limitations and, in any event, cannot take the place of phytosanitary certification.
23 Furthermore, in order to achieve the Directive's objectives, there must be cooperation between the authorities of the exporting State and those of the importing Member State, as the latter have to bring to the attention of the former any difficulties encountered regarding the phytosanitary certificates issued by them concerning, for example, contaminated products or certificates that are incorrect or have been interfered with (see Anastasiou I, paragraph 63).
24 Those considerations led the Court to hold in Anastasiou I that Member States may not accept phytosanitary certificates issued in the country of origin of the produce by the departments or officials of an entity that is not recognised. That does not necessarily imply that the Directive is to be interpreted as meaning that a Member State may not admit into its territory produce that is accompanied not by a phytosanitary certificate from the country of its origin but only by a certificate issued by a non-member consignor country.
25 Whilst Article 12(1)(b) of the Directive requires phytosanitary certificates to be issued by the authorities empowered to issue them in the exporting country, and indicates the context in which the term authorities empowered is to be interpreted, it in no way states that the authorities in question must be those of the country in which the produce originates.
26 That omission can hardly be regarded as accidental, given the heading of Annex V and the wording of Article 9(1) of the Directive.
27 Even though the title of an annex cannot alone counter the plain meaning of the substantive provisions of a piece of Community legislation, the fact that Annex V is explicitly presented as a list of the plants which, if originating outside the Community, must be subject to a plant health inspection in the country of origin or the consignor country before being permitted to enter the Community must be material to the question of establishing whether or not the Community legislature meant by implication to reserve the issue of certificates to the country of origin of the produce.
28 Furthermore, Article 9(1) of the Directive provides that, where plants are subject to certain special requirements, phytosanitary certificates must be issued in the country in which the plants originate. Certain exceptions to that rule are laid down, in particular where the special requirements can be satisfied elsewhere. If all plants that are subject to plant health inspection had to be examined in their country of origin, irrespective of whether or not they were subject to any special requirements, there would be no reason for Article 9(1) to make provision for that general obligation as a special rule applicable only to certain plants. On the other hand, the provision does fit into the system provided for by the Directive if it is accepted that, save in the case set out in Article 9(1), inspection may take place either in the non-member country in which the plants originate or in a non-member consignor country other than the country of origin.
29 The main argument drawn from the wording of the Directive in support of the position adopted by Anastasiou and Others and by the Greek Government rests upon the reference, in Article 12(1) of the Directive, to Article 7 and, indirectly, to Article 6, both of which concern, in principle, plants of Community origin. Plants originating in non-member countries must be accompanied by the certificates prescribed by Articles 7 and 8, that is to say, by a phytosanitary certificate and, where appropriate, by a phytosanitary reforwarding certificate. In the case of plants of Community origin, the phytosanitary certificate may be issued only on the basis of the examination laid down in Article 6, which includes, amongst other things, regular official inspections at the premises of the producer.
30 Be that as it may, the fact that products from non-member countries must be accompanied by certificates similar to those that must accompany products of Community origin does not automatically mean that non-member exporting countries must follow a procedure similar to the Community phytosanitary checks and inspection procedure before issuing certificates.
31 In this connection, the eighth recital of the preamble to the Directive recognises that the most appropriate place for carrying out plant health checks is the place of production; the conclusion drawn from this, in the same recital, is that these checks must therefore be made mandatory at the place of production. However, that is only in respect of Community products.
32 Nevertheless, it must be confirmed that the objective of the Directive, which is to protect the territory of the Community from the introduction and spread of organisms harmful to plants, can be attained without requiring plants originating outside the Community to undergo a certification procedure in their country of origin. In particular, it would be contrary to the objective pursued to impose binding requirements on plants of Community origin and yet be less exacting with regard to plants originating outside the Community.
33 It is clear from a comparison of Articles 12(1) and 6(1) of the Directive that the competent authorities of the Member States must carry out meticulous examinations on an official basis in order to ensure that plants are not contaminated and that they comply with any relevant special requirements, irrespective of their origin, and that, in the case of products originating in non-member countries, that examination must, in principle, take place when the plants are brought into the territory of a Member State.
34 Thus, the plants originating in non-member countries listed in Annex V, Part B of the Directive must be accompanied by a certificate issued by the authorities of a non-member country confirming the plants' compliance with the phytosanitary regulations of the importing country, and must also undergo an official examination on entry into the territory of the Community. In principle, that twofold system of checks is sufficient to protect the territory of the Community against the introduction of organisms harmful to plants. Whilst, in practice, it may be impossible to ensure that the checks carried out in non-member countries offer the same guarantees as those required under the Directive for plants grown within the Community, that observation applies with equal force to both non-member countries of origin and non-member consignor countries other than the plants' country of origin.
35 As the United Kingdom Government has pointed out, it is physically and legally impossible for the Member States to make detailed enquiries of the authorities of a non-member country which has issued a phytosanitary certificate as to how the examination which preceded the issue of the certificate was carried out. For that reason, if it had to be accepted that any non-member country could issue phytosanitary certificates which enabled plants to be brought into the territory of the Community, without satisfying any conditions, subject only to frontier inspections the limitations of which were emphasised in Anastasiou I, there would ensue a loss of security contrary to the Community's interests as far as plant health matters - which the Directive is intended to protect - are concerned.
36 In the case of plants which are not subject to special requirements that can be satisfied only in their place of origin, the possibility of issuing certificates attesting to the absence of harmful organisms and compliance by the produce with the rules of the importing country must therefore, at the very least, be reserved to the non-member countries from which the plants were exported to the Community after having entered the territory of those countries and having remained there for such time and under such conditions as to enable the proper checks to be completed.
37 Such a proviso, compliance with which can be checked by the importing Member State by reference to the shipping documents, ensures cooperation between the exporting and importing States, the importance of which was emphasised in Anastasiou I, and reduces the various risks inherent in a situation in which products would be certified when they were merely passing through the territory of a non-member State.
38 The answer to the first four questions referred by the House of Lords should therefore be that the Directive permits Member States to admit into their territory plants originating in a non-member country, which are subject to the issue of a phytosanitary certificate dealing, inter alia, with compliance with special requirements, where, in the absence of a certificate issued by the authorities empowered to issue certificates in the plants' country of origin, the plants are accompanied by a certificate issued in a non-member country from which they do not originate, provided that:
- the plants have been imported into the territory of the country where checks have taken place before being exported from there to the Community;
- the plants have remained in that country for such time and under such conditions as to enable the proper checks to be completed, and
- the plants are not subject to special requirements that can be satisfied only in their place of origin.
The fifth question
39 By its fifth question, the House of Lords asks, essentially, whether the reasons why a phytosanitary certificate has not been issued in the plants' country of origin must be taken into account by an importing Member State in determining whether the certificate proffered meets the requirements laid down by the Directive.
40 Given that the Directive must be interpreted as permitting, in certain cases and subject to certain objective conditions, the issue of phytosanitary certificates in countries other than the plants' country of origin, it is not for a Member State to impose further conditions appertaining to the reasons why the importer had recourse to a procedure which, on a proper construction, the Directive authorises.
41 The situation would be otherwise if the Directive recognised phytosanitary certificates issued in a country other than the plants' country of origin only in cases where certification in the country of origin was impossible for purely phytosanitary reasons. Since the Directive is not to be interpreted in that way, an importer who, for reasons of a different kind, has his merchandise inspected in a country other than its country of origin, cannot be regarded as attempting thereby to evade the application of a rule of Community law.
42 The answer to the fifth question referred by the House of Lords must therefore be that it is not for the Member State concerned to take account of the reasons for which a phytosanitary certificate has not been issued in the country of origin of the plants in determining whether the certificate complies with the requirements of the Directive.
Decision on costs
Costs
43 The costs incurred by the United Kingdom and Greek Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
Operative part
On those grounds,
THE COURT,
in answer to the question referred to it by the House of Lords by order of 20 May 1998, hereby rules:
1. Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community, as amended, permits Member States to admit into their territory plants originating in a non-member country, which are subject to the issue of a phytosanitary certificate dealing, inter alia, with compliance with special requirements, where, in the absence of a certificate issued by the authorities empowered to issue certificates in the plants' country of origin, the plants are accompanied by a certificate issued in a non-member country from which they do not originate, provided that:
- the plants have been imported into the territory of the country where checks have taken place before being exported from there to the Community;
- the plants have remained in that country for such time and under such conditions as to enable the proper checks to be completed, and
- the plants are not subject to special requirements that can only be satisfied in their place of origin.
2. It is not for the Member State concerned to take account of the reasons for which a phytosanitary certificate has not been issued in the country of origin of the plants in determining whether the certificate complies with the requirements of Directive 77/93, as amended.