61982C0040
OPINION OF MR ADVOCATE GENERAL CAPOTORTI
DELIVERED ON 7 JULY 1982 (
1
)
Mr President,
Members of the Court,
1.
By application received on 4 February 1982, the Commission requested the Court to declare that, by prohibiting imports and introducing an import licensing system in the poultry products sector, the United Kingdom had failed to fulfil its obligations under Article 30 of the EEC Treaty.
According to the United Kingdom, those measures are justified pursuant to Article 36 of the Treaty, in so far as they form part of a set of measures intended to protect the health and life of poultry threatened by Newcastle disease. Newcastle disease is a virus infection which may affect poultry, in particular chickens and turkeys, producing respiratory and other disturbances, retarded growth, arrested egg production and in many cases the death of the diseased bird. As a precautionary measure, many countries resort to vaccination, using vaccines produced with live virus or inactive virus. That vaccination is, however, usually carried out on an optional basis and is therefore restricted to part of the poultry flock of any particular country; moreover, the vaccinated poultry and the meat and eggs thereof may be masked carriers of the infectious virus (the so-called “field virus”). In view of those factors, a number of countries prefer to prohibit preventive vaccination (so that any outbreak of the disease may be more easily and more readily ascertained), to slaughter the poultry in the areas where any case of disease is detected and to prohibit or subject to specified conditions the impon of poultry, poulirymeat and poultry products from countries where the system of preventive vaccination is applied.
In the United Kingdom, the practice followed until 1962 was that of slaughter when and where a focus of the disease was discovered, compensation being paid to producers who suffered losses; but the onerous nature of that policy, induced the authorities concerned to introduce instead optional vaccination, involving the use of an inactivated vaccine, in accordance with the suggestions of the committee chaired by Sir Arnold Plant (see the repon of that committee, Annex 1 to the defence). Northern Ireland however did not adopt the new svstem; in consequence, the introduction of poultry from other parts of the United Kingdom was prohibited — and still is — in order to avoid the risks of infection.
The results of the system of vaccination were good during the years in which the vaccine was most widely used (above all during the period 1965 to 1969); the number of cases of disease notified each year in fact fell considerably. In 1970 there was a negative development, with the outbreak of an epidemic which gave rise to serious financial loss; the outbreak was ascribed for the most part to less widespread vaccination (see paragraphs 22 to 24 of the Report of the Review Panel on the Newcastle Disease Epidemic, Annex 2 to the defence). The conclusion drawn was that that method should be used to the greatest extent possible and that it was appropriate to authorize the use of live vaccines. In fact, in 1971 and 1972, the number of cases of the disease fell from more than 4200 to 400 and continued to fall rapidly in the following years (Annex 4 to the defence). Finally, it should be noted that, according to the statistics of the International Office of Epizootics, produced by the Commission as an annex to its reasoned opinion, only one focus of the disease has been noted in the United Kingdom in the last five years (in 1978).
Nevertheless, on 27 August 1981, the. Permanent Representation of the United Kingdom to the European Communities informed the Commission that the British Government, following a review of its policy to combat Newcastle disease, had decided to prohibit preventive vaccination and to reintroduce compulsory slaughter of poultry in any areas which became infected on or after 1 September 1981. The effect of that measure would be to render poultry on British farms particularly vulnerable ro risks of infection resulting from imports from countries where the use of vaccine was still permitted. Therefore, imports imo Great Britain of fresh or frozen poultry, eggs and egg products would not be permitted unless they came from countries which were totally free of Newcastle disease, where the use of vaccine was prohibited and the rule of compulsory slaughter was applied in the case of any outbreak of the disease (conditions which, as far as the Community is concerned, are satisfied only in Denmark and Ireland).
The short period of notice was justified by the consideration that a logger period would have allowed exporieft to bring into Great Britain, and to place in cold storage, large quantities of products which did not conform to the new rules, thus endangering for several months the health of unvaccinated British poultry flocks.
The prohibition of importation was effectively implemented as from the stated date. However, following discussions with the Standing Veterinary Committee of the Community held in Brussels on 1 September 1981, the United Kingdom Government subsequently decided to allow the import of egg products which had undergone heat treatment during processing; batches of such products, accompanied by a veterinary certificate to the effect that such treatment had been applied, qualify for special licensing conditions. General licences for the importation of fresh or frozen poultrymeat continue, moreover, to be granted for imports from Denmark and Ireland.
The objections raised by the Commission (in its letter of 11 September 1981) to the United Kingdom notification of 27 August 1981 did not cause the United Kingdom Government to change its approach; in fact it reiterated its view that the contested measures were to be regarded as lawful under Article 36 and it also sought to rely upon Article 11 (1) of Council Directive No 71/118 of 15 February 1971. On 12 October 1981, the Commission issued, pursuant to Article 169 of the EEC Treaty, a reasoned opinion, charging the United Kingdom with infringement of Article 30 of the Treaty. By letter of 30 October 1981, the United Kingdom Permanent Representation once again reiterated its Government's view.
The Commission then brought this action. The French and Irish Governments decided to intervene in the proceedings, in support of the applicant and the defendant Sute respectively.
2.
The legal aspects of the dispute are simple. There is no doubt that a measure which wholly denies seven Member States, whilst they adhere to their system of preventive vaccination, any possibility of exporting fresh or frozen poultrymeat to Great Britain and at the same time subjects to special licensing any importation of egg products, is equivalent to a quantitative restriction on imports. Similarly, there is no doubt that a measure of that kind is compatible with Community law if it falls within the scope of the derogation from the prohibition contained in Article 30 which is provided for in Article 36 of the EEC Treaty.
In order to resolve the question, regard must be had not only to Articles 30 and 36 but also to the abovementioned Council Directive No 71/118 on health problems affecting trade in fresh poultrymeat. In fact, Article 11 (1) of that directive provides that the animal health provisions of Member States concerning such trade are to “continue to apply until the entry into force of any Community provisions”; whilst paragraphs 2 to 5 of that article govern the procedure to be adopted by Member Sutes “if there is a danger that animal diseases may spread by the introduction into its territory of fresh poultrymeat from another Member State”:
As regards the disputed facts which the Court is called upon to consider, it should be borne in mind that the procedure to establish an infringement, under which this action is brought, was initiated by the Commission following the United Kingdom measures of 27 August 1981 and in particular the considerable restrictions on imports decided upon on that date. It is true that the conditions whereby vaccination is prohibited, together with a prohibition of the introduction of poultrymeat from countries or areas where vaccination is carried out, existed in Northern Ireland even before 27 August 1981, but that was a restriction on the movement of goods limited to one part of the territory of the United Kingdom, which did not adversely affect imports into Great Britain and the Commission did not consider it appropriate to take action under Article 169 of the EEC Treaty. Moreover, it might be considered that Article 11 (1) of Directive No 71/118, which permitted Member States to maintain temporarily in force their own animal health rules regarding trade in poultry and poultrymeat, made the conditions applied in the United Kingdom at the time of accession lawful in all respects.
I am therefore of the opinion that, at this stage of the proceedings, it is necessary and sufficient for the Court to consider whether or not the United Kingdom measures of 27 August 1981 are lawful under Community law. By so doing, it may dispense with any consideration of the conditions applied in Northern Ireland which, despite being to the same effect as those introduced in the United Kingdom by the abovementioned measures, deserve to be considered separately, particularly since they were in force at the time of accession. The separate decision which I propose may be taken at a later stage, preferably when the Court adjudicates on the action brought by the Commission against Ireland — the conditions adopted in Northern Ireland and the Republic of Ireland regarding the poultry sector are essentially the same.
3.
In the oral procedure Counsel for the French Government maintained that the United Kingdom measures were unlawful by reason of Article 11 of Directive No 71/118, except as far as trade in eggs was concerned, a matter not covered by the directive. In the first place, in fact, Article 11(1) must be regarded as a provision intended to “freeze” the national animal-health rules regarding trade in live poultry and fresh poultrvmeat; consequently, the Member Sutes were precluded from making any change in their rules until the entry into force of harmonizing Community measures. In the second place, since there were rules governing the adoption of measures intended to combat the “danger that animal diseases [might] be spread by the introduction into [the territory of a Member Sute] of fresh poultrymeat from another Member State”, paragraphs (2) to (5) of Article 11 divested the Member Sutes of any legislative powers in that respect and their authority to prohibit or limit the import of meat from other Member Sutes on health grounds is strictly subject to the conditions laid down in subparagraphs (a) and (b) of paragraph (2). The United Kingdom measures, which fall within that category and do not conform to the conditions of the directive, are also unlawful from that sundpoint.
Consideration of that view requires in the first place clarification of the relationship between the field of application of Article 36 of the Treaty and the directive in question, in order to establish whether or not the rules laid down in the directive should take precedence over the powers which Member States retain under Article 36. The reply is certainly affirmative, according to a consistent line of decisions of the Court (judgments of 5 October 1977 in Case 5/77, Tedeschi, paragraphs 34 and 35 of the decision; 5 April 1979 in Case 148/78, Ratti, paragraph 36 of the decision; 8 November 1979 in Case 251/78, Denkavit Futtermittel, paragraph 14 of the decision; [1977] ECR 1555; [1979] 1629 and 3369 respectively). To quote the Denkavit judgment: “Article 36 is not designed to reserve ceruin matters to the exclusive jurisdiction of Member States but only permits national laws to derogate from the principle of the free movement of goods to the extent to which such derogation is and continues to be justified for the attainment of the objectives referred to in that aniele. Consequently when, in the application of Article 100 of the Treaty, Community directives provide for the harmonization of the measures necessary to guarantee the protection of animal and human health and when they establish procedures to check that they are observed, recourse to Article 36 is no longer justified and the appropriate checks must be carried out and the protective measures adopted within'the framework outlined in the harmonizing directive.”
In the case under consideration, there is no doubt that the directive is a harmonizing directive. That fact is evident not only from its reference to Article 100 of the EEC Treaty, at the beginning of the preamble thereto, but also from the third, fifth and last recitals. The last recital, in particular, after stating that “animal health provisions relating to trade in live poultry and fresh poultrymeat will be the subject of other Community directives” states that “it has become apparent that the first steps should now be taken towards approximating national provisions in this field bv laying down cenain conditions under which Member States may prohibit or restrict the introduction of poultrymeat into their territory for animal health reasons and by providing for a Community emergency procedure within the Standing Veterinary Committee under which measures taken by a Member State could be examined in close cooperation by Member States and the Commission and, where appropriate, amended or repealed.” That statement is linked with Article 11 (2) — which indicates the measures which a Member Scate may adopt in the event of an outbreak of an epizootic disease in inother Member State — and with the second subparagraph of Article 11 (4), according to which the procedure of consultation with the Standing Veterinary Committee may be used in the light of a Community decision repealing or amending restrictive measures adopted by a Member State on the basis of Article 11 (2). The latter provision demonstrates that Directive No 71/118 includes a procedure to verify observance of it, at least as far as the rules contained in Article 11 (2) are concerned.
It is wrong therefore to conclude that the directive in question is irrelevant to this case, merely because the Member State involved has declared that it was exercising powers vested in it by Article 36 of the EEC Treaty; on the contrary, the most important matter is observance of the directive, but of course in so far as Article 11 is found to be applicable.
I must say however, in that respect, that the French Government's interpretation of that article does not seem to me to be convincing. In my opinion, to deduce from paragraph 1 that Member States are prohibited from changing their animal health rules in the field with which we are concerned represents a distortion of the wording and purpose of that paragraph. The Community legislature confines itself to permitting application of the existing rules “until the entry into force of any Community provisions”; but the very fact that those provisions are treated as an eventuality — and are therefore not intended to be introduced rapidly, as has, moreover, been borne out by experience — lends weight to the view that there was no prohibition of any amendment to national rules. That was recognized by the Commission, which correctly considered that it was excessive to think that a Member State may not make to its laws amendments which are inspired, for example, by new scientific information.
However, although those observations persuade me to reject the view advanced by the French Government, they do not entail the consequence that any national amending measure is to be regarded as lawful by virtue of the abovementioned Article íl (1) of the directive. In my opinion, the only national provisions falling within the scope of that rule, whose conformity with the requirements of Article 36 of the Treaty need not therefore be verified, are those already applied as at the date of the directive (as demonstrated by the expression “continue to apply”).
There remains to be considered the scope of paragraphs (2) to (5) of Article 11 of the directive in question. It should be recognized that the last recital in the preamble thereto, in which it is stated that (in those paragraphs, needless to say) certain conditions are laid down “under which Member States may prohibit or restrict the introduction of poultrymeat into their territori. for animal health reasons”, provides an argument in support of the French view. since it attributes to the paragraphs in question the function of regulating the whole problem of limitations on poultrymeat imports imposed for health reasons. In such circumstances, the United Kingdom measures, which certainly do not conform to the measures laid down in paragraph (2), would have to be regarded as unlawful on those grounds alone. But, in my opinion, it is important not to overlook the opening passage of that recital which states that: “Animal health provisions relating to trade in live poultry and fresh poultrymeat will be the subject of other Community directives”. That wording suggests that Article 11 (2) is to be interpreted restrictively; and the result of a restrictive interpretation is the conclusion that the only Sute measures governed by that paragraph and the following paragraphs are measures combating an epizootic disease which has effectively broken out in another Member Sute. That may be deduced in particular from the nature of the case provided for in subparagraphs (a) and (b) of paragraph 2 (“in the event of an outbreak ofan epizootic disease ...”, “if an epizootic disease becomes widespread or if there is an outbreak of another serious conugious or infectious animal disease”). This is further confirmed by paragraph 3, by virtue of which every Member Sute is obliged to inform the other Member States and the Commission of “the outbreak in its territory of any such disease as is referred to in paragraph 2 and of the measures taken to control it” and also of the elimination of the disease. Finally, it is equally significant that paragraph 5 is to be applied, “if the situation envisaged in paragraph 2 arises ...”; only if the term “situation” refers to the case of an outbreak of an epizootic disease, and not to a general danger of infection, do the consequences of that paragraph appear to be justified.
Indeed, it seems to me that paragraphs 2 to 5 of Article 11 are not concerned with measures which introduce new domestic animal health provisions relating to trade in live poultry and fresh poultrymeat; in other words, they are not concerned with the category of measures within which the United Kingdom measures of August 1981 fall. I have already said that Article 11 (1) does not refer to circumsunces of that kind; that provision must however be considered in the light of Article 36. Moreover, we shall see later that an argument mav be inferred from Article 11 (2) of Directive No 71/118 which is relevant to the interpretation of Article 36 in relation to the present case.
4.
It is well known that Article 36 of the EEC Treaty, in derogation from Articles 30 to 34, permits inter alia“prohibitions or restrictions on imports, exports or goods in transit justified on grounds of ... the protection of health and life of ... animals ...”, provided that they do not constitute “a means of arbitrary discrimination or a disguised restriction on trade between Member States”.
It is appropriate by way of preliminary to summarize some of the interpretations which the Court has given to Article 36. In the first place, the Court has emphasized that the fact that that provision allows derogations means that it must be strictly interpreted (cf. judgment of 12 October 1978 in Case 13/78, Eggen, [1978] ECR 1935, paragraph 30 of the decision : “Article 36 is an exception to the fundamental principle of the free movement of goods and must therefore be interpreted in such a way that its scope is not extended any further than is necessary for the protection of those interests which it is intended to secure”).
In the second place, the Court has stated that the expression ”prohibitions or restrictions ... justified” means necessary, indeed indispensable limitations (cf. judgment of 15 December 1976 in Case 35/76, SimmenthaĻ [1976] ECR 1871, paragraph 10 of the decision: “the restrictions authorized by Article 36... only comply with the Treaty in so far as they are justified, that is to say necessary for attainment of the objectives referred to by that provision...”. A statement to that effect is contained in the judgment of 12 July 1979 in Case 153/78, Commission v Federal Republic of Germany, [1979] ECR 2555, paragraph 5 of the decision, in which reference is made to “restrictive measures authorized ... only in so far as they are ... necessary ...”).
The Court has added to the foregoing on two occasions: on the one hand, it has denied that Article 36 is intended to reserve the matters provided for therein to the exclusive jurisdiction of the Member States (cf. the abovementioned judgments, SimmenthaĻ paragraph 24 of the decision, Tedeschi, paragraph 34; Commission v Federal Republic of Germany, paragraph 5); on the other hand, it has made clear that: “National rules or practices do not fall within the exceptions specified in Article 36 if the health and life of humans can be effectively protected by measures which do not restrict intra-Community trade so much” (judgment of 20 Mai 1976 in Case 104/75, de Peijper, [1976] ECR 613, paragraphs 16 to 18 of the decision; judgment of 8 December 1979, Denkavit Futtermittel, cited above, paragraph 23 of the decision).
Therefore, a State which relies upon Article 36 and upon which it is incumbent to prove that the restrictive measures introduced satisfy the conditions laid down in that provision (cf. the judgment in Denkavit Futtermittel cited above, paragraph 24) may not confine itself to stating that the measures are in fact based on one of the grounds indicated — for example, protection of the health and life of animals — but must demonstrate that those measures are necessary in order to attain the desired objective; and that it was impossible to take an alternative course of action which was equally effective and yet less liable to restrict trade. The Court, when called upon to consider whether the measures in question are lawful, must examine their merits from the point of view of their necessity and the observance of the principle of proportionality, as well as for the purpose of ascertaining whether they involve arbitrary discrimination or serve to disguise a “protectionistic” restriction on trade.
5.
Turning to the present case, I should point out in the first place thai the breach of the Community obligations of which the United Kingdom is accused relates to two aspects of the measures of 27 August 1981, namely the prohibition of imports of poukrymeai from those Member States which do not apply the system introduced in Great Britain and the system of special licences applied to egg products. It is a question therefore of establishing whether or not those two aspects are justified by Article 36, regardless of any decision about the changeover from the system of preventive vaccination (so-called “control system”) to the system of non-vaccination (so-called “eradication system”); and in fact the Commission seems unwilling to call in question the lawfulness of the change in the United Kingdom's veterinary policy, in so far as its intrinsic merits are concerned, that is to say to the extent to which its repercussions on intra-Community trade mav be disregarded. Regard should nevertheless be had to the fact that certain restrictions on imports seem to be an integral part of any policy prohibiting preventive vaccination and “eradicating” Newcastle disease. Therefore, although it is true that the question to be decided is whether or not the measures concerning imports are compatible with Article 36 it is difficult to avoid consideration of the United Kingdom measures of 27 August 1981 in their entirety, in the light of that article. In the event of their being wholly unjustified, under Article 36, the special system of limitations on imports would of course likewise be unjustified; however, the possibility remains that only that system may be unjustified, in view of the existence of other possible courses of action which would be less harmful to trade.
Before proceeding with this line of inquiry, I should like to dispose of an argument emphatically put forward by the United Kingdom in the oral proceedings, namely that it is incorrect to speak of a “ban” on imports of poultry because the other Member States which adopt the same method of combating Newcastle disease as the one now in force in the United Kingdom are fully at liberty to expon their poultry products to that country. Frankly, it seems to me to be an inconsistent argument. When it adopted its new policy, the United Kingdom was well aware of the fact that only two Member States would satisfy the conditions described in its letter of 27 August 1981 and that since it had provided for the import restrictions to be brought into force almost immediately those restrictions would in any case hinder intra-Community trade until such time as all the other Member States might decide to change their system. Moreover, even though one of the Member States, France to be precise, which had a particular interest in exporting poultrymeat to the United Kingdom and which was totally free of Newcastle disease, announced that it had prohibited vaccination and decided to take compulsory slaughter measures in the event of an outbreak of the disease (16 September 1981), the United Kingdom Government added a further condition to that indicated in the abovementioned letter of 27 August 1981, namely that imports from France were not to be admitted in any case because France for its pan imponed poultry from countries where the so-called method of eradication of Newcastle disease was not applied. If therefore all the other Member States wished to conform to the new British veterinary policy, the frontiers of the Community would have to be closed to imports from any country where preventive vaccination was practised. Quite apan from the repercussions of such a course of action on trade relations with non-member countries, it is clear that that is a matter for Community decisions and not for a change of policy on the part of individual Member States. Finally, the argument of which I am advocating the rejection appears to conflict with the position adopted by the United Kingdom in this case. It has sought to rely upon Article 35, recognizing by implication that if that provision did not render lawful its measures of 27 August 1981 they would fall within the prohibition contained in Article 30; whereas to denythat there is a ban on imports only makes sense if it is argued that Article 30 is inapplicable. Otherwise, discussion of the matter is merely terminological and does not alter the limits of the case.
6.
I shall now examine the new United Kingdom policy for combating Newcastle disease from the point of view of its necessity for the protection of the health and life of poultry. The United Kingdom view may be summarized as follows: only the “eradication” method (prohibition of preventive vaccination, compulsory slaughter of poultry in the areas where there is an outbreak of the disease, prohibition of imports of vaccinated poultry) ensures the highest standard of poultry health, so that every bird, by reason of its increased vulnerability, becomes, as it were, a sentinel indicating any new outbreak of the. disease, so that the latter may be rapidly identified, the area of infection may be determined and the disease may be eliminated. Preventive vaccination, on the other hand, whilst reducing the risk of infection for the vaccinated poultry, increases the concealed danger constituted by the vaccinated poultry, which may be carriers of the field virus and may therefore infect unvaccinated poultry; in such case, any new outbreak of the disease would be detected less promptly and less effectively.
That view is contested by the Commission, which states that the system of control based on preventive vaccination provides a safeguard of at least the same security; it is also contested by the French Government which considers the control system to be more effective and emphasizes that it was on those grounds that it was rapidly reintroduced into France after the change of veterinary policy which took place in September 1981 did not achieve the desired result of resumption of expons to the United Kingdom.
In my opinion, the considerations to be borne in mind are the following:
(a)
The new policy introduced by the United Kingdom on 27 August 1981 which is, as I have said, inseparably connected with measures restricting imports, ought, if it is to be justifiable under Article 36 of the EEC Treaty, to be necessary for protection of the health and life of poultry. That view was not in fact put forward by the United Kingdom Government, which merely tried to demonstrate the technical superiority of the system of eradication.
(b)
Great Britain had in the past (until 1962, as I mentioned at the beginning) applied the policy which it has recently resumed, and did so “with vigour and determination”, as indicated in 1962 in the repon of the committee chaired by Sir Arnold Plant (paragraph 252). Nevertheless, the acute and subacute forms of Newcastle disease persisted (paragraph 253) and the repon emphasizes the difficulties deriving from the existence of “reservoirs” of infections in which the disease appears in such a mild form that it is not readily recognizable (paragraph 253 again). It seems therefore that, after 15 years of a policy of “eradication” and not of vaccination (1947 to 1962), the same disadvantage as is today attributed to the presence of vaccinated poultry still exists.
(c)
Even after the epidemic of 1970 and 1971 the United Kingdom experts remained convinced that “The only effective means of protection for the poultry industry against Newcastle disease is to undertake a full programme of vaccination and to maintain high standards of hygiene and disease security within and between flocks. Anything else that is done, desirable though it may be, is of relatively less importance” — (paragraph 2 of the Report of the Review Panel on the Newcastle Disease Epidemic, October 1971).
(d)
The method of compulsory vaccination, regarded as “highly desirable” by that group of experts (paragraph 25 of that report) was never adopted, in view of the practical difficulties connected with application and control thereof — and perhaps also because of its cost — but it seems clear that it would have enabled the acute forms of the disease to be effectively eradicated. That is proved by the fact that, where an outbreak of the disease occurs among vulnerable poultry, under the system now adopted in Great Britain, recourse is had to “ring vaccination” (that is to say vaccination of all the vulnerable poultry located in the area adjacent to the focus of infection) in order to limit the infection by preventing it from spreading.
(e)
The possibility of recourse to “ring vaccination” becoming necessary, where the disease breaks out, proves that even in a country where the “eradication” system is applied, a situation where vaccinated and unvaccinated poultry coexist may reemerge, a situation which has been presented as the most serious disadvantage of the control systems.
f)
The statistics of the International Office of Epizootics show that during the last three years the risk of a new outbreak of Newcastle disease has not materialized either in countries which adopt the “eradication” system (Denmark and Ireland) or in certain countries where the control system has applied (France, the Netherlands, Luxembourg and United Kingdom); however, the number of cases in the other countries in the second group has shown a clear tendency to fall to zero and in 1981 only Greece, within Western Europe, notified 12 cases of the disease.
It seems to me that at least two deductions may be safely drawn from the foregoing considerations: several objective factors contradia the view that the system of “eradication” of the disease is superior; and in any case there appear to be no grounds for regarding the adoption of that system as necessary in the United Kingdom. In my opinion that might in itself be sufficient to found the view that the United Kingdom measures at issue are not justified by Article 36.
7.
As I have already had occasion to emphasize, it is possible to disregard the contested measures as a whole and merely consider, in the light of the rules of Community law, the restrictions on imports which are specifically contested by the applicant. I shall therefore consider, within the logic of the new United Kingdom system, whether those restrictions were necessary.
We are familiar with the United Kingdom view: the meat of vaccinated poultry imported from other countries may be a masked carrier of the field virus. It is of course necessary to presume that that meat, and in particular the poultry which provided it, have not already transmitted the disease, or at least that that disease has not manifested itself, during the period in which they were in contact with unvaccinated poultry in the country of origin; (otherwise it would be easy to locate the focus of infection and prohibit only imports from the infected area, in accordance with the system provided for in the abovementioned Directive No 71/118). Such a case might arise, though very rarely, but the extent of the risk is reduced. The fact remains that the reasoning adopted by the United Kingdom would in itself justify a prohibition of imports of vaccinated poultry and not the extension of that prohibition to unvaccinated poultry. But the French Government has stated, and has not been contradicted on that point, that the poultrymeat exported from France to Great Britain was almost exclusively from unvaccinated poultry and was therefore susceptible to the disease. Yet it has not been explained how that meat too can conceal an active field virus.
I shall now for a moment direct my attention to Article 11 of Directive No 71/118, specifically to paragraph 2. Even if it does not apply to the present case (for the reasons set out earlier), the fact seems significant to me thai it permits national authorities, in the event of an outbreak of an epizootic disease in another Member State, to prohibit or restria the import only of fresh poultrymeat coming from the areas of that Member Sute where the disease broke out, and even then as a temporary measure. A restrictive measure limited as to area and as to time and subject to control by the Community authorities was therefore regarded by the Community legislature as sufficient to ensure protection in the event of an actual outbreak of the disease. The United Kingdom, like all the other Member Sutes, has no authority to adopt more severe measures in the event of an outbreak of Newcastle disease in another State. It would be highly incongruous if a much more severe measure, consisting of prohibiting for an indefinite period all imports of poultry coming from other Member States where the control system is applied, were considered necessary, and therefore justified under Article 36, where there is merely a permanent and general risk that the disease might reemerge Such a situation (which can never be entirely eliminated, in view of the numerous vectors transmitting the virus) would thus practically be placed on the same footing as the case of a widespread outbreak of an epizootic disease, which under the directive justifies prohibition of all imports from a Member State (Article 11 (2) (b)), yet with the great difference that the prohibition allowed by the directive is temporary and maintenance of it is subject to supervision by the Commission.
Moreover, the course of action taken by the United Kingdom is not the only one
available. An alternative exists which restricts imports to a lesser extent — that is demonstrated by the system adopted in Denmark — that is to say, in another Member State where the “eradication” is applied — which was described in detail in the Commission's reply to the questions put by the Court (paragraph (f)) The most interesting aspects of that system seem to me to be the following: in the case of poultrymeat from countries which use preventive vaccination, a distinction is made in the first plac: between products from vaccinated flocks and products from non-vaccinated flocks; in both cases, the poultry must come from an area of a defined diameter (20 km) which has been free of the disease for six months prior to the exportation and a number of samples of the poultry whose meat is imported must have undergone, at the time of slaughter, a laboratory examination producing negative results regarding Newcastle disease. Moreover, in the case of vaccinated poultry, specified vaccines must have been used; as regards unvaccinated poultry however, the laboratory examination may, in the alternative, be carried out on a sample of birds from each flock.
The Commission and the French Government have stated that their efforts to persuade the United Kingdom to introduce a system similar to the Danish system have been in vain, although such efforts show that, from the Commission's point of view, the changeover to the “eradication” system was to be regarded as permissible and that a limited restriction on imports, to ensure the success of the new system appeared to be justified. Counsel for the United Kingdom stated during the oral proceedings that the extent of British imports of poultry (in particular from France) was so much higher than in Denmark that it was impossible to adopt the same measures. In fact, it had proved impossible to establish the difference exactly, expressing the imports as a percentage of total consumption; according to a statement by Counsel for the French Government, the percentage is 5% in the United Kingdom as against 1.1o/o in Denmark. But in any case, the argument put forward by the United Kingdom is not in fact convincing.
All that is required in the Danish system is a certificate, in fact an extension of the content of the health certificate prescribed in Article 8 of Directive No 71/118; and it is not apparent what particular difficulty for the importing State might be involved in the examination of numerous certificates. If the British view were to be seen to imply a distrust of examinations carried out by laboratories in other countries, the whole health certificate system would be called in question, since it is based on local veterinary certificates. However, the meaning of the United Kingdom objections seems to me to be that a laboratory examination based on samples is less likely to reveal the presence of the virus if it is carried out on a larger quantity of products. I believe that view to be incorrect; it is sufficient if the percentage of the imponed consignments taken and examined remains the same. Furthermore, I repeat that laboratory examinations are one of the factors in the Danish system; the other consists of certificates to the effect that the area where the meat comes from has been free from the disease for six months.
Finally, attention should be drawn to the “Draft proposal for a Council Directive on health problems affecting intra-Community trade in fresh poultrymeat”; that draft was communicated to the Commission by Mr Dalsager but has not yet been passed to the Council. The United Kingdom annexed it to its submissions (Annex 6) and held it up as a good example of an initiative on the pan of the Commission intended to harmonize legislation in the area with which we are here concerned.
The rationale of that draft, according to Counsel for the defendant, coincides with the attitude adopted by the United Kingdom after the 1981 measures, that is to say, that every exporting Member State must protect itself and the importing countries against any infection which might be transmitted by viruscarrying poultry. But that view clearly lends itself to the objection that whilst it is lawful for the Community institutions to follow a specific line in order to harmonize legislation, it is not lawful for a Member State to require the others to treat it as a model to be followed.
In addition, I should point out that the abovementioned draft proposal confines itself, as far as vaccination is concerned, to prohibiting the use of two types of vaccines (those prepared from velogenic strains and live virus vaccines prepared from mesogenic strains) and makes no provision regarding vaccines based on lentogenic strains, which are today regarded as the most innocuous and most effective (Article 3). Moreover, the Member States are required to adopt certain measures to combat the disease in the event of an outbreak within their territory (Articles 4 to 9); and that presupposes that the disease can be localized, that it can be combated by means of slaughter of the infected poultry and disinfection and that it is possible to trace the course of the disease by means of laboratory examinations. Only when the prescribed measures to combat the disease have not been complied with may the country of destination prohibit the entry of meat from the infected area into free circulation in its territory (Article 13), whilst the temporary prohibition of all imports from a specified country is permitted if the epidemic spreads outside the said zone (Article 10 (1)). The measures restricting imports provided for in the draft proposal are therefore, as observed by the Commission, of the same order as those under Article 11 of Directive No 71/118 and therefore allow the same inference to be drawn as that which led to consideration of paragraph (2) of that article, namely that circumstances more serious than those of a general and permanent risk of a fresh outbreak of the disease are regarded as a basis for restrictions on imports which are less severe than the measures adopted by the United Kingdom.
8.
The foregoing considerations seem to me to show not only that those measures, as regards their restrictive effect on inira-Communiiy trade, were in no sense necessary but rather were excessive with respect to the desired result, which was to ensure the success of the system intended to “eradicate” Newcastle disease. However, the extent to which the principle of proportionality has been observed must also be verified in relation to another aspea: the damage caused to intra-Community trade must be assessed and compared with the advantage which the United Kingdom may expect to gain from the new policy, from tne veterinary point of view. The first factor (damage) is certainly conspicuous: a flow of exports from France valued, according to the 1980 Eurostat statistics for 1980, at 4809000 European units of account for that year, has been suspended. Thus, reliance may be placed on the statements made by Counsel for the French Government who spoke of poultry undertakings which were obliged to alter their production levels drastically and which were on the threshold of bankruptcy. In addition, there is a definite disadvantage for the British consumer since the prices of poultry, and particularly of turkeys, naturally rose after restrictions were imposed on imports. As regards the second factor (enhanced health of poultry bred in Great Britain), in actual fact it carries no weight at all: although it is true, as I have stated, that in recent years Newcastle disease has no longer occurred in Great Britain, the maintenance of that situation — that is to say the best results conceivable under the new system — will merely represent consolidation of an advantage already acquired.
The defendant placed great emphasis on the disastrous financial consequences of any new epidemic, but fortunately there are no signs of any approaching epidemic and no one can say what the financial consequences would be, if there were an outbreak, in the States where the control system is in force and in those which prefer the system of eradication. In short, therefore, the United Kingdom's confidence in its ability to defend itself more effectively against any future outbreaks of Newcastle disease has been paid for rather dearly by the poultry producers in the other Member States and particularly in France. Even if it is admitted that it is advantageous for the whole Community that the British poultry stock should be in the best of health — a point raised in the oral proceedings — it seems to me clear that the future results pursued by the United Kingdom measures are out of all proportion to the present and future sacrifices made by exporters of other Member Sutes. I am of the opinion therefore that the principle of proportionality has been breached.
9.
The Commission also maintains that the United Kingdom import restrictions constitute an arbitrary means of discrimination, infringing the provisions of the last sentence of Article 36. That view is based on two facts: on the one hand, whilst the restriction of imports was applied as from 1 September 1981, the sale in Great Britain of vaccinated poultry from local flocks was allowed for at least one year beyond that date; on the other hand, the import of exotic birds — potentially dangerous because of their ability to spread Newcastle disease — was permitted until 1 October 1981, then suspended, and then rendered subject to restrictions only as from 18 January 1982, in the form of a measure which is in any case less stringent than that relating to poultry (it merely requires veterinary examinations and a period of quarantine). According to the defendant Sute, such differences of treatment are merely an aspect of the new veterinary system introduced to combat Newcastle disease and are not of such a kind as to be assessed separately under Article 36.
I should point out in that regard that both the facts referred to are at variance with the grounds relied upon by the United Kingdom to justify its measures pursuant to Article 36. If the danger of infection caused by vaccinated poultry were so grave as to justify the prohibition of imports, and such a prohibition appeared necessary for protection of the health of the birds in question, it is impossible to see how the United Kingdom could at the same time consider that it had secured protection from the danger represented by the subsequent coexistence of “national” vaccinated and unvaccinated poultry and by the gradual sale of poultrymeat from those two categories, or how it could adopt, with respect to other possible field-virus carriers, a rather less stringent policy.
In the first place, therefore, the circumstances described above confirm that the need for a change in veterinary policy and, in particular, the need for a total suspension of imports of poultry, did not exist. In the second place, those facts demonstrate that there was effectively arbitrary discrimination — not a difference of treatment justified by the first sentence of Article 36 — to the detriment of exporters of poultry products from other Member States and to the benefit of British breeders and also of the importers of wild birds. In the third place, the health control policy adopted with regard to exotic birds confirms that there are alternatives to a total prohibition of imports. It must be acknowledged therefore that, in that respect also, the United Kingdom has infringed Article 36.
10.
The final passage of that article states, as I mentioned at the beginning, that the prohibitions and restrictions on imports provided for therein are not to constitute “a disguised restriction on trade between Member States”.
The object of that provision, as the Court has made clear, is to “prevent restrictions on trade based on the grounds mentioned in the first sentence of [Article 36] from being diverted from their proper purpose and used in such a way as ... indirectly to protect certain national products” (judgment of 14 December 1979 in Case 34/79, Regina v Henn and Darby, [1979] ECR 3795). In essence, the restrictive measures which the State in question justifies by reliance on one of the grounds mentioned in Article 36 must not belie their true nature and constitute a cloak for protectionist measures or a boycott of products from other States.
In this case, the Commission has stated that the United Kingdom, by its measures of August 1981, in effect sought to protect domestic poultry production against French competition. Imports from France in fact rose from a total value of 28000 European units of account in 1979 to the figure mentioned above of 4809000 European units of account in 1980, representing more than 1.85% of the United Kingdom's total imports of poultry from other Member States.
That successful and massive competition alarmed the British poultry breeders, and in particular turkey breeders, who made themselves heard on numerous occasions during 1981, seeking Government measures to prevent or control French imports; that is shown by the press cuttings produced by the Commission (Annex 9 to the application) and in particular the articles published in The Financial Times on 8 February 1981 (“Turkey farmers threaten French imports blockade”), of 18 May (“Poultrymen seek imports curb” and “Boycott call on French poultry”), of 29 May (“Warning on French poultry”) and of 16 July (“Minister urged to aid poultry men”). French producers were accused in particular of receiving State subsidies and of failing to comply with animal health rules with the same scrupulousness as the United Kingdom breeders. At the same time, however, some journalists recognized that there were other factors in the crisis which were of a purely national nature, such as energy costs and high interest rates in the United Kingdom (cf. the aniele “British poultry firms face closure as French expand” which appeared in The Daily Telegraph on 2 March 1981). Thus, even in the United Kingdom press, the justification on health grounds of the measures adopted on 27 August 1981 was interpreted as a pretext to overcome French competition (cf. the article “Fowl play all around” in The Times of 29 August 1981).
For its part, the United Kingdom has not denied in the course of these proceedings that the measures may also have been useful from the trade point of view, but has maintained that that fact did not alter its view that the measures were lawful, being based principally on the need to protect the health of the poultry. The immediate reply to that contention is that the abovementioned provision contained in Article 36 requires a comparison to be made between the officially declared objectives of the measures in question and of any protectionist aim which they may have.
Having regard to the foregoing, I am of the opinion that certain irrefutable factors support the view that the veterinary measures in question are “simulated”. I refer to the following circumstances:
(a)
the protests and threats of boycott by British breeders between February and July 1981 and their pressure on the Government authorities to ensure that French imports were in some way hindered;
(b)
the approaches made by the United Kingdom authorities requesting the Commission to reduce French exports, basing their argument on the aid given by the French Government to poultry breeders (cf. interview with the United Kingdom Minister of Agriculture, Mr Walker, reported in the abovementioned article “Warning on French poultry”, in which it was suggested that traders should not rely upon imports of turkeys from France for Christmas);
(c)
the failure of those approaches, since the Commission considered the French support measures to be compatible with Community rules (cf. reply given by the Commission on 29 January 1982 to Written Question No 896/81 by Mr Welsh, Official Journal C 53 of 1 March 1981, p. 2);
(d)
the extremely brief period between the issue and the entry into force of the measures of 27 August 1981 — with the objective consequence that it became impossible to order and secure the arrival of French turkeys for Christmas sales;
(e)
lhe subsequent total refusal to consider alternatives with regard to measures restricting imports.
In the light of those factors, it seems to me that there are sufficient grounds for the view that the contested measures were incompatible with Article 36, inter alia because they concealed their true protectionist nature.
11.
There remains to be examined the problem of the special impon licences prescribed by the United Kingdom for egg products which had undergone heat treatment. The Commission points out that that barrier to the free movement of goods is in no way justifiable under Article 36, since special licences in the poultry sector provide no further guarantee than that provided by the health certificates issued by the competent authorities in the exporting Member State. The restriction in question is therefore disproportionate with respect to the objective pursued and is contrary to Article 30 of the EEC Treaty.
The defendant Government states, in particular, by way of objection, that the measures on which the “charge” is based are those adopted by the United Kingdom on 27 August 1981 (which entered into force on 1 September) which did not involve any system of licences for egg products; therefore the Commission's arguments in that respect fall outside the scope of these proceedings. That problem moreover is being dealt with in Case 124/81, now pending before the Court.
With regard to that objection, I would point out that the general prohibition of the import of egg products which formed part of the restrictive measures applied as from 1 September was replaced some days later by the system of special licences; it made possible imports of such products into the United Kingdom, if they had undergone an appropriate heat treatment, on the basis of a licence issued from time to time in respect of each batch (letter of 4 September 1981 from the United Kingdom Permanent Representation to the Commission). Having been made aware by that letter of the change which had taken place, the Commission expressly referred to the restrictions on the imports of eggs and egg products, both in its letter addressed to the United Kingdom of 11 September 1981 and in its reasoned opinion of 12 October 1981. In that way, the Commission clearly intended to refer also to the system of special licences, and to give notice of its incompatibility with the Treaty. That fact moreover appears from the wording used in that letter of 11 September to describe the problems raised in Case 124/81 with regard to import licences and from the express reference in paragraph 1 of the reasoned opinion to the system of special licences for egg products; in the final part of that opinion, it is clearly stated that, by applying the system of impon licences to the importation of egg products, the United Kingdom has infringed Article 30 of the Treaty.
The objection of inadmissibility raised by the United Kingdom against that charge therefore appears unfounded.
With regard thereto, the defendant maintains that in order to justify the contested measure regard should be had not to the panicular sector to which the licences apply (in this case the poultry sector) but to the nature of the risks against which the licences provide protection. Since the principle of special licences has been accepted by the Community in the context of measures to combat foot-and-mouth disease and swine fever, there is no reason, in the defendant's view, for ruling out the same course of action with regard to Newcastle disease.
It should be noted in that connection that, regardless of any verification of the statement that that principle has been “accepted by the Community” for other epizootic diseases, the fact should not be overlooked that foot-and-mouth disease and swine fever have been the subject of harmonizing Community directives, which have introduced regulations regarding all aspects of measures to combat those diseases. That has not, as we have seen, taken place in the case of Newcastle disease, except for the limited rules laid down by Directive No 71/118. It is therefore meaningless to deduce from Community directives concerning other animal diseases a “principle” whereby special licences are permissible, to be applied by analogy in a sector essentially governed by Article 36 of the Treaty. The requirements for analogous application are not in fact satisfied.
On the other hand the importer's obligation to obtain a special licence for each consignment of goods must be regarded as creating both a sute of uncertainty as to the outcome of the transaction and inconvenient delays and procedural formalities. In that regard the Court has expressed the clear view that internal rules which impose, even if purely as a formality, the requirement of an import or export licence, are contrary to Articles 30 to 34 (cf. in particular judgment of 15 December 1971 in loined Cases 51 to 54/71 International Fruit [1971] ECR 1107, paragraphs 8 and 9 of the decision; and of 16 March 1977 in Case 68/76 Commission v France [1977] ECR 515, paragraphs 14 to 16 of the decision).
Those barriers to intra-Community trade do not moreover appear to be justified in order to protect the health of animals since the procedure required for the grant of the special licence adds nothing to the safeguard provided by admission of the products pursuant to a measure of a general nature requiring documentation proving that they have been subjected to the appropriate heat treatment.
12.
In conclusion, I consider that the United Kingdom measures of 27 August 1981 and the amending measures of 4 September 1981 relating to the conditions applicable to the importation of egg products are not justified under Article 36 of the EEC Treaty, for the numerous reasons I have set out above. Consequently, I propose that the Court declare that, by adopting those measures, the United Kingdom has failed to fulfil its obligations under Article 30 of the Treaty. Finally, as regards the system which had already been in force for several years in Northern Ireland, I propose that the Court reserve its decision until a later stage.
(
1
)	Translated from the Italian.