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.