OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 1 FEBRUARY 1984

My Lords,

Rewe-Zentrale imports fruit and vegetables into Germany from other Member States. On 29 March 1982 Rewe asked the Director of the administration responsible for phytosanitary inspection in the Rhineland area to give an undertaking that such inspections would not be carried out on more than three-twentieths of consignments from other Member States. The Director refused. He relied on the German Plant Inspection Order which implemented Council Directive No 77/93/EEC of 21 December 1979 on “protective measures against introduction into the Member States of harmful organisms or plant products” (Official Journal 1977, L 26, p. 20).

Articles 3, 4 and 5 of the Directive required or authorized Member States to ban the introduction into their territory of certain harmful organisms and to impose conditions for the importation of certain plants and plant products. In respect of specified products the Directive required that phytosanitary certificates should be given after inspection of the products concerned.

Article 11 (1) empowered Member States to require that plants and plant products when imported should be subject to an inspection to ensure that the prohibitions and restrictions in Articles 3, 4 and 5 were observed. Member States were, however, also required to ensure that plants and plant products, the introduction of which was not prohibited under those three Articles, were not subjected to prohibitions or restrictions relating to plant health measures except as specified. One such exception arose if the necessaiy phytosanitary certificates were not produced.

Paragraph 3 of Article 11 laid down special provisions for fruit, vegetables and potatoes other than seed potatoes, which I refer to compendiously as “fruit”. Member States were permitted to impose an official check on identity and to cany out the inspections authorized by paragraph 1 of the Article but were prevented from carrying out systematic checks on compliance with provisions adopted under Articles 3 and 5 except where there was serious reason to believe that one of those provisions had not been complied with, or where the fruit originated outside the Community and had not been examined in another Member State. It went on:

“In all other cases, only occasional official inspections of (fruit) shall be carried out by sampling. They shall be deemed occasional if they are made on no more than one-third of the consignments introduced from a given Member State and are as evenly spread as possible over time and over all the products.”

This Article was to be complied with within a period of four years from its notification.

It is accepted that the Director did not in fact inspect as much as one consignment in three: in April, May and June 1982, 19% and in the following three months 14 %, of consignments were inspected and many of these were simply inspected as to the identity of the consignments by reference to the accompanying phytosanitary certificates. It is not suggested that Rewe's importations were subject to a one-in-three check. Rewe claimed, however, in proceedings before the Verwaltungsgericht (Administrative Court) of Cologne that the one-in-three rule was in breach of Article 30 of the Treaty: the Director was not entitled to inspect on importation more than 15 % of consignments. The final sub-paragraph of Article 11 (3) was also said to be invalid because, contrary to Article 190 of the Treaty, no sufficient reasons were given to justify a one-in-three rule, in the light of the preamble to the Directive and of the ban on more than “occasional” checks.

The Verwaltungsgericht judged it necessary to ask the Court to answer two questions pursuant to Article 177 of the Treaty. The first is whether the last two sentences of Article 11 (3) are compatible with Article 190 and Article 30. The second question asks to what extent, at the present stage of the development of Community law in the sphere of plant protection, is the carrying out of phytosanitary inspections of fruit on importation, other than in excepted cases, “justified within the meaning of the first sentence of Article 36 of the EEC Treaty when the consignment is accompanied by a phytosanitary certificate issued by a Member State”.

Suggestions have been made both here and in the national court that the proceedings before the national court were themselves invalid or inadmissible because of the nature of the relief sought and the fact that Rewe had not been subjected to a one-in-three inspection. That court was, however, satisfied that the action was admissible in German law. Rewe does import fruit from other Member States and is concerned to ensure that no more than a lawful percentage of checks is made. It does not seem to me that any reasons have been shown why this reference under Article 177 should be rejected.

Although the first question refers to the validity of the last two sentences of Article 11 (3), the essential point is more limited. The penultimate sentence enunciates the very principle which Rewe seeks to uphold and no doubts have been expressed as to its validity. Nor is there any issue as to the final limb of the last sentence. Neither has been shown to be in any way invalid in themselves.

The real contention is that there is a conflict between the obligation to carry out only “occasional” inspections, and the provision that inspections “shall be deemed occasional if they are made on no more than one-third of the consignments”. It is also said that such a high proportion is incompatible with the objectives set out in the preamble, in particular that obstacles to and checks on intra-Community trade should be gradually removed and that checks on fruit after the expiry of the four-year period were only to be permitted for special reasons, or to a limited extent, apart from certain inspection formalities. The relevant limitation is that checks must only be “occasional”.

Rewe's initial contention was that checks could not lawfully exceed 15 % of the total on the basis of the interim order made in Case 42/82 R Commission v France [1982] ECR 841. That contention was, rightly, abandoned at the hearing. The interim order sought to do no more than protect the position pending a final decision in the action and the embargo was fixed at 15 % against the background of acceptance by France that inspection of 10 % would be normally acceptable. That interim decision did not lay down any general rule as to the acceptable percentage of further checks in intra-Community trade.

“Occasional” is not a precise scientific term. What is capable of constituting an occasional act must vary according to the circumstances, and in a situation like the present, according to the objectives sought to be attained by the directive. Where fruit is concerned, there is obviously a risk that harmful organisms, which may spread quickly, could do considerable damage if introduced into a Member State. It is clear from the preamble to the directive that existing controls or the right to impose controls could only go as and when Member States had confidence in the efficacy of each other's inspections. Gradualness was inevitable.

Even though in other contexts one in three may be outside the ambit of “occasional”, may be too high, it seems to me that in the present context, in the light of the factors I have mentioned, it was open to the Council to fix one in three as being “occasional” within the ordinary meaning of that word.

On this basis, there is no inconsistency between the preamble and the two sentences, or between the latter inter se. The reasons given for occasional tests seem to me to be sufficiently spelled out in the Directive — put broadly, to harmonize provisions dealing with the introduction of harmful organisms into Member States and to remove obstacles to intra-Community trade; once guarantees could be relied on, to abolish systematic checks but to permit after the transitional period occasional checks needed to ensure that adequate protective measures were taken. There is in my view no breach of Article 190 of the Treaty.

Contrary to what is contended by the Irish Government, it seems to me that the question of the compatibility of this Directive with Article 30 does fall to be considered for the reasons given by the Commission.

It is clear that Community legislation is subject to the principle of the free movement of goods — whether directly by Articles 30 and 36 or by an analogous principle to be derived from Article 3 (a) on the basis that the elimination of quantitative restrictions on imports and measures having equivalent effect is one of the “activities of the Community” (Case 80-81/77 Ramel v Receveur des Douanes [1978] ECR 927 and Case 218/82 Commission v Council of 13 December 1983, paragraph 13 [1983] ECR 4063).

So far as Member States are concerned, the Court has accepted that, where a directive had been issued to harmonize domestic laws describing procedures to be followed, and in particular - for veterinary and public health guarantees to be recognized, although systematic public health inspections at the frontier were no longer necessary or justified under Article 36, occasional public inspections were not ruled out provided they were not increased to such an extent as to constitute a disguised restriction on trade between Member States (Case 35/76 Simmenthal v Italian Minister for Finance [1976] ECR 1871). “Controls on importation are compatible with the Treaty where they are justified by the need to protect public health, but on condition that the application of such controls does not constitute arbitrary discrimination or a disguised restriction on imported products. If a health control satisfies these requirements, Article 30 of the Treaty does not preclude such a measure” (Case 132/80 NV United Foods and Van Den Abeele v Belgium [1981] ECR 995). It is normally for the national courts to decide whether such national measures do constitute a restriction greater than is justified in the interests of public health.

Where the Council or the Commission, acting in the interests of the Community, impose occasional controls for the protection of health and life and which are not shown to be a means of arbitrary discrimination and disguised restriction on trade beween Member States, they fall no less clearly within Article 36 and are therefore not precluded by Article 30 (or an analogous principle). For the reasons given in the preamble, it seems to me that the occasional controls permitted by Article 11 (3) are not precluded by Article 30 because they are justified under Article 36 or under an analogous principle applicable to the Community.

There must, in any event, it seems to me, be a greater leeway for the Community institutions in enacting legislation of this kind than for the Member States, particularly where the controls authorized are less than those in force at the time the legislation is adopted by the Community. Accordingly, even if I had come to the view that the Council had adopted a special meaning for the word “occasional” — i.e. one in three which exceeds the ordinary meaning of the word — it would still seem to me that this provision had not been shown to be incompatible with the Treaty. It would be the same as if the word “occasional” had been left out and a ceiling of one in three inspections fixed without more.

The need to harmonize and gradually to eliminate controls as confidence in guarantees grew, seems to me to justify the adoption of a one-in-three rule. Insistence on a lower figure, at the time the directive was adopted, might well have resulted in no reduction having been agreed. I doubt in any event whether a one-in-three check can be described as a systematic check. There can be no precise percentage of controls which are necessary or justified as an absolute rule, and in a case like the present I would accept that a one-in-three rule is one which can fall within the discretion of the Council to decide what is adequate and what is justified. Whether in future this proportion of checks continues to be justified is a different matter which may one day have to be considered. Even on the basis therefore that a special meaning was given to the word it does not seem to me that there is any arbitrary discrimination or that there is at the present state of approximation of the laws of the Member States a disguised restriction on trade, or that it has been established that this proportion of checks was unjustified or unnecessary.

I have read the two questions asked as raising one composite question — what is the position under Article 30 (question 1) read with Article 36 (question 2)?

If this is wrong and the first question is really asking whether Article 30 (read with Article 36) renders the provision invalid, my answer is that nothing has been shown to render the provision invalid under these two articles. On that view, the second question does not arise. Contrary to the view of the Council and the Commission, I consider that had it arisen the Court would have had jurisdiction to answer it by way of an explanation of the legal position of Member States on the basis of the invalidity of this part of the directive.

That raises a difficult question. Is it right that, as the Council and the Commission appear to contend, if this part of the directive goes, Member States have complete discretion to act under the International Plant Protection Convention of 1951, or is the effect of that Convention affected by a Member State's obligations under Articles 30 and 36? It seems that the Court's judgment in Case 89/76 Commission ν Netherlands [1977] ECR 1355 would be relevant to that question. Since, however, it does not, in my view, arise and has not been fully argued, it seems to me unnecessary and undesirable to deal with it.

In the circumstances, I conclude that consideration of the questions raised has shown no factor such as to render invalid the final sub-paragraph of Article 11 (3) of Directive No 77/93.

The costs of the parties to the main proceedings should be dealt with by the national court. The Commission, the Council and the Irish Government should bear their own costs.