C-4/75

DIRECTOR OF THE LANDWIRTSCHAFTSKAMMER (Agricultural Chamber) acting as official representative of the Land, Bonn,

on the interpretation of the provisions of the Treaty concerning the prohibition on quantitative restrictions on imports and measures having equivalent effect, in relation to phytosanitary examinations on the importation of agricultural products,

THE COURT

composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco (Rapporteur), P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe, Judges, Advocate-General: G. Reischl

Registrar: A. Van Houtte

gives the following

I — Facts and written procedure As, in these circumstances, the German customs authorities refused to authorize the importation of the products in 1. This case, which was brought under dispute and required the carrier to leave Article 177 of the EEC Treaty, concerns the country, Rewe-Zentralfinanz the concept of 'measures having submitted the consignment to the equivalent effect to quantitative examination in question but, at the same restrictions on imports'. The questions time, lodged an administrative appeal posed by the court making the order for against this refusal on the grounds set reference — the Verwaltungsgericht out above. Köln — concern Articles 30 and 36 of the Treaty in relation to the The Verwaltungsgericht Köln which phytosanitary examination provided for dealt with the case accepted a suggestion by German legislation on the import of put forward by the plaintiff and, by order certain agricultural products, such as of 24 October 1974, decided to stay the apples. proceedings and to refer to the Court of Justice under Article 177 of the EEC The facts and the procedure may be Treaty the following questions: summarized as follows: '(1) Do 'quantitative restrictions on imports and all measures having Under the 'Pflanzenbeschauverordnung' equivalent effect' within the meaning (Regulations for plant inspection) certain of Article 30 of the EEC Treaty lits and vegetables imported into include the obligation to have plant Germany are subject to an official products (here, apples) inspected on phytosanitary examination when they import, at the importer's expense, for cross the frontier. By a judgment of 11 contamination with certain harmful October 1973 in Case 39/73 [1973] ECR organisms if refusal to allow the 1039 et seq., the Court of Justice of the phytosanitary examination means European Communities held that the that import of the goods will be pecuniary charge imposed on such an prohibited? examination was a charge having an (2) Is the first sentence of Article 36 of effect equivalent to customs duties' the EEC Treaty to be interpreted in within the meaning of the EEC Treaty such a way as to make phytosanitary and prohibited by Articles 9 and 12 examinations imposed at the frontier thereof. The Bundesverwaltungsgericht under domestic law to prevent the followed this decision in a judgment of 8 introduction of San José Scale March 1974. 'justified' within the meaning of the first sentence of Article 36 of the The main action concerns the legality of EEC Treaty even after the issue of this examination, considered from the the Council Directive of 8 December point of view of 'quantitative restrictions 1969 on control of San José Scale on imports' and 'measures having (69/466/EEC, OJ L 323 of 24. 12. equivalent effect', within the meaning of 1969, p. 5)? Articles 30 et seq. of the Treaty. (3) Is the obligatory phytosanitary inspection on the importation of On 29 October 1973 Rewe-Zentralfinanz foreign apples 'arbitrary dis­ refused to submit a batch of apples from crimination within the meaning of France to the phytosanitary examination, the second sentence of Article 36 of

On hearing the report of the Under the first subparagraph of the first Judge-Rapporteur and the opinion of the paragraph of this regulation, any persons Advocate-General, the Court decided to who possess or who are entitled to open the oral procedure without holding dispose of the host plants referred to by any preliminary inquiry. the regulation, with the exception of fruits and seeds, are obliged to inform the competent authorities immediately of II — Written observations sub­ the occurrence or the threatened mitted under Article 20 of occurrence of San José Scale, indicating the Protocol on the Statute the place where these plants are to be of the Court of Justice found. Once the appearance of the parasite has been noted, the authorities A — Observations submitted by in question would demarcate the Rewe-Zentralfinanz contaminated area and, as far as is necessary, set up a safety zone around it. Rewe-Zentralfinanz first considers the Several provisions regulate in detail the provisions of German law on which the obligations on those who possess and are phytosanitary examinations are based and entitled to dispose of the host plants, as compares the system applying to regards the measures to be taken in order imported products with that applying to to eradicate this harmful organism. The domestic products. As regards the import demarcation of the contaminated area or the transit of plants, vegetable and of the safety zone is revoked by the products or other goods which are or authority when a fresh examination may be contaminated, these provisions shows it to be free of contamination.

Since neither Articles 39 to 46 of the Neither this Directive nor Article 36 of Treaty nor the provisions of the common the Treaty requires all the plants and organization of the agricultural markets plant fruits imported from another in fruits and vegetables hamper the Member State to be inspected, even in application in this instance of Article 36 order to control San José Scale or to of the Treaty, the question raised by the prevent its occurrence. This applies in court making the order for reference is particular to the trade in fruit.

By way of of the Community. These rules are based derogation from these provisions the essentially on the idea that measures movement of contaminated fresh fruit must be taken against San José Scale within the contaminated area may be without taking account of the frontiers authorized. existing between the Member States. The German legislature only imposes an The decisive criterion is rather that of the obligation to inform on persons who demarcation of 'safety zones'. Where an possess and are entitled to dispose of the occurrence of San José Scale is recorded, host plants and not the plant fruits.

Even on the transfer of and concerns exclusively the movement fresh fruit from a contaminated area to of the host plants, or parts of the host an uncontaminated area, no inspection is plants, between these zones and the necessary providing seeds are not other regions. It is true that, according to involved. A fortiori, inspection is not Article 11 of the Directive, the Member necessary on transporting just any batch States may adopt additional or stricter of fruit. The only obligation laid down is

that the plants suspected of being cannot live in the climatic conditions of contaminated must be treated in such a the Community (except possibly in Italy way that the fresh fruits therefrom are no or in the South of France). longer contaminated when moved. Moreover, phytosanitary examinations at Thus, to the extent that, in order to the frontier are never necessary where control San José Scale, German each batch is systematically subject — as legislation prescribes or authorizes a is the case in the Federal Republic — to phytosanitary inspection at the frontier a marketing check, in order to determine for fruit imported from other Member the category of the product, in States — whether or not such fruit accordance with Article 8 of Regulation originated in contaminated areas — it No 1035/72 of the Council of 18 May infringes the Directive in question and, 1972 (OJ L 118, 1972).

The Article 36 of the Treaty, on the ground only conclusive factor in this case is that under paragraph 7 of the whether, as regards the phytosanitary 'Pflanzenbeschauverordnung', plant im inspections in dispute, imported products portation is subject to the presentation are treated in the same way as domestic of an official certificate of conformity products and, to the extent that this is with the phytosanitary regulations, issued not the case, whether imported products by the country of origin. Where a are thereby adversely affected.

While agricultural production. The former the domestic law does not even provide situation applies to San José Scale which for a phytosanitary examination of fruit has already spread in the south-west of coming from a contaminated area and, the Federal Republic, where the Federal even where the fruit is contaminated, Republic has already set up safety zones. provides neither for an obligation to The latter applies to the fruit fly which notify nor a general obligation to take originates in the United States and measures of control, an obligation exists

to notify imported fruit and submit it for the contaminated areas and the fixing inspection, whatever its area of origin, of safety zones. whether or not contamination has been 3. The first sentence of Article 36 of the recorded and in spite of the obligatory EEC Treaty and Article 11 of the production of a certificate of conformity Directive on control of San José Scale with the phytosanitary regulations, issued must be understood as meaning that ba the country of origin and certifying general phytosanitary inspections the lack of contamination. carried out at the frontier pursuant to domestic law in order to avoid the Moreover, as regards the control of other introduction of San José Scale are organisms harmful to plants, the neither "required" within the discrimination in relation to imported meaning of Article 11 of the products is even more apparent since, Directive nor "justified" within the apart from the case of seeds, the control meaning of the first sentence of of phytosanitary hazards is limited within Article 36 of the EEC Treaty. the national territory — apart from the 4. The first sentence of Article 36 of the problem of San José Scale — to two EEC Treaty must be understood as types of plants, for which, however, no meaning that the phytosanitary obligation of inspection exists. Moreover, examinations carried out at the the discrimination is not removed by the frontier pursuant to national law are fact that the phytosanitary inspection at not justified where the importing the frontier is intended to ensure State subjects the importation of the protection against certain specific plant products to the production of organisms which have not yet appeared an official certificate, which is issued

'1. The concept of "quantitative Treaty, where such products are not restrictions on imports and all subject to the same inspection measures having equivalent effect" obligation within the importing referred to in Article 30 of the EEC country when despatched within that Treaty also refers to the obligation to country.' submit plant products, on their importation from other Member B — Observations submitted by the States, to an inspection which is Federal Republic of Germany intended to establish whether they

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quantitative restrictions. According to charge imposed for the phytosanitary this Directive a measure having examination, the remaining inspection equivalent effect exists: measures have such a minimal effect on — when national regulations treat trade between States that they cannot be domestic products and imported regarded as a hindrance. products differently and thus hinder trade between Member States (by Moreover, even if the phytosanitary rendering importation more difficult inspections were regarded as an or costly) (Article 2 of the Directive); important an considerable burden on the — where, although they are applied movement of goods, it would still not without distinction to both domestic constitute a measure having equivalent and imported products, national effect, as in this instance the imported regulations in fact hinder the free goods are not treated in a discriminatory movement of goods because they are manner.

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been examined. Moreover, in addition to parasite, its exports and thereby its the absence of any disguised essential activities would be doomed as a discrimination, the contested system of result of the strict protective measures examinations at the frontier has no applied by the other countries. The restrictive effects which are out of control of San José Scale has already proportion to their purpose. As is shown been recognized by the Member States as by the example of the other Member absolutely necessary. In this connexion States, there are no other means of the Federal Republic refers to Council attaining the objectives sought. Directive No 69/466 of 8 December 1969 (OJ 1969, L 323, p. 5), and points In the light of these observations, the out that the Community regulations following answer should be given to the adopted on that occasion only concerned first question: the measures of control within the States but did not deal with the application of The obligation on importers to have inspection measures at the frontier.

After and once a whole region is contaminated referring to the 'International Plant it can only be combatted with difficulty. Protection Convention' of 6 December 1951 and the 'Convention for the Experience has shown that it is very difficult, even with modern techniques Establishment of the European and and considerable expenditure, to Mediterranean Plant Protection eliminate a centre of infection caused by Organization' of 18 April 1951, of which the introduction of contaminated the Member States of the Community are products. This organism is very signatories, the Federal Republic notes widespread in the Member States and that the measures adopted in Germany in

order to avoid the introduction of San control the harmful organisms, even José Scale and other harmful organisms where the goods despatched within that corresponds to the effort made in this territory are not subject to any check.' area on a world scale. C — Observations submitted by the The Federal Republic concludes that Commission of the European these inspections are justified within the Communities meaning of Article 36 of the Treaty and suggests that the following reply should After giving some details as to the origin, be given to the second question: the area over which it is spread within the Community and the method by 'Article 36 of the EEC Treaty must be which San José Scale is propagated, the understood as meaning that Commission points out that the control phytosanitary examinations carried out at of this harmful organism forms the the frontier by a Member State in order subject of international, national and to prevent the introduction of San José Community provisions.

The 'Regulation on than those inherent in the system control of San José Scale' of 20 April applied to such products, the Federal 1972 falls concept this context. This Republic concludes that these regulation, which also implemented a examinations do not constitute 'a means Council Directive of 8 December 1969, of arbitrary discrimination or a disguised laid down, in addition to the measures restriction on trade between Member referred to by this Directive, an States' under the terms of the second obligation on the owners and those in sentence of Article 36 of the Treaty. possession of host plants (except fruit) to give notice of the recorded or suspected It thus proposes that the following reply occurrence of the parasite. However, it in should be given to the third question: no way derogated from the power of the 'Land' to adopt such additional or stricter 'Phytosanitary examinations of imported measures in accordance with the Law of apples which are carried out by means of 10 May 1968 in order to eradicate San random checks on each batch do not José Scale. Furthermore, on the basis of constitute "arbitrary discrimination" the information available a proper and within the meaning of the second complete hygiene inspection carried out sentence of Article 36 of the EEC Treaty, by the competent authorities in the form if different provisions are implemented of examinations and inspections does not within the national territory in order to appear to exist in the Federal Republic.

the batch is contaminated the remaining plants can only be imported to the extent In particular, as regards the control of that they are free from contamination San José Scale, a decree of the Minister and that there is no risk of the parasites for Agriculture of 29 May 1948 laid down spreading when the consignment is split the measures to be applied in this area. up. However, from 1 December to 31 Once an occurrence of the parasite was March the import of fruit which is recorded the Minister of Agriculture was slightly contaminated by San José Scale to demarcate, for each case, the is permitted by the phytosanitary contaminated area and a safety zone. The department, providing that the fruit in decree also contains the measures to be question is immediately sent for adopted in order to eradicate the harmful processing, under the control of this organism and to prevent it from department Moreover, for the import of spreading. In particular, it prohibits the fresh fruit, including apples from other export of plants, parts of plants and fresh Member States, the regulation requires fruit originating in these areas. However, the submission of a certificate of healthy products which have been conformity with the phytosanitary disinfected in an official establishment regulations issued by the country of might be exported under the conditions origin. fixed by the plant protection departments, if the importing State As the inspection of the products in allows their entry and if they are question is obligatory, it follows, accompanied by a phytosanitary according to the available information, certificate. that the customs authorities only give customs clearance thereto if the As regards imports, a ministerial decree competent health authorities have of 1 September 1964 lists the products declared them to be in a fit state for whose importation is subject to a importation. The materials available do phytosanitary examination carried out by not enable the severity of the inspections the competent departments of certain made by these departments to be customs offices and which, in respect of checked; it does not appear possible for certain products, requires the production the phytosanitary departments to limit of a certificate issued by the country of themselves to a mere inspection of the origin showing the goods in question to documents accompanying the goods. be in accordance with the phytosanitary regulations. Apples fall within these two The Commission then considers the categories of products. French legislation, according to which, under Regulation No 45/26 27 of 2 After emphasizing that provisions November 1945, plant protection is broadly corresponding to those described ensured by 'preventive measures to fight above had been adopted for the control plant pests and bacteria'. In setting out of San José Scale by the other Member the principal features of this legislation, States, the Commission sets out the main the Commission emphasizes inter alia points of the Community regulations on that plants and parts of plants intended this subject, in particular Directive No

Moreover, it expressly provides that the to be prohibited it is sufficient for such Member States may take such additional measure to be 'capable' of rendering or stricter measures as may be required more difficult or costly imports or to control San José Scale or to prevent it exports which could otherwise take place. from spreading (Article 11). In this instance, it is clear that as a result of a series of factors to which the Having set out the essential features of this Directive, the Commission states Verwaltungsgericht Köln has already that on 31 March 1965 it sent to the referred, the obligation on the importer to submit the plant product to a Council a draft Directive concerning the introduction into the Member States of phytosanitary inspection at the frontier involves restrictive effects. organisms harmful to plants and providing, first, that the goods, their packing and the vehicles which transport However, this is still not sufficient to them be examined by representatives of lead to the conclusion that the obligation the plant protection authorities on to submit products to a phytosanitary importation into a Member State and, inspection on importation constitutes a secondly, that this inspection may be measure having equivalent effect within carried out on an occasional basis or by the meaning of Articles 30 et seq. of the means of random checks, where no Treaty. The Commission has always evidence of contamination exists and maintained that internal measures which

measures, which must be necessary and the question might seriously be asked appropriate in relation to the aim to be whether the need to hold, without achieved. exception, phytosanitary examinations on importation has been assessed on the Furthermore, it should not be forgotten basis of a correct use of this power, where that as regards the control and no valid reason exists for believing that prevention of diseases and organisms the certificate of phytosanitary health harmful to plants, no uniform issued by the exporting country is not development has taken place in the sufficiently reliable. various national systems of legislation. This factor, as well as the differences in The Commission emphasizes, climate and other natural conditions particularly in relation to the' existing in the various Member States phytosanitary examinations intended to and over the various territories of a single avoid the introduction of San José Scale, State, explains the fact that different that this parasite may spread throughout standards have been able to develop in the whole of North-West Europe, and relation to the quality and strength of the concludes that in principle phytosanitary controlling and protective measures. examinations which are carried out at the These are the principal reasons for the frontier in order to detect it are introduction by the Member States of necessary, within the abovementioned phytosanitary examinations at the limits.

From the same point of parasite does not, alone and a priori, view, this Directive has not yet removed justify the phytosanitary inspection of all the possibility that in the various those products which are the usual Member States different standards may carriers of this parasite. A general and continue to apply to the control of the sufficiently serious possibility must also risk of contamination of host plants and exist that the imported products are fruit. As long as protective and control contaminated and may thus introduce measures taken by the Member States

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same State. On the other hand, if a the products in question originate in Member State subjected imported areas of cultivation which are products to more rigorous measures of regularly subject to official control than are applied to the national inspections by the phytosanitary products, although the latter were authorities. exposed to a comparable or greater risk of contamination by the same parasite, In the light of these observations the such action would constitute 'arbitrary Commission suggests that the following discrimination'. Similarly, where the replies should be given to the questions

An obligatory phytosanitary apples. Apart from France, the area inspection on the importation of over which this parasite is spread foreign apples does not constitute includes the Federal Republic of "arbitrary discrimination" merely Germany, with the result that there is because apples produced in the

Law

1 By an order of 24 October 1974 received at the Court Registry on 13 January 1975, the Verwaltungsgericht Köln raised under Article 177 of the EEC Treaty certain questions on the interpretation of Articles 30 and 36 of the Treaty establishing the European Economic Community and concerning the free movement of goods.

These questions were raised in the course of an action before that court concerning the permissibility under the EEC Treaty of phytosanitary inspections carried out at the frontier by a Member State on imports of apples from another Member State.

2 The first question enquires whether phytosanitary inspections at the frontier which imports of plant products, such as apples, coming from another

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Member State are required to undergo must be regarded as measures having an effect equivalent to quantitative restrictions on imports, within the meaning of Article 30 of the EEC Treaty.

These inspections thus amount to a condition which is required in respect of imported products only, within the meaning of Article 2 (2) of the abovementioned directive.

Moreover, as a result, in particular, of the delays inherent in the inspections and the additional transport costs which the importer may incur thereby, the

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inspections in question are likely to make importation more difficult or more costly.

5 It follows that phytosanitary inspections at the frontier which plant products, such as apples, coming from another Member State are required to undergo, constitute measures having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty, and are prohibited under that provision subject to the exceptions laid down by Community law.

6 Under the first sentence of Article 36 of the Treaty, the provisions of Articles 30 to 34 are not to preclude restrictions on imports and, therefore, measures having equivalent effect, which are justified for reasons of protection of the health of plants.

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products constitutes, in principle, one of the restrictions on imports which are justified under the first sentence of Article 36 of the Treaty.

8 However, the restrictions on imports referred to in the first sentence of Article 36 cannot be accepted under the second sentence of that article if they constitute a means of arbitrary discrimination.

The fact that plant products imported from another Member State are subject to a phytosanitary inspection although domestic products are not subject to an equivalent examination when they are despatched within the Member State might constitute arbitrary discrimination within the meaning of the abovementioned provision.

Therefore, the phytosanitary inspection of imported products which are shown to originate in areas other than those referred to in Article 3 of Council Directive No 69/466/EEC may constitute an additional or stricter measure which is not justified by Article 11 of that directive and should be regarded as a means of arbitrary discrimination within the meaning of the second sentence of Article 36 of the Treaty.

The different treatment of imported and domestic products, based on the need to prevent the spread of the harmful organism could not, however, be regarded as arbitrary discrimination if effective measures are taken in order to prevent the distribution of contaminated domestic products and if there is reason to believe, in particular on the basis of previous experience, that there is a risk of the harmful organism's spreading if no inspection is held on importation.

On those grounds,

THE COURT

in answer to the question referred to it by the Verwaltungsgericht Köln, by order of that court dated 24 October 1974, hereby rules:

1. A requirement to submit imports of plant products, such as apples, from another Member State to a phytosanitary inspection at the frontier in order to establish whether such products are carriers of certain organisms harmful to plants constitutes a measure having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty and is prohibited under that provision, subject to the exceptions laid down in Article 36 of the Treaty;

2. The additional or stricter provisions which may be required under Article 11 of Council Directive No 69/466/EEC of 8

December 1969 in order to control San José Scale and prevent it from spreading entitle the Member States to make

Registrar President

OPINION OF MR ADVOCATE-GENERAL REISCHL DELIVERED ON 27 MAY 1975 <apnote>1</apnote>

Mr President, applies in particular to the import of Members of the Court, apples and is intended, inter alia, to prevent the introduction of San José Any person who wishes to import into Scale, a particularly dangerous and the Federal Republic of Germany certain persistent pest, the conditions for whose plants or plant products which are or existence are present throughout the may be carriers of certain harmful whole Community and which has organisms must submit them to an already spread through Italy and France, official phytosanitary examination at the as well as Southern Germany. frontier. This results from the German Regulation of 23 August 1957 on The question before us in the present measures for the prevention of the action is whether certain provisions of introduction of pathogenic organisms or Community law affect the legality of this pests which are dangerous to cultivated requirement, at least as far as concerns plants, known as the regulation on imports from other Member States. Rewe, phytosanitary inspection ('Pflanzenbe­ the applicant in the main action which schauverordnung'), in the version existing gave rise to this reference, considers this on 11 May 1970. This requirement also to be the case.

1 — Translated from the German.