C-40/82

FRENCH REPUBLIC, represented by Gilbert Guillaume, Director of Legal Affairs in the Ministry of Foreign Relations, acting as Agent, and by Alexandre Carnelutti, acting as Assistant Agent, with an address for service in Luxembourg at the French Embassy, intervener, v

UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, represented by Sir Ian Percival, Q C , Solicitor General, Peter Scott, Q C , and Peter Langdon-Davies, Barrister, and Mrs G. Dagtoglou as agent, with an address for service in Luxembourg at the British Embassy, defendant,

supported by

IRELAND, represented by Louis J. Dockery, Chief State Solicitor, acting as Agent, with an address for service in Luxembourg at the Irish Embassy, intervener,

COMMISSION v UNITED KINGDOM

APPLICATION for a declaration that, by imposing restrictions on imports of poultrymeat, eggs and egg products, the United Kingdom has failed to fulfil its obligations under Article 30 of the EEC Treaty,

The facts and the arguments put forward Newcastle disease: nature and prophylaxis by the parties during the written procedure may be summarized as follows: 1. It is clear from the file, and in particular from the Report of the Committee on Fowl Pest Policy, 1962 I — Facts a n d p r o c e d u r e (Command Paper 1664) (Annex I to the defence) and from the Report of the This application relates to the intro- Review Panel on the Newcastle Disease duction in Great Britain of new national Epidemic, 1970-1971 (Command Paper measures which are intended to combat 4797) (Annex II to the defence) thai Newcastle disease (pseudo-fowl pest) Newcastle disease is a particularly and involve restrictions on imports of contagious disease which is capable of poultrymeat, eggs and egg products. affecting virtually all types of poultry.

JUDGMENT OF 15. 7. 198Î — CASE 4C/Í2

Total 9 354 3 562 1 486 890 396 559

COMMISSION v UNITED KINGDOM

Member Sute 1978 1979 1980 1981· Toul 1972-8.

Belgium 6 1 6' - 247 Denmark — 2031 France — - FR of Germany 2 4 2 — 6 689 Greece 150 36 10 12 5 340 Ireland — luly 107 17 2 2 1478 Luxembourg — — 207 Netherlands — — — — United Kingdom (GB) 1 — — — 523 United Kingdom . ib (Northern Ireland) — — — ~

Total 266 58 20 14 16 605

I — As completed by the Comminion.

N o 14), as amended by the Importation certain conditions under which Member of Animal Products and Poultry Slates may prohibit or restrict the intro- Products (Amendment) Order 1981 duction or poultrymeat into their (Statutory Instrument 1981, N o 1238). territory for animal health reasons and by providing for a Community emergency procedure within the Standing Veterinary Committee under Under Article 4 of the 1980 Order, the which measures taken by a Member Ministry of Agriculture, Fisheries and State could be examined in close Food had issued general licences which cooperation by Member States and the permitted importation from various Commission and, where appropriate, countries of fresh or frozen poultrymeat amended or repealed;" into the United Kingdom. In accordance with the notice published in the London Gazette and the Edinburgh Gazette on 1 September 1981, the existing general and Article 11 thereof provides: licences were revoked with effect from 1 September 1981, and a new general licence, issued on the same day, auth- "(1) Without prejudice to paragraphs (2) orized the importation of fresh or frozen to (4) the animal health provisions poultrymeat and eggs (other than of Member States concerning trade hatching eggs) from Denmark and the in live poultry and poultrymeat Republic of Ireland. Similar measures shall continue to apply until the already applied in Northern Ireland. entry into force of any Community provisions.

Community trade (2) A Member State may, if there is a danger that animal diseases may be spread by the introduction into its territory of fresh poultrymeat from 3. In the Community, health control in another Member State, take the the poultry sector was covered by following measures: Council Directive No 71/118 of 15 February 1971 on health problems affecting trade in fresh poultrymeat (a) in the event of an outbreak of (Official Journal, English Special an epizootic disease in the Edition, 1971 (I), p. 106). other Member State, tempor- arily prohibit or restrict the introduction of fresh poul- trymeat from the affected areas The last recital in the preamble to that of that Member State; directive is worded as follows:

(5) If the situation envisaged in According to that letter, to ensure that paragraph (2) arises and if it the highest recognized sutus of freedom appears necessary that other from Newcastle disease was maintained, Member States also apply the the new policy also involved with effect measures taken under that para- from 1 September 1981 a prohibition of graph, amended, where necessary, imports into Great Briuin of fresh pursuant to paragraph (4), appro- (including frozen) poultrymeat, eggs and priate measures shall be adopted egg products from all countries except under the procedure laid down in those which were totally free of Article 12." Newcastle disease, which prohibited the use of vaccine and which applied compulsory slaughter requirements in the event of an outbreak of the disease. Of It is clear from the Eurostat statistics for the Member Sutes of the European 1980 that during that year the United Communities, only Denmark and Ireland Kingdom imported considerable were able to satisfy those criteria. quantities of poultrymeat and poultry products from other Member Sutes. The value of imports of whole turkeys from other Member States rose particularly, By letter of 4 September 1981, the that is from 941 000 European units of United Kingdom Government added account in 1979 to 5 844 000 units in that, in the light of the discussions which 1980. Of such importi, the value of had taken place in the Standing imports of whole turkeys from France Veterinary Committee on 1 September rose from 28 000 European units of 1981, it had been decided that the ban

In that regard it pointed out that the In its letter, the Commission assumed animal health record of the Community that imports of live poultry, hatching in relation to Newcastle disease had in eggs and some exotic birds, which were recent years been exeptionally good. No all potential sources of infection of major outbreak had occurred since the Newcasde disease, were still possible early 1970s and the sporadic minor upon presentation of a licence, since the outbreaks of infection which had legislation applying to those products appeared since then had rapidly been had not been changed. dealt with and had not led to more widespread outbreaks either within the Member Sutes involved or across intra- It stated that at the present time animal Community frontiers. The Member health rules relating to trade in live States subject to the import ban, parti- poultry, poultrymeat, eggs and egg cularly those which had the most sub- products had not, apart from certain stantial trade with the United Kingdom provisions of a largely procedural nature in the products concerned, namely in respect of fresh poultrymeat, been France and the Netherlands, had had a harmonized at a Community level. In particularly good record of freedom that regard, it referred to Article 11 (1) from the disease in recent years. of Council Directive No 71/118 of 15 February 1971 on health problems affecting trade in fresh poultrymeat, In relation to vaccination, the which states that the existing national Commission observed that in general law of Member States concerning animal only a proportion of the flocks in the health provisions for live poultry and Member States where vaccination was poultrymeat are to continue to apply. permitted were in fact vaccinated. Indeed, although it was usual to vaccinate breeding stock and laying hens, The Commission claimed that as a result birds reared for their meat, especially the animal health measures taken by broiler fowl, were commonly not vac- Member States for those products were cinated. Thus, vaccinated and unvac- still subject to Article 30 or the Treaty in cinated flocks existed at the same time so far as they restricted inira-Community within each Member Sute, and although trade. Indeed, according to the judgment in recent years up to 60% of the United in Case 41/76 of 15 December 1976 Kingdom flock had been unvaccinated, (Donckerwolcke v Procureur de L· nevertheless no outbreak of Newcastle

5. By letter dated 2 October 1981 the It therefore considered that the argument United Kingdom Government replied to that a Member State which did not the views expressed by the Commission, vaccinate against Newcastle disease claiming essentially that the contested necessarily had to prevent the impon of measures were justified on grounds of meat or eggs,.because the vaccine might animal health under Article 36 of the mask wild strains of the virus, must be Treaty. In its reply the United Kingdom rejected in view of the present state of Government repeated certain expla- animal health within the Community. nations already provided during the Standing Veterinary Commitee's dis- cussions held on 1 September 1981. Next, the Commission commented that from the entry into force of the First, it was noted that the United contested measures vaccinated United Kingdom policy on health control in Kingdom stock would continue to be general was guided, on the one hand, by present in the United Kingdom flock, the need to ensure protection of animal and the meat and eggs resulting from the health at the highest practicable level vaccinated birds would remain on the consistent with internationally-recog- United Kingdom market for at least a nized practice and, on the other, by year, whilst imports of corresponding the United Kingdom's Community products had been banned with obligations. immediate effect. It further pointed out that the United Kingdom still permitted In the opinion of the United Kingdom entry on its territory of exotic birds Government, the time was right to which constituted a much greater prohibit vaccination and, for the purpose potential danger with · regard to the of dealing with any possible outbreaks of spread of Newcastle disease than the Newcastle disease, to introduce a products the import of which had been slaughter with compensation policy for banned. those parts of the United Kingdom to which that policy did not already apply. The Commission concluded its letter by The aim of the measures adopted on 1 stating that the measures adopted by the September 1981 was to re-establish the United Kingdom amounted to an highest health status for the United absolute ban unlimited in time and were: Kingdom poultry flock in respect of Newcastle disease; they minimized disease risks and improved the efficiency (i) out of proportion to the risks of poultry production. involved; The measures as a whole were necessary to maintain freedom from Newcastle (ii) discriminatory as far as the date of disease within Great Britain. The their entry into force was restrictions on imports constituted an concerned; and essential part of the whole, in order to prevent the disease risk to the flock. In the absence of any Community (iii) arbitrary, since they concerned only provisions, they had to be imposed at certain products which were alleged national level.

As to whether those measures could be minimizing as far as possible the clear adopted at a national level, the United risk of re-infection. In view of the Kingdom Government pointed out that presence of field vims in other Member the Commission itself affirmed that the States, possibly masked by vaccination animal health provisions relating to trade and liable to spread across land frontiers in live poultry, poultrymeat, eggs and or by trade in poultrymeat and eggs, the egg products had not yet been import controls were a necessary support harmonized within the Community and of the stringent internal measures. that, in accordance with Article 11 (1) of Therefore they were not out of prop- Council Directive No 71/118, it ortion to the risks involved. accepted that, so long as this was so, Member States might continue to apply the measures provided for by their own national provisions. In answer to the argument that the restrictions on imports were discrimi- natory purely because of the date of their entry into force, it was stated that a The United Kingdom Government difference in the short term in the therefore considered that the measures application of the measures in relation to which it had introduced on 1 September domestic supplies, on the one hand, and 1981 were justifiable under Article 36 of imported produce, on the other, was the Treaty and Article 11 (1) of Directive inevitable and did not amount to discrimi- No 71/118 and therefore did not nation in Community law. The new infringe Article 30 of the Treaty. measures had to be applied at an early date both internally and to imports. Imported supplies already in cold storage in Great Britain on 1 September would continue to be sold alongside produce In relation to the Commission's claim from vaccinated indigenous flocks, and that the Community's health record on both would diminish rapidly as the new Newcastle disease was good, the United measures took effect. To nave allowed Kingdom Government observed that the the transfer after 1 September of large reports to the International Office of quantities of imported supplies from Epizootics and other returns showed that countries which vaccinate to cold stores there was a continuing prevalence of the in Great Britain and their distribution disease. Moreover, there was some doubt over a period of several months would whether all outbreaks were properly have constituted a clear and unac- reported, in view of the varying in- ceptable health risk to the United terpretation as to what constituted an Kingdom flock. outbreak of Newcastle disease. There was ample scientific and practical evidence that vaccination might mask infection and so lead to the presence of occult virus in birds, carcases and eggs. It was therefore impossible to move to the Finally, in relation to the alleged highest standard of disease freedom arbitrary nature of the contested which corresponded to the policy of measures, the Government referred to non-vaccination and compulsory slaugh- the strict measures provided for by the ter, with the necessary consequence of Importation of Birds, Poultry and rendering the national flock more vuln- Hatching Eggs Order, 1979 (Statutory erable, without at the same time Instrument 1979, No 1702). It added

ihat the United Kingdom had now flow of imports from other Member suspended the importation of all exotic States and a high proportion of the birds and their eggs, pending the intro- British flock had not been vaccinated. In duction of stricter controls. France, where, like Great Britain, a policy of non-vaccination had recently been introduced, no outbreak ot Newcastle disease had occurred since 1976, even though that country also had a partly vaccinated and partly non-vac- 6. By letter of 12 October 1981 the cinated flock. The prohibition of imports Commission sent to the United Kingdom of the products concerned from France Government its reasoned opinion, into Great Britain, even though the two addressed to the United Kingdom under countries were in a substantially similar the first paragraph of Article 169 of the situation with regard to Newcastle Treaty, in which it declared that, by disease, therefore constituted arbitrary subjecting imports from other Member discrimination within the meaning of the States of poultrymeat, poultry products, second sentence of Anicie 36 of the eggs and egg products to the measures Treaty. That was also the case as regards adopted in this case, the United the arrangements relating to the entry Kingdom had failed to fulfil its obli- into force of the contested measures. gations under Article 30 of the Treaty; it requested the United Kingdom, pursuant to the second paragraph of Article 169 of the Treaty, to take the necessary measures to comply with the reasoned By letter of 30 October 1981, the United opinion within five working days Kingdom Government replied to the following notification thereof. reasoned opinion delivered by the Commission by confirming that it considered the restrictions on imports to be fully justified under Anicie 36 of the Treaty and that it was therefore unable In the reasoned opinion, the Commission to comply with the Commission's request repeated the grounds communicated to that they should be removed. In that the United Kingdom by its letter of 11 regard it drew attention to the fact that September 1981. It stated that Article 11 the same measures, that, is to say the (1) of Directive No 71/118 did not internal measures and impon pro- override the prohibition contained in hibitions, had been applied without Article 30 of the Treaty. challenge in respect of Northern Ireland, even against imports from the rest of the United Kingdom, since a slaughter and non-vaccination policy had been introduced there in 1958. Imports had been permitted into Northern Ireland In relation to the risk of contamination only from countries of equivalent status. by imports of vaccinated birds, it took the view that field virus was very rare, or even non-existent in most Member States. In that regard, it pointed out that, according to information provided by the International Office of Epizootics, only The United Kingdom Government one outbreak of Newcastle disease had further disputed whether the measures at occurred in Great Britain since 1976, issue had become arbitran· as a result of even though there had been a steady the recent adoption of a policy of

(c) Would the Commission go more 7. By an application lodged on 4 deeply into its argument that Article February 1982, the Commission brought 36 of the Treaty prévenu any this action under the second paragraph systems of import licences except a of Article 169 of the Treaty. system of "general open licences"? What does the last expression mean? By orders of 15 June 1982 the Court allowed the French Republic to intervene (d) The Commission is asked to reply to in support of the Commission and the argument that Newcastle disease Ireland to intervene in support of the subsists in latent form, masked by United Kingdom. the use of vaccine among flocks that have been vaccinated against this The Commission decided not to submit a illness. reply and the Court, upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, decided (e) Could the Commission give infor- to open the oral procedure without any mation to the Court about the preparatory inquiry. However, it system of combating poultry diseases requested the parties to reply to the as at present applied in Denmark? following questions: Does the system imply restrictions of imports from other Member States?

Commission: United Kingdom: (a) The Commission is requested to give information to the Court on the interpretation that it thinks should be What is to be understood by "ring vac- given to Directive No 71/118 of the cinauon"? Council of 15 February 1971, on health problems affecting trade in fresh poultrymeat. The Court is French Republic: particularly interested to know: (i) Whether in the Commission's Pursuant to Article 21 (2) of the Statute view the directive should be of the Court, the French Government is

invited to explain to the Court the concerning the restrictions on the impon reasons it had for re-establishing the old of poultry products from traders who system of combating Newcastle disease claim that they have suffered severe based on vaccination in November 1981, financial damage as a result of those after having introduced a different restrictions. system of combating the disease based on prohibition of vaccination and In relation to the applicability of Article compulsory slaughtering of contaminated 30 of the Treaty, the Commission states flocks in September 1981. first that a provision of secondary law such as Article 11 (1) of Council Moreover, the main parties and the Directive No 71/118, which provides interveners were requested to bring to that national animal health provisions the sitting an expert in poultry diseases concerning trade in poukrymeat are to continue to apply until the entry into together with their Agent. force of any Community provisions, cannot override the prohibition contained in Article 30. It states that II — C o n c l u s i o n s of the parties paragraphs (2) to (5) of Article 11 concerning temporary restrictions on trade which the Member States may The Commission claims that the Court adopt apply only in the event of an should: outbreak of an epizootic disease such as Newcasde disease. (1) Declare that by prohibiting imports and adopting the contested system of It refers to the Court's judgment of 14 import licences in the sector of December 1979 in Case 34/79, (Regina v poultry products, the United Henn and Darby [1979] ECR 3795) and Kingdom has failed to fulfil its claims that an impon ban imposed by the obligations under Article 30 of the withholding of import licences clearly Treaty; constitutes a quantitative restriction on imports within the meaning of Anicie 30 (2) Order the United Kingdom to pay of the EEC Treaty. Moreover, the the costs. concept of measures of equivalent effect under Article 30 of the EEC Treaty The United Kingdom contends that the covers "a national provision which Court should dismiss the application as requires, even as a pure formality, import unfounded. licences or any other similar procedure" (judgment of 15 December 1976 in Case 41/76, Donkerwolcke, op.cit.), since such a requirement is always liable to give rise Ill — Submissions and argu- to unnecessary delay and cause importers ments of the parties to incur unnecessary expense. Conse- quently, by the very fact that an impon In their written observations, the parties licence is required to impon the poultry to the main action in essence develop the products referred to, the United arguments already put forward during Kingdom measures at issue constitute the administrative procedure. measures of equivalent effect within the meaning of Article 30 of the EEC So far as the facts are concerned, the Treaty. Commission of the European Communi- ties, the applicant, adds that it has Next the Commission refers to the received a number of complaints absence of justification of the impon

restriction on the grounds of animal The Commission comments that the health under Article 36 of the Treaty. In United Kingdom Government has not that regard, it emphasizes the importance adduced any evidence in support of the to be attached to animal health and doubt which it has cast on the statistics recognizes the serious financial conse- provided. In that regard, it states that the quences of an outbreak of Newcastle International Office of Epizootics is an disease. However, it stresses the fact that international organization which has measures intended to reduce the approximately 100 member countries and incidence of animal disease must remain whose function is to give information on within the bounds laid down by the outbreaks of animal diseases and issue Treaty. recommendations as to their control; it is the only official international body to publish statistics on the number of outbreaks of these diseases in the member countries, which themselves In the light of the present situation in the provide the office with data. Community, in which there is a widespread practice of keeping vac- cinated and non-vaccinated flocks in a single Member State, the Commission Moreover, in spite of the fact that until regards the argument that vaccination September 1981 Great Britain imported may mask field virus as somewhat substantial quantities of poultry products theoretical. Indeed, in those Member from Member Sutes which pursued a States where a significant proportion of policy of vaccination, the United the national flock is not vaccinated and Kingdom's statistics show that there has is thus fully susceptible to Newcastle been only one outbreak in Great Britain disease, the presence of the virus would since 1976 and it has never been reponed undoubtedly cause outbreaks within a to the Commission that that outbreak short space of time. Thus partial vac- was related to imports of poultrymeat or cination cannot mask for any appreciable poultry products from other Member length of time the presence of field virus States. in a country. The correctness of that view is demonstrated by the examples of France, which, before recently adopting its non-vaccination policy, had a flock Consequently, the risk of the intro- consisting of 15% vaccinated and 85% duction of Newcastle disease virus into unvaccinated birds, and of the United the United Kingdom is at the present Kingdom itself, which until September time very low in respect of certain 1981 had a national flock consisting of Member States and non-existent in 40% vaccinated and 60% unvaccinated respect of the others. Thus the birds. None the less, neither country has Commission considers that the impon had outbreaks of Newcastle disease for ban constitutes a measure which is several years. disproportionate to the aims pursued, in so far as it is more restrictive of imports than is necessary for the protection of animal health.

In relation to exotic birds, which In that regard, it contends first that the constitute a great potential danger to the prohibition with immediate effect from 1 spread of Newcastle disease, the September 1981 of imports of poultry Commission considers that the sub- products from Member States pursuing a sequent suspension of imports of exotic policy of vaccination constitutes arbitrary birds as from 1 October 1981 and the discrimination within the second introduction of a new stringent import sentence of Article 36, since the vac- scheme as from 18 January 1982 cinated part of the British poultry flock, constitute little more than an after- which will continue to be present for thought which confirms the arbitrary approximately 12 months, may be nature of the measures concerning poul- marketed within the United Kingdom trymeat and egg products. without restriction. The Commission does not accept that that discrimination is an inevitable consequence of the change of policy. Indeed, for the same With regard to the second sentence of reasons as were submitted above in Article 36, the Commission states relation to the absence of justification of secondly that the import ban constitutes the restrictive measures as such, that a "disguised restriction on trade". That change is not such as to justify discrimi- limb or the second sentence of Article 36 natory treatment. is designed "to prevent restrictions on trade based on the grounds mentioned in the first sentence of Article 36 from being diverted from their proper purpose That view is all the more valid in regard and used in such a way as . . . indirectly to imports from France, since after the to protect certain national products" recent adoption of a policy of non-vac- (judgment of 14 December 1979 in Case cination in that country, France and 34/79 Henn and Darby, op.cit.). Great Britain are in a substantially similar situation with respect to Newcastle disease. It is true that, in its reply to the reasoned opinion, the United Imports of poultry, especially turkeys, Kingdom sought to justify its continued into the United Kingdom have increased ban on French poultry products on the dramatically in recent years. As appears ground that the French authorities had from reports in the British press, by 1981 taken no comprehensive measures to deal British poultry producers felt particularly with imports of fresh or frozen poul- threatened and therefore urged the trymeat and eggs for human consump- United Kingdom Government to take tion. The Commission considers, how- action. In that regard, the Commission ever, that the French authorities cannot draws attention to the fact that the new be required to infringe Article 30 by measures, announced on 27 August,

were brought into force at very short particular importance because of the notice, on 1 September 1981, that is to scale on which imports enter the country say immediately before the period when and because, of the size of its poultry contracts are normally concluded for flock (approximately 130 million birds, supplying the lucrative Christmas market concentrated in large units). The in turkeys. In those circumstances, it appearance of the disease is therefore would seem to the Commission that the likely to lead to very serious and argument concerning the protection of expensive consequences. animal health is being used as a means of protectionism and that the import ban therefore constitutes a disguised restric- tion on trade. Next, the United Kingdom recalls the historical context of the adoption of the new measures of slaughter and non-vac- cination. Finally, so far as the import licensing system is concerned, the Commission does not consider that "general open licences" in the sense in which that term In Great Britain, fowl pest, including is defined in its reply in Case 124/81, fowl plague and all forms of Newcasde Commission v United Kingdom, at disease, is the only poultry disease which present pending before the Court, is officially notifiable. For many years, constitute measures of equivalent effect the competent ministry operated a policy within the meaning of Article 30 of the of slaughter and compensation, which Treaty. It considers, however, that a was in line with the measures taken system of specific licences such as that against other dangerous virus diseases established for imports of egg products with serious economic consequences, which have been heat-treated, may such as foot-and-mouth and swine fever. hinder imports by causing unnecessary However, following a large increase in delays and may therefore be unjustified, the number and extent of outbreaks of particularly in so far as it provides no the disease in the later 1950s and early guarantee in addition to the health certi- 1960s (3 000 in 1962; expenditure of ficates issued by the authorities of the UKL 8.8 million in compensation), the exporting Member State. slaughter policy was abandoned and replaced by a policy which was intended to control the disease and was based on voluntary vaccination. For that purpose, an inactivated vaccine was initially used, The United Kingdom, the defendant, in accordance with the Report of the states first that its policy on combating Committee on Fowl Pest Policy, 1962, Newcastle disease is based on (op.cit.). Later, following the Report of considerations which are universally the Review Panel on the Newcasde accepted in this field, that is, the fan Disease Epidemic, 1970-1971, (op.cit.), it that Newcastle disease may be was decided to authorize the use of live communicated to the home flock vaccines. through the importation of fresh (including frozen) poultrymeat and that the danger of contamination is increased when vaccination is practised in the Each time, the change of policy had a exporting country. For the United good initial response in the level of Kingdom, these considerations are of voluntary vaccination, but as the

In that regard, the United Kingdom contends that by alleging that those However, on 20 July 1981, the British measures amounted to a total or absolute Poultry Federation handed to the ban, the Commission has misstated their Ministry of Agriculture a report of nature. Indeed, the United Kingdom has veterinary experts in the poultry industry always been willing to issue a general which made a well-argued technical case open licence to any country which is for a change of policy and indicated that totally free from Newcastle disease, the industry itself would support the prohibits the use of vaccine and applies cost of compensation for slaughter. compulsory slaughter requirements According to that report, the incidence similar to those adopted by the United of Newcastle disease had been low Kingdom in the event of an outbreak of enough for a sufficient length of time to the disease, and which also prohibits make it appropriate to move to the imports from other countries which have higher policy of eradication, provided less stringent provisions for the that the admission of imports was limited protection of their flocks. The effect of to imports from countries which adopted that policy is to facilitate trade for all equally high standards of protection. States which apply the same sundards as the United Kingdom; whether or not they will restrict trade will depend on matters within the control of the Member Sute concerned, not the United In those circumstances, the question Kingdom. arose whether the change to the highest standard of protection from disease for the British flock, entirely justified on the grounds of animal health, ought to be prevented by the fact that such a change With regard to the justification of the of policy would involve restrictions, contested measures under Article 36 of the which were, of course very welcome to Treaty, the United Kingdom claims that United Kingdom producers, on trade the sundards adopted and applied by it with such other countries, including since September 1981 are the highest

standards known for the protection of where they adopt the measures adopted poultry from Newcastle disease and it by the United Kingdom. should be the objective of all the Member States to reach that level. As is confirmed by the recent Community measures on swine fever (Official Journal 1980, L 325, pp. 1 and 11), it is common form to move, when circumstances According to the United Kingdom, the permit, from control by vaccination to justification for the new policy as such is eradication by slaughter combined with undeniable. It further considers that it prohibition of vaccination. The prohib- must be entitled to take reasonable ition of vaccination is an inevitable part measures to protect its flock against the of any successful slaughter policy, danger of infection through imports as a because vaccinated birds can carry the result of the adoption of the highest disease without showing clinical signs of standards. In that regard, it points out it. However, that does not preclude the that Ireland and Denmark which apply use of "ring vaccination" when an the same rules have not had one outbreak of the disease threatens to get outbreak since 1972. On the other hand, out of hand and cannot be dealt with according to information provided by the effectively by means of slaughter alone. International Office of Epizootics, imports from countries such as Belgium, Federal Republic of Germany, Greece and Italy constitute clear risks. In relation to France, where the level of vaccination is about the same as in Great Moreover, the change to a policy of Britain, the danger results especially eradication by slaughter combined with from the fact that, although France has prohibition of vaccination can be adopted the same system, it continues to considered only when there is good expose the unvaccinated part of its flock reason to believe that a country's flock is to risks from imports from other free from field virus. A fall in the level of countries. vaccination may be a further indication that such a change should be made, for the vaccinated remnant continues to provide a source within which the presence of field virus may be masked. With regard to the theory of dispro- portionality, put forward by the Commission, the United Kingdom Government considers that the Commission's view of the dangers of Finally, if the effect of such a change is infection is over-optimistic. It has no to put the whole of the flock at risk, that misgivings about the authenticity of the has the advantage that each bird is as it information provided by the Inter- were a sentinel. However, it leads to the national Epizootic Office but considers danger that every flock is vulnerable that in the absence of any common either to such field virus as there may veterinary criteria for the investigation of still be in the country or to infection Newcastle disease, it is impossible to through imports from other countries, determine on what basis an "outbreak" and this creates a potential epizootic risk of the disease is considered to have which is greatest where such other occurred in a panicu lar State, for the countries practise vaccination and lowest purpose of reporting it to that office.

Moreover, far from being theoretical, the argument that vaccination can mask a In that regard, it explains the difference virus is based on scientific research between, on the one hand, the normal which has demonstrated that a virus may disposal over a period estimated at 12 be present for up to 12 months in a vac- months of vaccinated birds which are cinated adult bird without causing visible already in the country on the entry into disease. Even on the assumption made by force of the policy of non-vaccination the Commission that in a country where and, on the other, the import of poultry vaccinated and unvaccinated flocks exist products from countries where vac- alongside one another the presence of cination is still practised. Indeed, any virus would cause outbreaks within a delay in the introduction of import short space of time, that short space of restrictions would have resulted in a time might be the very period in which massive influx of poultry products into

JUDGMENT OF IS. 7. 1982 — CASE 40/82

cold-storage in Great Britain and would apparent risk of importing Newcastle have thereby undermined the strategy disease might materialize, notwithstand- chosen. In so far as the entry into force ing figures which suggested a low level of the contested restrictions constitutes of the disease in certain countries, such discrimination, it is therefore justified on as France. the same grounds as the measures themselves.

COMMISSION v UNITED KINGDOM

issued by the Ministry of Agriculture; (ii) From non-vaccinated flocks they can be summarized as follows: Consignments of meat must be 1. Import from Member Sutes which accompanied by a health certificate are free from Newcastle disease and in accordance with Directive which do not permit vaccination 71/118/EEC and the certificates must against Newcastle disease: consign- have the additional text: ments of meat must be accompanied by a health certificate in accordance — that flocks and poultry slaugh- with Directive 71/118/EEC. terhouse or cutting plant, from which the poultrymeat originates, are situated in the centre of a 2. Import from Member States where zone with a diameter of 20 km, Newcastle disease has been recorded within which no case of Newcastle within the past 12 months or where disease has occurred within the vaccination against that disease takes last 6 months prior to the export; place: and (i) From vaccinated flocks — that at least 20 animals of each Consignments of meat must be flock, from where the poultrymeat accompanied by a health certificate originates, have been examined for in accordance with Directive Newcastle disease at an officially 71/118/EEC and the certificate must approved laboratory within the have the additional text: last 6 days prior to slaughtering. The results from the examination — that flocks and poultry slaugh- must show that antibodies are not terhouse or cutting plant, from present against Newcastle disease which the poulirymeat originates, virus; are situated in the centre of a zone with a diameter of 20 km, or within which no case of Newcastle disease has occurred within the — that during the slaughtering last 6 months prior to the export; procedure at least 30 heads have been collected per 5 000 animals — that in case vaccination against producing the poultrymeat in the Newcastle disease has been carried consignment and that the heads out in the flocks, from where the have been examined with a poultrymeat originates, only the negative result for Newcastle hitchn'er Bl or La Sota types of disease (Swab method) at an vaccines have been used; officially approved laboratory.

Community regime. The Danish system granted for imports from elsewhere in permits imports, whilst ensuring the the Community. highest guarantee against the risk, albeit slight, of contagion resulting from such imports. Linked to this system is a slaughter and non-vaccination policy which has been in existence since before accession. Particularly noteworthy is the close cooperation carried out with the veterinary authorities of the exporting Consequently, the measures applied in Member State. In effect, poultrymeat, Nonhern Ireland are the same as those which is accompanied by a health cer- now applied in Great Britain with the tificate with the appropriate attestation, difference that the Nonhern Irish has access to the Danish market. measures have been in existence since before accession. The Commission therefore claims that, as in the case of Analogous provisions apply to imports of Great Britain, both the impon licensing eggs from other Member States into scheme and the impon ban are contrary Denmark, save that the sample labora- to Anicie 30 as regards Nonhern Ireland tory examinations are not required. as well.

COMMISSION v UNITED KINGDOM

JUDGMENT OF 15. 7. 1982 — CASE 40/Í2

condition, which they had not previously turkey imports into Great Britain in announced, namely that no imports from September 1981, there would be no non-member countries into France particular urgency in that part of the should be allowed. present proceedings which concerns Ireland, intervening, submits that the Northern Ireland. position of Northern Ireland, like that of Ireland adds that, in its view, Article 11 Ireland, is a special one which derives (1) of Directive 71/118 entitles Member from the special system which has long States to maintain in force their animal existed there. Northern Ireland, like health provisions concerning live poultry Ireland, has adopted a policy of non- and poultrymeat which were in existence vaccination of its avian stock for very when the directive came into force. For many years. In the case of Ireland, this Northern Ireland, this was 1 January commenced in 1938. This system was 1973. The basis of the justification for well established before British and Irish the measures concerning Northern accession to the Community. Therefore, Ireland is, therefore, similar to that for Ireland submits that the decision of the the measures concerning Ireland, but Court, if not the hearing of the completely different from the basis Commission's case in respect of the invoked by the British Government for Northern Ireland measures, should be the measures applied to the British postponed until the determination of the mainland. case against Ireland (Case 74/82). As the Commission's application was made The Advocate General delivered his urgent by the restriction of French opinion at the hearing on 7 July 1982.

4 The measures imposing new restrictions on the import of poultry products with effect from 1 September 1981 were announced by a notice which was published in the "London Gazette" and in the "Edinburgh Gazette" of that date. These measures (hereinafter referred to as "the 1981 measures") were to the effect that all general licences for the impon of poultry products from other Member States were revoked and that new general licences were issued for the impon of such products from Denmark and Ireland. These new general licences concern eggs (not intended for hatching), fresh or refrigerated carcases and pan carcases derived from chickens, turkeys, ducks, geese and guinea fowl, with or without accompanying offal, and unac- companied offals.

s The Commission claims that the United Kingdom Government made it known, at about the same time, that it did not intend to grant any licences at all with respect to the impon of poultry products, including eggs (not intended for hatching) and egg products, if they came from Member States other than Denmark and Ireland, but that it would be prepared to grant licences for the impon of heat-treated egg products from any Member State.

6 The Commission funher states that, although the 1981 measures apply only to impons into England, Wales and Scotland, similar restrictions have been in force since before the United Kingdom's accession to the Community in respect of impons of poultry products into Northern Ireland. Under the Diseases of Animals (Importation of Poultry) Order (Northern Ireland) 1965 (SI 1965 NI N o 175), as amended by an amendment order of 1968 (SI 1968 NI N o 106), impons of carcases of poultry and eggs, except, under cenain conditions, when coming from Ireland, are subject to an impon licensing system. In practice, no impon licences are granted for impons from other Member States than Ireland and Denmark.

10 The United Kingdom Government made it clear, therefore, that as from the date of introduction of the new policy, imports of these products could only be accepted from countries which were totally free from Newcastle disease, which prohibited the use of vaccine and which imposed compulsory slaughter requirements in the event of an outbreak of the disease.

COMMISSION » UNITED KINGDOM

ii Imports from any Member Siate meeting these three conditions would remain possible after 1 September 1981. However, the information available at the time suggested that Denmark and Ireland were the only Member States able to satisfy these requirements. As any Member State is free to adopt the same system as the United Kingdom, Ireland and Denmark, the measures in question can, in the United Kingdom's opinion, not be assimilated to a total impon ban. It would, in fact, be very desirable if other Member States were to adopt the same high standards of bird health as the United Kingdom, since such a policy, if generally followed, would permit free movement of poultry and poultry products throughout the Community.

II — S u m m a r y of t h e legal a r g u m e n t s

12 The Commission submits that the restrictions on imports of poultry products from other Member States, except Ireland and Denmark, as practised by the United Kingdom, constitute an infringement of Article 30 of the Treaty which forbids quantitative restrictions on imports from other Member States and measures having an effect equivalent to such restrictions, which cannot be justified under Article 36 of the Treaty.

(d) as regards England, "Wales and Scotland, the impon ban constitutes a disguised restriction on trade between Member States within the meaning of the second sentence of Article 36.

is The United Kingdom contends that the 1981 measures, far from constituting a means of arbitrary discrimination or a disguised restriction on trade between Member States, are fully justified under Article 36, as they are an essential part of a policy aimed at complete eradication of Newcastle disease among poultry. Indeed, such a policy would have the effect of facilitating, and not of restricting, trade with Member States which apply the same high standards of animal health as the United Kingdom.

i6 As far as the import licensing system is concerned, the United Kingdom recalls that such a system has been accepted by the Community with regard to foot-and-mouth disease and to swine fever. In its submission, there is no reason why a different approach should be considered in the case of Newcastle disease, as a serious outbreak of this disease would have grave economic consequences comparable to those resulting from a widespread epizootic outbreak of foot-and-mouth disease or swine fever.

17 The French Republic, intervening, supports the Commission's conclusions in so far as they are directed against the 1981 measures, In its view, these measures cannot be justified under the first sentence of Article 36 and clearly constitute a means of arbitrary discrimination and a disguised restriction on imports of poultry products from other Member States, in particular from France.

22 First, there is agreement among the parties that imports of poultrymeat and poultry products into the United Kingdom from other Member States showed a remarkable rise in the years preceding the introduction of the 1981 measures. This increase concerned in particular imports of slaughtered whole turkeys; in 1980 imports of whole turkeys from France showed a steep rise as compared with those in 1979.

23 It is also agreed that by mid-1981 the United Kingdom Government and British producers were gravely concerned by the continuing increase in the importation of turkeys from France, and that British poultry producers made it known that they were troubled about government subsidies which, they asserted, had been made available to French producers. In these circum- stances, a certain pressure was put on the United Kingdom Government, by articles in the press and in other ways, to take action in order to reduce imports of poultry products from France.

JUDGMENT OF 15. 7. 1982 — CASE 40/82

24 Secondly, the United Kingdom does not deny that the date chosen for the introduction of the 1981 measures was such as to prevent imports of Christmas turkeys from France into Great Britain for the 1981 season, and that these imports had constituted a very substantial part of the total imports of turkeys in the preceding years.

COMMISSION v UNITED KINGDOM

28 The parties agree that Newcastle disease may have serious economic consequences, that it is a highly infectious disease and that it is combated either by a policy aimed at controlling it and reducing its effects, by means of generalized or selective vaccination, or by a policy aimed at eradicating it, under which vaccination is prohibited and any outbreak is met by compulsory slaughter of infected flocks.

29 The parties also accept that vaccination may mask the subsistence of the disease, as vaccinated birds might, without showing the symptoms of the disease, be infected with field virus carried, for example, by non- domesticated birds. For the Commission and France, however, such a risk is purely hypothetical in countries where vaccinated and non-vaccinated flocks coexist and where no outbreak of Newcastle disease has been recorded in recent years.

so Finally, there is agreement among the parties that in August 1981 the pro- portion of poultry that was vaccinated under the regulations existing at the time amounted to about 40 % both in Great Britain and in France. The French Government adds that the objective of its policy at the time was to vaccinate laying hens and breeding fowl, so that exports of slaughtered chicken and turkeys from France normally involved only non-vaccinated poultry.

IV — The 1981 measures

JI Whatever view may be taken of the legal machinery used by the United Kingdom in introducing the 1981 measures, they have had the effect of preventing any imports into Great Britain of fresh and refrigerated poultry products, eggs (not intended for hatching) and egg products other than heat- treated egg products, from all other Member States except Ireland and Denmark. They are therefore to be considered as measures having an effect equivalent to quantitative restrictions, prohibited by Anicie 30 of the Treaty unless it is established that they are justified under Article 36 on grounds of the protection of animal health.

34 However, the argument of the United Kingdom disregards the fact that the effects of health policy on imports from other Member States cannot exceed the limits laid down by Community law. The United Kingdom submits and the Commission accepts, that Council Directive N o 71/118, of 15 February 1971, on health problems affecting trade in fresh poultry meat (Official Journal, English Special Edition 1971 (I), p. 106) merely contains, in Article 11, certain specific provisions on restriction of imports on grounds of animal health, and that these provisions d o not apply to the present case. Whatever the interpretation be given to these provisions, the Court considers that paragraphs (2) to (5) of Article 11 represent only the beginning of a process of harmonization in this field. Therefore the matter is essentially to be considered under Article 36 of the Treaty, which expressly provides that restriction on imports must be justified on grounds of protection of animal health, and which adds, in the second sentence, that such restrictions are not to constitute a means of arbitrary discimination or a disguised restriction on trade between Member States.

COMMISSION y UNITED KINGDOM

35 In reviewing the facts of the case, the Court finds it appropriate to examine first the submissions of the Commission and the French Republic to the effect that the 1981 measures, in their effects o n imports from other Member States except Ireland and Denmark, amount to a disguised restriction on intra-Communiry trade within the meaning of the second sentence o f Article 36.

JUDGMENT OF 15. 7. 1M2 — CASE 40/82

and by prolonged discussions among veterinary experts. The evidence available in the present case does not suggest that any comparable effort was made before the Government decided, in 1981, to reintroduce the policy which it had applied before 1964. The deduction must be made that the 1981 measures did not form part of a seriously considered health policy.

39 This conclusion is reinforced by the way in which the United Kingdom dealt with French demands that French poultry products should be readmitted to Great Britain after the French Republic had fulfilled the three conditions laid down by the United Kingdom Government, namely that the exporting country should be totally free from outbreaks of Newcastle disease, should prohibit vaccination and should apply a policy of compulsory slaughter in the event of any future outbreak of the disease. By refusing French imports on the ground that France had not closed its frontiers to poultry imports from non-member countries where vaccine was still in use, the United Kingdom added in fact a fourth condition to the three which it had previously stated in its letter to the Commission of 27 August 1981, and which it still states in its defence in the present case as the only applicable conditions.

«o Taken together, these facts are sufficient to establish that the 1981 measures constitute a disguised restriction on imports of poultry products from other Member States, in particular from France, unless it can be show that, for reasons of animal health, the only possibility open to the United Kingdom was to apply the strict measures which are at issue in this case and that, therefore, the methods prescribed by the 1981 measures for obtaining the high standards of animal health which the United Kingdom Government had in mind when it changed its policy with regard to Newcastle disease, were not more restrictive than was necessary for the protection of the health of poultry flocks in Great Britain.

45 It follows from these considerations that, by applying measures which had the effect of preventing imports of fresh and refrigerated poultry products, including eggs (not intended for hatching) and egg products other than heai-

JUDGMENT OF !5. 7. 19Í2 — CASE 40/82

treated egg products, into England, Wales and Scotland from any Member State other than Ireland and Denmark, the United Kingdom has failed to fulfil its obligations under the Treaty.

4* As a result, it is the duty of the United Kingdom, by virtue of Article 171 of the Treaty, to take all the necessary measures to comply with this judgment. In this context the Court has taken note of the Commission's statement that it intends to contact the British authorities in order to permit, without delay, the re-establishment of trade which has been interrupted by the 1981 measures while at the same time safeguarding animal health in conformity with the Treaty.

V — O t h e r p o i n t s at issue

47 Apart from the 1981 measures, the present action raises two further issues: first, the ban on imports of poultry products into Northern Ireland from other Member States, except Ireland and Denmark; secondly, the United Kingdom legislation which constitutes the basis of the measures taken with regard to both Great Britain and Northern Ireland, inasmuch as they embody an import licensing system. In the Commission's submission, this last issue also has a bearing on the assessment of the measures adopted with regard to imports of heat-treated egg products into England, Wales and Scotland.

s: The circumstance that, at present, the Court does not grant the declaration sought by the Commission with regard to the import licensing system, does not imply that this system may be used in a way leading to impon restrictions substantially similar to those resulting from the 1981 measures.

On those grounds,

THE COURT

hereby:

1. Declares that by applying measures which had the effect of preventing imports of fresh and refrigerated poultry products, including eggs (not intended for hatching) and egg products other than heat-treated egg products, into England, Wales and Scotland from any Member State other than Ireland and Denmark, the United Kingdom has failed to fulfil its obligations under the Treaty;

O P I N I O N OF MR CAFOTORTl — CASE 40/82

J. A. Pompe J. M e n e n s de Wilmãrs Deputy Registrar President

OPINION OF MR ADVOCATE GENERAL CAPOTORTI DELIVERED ON 7 JULY 1982 «

Mr President, According to the United Kingdom, those Members of the Court, measures are justified pursuant to Article 1. By application received on 36 of the Treaty, in so far as they form 4 February 1982, the Commission part of a set of measures intended to requested the Court to declare that, by protect the health and life of poultry prohibiting imports and introducing an threatened by Newcastle disease. import licensing system in the poultry Newcastle disease is a virus infection products sector, the United Kingdom which may affect poultry, in particular had failed to fulfil its obligations under chickens and turkeys, producing Article 30 of the EEC Treaty. respiratory and other disturbances,

I — Translated from the Italian.