C-74/82

JUDGMENT OF 31. 1. 1984 — CASE 74/82

and, on the other hand, of putting Community trade in fresh poultry- forward its defence to the meat, pending the adoption of Commission's complaints. Community measures. That provision cannot have the effect of relieving 2. Although it is true that under the Member States of their obligation to procedure provided for in Article 169 comply with the prohibitions laid the action brought by the Commission down in Articles 30 and 36 of the must relate to the same subject-matter Treaty in the field which it covers. as the reasoned opinion, which must in turn be preceded by a letter inviting the Member State concerned to 4. The question whether or not national submit its observations, there is measures on animal health may nothing to prevent the Commission include an import licensing system from setting out in detail in the without infringing Article 36 of the reasoned opinion the complaints Treaty cannot be answered uniformly which it has already made more in every case. In fact, the reply to generally in its initial letter. Indeed, that question depends upon the the reply to that letter my give rise relationship in an individual case to a fresh consideration of those between, on the one hand, the complaints. inconvenience caused by the ad- ministrative and financial burdens 3. Article 11 (1) of Directive 71/118 imposed under such a system and, on must be understood as leaving the the other hand, the dangers and risks Member States power to lay down for animal health resulting from the health control provisions for intra- imports in question.

COMMISSION v IRELAND

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

T H E COURT,

composed of: J. Mertens de Wilmars, President, T. Koopmans, K. Bahlmann and Y. Galmot, Presidents of Chambers, P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco, O. Due, U. Everling and C. Kakouris, Judges,

Advocate General: G. F. Mancini Registrar: H. A. Rühi, Prinicpal Administrator

gives the following

The disease appears in various forms, the Because it is an epidemic disease, an acuteness of which depends on the outbreak may entail serious economic degree of virulence of the strain of virus consequences for poultry producers. and the resistance of the host. The Serious epidemics of the disease, which symptoms of the disease are respiratory appeared for the first time in Europe in and digestive difficulties, partial paralysis 1926 in Newcastle-upon-Tyne, occurred and loss of appetite. The course of the during the 1960s and from 1969 to 1972. disease in poultry varies widely: in some According to the information provided cases heavy mortality within a short time, by the International Office of Epizootics, in others a more or less severe effect on reproduced in the table below, since then growth and laying, and in others an the number of outbreaks has fallen infection which cannot be detected appreciably. except by laboratory tests.

Newcastle disease statistics — 1972-81

IOE returns

Number of outbreaks

Member State 1972 1973 1974 1975 1976 1977

Belgium 65 26 125 17 1 — Denmark 4 — • France 887 471 465 204 4 — Germany 5 523 963 69 97 21 8 Greece 1933 1399 673 349 267 511 Ireland — Italy 349 564 105 197 97 38 Luxembourg 33 2 14 1 Netherlands 160 27 — 18 — 2 United Kingdom (GB) 400 74 35 7 6 — United Kingdom (Northern Ireland) — ,36 — •

In Ireland, attemps to eradicate both vaccine are used: live vaccine and inac­ Newcastle disease and other avian tivated vaccine. The live lcntogenic virus diseases have long been concentrated used in vaccines is liable to persist in a on a policy of non-vaccination and carcase in a similar manner to other slaughter of contaminated flocks, ac­ strains of Newcastle disease. Moreover, companied by strict import controls. The vaccinated birds, and even their last outbreak of Newcastle disease was in descendants, may be hidden carriers of 1956. No outbreak of other avian field virus. diseases, such as infectious laryn- gožracheitis, fowl pox, turkey coryza, or Arizona disease, has previously been recorded in Ireland. A similar policy has been followed in Northern Ireland and The Irish legislation the fact that the whole of Ireland is an island has greatly contributed to the effectiveness of that policy. The same 2. Controls on the import of poultry, method has also given good results in poultrymeat, poultry eggs and poultry Scandinavia, particularly in Denmark. In products have been applied in Ireland in other countries, the disease has been the interests of avian health in essentially controlled by the adoption of a policy of unchanged form since 1938. The slaughter and vaccination combined or measures which are in force at present of generalized vaccination, sometimes are based on the Disease of Animals Act compulsory, sometimes on a voluntary 1966. They are contained in the Poultry, basis, according to the incidence of the Poultry Carcases, Poultry Eggs and disease. For vaccination, two types of Poultry Products (Restriction on Import-

(2) A Member State may, if there is a The Community provisions 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 71/118 of 15 February 1971 on health problems affecting trade in fresh poultrymeat (Official Journal, (a) in the event of an outbreak of English Special Edition, 1971 (I), p. an epizootic disease in the 106). other Member State, tem- porarily prohibit or restrict the introduction of fresh poultry- The last recital in the preamble to that meat from the affected areas of directive is worded as follows : that Member State;

". . . animal health provisions relating to (b) if an epizootic disease becomes trade in live poultry and fresh poultry- widespread or if there is an meat will be the subject of other outbreak of another serious

COMMISSION v IRELAND

5. The Commission then sent to Ireland Administrative procedure on 24 September 1981 the initial letter

4. By a telex message of 2 September 1 — Those United Kinedom measures were llie subject of 1981, the Commission requested the the judgment of the Court of 15 July 1982 in Case 40/82 Commission v Uniini Kingdom [1982] ECR Irish Government to provide it with 2793.

JUDGMENT OF 31. 1. 1984 — CASE 74/82

provided for in the first paragraph of The Commission then stated in its letter Article 169 of the Treaty, stating that the that in its view the import restrictions import restrictions in question infringed imposed by Ireland could not be justified Article 30 of the Treaty. It requested the on the ground of the protection of Irish Government to submit its obser- animal health under Article 36 of the vations on those measures within 15 Treaty. In that regard, it pointed out that days. the animal health record of the Community in relation to Newcastle disease had in recent years been exceptionally gpod. No major outbreaks had occurred since the early 1970s and the sporadic minor outbreaks which had In its letter, the Commission stated that appeared since then had rapidly been the effect of the Irish measure was to dealt with and had not led to more ban the import of the products in widespread outbreaks either within the question from all areas of the Com- Member States or across intra- munity except Denmark and Northern Community frontiers. The Member Ireland. It presumed that the ban would States subject to the import ban, par- continue to apply for the time being to ticularly those which had the most sub- imports from Great Britain, in view of stantial trade in the products concerned, the continuing presence of vaccinated namely France and the Netherlands, had birds in the British flock. had a particularly good record of freedom from the disease in recent years.

COMMISSION v IRELAND

view of the present state of health of disease-free unvaccinated poultry stocks poultry flocks within the Community. of high genetic quality. Those flocks were also accepted as a source of breeding stock and hatching eggs by such non-member countries as Australia, In those circumstances, the Commission New Zealand and Norway, which would considered that the Irish rules on imports take flocks only from countries with were out of proportion to the risks the highest health status. There were involved in relation to avain health. In therefore no grounds whatsoever for that connection, it also noted that changing a policy at the very time at Ireland continued to allow into its which Community policy was being territory exotic birds which constituted directed towards achieving the highest a much greater potential danger with possible animal and avian health regard to the spread of Newcastle standards in all the Member States. disease than the products the import of which was banned. In that regard, the Irish Government stated that Ireland had consistently In a letter dated 23 October 1981, the supported harmonization within the Irish Government sent its observations to Community to ensure the highest the Commission. It contended in essence possible standard of health. Moreover, that the avain health status, in Ireland although the aim of the Irish rules was to and the magnitude of the risk to the avoid endangering the health status entire poultry industry inherent in the achieved, they did not involve an high degree of susceptibility of the Irish absolute ban on imports, as substantial flocks fully justified the controls which imports had been admitted in recent were carefully applied on the basis of years and would continue to be admitted scientific veterinary knowledge and with in the future from countries which had the sole purpose of preventing the intro- achieved a standard of health equivalent duction of avain disease through to that in Ireland. imported products.

Newcastle disease, there was reason to necessary to comply with the reasoned doubt whether all outbreaks were in fact opinion within five days. reported to the International Office of Epizootics or elsewhere. The fact that vaccination had continued to be widely- practised was an indication of the In the statement of grounds of the general concern about the risk of further reasoned opinion, the Commission outbreaks of the disease. Furthermore, repeated the complaints made against vaccination was liable to mask field Ireland in its letter of 24 September strains of the virus. According to 1981. scientific evidence available, vaccinated birds, their carcases and offal were indeed a source of infection. The danger of spread of the disease as a result of In relation to the applicability of Article vaccination had moreover been con- 36 of the Treaty, it stated that in its firmed by a working document opinion it was not open to a Member circulated by the Commission at a State which had a good health record meeting of the Standing Veterinary with respect to an animal disease Committee on 23 September 1981. systematically to ban imports of products which might theoretically carry that disease. In that regard, the Commission did not accept that the Irish poultry flock was any more susceptible to With regard to the Commission's Newcastle disease than unvaccinated assertion relating to the potential danger poultry in any other Member State. constituted by the import of exotic birds, Ireland's policy in respect of that disease the Irish Government stated that the was aimed at preventing any risk of limited imports involved were subject to outbreak, even theoretical, by banning the most stringent quarantine conditions imports. In practice, it would be quite and veterinary controls; they were possible to give the national poultry flock permitted only from countries which a high degree of protection without issued the veterinary certification re- affecting trade by, in particular, quired in each case. adjusting the measures taken to the real risks involved in importation. In that regard, the Commission pointed out that the types of live virus vaccine which represented a real danger of spread of the disease were not in use in any of the Member States. Furthermore, the 6. By letter of 9 November 1981, the statistics of the International Office of Commission sent to the Irish Permanent Epizootics, called in question by the Irish Representation its reasoned opinion Government, were accepted throughout pursuant to Article 169 of the Treaty. In the world. it it stated that by subjecting poultry, eggs and poultry products from some Member States to an import ban and by subjecting all imports of those products to an import licensing system other than Finally, the Commission stated in its a system of general open licences, reasoned opinion that an import Ireland had failed to fulfil its obligations licensing system could be justified on under Article 30 of the Treaty. Ireland grounds of protection of animal health was requested to take the measures under Article 36 in the absence of

In addition, the Irish Government put 1. The Commission is requested to forward more detailed arguments forward to the Court its comments on relating to the risks of the spread of the conclusions which it draws with Newcastle disease. It stated that as well regard to Cases 40/82 and 74/82 as the poultry and egg products which from the judgment of 8 February had been subjected to the level of heat 1983 in Case 124/81 relating to U H T treatment required to inactivate the virus, milk. Ireland imported day-old chicks and hatching eggs, under strict quarantine 2. The Commission is requested to conditions which eliminated the possi- provide the Court with statistics on bility of the spread of infection from the incidence in the territory of the countries which did not have a health various Member States over the past status equal to that of Ireland. five years of all the avian diseases to which these actions relate. With regard to the import licensing system, the Irish Government stated that it was ready to consider constructive Irish Government suggestions from the Commission for any adjustments which recognized the The Irish Government is requested to need to maintain the health status of the state in writing whether it participated in Irish poultry flock. the discussions between the Member States on the measures to be adopted by By a supplementary reply dated 10 the United Kingdom following the February 1982, the Irish Government judgment of the Court of 15 July 1982.

JUDGMENT OF 31. 1. 1984 — CASE 74/82

The undue haste with which the Com­ The Commission, the applicant, states mission carried - out the administrative that whereas the reasoned opinįon procedure is reflected on the one hand in extended to live poultry and hatching the uncompromising terms of the eggs, its application does not concern reasoned opinion which does not take those products. Therefore, the appli­ sufficient account of the explanations cation covers only import restrictions on provided by Ireland in its letter of 23 poultrymeat, poultry eggs (other than October 1981. On the other hand, the hatching eggs) and poultry products. Commission's complaint concerning the form of the Irish licensing system was raised for the first time in the reasoned Admissibility of the action . . opinion. The fact'.that, the scope of. the application to the Court was more The Irish Government, the defendant, limited than that of the reasoned opinion considers that the application is is yet another indication of the Com-

COMMISSION v IRELAND

With regard to the effect of Article 11 of Council Directive 71/118 on the assessment of the Irish legislation in By stating that Article 11 (1) applies question, the Commission points out that "subject to" Article 11 (2) to (4), the Article 11 (1) provides that the animal Commission is advocating an interpret- health provisions of Member States ation which is not only contrary to the concerning trade in live poultry and express wording of Article 11 but which poultrymeat are to continue to apply also envisages that the Member States until the entry into force of any may adopt measures affecting trade with Community provisions, subject expressly other Member States only when there however to Article 11 (2) to (4). have been actual outbreaks of disease. Such an interpretation would have disastrous consequences for the control of avian disease within the Community. The Commission states that Article 11 (2) to (4) provides only for harmo- nization of restrictions on trade which the Member States may impose in the In the view of the Irish Government, the event of an outbreak of an epizootic expression "without prejudice to" Article disease such as Newcastle disease. Fur- 11 (2) to (4) means that where the pre- thermore, the Member States are free to existing legislation of a Member State is maintain or to adopt any animal health found to be insufficient to meet a measures which they consider appro- situation involving a particular disease priate, in so far as they are compatible within the Community, that State may with Articles 30 to 36 of the Treaty. take the further necessary measures Indeed, a provision of secondary law under Article 11 (2) to (4). Furthermore,

In the Commission's opinion, the Ireland considers that the judgment of 15 statistics published by the International July 1982 in Case 40/82 has no effect on Office of Epizootics show unequivocally the interpretation of Article 11 (1) of the that the incidence of Newcastle disease directive. In fact the Court expressed no in the Community has fallen dramatically view on the interpretation of Article 11, in the past five years. From that it infers except for its observation that paragraphs that field virus, that is to say all virus (2) to (4) represent only the beginning of other than that used for vaccine, is the process of harmonization in the field extremely rare, or even non-existent, in of avian health. The Irish Government most Member States. also points out that the Commission's argument to the effect that the Council directive could not derogate from Article 30 of the Treaty suggests that the In the light of the present situation in the directive is unlawful. Such an argument Community, which is characterized by may not be raised in these proceedings, the widespread practice of keeping vac- to which the Council is not a party. cinated and non-vaccinated flocks in the same Member State, the Commission considers the argument that vaccination might mask field virus to be somewhat In relation to the assessment of the Irish theoretical. Indeed, in those Member measures under Article 36 of the Treaty, States in which a significant proportion the parties put forward in their written of the national poultry flock is not vac- observations essentially the arguments cinated and is therefore fully susceptible

to Newcastle disease, the presence of Consequently, the Commission considers field virus would undoubtedly cause that the risk of introduction into Ireland outbreaks within a short space of time. of disease virus from certain Member Partial vaccination cannot therefore States is at the present time very low and mask for any appreciable period the from the remainder is non-existent. presence of field virus 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 consisting of 15% vaccinated and 85% unvaccinated birds, It considers that in practice the impor- and Great Britain, which until September tation of poultry carcases, poultry eggs 1981 had a national flock consisting of or poultry products does not give rise to 40% vaccinated and 60% unvaccinated any danger of the introduction of other birds. Since 1976, there had been no avian diseases, such as classic fowl outbreak of the disease in France and pest, infectious laryngotracheitis, turkey only in Great Britain. coryza, Arizona disease and rabies. In that regard, it mentions the favourable situation in the Community with regard to those diseases, the nature of the infections involved and the controls to The policies followed concerning vac- which trade may be subjected. cination against Newcastle disease vary from one Member State to another. However, the vaccines used are the subject of innocuity controls in respect of both Newcastle disease and other diseases with which a vaccine could The Irish Government, in its defence, theoretically be contaminated. relies on Article 36 of the Treaty only in so far as Article 11 of Directive No 71/118 does not fully afford justification for the maintenance of the Irish measures in question. It maintains that With regard to the French policy, the the Irish measures are necessary in their Commission also states that the decision entirety mainly in the interests of animal of 24 November 1981 to reintroduce health and are therefore justified under vaccination had no connection with any Article 36. They are necessitated by the outbreak of the disease. Indeed, in prevalence in most Member States of the September 1981, at the time when the Newcastle disease virus, the effects of United Kingdom introduced its non- which can be contained only by the vac- vaccination policy, France also aban- cination of flocks. doned vaccination in an endeavour to regain access to the British market. When it became clear that in spite of the change in the French policy, the United Kingdom refused to accept French exports, France decided again to permit The Irish Government states that a vaccination. Vaccination is now auth- policy of appropriate import controls orized throughout the country but only combined with non-vaccination and, for poultry intended for the production where necessary, slaughter is generally of eggs and for poultry in areas close to accepted as the best line of defence any foci of Newcastle disease. against exotic diseases. That policy

In that regard, the Irish Government sets Infectious laryngotracheitis is a out in detail the effects, survival and contagious infection which occurs mainly spread of Newcastle disease virus, citing in chickens and for which there is no numerous scientific sources in its specified treatment. Control depends on support. The Commission, it argues, has good hygiene and vaccination, which in particular under-estimated the danger none the less offers only moderate to Irish flocks which have not been protection. In the Community the disease immunized deriving from the varied occurs in the United Kingdom, vaccination practices. The non-vaccinal Germany, Italy, the Netherlands, Greece forms of Newcastle disease virus are still and Belgium. According to the veterinary widespread within continental Europe expertise at Ireland's disposal, the virus is but because of the immunity of the transmitted by live infected birds and flocks clinical Newcastle disease does not also by uncooked contaminated prod- frequently occur. The Commission's ucts, including poultry carcases and argument based on the presence of vac- meat. cinated and unvaccinated flocks in the same Member State does not take account of the fact that in practice all parent stock is vaccinated. Moreover, the unvaccinated flocks usually consist of chicks bred from vaccinated parents and Arizona disease is caused by a bacterium benefiting for their short lives from a related to salmonella and is passed from high degree of indirect immunity. Recent one generation to the next mainly by egg Belgian studies confirm that vaccination transfer. However, the carcases of can actually mask the presence of field infected birds remain contaminated with virus, even in flocks benefiting from the bacteria which will survive extended indirect immunity. Moreover, the Com- periods of time in the frozen state. The mission's statements concerning the non- main problem in controlling the disease

The Commission then observes that the avian diseases referred to by Ireland, In its reply, the Commission refers to the other than Newcastle disease, arise only judgment of 15 July 1982 in Case 40/82 sporadically in a number of Member in support of its view that for Ireland, as States. In particular, Arizona disease has for the United Kingdom, there are not been reported recently on turkey methods of attaining adequate health farms in the Member States which are protection which are less restrictive than the main exporters of poultry, namely a total ban on imports. Indeed, Ireland the Netherlands and France. Moreover, might adopt measures similar to those the risk of the spread of that disease, introduced by the United Kingdom in together with laryngotracheitis and October 1982, following the judgment of turkey coryza, through meat is in the Court. Whilst permitting trade to practice negligible. In view of the take place, those measures, in association inspections provided for in Directive with the provisions laid down by Council 71/118, the present situation in the Directive 71/118, would give Ireland Community regarding those diseases every reasonable guarantee against the does not therefore justify an import ban importation of Newcastle disease and on poultrymeat.

JUDGMENT OF 31. 1. 1984 — CASE 74/82

COMMISSION v IRELAND

The Irish Government further considers IV — O r a l p r o c e d u r e that the Commission's complaint con- cerning the licensing system is in- The parties presented oral argument at admissible because it was raised for the the sitting on 5 July 1983. first time in the reasoned opinion. In that regard the Commission states in its reply In relation to the incidence of avian that the observations on the licensing diseases other than Newcastle disease, system made in the reasoned opinion set the Commission supplemented the out in greater detail the complaint made statistics which it had submitted in in its initial letter and concern the answer to a question put by the Court. contested measures in general. So far as infectious laryngotracheitis, turkey coryza and Arizona disease are concerned, that information as a whole gives the following table:

Laryngotracheitis Turkey coryza Arizona tlisease Member State 78 79 '80 '81 '82 78 79 '80 '81 '82 78 79 '80 '81 '82

Denmark •—• — — — ·—• — — .—. — — — .—. — — — Luxembourg — — — ·—• — — — — — — — — — — — Netherlands — — 265 52 17 _ _ _ _ _ _ _ 55 ' 4 ' 4 ' Greece 10 1 1 1 1— _ _ _ _ _ _ _ _ _ _ Italy X — 11 7 4 X — 1 _ _ _ _ _ _ _ Germany — •—• sporadic outbreaks Belgium 2 8 2 5 1 _ _ _ _ _ _ _ _ _ _ Ireland •—• — — — •—• — — .—· — — — — — — — United Kingdom (Northern Ireland) 2 ·—• — — — — — — — .—. — — — — — — United Kingdom (GB) very little — min. (symptomsJ) — — — — — France — X — ·—• — respiratory syndrome ' 1 — Detected in quarantine stations in poultry imported in particular from the USA. 2 —Appeared in 1983. 3 —• Not disease. 4 — Rhinotrachcitis rather than actual coryza. X — Not specified.

4 The Commission inferred from that reply that Ireland allowed into its territory only live poultry, poultrymeat and eggs from Northern Ireland and Denmark, since they were the only parts of the Community other than Ireland itself in which a policy of non-vaccination had been pursued for long enough to be fully effective.

5 In a letter dated 24 September 1981 the Commission stated that the measures in question were contrary to Article 30 óf the Treaty and requested the Irish

COMMISSION v IRELAND

Government to submit its observations. The Irish Government replied by letter of 23 October 1981, asserting that the measures in question were justified on grounds of the protection of animal health. The reasoned opinion was sent by letter of 9 November 1981; Ireland was requested to comply with that opinion within five days. The reply of 7 December 1981 and a further reply of 10 February 1982 reasserted that the measures in question were justified. Since Ireland had not complied with the reasoned opinion, the Commission brought the matter before the Court on 19 February 1982.

6 The application no longer concerns imports of live poultry; it is limited to the import restrictions on carcases, eggs and poultry products. In addition, the Commission stated in its application that the action did not concern the importation of hatching eggs. Finally, the Commission accepted that the ban on imports from parts of the Community other than Denmark and Northern Ireland did not apply to egg products which had been subjected to the level of heat treatment required to inactivate the Newcastle-disease virus.

1 1 The Commission accepts that it must allow a Member State a reasonable time to comply with a reasoned opinion under the procedure provided for in Article 169 of the Treaty. However, it points out that it granted an extension of the period of five days laid down in the reasoned opinion, that it took cognizance of Ireland's reply of 7 December 1981 and also of the further reply of 10 February 1982, and that it did not lodge its application until 19 February 1982. It therefore submits that Ireland was given ample time to comply with the reasoned opinion.

12 The Court is compelled to state its disapproval of the Commission's behaviour in this regard. It is indeed unreasonable, as Ireland has pointed out, to allow a Member State five days to amend legislation which has been applied for more than 40 years and which, moreover, has not given rise to any action on the part of the Commission over the period which has elapsed since the accession of that Member State to the Community. Furthermore, it is clear that there was no particular urgency.

1 3 However, the above-mentioned circumstances are not in themselves sufficient to render the action inadmissible. By formally stating the infringement of the Treaty with which the Member State concerned is charged, the reasoned opinion concludes the pre-litigation procedure provided for in Article 169.

COMMISSION v IRELAND

The purpose of that procedure is to give the Member State an opportunity, on the one hand, of remedying the position before the matter is brought before the Court and, on the other hand, of putting forward its defence to the Commission's complaints. Those aims were respected in this case, since the Commission waited for Ireland's reply to the reasoned opinion before bringing the matter before the Court and, as the Court has seen, Ireland submitted a reasoned reply to the Commission's letter of 24 September 1981 and to the reasoned opinion, stating that it completely disagreed with the Commission's arguments and intended to retain in force the contested national rules. Those circumstances show, moreover, that the Commission's regrettable behaviour did not affect the further course of the proceedings.

i9 In its rejoinder Ireland clarified that submission by stating that the reasoned opinion and the application were founded on two separate breaches., of Community law: Ireland was accused, on the one hand, of applying an, import licensing system other than open general licences and, on the other hand, of closing its borders to imports of poultry products on the basis of that licensing system. However, the Commission's letter of 24 September 1981 had not made that distinction but had merely stated that the restrictive measures were not justified.

20 That submission must be rejected. Although it is true that under the procedure provided for in Article 169 the action brought by the Commission must relate to the same subject-matter as the reasoned opinion, which must in turn be preceded by a letter inviting the Member State concerned to submit its observations, there is nothing to prevent the Commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in its initial letter. Indeed, the reply to that letter may give rise to a fresh consideration of those complaints.

2i From all these considerations it follows that the substance of the application must be considered.

Substance

(a) The import ban-

ii The Commission accuses Ireland of applying measures which have the effect

"Without prejudice to paragraphs (2) to (4), the animal health provisions of Member States concerning trade in live poultry and poultrymeat shall continue to apply until the entry into force of any Community provisions."

Paragraphs (2) to (4) of Article 11 concern the measures which a Member State may adopt in the event of an outbreak of an epizootic disease in the territory of another Member State, if that outbreak is likely to give rise to a danger that the disease may be spread by the introduction of fresh poultry- meat from that Member State.

25 According to Ireland, Article 11 (1) must be interpreted as meaning that, until the entry into force of any Community provisions, Member States are entitled to continue to apply the national provisions on animal health which applied at the time of the entry into force of the directive. So far as Ireland is concerned,, the relevant date was 1 January 1973, the date of its accession to the Community. Since no Community provision on the subject has been adopted until now, the Irish legislation applicable at that date continues, by virtue of Community law, to apply to imports of the products in question.

26 The Commission disputes that interpretation. It submits that Article 11 (1) of the directive cannot be intended to extend the scope of Article 36 of the Treaty and thus to protect national laws which are contrary to Article 30 of the Treaty.

27 It is this argument on the part of the Commission which gave rise to the Irish contention that the Commission considers Article 11 (1) of the directive contrary to Article 36 of the Treaty.

3i The question to be resolved must therefore be examined essentially by reference to Article 36 of the Treaty, which expressly provides that restrictions on imports must be "justified" on grounds of the protection of animal health.

32 According to the Commission, there is no doubt that the import prohibition imposed by Ireland is not justified on such grounds. In support of that view it claims that, according to the statistics available, the incidence of Newcastle disease in the Community has fallen dramatically in recent years. Since 1976 there has been no outbreak of the disease in France, while only one has been declared in Great Britain; a large proportion of the poultry flock in those two countries had not, however, been vaccinated. The Commission infers from that that field virus, that is to say virus other than that used for vaccine, the presence of which may be masked by vaccination, is extremely rare, or even non-existent, in most Member States.

COMMISSION v IRELAND

33 After pointing out the extremely contagious nature of Newcastle disease and the very serious economic consequences which its appearance would have for the country, Ireland goes on to claim that the high standard of health of the poultry flock in Ireland is precisely the result of the policy adopted by the Irish Government in that sphere, a policy based on the compulsory slaughter of contaminated birds in the event of an outbreak of the disease, the prohibition of vaccination on the ground that vaccination could mask the presence of contagious virus and the prohibition of imports of live poultry and poultrymeat from countries which permit vaccination. That prohibition thus constitutes, in Ireland's view, a necessary corollary of the slaughter policy which it has chosen; it was not introduced for reasons of commercial policy.

38 In the course of the proceedings before the Court, the Commission has clarified its arguments by stating that it accepts that the import prohibitions in question were introduced and retained on grounds of the protection of animal health. The Commission does not allege that those prohibitions constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States within the meaning of the second sentence of Article 36 of the Treaty.

39 The Commission considers, however, that the prohibitions in question are not justified under Article 36 on the ground that they are excessive and that their negative influence upon the free movement of goods in the Community is disproportionate to their aim of protecting health. It is that« argument which must therefore be examined.

40 In that regard, certain facts already established by the Court in its judgment· of 15 July 1982 in Case 40/82 Commission v United Kingdom [1982] ECR 2793) should be recalled. First, the statistics available show a steady reduction in manifestations of Newcastle disease throughout the Community over the last six years; in 1981, the only Member States in which outbreaks of Newcastle disease were recorded were Italy (2) and Greece (12). Secondly, the practice in countries which permit vaccination is to vaccinate only part of the poultry flock (in 1981: 40% in France and Great.Britain); normally, vaccination is practised mainly on laying hens and breeding fowl, and not on animals intended for slaughter.

41 Under those circumstances the risk of the Irish poultry flock being infected by field virus which has entered vaccinated birds and remained active in the carcases of those birds or in meat products prepared from those carcases is extremely slight. The question which must be answered is whether the possibility of such infection would be so much due to sheer hazard that it cannot justify a complete prohibition of imports from Member States which permit vaccination.

46 It follows from all these considerations that the Commission's application must be upheld on that point.

(b) The licensing system

47 The second complaint made by the Commission against Ireland is that it has introduced an import licensing system. Such a system is said by its very

JUDGMENT OF 31. 1. 1984 — CASE 74/82

nature to be contrary to the provisions of Articles 30 and 36 of the Treaty, except where the licences in question are open general licences.

48 Since the Commission has presented that complaint in general terms, without reference to the import system at present applied in Ireland (namely, a total ban on imports of the products in question except from Denmark or Northern Ireland), the Court must interpret the complaint as meaning that the Irish legislation on which that ban is based is contrary to Articles 30 and 36 in so far as it permits the introduction of an administrative practice requiring import licences other than open general licences.

question. In the present case, those dangers and risks may under certain circumstances outweigh the inconvenience alluded to.

52 The second part of the application therefore cannot be upheld.

53 Therefore it must be concluded that, by applying measures which have the effect of preventing all imports of poultry carcases, poultrymeat, eggs not intended for hatching and egg products other than heat-treated egg products from Member States which permit vaccination against Newcastle disease, Ireland has failed to fulfil its obligations under the Treaty and that the remainder of the application must be dismissed.

Costs

54 According to Article 69 (3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, the Court may order the parties to bear their own costs. In this case, it is appropriate to make such an order.

On those grounds,

Mertens de Wilmars Koopmans Bahlmann Galmot Pescatore Mackenzie Stuart O'Keeffe Bosco Due Everling Kakouris

Delivered in open court in Luxembourg on 31 January 1984.

J. A. Pompe J. Mertens de Wilmars Deputy Registrar President

O P I N I O N OF M R ADVOCATE GENERAL MANCINI

(see Case 40/82, p. 305)