C-37/83

DIRECTOR O F T H E LANDWIRTSCHAFTSKAMMER [Chamber of Agriculture] RHEINLAND, acting as agent of the regional authorities, Bonn,

Intervener: Public p r o s e c u t o r at t h e Verwaltungsgericht, C o l o g n e ,

o n t h e compatibility with Articles 190 a n d 30 of t h e E E C T r e a t y of the penultimate a n d final sentences of Article 11 (3) of Council Directive N o 7 7 / 9 3 / E E C of 21 D e c e m b e r 1976 o n protective measures against the introduction into t h e M e m b e r States of harmful organisms of plants o r plant products (Official J o u r n a l 1977, L 26, p . 20),

T H E C O U R T (Fifth C h a m b e r )

composed of: Y. G a l m o t , President of C h a m b e r , Lord M a c k e n z i e Stuart, O . D u e , U . Everling a n d C. K a k o u r i s , J u d g e s ,

Advocate G e n e r a l : Sir G o r d o n Slynn Registrar: J. A. P o m p e , D e p u t y Registrar

By letter of 29 March 1982 to the I — Facts and national p r o c e d u r e defendant in the main proceedings (hereinafter referred to as "the de­ Rewe-Zentrale AG, Cologne, the plain­ fendant") the plaintiff contested that tiff in the main proceedings (hereinafter "one-third rule" and asked the de­ referred to as "the plaintiff"), imports fendant to give an undertaking that from vegetables and potatoes from other 1 April 1982 phytosanitary inspections Member States of the European would be carried out in the area for Communities into the Federal Republic which he was responsible on no more of Germany. When those products cross than three-twentieths of consignments the frontier they are subject to imported from another Member State. phytosanitary inspections which are The defendant replied by letter of 6 carried out under the control of the April 1982 that he would continue to Director of the Landwirtschaftskammer deal with all imports which were subject for the Rhineland. The legal basis for to phytosanitary inspection in accord­ those inspections is the Pflanzen- ance with the relevant legal provisions. beschauverordnung [Order on the inspection of plants] of 15 March 1982 (Bundesgesetzblatt I, p. 329), which By an application dated 16 April 1982 implemented in German law the the plaintiff sought a declaration from provisions of Council Directive N o the Verwaltungsgericht of Cologne that 77/93/EEC of 21 December 1976 on the defendant did not have the right to protective measures against the intro­ carry out the phytosanitary inspections duction into the Member States of on imports of fruit and potatoes for harmful organisms of plants or plant which he was responsible on more than products (Official Journal 1977, L 26, three-twentieths of consignments im­ p. 20, as most recently amended by ported from other Member States. In Council Directive No 81/7/EEC of support of its request it contended that 1 January 1981, Official Journal 1981, Article 8 (2) of the Pflanzenbeschauver- L 14, p. 23). ordnung was inapplicable since it was contrary to Community law, which takes According to Article 8 (2) of the Pflan- precedence. That provision is in con­ zenbeschauverordnung, which is in­ formity with the final subparagraph of tended to give effect to Article 11 (3) of Article 11 (3) of Directive No Directive N o 77/83/EEC, the obligation 77/93/EEC but the latter provision is to inspect imports of fruit, vegetables or itself contrary to Articles 30 and 36 of potatoes, with the exception of seed the EEC Treaty because such inspections potatoes, from another Member State constitute measures having an equivalent

effect within the meaning of Article 30 (ii) Article 30 of the EEC Treaty? of the Treaty and because the national rules concerning phytosanitary inspec- (b) (Submitted pursuant to paragraph tions could only be harmonized in such a (a) of the first paragraph of Article way that such inspections, as second 177 of the EEC Treaty) If the inspections of imports, were permitted in provision referred to above is respect of no more than 15 % of invalid : consignments imported from another Member State. Furthermore, the final To what extent, at the present stage subparagraph of Article 11 (3) of of the development of Community Directive N o 77/93/EEC is invalid by law in the sphere of plant virtue of Article 190 of the Treaty protection, is the carrying out of because the statement of the reasons on phytosanitary inspections by the which it is based is insufficient. importing State on imports of fruit Inspection of one-third of all imports is and potatoes (other than seed not "occasional" inspection or "sam- potatoes) from a Member State pling", and the provision thus contains (other than in exceptional cases an inconsistency in that respect which is where, for example, there is reason not resolved in the preamble to the to suspect that the product is directive. contaminated) justified within the meaning of the first sentence of The defendant considers the action to be Article 36 of the EEC Treaty when unfounded. The frequency of inspection the consignment is accompanied by by sampling is fixed, within the limits a phytosanitary certificate issued by of the "one-third rule", taking proper a Member State?" account of all the specific circumstances, according to the nature, quantity and The Verwaltungsgericht considers that a origin of the imported products and the ruling by the Court on those questions is geographical areas of contamination by necessary to enable it to give judgment in quarantine diseases and harmful or- the dispute and, after considering in ganisms in the country of origin. detail the Court's case-law, expresses doubt as to the legality of "the contested By order of 18 January 1983 the Verwal- double phytosanitary inspections of fruit tungsgericht of Cologne referred the and potatoes without particular reason." following questions to the Court of Justice for a preliminary ruling : The order making the reference was received at the Court Registry on 10 March 1983. "(a) (Submitted pursuant to subpara- graph (b) of the first paragraph of In accordance with Article 20 of the Article 177 of the EEC Treaty) Are Protocol on the Statute of the Court of the penultimate and final sentences Justice of the EEC, written observations of Article 11 (3) of Council were submitted by Rewe-Zentrale AG, Directive No 77/93/EEC of 21 represented by Mr G. Meier, by the December 1976 on protective Director of the Landwirtschaftkammer measures against the introduction for the Rhineland, represented by Mr into the Member States of harmful Mobis, by the Irish Government, organisms of plants or plant represented by Mr L. J. Dockery, Chief products (Official Journal 1977, State Solicitor, by the Council, L 26, p. 20) compatible with: represented by its Legal Adviser, Mr B. Schloh, acting as Agent, assisted by (i) Article 190 of the EEC Treaty, Mrs M. Sims, a member of its Legal

Department, and by the Commission, inspections may not be carried out represented by Mr J. Grünwald, a systematically except where there is member of its Legal Department, acting strong evidence that the provisions have as Agent. not been observed, for example where contamination is clear on visual inspection. In addition a more detailed Upon hearing the report of the Judge- inspection may be carried out if the Rapporteur and the views of the goods originate in a non-member Advocate General, the Court decided to country and have not been the subject of open the oral procedure without any previous examination in the Community. preparatory inquiry. Apart from those two cases, inspection must no longer be systematic but only By order of 5 October 1983 the Court occasional. T o be occasional, in the decided to assign the case to the Fifth terms of the directive, the inspections Chamber. may not be carried out in respect of more than one-third of the goods imported from a given Member State and must be as evenly spread as possible II — R e l e v a n t p r o v i s i o n s over time ar d over all the products. Moreover in order to be lawful the inspections must be carried out by sampling. The purpose of Directive N o 7 7 / 9 3 / EEC, which is based in particular on Articles 43 and 100 of the Treaty, is to The contested provision is worded as abolish within the Community systematic follows: checking of plants and plant products for harmful organisms when they are imported from another Member State. In Article 11 (3) (inspections by the order to dispense with systematic importing Member State; systematic and inspections by the importing Member occasional inspections by sampling) States, the directive provides for compulsory inspection in the consignor "With regard to fruit and vegatables and Member State and the issue of a certi- potatoes other than seed potatoes, ficate which must accompany plants Member States may not supplement the exported to another Member State. The official check on identity and the importing Member State must base its requirements permitted under paragraph controls on an examination of the 1 by systematic official checks on documents required, namely the certi- compliance with the provisions adopted ficates accompanying consignments of pursuant to Articles 3 and 5, except goods. It may therefore check the where: identity of the goods and check whether the nature and quantity of the con- signment conform with the description (a) there is serious reason to believe that contained in the relevant documents. one of these provisions has not been Finally, in addition to that inspection, complied with; the Member State may carry out a sup- plementary health check on the imported plants or plant products. (b) the plants referred to above originate in a non-member country and the examination provided for in Article However after the expiry of a 12 (1) (a) has not already been transitional period of four years such carried out in another Member State.

In all other cases, only occasional official Substance of the case inspections of fruit and vegetables and potatoes other than seed potatoes shall Article 190 of the EEC Treaty be carried out, by sampling. They shall be deemed occasional if they are made The plaintiff contends that the second on no more than one-third of the sentence of the second subparagraph consignments introduced from a given of Article 11 (3) of Directive No Member State and are as evenly spread 77/93/EEC is contrary to Article 190 of as possible over time and over all the the Treaty.

Conse- second question referred to the Court quently it considers that taking the literal (question (b) of the Verwaltungsgericht) meaning of the provision, inspections does not conform to Article 177 of the cannot be said to be carried out oc- Treaty and is therefore inadmissible. The casionally and by sampling when such question relates neither to the interpre- inspections are regular and relate to as tation of the Treaty (subparagraph (a) of much as one-third of the products the first paragraph of Article 177) nor to imported from other Member States. the validity and interpretation of acts of the institutions of the Community As the purpose of the rules in question is (subparagraph (b) of the first paragraph to further one of the aims of the Treaty, of Article 177).

Council. Article 11 (3) which radically alters the concept of inspections carried out occasi- In the Commission's view, a national onally and by sampling, nullifies the court may not require that the Court of scheme for the gradual removal of Justice should, after it has declared a phytosanitary checks at the frontier, measure of Community law to be void or without the directive in question con- at the time of making such a declaration, taining any reason for such a rule. lay down rules replacing an invalid

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There is therefore no second sentence of the second subpara need to give fuller reasons for the graph of Article 11 (3) of Directive No concept of occasional inspections which 77/93/EEC to be declared void. replaces the concept of systematic inspections in relation to fruit and vegetables originating in another Member State. The Irish Government submits that there are no valid grounds for regarding the contested provisions as contrary to Article 190 of the Treaty. In its opinion The Council concludes that the those provisions are consistent with the penultimate and final sentences of Article recitals in the preamble to Directive No 11 (3) of the directive in question are not 77/93/EEC and the recitals adequately invalid since there is no failure to state refer to and explain them. In particular the reasons on which it is based. there is no conflict between the recitals in the preamble to the directive and the absence of a time-limit for the exercise The Commission refers to the eighth by importing Member States of the right recital in the preamble to the directive to carry out occasional inspections as which, in its opinion, shows that the only defined by the directive. aim of the directive is the gradual removal of obstacles to and checks on intra-Community trade and not the The Council, for its part, refers to the complete elimination of checks.

3159). It follows from those cases, inter alia, that the reasons appended to legislative acts must be sufficient to In the Commission's view the starting enable the Court to exercise its point for harmonization is the legal supervisory powers and that the position created by the International requirements of Article 190 are satisfied Plant Protection Convention as follows if the statement of reasons explains in from the fifth, sixth and 13th recitals in essence the measures taken by the the preamble to the directive, The

JUDGMENT OF 29. 2. 1984 — CASE 37/83

Organization have, to a certain extent, already resulted in the harmonization of The plaintiff claims that the provision in plant-health laws." question also contravenes Article 30 of the Treaty and cannot be justified The legal position as it should be after by reference to the first sentence of the expiry of the four-year transitional Article 36. period laid down by the directive is described in the 18th and 19th recitals in According to the plaintiff the present the preamble as follows : issue is to verify the legality of a provision, namely, in this case, to check "Whereas, on expiry of the four-year the compatibility of Article 11 of the period, the plant-health checks carried directive with the Treaty.

Since checks carried out previously, those each consignment of fruit and potatoes recitals determine precisely the system of imported from a Member State is checks as defined in the second subpara- accompanied by a phytosanitary certi- graph of Article 11 (3) of the directive; ficate issued by the exporting State, the

inspections carried out by the importing a general rule, the maximum limit for State constitute a second check. inspections is not reached. He annexes to According to the plaintiff the only his submissions a list of the objections additional checks which may be carried of all the offices responsible for the out lawfully in the importing Member inspection of plant products in the State are those which are carried out Federal Republic of Germany for the occasionally and by sampling and which period from 1 January 1977 to the in fact relate to goods which may have beginning of March 1983 with regard to been contaminated by harmful organisms consignments which had to be rejected. during transportation, something that is moreover highly unlikely since the relevant authority's phytosanitary certi ficate must also relate to the packaging and means of transport of the goods by virtue of Article 6 (1) of the directive. The Irish Government states that what is at issue in this case is not a national measure adopted by a Member State but rather a provision contained in a directive adopted by the Council under Inspection of up to one-third of im Articles 43 and 100 of the Treaty.

restricted to a maximum of 15 % of the consignments presented at the frontier except in cases where there is specific evidence of a particular danger. In the If the Court should, contrary to that present case, at most, inspection of a opinion, rule on the validity of the maximum of 15 % of imported con relevant provisions with regard to signments would be justified and they Articles 30 and 36, there is a must be spread as evenly as possible over presumption in favour of the validity of time and over all the products. those provisions which is in practice virtually conclusive.

imports. H e points out moreover that, as wine are primarily a matter of protecting

the consumer whereas phytosanitary exceptions which apply in this case. In inspection measures concern plants that respect it relies on the judgment in which may introduce a disease or a pest Case 4/75 Rewe, cited above. The capable of infesting the ground and of exceptions are laid down in Article 36 of affecting future crops. Despite the certi- the Treaty and that article may be relied ficate issued by the exporting Member on directly because Directive No State, there is a risk that infection 'may 77/93/EEC has not replaced it with a be introduced in intra-Community trade completely new scheme. so that it is not excessive to inspect up to one-third of imports. The absence of the necessary level of import monitoring might cause Member States to invoke the safeguard clause contained in Directive No 77/93/EEC. The Council emphasizes that this case concerns a legal act of the Community and that the argument may therefore concentrate on that act. Reference should therefore not be made to those cases which are concerned only with The Irish Government concludes that on unilateral measures adopted by the the basis of those arguments there is no Member States and in which their reason to doubt the validity of the compatibility with Articles 30 and 36 was provisions in question. assessed. More relevant is the Court's judgment of 25 January 1977 in Case 46/76 (Bauhuis [1977] ECR 5) concerning Directive N o 64/432/EEC whose object was to concentrate inspections of exports from one Member The Council refers to the Court's State to another in the exporting State judgments of 15 December 1976 in Case "so that inspections at the frontier 35/76 (Simmenthal [1976] ECR 1871), organized unilaterally by the importing 20 February 1979 in Case 120/78 (Rewe Member State become unnecessary or [1979] ECR 649), 8 November 1979 in are at least reduced to an occasional Case 251/78 (Denkavit [1979] ECR check that the veterinary and public 3369), 17 December 1981 in Case health measures which are required to be 272/80 (Frans-Nederlandse Maatschappij taken in the exporting Member State voor Biologische Producten [1981] ECR have been complied with" (paragraph 3277), 31 March 1982 in Case 75/81 27). It follows from that judgment that (Blesgen [1982] ECR 1211) and 8 July the measures are not adopted by each 1975 in Case 4/75 (Rewe [1975] ECR Member State in order to protect its own 843). interests but by the Council in the general interests of the Community. That judgment therefore supports the view that such inspections are not to be regarded as unilateral measures which hinder trade but rather as operations It is of the opinion that while the intended to promote the free movement phytosanitary checks carried out by the of goods in particular by rendering importing Member State in this case ineffective the obstacles to such free must be regarded as measures having an movement which might be created for effect equivalent to quantitative re- health inspections adopted pursuant to strictions, Community law provides for Article 36 (paragraph 30).

The Council next considers what the position would be if the Court declared that the penultimate and final sentences The Council argues finally that the of Article 11 (3) of Directive N o complete text of the order confirms its 77/93/EEC do not fall within Article 36 view. Since the defendant State in Case of the Treaty. Matters would then revert 42/82 itself considered that inspection by to how they were previously, that is to sampling approximately one consignment say the situation would be governed by in 10 was sufficient to guard against any international law relating to plant risks, the Court, as a precaution, set the protection as laid down by the inter­ percentage of inspections at 15% in the national convention signed at Rome on 6 provisional measures it ordered ad December 1951 (Food and Agricultural interim. In the final judgment, however, Organization) which came into force in the Court did not give a ruling on the all the Member States of the Community proportion of 15% but it did state that before the EEC Treaty came into effect. systematic analysis of all imports or of According to Articles VI (1) (a) and VI three consignments out of four was (2) (a) and (f), the contracting parties contrary to Articles 30 and 36 of the have full authority to introduce import Treaty. restrictions, including the possibility of carrying out a second inspection of all consignments in a systematic and complete manner. The Council therefore states that, "far from being contrary to In conclusion on that point the Council the Treaty and the Court's case-law", considers that reducing the proportion the one-third rule "has reduced the inspected from 100% to no more than freedom of action of the Member States one-third amounts to substantial progress in that specific situation." as referred to in the 12th and 16th

recitals of the preamble to the Directive With regard to the applicability of No 77/93/EEC. Article 30 to fruit and potatoes, the Commission refers to Article 38 (1) of On the basis of the foregoing, the the Treaty, according to which the Council's investigation has not revealed common market is to extend to agri- the existence of any factors capable of culture and trade in agricultural affecting the validity of the contested products. Under Article 38 (2) the rules provisions. The double inspections laid down for the establishment of the permitted by the directive -are without common market are to apply to agri- doubt measures having an effect cultural products, save as otherwise equivalent to quantitative restrictions, yet provided in Articles 39 to 46. On that they are lawful because they fall within basis the Commission considers that the exceptions provided for in Article 36 intra-Community trade in fruit and of the Treaty. potatoes is subject to the provisions of Article 30 of the Treaty. The Commission begins its submissions on the present point by recalling the problem as expressed by the Verwaltungs- gericht in its request for a preliminary Next the Commission considers whether ruling where it was unsure to what the prohibitions in Articles 30 and 36 are extent, at the present stage of the addressed exclusively to the Member development of Community law, taking States. In its view there can be no doubt into account the harmonization ac- that the articles are addressed principally complished by Directive N o 77/93/EEC, to the Member States because the aim the carrying out of double phytosanitary was to abolish the quantitative restric- inspections of one-third of consignments tions applied by the Member States when of fruit and potatoes from a Member the common market was established and State was justified, in the absence of any to prevent their re-introduction. In those particular reason, for example, signs circumstances it would be absurd to giving rise to a suspicion that the product prohibit the Council or Commission was contaminated. from maintaining or adopting quanti- tative restrictions or measures having an The question of the compatibility of the equivalent effect. second subparagraph of Article 11 (3) of Directive No 77/93/EEC with Article 30 of the Treaty can, in the Commission's opinion, be divided into three parts : It does not necessarily follow that Article 3 (a) of the Treaty provides for "the (a) Does Article 30 of the Treaty apply limitation, as between Member States, of to intra-Community trade in fruit customs duties and of quantitative and potatoes? restrictions on the import and export of goods, and of all other measures having (b) According to which principles does equivalent effect" (only) as a duty Article 30 of the Treaty apply to imposed on the Member States, when legal acts of the Community, in the provision states that it is also the particular to directives on harmo- subject of "the activities of the nization? Community" for the purposes set out in Article 2. The Council and the (c) Is the second subparagraph of Article Commission interpret that as meaning 11 (3) of Directive No 77/93/EEC not only that they must carry out the compatible with those principles? tasks expressly assigned to them in

Chapter 2 of Title 1 on "Free movement supervisory provisions is to be effected of goods" but also that in the exercise of by harmonization measures. The op­ all their other powers under the Treaties timum solution would be the total they must pursue the objective of elimination of all checks within the eliminating obstacles to trade in the Community while the most narrow Community. solution would be to harmonize the rules in such a way that the checks do not hinder intra-Community trade any more than they did before harmonization. The Commission takes the view that in Between those extremes lies an area this case it is necessary to determine how within which the Community institutions important the objective of eliminating must meet their goal of harmonization obstacles to trade is to the harmon­ taking account of the principles of ization, under Article 100 of the Treaty, necessity, proportionality and non­ of provisions laid down by law and regu­ discrimination. lation, and to define the duties imposed on the Council and the Commission. In fact that is the sole purpose of the present litigation. It follows that the legality of Community measures to harmonize inspections in intra-Community trade must be assessed Where the purpose of the harmonization in accordance with specific criteria as directive under Article 100 is, as in this defined above. That principle has been case, to facilitate the functioning of confirmed both in academic writings and the common market by approximating in the Court's case-law (see its judgment national supervisory measures, the initial of 24 October 1973 in Case 10/73 Rewe presumption must be that the inspections [1973] ECR 1175 and its judgment in the to be harmonized are not prohibited as Baubuis case, cited above), showing that such by Article 30 but are, on the the measures adopted under Community contrary, justified under Article 36. law may not be equated a priori with Otherwise the Commission could have obstacles to trade adopted unilaterally commenced proceedings pursuant to by the Member States even if the Article 169 against the Member States Community measures involve some for infringement of Article 30 to force hindrance to such trade. them to withdraw the various supervisory measures.

restricts the supervisory powers of the proposal. After more than 10 years of importing States. In comparison with the discussions, resumed in 1973 after the previous legal position, Directive No accession of the United Kingdom, 77/93/EEC does, however, considerably Ireland and Denmark, the Council restrict the supervisory powers of the adopted the definitive text of the Member States thus clearly facilitating directive in December 1976 including intra-Community trade both for the that rule. The inclusion of the "one-third business circles concerned and for the rule" was the expression of the Council's supervisory authorities. First, in particu- desire to reconcile two conflicting but lar by giving a common definition of equally important objectives. The harmful organisms and of specific concept of occasional inspections reflects requirements on the importation of the intention to hinder trade in this goods, it enables exporting Member respect as little as possible, while the States to apply their own phytosanitary "one-third rule" reflects the desire to legislation when inspecting plants instead minimize the risks attached to the new of complying with foreign legal provisions adopted by the Community. provisions as they had to before: Moreover, by general agreement a supervision is thus simplified con- transitional period of four years was siderably and the procedure is therefore fixed for the implementation of the new more transparent and less haphazard for rules on inspections. the exporting Member State. Another major step forward is the fact that the inspection certificate is legally binding and that therefore the number of inspections is limited. The importing Member State's power to carry out inspections is therefore considerably reduced. The Commission examines at length the risks involved in trade in plants and emphasizes in particular that inspection by the importing Member State serves only to cross-check that the inspection carried out by the consignor State was The principle of necessity, argues the effective. However the cross-check is Commission, means that the rules laid accompanied by an additional inspection down to attain an objective recognized allowing the diagnosis of contamination by the legal system must be effective, that was neither present nor verifiable adequate and necessary: since plant when the first inspection was carried out protection is one of the objectives by the consignor State. It is therefore not recognized by the legal system and simply a second, duplicated inspection phytosanitary inspections on exportation and the system is justified by the fact and importation are an effective and that it relates to biological matter. appropriate means of attaining that objective, the only question remaining is whether the contested system of inspection is also necessary to attain that objective.

The Commission maintains that if the Finally the Commission states that the plaintiff's reasoning based on the Court's second subparagraph of Article 11 (3) of order in Case 42/82 R were correct, it Directive N o 77/93/EEC does not would also be necessary to hold that the infringe the principle of non-discrimi­ provisions governing the wine sector nation either. The final sentence of which require the Member States to Article 11 (3) expressly provides that ensure compliance with Community law products from different Member States and which do not impose a 1 5 % limit on must be treated equally. inspections are unlawful.

Decision

1 By order of 18 January 1983, which was received at the Court on 10 March 1983, the Verwaltungsgericht Köln [Administrative Court, Cologne] referred to the Court for a preliminary ruling pursuant to Article 177 of the EEC Treaty a question on the validity of the penultimate and final sentences of Article 11 (3) of Council Directive No 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of harmful organisms of plants or plant products (Official Journal 1977, L 26, p. 20), and a question on the interpretation of Article 36 of the EEC Treaty.

2 The questions arose in the course of an action brought by Rewe-Zentrale AG, Cologne, an importer of, inter alia, fruit and potatoes from other Member States, seeking a declaration that the Landwirtschaftskammer Rheinland [Chamber of Agriculture for the Rhineland] had no authority to carry out phytosanitary inspections on up to one-third of consignments of the said products on their importation, as provided for by the Pflanzen- beschauverordnung [Order on the inspection of plants] of 15 March 1982 (Bundesgesetzblatt I, p. 329).

3 The Verwaltungsgericht held that the German order merely gave effect in national law to Article 11 (3) of Directive N o 77/93 and therefore expressed doubts as to the validity of the latter provision with regard to the statement of reasons on which it is based and with regard to its compatibility with the provisions of the Treaty relating to the free movement of goods.

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4 e e altungsg r cht Th V r w e i therefore stayed the proceedings and referred the following questions to the Court:

7 Articles 1 and 2 define the geographical scope of application of the directive and certain terms used therein and Article 3 and 5 either enjoin or authorize

JUDGMENT OF 29. 2. 1984 — CASE 37/83

the Member States to ban the introduction into their territory of the organisms, plants and plant products listed in Annexes I to IV to the directive.

8 According to Article 6 the Member States are to lay down, at least in respect of the introduction into another Member State of the plants, plant products and other objects listed in Annex V (including certain types of fresh fruit and potato tubers), that the latter and their packaging and, if necessary, the vehicles transporting them are to be examined on an official basis to make sure that they are not contaminated by the harmful organisms the intro- duction of which into its territory is banned by the Member State under Articles 3, 4 and 5. Where it is considered, on the basis of that examination, that those conditions are fulfilled, Article 7 provides that a phytosanitary certificate is to be issued.

12 It must be emphasized that the final sentence is intended only to show the maximum number of inspections by sampling which the Council considered justified taking account of the particular nature of the problem and the stage of development of Community law on the subject. From that point of view the final sentence is not inconsistent with the concept of occasional inspections.

T h e s t a t e m e n t of r e a s o n s for t h e c o n t e s t e d p r o v i s i o n

1 3 According to the Court's well-established case-law the extent of the duty to provide a statement of reasons prescribed in Article 190 of the Treaty depends on the nature of the measure in question. With regard to measures having general application the requirements of Article 190 are satisfied if the statement of reasons given explain in essence the measures laid down and a specific statement of reasons in support of all the details which might be contained in such a measure cannot be required, provided that such details fall within the general scheme of the measures as a whole. The statement of reasons for Directive N o 77/93 must therefore be examined in the light of those criteria.

1 4 The first eight recitals in the preamble to Directive N o 77/93 explain in some detail that the protection of plants against harmful organisms is absolutely necessary to avoid reduced yields and increase agricultural productivity and that it is necessary to re-organize plant-health inspection in the Community in conjunction with the gradual removal of obstacles to and checks on intra-Community trade. With regard to the latter the 12th recital states that plant-health inspection is carried out not only in the consignor country but also in the country of destination and that it is desirable to

C o m p l i a n c e w i t h A r t i c l e 30 of t h e T r e a t y

17 The plaintiff in the main proceedings contends in its observations submitted to the Court on this point that the inspections carried out in the Member State of destination constitute measures having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the EEC Treaty and that inspection of up to one-third of consignments cannot be justified under Article 36 in view of the examination carried out by the authorities of the consignor Member State.

18 Although it is true, as the Commission emphasized in its observations, that Articles 30 to 36 of the Treaty apply primarily to unilateral measures adopted by the Member States, the Community institutions themselves must

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also have due regard to freedom of trade within the Community, which is a fundamental principle of the common market.

19 Nevertheless is must be stated that Directive N o 77/93 is not intended to hinder intra-Community trade. On the contrary it seeks to achieve the gradual abolition of measures which were adopted unilaterally by the Member States and were, at the time, justified in principle by Article 36 of the Treaty, as the Court recognized in its preliminary ruling of 8 July 1975 on questions referred to it in an earlier dispute between the parties to the main proceedings in this case (Case 4/75 [1975] ECR 843). At the same time, the directive seeks to strengthen, in the general interest of the Community, the protection of agricultural products against the substantial damage which may be caused by harmful organisms.

23 The costs incurred by the Government of Ireland and by the Council and Commission of the European Communities, which have submitted obser- vations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs Ís a matter for that court.

On those grounds,

T H E C O U R T (Fifth Chamber),

in answer to the questions referred to it by the Verwaltungsgericht Köln by order of 18 January 1983, hereby rules:

Consideration of the penultimate and final sentences of Article 11 (3) of Council Directive No 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of harmful organisms of plants or plant products has disclosed no factor of such a kind as to affect the validity of those provisions.

Galmot Mackenzie Stuart