C-249/92

COMMISSION v ITALY

OPINION OF ADVOCATE GENERAL LENZ delivered on 28 September 1993 *

Mr President, effect, along with its obligations under the Members of the Court, second sentence of Article 11(1) of Direc­ tive 77/93/EEC on protective measures against the introduction into the Member States of harmful organisms of plants or 2 plant products.

A — Introduction

1. The Commission has brought the present 3. The Italian Government argues that prior Treaty infringement proceedings against the authoriz-ation is necessary in order to Italian Republic on the ground of the intro­ counter the danger of the entry and spread duction and maintenance by the Italian Min­ of Erwinia amylovara, a bacterium capable istry of Agriculture and Forestry of a of infecting plants with fire blight. In its requirement of prior authorization for the opinion, the measure is consistent with Arti­ importation of certain plants from other cle 36 of the EEC Treaty and with Arti­ Member States. cles 5(2) and 11 of Directive 77/93/EEC.

2. The Commission's view is that the defen­ dant Member State is thereby in breach of its obligations under Article 30 of the EEC Treaty in conjunction with Article 10(1) of 4. Against this, the Commission contends Regulation (EEC) No 234/68 of the Council that the requirement of authorization is not of 27 February 1968 on the establishment of covered by the provisions of Direc­ a common organization of the market in live tive 77/93/EEC and also that Member States, trees and other plants, bulbs, roots and the in an area of full harmonization, are not like, cut flowers and ornamental foliage, 1 allowed to adopt measures which go beyond which specifically prohibits any quantitative the provisions of Community law. restriction or measure having equivalent

B — Opinion

— Article 30 of the EEC Treaty in con­ junction with Article 10(1) of Regu­ lation (EEC) No 234/68 of the 8. The Commission does not object to the Council of 27 February 1968 on the ban on the importation of certain plants sus­ establishment of a common organiza­ ceptible to infection by Erwinia amylovara tion of the market in live trees and imposed every year between 16 April other plants, bulbs, roots and the and 31 October pursuant to Article 4(2)(a) of like, cut flowers and ornamental foli­ Directive 77/93/EEC in conjunction with age; and Annex III, Part B(10) thereto, as amended by Directive 84/378/EEC. 3 Directive 84/378/EEC was, inter alia, expressly adopted to improve the protective measures against harmful organisms such as Erwinia

(ii) order the Italian Republic to pay the 3 — Council Directive 84/378/EEC of 28 June 19S4 amending costs. the annexes to Directive 77/93/EEC (OJ 1984 L 207, p. 1).

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COMMISSION v ITALY

amylovam. In addition to the possibility of Member State of the plants, plant products imposing a temporaiy import ban, a number and other objects listed ..., that the latter and of Member States (of which Italy was one) their packaging shall be meticulously exam­ were authorized to require additional official ined on an official basis, either in their statements. 5 Article 5(2)(b) of Directive entirety or by representative sample, and 77/93/EEC refers to these additional that, if necessary, the vehicles transporting requirements in the following terms: them shall also be officially examined ...:

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OPINION OF MR LENZ — CASE C-249/92

As evidence of the inspections carried out, compliance with the prohibitions and restric­ Article 7 provides that: tions laid down in Articles 3, 4 and 5. Member States shall ensure that these plants, plant products and other objects, where their introduction is not prohibited under Arti­ cle 3, 4 or 5, are not subjected to prohibi­ 'Where it is considered, on the basis of the tions or restrictions relating to plant-health examination laid down in Article 6, that the measures except where: conditions therein are fulfilled, a phytosani- tary certificate shall be issued ...'.

Article 9 of the directive provides that the (a) the certificates referred to in Article 4, 10 phytosanitary certificate required pursuant 5, 7, 8 or 9 are not produced; to Article 7 in the case of plants listed in Annex IV, Parts A and B, must be issued in the country of origin. Subheading B of Annex IV, Part B(7a), requires the plants and the certificate provided for under Article 7 to bear a special official distinctive mark. (b) [deleted] 11

10. With regard to the inspections which may be carried out by the Member State in which the plants are imported, Article 11 of (c) the plants, plant products or other the directive sets out a complex system of objects are not submitted as laid down rules. In the version applicable to the present in the regulations to an official inspec­ 7 proceedings, Article 11 reads as follows: tion permitted in accordance with para­ graph 3;

4. ...

3. Member States may not supplement the measures permitted under the second sen­ tence of paragraph 1 by systematic official 5. Member States shall lay down that the checks on compliance with the provisions phytosanitary certificates ... produced when adopted pursuant to Articles 3 and 5, the plants, plant products or other objects 1 except 2 where: are introduced into their territory shall bear an entry stamp from the competent organiz­ ation showing at least the name of the orga­ nization and the date of entry.

(a) there is serious reason to believe that one of these provisions has not been complied with;

6. ...'

(b) the plants referred to above originate in a non-member country ... 13 — Emphasis added. 14 — The ]ASļ n v o sentences were only added to the second sub­ paragraph of Article 11(3) of Directive 77/93/EEC by Directive 88/572/EEC, Article 2 of which required Member States to bring into force the laws, regulations or adminis­ trative provisions necessary to comply with the directive 12 — Emphasis added. by 1 January 19S9 at the latest.

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'... if a plant-health check carried out in the consignor Member State constitutes a guar­ 13. Under the structural principles of full antee that the products are free from harmful harmonization, Member States may as a rule organisms, it is possible to dispense with the introduce derogations from or create excep­ systematic checks carried out in the Member tions to the Community provisions only State of destination ...'. within the limits of the authorization con­ tained in the harmonization provisions themselves. It is common ground that the defendant Member State was entitled to impose special requirements on the basis of Article 5(2) in conjunction with Annex IV, Part B(7a). The only question arising con­ A fundamental objective of the harmoniza­ cerns the manner in which it may monitor tion provisions is thus to dispense with compliance with those requirements. As fail­ inspections in the Member State of destina­ ure to meet the special requirements entitles tion. The question whether the Member the Member State in question to 'ban the State of destination can require prior ministe­ introduction' into its territory of the plants, rial authorization for the importation into its plant products and other objects, 15 there territory of specified plants must be would appear to be no doubt that the inspec­ answered by reference to the rules contained tion in question must be effective and carried in the directive, which are not entirely free out in good time. from ambiguity in that regard.

15. In interpreting Article 11 of the direc­ tive, care must be taken to draw a clear dis­ tinction as regards permissible inspections between those which are physical and those which are formal in nature. The first sen­ tence of Article 11(1) allows physical inspec­ tions to be carried out in order to ascertain compliance with the prohibitions and restric­ tions concerning plants, plant products and other objects and their packaging and the vehicles transporting them, as laid down, inter alia, in Article 5. The scope of the per­ 17. In my opinion, several factors argue in missible inspections is determined by refer­ favour of a finding that such checks may be ence to Article 11(3), which provides that carried out only once the goods have been systematic official checks are to be allowed introduced into the territory of the Member (under indent (a), which alone is relevant to State and not, for instance, at some time pre­ the present proceedings) only where there is viously through the medium of the disputed serious reason to believe 'that one of these authorization. In the first place, one must provisions has not been complied with'. In proceed according to the wording of the first all other cases, only occasional inspections sentence of Article 11(1), which in this may be carried out by way of sampling. regard is unambiguous. Another factor is the provision repealed by Directive 1 89/439/EEC, 7which authorized prohibi­ tions and restrictions in the case where plants, plant products and other objects were not brought into the territory of the Member State through the prescribed entry-points. The underlying requirement that the pre­ 16. On the other hand, formal checks may scribed entry-points be used enables, and systematically 16 be carried out on the basis indeed compels, effective supervi-sion to be carried out at the borders and, if necessary, imposes a ban on the introduction of the 16 — The permissibility of systematic checks follows from the wording of the first subparagraph of Article 11(3): 'Member States may ... supplement the measures permitted under the second sentence of paragraph 1 by systematic official checks ...'. 17 — To be transposed into national law by 1 January 1990.

18 — Judgment in Case 124/81 Commission v United Kingdom [1983] ECR 203; judgment in Case C-235/91 Commission v Ireland [1992] ECR I-5917. 19 — Judgment in Case 5/77 Tedeschi v Denkamt Commerciale [1977] ECR 1555; judgment in Case 148/78 Pubblico Min- istero v Ratti [1979] ECR 1629; judgment in Case 251/78 Denkavit Futtermittel v Minister für Ernährung, Land- 19. In conclusion, therefore, my opinion is wirtschaft und Forsten des Landes Nordrhein-Westfalen that the Italian Government was not entitled, [1979] ECR 3369; judgment in Case 190/87 Oberheis- direktor des Kreises Borken and Another v Handels- on the basis of the directive, to require prior onderneming Moormann [1988] ECR 4689.

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C — Conclusion

22. In the light of the above, I propose that the Court should:

(1) declare that, by requiring prior authorization for the introduction into Italian territory of plants susceptible to fire blight, the Italian Republic has failed to comply with its obligations under