C-432/92

ANASTASIOU AND OTHERS

OPINION OF ADVOCATE GENERAL GULMANN delivered on 20 April 1994 *

Mr President, UK Minister for Agriculture who also repre- Members of the Court, sents the interests of other authorities in the case.

3. It further appears from the order for ref- 1. The High Court of Justice, Queen's erence that in October 1991 the applicants Bench Division, has referred questions to the requested confirmation from the respondent Court for a preliminary ruling in order to be that the competent UK authorities would no able to decide whether the British authorities longer allow the importation into the United are acting in breach of Community law in Kingdom of citrus fruits or potatoes origi- accepting imports of citrus fruit and potatoes nating in Cyprus which were not accompa- originating from the part of Cyprus to the nied by movement or phytosanitary certifi- north of the United Nations Buffer Zone cates issued by the competent authorities in when the products in question are not the Republic of Cyprus. The respondent accompanied by the necessary certificates of replied in December 1991 that the United origin and plant health issued by the author- Kingdom did not accept documentation, ities of the Republic of Cyprus. stamps or seals referring to the 'Turkish Republic of Northern Cyprus' and that it only permitted imports of the products in question from Cyprus in accordance with relevant Community legislation. That reply was clarified at the request of the applicants in March 1992, when the respondent inter alia stated:

2. It appears from the order for reference that the applicants in the main proceedings are a number of Cypriot producers and exporters of citrus fruit and the national marketing board for potatoes in Cyprus. The 'As far as the U K authorities are aware, any respondent in the main proceedings is the imports which may have entered from the Northern part of Cyprus will have entered the Community in accordance with the * Original language: Danish. Community requirements.'

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5. The requirement of a certificate of origin protective measures against the introduction in connection with imports from the Repub- into the Member States of harmful organisms lic of Cyprus dates back to the 1972 Associ- of plants or plant products (hereinafter ation Agreement between the European referred to as the 'plant health directive'). 4 Communities and the Republic of Cyprus. ' Under Article 12(l)(b) the certificates are to The Agreement introduces a preference be issued by authorities empowered for this arrangement for products from Cyprus. 2 purpose on the basis of laws or regulations The preference is conditional on evidence of the country. 5 Citrus fruits (other than being furnished that the products originate lemons) and potatoes are among the prod- in Cyprus. The requirement of evidence of ucts listed in Annex V imports of which are origin is contained in a Protocol of 1977 to be accompanied by phytosanitary certifi- concerning the definition of the concept of cates pursuant to Article 12 of the directive. Originating products' and methods of administrative cooperation (referred to here- inafter as the 1977-Origin Protocol 3 ). It appears from the Protocol that certificates — the so-called EUR.1 movement certificates (referred to hereinafter as certificates of ori- gin) — are to be issued by the 'customs authorities of the exporting State'.

7. The questions referred to the Court for a preliminary ruling read as follows:

6. The phytosanitary certificate requirement was introduced by Council Direc- tive 77/93/EEC of 21 December 1976 on

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by the Republic of Cyprus ("ROC"), (3) Would it make any difference to the does Community law: answers to (1) or (2) above if:

(a) preclude the Member State from (a) it were in practice impossible for permitting that importation? exporters from the part of Cyprus to the north of the U N Buffer Zone to obtain certification for their products from the ROC?

(b) require the Member State to accept those certificates?

(b) there were a significant impediment to exporters from the part of Cyprus to the north of the U N Buffer Zone exporting their products through the part of (2) Where the importation into a Member Cyprus under the effective control State of citrus products (other than of the government of the ROC? lemons) and potatoes from Cyprus is accompanied by phytosanitary certificates issued by the Turkish community in the part of Cyprus to the north of the U N Buffer Zone and not by officials duly authorized by the R O C , does Community law: (c) the procedures for the issue and verification of such certificates in the part of Cyprus to the north of the U N Buffer Zone were as dependable as the procedures in the part of Cyprus under the effective (a) preclude the Member State from control of the government of the ROC? permitting that importation?

experience from checks in the Member Further details of the factual and legal back- State were to show no distinction ground to the case between the standard of plant health of such products imponed from the p a n of Cyprus to the north of the U N Buffer Zone and from the part of Cyprus under the effective control of the ROC? 9. The serious issue on which the Court of Justice must rule in this case has its back- ground in the Turkish invasion of Cyprus in 1974 and the subsequent de facto partition of Cyprus into an area over which the authorities of the R O C continue to exercise full jurisdiction and an area — the part to the north of the U N Buffer Zone — where the R O C authorities cannot in fact exercise their constitutional powers. 6 The latter part of the island, where the majority of the Turkish (5) Is it relevant to the answers to ques- Cypriot population now lives, consti- tions 3(a) or (b) above to determine tutes 37% of the territory of Cyprus whether or to what extent any impossi- and today has approximately 130 000 inhab- bility or impediment was caused by the itants, that is to say one-fifth of the Turkish community in the part of total population of Cyprus of approxi- Cyprus to the n o n h of the U N Buffer mately 700 000 inhabitants. 7 Zone and/or by the R O C , and if so what difference does this make?' 6 — In the Commission's opinion on the application by the Republic of Cyprus for membership, Bulletin of the Euro- pean Communities Supplement 5/93, p. 7, it is stated: 'The existence of the Greelc and Turkish communities side by side, but differing in language, culture, religion and national traditions, conferred on the young republic a turbulent his- tory, uttered with crises and outbreaks of intercommunal violence, culminating in 1974 in a coup inspired by the sup- porters of integration with Greece. This resulted in a military intervention by Turkey. The outcome of the crisis of August 1974 and the occupation of part of the territory of Cyprus by the Turkish army was the de facto partition or the island, which ted to large-scale population movements across the cease-6re line and, more especially, from the northern to the southern part of the islancf .

The discus- sions were resumed in the spring of 1993 and although it is Irish Government and two companies which hoped that they may lead to a final agreement, the possibility of continuing disagreements can stillnot be ruled out.' export citrus fruit and potatoes from the part of Cyprus to the n o n h of the Buffer Zone 7 — According to the Commission's opinion on the application by the Republic of Cyprus for membership, p. 11, there is and import them into the Community also also a Turkish military force some 30 000 strong and between 45 000 and 50 000 Turkish settlers on that part of put forward observations. the island.

12. In November 1983 the Turkish commu- nity in the part of Cyprus to the north of U N Buffer Zone proclaimed itself an inde- 14. It may be assumed that exports from the pendent State with the name 'the Turkish part of Cyprus to the north of the Buffer Republic of Northern Cyprus'. The U N Zone take place exclusively directly from Security Council reacted against the attempt that part of Cyprus and that essentially they to set up such a State. By Resolu- consist of agricultural products, the major tion 541/1983 the Security Council pro- part of which goes to the Community and nounced the declaration of secession to be Turkey. 'legally invalid and [called] for its withdraw- al'. In Resolution 550/1984 the Security Council repeated 'the call upon all States not to recognize the purported state of the "Turkish Republic of Northern Cyprus" set up by secessionist acts and [called] upon them not to facilitate or in any way assist the 15. In its observations the Commission has aforesaid secessionist entity'. N o States other explained that the special problems which

8 — Security Council Resolutions 353/1974, 354/1974, 355/1974, 9 — France, the United Kingdom and the Netherlands, which at 357/1974, 358/11974, 360/1974 and 365/1974 and General the material time was also a member of the Security Council, Assembly Resolution 3212/XXIX. all voted for Resolutions 541 and 550.

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17. The Commission stated that it held and continues to hold the view that it is lawful for the authorities of the Member States to accept imports from the part of Cyprus to the north of the Buffer Zone if the products 20. The Commission recognizes, however, in question are accompanied by the required that its line of conduct in this area has not certificates of origin and plant health issued been absolutely consistent. Thus at the end by the Turkish community in that part of of 1989, after the Commission had received Cyprus, provided that those certificates are complaints about variations in the treatment not issued by the Turkish Republic of of phytosanitary certificates, Guy Legras, Northern Cyprus' or other equivalent desig- Director-General of D G VI (Agriculture) nation. sent a letter to the Permanent Representa-

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tives of the Member States in Brussels, stat- on the ground that the letter did not consti- ing inter alia: tute a decision within the meaning of Arti- cle 173 of the EEC Treaty.

11 — Besides the United Kingdom the following Member States were mentioned: Belgium, France, Germany, Ireland, Italy 10 _ [1991] ECR 1-2917. and the Netherlands.

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The significance of Questions 3 and 4 as dependable and safe in the part of Cyprus to the north of the U N Buffer Zone as the procedures in the part of the island under the effective control of the Government of the ROC.

25. The High Court's questions are formu- lated, as will be seen, so that the first two questions ask whether, in connection with the importation of products from the part of Cyprus to the north of the Buffer Zone, it is possible for the authorities in the Member States to accept certificates issued by the Turkish community in that part of Cyprus 26. The United Kingdom Government and the subsequent questions ask whether it maintains that on the facts it must be would make any difference if certain specific assumed either that it is de facto impossible factual conditions were satisfied. or at least that there are significant impedi- ments to exporters from the part of Cyprus to the north of the U N Buffer Zone export- ing without using certificates issued by the Turkish community in that part of Cyprus. It is also contended by the UK Government that verification procedures both in respect The first and second part of Question 3 seek of origin and plant health have proved clarification on whether it would make any dependable in practice in connection with difference to the answers to the first two exports from that part of Cyprus. The Com- questions if it were in practice impossible for mission appears essentially to hold the same exporters from that part of Cyprus to obtain view as the UK Government and to base its the certificates in question from the compe- opinion in the case on that view. 12 tent authorities in the Republic of Cyprus or there were a significant impediment to exporters who might wish to export their products through the part of the island under the effective control of the Govern- ment of the R O C .

In my view it is appropriate to take as a starting point the view adopted by the Questions 1 and 2 United Kingdom authorities and the Com- mission.

29. Questions 1 and 2 are on parallel Unes. The first concerns certificates of origin, the second phytosanitary certificates. Prima facie In the first place, in their construction of the it would appear reasonable to assume that relevant Community rules the United King- the questions should be answered in the dom authorities seem to have attached same way. The key question in the case is weight to the fact that acceptance of the cer- whether certificates issued by organs which, tificates in question is necessary and other- according to the letter of the relevant rules, wise justifiable because the facts are what do not have authority to issue the certificates they claim them to be. in question may nevertheless, having regard

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to the particular circumstances, be recog- First question nized by the authorities in the Community Member States. Among those who have sub- mitted observations in the case there is agreement that the two questions can be answered in the same way.

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shall be carried out at random or whenever The U K Government points out that the the customs authorities of the importing objective of the Association Agreement is State have reasonable doubt as to the authen- the progressive elimination of obstacles as ticity of the document or the accuracy of the regards trade between the Community and information regarding the true origin of the Cyprus and thus to contribute to the devel- goods in question'. Article 24(2) provides: opment of international trade. Cooperation 'For the purpose of implementing para- is to be achieved gradually and is therefore graph 1, the customs authorities of the divided into several stages. The provisions importing State shall return the movement relied upon by the applicants form part of certificate EUR.l ... to the customs authori- the Protocol which deals with the adminis- ties of the exporting State, giving, where trative arrangements concerning verification appropriate, the reasons of form or substance of the origin of products. When account is for an inquiry.' Article 24(3) provides 'The taken of the wording and context of the pro- customs authorities of the importing State visions, they cannot, in the U K Govern- shall be informed of the results of the verifi- ment's view, have direct effect in national cation as quickly as possible ... If such dis- courts. putes cannot be settled between the customs authorities of the importing State and those of the exporting State, or if they raise a ques- tion as to the interpretation of this Protocol, they shall be submitted to the Customs Cooperation Committee.'

38. In a number of cases the Court has also laid down that equivalent provisions in the Community's trade agreements with other non-member countries can be applied by 40. The United Kingdom Government and national courts. 1 4 the Commission do not dispute that the cer- tificates accepted as evidence of the origin of products from the part of Cyprus to the north of the Buffer Zone are not issued by the authorities who are competent under the Association Agreement and that, as a conse- Interpretation of the 1977 Origin Protocol quence of the non-recognition of that part of Cyprus, it is impossible to achieve the full cooperation between the competent authori- ties for which provision is made in the Ori- gin Protocol.

44. The United Kingdom Government and the Commission are of the opinion that the necessary inferences of non-recognition of the part of Cyprus to the north of the U N Buffer Zone are drawn if it is certain that the Community Member States refuse certifi- 42. It is claimed that when the Agreement cates issued under the designation 'Turkish was concluded it was made clear that the Republic of Northern Cyprus' or the like trade benefits consequent on the Agreement and if the Community institutions and the should be available to the entire population authorities of the Member States avoid offi- of Cyprus and it was inter alia for that pur- cial contact with the Turkish community on pose that the non-discrimination provision that part of Cyprus. in Article 5 was inserted. The rules of origin must therefore be interpreted so as not to prevent implementation of the primary objective of the Agreement, which is the progressive elimination of impediments to trade between Cyprus and the Community. Reference is made to Article 3 of the Associ- ation Agreement, according to which the Contracting Parties are obliged to ... 'refrain De facto acceptance of certificates of origin from any measure likely to jeopardise the issued by authorities other than the compe- achievement of the aims of the Agreement'. tent authorities of the R O C is a necessary and proper manifestation of regard for the entire population of Cyprus which is an explicit and essential consideration in the interpretation and application of the provi- sions of the agreement.

43. The Commission draws support for its 15 — Legal Consequences for States of the Continued Presence view of the law from the Opinion of the of South Africa in Namibia (South West Africa) notwith- standing Security Council Resolution 276 (1970), Advisory International Court of Justice in the Opinion, ICJ Reports 1971.

47. It is, in my opinion, indisputable that the de facto partition of the territory of Cyprus which was the consequence of Turkey's inva- sion of the island gave rise to many problems for the Community which are difficult to resolve when it is borne in mind that the 50. Preferential treatment accorded to the Agreement continued to apply to the whole Turkish community presupposes the accep- of Cyprus. tance of certificates issued by bodies which are not competent under the rules of the Association Agreement. It also presupposes the acceptance of certificates issued by bod- ies with which the authorities of the Member States — as a consequence of the non- 48. If, at the same time, it is borne in mind recognition policy adopted by the U N — do that the Agreement should continue to ben- not cooperate. That involves not merely an efit the entire population of Cyprus to the infringement of the rules of the Agreement

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concerning who is formally competent to made by the authorities of the exporting issue the certificates, but also, and especially, country. difficulty in complying with the rules con- cerning subsequent administrative coopera- tion, which is of crucial importance for the effective functioning of the rules of origin.

51. The importance of that cooperation has been emphasized several times by the Court, for example in its judgment in Case 218/83 Les Rapides Savoyards 16 where, in connec- There is no danger that the application of tion with equivalent rules in the Free-trade those provisions may encourage abuses, in Agreement with Switzerland, the Court view of the fact that Articles 16 and 17 of stated: Protocol N o 3, in particular in their new ver- sion, have set out in detail the methods of cooperation between the customs authorities concerned, where the origin is contested or where the exporters or importers have acted fraudulently.' (paragraphs 26-28).

It can further be assumed that, in their dis- cussions concerning their reaction to the de facto partition of Cyprus, the Member States stressed the importance of the agreement's continuing to benefit the entire population and that at least at that point there was understanding for that point of view in the Association Council in relation to trade 55. It is, moreover, clear that to some extent between Cyprus and the Community as it is possible to have regard for the entire well. population of Cyprus on the basis of the applicable provisions. Thus there is evidence in the case to show that the Agreement con- tinues to benefit the entire population, since the Financial Protocol concluded between the parties is administered so as to ensure that resources made available by the Com- munity are in practice used for purposes from which the population north of the Buffer Zone can also derive benefit. 53. It does not, however, follow that efforts to allow the agreement to benefit the entire population of Cyprus — even in completely altered circumstances — can involve depar- ture from essential rules in the Agreement taken as a whole which form the basis for the Agreement's functioning in accordance with its purpose. The efforts must take place within the framework that ensues from the Agreement and with all due consideration 56. As stated, the alleged need to interpret for the legitimate interests of the other con- the Agreement's rules so as to enable them tracting party. to apply with regard to the population to the

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Inter alia the ICJ stated:

58. The paragraph from the ICJ Opinion cited by the Commission has in my view, however, little, if any, relevance to the — 'With respect to existing bilateral treaties, present case. The Commission reads too member States must abstain from invok- much into the ICJ's emphasis on the need to ing or applying those treaties or provi- take account of the affected population's sions of treaties concluded by South interests and underestimates the importance Africa on behalf of or concerning of the real differences between the two situ- Namibia which involve active intergov- ations. ernmental cooperation' (paragraph 122),

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— 'The restraints which are implicit in the important in connection with the ICJ's find- non-recognition of South Africa's pres- ing that the sanctions should not extend to ence in Namibia and the explicit provi- include official acts benefiting individual sions of paragraph 5 of resolution 276 Namibians recognition of which could not, (1970) impose upon member States the to all practical intents and purposes, lend obligation to abstain from entering into support to the South African presence in economic and other forms of relationship Namibia. or dealings with South Africa on behalf of or concerning Namibia which may entrench its authority over the Territory' (paragraph 124),

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60. It cannot, moreover, be assumed that the been in that legal viewpoint and the ques- legal view expressed by the Commission and tion, raised by the Greek Government, of the United Kingdom Government corre- how in fact the stamps referred to were sup- sponds to the view generally accepted in the plied to all the Member States, I do not con- Community. It is one thing to take the view sider that the Commission's view and conse- that the Agreement should as far as possible quent course of action can be attributed any benefit the entire population; it is another to decisive independent weight. In its order in draw the inference on that basis that the the Sunzest case 1S the Court emphasized authorities of the Member States can or that 'no provision in Directive 77/93/EEC should accept certificates other than those confers on the Commission power to adopt issued by the competent authorities of the decisions on its interpretation, so that the R O C . In discussions with the Council the Commission merely has the possibility, Member States have, as stated, always been which is always open to it, of expressing an unanimous that the Agreement should in opinion which is not binding on the national principle benefit the entire population but authorities' (paragraph 13). The same holds did not seem to be unanimous in drawing true, in my view, as far as certificates of ori- the same inference as far as recognition of gin are concerned. certificates is concerned.

'Turkish-Cypriot undertakings' — certain acting within the bounds of a correct inter- other Member States did so. Conversely, it is pretation of the relevant Community rules. also certain that the Greek authorities have never done so and the Irish Government stated at the hearing that it did not share the Commission's legal viewpoint. There is thus no uniform view among the Community Member States. 66. Reference to the common commercial policy is, nevertheless, significant for another reason. It draws attention to the fact that a legal situation in which Community rules are not interpreted and applied uniformly in the Member States when products are imported from Cyprus is in principle a breach of the requirements which ensue from the existence 63. Considerable importance should be of a common commercial policy. In that area attached to that regrettable situation, in my it is unacceptable — just as it is in all other opinion. areas regulated by Community law — for Community rules to be interpreted and applied in different ways in the Member States, unless there is a clear basis otherwise. In the area of common commercial policy it is especially important for the Community rules to be treated uniformly, because appli- cation of the law by the importing State can directly affect other Member States as a con- 64. It is relevant to the argument adduced by sequence of the free movement of products the Greek Government and the applicants in in the internal market. the main proceedings, according to whom the UK authorities' application of the Asso- ciation Agreement represents a breach of the rules of the Treaty on common commercial policy. Their line of reasoning is that in the way they deal with the situation the British authorities have independently assumed a 67. Even if, as stated, it is to some extent power to depart from common rules which understandable that the Commission, in the apply to the importation of products from present quite special circumstances, believed non-member countries. that it did not have sufficient reason to attempt to ensure uniformity in the applica- tion of the law by the Member States, it is not possible to uphold such a legal position.

71. The Plant Health Directive provides, as stated, in Article 12(l)(b) that the certificates are to be issued by 'authorities empowered for this purpose on the basis of laws or reg- ulations of the country'. 69. Until the Commission's proposals have led to changes in the rules applicable, it does not seem to me possible to arrive at any other result but that the common legal posi- tion applicable to all Member States must be that which follows from the Association Agreement's express rules, namely that the authorities of the Member States are not 72. The basic arguments in the observations empowered to accept certificates of origin with regard to the question of the lawfulness issued by authorities other than the compe- of accepting phytosanitary certificates issued tent authorities of the R O C . by authorities other than the lawful authori- ties of the R O C are the same as those put forward in connection with certificates of origin.

Questions 3 to 5

74. It is significant that, with the amend- ments to the directive which entered into force on 1 June 1993, a system has been introduced whereby in future products cov- ered by the directive, once they have been imported and examined in one Member 76. It will be recalled that Questions 3 and 4 State, can be freely distributed in the entire asked whether it would make any difference Community. 1 9 The new rule increases the if the exportation of products from the part need for uniform administration of the rules of Cyprus to the north of the Buffer Zone when products are imported from Cyprus. accompanied by certificates issued by the Hitherto Member States to which products competent authorities of the R O C was imported into one Member State were impossible, or significantly impeded, and if re-exported within the Community could, the certificates issued by the Turkish com- according to the information available, pre- munity were just as dependable as those vent importation by refusing to issue a spe- issued by the authorities of the R O C . cial reforwarding certificate which had to accompany those products.

77. It will also be recalled that in replying to 75. In my opinion there is no reason in the the two first questions I found it appropriate matter under discussion to apply an interpre- to proceed on the basis that expons from the tation other than that applied in connection part of Cyprus in question were significantly impeded if they could not take place with certificates issued by the Turkish community 19 — See Directive 93/19/EEC OJ 1993 L 96, p. 33. in the part of Cyprus to the north of the

79. However, in my opinion there is reason to take note of the Greek Government's remarks concerning the question of the actual feasibility of effecting exports of prod- ucts from the part of Cyprus to the north of the Buffer Zone with certificates issued by 81. There is unanimity amongst those who the authorities of the R O C . First, the Greek have submitted observations in this case that Government claims that it was the Turkish it is irrelevant to the reply to the part of community north of the Buffer Zone which Question 3 concerning any impossibility for itself took the decision not to use export cer- or impediment to exporters how far such tificates issued by the authorities of the impossibility or impediment might be caused R O C and, in the Greek Government's view, by the Turkish community in Cyprus to the the situation is that the authorities of the north of the Buffer Zone. R O C , in accordance with the rules of the Association Agreement and the directive, will indeed issue the necessary certificates for products from the part of Cyprus to the north of the Buffer Zone provided they can undertake the necessary checks in conjunc- tion with export through R O C ports and airports. The Government takes the view that — if that premise were proved wrong — 82. Subject to any qualification that might the situation would be different from that ensue from the situation discussed in para- which now exists. graph 8 1 1 agree on that point.

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83. I would refer to the foregoing comments myself in my Opinion to answering the first concerning the significance of Questions 3 two questions. to 5 and consider I am justified in confining