C-249/92

JUDGMENT OF 20. 9. 1994 — CASE C-249/92

JUDGMENT OF THE COURT 20 September 1994 *

In Case C-249/92,

Commission of the European Communities, represented by Eugenio de March, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, of the Commission's Legal Service, Wagner Centre, Kirchberg,

applicant,

v

— Article 11 of Council Directive 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 (OJ 1977 L 26, p. 20) ('the directive'), as amended by Council Directive 88/572/EEC of 14 November 1988 (OJ 1988 L 313, p. 39) and Council Directive 89/439/EEC of 26 June 1989 (OJ 1989 L 212, p . 106); and

— Article 30 of the EEC Treaty, in conjunction with Article 10(1) of Regulation (EEC) No 234/68 of the Council of 27 February 1968 on the establishment of a common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage (OJ, English Special Edi­ tion 1968(1), p. 26),

THE COURT,

composed of: G. E Mancini, President of Chamber, acting as President, M. Diez de Velasco and D. A. O . Edward (Presidents of Chambers), C. N . Kakouris, R. Joliét, F. A. Schockweiler, G. C. Rodríguez Iglesias, P. J. G. Kapteyn and J. L. Murray (Rapporteur), Judges,

Advocate General: C. O. Lenz, Registrar: L. Hewlett, Administrator,

having regard to the Report for the Hearing,

1 By application lodged at the Court on 27 May 1992, the Commission of the Euro­ pean Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by requiring prior authorization for all imports of plants suscep­ tible to fire blight (Erwinia amylovara), the Italian Republic has failed to fulfil its obligations under

— Article 11 of Council Directive 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 (OJ 1977 L 26, p. 20), as amended by Council Directive 88/572/EEC of 14 November 1988 (OJ 1988 L 313, p. 39) and Coun­ cil Directive 89/439/EEC of 26 June 1989 (OJ 1989 L 212, p . 106); and

— Article 30 of the EEC Treaty, in conjunction with Article 10(1) of Regulation (EEC) No 234/68 of the Council of 27 February 1968 on the establishment of a common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage (OJ, English Special Edi­ tion 1968 (I), p. 26).

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COMMISSION v ITALY

2 The Italian Republic introduced two measures designed to prevent the spread within its territory of Erwinia amylovora, a bacterium commonly known as 'fire blight', which destroys certain plant species. The first measure consists in the pro­ hibition, between 16 April and 31 October each year (the period favourable to the spread of the bacterium), of the importation of susceptible species, as permitted under Annex III, Point B(10), to the directive, as amended by Council Direc­ tive 84/378/EEC of 28 June 1984 (OJ 1984 L 207, p. 1). The second measure at issue in this case imposes a requirement of prior authorization for imports of those species during the rest of the year.

According to information supplied to the Commission by individuals and not con­ tested by the Italian Republic, the period required for the issue of authorizations may amount to, and even exceed, four and a half months. The products cannot be imported so long as authorization has not been granted.

6 Paragraph 17 of Annex III, referred to in the abovementioned national provision, sets out the species susceptible to fire blight which are subject to protective mea­ sures. It is common ground that the measures relating to these plants form the subject-matter of these proceedings.

7 Those plants are as follows:

'Chaenomeles Lindi., Cydonia Mill., Malus Mill., Pyracantha M. J. Roem, Pyrus L., Sorbus L. other than Sorbus Intermedia L. and Stranvaesia Lindi, other than fruit and seeds.'

8 The measures to be adopted by Member States with a view to preventing the intro­ duction or spread of fire blight within the Community were harmonized by the directive, as amended at the date on which the pre-litigation procedure began (dis­ patch of the letter of formal notice on 20 March 1990), in particular by Direc­ tives 88/572 and 89/439, cited above.

9 Under the directive, the Member State of origin must meticulously examine plants grown within its territory in order to detect the presence of any harmful organisms (Article 6). If the plant is healthy, that State must issue to the trader concerned a certificate attesting to the good condition of the product and certifying that the

(a) the certificates referred to in Article 4, 5, 7, 8 or 9 are not produced;

(b) [deleted]

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JUDGMENT OF 20. 9. 1994 — CASE C-249/92

(c) the plants, plant products or other objects are not submitted as laid down in the regulations to an official inspection permitted in accordance with para­ graph 3;

2. They shall not require any additional declaration on the certificates referred to in Article 4, 5, 7, 8 or 9.

products. Member States shall take the appropri-ate steps to ensure that the carrying-out of these inspec-tions at the border is progressively reduced, save in cases specified in accordance with the procedure laid down in Article 16. They shall be carried out either at the place of destination of the plants, plant products or other objects, or at another designated place instead, provided that the routing of the plants, plant products or other objects is interfered with as little as possible.'

The compatibility of the Italian rules with the directive

12 The Commission argues that the Italian rules are contrary to Article 11 of the directive in so far as those rules, in contrast with Article 11, make the importation into Italian territory of plants originating in other Member States subject to prior authorization and that requirement is applied systematically to all the products concerned, whereas the directive limits to certain specified cases the inspections which may be carried out within the Member State of destination. The action chal­ lenges the requirement of prior and systematic authorization in itself and not the delay on the part of the competent authorities in dealing with some requests for authorization.

13 The Italian Government contends that the system of prior authorization is lawful on the ground, first, that it makes it possible to monitor compliance by traders with the substantive requirements imposed by the directive and, second, that the option of inspecting plants brought into the national territory is provided for in Article 11 of the directive.

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18 The Italian Government raises the objection that the directive sets out substantive requirements for the protection of plants but does not introduce any machinery which would make it possible to monitor compliance with those requirements. In its view, it is a matter for the Member States to introduce the inspection measures which they deem necessary to that end.

19 That objection cannot be accepted.

20 In the first place, the aim of the directive is to remove barriers to trade while reor­ ganizing phytosanitary inspections within the Community. Second, in order to achieve that aim a system has been introduced under which the Member State of origin determines whether the products satisfy the relevant health requirements, the measures permitted in the State of destination being strictly limited. The view must therefore be taken that the directive is designed to harmonize all inspection measures relating to plants and that Member States consequently no longer have the power to lay down such measures unilaterally at national level (see, to the same effect, the judgment in Case 29/87 Dansk Denkavit v Danish Ministry of Agricul- ture [1988] ECR 2965, paragraph 16).

21 It should also be noted that Article 11(3) of the directive provides, first, that sys­ tematic inspections may be carried out only if there is serious reason to believe that the directive is not being complied with or if the plants originate in a non- member country and, second, that in all other cases only occasional inspections may be carried out by way of sampling. Inspections are deemed to be occasional if they are made on no more than one-third of the consignments introduced from a

24 The Commission submits that the requirement of prior authorization constitutes an unjustified barrier to Community trade and that it contravenes Article 30 of the Treaty in conjunction with the second indent of Article 10(1) of Regulation No 234/68, cited above.

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25 Article 10 of Regulation No 234/68 is worded as follows:

'The following shall be prohibited in the internal trade of the Community:

— any quantitative restriction or measure having equivalent effect'.

27 In that regard, suffice it to note, with reference to paragraph 20 above, that, in con­ trast to the contention of the Italian Government, the directive introduced a con­ sistent and exhaustive set of measures capable of being implemented in order to ensure the protection of plants within the Community. Where, in application of Article 100 of the Treaty, Community directives provide for the harmonization of the measures necessary to ensure the protection of animal and human health and establish Community procedures to check that they are observed, recourse to Article 36 is no longer justified and the appropriate checks must be carried out and the protective measures adopted within the framework outlined by the harmoniz­ ing directive (see, in particular, the judgment in Case 5/77 Tedeschi v Denkavit [1977] ECR 1555, at paragraph 35). The same solution applies where a directive harmonizes the measures necessary for the protection of plants.

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JUDGMENT OF 20. 9. 1994 — CASE C-249/92

28 In those circumstances, it must be held that, by requiring prior authorization for all imports of plants susceptible to fire blight (Erminia amylovara), the Italian Republic has also failed to fulfil its obligations under Article 30 of the Treaty in conjunction with Article 10(1) of Regulation No 234/68.

Costs

29 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. As the Italian Republic has been unsuccessful, it must be ordered to pay the costs.

COMMISSION v ITALY

harmful organisms of plants or plant products, as amended by Council Directive 88/572/EEC of 14 November 1988 and Council Directive 89/439/EEC of 26 June 1989; and

— Article 30 of the EEC Treaty, in conjunction with Article 10(1) of Regu­ lation (EEC) No 234/68 of the Council of 27 February 1968 on the estab­ lishment of a common organization of the market in live trees and other plants, bulbs, roots and the like, cut flowers and ornamental foliage.

2. Orders the Italian Republic to pay the costs.

Mancini Diez de Velasco Edward

Kakouris Joliet Schockweiler