C-106/97

OPINION OF MR LA PERGOLA — CASE C-106/97

O P I N I O N OF ADVOCATE GENERAL LA PERGOLA delivered on 15 September 1998 *

1. In the present proceedings for a preli- of milk used in the production of milk- minary ruling, the College van Beroep voor based products for human consumption het Bedrijfsleven (administrative court of ...'. 3 For the purposes of this Opinion, last instance in matters of trade and Chapter III (Articles 22 to 26) entitled industry) has asked the Court for clarifica- 'Imports from third countries' is more tions regarding the interpretation and particularly relevant. Article 22 provides validity of Council Directive 92/46/EEC that 'the conditions applicable to imports of 16 June 1992 laying down health rules from third countries of raw milk, heat- for the production and placing on the treated milk and milk-based products cov- market of raw milk, heat-treated milk and ered by this Directive must be at least milk-based products (hereinafter 'Directive equivalent to those laid down in Chapter II 92/46/EEC'), 1 with particular regard to for Community production.' Article 23 of that directive, as well as of Commission Decision 94/70/EC of 31 Jan- uary 1994 drawing up a provisional list of third countries from which Member States authorise imports of raw milk, heat-treated Article 23 reads as follows: milk and milk-based products (herineafter 'Decision 94/70/EC'). 2The Court is more specifically called upon to determine whe- ther, for the purposes of those instruments, the Netherlands Antilles is to be regarded '1. For the purposes of uniform application as a third country. of Article 22, the provisions of the follow- ing paragraphs shall apply.

(a) a provisional list of third countries or parts of third countries able to provide Member States and the Commission The experts from the Member States with guarantees equivalent to those responsible for these inspections shall be provided for in Chapter II and a list appointed by the Commission, acting on a of the establishments for which they proposal from the Member States. are able to give these guarantees.

These inspections shall be made on behalf of the Community, which shall bear the This provisional list shall be compiled cost of any expenditure in this connection. from the lists of establishments The frequency of and procedure for these approved and inspected by the compe- inspections, including those to be carried tent authorities, once the Commission out in the event of a decision in accordance has checked that these establishments with paragraph 6, shall be determined in comply with the principles and general accordance with the procedure laid down rules laid down in this Directive; in Article 31.

(b) updates of that list in the light of the 5. Pending the organisation of the inspec- checks provided for in paragraph 4; tions referred to in paragraph 4, national

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OPINION OF MR LA PERGOLA — CASE C-106/97

rules applicable to inspection in third The specimen certificate shall be drawn countries shall continue to apply, subject up in accordance with the procedure to notification, through the Standing Veter- laid down in Article 31, inary Committee, of any failure to comply with hygiene rules found during these inspections.

DADI AND DOUANE-AGENTEN V RIJKSDIENST VOOR DE KEURING VAN VEE

(b) which, in view of their legislation and Northern Ireland which are not included in the organisation of their competent the aforementioned list'. authority and of their inspection ser- vices, the powers of such services and the supervision to which they are subject, have been recognised, in accor- dance with Article 3 (2) of Directive 72/462/EEC, as capable of guarantee- ing the implementation of their legisla- tion in force;

Part Four of the Treaty, entitled 'Associa- tion of the overseas countries and terri- tories' (hereafter 'OCT') includes Arti- cles 131 to 136a. (c) the veterinary services of which are able to guarantee that health require- ments at least equivalent to those laid down in Chapter II are being complied with'.

3. Decision 94/70/EC establishes the provi- The first paragraph of Article 131 provides sional list of third countries from which that '[T]he Member States agree to associ- Member States authorise imports of raw ate with the Community the non-European milk, heat treated milk and milk-based countries and territories which have special products. That list, which is provided for relations with Belgium, Denmark, France, under Article 23 of Directive 92/46/EEC, Italy, the Netherlands and the United King- cited above, does not include the Nether- dom. Those countries and territories are lands Antilles. listed in Annex IV to the Treaty'.

4. Various provisions of the Treaty are relevant to this case. Article 227 defines the territorial scope of the Treaty and paragraph 3 thereof provides that '[T]he special arrangements for association set out Originally, the Netherlands Antilles did not in Part Four of this Treaty shall apply to the appear on that list. They were inserted overseas countries and territories listed in subsequently by Convention 64/533/EEC Annex IV to this Treaty. This Treaty shall of 13 November 1962. 4 not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and 4 — OJ 1964 L 150, p. 2414.

According to the first paragraph of Arti- cle 136, 'the details of and procedure for the association of the countries and terri- tories with the Community' are to be determined by an Implementing Conven- 2. In the pursuit of this objective, particular tion annexed to the Treaty. The second regard shall be had to securing effective paragraph of Article 136 provides that additional advantages for the OCT's trade '[B]efore the Convention referred to in the with the Community and to improving the preceding paragraph expires, the Council conditions of access for their products to shall, acting unanimously, lay down provi- the market in order to accelerate the sions for a further period, on the basis of growth of their trade and, in particular, of the experience acquired and of the princi- the flow of their exports to the Community ples set out in this Treaty'. and to ensure a better balance in trade between the parties concerned.

" The Council adopted a series of decisions on the basis of Article 136, the last of which is Council Decision 91/482/EEC of 25 July 1991 on the association of the 5 —OJ 1991 L 263, p.1.

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DADI AND DOUANE-AGENTEN V RIJKSDIENST VOOR DE KEURING VAN VEE

Article 102 provides that 'the Community The facts and the questions submitted for a shall not apply to imports of products preliminary ruling originating in the OCT any quantitative restrictions or measures having equivalent effect'.

5. The facts at the origin of these proceed- ings for a preliminary ruling arose in the context of the provisions just described. The Antillian Dairy Industry (hereafter 'DADI') is an undertaking established in Lastly, Article 103 reads as follows: Curaçao, Netherlands Antilles and operat- ing in the butter-production industry. It imports the raw materials, for its opera- tions from Belgium and the Netherlands.

The undertakings concerned therefore If Question I.A. is answered in the affir- brought the matter before the College van mative: Broep het Bedrijfsleven, seeking annulment of the decision and compensation for damage. The appellants in the main pro- ceedings argued, in essence, that the Neth- erlands Antilles are an integral part of the Kingdom of the Netherlands and cannot be treated as third countries by the Commu- 1. B. Are the provisions of Chapter III of nity. Therefore, since Directive 92/46/EEC the aforementioned directive, hav- and Decision 94/70/EC apply to imports ing regard in particular to Arti- from third countries, they cannot apply to cle 132(1) of the EC Treaty and products originating in the Netherlands Articles 102 and 103 of Council Antilles. Decision 91/482/EC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Com- munity valid in so far they relate to the imports referred to in Question I.A.?

The national court stayed proceedings and referred the following questions to the Court for a preliminary ruling: If Questions I.A. and 1.B. are answered in the affirmative:

2. Must Article 23 of the aforementioned ' 1 . A. Must the provisions of Chapter III directive be interpreted as meaning that of Directive 92/46/EEC, seen in the national provisions adopted to particular in the light of Arti- implement that article may only be cle 227, together with Articles 131 applied to the imports referred to in to 136, of the EC Treaty be inter- Question I.A. preted as setting the result to be achieved — within the meaning of the third paragraph of Article 189 of the EC Treaty — by national implementing provisions which are applicable to imports into the EC of butter originating in the over- — after the rules relating to intra- seas countries and territories listed Community trade in the goods in Annex IV to the EC Treaty, concerned, to which, under Arti- including the Netherlands Antilles ? cle 22 of that directive, the third-

6. By its first question, the national court is asking the Court whether the OCT, and the Netherlands Antilles in particular, are to be 7. In my opinion, the first of those propo- regarded as third countries for the purposes sitions is to be preferred. However, I must of Chapter III of Directive 92/46/EEC. In admit that the second proposition appears, other words, the Court is called upon to at first glance, also not to be devoid of determine whether the rules laid down by merit. As the purpose of the directive is to the directive with regard to 'imports from lay down health rules for trade in milk and third countries' apply also to products from milk products, it could even be argued that the Netherlands Antilles. the Community legislature sought to draw a distinction according to whether the products in question originate in the Mem- ber States or in other countries, be they associated or wholly unrelated to the In answering that question, the parties who Community: in the first case, the very fact submitted observations dwelt on the theo- that the product originates in a Member retical question whether, in view of the State ensures that the health and hygiene status of the OCT, those entities can be rules, which can be assumed to be substan-

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Following that argument, it In my opinion, those considerations pro- makes no difference that the 'third country' vide conclusive grounds for holding that is associated with the Community. the OCT — and the Netherlands Antilles in particular in this case — cannot be regar- ded as third countries for the purposes of Directive 92/46/EEC. The OCT are not merely third countries vis-á-vis the Com- munity; they are associated countries 8. In the final analysis, however, it is enjoying, what is more, a special and difficult to reconcile that point of view privileged status conferred by association with the special status conferred on the arrangements based directly on the Treaty. 8 OCT by the Treaty. Moreover, Community rules cannot apply automatically to the OCT without an appropriate express reference.

No arrangements must be highlighted for our textual argument can be derived, expressly purposes. The first is the fact that the OCT or by implication, from the directive for are the subject of 'constitutional associa- tion' arrangements placing them, so to speak, half-way between the Member 7 — See the Opinion in Case C-181/97, still pending before the Court, at paragraph 26. See also Case C-260/90 Bernard States and third countries. 6The second is Leplat v Territory of French Polynesia [1992] ECR I-643, at the fact that, as Advocate General Ruiz- paragraph 10. 8 — A further factor indicating that the OCT cannot be regarded as third countries can be derived from the Opinion of Advocate General Trabucchi in Lensing v Hauptzollamt Berlin-Packhof (Case 147/73 [1973] ECR 1543).

It rather an association arrangement conceded by the Member follows a contrario that had the Republic of Guinea been States to territorial entities which are not subjects of one of the OCT, it could not have been regarded as a third international law. country.

In any event, a systematic reading of the Treaty supports that conclusion. That the Netherlands Antilles cannot be regarded as a third country for the purposes of the directive concerned seems to me to be the only proposition consistent with the objec- tives laid down in the section of the Treaty concerning the OCT. Those rules provide 9. In my opinion, therefore, the OCT for a special and privileged association cannot be equated with third countries in arrangement with the OCT and are inten- applying Directive 92/46/EEC. That does ded, therefore, to prevent the Community not mean, however, that they must be from treating such territorial entities on a regarded as Member States, again — of par with any third country. 9It is sufficient course — in the context of the arrangement here to mention Article 132(1) of the eststablished by that same directive. They Treaty according to which 'Member States are neither third countries nor Member shall apply to their trade with the countries States. Therefore, the interpretation to and territories the same treatment as they which I subscribe does not mean that goods accord each other pursuant to this Treaty', of OCT origin are entitled to the same and the provisions of the OCT Decision, freedom of movement within the Commu- namely Article 30 and 36, which introduce nity as goods of Community origin. I will rules for the trade in goods between the clarify that point. Since the directive does OCT and the Community which are sub- not apply to goods of OCT origin, those goods are subject to the general arrange- ment instituted by the Treaty and to the 9 — The fact that that is a privileged association emerges from relevant rules of secondary law regarding the judgment in Case C-430/92 (Netherlands v Commission [1994] ECR I-5197, at paragraph 22), where the Court the OCT. Consequently, as the French stated that the scheme of association 'confers advantages on Government correctly points out, the those countries and territories in order to further their economic and social development'. To the same effect, see Case 91/78 Hansen v Hauptzollamt Flensburg [1979] ECR 935, at paragraph 22, which states that the OCT decision is intended to extend to the OCT the rules relating to the free 10 — For present purposes, it makes no difference that in its movement of goods within the Community; and, above all, judgment in Road Air (Case C-310/95 [1997] ECR I-2229, Joined Cases T-480/93 and T-483/93 Antillean Rice Mills at paragraph 40), the Court stated that Article 132 merely and Others v Commission [1995] ECR II-2305, at para- expresses an objective to be pursued rather than an actual graph 91, where the Court of First Instance observes that equivalent status between the Member States and the OCT. the OCT enjoy a more favourable status than do other Such an objective would be hard to justify with regard to a countries associated with the Community. third country.

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