C-14/98

The relevant Community legislation 'The Member States shall provide that, from 1 January 1993, the introduction of plants, plant products and other objects listed in Annex III, Part B, into the relevant protected zones located in their territory is prohibited.' 2. As will become apparent, the relevant Community legislation comprises two prin- cipal directives, one prohibiting the intro- duction of certain citrus fruit into the 4. Article 2(1)(a) 4provides: protected zone Italy (Council Direc- tive 77/93/EEC 1) and the other recognising Italy as a zone protected against the introduction of organisms harmful to cer- 'Plants shall be considered to mean living plants and living parts thereof, including * Original language: English. seeds. 1 — Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community, OJ 1977 L 26, p. 20. 2 — Directive 92/76/EEC of 6 October 1992 recognising pro- Unless otherwise indicated, the Directive is cited as amended tected zones exposed to particular plant health risks in the by Council Directive 91/683/EEC of 19 December 1991 Community, OJ 1992 L 305, p. 12. amending Directive 77/93/EEC on protective measures against the introduction into the Member States of organ- 3 — Cited in note 1. isms harmful to plants or plant products, OJ 1991 L 376, 4 — As replaced by Council Directive 85/574/EEC of 19 Decem- p. 29. The Directive has been further amended on numerous ber 1985 amending Directive 77/93/EEC on protective occasions as will appear below. In 1997 the Commission measures against the introduction into the Member States of issued a proposal for a consolidating directive (COM (97) organisms narmful to plants or plant products, OJ 1985 651 final of 5 December 1997). L 372, p. 25.

5 — Inserted by Council Directive 89/439/EEC of 26 June 1989 amending Directive 77/93/EEC on protective measures — in which there is a danger that certain against the introduction into the Member States of organ- isms harmful to plants or plant products, OJ 1989 L 212, harmful organisms will establish them- p. 106. selves, given propitious ecological con- 6 — As replaced by Commission Directive 92/103/EEC of 1 December 1992 amending Annexes I to IV to Council ditions, for particular crops, despite the Directive 77/93/EEC on protective measures against the fact that these organisms are not ende- introduction into the Community of organisms harmful to plants or plant products and against their spread within the mic or established in the Community, Community, OJ 1992 L 363, p. 1.

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third countries'. The right-hand column, 10. Article 2 provides: which lists the protected zones in respect of which the prohibition applies, shows against that entry 'Italy'. 7 The fruits refer- red to are, according to the observations submitted to the Court, lemons (Citrus L.), oranges (Fortunella Swingle) and grapefruit 'The extension of the recognition beyond (Poncirus Raf.) with the exception of a the date referred to in Article 1, and any particular strain of grapefruit (Citrus para- amendment to the list of protected zones disi Macf.). I will for convenience refer to referred to in Article 1, shall be made in them collectively as 'fruits of the Citrus accordance with the procedure laid down genus'. in Article 16a of Directive 77/93/EEC...'

12. Recognition of the zones listed in 'The zones in the Community listed in the Directive 92/76 was expressed to be provi- Annex are hereby recognised for a period sional only. 11 The zones were originally expiring on 31 December 1994 as "pro- provisionally recognised for a period expir- tected zones" referred to in the first sub- ing on 31 December 1994. That date was paragraph of Article 2(1)(h) of Direc- changed to 1 July 1995 by Commission tive 77/93/EEC, in respect of the harmful Directive 94/61/EC, 12 which also organism(s) listed against their names in the expressed the extended recognition as being Annex.' provisional. 13 It was subsequently changed to 1 April 1996 in the case of, inter alia, the recognition of Italy as a protected zone 7 — Unfortunately the English text (and indeed according to the Commission all the language versions except Dutch and Spanish) shows no protected zone for this entry. The Commission states that the text it adopted showed Italy against this entry, and the point does not seem to be 10 — The four entries are for the categories of (a) insects, mites seriously in issue. and nematodes, (b) bacteria, (c) fungi and (d) viruses and virus-like organisms. 8 — Commission Directive 96/14/EC of 12 March 1996 amend- ing certain Annexes to Council Directive 77/93/EEC on 11 — See the sixth recital in the preamble. protective measures against the introduction into the 12 — Commission Directive 94/61/EC of 15 December 1994 Community of organisms harmful to plants or plant extending the period of provisional recognition of certain products and against their spread within the Community, protected zones provided for in Article 1 of Directive OJ 1996 L 68, p. 24. 92/76/EEC, OJ 1994 L 330, p. 63. 9 — Cited in note 2. 13 — See the third recital in the preamble.

16. Articles 9 and 10 prohibit the intro- duction, marketing and holding in Italy or Whereas in the absence of any extension of the relevant protected zones of the plants, the recognition beyond the dates referred to plant products and other objects mentioned in its Annex III. Under (3) in Part B of Annex III, which corresponds to Annex III 14 — Points (a) 17, (b) 3, (c) 5 and (d) 3 of the Annex to to Directive 77/93, appears 'Fruits of Directive 92/76. Citrus, Fortunella Swingle, Poncirus Raf. 15 — Commission Directive 95/40/EC of 19 July 1995 amend- ing Directive 92/76/EEC recognising protected zones and their hybrids, with the exception of exposed to particular plant health risks in the Community, OJ 1995 L 182, p. 14. those of Citrus Paradisi Macf. Merr; origi- 16 — See the sixth recital in the preamble. nating in third countries', against the 17 — Commission Directive 96/15/EC of 14 March 1996 'protected zone' Italy. amending Directive 92/76/EEC recognising protected zones exposed to particular plant health risks in the Community, OJ 1996 L 70, p. 35. 18 — Points (a) 17, (b) 3, (c) 5 and (d) 3 of the Annex to Directive 92/76. 19 — See the seventh and eighth recitals.

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22. Doubtful as to the correct interpreta- tion of the Community legislation, the Pretura Circondariale, Turin, referred the 19. In October 1996, the criminal investi- following questions to the Court for a gation authorities in Turin reported Battital preliminary ruling: Sri for infringement of Article 10 of the Ministerial Decree of 31 January 1996 on the ground that it had for sale, in a region within Italian territory (a zone which is protected against importation from non- member countries of plants belonging to ' 1 . Having regard to Article 1 of Directive the Citrus genus), 250 kg of oranges from 95/40/EC of 19 July 1995, Article 2 of South Africa and 680 kg of lemons origi- Directive 96/14/EC of 12 March 1996 nating in Argentina. The citrus fruits were and Article 1 of Directive 96/15/EC of subsequently confiscated and destroyed 14 March 1996, does the ban on the and the President of the Regione Piemonte importation of organisms of the Citrus issued an order requiring Battital to pay a genus still apply in Italy (or in any fine of ITL 20 million pursuant to Article 9 region of Italy) ?

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2. Did that ban cease to apply with effect The interaction between the Directives from 1 April 1996?

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tion on the import of fruits of those plants in its original version permitted Member was abolished. States to ban the introduction into their territory of the plants, plant products and other objects listed in Annex III, Part B, against their names. Annex III, Part B, as amended by Council Directive 84/378, 20 included, against 'Italy', 'Citrus fruit plants (Citrus L., Fortunella Swingle, Poncirus 27. Battital and the Commission take the Raf.)'. contrary view. In essence they submit that the Community legislation at issue simply imposes protection against harmful organ- isms; once that protection has gone, the consequential prohibition on the import of host fruit falls with it. Moreover Directive 77/93 provides that only the procedure envisaged in Article 16a can lead to the recognition of a zone as protected. Such 30. The programme for the completion of recognition ceases if there is express revo- the internal market by 31 December 1992 cation or if the time-limits regarding the meant that it was necessary fundamentally existence of a zone expires. Directive 96/15 to recast Directive 77/93: the controls on makes it clear that the recognition of Italy trade between Member States which it had as a protected zone was temporary, expir- introduced were not readily compatible ing on 1 April 1996. The prohibition on the with the concept of the Community as an import of citrus fruits into Italy accordingly area without internal frontiers and it was came to an end on that date and it was not felt desirable to provide for 'protected open to Italy to retain the prohibition zones', not necessarily co-terminous with thereafter. national territory, exposed to particular plant health risks, to be accorded special protection under conditions compatible with the internal market. 21

32. The application of the Community plant health regime to the Community as an area without internal frontiers and the introduction of protected zones also neces- sitated a restructuring of the requirements laid down in the Annexes to Directive 77/93. 23 Directive 91/683 24 entrusted some of that restructuring to the Commis- 35. It is clear from the history of the sion, assisted by the Standing Committee legislation that, contrary to the submissions on Plant Health. 25 The Commission of the Regione Piemonte, Directive 92/76 accordingly adopted Commission Directive was intended to complement Directive 92/103/EEC amending Annexes I to IV to 77/93. Admittedly, as the Commission Council Directive 77/93/EEC 26 which points out, before Directive 77/93 was completely restructured the Annexes to amended in 1991 the mere mention of a Directive 77/93, replacing them wholesale. specified plant, plant product or other object in the left-hand column of Part B of Annex III sufficed to authorise the Member State referred to in the right-hand column to prohibit the import of that item into its territory. However, the revised structure of the legislation explicitly incor- 33. Finally, as mentioned above, 27 a list of porated the notion of a protected zone into, recognised protected zones was established inter alia, Article 4(2)(a) and Annex III. by Directive 92/76 2 8 after the definition of Article 4(2)(a) expressly requires Member 'protected zone' had been inserted into States to prohibit the introduction of the Directive 77/93. items listed in Part B of Annex III 'into the relevant protected zones located in their territory'. Part B of Annex III is headed 'Plants, plant products and other objects the introduction of which shall be prohib- 34. Thus it came about that the Commu- ited in certain protected zones'. Directive nity legislation regulating the introduction 77/93 provides unequivocally that pro- into the Community and the spread within tected zones are to be recognised only in accordance with an established procedure. Once recognition of a particular protected 23 — See the fifth recital in the preamble to Directive 91/683, zone has expired, there is nothing to which cited in note 1. the prohibition in Article 4(2)(a) may 24 — Cited in note 1. attach and the residual reference to the 25 — See the sixth recital in the preamble to Directive 91/683, cited in note 1, and Articles 3(6), 4(3) and 5(3) of Directive prohibition in Part B of Annex III can 77/93, inserted by Directive 91/683. similarly have no further relevance. It is 26 — Cited in note 6. thus clear from the objectives and the 27 — See paragraph 9. 28 — Cited in note 2. scheme of the legislation that the existence

40. Secondly, the Directive lays down a procedure for the amendment of the 38. I would point out that the above Annexes which provides inter alia for conclusion does not mean that, where recognition of a protected zone ceases, a Member State will be open to the uncon- 29 — As amended by Directive 85/574, cited in note 4.

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Member States to request certain additional Commission has not adopted measures headings to the Annexes. 30 pursuant to paragraph 3.'

'Where a Member State considers there is 43. Once it is accepted that the ban on the an imminent danger other than that refer- importation of citrus fruits into the pro- red to in (b), it shall immediately notify the tected zone Italy, contained in Arti- Commission and the other Member States cle 4(2)(a) of Directive 77/93, ceased to of the measures which it would like to see apply in Italy with effect from 1 April 1996 taken. If it considers that these measures when the recognition of Italy as a protected are not being taken in sufficient time to zone under Directive 92/76 expired by prevent the introduction or spread of a virtue of Directive 96/15, it is clear that harmful organism in its territory, it may Italy cannot maintain such a ban in its temporarily take any additional measures national legislation. To do so would run which it deems necessary, as long as the counter to the Community plant health legislation as a whole and, to the extent that it applied as between Member States, 30 — Article 13 of Directive 77/93 as amended by Directive would obstruct the free movement of 85/574, cited in note 4. 3 1 — A s amended by Council Directive 90/168/EEC of goods. Since plant protection has been 26 March 1990 amending Directive 77/93/EEC on pro- tective measures against the introduction into the Member harmonised at Community level, a Member States of organisms harmful to plants or plant products, State may not rely on Article 36 of the EC OJ 1990 L 92, p. 49, and by Directive 91/683, cited in note 1. Treaty to justify such obstruction.

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