C-140/02

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representative sample, and that, if countries, on the basis of laws or necessary, the vehicles transporting regulations of the country.... them shall also be inspected meticu- lously on an official basis in order to make sure as far as can be determined:

— that they are not contaminated by the harmful organisms listed in Annex I, Part A,

4. Article 12(5) provides that the Commis- sion and certain third countries may agree to inspections also being carried out under — in the case of the plants and plant the authority of the Commission in the products listed in Annex II, Part A, third country concerned. that they are not contaminated by the relevant harmful organisms listed in that part of the Annex,

5. Article 12 of the directive refers to Articles 7 and 8 which, like Article 6, concern in principle plants, plant products — in the case of the plants, plant and other objects originating within the products and other objects listed in Community. Annex IV, Part A, that they comply with the relevant special require- ments indicated in that part of the Annex;

9. For the purposes of the provisions set out above, the citrus fruit at issue in the main proceedings, which originates in the northern part of Cyprus, falls within the (a) that they are not contaminated by the class of plants and plant products listed in harmful organisms listed in Annex I, Annex V and, as such, is subject to Part A; phytosanitary inspection. It is at risk of contamination by the harmful organisms listed in Annexes I and II.

(b) in the case of the plants and plant products listed in Annex II, Part A, that they are not contaminated by the rel- evant harmful organisms listed in that 10. In addition, the citrus fruit at issue is part of the annex; referred to in Annex IV, Part A, to Direc- tive 77/93. Therefore Article 9(1) applies, which states:

(c) in the case of the plants, plant products and other objects listed in Annex IV, Part A, that they comply with the 'In the case of plants, plant products or relevant special requirements indicated other objects to which special requirements in that part of the annex. laid down in Annex IV, Part A, apply, the official phytosanitary certificate required pursuant to Article 7 shall have been issued in the country in which the plant, plant products and other objects originate, save: 8. Article 6(4) of the directive adds that the official examinations provided for in the earlier paragraphs of the article are to be made regularly at the premises of the producer, preferably at the place of produc- tion, and must extend to the relevant plants — in the case of wood, if...

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6 — In the version laid down by Commission Directive 92/103/EEC of 1 December 1992 (OJ 1992 L 363, p. 1). 7 —OJ 1998 1. 15, p. 34.

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souri) Ltd, established in the part of Cyprus 18. The second round of the litigation to the south of the United Nations Buffer concerned a question which had not been Zone and the Minister of Agriculture, relevant in the first case, namely whether Fisheries and Food. citrus fruit produced in the 'Turkish Republic of Northern Cyprus' may be imported into the United Kingdom with a certificate issued by Turkey. In the judg- ment of 4 July 2000 ('Anastasiou II'), 9the Court held that Member States are per- mitted to admit into their territory plants originating in a non-member country, which are subject to the issue of a phytos- anitary certificate dealing, inter alia, with compliance with special requirements, 16. The first round of the litigation ('An- where, in the absence of a certificate issued astasiou I') concerned the question whether by the authorities empowered to issue movement and phytosanitary certificates certificates in the plants' country of origin, purporting to be issued in accordance with the plants are accompanied by a certificate the Community provisions were valid if issued in a non-member country from issued by officials of the 'Turkish Republic which they do not originate, provided that: of Northern Cyprus'.

— the plants have been imported into the territory of the country where checks have taken place before being exported from there to the Community;

20. The third set of proceedings now before the Court relates to two consignments of citrus fruit which originated in the part of ' 1 . Whether, where citrus fruit originating Cyprus to the north of the United Nations in one third country has been shipped Buffer Zone. In March 1995 the fruit was to another third country, the special shipped to the United Kingdom via a port requirement that the packaging shall in Turkey, accompanied by phytosanitary bear an appropriate origin mark pur- certificates issued by the Turkish auth- suant to item 16. Iof Annex IV, Part A orities. Both importers of the fruit from of Directive 77/93/EEC, now Directive the northern part of Cyprus, Cypfruvex 2000/29/EC, can only be fulfilled in the (UK) Ltd and Cypfruvex Fruit and Veg- country of origin or whether it may etable (Cypfruvex) Enterprises Ltd (here- alternatively be fulfilled in such other inafter together referred to as 'Cypfruvex'), third country. have intervened in the proceedings which are of direct concern to them.

21. Anastasiou and the other appellants submitted before the House of Lords, again 2. Whether the official statement required seised of the dispute, that the citrus fruit at by items 16.2 to 16.4 of Directive issue is subject to special requirements in 2000/29/EC as to the country of origin Annex IV, Part A, which can be fulfilled must be made by an official in the only at the place of origin, and that it country of origin or whether it may be cannot be imported into the United King- made by an official in such other third dom without the corresponding certificate. country.'

26. Cypfruvex, which shares the view of the Minister of Agriculture, points out that Anastasiou's view would result in an import ban on fruit from the northern part 23. Anastasiou contends that the origin of Cyprus. The requirement for an origin marks may be affixed only at the place of mark may be satisfied in any non-member origin. That follows inter alia from the fact country. It can be concluded from that the special requirements are intended Article 9(1) of Directive 77/93 that a to provide a higher level of protection than supervisory body of a country other than a phytosanitary certificate issued by the the country of origin may also check an State of dispatch. origin mark, including its appropriateness. The manner in which inspections are to be carried out is to be determined by the non-member country which issues the phy- tosanitary certificate. The supervisory body does not have to verify the origin, oversee the packing or issue a certificate of origin. Nor is the origin mark to be confused with 24. Determination of the origin of goods at the official statement of origin which serves the place of origin facilitates the tracing other purposes, issued by the authorities of back of any diseases to their source and the country of origin. It follows from cooperation with the authorities of the Directive 98/2 that the official statement non-member country. Also, a person at of origin is additional to the requirement the place of origin is better placed to for an origin mark. Fruit from the northern establish the true origin. part of Cyprus intended for export is packed and marked in accordance with rules which in substance correspond to those of the Republic of Cyprus. False origin marks are therefore precluded. Fur- thermore, Cyprus is free from harmful organisms, so equally nobody has an inter- est in falsifying the place of origin. It is not 25. The two special requirements set out in for the Court of Justice to review the item 16.1 may be subject to entirely activities of the Turkish authorities, which different preconditions. The amendment may cooperate with the authorities of the of items 16.2 to 16.4 brought about by 'Turkish Republic of Northern Cyprus'.

28. The United Kingdom Government 30. The Commission has to cooperate only points out that phytosanitary certificates with those authorities whose actions are to derive from the International Plant Pro- be recognised by the Member States. How- tection Convention of 1951 and that since ever, Commission cooperation with the then all phytosanitary certificates have had 'Turkish Republic of Northern Cyprus'' is to include an official statement as to the also possible. Finally, citrus fruit from the place of origin. That requirement therefore northern part of Cyprus has never given applies not only to the products set out in rise to problems with harmful organisms. Annex IV, Part A, to Directive 77/93. It The amendments made by Directive 98/2 follows from the judgment in Anastasiou II are not relevant to the interpretation of that an official certification as to the place item 16.1.

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32. Where the conditions relate to particu- B — Assessment lar characteristics of the place where the fruit is grown, the certificate may be issued only by a person who is able to confirm from personal knowledge that the fruit originates from a specific place. Checks as to the conditions laid down in items 16.1 to 16.4 can accordingly be carried out only by 35. Item 16.1 of Annex IV, Part A, to a person present in the relevant country Directive 77/93 lays down two special who has knowledge of where the fruit requirements: (i) the fruits are to be free originates from. Since Cyprus is free from from peduncles and leaves and (ii) the the harmful organisms covered by those packaging is to bear an origin mark. The provisions, the question is merely whether first question submitted for a preliminary the official confirmation may be issued ruling concerns solely the second of the two only by the recognised Cypriot authorities. conditions.

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36. While the first condition, namely that and Others 12 cannot be transposed to the the fruits are to be free from peduncles and context at issue is to be followed, albeit on leaves, can be checked at any time and different grounds. That case concerned the anywhere, and moreover does not require interpretation of a provision of a free trade any particular specialised knowledge, the agreement in accordance with which an legal position with regard to the second importing State could under certain con- condition is not so clear. ditions review the documents of the expor- ting State and accept other evidence as to the origin of the goods. However Directive 77/93 contains no comparable provision.

10 — Opinion in Case C-219/98 (cited in footnote 2), paragraph 12 — Judgment in Case C-12/92 [1993] ECR I-6381 (paragraphs 11 — Opinion in Case C-219/98 (cited in footnote 2), paragraph 15 and 25 et seq.), relating to the determination of the 50. origin of goods under a free trade agreement.

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legislature is not to be taken to adopt element of the legislation. The exception superfluous provisions, the exception must calls for fulfilment of the special require- be understood as applying only to certain ments even where the phytosanitary certifi- special requirements. It may be deduced cate is to be issued merely at another place from the second indent's wording, the of origin. Strictly speaking that therefore central concern of which is that 'the special also applies to other places in the same requirements... can be fulfilled also at country of origin. If another country is in places other than that of origin', that the fact involved, even higher requirements are exception is applicable only to those plants to be imposed for fulfilment. which satisfy that condition. If that is not the case, the general rule in Article 9(1) applies, that is to say the phytosanitary certificate must be issued in the country of origin.

45. This circumstance underlines the sig- nificance of the condition laid down in Article 9(1) of Directive 77/93 according to which the phytosanitary certificate must be one under Article 7. Under Article 7(1) in 42. It is admittedly indisputable that one the version applicable here, in order for a element of the legislation — establishing certificate to be issued it must be 'con- whether packaging bears a mark — can be sidered, on the basis of the examination satisfied anywhere. The very affixing of a laid down in Article 6..., that the conditions mark can take place anywhere. therein are fulfilled'.

52. Even under that less strict standard the fact none the less remains that, for products 49. In this connection it is to be observed, from non-member countries too, the most first, that the wording of Article 6(4)(b) of appropriate place for the check is the place Directive 77/93 does not recognise such a of production. That is all the more true in distinction. Second, nor does the eighth the case of a special requirement which has recital in the preamble to Directive 91/683 a geographical reference point, that is to limit to Community products the condition say the origin mark. according to which 'the most appropriate place... is the place of production'.

53. Furthermore, item 16.1 does not pre­ scribe any kind of origin mark but an 'appropriate' one. 16 Whether an origin 50. Third, the Community legislature could also have subsequently restricted the field of application of Article 6(4) of Directive 14 — Council Directive 94/13/ĽC of 29 March 1994 amending Directive 77/93/EEC on protective measures against the 77/93 to Community products. Indeed the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community legislature has made use of the Community (OJ 1994 L 92, p. 27). 15 — Judgment in Case C-219/98 (cited in footnote 2), para­ graph 32. 16 — That is admittedly not apparent from the German 13 — Judgment in Case C-219/98 (cited in footnote 2), para­ language version, hut it is apparent from the other graph 3 1 . language versions.

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54. The argument that no scope remains for applying the exception laid down in Article 9(1) of Directive 77/93 if the phytosanitary certificate must be issued in the country of origin may be countered by stating that the exception is applicable to item 16.1 also, namely with regard to the condition that the fruits be free from 57. It has further been submitted that the peduncles and leaves. amendment brought about by Directive 98/2 affects the interpretation of item 16.1 in so far as the tightening up of items 16.2 to 16.4 diminished the importance of the origin mark. That may admittedly be cor- rect with regard to the new legal position, but the old legal position applies to the facts of the main proceedings. Moreover, it may rather be inferred, conversely, from the amendment of items 16.2 to 16.4 that previously, and therefore also in the present 55. It is likewise necessary to reject the case, the origin mark was all the more a r g u m e n t t h a t it f o l l o w s from important. Article 12(1)(b) of Directive 77/93, accord- ing to which a phytosanitary certificate may not be made out more than 14 days before the date on which the goods leave the consignor country, that certificates of the consignor country are to be recognised in the present case. This rule merely accords with the possibility — which is to be classified as an exception — that a certificate of a non-member country other than the non-member country of origin is also to be recognised. However, that exception applies only under certain con- 58. It is also necessary to deal with the ditions which are not at issue in the present argument put forward by several parties proceedings. according to which phytosanitary certifi-

59. Finally, it is necessary to consider the argument that the origin is also to be entered in Box 5 of the phytosanitary 61. Non-acceptance of phytosanitary cer- certificate and that condition together with tificates issued by the Turkish authorities the requirement for an origin mark would does not affect Turkey in particular but all lead to a multiple burden. In this connec- non-member countries which are not at the tion, it is to be observed, first, that it is same time the country of origin. If fruit- almost part of the essence of Community originates for instance not in the northern law concerning importation to enter infor- part of Cyprus but in Turkey, a certificate mation on several forms. The introduction may correspondingly be issued only in of any simplification of import formalities Turkey and not in another non-member falls within the competence of the Com- country from which the fruit is transported munity legislature. Second, a difference, into the Community. Just as every non- unfortunately not relied on in argument in member country determines its phytosani- the present proceedings, between the origin tary law, the Community too may arrange mark and the entry in the phytosanitary its legal order in such a way that it can lay certificate should be noted. While the down appropriate provisions and verify origin mark refers to the country of origin, their observance. This is of course to be the phytosanitary certificate refers to the distinguished from the recognition of the place of origin. equivalence of phytosanitary measures of

A — Arguments of the parties

63. Anastasiou submits that the official statement in respect of the special require- ments under items 16.2 to 16.4 must be 65. The Greek Government takes the view made by the authorities of the country of with regard to the second question sub- mitted for a preliminary ruling that the requirement for an official statement is 17 — See in this regard the recently adopted Council Directive additional to that for an origin mark. The 2002/89/EC of 28 November 2002 amending Directive 2000/29/EC on protective measures against the intro- checks necessary for the statement can be duction into the Community of organisms harmful to plants or plant products and against their spread within the carried out only by the authorities of the Community (OJ 2002 L 355, p. 45). country of origin. Citrus fruit from the

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northern part of Cyprus will not, however, B — Assessment be subject to any checks by Cypriot auth- orities. Nor can such checks be replaced by checks undertaken upon import into the 68. The second question submitted for a Community. The fact that Cyprus is free preliminary ruling expressly refers only to from diseases constitutes no guarantee for Council Directive 2000/29/EC of 8 May the future. Besides, the Commission's find- 2000 on protective measures against the ing of freedom from diseases relates only to introduction into the Community of organ- the recognised Cypriot State. isms harmful to plants or plant products and against their spread within the Com- munity. 18 However, since that directive, which consolidated Directive 77/93, did not enter into force until 10 July 2000, it is not applicable to the present proceedings.

statements which originate from an auth- here, that is to say the version prior to the ority of a recognised State. Statements amendments made by Directive 98/2, it is made by authorities of the 'Turkish Repub- the area that is material and not the lic of Northern Cyprus' are thus precluded. country. Paragraph (a) of each of items 16.2, 16.3 and 16.4 is thus, from a geographical point of view, wider than the second indent of Article 9(1) of Direc- tive 77/93, which is directed towards the place of origin, but narrower than the basic rule in Article 9(1), which is directed 73. Second, the statements must satisfy the towards the country of origin. It follows condition laid down in Article 9(1) accord- that the official statement can be made only ing to which the special requirements have by authorities which possess the appropri- to be fulfilled. ate factual knowledge.

74. Under the exception laid down in the second indent of Article 9(1), the phytos- anitary certificate may be issued outside the place of origin only if the special require- ments are thereby fulfilled. 77. It may be inferred from the fact that under the second indent of Article 9(1) fulfilment of the special requirements must be guaranteed and the need for a high level of protection in a matter as delicate as health that an official statement concerning the conditions specified in paragraph (a) of 75. The official statement under paragraph each of items 16.2, 16.3 and 16.4 must in (a) of each of items 16.2, 16.3 and 16.4 is principle be made at the place of origin. concerned with whether the fruit originates in an area known to be free from the relevant organism.

79. Paragraph (b) of each of items 16.2, 82. Finally, it remains to deal with the 16.3 and 16.4 provides for an official argument put forward by Cypfruvex statement that an appropriate official check according to which the fact that the phy- has established that no symptoms of organ- tosanitary certificate contains sections for isms have been observed 'at the place of both the country of origin and the country production and in its immediate vicinity'. in which the certificate is issued means that Such checks can be carried out only at the they do not have to be the same country. place of production and in its immediate Suffice it to state that this merely accords vicinity. In order for fulfilment of this with the exception laid down in Article 9(1) special requirement to be ensured, the of Directive 77/93 that a phytosanitary statement should be made by authorities certificate may also be issued in a non- in proximity to the authorities which have member country other than the country of carried out the check. origin. In the present instance, however, the conditions for that exception arc not met.

80. The same is true of the leaf samples provided for in paragraph (b) of item 16.2 and the examination of harvested fruit provided for in paragraph (b) of items 83. The requirement that the official state- 16.2, 16.3 and 16.4 and paragraph (c) of ment is to be made in the country of origin items 16.2 and 16.4. Fulfilment of these means that, in cases where a check is to be special requirements can really be ensured carried out at the place of origin, under only at the place of origin. Community law the authorities of the Republic of Cyprus would also have com- petence in respect of checks in the northern part of Cyprus.

87. I accordingly propose that the Court should answer the questions submitted for a preliminary ruling as follows:

(1) On a proper construction of Article 9(1) of Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of organisms harmful to plants or plant products, where citrus fruit originating in one non-member country is shipped to another non- member country, the special requirement pursuant to item 16.1 of Annex IV, Part A, to Directive 77/93/EEC that the packaging is to bear an appropriate origin mark cannot be fulfilled outside the place of origin.

(2) On a proper construction of items 16.2 to 16.4 of Annex IV, Part A, to Directive 77/93/EEC, the official statement as to the country of origin is to be made by an official in the country of origin.

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