CJEC, July 8, 1975, No 4-75

1 By an order of 24 October 1974 received at the Court registry on 13 January 1975, the verwaltungsgericht koeln raised under article 177 of the EEC treaty certain questions on the interpretation of articles 30 and 36 of the treaty establishing the European Economic Community and concerning the free movement of goods.

These questions were raised in the course of an action before that Court concerning the permissibility under the EEC treaty of phytosanitary inspections carried out at the frontier by a member state on imports of apples from another member state.

2 The first question enquires whether phytosanitary inspections at the frontier which imports of plant products, such as apples, coming from another member state are required to undergo must be regarded as measures having an effect equivalent to quantitative restrictions on imports, within the meaning of article 30 of the EEC treaty.

The second and third questions enquire principally whether such inspections may be justified under article 36 of the EEC treaty after the implementation of Council directive No 69-466 of 8 December 1969 on the control of San Jose scale and whether, particularly as regards the importation of apples, they constitute 'a means of arbitrary discrimination' within the meaning of the said article 36, on the ground that similar domestic products are not subject to compulsory inspections for the purpose of distribution within the country.

As these questions are connected they must be examined together.

3 Article 30 of the treaty prohibits quantitative restrictions on imports and all measures having equivalent effect between member states.

For the purposes of this prohibition it is enough for the measures in question to be capable of acting as a direct or indirect, real or potential hindrance to imports between member states.

In accordance with article 2 (2) of Commission directive No 70-50-EEC of 22 December 1969 (oj 1970, No l 13, p.29) measures having equivalent effect are those which make imports subject to a condition which is required in respect of imported products only or a condition differing from that required for domestic products and more difficult to satisfy.

4 It is clear from the questions put that the phytosanitary inspections in question only concern importations of plant products and that similar domestic products, such as apples, are not subject to comparable compulsory examinations for the purpose of distribution.

These inspections thus amount to a condition which is required in respect of imported products only, within the meaning of article 2 (2) of the abovementioned directive.

Moreover, as a result, in particular, of the delays inherent in the inspections and the additional transport costs which the importer may incur thereby, the inspections in question are likely to make importation more difficult or more costly.

5 It follows that phytosanitary inspections at the frontier which plant products, such as apples, coming from another member state are required to undergo, constitute measures having an effect equivalent to quantitative restrictions within the meaning of article 30 of the treaty, and are prohibited under that provision subject to the exceptions laid down by community law.

6 Under the first sentence of article 36 of the treaty, the provisions of articles 30 to 34 are not to preclude restrictions on imports and, therefore, measures having equivalent effect, which are justified for reasons of protection of the health of plants.

Council directive No 69-466-EEC of 8 December 1969 (oj 1969, l 323, p.5) on the control of San Jose scale, lays down a series of provisions which are common to all the member states of the community.

The purpose of this directive is to introduce certain minimum measures common to all the member states by which certain harmful organisms may be controlled 'simultaneously and methodically' throughout the community and prevented from spreading.

At the same time the directive, which was adopted under articles 43 and 100 of the treaty, forms part of the measures intended to remove obstacles to the free movement of agricultural products within the common market.

7 Its fourth recital shows, however, that the measures laid down are intended to supplement and not to replace the protective measures taken against the introduction of harmful organisms into each member state.

By authorizing those states to adopt such additional or stricter provisions as may be required to control San Jose scale or to prevent it from spreading, article 11 reserves to them the power to maintain such measures in force to the extent necessary.

In the light of the current community rules in this matter, a phytosanitary inspection carried out by a member state on the importation of plant products constitutes, in principle, one of the restrictions on imports which are justified under the first sentence of article 36 of the treaty.

8 However, the restrictions on imports referred to in the first sentence of article 36 cannot be accepted under the second sentence of that article if they constitute a means of arbitrary discrimination.

The fact that plant products imported from another member state are subject to a phytosanitary inspection although domestic products are not subject to an equivalent examination when they are despatched within the member state might constitute arbitrary discrimination within the meaning of the abovementioned provision.

Therefore, the phytosanitary inspection of imported products which are shown to originate in areas other than those referred to in article 3 of Council directive No 69-466-EEC may constitute an additional or stricter measure which is not justified by article 11 of that directive and should be regarded as a means of arbitrary discrimination within the meaning of the second sentence of article 36 of the treaty.

The different treatment of imported and domestic products, based on the need to prevent the spread of the harmful organism could not, however, be regarded as arbitrary discrimination if effective measures are taken in order to prevent the distribution of contaminated domestic products and if there is reason to believe, in particular on the basis of previous experience, that there is a risk of the harmful organism's spreading if No inspection is held on importation.

9 The reply to the questions put must therefore be that a requirement to submit imports of plant products, such as apples, from another member state to a phytosanitary inspection at the frontier in order to establish whether such products are carriers of certain organisms harmful to plants constitutes a measure having an effect equivalent to quantitative restrictions within the meaning of article 30 of the treaty and is prohibited under that provision, subject to the exceptions laid down in article 36 of the treaty.

The additional or stricter provisions which may be required under article 11 of Council directive No 69-466-EEC of 8 december 1969 in order to control San Jose scale and prevent it from spreading entitle the member states to make phytosanitary inspections of imported products if effective measures are taken in order to prevent the distribution of contaminated domestic products and if there is reason to believe, in particular on the basis of previous experience, that there is a risk of the harmful organisms spreading if No inspection is held on importation.

10 The costs incurred by the federal republic of Germany and the Commission of the EEC, which both submitted observations to the Court, are not recoverable.

11 As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national Court, the decision as to costs is a matter for that Court.

The Court

In answer to the question referred to it by the verwaltungsgericht koeln, by order of that Court dated 24 October 1974, hereby rules:

1. A requirement to submit imports of plant products, such as apples, from another member state to a phytosanitary inspection at the frontier in order to establish whether such products are carriers of certain organisms harmful to plants constitutes a measure having an effect equivalent to quantitative restrictions within the meaning of article 30 of the treaty and is prohibited under that provision, subject to the exceptions laid down in article 36 of the treaty;

2. The additional or stricter provisions which may be required under article 11 of Council directive No 69-466-EEC of 8 December 1969 in order to control San Jose scale and prevent it from spreading entitle the member states to make phytosanitary inspections of imported products if effective measures are taken in order to prevent the distribution of contaminated domestic products and if there is reason to believe, in particular on the basis of previous experience, that there is a risk of the harmful organisms spreading if No inspection is held on importation.