CJEC, January 31, 1984, No 40-82

THE COURT

1 By application lodged at the court registry on 4 february 1982 the Commission of the European Communities brought an action under article 169 of the eec treaty for a declaration that, by prohibiting the importation of poultry products and by adopting an import licensing system for those products in the circumstances described in the application, the united kingdom had failed to fulfil its obligations under article 30 of the eec treaty.

2 In a judgment dated 15 july 1982 (case 40-82 commission v united kingdom (1982) ecr 2793) the court declared that, by applying measures which had the effect of preventing imports of fresh and refrigerated poultry products, including eggs (not intended for hatching) and egg products other than heat-treated egg products, into England, Wales and Scotland from any member state other than Ireland and Denmark, the united kingdom had failed to fulfil its obligations under the treaty. On that occasion the court reserved judgment on the other issues.

3 The issues on which judgment was reserved concern: (I) the ban on imports of poultry products into Northern Ireland from other member states, except Ireland and Denmark; (II) the united kingdom legislation which constituted the basis of the measures taken with regard to both Great Britain and Northern Ireland, in so far as that legislation embodies an import licensing system other than a system of open general licences; and (III) the way in which that licensing system was applied as from 1 september 1981 to imports into England, Wales and Scotland of heat-treated egg products. Those three issues must therefore now be examined.

I - imports into Northern Ireland

4 In its application the commission simply claimed that the observations which it had made in relation to the restrictions on imports into England, Wales and Scotland introduced in 1981 also applied to the system in force in that regard in Northern Ireland.

5 However, it is now clear that the northern irish system challenged by the commission has been applied, on the basis of rules substantially unchanged, since 1933 and is based upon an order made before the united kingdom ' s accession to the community, namely the diseases of animals (importation of poultry) order (Northern Ireland) 1965 (si 1965 ni no 175).

6 It is also clear from information which was supplied by the united kingdom and by Ireland - an intervener in the action - and which has not been challenged by the commission, that the poultry flock of Northern Ireland, unlike that of other parts of the united kingdom, has not been subject to a system of vaccination against newcastle disease. Instead, the disease has been combated there by the compulsory slaughter of contaminated birds in the event of an outbreak of the disease and by the prohibition of vaccination on the ground that vaccination can mask the presence of contagious virus.

7 The united kingdom contended that the restrictions on imports of poultrymeat into Northern Ireland constitute the necessary corollary of the policy of slaughter chosen for that part of the united kingdom and were therefore not introduced on grounds of commercial policy. Indeed, they were applied to imports from other parts of the united kingdom as well as to imports from other member states which permit the use of vaccination against newcastle disease.

8 In that regard, the united kingdom stated that, in order to preserve the state of health of the poultry flock in its territory, the Northern Ireland administration grants import licences only if the poultry products come from countries offering the same health safeguards or if those products have been subjected to the level of heat treatment required to inactivate the newcastle-disease virus. In respect of imports from Ireland, an open general licence has been granted. In addition, licences are granted for the importation of eggs for hatching and day-old chicks from other member states, subject to a fairly long period of quarantine.

9 In its reply, the commission accepted that the import prohibitions in question were introduced and kept in force for the purpose of protecting animal health; it does not allege that those restrictions constitute arbitrary discrimination or a disguised restriction on trade between member states within the meaning of the second sentence of article 36 of the treaty. It considers, however, that those prohibitions are not justified under article 36 on the grounds that they are excessive and that their negative influence on the free movement of goods in the community is disproportionate to their objective of protecting health.

10 Before considering that argument, it is necessary to examine a preliminary ground of defence put forward by the united kingdom in its rejoinder, to the effect that the measures applicable in Northern Ireland are justified under article 11 (1) of council directive 71-118 of 15 february 1971 on health problems affecting trade in fresh poultry-meat (official journal, english special edition 1971 (i), p. 106). That provision is worded as follows:

' ' Without prejudice to paragraphs (2) to (4) the animal health provisions of member states concerning trade in live poultry and poultry-meat shall continue to apply until the entry into force of any community provisions. ' '

11 In this regard the court observes first that, although the object of directive 71-118 is the approximation of the health provisions of the member states, it deals more specifically with the harmonization of the control of imports of poultrymeat from another member state which proves unfit for human consumption. Thus the health certificate which, under article 8 of the directive, must accompany fresh poultrymeat sent from one member state to another contains a health attestation certifying that the meat concerned has been passed as ' ' fit for human consumption ' '. Only article 11 concerns the health risks which trade in poultrymeat could create for the poultry flock of the importing member state.

12 Paragraphs (2) to (5) of article 11 lay down the measures to be taken and procedures to be followed in the event of an outbreak of an epizootic disease in the territory of one of the member states. As regards the other health risks which trade in meat could pose for the poultry flock, article 11 (1) merely states that the national provisions ' ' shall continue to apply ' ' until the entry into force of community measures.

13 In that context, article 11 (1) does not appear to be intended to preserve the situation in existence at the time of the directive ' s entry into force. That provision must be understood as leaving the member states power to lay down health control provisions for fresh poultrymeat, pending the adoption of community measures. Hence it cannot have the effect of relieving member states of their obligation to comply with the prohibitions laid down in articles 30 and 36 of the treaty in the field covered by article 11 (1) of the directive.

14 It is therefore necessary to consider whether the import restrictions are ' ' justified ' ' on grounds of protection of animal health or whether, as the commission maintains, they go further than is necessary to ensure such protection.

15 In the aforementioned judgment of 15 july 1982 the court established certain facts which are also relevant to the issues now before the court. First, the statistics available show a steady reduction in manifestations of newcastle disease throughout the community over the last six years; in 1981, the only member states in which outbreaks of newcastle disease were recorded were italy (2) and greece (12). Secondly, the practice in countries which permit vaccination is to vaccinate only part of the poultry flock (in 1981: 40% in France and in Great Britain); normally, vaccination is practised mainly on laying hens and breeding fowl, and not on animals intended for slaughter.

16 Under those circumstances the risk of Northern Ireland ' s poultry flock being infected by field virus which has entered vaccinated birds and remained active in the carcases of those birds or in meat products prepared from those carcases, or even in eggs laid by those birds, is extremely slight. That risk cannot justify a complete prohibition of imports from member states which permit vaccination.

17 Whilst it is true that the prohibition of the vaccination of the poultry flock as applied in Northern Ireland may render that flock highly vulnerable to infection and may justify measures which would serve no purpose under different circumstances, the court nevertheless considers that the prohibitions in question are wider than may be justified by article 36. The prohibition of imports of carcases and poultrymeat is in any event out of proportion to the aim pursued where those imports come from a country in which no outbreak of newcastle disease has been detected over a number of years and where, moreover, it is established that the carcases and meat in question are of unvaccinated birds.

18 The arguments which the united kingdom bases upon the density of poultry in Northern Ireland, as a result of which any infection would allegedly endanger the entire poultry flock, and upon the economic importance of Northern Ireland ' s poultry industry, which would be seriously affected by an outbreak of epizootic disease, are not of such a nature as to alter those conclusions, which are based on the absence in certain categories of any risk of infection.

19 Although article 36 therefore permits the united kingdom to continue, so far as Northern Ireland is concerned, to carry out controls and, where necessary, to restrict imports in order to protect the poultry flock there from newcastle disease, that provision is none the less infringed where the said member state prohibits all imports into Northern Ireland of poultry products from member states which permit vaccination against newcastle disease.

20 That conclusion is not invalidated by the defendant ' s contentions concerning avian diseases other than newcastle disease. It is clear from the evidence adduced that, in so far as those diseases have appeared in the community poultry flock in recent years, they are not normally spread by poultry carcases and poultrymeat or by eggs not intended for hatching. Although it is not possible from the veterinary point of view to rule out all risk of infection from that source, it is common ground that such risk is certainly no greater than that of infection by newcastle disease.

21 It follows from all those considerations that the commission ' s application must be upheld on that point.

II - the licensing system

22 According to the commission, an import licensing system such as that contained in the united kingdom legislation, both in relation to Great Britain and in relation to Northern Ireland, is incompatible with the treaty. Such a system is said by its very nature to be contrary to articles 30 and 36, except where the licences in question are open general licences.

23 the united kingdom has challenged that view. In its opinion, specific licences, although constituting measures having an effect equivalent to quantitative restrictions within the meaning of article 30, may in certain circumstances be justified on grounds of protection of animal health under article 36. Having regard to the judgment of 15 july 1982, the united kingdom does not at present consider that it is necessary to require specific licences for imports of poultry products into Great Britain; however, it is impossible to predict whether or not particular circumstances may justify such licences in the future.

24 In that regard it must be stated that whilst the requirement of a licence, even as a formality, is contrary to article 30 of the treaty, it does not necessarily follow that a measure of that kind may in no case be justified under article 36. It is therefore necessary to consider whether a licensing system constitutes a measure which is disproportionate to the objective pursued, on the ground that the same result may be achieved by means of less restrictive measures.

25 Such disproportion cannot in any event be established in the particular case of Northern Ireland, whose poultry flock exhibits the characteristics described above. The reply to the question whether or not national measures on animal health may include an import licensing system without infringing article 36 of the treaty depends upon the relationship in an individual case between, on the one hand, the inconvenience caused by the administrative and financial burdens imposed under such a system and, on the other hand, the dangers and risks for animal health resulting from the imports in question.

26 It has not been established that those dangers and risks cannot under certain circumstances outweigh the inconvenience alluded to, so far as the situation in Northern Ireland is concerned. That conclusion is sufficient to justify dismissing the application on this point in relation to Northern Ireland.

27 Such a conclusion cannot, however, apply to the other parts of the united kingdom, in which the poultry flock does not exhibit the same characteristics as in Northern Ireland. Although it is true that imports into Great Britain of poultry products from other member states are at present authorized on the basis of open general licences, the united kingdom legislation in force still permits the requirement of specific licences for such imports to be reintroduced at any time, without its being necessary that such reintroduction be justified by outbreaks of epizootic disease or other circumstances affecting the health of humans or animals. Under those circumstances, there is no justification under article 36 of the treaty for keeping that legislation in force.

III - egg products

28 The last part of the action concerns the application of the licensing system to imports of heat-treated egg products into England, Wales and Scotland.

29 It is clear that the united kingdom has provided for the importation of those products from member states in which vaccination against newcastle disease is permitted to be subject to specific licences. That measure was introduced with effect from 1 september 1981; it formed part of a series of measures adopted by the united kingdom in august 1981. The judgment of 15 july 1982 established that the import prohibitions arising from that series of measures were incompatible with articles 30 and 36 of the treaty.

30 According to information provided by the united kingdom and not disputed by the commission, the requirement of specific licences for the importation of heat-treated egg products was withdrawn as from 1 july 1983. The united kingdom says that, following the judgment of 15 july 1982, the system of specific licences was in fact replaced by a system of open general licences for England, Wales and Scotland.

31 Having regard to that information, the commission stated that it was maintaining its application in relation to the period between 1 september 1981 and 1 july 1983.

32 The application must be upheld on that point. For the reasons already set out in the judgment of 15 july 1982, the introduction of measures which had the effect of making imports of heat-treated egg products from member states which permitted vaccination against newcastle disease subject to the requirement of a specific import licence with effect from 1 august 1981 was not justified under article 36 of the treaty and was therefore prohibited by article 30.

33 It follows from all the foregoing considerations that the united kingdom,

(a) By applying measures which have the effect of preventing all imports into Northern Ireland of poultry products other than day-old chicks, eggs for hatching and heat-treated egg products from member states which permit vaccination against newcastle disease,

(b) By keeping in force legislation containing rules which permit imports of poultry products into England, Wales and Scotland to be made subject to licences other than open general licences, even though such a requirement is not justified by outbreaks of epizootic disease or by other circumstances affecting the health of humans or animals,

(c) By applying between 1 september 1981 and 1 july 1983 measures which had the effect of making imports into England, Wales and Scotland of heat-treated egg products from member states which permit vaccination against newcastle disease subject to specific import licences,

Has failed to fulfil its obligations under the treaty, and that the remainder of the application must be dismissed.

Costs

34 According to article 69 (2) of the rules of procedure, the unsuccessful party is to be ordered to pay the costs. Since the defendant has been unsuccessful, it must be ordered to pay the costs, including those of the French Republic, which intervened in support of the conclusions of the applicant. Ireland, which intervened in support of the conclusions of the defendant, shall bear its own costs.

On those grounds,

The court

Hereby:

1. Declares that the united kingdom has failed to fulfil its obligations under the treaty,

(a) By applying measures which have the effect of preventing all imports into Northern Ireland of poultry products other than day-old chicks, eggs for hatching and heat-treated egg products from member states which permit vaccination against newcastle disease,

(b) By keeping in force legislation containing rules which permit imports of poultry products into England, Wales and Scotland to be made subject to licences other than open general licences, even though such a requirement is not justified by outbreaks of epizootic disease or other circumstances affecting the health of humans or animals, and

(c) By applying between 1 september 1981 and 1 july 1983 measures which had the effect of making imports into England, Wales and Scotland of heat-treated egg products from member states which permit vaccination against newcastle disease subject to specific import licences;

2. Dismisses the remainder of the application;

3. Orders the defendant to pay the costs, including those of the French Republic, which intervened in support of the conclusions of the applicant, and orders Ireland, which intervened in support of the conclusions of the defendant, to bear its own costs.