CJEC, January 31, 1984, No 74-82

THE COURT

1 By application lodged at the court registry on 19 february 1982, the Commission of the European Communities brought an action under article 169 of the eec treaty for a declaration that, by adopting the import ban and the import licensing system referred to in the application with respect to poultry carcases, poultry eggs and poultry products, Ireland had failed to fulfil its obligation under article 30 of the eec treaty.

2 The pre-litigation procedure had commenced with a telex message sent by the commission to the irish government on 2 september 1981, stating that, as a result of the notification by the united kingdom of new measures applicable in the poultry and eggs sector in relation to Newcastle disease, it had become apparent that the question of the legitimacy not only of the restrictions of that member state but also of those applicable in Ireland might be involved. For that reason, the commission asked ' ' whether Ireland presently maintains its import ban on fresh poultrymeat, on eggs and live poultry from member states which allow vaccination ' '.

3 In reply the irish government stated in a telex message dated 7 september 1981 that Ireland did not allow the importation of live poultry, poultrymeat or eggs from member states which permitted vaccination against Newcastle disease. The irish government noted in the telex message that that import policy had been pursued by Ireland prior to its accession to the community and was designed to maintain Ireland ' s position as a country free from Newcastle disease without recourse to vaccination.

4 The commission inferred from that reply that Ireland allowed into its territory only live poultry, poultrymeat and eggs from northern Ireland and Denmark, since they were the only parts of the community other than Ireland itself in which a policy of non-vaccination had been pursued for long enough to be fully effective.

5 In a letter dated 24 september 1981 the commission stated that the measures in question were contrary to article 30 of the treaty and requested the irish government to submit its observations. The irish government replied by letter of 23 october 1981, asserting that the measures in question were justified on grounds of the protection of animal health. The reasoned opinion was sent by letter of 9 november 1981; Ireland was requested to comply with that opinion within five days. The reply of 7 december 1981 and a further reply of 10 february 1982 reasserted that the measures in question were justified. Since Ireland had not complied with the reasoned opinion, the commission brought the matter before the court on 19 february 1982.

6 The application no longer concerns imports of live poultry; it is limited to the import restrictions on carcases, eggs and poultry products. In addition, the commission stated in its application that the action did not concern the importation of hatching eggs. Finally, the commission accepted that the ban on imports from parts of the community other than Denmark and northern Ireland did not apply to egg products which had been subjected to the level of heat treatment required to inactivate the Newcastle -disease virus.

7 The basis for the irish measures which are still challenged by the commission is the poultry, poultry carcases, poultry eggs and poultry products (restriction on importation) order 1971 (si 1971 no 139). That order prohibits the importation of poultry, poultry carcases, poultry eggs and poultry products except under licence granted for that purpose by the minister for agriculture and fisheries, subject to the conditions contained therein.

Admissibility

8 Ireland has raised several objections of inadmissibility, of which the first is based on the allegedly unacceptable manner in which the commission initiated and conducted the pre-litigation procedure. In particular, it complains that the commission acted with undue haste, probably in order to be able to link its action against Ireland with that brought against the united kingdom, even though there was no particular urgency in the irish case.

9 In that regard, Ireland points out that the import controls at issue have been applied, on the basis of rules in substance unchanged, since 1938. It submits that under those circumstances it was unreasonable to require a member state, as the commission did in its reasoned opinion, to abolish those controls, as regards other member states, within a period of five days, especially as the reasoned opinion was in fact drawn up only a few days after receipt of the very detailed observations of the irish government, which were clearly not taken into account in preparing the reasoned opinion.

10 Ireland concludes that the admissibility of an application under article 169 of the treaty depends upon the prior issue of a valid reasoned opinion and that that requirement has not been fulfilled in this case.

11 The commission accepts that it must allow a member state a reasonable time to comply with a reasoned opinion under the procedure provided for in article 169 of the treaty. However, it points out that it granted an extension of the period of five days laid down in the reasoned opinion, that it took cognizance of Ireland ' s reply of 7 december 1981 and also of the further reply of 10 february 1982, and that it did not lodge its application until 19 february 1982. It therefore submits that Ireland was given ample time to comply with the reasoned opinion.

12 The court is compelled to state its disapproval of the commission ' s behaviour in this regard. It is indeed unreasonable, as Ireland has pointed out, to allow a member state five days to amend legislation which has been applied for more than 40 years and which, moreover, has not given rise to any action on the part of the commission over the period which has elapsed since the accession of that member state to the community. Furthermore, it is clear that there was no particular urgency.

13 However, the above-mentioned circumstances are not in themselves sufficient to render the action inadmissible. By formally stating the infringement of the treaty with which the member state concerned is charged, the reasoned opinion concludes the pre-litigation procedure provided for in article 169. The purpose of that procedure is to give the member state an opportunity, on the one hand, of remedying the position before the matter is brought before the court and, on the other hand, of putting forward its defence to the commission ' s complaints. Those aims were respected in this case, since the commission waited for Ireland ' s reply to the reasoned opinion before bringing the matter before the court and, as the court has seen, Ireland submitted a reasoned reply to the commission ' s letter of 24 september 1981 and to the reasoned opinion, stating that it completely disagreed with the commission ' s arguments and intended to retain in force the contested national rules. Those circumstances show, moreover, that the commission ' s regrettable behaviour did not affect the further course of the proceedings.

14 It follows that the arguments put forward by Ireland are not such as to render the action inadmissible.

15 The second ground of inadmissibility is drawn from the opposing interpretations given by the parties to article 11 (1) of council directive 71-118 of 15 february 1971 on health problems affecting trade in fresh poultrymeat (official journal, english special edition, 1971 (i), p. 106). Ireland submits that the commission ' s arguments necessarily amount to challenging the validity of that provision and that such a challenge is not permissible since the council, which adopted the directive, is not a party to the dispute.

16 The commission contends that its interpretation does not call in question the validity of provisions of the directive.

17 In the circumstances, this objection can be examined more conveniently when the relevant problem of interpretation, which is a question of substance, is considered.

18 Finally, Ireland submits that the commission raised a new complaint in its reasoned opinion, concerning the form of the licensing system applied in Ireland, and that consequently Ireland did not have an oppurtunity to submit its observations on that question before receipt of the reasoned opinion.

19 In its rejoinder Ireland clarified that submission by stating that the reasoned opinion and the application were founded on two separate breaches of community law: Ireland was accused, on the one hand, of applying an import licensing system other than open general licences and, on the other hand, of closing its borders to imports of poultry products on the basis of that licensing system. However, the commission ' s letter of 24 september 1981 had not made that distinction but had merely stated that the restrictive measures were not justified.

20 That submission must be rejected. Although it is true that under the procedure provided for in article 169 the action brought by the commission must relate to the same subject-matter as the reasoned opinion, which must in turn be preceded by a letter inviting the member state concerned to submit its observations, there is nothing to prevent the commission from setting out in detail in the reasoned opinion the complaints which it has already made more generally in its initial letter. Indeed, the reply to that letter may give rise to a fresh consideration of those complaints.

21 From all these considerations it follows that the substance of the application must be considered.

Substance

(a) the import ban

22 The commission accuses Ireland of applying measures which have the effect of preventing imports of poultry carcases and poultrymeat, eggs not intended for hatching and egg products other than heat-treated egg products from member states which permit vaccination against Newcastle disease.

23 Ireland admits that it applies such measures but considers that they are justified on the basis, first, of article 11 (1) of directive 71-118 and, secondly, of article 36 of the treaty.

24 Article 11 (1) of directive 71-118 provides as follows:

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

Paragraphs (2) to (4) of article 11 concern the measures which a member state may adopt in the event of an outbreak of an epizootic disease in the territory of another member state, if that outbreak is likely to give rise to a danger that the disease may be spread by the introduction of fresh poultrymeat from that member state.

25 According to Ireland, article 11 (1) must be interpreted as meaning that, until the entry into force of any community provisions, member states are entitled to continue to apply the national provisions on animal health which applied at the time of the entry into force of the directive. So far as Ireland is concerned, the relevant date was 1 january 1973, the date of its accession to the community. Since no community provision on the subject has been adopted until now, the irish legislation applicable at that date continues, by virtue of community law, to apply to imports of the products in question.

26 The commission disputes that interpretation. It submits that article 11 (1) of the directive cannot be intended to extend the scope of article 36 of the treaty and thus to protect national laws which are contrary to article 30 of the treaty.

27 It is this argument on the part of the commission which gave rise to the irish contention that the commission considers article 11 (1) of the directive contrary to article 36 of the treaty.

28 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.

29 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.

30 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.

31 The question to be resolved must therefore be examined essentially by reference to article 36 of the treaty, which expressly provides that restrictions on imports must be ' ' justified ' ' on grounds of the protection of animal health.

32 According to the commission, there is no doubt that the import prohibition imposed by Ireland is not justified on such grounds. In support of that view it claims that, according to the statistics available, the incidence of Newcastle disease in the community has fallen dramatically in recent years. Since 1976 there has been no outbreak of the disease in France, while only one has been declared in Great Britain; a large proportion of the poultry flock in those two countries had not, however, been vaccinated. The commission infers from that that field virus, that is to say virus other than that used for vaccine, the presence of which may be masked by vaccination, is extremely rare, or even non-existent, in most member states.

33 After pointing out the extremely contagious nature of Newcastle disease and the very serious economic consequences which its appearance would have for the country, Ireland goes on to claim that the high standard of health of the poultry flock in Ireland is precisely the result of the policy adopted by the irish government in that sphere, a policy based on the compulsory slaughter of contaminated birds in the event of an outbreak of the disease, the prohibition of vaccination on the ground that vaccination could mask the presence of contagious virus and the prohibition of imports of live poultry and poultrymeat from countries which permit vaccination. That prohibition thus constitutes, in Ireland ' s view, a necessary corollary of the slaughter policy which it has chosen; it was not introduced for reasons of commercial policy.

34 Ireland stresses in this connection that the irish government is responsible for animal health in irish territory; that responsibility implies a power to choose between the two systems which have been developed to combat Newcastle disease - that based on compulsory slaughter and the prohibition of vaccination and that based on generalized or selective vaccination. If the effect of the choice made is to restrict imports, such restrictions are permitted by article 36 of the treaty.

35 Ireland has submitted veterinary studies to the court in order to prove that in the countries in which vaccination is permitted, such as Belgium, tests show that field virus subsists, although it is masked by the effects of vaccination.

36 Finally, Ireland draws attention to the fact that the system which it has introduced protects the poultry flock not only against Newcastle disease but also against other avian diseases such as infectious laryngotracheitis, turkey coryza, arizona disease, fowl pox and rabies. Indeed, the result of the non-vaccination of the flock is that the presence of any avian disease can be identified immediately and the appropriate measures can therefore be taken without delay.

37 The court must, in the first place, uphold the view put forward by Ireland to the effect that, in the present state of community legislation, it is for the authorities of the member states to choose the system to be used to combat Newcastle disease. However, the effects upon imports from other member states of the health policy thus chosen may not exceed the limits laid down by community law.

38 In the course of the proceedings before the court, the commission has clarified its arguments by stating that it accepts that the import prohibitions in question were introduced and retained on grounds of the protection of animal health. The commission does not allege that those prohibitions constitute a means of arbitrary discrimination or a disguised restriction on trade between member states within the meaning of the second sentence of article 36 of the treaty.

39 The commission considers, however, that the prohibitions in question are not justified under article 36 on the ground that they are excessive and that their negative influence upon the free movement of goods in the community is disproportionate to their aim of protecting health. It is that argument which must therefore be examined.

40 In that regard, certain facts already established by the court in its judgment of 15 july 1982 in case 40-82 commission v united kingdom (1982) ecr 2793) should be recalled. 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 Great Britain); normally, vaccination is practised mainly on laying hens and breeding fowl, and not on animals intended for slaughter.

41 Under those circumstances the risk of the irish 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 is extremely slight. The question which must be answered is whether the possibility of such infection would be so much due to sheer hazard that it cannot justify a complete prohibition of imports from member states which permit vaccination.

42 On that point, it must be accepted that the state of avian health has been extremely good in Ireland for some years, but that such a state may render the flock highly vulnerable to infection and may therefore justify measures which would serve no purpose under different circumstances.

43 Nevertheless, the court considers that the prohibitions in question are wider than may be justified by article 36 of the treaty. 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.

44 Therefore, although article 36 of the treaty permits Ireland to continue to carry out controls and, where necessary, to restrict imports in order to protect its poultry flock from Newcastle disease, that provision is none the less infringed where the member state concerned prohibits all imports of poultry carcases and poultrymeat from all member states other than Denmark and northern Ireland.

45 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.

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

(b) The licensing system

47 The second complaint made by the commission against Ireland is that it has introduced an import licensing system. Such a system is said by its very nature to be contrary to the provisions of articles 30 and 36 of the treaty, except where the licences in question are open general licences.

48 Since the commission has presented that complaint in general terms, without reference to the import system at present applied in Ireland (namely, a total ban on imports of the products in question except from Denmark or northern Ireland), the court must interpret the complaint as meaning that the irish legislation on which that ban is based is contrary to articles 30 and 36 in so far as it permits the introduction of an administrative practice requiring import licences other than open general licences.

49 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.

50 In the particular case of Ireland, whose poultry flock exhibits the characteristics described above, such disproportion cannot be established. Although at present, in view of the health status of the poultry flock in the other member states, a total ban on imports is not permitted by article 36, that provision does not require the irish legislature to amend the national provisions applicable in such a way that no import licence other than an open general licence may be required for imports of the products in question from other member states.

51 It must be added that the question whether or not national measures on animal health may include an import licensing system without infringing article 36 of the treaty cannot be answered uniformly in every case. In fact, the reply to that question 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. In the present case, those dangers and risks may under certain circumstances outweigh the inconvenience alluded to.

52 The second part of the application therefore cannot be upheld.

53 Therefore it must be concluded that, by applying measures which have the effect of preventing all imports of poultry carcases, poultrymeat, eggs not intended for hatching and egg products other than heat-treated egg products from member states which permit vaccination against Newcastle disease, Ireland has failed to fulfil its obligations under the treaty and that the remainder of the application must be dismissed.

Costs

54 According to article 69 (3) of the rules of procedure, where each party succeeds on some and fails on other heads, the court may order the parties to bear their own costs. In this case, it is appropriate to make such an order.

On those grounds,

The court

Hereby:

1. Declares that, by applying measures which have the effect of preventing all imports of poultry carcases, poultry products, eggs not intended for hatching and egg products other than heat-treated egg products from member states which permit vaccination against Newcastle disease, Ireland has failed to fulfil its obligations under the eec treaty;

2. Dismisses the remainder of the application; and

3. Orders the parties to bear their own costs.