CJEC, 5th chamber, February 29, 1984, No 37-83

THE COURT (fifth chamber)

1 By order of 18 january 1983, which was received at the court on 10 march 1983, the verwaltungsgericht koln (administrative court, cologne) referred to the court for a preliminary ruling pursuant to article 177 of the eec treaty a question on the validity of the penultimate and final sentences of article 11 (3) of council directive no 77-93-eec of 21 december 1976 on protective measures against the introduction into the member states of harmful organisms of plants or plant products (official journal 1977, l 26, p. 20), and a question on the interpretation of article 36 of the eec treaty.

2 The questions arose in the course of an action brought by rewe-zentrale ag, cologne, an importer of, inter alia, fruit and potatoes from other member states, seeking a declaration that the landwirtschaftskammer rheinland (chamber of agriculture for the rheinland) had no authority to carry out phytosanitary inspections on up to one-third of consignments of the said products on their importation, as provided for by the pflanzenbeschauverordnung (order on the inspection of plants) of 15 march 1982 (bundesgesetzblatt i, p. 329).

3 The verwaltungsgericht held that the german order merely gave effect in national law to article 11 (3) of directive no 77-93 and therefore expressed doubts as to the validity of the latter provision with regard to the statement of reasons on which it is based and with regard to its compatibility with the provisions of the treaty relating to the free movement of goods.

4 The verwaltungsgericht therefore stayed the proceedings and referred the following questions to the court:

' ' (A) (submitted pursuant to subparagraph (b) of the first paragraph of article 177 of the eec treaty):

Are the penultimate and final sentences of article 11 (3) of council directive no 77-93-eec of 21 december 1976 on protective measures against the introduction into the member states of harmful organisms of plants or plant products (official journal 1977, l 26, p. 20) compatible with:

(I) article 190 of the eec treaty,

(II) article 30 of the eec treaty?

(b)(submitted pursuant to paragraph (a) of the first paragraph of article 177 of the eec treaty) if the provision referred to above is invalid:

To what extent, at the present stage of the development of community law in the sphere of plant protection, is the carrying out of phytosanitary inspections by the importing state on imports of fruit and potatoes (other than seed potatoes) from a member state (other than in exceptional cases where, for example, there is reason to suspect that the product is contaminated) justified within the meaning of the first sentence of article 36 of the eec treaty when the consignment is accompanied by a phytosanitary certificate issued by a member state?

' '

5 Before replying to those questions the legislative context of the contested provisions must be examined.

6 It should be observed first that directive no 77-93, which was adopted on the basis of articles 43 and 100 of the treaty, is not concerned with the organization of measures for eradicating harmful organisms of plants within each member state, but is intended solely to lend support to such measures by means of coordinated protective measures against the introduction of such organisms into the member states. It is a measure involving a degree of harmonization.

7 Articles 1 and 2 define the geographical scope of application of the directive and certain terms used therein and article 3 and 5 either enjoin or authorize the member states to ban the introduction into their territory of the organisms, plants and plant products listed in annexes i to iv to the directive.

8 According to article 6 the member states are to lay down, at least in respect of the introduction into another member state of the plants, plant products and other objects listed in annex v (including certain types of fresh fruit and potato tubers), that the latter and their packaging and, if necessary, the vehicles transporting them are to be examined on an official basis to make sure that they are not contaminated by the harmful organisms the introduction of which into its territory is banned by the member state under articles 3, 4 and 5. Where it is considered, on the basis of that examination, that those conditions are fulfilled, article 7 provides that a phytosanitary certificate is to be issued.

9 As a counterpart to such examination carried out by the authorities of the exporting member state, article 11 of the directive lays down limits to the checks carried out by the authorities of the member state of destination. With the exception of a check on the identity of the products and of certain precisely defined cases, the latter state may not provide, in respect of products from another member state and certified by it, for systematic inspections to ascertain compliance with the provisions adopted pursuant to articles 3 and 5 unless there is serious reason to believe that one of those provisions has not been complied with. In all other cases the penultimate sentence of article 11 (3) provides that ' ' only occasional official inspections... Shall be carried out, by sampling ' '. According to the final sentence: ' ' they shall be deemed occasional if they are made on no more than one-third of the consignments introduced from a given member state and are as evenly spread as possible over time and over all the products. ' '

10 Finally, article 20 of the directive provides that the restrictions laid down in article 11 (3) are to be brought into force within four years and that national law is to be amended in accordance with the other provisions of the directive within two years.

The first question

11 It is clear from the order for reference that the doubts felt by the verwaltungsgericht relate, on the one hand, to the possibility provided for in the final sentence of article 11 (3) of carrying out inspections on up to one-third of the consignments and, on the other hand, to the fact that there might be a contradiction between that possibility and the use of the word ' ' occasional ' ' in the preceding sentence.

12 It must be emphasized that the final sentence is intended only to show the maximum number of inspections by sampling which the council considered justified taking account of the particular nature of the problem and the stage of development of community law on the subject. From that point of view the final sentence is not inconsistent with the concept of occasional inspections.

The statement of reasons for the contested provision

13 According to the court ' s well-established case-law the extent of the duty to provide a statement of reasons prescribed in article 190 of the treaty depends on the nature of the measure in question. With regard to measures having general application the requirements of article 190 are satisfied if the statement of reasons given explain in essence the measures laid down and a specific statement of reasons in support of all the details which might be contained in such a measure cannot be required, provided that such details fall within the general scheme of the measures as a whole. The statement of reasons for directive no 77-93 must therefore be examined in the light of those criteria.

14 The first eight recitals in the preamble to directive no 77-93 explain in some detail that the protection of plants against harmful organisms is absolutely necessary to avoid reduced yields and increase agricultural productivity and that it is necessary to re-organize plant-health inspection in the community in conjunction with the gradual removal of obstacles to and checks on intra-community trade. With regard to the latter the 12th recital states that plant-health inspection is carried out not only in the consignor country but also in the country of destination and that it is desirable to abolish the latter checks gradually at the same time as rendering those of the consignor country more stringent.

15 The 15th and 16th recitals note that if a plant-health check carried out in the consignor member state constitutes a guarantee that the products are free from harmful organisms, it is possible to dispense with systematic inspections carried out in the member state of destination, but that they can only be dispensed with gradually since confidence between the member states regarding the correct operation of the new inspection system must first be established. According to the 17th, 18th and 19th recitals, it appears justified for systematic checks to continue for a period of four years but after that period plant-health checks carried out in the member state of destination will no longer be permitted except for special reasons or in the form of occasional checks.

16 From the foregoing examination of the recitals in the preamble to the directive it may be concluded that there is a full statement of reasons not only for the temporary continuation of systematic inspections but also for their replacement by occasional inspections. Even if those recitals do not give any specific reason for the level of occasional checks provided for by the final sentence of article 11 (3), that provision falls within the general scheme of the measures as a whole and is not in any way inconsistent with the statement of reasons for those provisions. It must therefore be held that the statement of reasons is also sufficient with regard to that point.

Compliance with article 30 of the treaty

17 The plaintiff in the main proceedings contends in its observations submitted to the court on this point that the inspections carried out in the member state of destination constitute measures having an effect equivalent to quantitative restrictions within the meaning of article 30 of the eec treaty and that inspection of up to one-third of consignments cannot be justified under article 36 in view of the examination carried out by the authorities of the consignor member state.

18 Although it is true, as the commission emphasized in its observations, that articles 30 to 36 of the treaty apply primarily to unilateral measures adopted by the member states, the community institutions themselves must also have due regard to freedom of trade within the community, which is a fundamental principle of the common market.

19 Nevertheless is must be stated that directive no 77-93 is not intended to hinder intra-community trade. On the contrary it seeks to achieve the gradual abolition of measures which were adopted unilaterally by the member states and were, at the time, justified in principle by article 36 of the treaty, as the court recognized in its preliminary ruling of 8 july 1975 on questions referred to it in an earlier dispute between the parties to the main proceedings in this case (case 4-75 (1975) ecr 843). At the same time, the directive seeks to strengthen, in the general interest of the community, the protection of agricultural products against the substantial damage which may be caused by harmful organisms.

20 It must be recognized that in the exercise of the powers conferred on them in this respect by articles 43 and 100 of the treaty, the community institutions have a discretion in particular with regard to the possibility of proceeding towards harmonization only in stages and of requiring only the gradual abolition of unilateral measures adopted by the member states. In view of the particular nature of the problem as described in the aforementioned recitals in the preamble to the directive and in view of the very incomplete nature of the harmonization effected thereby, it has by no means been shown that the council, by permitting in the contested provision inspection by sampling of up to one-third of consignments, has exceeded the limits of its discretionary power.

21 The reply to the first question should therefore be that consideration of the contested provisions has disclosed no factor of such a kind as to affect their validity.

The second question

22 In view of the reply given to the first question, the second question has become devoid of any purpose.

Costs

23 The costs incurred by the government of Ireland and by the council and commission of the european communities, which have submitted observations to the court, are not recoverable. 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 on costs is a matter for that court.

On those grounds,

The court (fifth chamber),

In answer to the questions referred to it by the verwaltungsgericht koln by order of 18 january 1983, hereby rules:

Consideration of the penultimate and final sentences of article 11 (3) of council directive no 77-93-eec of 21 december 1976 on protective measures against the introduction into the member states of harmful organisms of plants or plant products has disclosed no factor of such a kind as to affect the validity of those provisions.