JUDGMENT OF 8. 7. 1975 — CASE 4/75 REWE-ZENTRALFINANZ v LANDWIRTSCHAFTSKAMMER
In Case 4/75 Reference to the Court under Article 177 of the EEC Treaty by the Verwaltungsgericht Köln (Cologne Administrative Court) for a preliminary ruling in the action pending before that court between.
THE COURT composed of: R. Lecourt, President, J. Mertens de Wilmars and A. J. Mackenzie Stuart, Presidents of Chambers, A. M. Donner, R. Monaco (Rapporteur), P. Pescatore, H. Kutscher, M. Sørensen and A. O'Keeffe, Judges, Advocate-General: G. Reischl Registrar: A. Van Houtte
gives the following
JUDGMENT
Facts
I — Facts and written procedure
II — Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice
A — Observations submitted by Rewe-Zentralfinanz
(a) The first question
(b) The second question
(c) The third question
B — Observations submitted by the Federal Republic of Germany
C — Observations submitted by the Commission of the European Communities
(a) The first question
(b) The second question
(c) The third question
III — Oral Procedure
Law
Costs
I —. Facts and written procedure
1. This case, which was brought under Article 177 of the EEC Treaty, concerns the concept of measures having equivalent effect to quantitative restrictions on imports. The questions posed by the court making the order for reference — the Verwaltungsgericht Köln — concern Articles 30 and 36 of the Treaty in relation to the phytosanitary examination provided for by German legislation on the import of certain agricultural products, such as apples.
2. Rewe-Zentralfinanz, represented by its Legal Adviser, Gert Meyer, the Federal Republic of Germany, represented by Martin Seidel, and the Commission of the European Communities, represented by its Legal Advisers, Sven Ziegler and Dieter Oldekop, submitted written observations in accordance with Article 20 of the Protocol on the Statute of the Court of Justice.
II —. Written observations submitted under Article 20 of the Protocol on the Statute of the Court of Justice
A —. Observations submitted by Rewe-Zentralfinanz
(a). The first question
(b). The second question
(c). The third question
1. The concept of quantitative restrictions on imports and all measures having equivalent effect referred to in Article 30 of the EEC Treaty also refers to the obligation to submit plant products, on their importation from other Member States, to an inspection which is intended to establish whether they are carriers of certain harmful organisms.
2. The Council Directive of 8 December 1969 on control of San José Scale (69/466/EEC) prohibits all national measures controlling San José Scale which take the form of inspections and which are based on any principle other than that of the demarcation of the contaminated areas and the fixing of safety zones.
3. The first sentence of Article 36 of the EEC Treaty and Article 11 of the Directive on control of San José Scale must be understood as meaning that general phytosanitary inspections carried out at the frontier pursuant to domestic law in order to avoid the introduction of San José Scale are neither required within the meaning of Article 11 of the Directive nor justified within the meaning of the first sentence of Article 36 of the EEC Treaty.
4. The first sentence of Article 36 of the EEC Treaty must be understood as meaning that the phytosanitary examinations carried out at the frontier pursuant to national law are not justified where the importing State subjects the importation of the plant products to the production of an official certificate, which is issued by the country of origin and submitted when the goods are imported, showing that the goods in question are in accordance with phytosanitary regulations.
5. A phytosanitary inspection carried out on the importation of products coming from other Member States constitutes arbitrary discrimination within the meaning of the second sentence of Article 36 of the EEC Treaty, where such products are not subject to the same inspection obligation within the importing country when despatched within that country.
B —. Observations submitted by the Federal Republic of Germany
(a). As regards the first question, the Federal Republic of Germany maintains on the basis of the case-law of the Court and Commission Directive No 70/50 of 22 December 1969 (OJ 1970 L 13, p. 29), that the phytosanitary examinations in dispute do not satisfy the conditions necessary in order to constitute measures having an effect equivalent to quantitative restrictions. According to this Directive a measure having equivalent effect exists:
(b). As regards the second question, which it considers as far as is necessary, the Federal Republic recalls, first, the nature and gravity of the danger represented by San José Scale. This harmful organism destroys the contaminated plants entirely or in part and once a whole region is contaminated it can only be combatted with difficulty. Experience has shown that it is very difficult, even with modern techniques and considerable expenditure, to eliminate a centre of infection caused by the introduction of contaminated products. This organism is very widespread in the Member States and only at great financial cost have the German health authorities succeeded in limiting its occurrence to a single, relatively small area. It is above all important to prevent the contamination of the nursery area of Northern Germany, the largest of its type in Europe. If it were contaminated by the parasite, its exports and thereby its essential activities would be doomed as a result of the strict protective measures applied by the other countries. The control of San José Scale has already been recognized by the Member States as absolutely necessary. In this connexion the Federal Republic refers to Council Directive No 69/466 of 8 December 1969 (OJ 1969, L 323, p. 5), and points out that the Community regulations adopted on that occasion only concerned the measures of control within the States but did not deal with the application of inspection measures at the frontier. In Article 11 of this Directive the Community legislature expressly accepted the possibility that the Member States might introduce additional or stricter provisions where they appear necessary. It thus envisaged the adoption of measures applying not only to the marketing of the products within the countries concerned, but also when they cross the frontier. This attitude is shown particularly by the fourth recital of the Directive. In addition, it is conformed by a draft Directive submitted to the Council by the Commission concerning protective measures to prevent the introduction into the Member States of organisms harmful to fruit and plants. Moreover, the need to carry out a phytosanitary examination at the frontier has also been recognized on a wider scale than that of the Community. After referring to the International Plant Protection Convention of 6 December 1951 and the Convention for the Establishment of the European and Mediterranean Plant Protection Organization of 18 April 1951, of which the Member States of the Community are signatories, the Federal Republic notes that the measures adopted in Germany in order to avoid the introduction of San José Scale and other harmful organisms corresponds to the effort made in this area on a world scale.
(c). As regards the third question, the Federal Republic states first that the phytosanitary examinations to which imported apples are subject are only carried out by random checks on each consignment (railway truck, lorry): the fruit is never inspected in detail nor are samples taken from small quantities.
C —. Observations submitted by the Commission of the European Communities
(a). The first question
(b). The second question
(c). The third question
1. The obligation to have plant products inspected on importation from other Member States for contamination with certain harmful organisms, where a refusal to allow the phytosanitary examination means that the import of the goods will be prohibited, is likely to make importation more difficult or costly and, apart from the exceptions laid down by Community law itself, must therefore be regarded as a measure having an effect equivalent to a quantitative restriction.
2. Even after the date by which the Member States were obliged to observe the minimum provisions laid down in the Council Directive of 8 December 1969 on the control of San José Scale (69/466/EEC, OJ L 323 of 24. 12. 1969, p. 5), phytosanitary examinations imposed at the frontier under domestic law to prevent the introduction of San José Scale may be justified as necessary to protect the health and life of plants.
3. An obligatory phytosanitary inspection on the importation of foreign apples does not constitute arbitrary discrimination merely because apples produced in the importing country are not subject to a similar requirement of inspection when despatched. On the other hand, such discrimination would exist if, on the adoption of provisions or directives in this connexion, an objective assessment of the general gravity of the risk of contagion based, inter alia, on the available information regarding the actual contamination, the season, the area of origin and all the measures of prevention and control actually applied, showed the risk of contamination from imported apples to be equal to or less than that arising from corresponding home-produced apples. The production of an official certificate of soundness from the country of origin is an essential factor in such assessment
III —. Oral Procedure
1. By an order of 24 October 1974 received at the Court Registry on 13 January 1975, the Verwaltungsgericht Köln 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.
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.
3. Article 30 of the Treaty prohibits quantitative restrictions on imports and all measures having equivalent effect between Member States.
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.
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.
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.
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.
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.
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.
On those grounds, THE COURT in answer to the question referred to it by the Verwaltungsgericht Köln, 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 José 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 organism's spreading if no inspection is held on importation.