Opinion of Mr Advocate General Capotorti
Mr President,
Members of the Court,
1. By application received on 4 February 1982, the Commission requested the Court to declare that, by prohibiting imports and introducing an import licensing system in the poultry products sector, the United Kingdom had failed to fulfil its obligations under Article 30 of the EEC Treaty.
2. The legal aspects of the dispute are simple. There is no doubt that a measure which wholly denies seven Member States, whilst they adhere to their system of preventive vaccination, any possibility of exporting fresh or frozen poultrymeat to Great Britain and at the same time subjects to special licensing any importation of egg products, is equivalent to a quantitative restriction on imports. Similarly, there is no doubt that a measure of that kind is compatible with Community law if it falls within the scope of the derogation from the prohibition contained in Article 30 which is provided for in Article 36 of the EEC Treaty.
3. In the oral procedure Counsel for the French Government maintained that the United Kingdom measures were unlawful by reason of Article 11 of Directive No 71/118, except as far as trade in eggs was concerned, a matter not covered by the directive. In the first place, in fact, Article 11(1) must be regarded as a provision intended to freeze the national animal-health rules regarding trade in live poultry and fresh poultrvmeat; consequently, the Member Sutes were precluded from making any change in their rules until the entry into force of harmonizing Community measures. In the second place, since there were rules governing the adoption of measures intended to combat the danger that animal diseases [might] be spread by the introduction into [the territory of a Member Sute] of fresh poultrymeat from another Member State, paragraphs (2) to (5) of Article 11 divested the Member Sutes of any legislative powers in that respect and their authority to prohibit or limit the import of meat from other Member Sutes on health grounds is strictly subject to the conditions laid down in subparagraphs (a) and (b) of paragraph (2). The United Kingdom measures, which fall within that category and do not conform to the conditions of the directive, are also unlawful from that sundpoint.
4. It is well known that Article 36 of the EEC Treaty, in derogation from Articles 30 to 34, permits inter alia prohibitions or restrictions on imports, exports or goods in transit justified on grounds of ... the protection of health and life of ... animals ..., provided that they do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
5. Turning to the present case, I should point out in the first place thai the breach of the Community obligations of which the United Kingdom is accused relates to two aspects of the measures of 27 August 1981, namely the prohibition of imports of poukrymeai from those Member States which do not apply the system introduced in Great Britain and the system of special licences applied to egg products. It is a question therefore of establishing whether or not those two aspects are justified by Article 36, regardless of any decision about the changeover from the system of preventive vaccination (so-called control system) to the system of non-vaccination (so-called eradication system); and in fact the Commission seems unwilling to call in question the lawfulness of the change in the United Kingdom's veterinary policy, in so far as its intrinsic merits are concerned, that is to say to the extent to which its repercussions on intra-Community trade mav be disregarded. Regard should nevertheless be had to the fact that certain restrictions on imports seem to be an integral part of any policy prohibiting preventive vaccination and eradicating Newcastle disease. Therefore, although it is true that the question to be decided is whether or not the measures concerning imports are compatible with Article 36 it is difficult to avoid consideration of the United Kingdom measures of 27 August 1981 in their entirety, in the light of that article. In the event of their being wholly unjustified, under Article 36, the special system of limitations on imports would of course likewise be unjustified; however, the possibility remains that only that system may be unjustified, in view of the existence of other possible courses of action which would be less harmful to trade.
6. I shall now examine the new United Kingdom policy for combating Newcastle disease from the point of view of its necessity for the protection of the health and life of poultry. The United Kingdom view may be summarized as follows: only the eradication method (prohibition of preventive vaccination, compulsory slaughter of poultry in the areas where there is an outbreak of the disease, prohibition of imports of vaccinated poultry) ensures the highest standard of poultry health, so that every bird, by reason of its increased vulnerability, becomes, as it were, a sentinel indicating any new outbreak of the. disease, so that the latter may be rapidly identified, the area of infection may be determined and the disease may be eliminated. Preventive vaccination, on the other hand, whilst reducing the risk of infection for the vaccinated poultry, increases the concealed danger constituted by the vaccinated poultry, which may be carriers of the field virus and may therefore infect unvaccinated poultry; in such case, any new outbreak of the disease would be detected less promptly and less effectively.
7. As I have already had occasion to emphasize, it is possible to disregard the contested measures as a whole and merely consider, in the light of the rules of Community law, the restrictions on imports which are specifically contested by the applicant. I shall therefore consider, within the logic of the new United Kingdom system, whether those restrictions were necessary.
8. The foregoing considerations seem to me to show not only that those measures, as regards their restrictive effect on inira-Communiiy trade, were in no sense necessary but rather were excessive with respect to the desired result, which was to ensure the success of the system intended to eradicate Newcastle disease. However, the extent to which the principle of proportionality has been observed must also be verified in relation to another aspea: the damage caused to intra-Community trade must be assessed and compared with the advantage which the United Kingdom may expect to gain from the new policy, from tne veterinary point of view. The first factor (damage) is certainly conspicuous: a flow of exports from France valued, according to the 1980 Eurostat statistics for 1980, at 4809000 European units of account for that year, has been suspended. Thus, reliance may be placed on the statements made by Counsel for the French Government who spoke of poultry undertakings which were obliged to alter their production levels drastically and which were on the threshold of bankruptcy. In addition, there is a definite disadvantage for the British consumer since the prices of poultry, and particularly of turkeys, naturally rose after restrictions were imposed on imports. As regards the second factor (enhanced health of poultry bred in Great Britain), in actual fact it carries no weight at all: although it is true, as I have stated, that in recent years Newcastle disease has no longer occurred in Great Britain, the maintenance of that situation — that is to say the best results conceivable under the new system — will merely represent consolidation of an advantage already acquired.
9. The Commission also maintains that the United Kingdom import restrictions constitute an arbitrary means of discrimination, infringing the provisions of the last sentence of Article 36. That view is based on two facts: on the one hand, whilst the restriction of imports was applied as from 1 September 1981, the sale in Great Britain of vaccinated poultry from local flocks was allowed for at least one year beyond that date; on the other hand, the import of exotic birds — potentially dangerous because of their ability to spread Newcastle disease — was permitted until 1 October 1981, then suspended, and then rendered subject to restrictions only as from 18 January 1982, in the form of a measure which is in any case less stringent than that relating to poultry (it merely requires veterinary examinations and a period of quarantine). According to the defendant Sute, such differences of treatment are merely an aspect of the new veterinary system introduced to combat Newcastle disease and are not of such a kind as to be assessed separately under Article 36.
10. The final passage of that article states, as I mentioned at the beginning, that the prohibitions and restrictions on imports provided for therein are not to constitute a disguised restriction on trade between Member States.
11. There remains to be examined the problem of the special impon licences prescribed by the United Kingdom for egg products which had undergone heat treatment. The Commission points out that that barrier to the free movement of goods is in no way justifiable under Article 36, since special licences in the poultry sector provide no further guarantee than that provided by the health certificates issued by the competent authorities in the exporting Member State. The restriction in question is therefore disproportionate with respect to the objective pursued and is contrary to Article 30 of the EEC Treaty.
12. In conclusion, I consider that the United Kingdom measures of 27 August 1981 and the amending measures of 4 September 1981 relating to the conditions applicable to the importation of egg products are not justified under Article 36 of the EEC Treaty, for the numerous reasons I have set out above. Consequently, I propose that the Court declare that, by adopting those measures, the United Kingdom has failed to fulfil its obligations under Article 30 of the Treaty. Finally, as regards the system which had already been in force for several years in Northern Ireland, I propose that the Court reserve its decision until a later stage.
1 Translated from the Italian.