|Judgment - Regina v. Minister of Agriculture, Fisheries and Food, Ex parte Anastasiou (Pissouri) Limited and Others continued|
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Of considerable importance to the argument in the appeal is article 9. That requires in the case of products to which special requirements laid down in Annex IV, Part A apply the official phytosanitary certificate required pursuant to article 7 shall have been issued in the country in which the plant, plant products and other objects originate, save:
Item 16.1 in Annex IV Part AI, applicable to plant products originating outside the Community, comprises "fruits of Citrus L, Fortunella Swingle, Poncirus RaF. and their hybrids" and provides that "the fruits shall be free from peduncles and leaves and the packaging shall bear an appropriate origin mark."
The appellants refer to the emphasis in the Directive on inspection and certification close to the place of production. That they say rules out an intermediate inspection. Valid certification should only take place following "meticulous inspection" of the products, if appropriate in their entirety. This can only be done at the place of production other than where re-forwarding certificates are permissible or to the limited extent provided for by Article 9 in respect of specific precautions. A mere inspection on the ship in a port is not a sufficient safeguard even if carried out on all the containers in the ship. This approach they say is the one which is consistent with the International Convention on Plant Control.
The respondents reply further that article 12 refers to articles 7 and 8 which must be applied and adapted for goods coming from outside the Community. It does not refer back to article 6. Article 6(4) requires that products originating in the Community (those in Annex V Part A) shall be examined "on the premises, preferably at the place of production." There is no express provision as to where the examination of Annex V Part B products, those originating outside the Community, should take place. In the alternative the respondent says that once Annex IV lays down a special requirement, as it does here in respect of stalks and leaves, the certificate, i.e. the whole phytosanitary certificate, may be given other than at the place of origin if the special requirements can be fulfilled there. There can only be one certificate and it is not possible to have different certificates dealing with different matters.
As to the argument on article 9, the Court of Appeal whose decision on this point is supported by the respondents held that by virtue of article 9 once there is a special requirement for a product falling within Annex IV A (as here that there shall be no stalks and leaves) it is not necessary for the consignment to be covered by a certificate from the country of origin. This, say the appellants, is contrary to the clear provision of article 9 that the certificate of the country of origin is only not required "to the extent that the special requirements . . . can be fulfilled also at places other than that of origin." (Emphasis added.) As to the rest there must be a certificate from the country of origin. If it were otherwise the object of the Directive to ensure control at or close to the place of production would be defeated and the absurd result would follow that a more lax standard would be accepted for goods coming from third countries than from Member States where the Community can set standards particularly in regard to matter falling within Annexes 1 and II.
The appellants say further that the respondent's whole approach is inconsistent with the current and the original wording of article 9. In the first version of the Directive article 9 provided that the goods listed in Annex IV Part A needed a certificate "issued in the country in which they originate or by a certified copy of that certificate in addition to the certificates provided for in articles 7 and 8," yet the heading to Annex V had, as it has now, a reference to inspection "in the country of origin or the consignor country." The respondent replies that the appellants have misunderstood the Directive and that it is important to trace the changes which have been made in the wording of the Directive in order properly to understand the current wording of Annex V and its heading. The latter makes it clear that a certificate from a consignor country is sufficient. The appellants have, on the other hand, to meet the respondent's reference to the heading to Annex V where it is said that for goods originating outside the Community the inspection may take place in "the country of origin or the consignor country" and their argument that consequently it is only for goods originating in the Community that the inspection must be at the place of production. The appellants reply that this argument produces a result inconsistent with the aim of the Directive which is to take protective measures against harmful organisms coming into a Member State. The text of the articles in a directive should not be controlled by the heading to an annex.
Whichever side is right, it seems to me clear that this question of the interpretation of the Directive has to be decided before judgment can be given in the case. The matter is not covered by the judgment of the European Court given in the earlier reference nor in any case cited to your Lordships' House. Given the appellants' arguments, but in the contrary sense the opinion of the judge and the Court of Appeal, the answer is not so clear and obvious that no reference is necessary. I consider that the House is obliged by article 177 of the Treaty of Rome to make a reference on this issue and therefore I do not set out in more detail the arguments of the parties elaborating the basic division between them which I believe to be sufficiently set out in what I have said.
The appellants' second point is that in its judgment in the first Anastasiou case C 432/92 the European Court stressed that the Directive is based on cooperation between the importing state and the country of origin. Without such cooperation the country of origin cannot take action to eradicate or prevent the contamination of plant products originating in its territories. This is an essential objective also of the International Plant Protection Convention of 6 December 1952 and of the European and Mediterranean Plant Protection Organisation, of the latter of which Cyprus is a member. The TRNC could not give the necessary certificate on the facts of that case or of the present case. As the European Court put it in its judgment:
61 It should be noted that the common system of protection against the introduction of harmful organisms in products imported from non- member countries, laid down in Directive 77/93, is based essentially on a system of checks carried out by experts lawfully empowered for that purpose by the Government of the exporting State and guaranteed by the issue of the appropriate phytosanitary certificate. The conditions governing acceptance of those certificates as a uniform means of proof must consequently be absolutely identical in all the Member States. . . .
63 Furthermore, any difficulty or doubt concerning a certificate must be brought to the attention of the authorities of the exporting State by the importing Member State. . . . It would be impossible for an importing State to address enquiries to the departments or officials of an entity which is not recognized, for instance concerning contaminated products or certificates that are incorrect or have been interfered with. Clearly only the authorities of the Republic of Cyprus are in a position to take action following complaints connected with the contamination of plant products exported from Cyprus."
Even less, say the appellants, can Turkey give such a certificate covering all the matters required to be considered, even if it can certify that the fruit is free of stalks and leaves following an inspection on the ship in the Turkish port. There is no way in which Turkey can inspect growing plants, areas under cultivation or the picking and packing of the fruit in order to be sure that any pests or disease are spotted and controlled. Other than in relation to stalks and leaves there cannot be the necessary cooperation between the Republic of Cyprus and Turkey (even de facto between the TRNC and Turkey) to carry out the necessary inspection. Accordingly the United Kingdom must not allow the import of citrus products covered by a phytosanitary certificate issued by Turkey where the ship merely called in at a Turkish port for a few hours and where the fruits were not imported into Turkey. The most that Turkey could do was to issue a re-forwarding certificate attached to the original or to a copy of the phytosanitary certificate issued by the Republic of Cyprus.
The respondent replies that the question of certificates issued in a third country was neither an issue, nor addressed, in the earlier judgment. Moreover the court was only considering cooperation as to enquiries or doubts regarding these certificates, since those who issued the certificate were not officials of a recognised state. There will be no difficulty in the United Kingdom authorities consulting Turkish officials about the certificates or about their procedures. The European Court was not concerned with cooperation as to the effective operation of the plant health regime. What it said has no effect on the present issue.
The appellants attach much importance to this point of cooperation based as it is on the judgment of the European Court. If it is right they may well be entitled to the order they seek and it is plainly necessary to decide the point before judgment can be given. But once again it is plain that the issue, in so far as it involves sending the goods to a third country and their onward transmission to the Community, was not raised before the European Court of Justice. There is a real question as to how far the statements of the Court as to cooperation should be taken to cover third countries. The point is in any event linked to the broader question of interpretation raised in the first point. It should in my opinion be referred to the European Court pursuant to Article 177 of the Treaty.
The appellants' third point is that on the facts there is only one reason for sending the fruits from the TRNC to Turkey before they are sent to a Member State. That reason is to circumvent the European Court's judgment in Anastasiou C 432/92. The interveners only applied to take part in the proceedings before the European Court twelve days before the hearing; they did not raise any issue relevant to the present appeal; they adopted the present practice of sending the fruits to Citex, which in reality is the same as the interveners, only four days after Popplewell J.'s judgment. This is a "device" to avoid the effect of the European Court's judgment.
The respondents say that what the interveners did was no more than to "comply with the Directive in the light of the ruling of the Court of Justice" that examination and certification by officials of the TRNC were not acceptable. The validity of the Turkish certification cannot in any event be questioned in these proceedings.
Contrary to the appellants' submissions I do not consider that the interveners can be penalised for not raising before the European Court of Justice in the earlier case the question whether it would be lawful to route goods in the way they did. Until they had the ruling of the European Court they did not know for certain that the certificates issued by TRNC officials were insufficient. I do not see there is any question of an abuse of process of the court for this matter to have been left until after that ruling. Nor can the interveners be prevented from changing their arrangements so as to comply with the judgment of the European Court in the first reference so long as they do it lawfully.
There are, on the other hand, cases where the European Court has accepted that steps taken in order to "circumvent" one legal rule are not to be allowed (see e.g. TVIO SA v. Commissariaat Voor de Media (Case C- 23/93)  E.C.R. I-4795; see also Reg. v. H.M. Treasury and Commissioners of Inland Revenue, Ex parte Daily Mail and General Trust Plc. (Case 81/87)  E.C.R. 5483). Those cases are different from the present but whether it is lawful to send the fruits to Turkey to obtain another phytosanitary certificate, rather than a re-forwarding certificate, in order to avoid the difficulty that TRNC certificates are unacceptable, is what this case is all about. It may be that this issue will not arise if the appellants succeed on the first or the second issue. But I do not think that it can be said that the appellants' contention that what happened here is unacceptable under Community law, as a way of avoiding the court's earlier judgment in Anastasiou, is unarguable. That does not in any way involve seeking to go behind the Turkish Certificate contrary to what was said in Aksionairnoye Obschestvo A.M. Luther v. James Sagor & Co.  3 K.B. 532.
It seems to me that this point has to be decided if the appellants fail on the first and the second issues and the three issues are in any event so interlinked that I would refer a question on this point also. If the European Court takes the view that this is a distinct point on which the appellants can succeed in Community law it will have been important to make the reference. If it takes the view that the other points decide the case or that a lawful rather than unlawful procedure ("device") has been adopted it will be able to say so without the reference being much extended.
In any event I do not consider that this is a case when no reference should be made because there has already been a reference. The issues are not the same. I would accordingly refer the following questions to the European Court in the light of written proposals and submissions made by the three parties since the hearing before your Lordships.
1. Under article 12(1)(b) of Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of organisms harmful to plants or plant products as amended, ("the Directive") is a Member State entitled to accept (and if so in what circumstances and subject to what conditions) the introduction into its territories of plants as defined in the Directive ("plants") originating in non-Member countries and listed in Annex V, Part B of the Directive where those plants are accompanied only by a phytosanitary certificate issued by a Non-Member country from which the plants have been transported to the Community and not by a phytosanitary certificate issued by the non-Member country of origin?
2. Does the answer to Question 1 differ, and if so how, if the relevant plants are subject to special requirements laid down in Annex IV, Part A, Section 1 of the Directive which can be fulfilled in non-Member countries other than that of origin within the meaning of Article 9(1) of the Directive?
3. Is the Judgment of the Court of Justice in Case C-432/92 Anastasiou  E.C.R. I-3087 to be interpreted and applied so as to preclude the national authorities of a Member State from permitting the importation of citrus fruits originating in the part of Cyprus to the north of the United Nations Buffer Zone when they are accompanied by a phytosanitary certificate which has been issued by the authorities of another non-Member country from which those citrus fruits have been transported to the Community.
4. Are the answers to any of the above questions different where:
a. the relevant plants were never imported into the non-Member country in which the phytosanitary certificate which accompanied them to the Community was issued in the sense that they were never unloaded from the ship in question and/or never passed the custom barrier; and/or
b. the special requirements that applied to the relevant plants had already been satisfied in the country of origin?
5. Are the answers to Questions 1 and 2 different where the relevant plants were submitted for the certification in a non-Member Country other than that of origin, not for any plant health reason, but so as not to have to obtain a phytosanitary certificate from the authorities empowered to do so in the country of origin?
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley. For the reasons he gives I would also make the order he proposes.
LORD HOPE OF CRAIGHEAD
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley. I agree with it, and for the reasons which he has given I would make the same order.
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley. I agree with it, and for the reasons which he gives I would make the order which he proposes.
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