House of Lords
|Session 2001- 02
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|Judgments - Regina v. Minister of Agriculture, Fisheries and Food (Respondent) Ex P S P Anastasiou (Pissouri) Limited and Others (Appellants)
HOUSE OF LORDS
Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
MINISTER OF AGRICULTURE, FISHERIES AND FOOD
EX P S P ANASTASIOU (PISSOURI) LIMITED AND OTHERS
ON 17 DECEMBER 2001
 UKHL 71
LORD SLYNN OF HADLEY
1. This is a further stage in the dispute between SP Anastasiou (Pissouri) Ltd and the Minister of Agriculture Fisheries and Food concerning the importation of citrus fruits from the northern part of Cyprus (known as the Turkish Republic of Northern Cyprus - "The TRNC") into the United Kingdom. The dispute concerned two particular shipments in March 1995 which went first to Turkey and thereafter to the United Kingdom. The two exporters of such fruits from the northern part of Cyprus have intervened in the proceedings which are of direct concern to them. The earlier stages of this litigation are set out in my speech of 20 May 1998 to which I refer.
2. In summary the first round of the litigation concerned the question whether a movement certificate and a phytosanitary certificate purporting to be issued in accordance with Community requirements were valid if issued by officials of the TRNC. Following a reference by the High Court pursuant to article 177 of the EEC Treaty, the European Court of Justice on 5 July 1994 held that the European-Cyprus Association Agreement of 1972 in respect of the movement certificate, and Council Directive 77/93/EEC (OJ 1977 No L26/20), as amended, on "protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community", in respect of the phytosanitary certificate, could not be accepted in respect of citrus fruits and potatoes imported from the TRNC unless they were issued by the competent authorities of the Republic of Cyprus: R v Minister of Agriculture, Fisheries and Food, Ex p SP Anastasiou (Pissouri) Ltd (Case C-432/92)  ECR 1-3087.
3. Popplewell J on 11 November 1994 made a declaration to that effect but his decision was challenged in the Court of Appeal by the Minister. The appellants in riposte sought an order restraining the Minister from allowing into the United Kingdom citrus fruits or products "produced" in the TRNC. The consignment of citrus fruits was taken with a phytosanitary certificate issued by the TRNC to a Turkish port and after a short period of time during which there was an inspection followed by the issue of a certificate by the Turkish authorities that they conformed to the phytosanitary conditions of the importing country. The question which arose and which had not been relevant on the first round was whether this certificate issued by Turkey entitled the citrus fruits produced in the TRNC (having TRNC certificates not acceptable here) to be imported into the United Kingdom. The European Court of Justice in reply to questions referred by your Lordships House pursuant to article 177 of the EC Treaty replied by judgment of 4 July 2000 (Case C-219/98) that the said Council Directive 77/93/EEC, as amended
4. The European Court further held that it was not for the Member States concerned to take account of the reason for which a phytosanitary certificate had not been issued in the country of origin of the plants in determining whether the certificate complies with the requirement of the Directive as amended.
5. When the matter came back before your Lordships the appellants contended that the citrus fruits in question were subject to special requirements that could only be satisfied in the country of origin. Without such certificate they could not be imported into the United Kingdom.
6. By article 12(1) of Directive 77/93/EEC in force at the date of the European Court's judgment citrus fruits had to be accompanied by a phytosanitary certificate as prescribed by articles 7 and 8. One of the provisions of article 7 was that the certificate must conform to the model certificate referred to, which required in box 5 that in all cases the place of origin should be indicated. By article 9 it was provided that where special requirements had been laid down in Annex IV, Part A, the official phytosanitary certificate
7. In effect the question which the appellants sought to raise was whether the special requirements of item 16.1 of Annex IV, Part A of Directive 77/93/EEC as amended, that the packaging of citrus fruits bear an appropriate mark of origin could be fulfilled in a place other than in the place of origin.
8. Leave was given for both written and oral arguments to be addressed on this issue. The appellants further sought to rely on the provisions of item 16.2, 16.3 and 16.3(a) of the Annex as amended by Directive 98/2/EC, both as supporting their conclusions in regard to item 16.1 and as a discrete ground.
9. These two points have to be considered separately though they are inter-related.
10. Part A of Annex IV specifies special requirements which "must be laid down by all Member States for the introduction and movement of plants, plant products and other objects into and within all Member States" and section I deals with such objects "originating outside the Community".
11. In item 16.1 in section I the objects are "Fruits of Citrus L, fortunella Swingle, poncirus Raf, and their hybrids, originating in third countries". The special requirements are
In items 16.2, 16.3 and 16.3(a) the special requirements were that, in respect of those fruits where "Xanthomonas campestris (all strains pathogenic to Citrus) is known to occur. An official statement should be available to the effect that "the fruits originate in areas known to be free from the relevant organism" or if that could not be met that no symptoms had been observed at the place of production during a defined period, that they had not shown any symptoms and the fruits had been subjected to appropriate treatment. Such requirements were also subject to the provision of Annex III (B) relating to citrus fruits originating in third countries, the introduction of which was prohibited in certain specified zones.
12. By the Plant Health (Great Britain) Order 1993 (SI 1993/1320) Schedule 4A2 (31.1) the packaging of the citrus and other fruits specified in the Directive "shall bear an appropriate origin mark".
13. The appellants contend that the requirement that the packaging of the goods bear "the appropriate mark" must be fulfilled in the Country of origin. The Ministry contends that that is not necessary. The requirement can be fulfilled in a third country and if that is done international comity requires that no inquiry should be made as to the certification process. The phytosanitary certificate issued by a third country under article 12(1)(b) of the Directive in the form of the International Plant Protection Convention model contains a declaration of the place of origin certified by an official and an official stamp. It represents a much higher level of assurance than that offered by the "appropriate origin mark" on the packaging. The phytosanitary certificate also indicated whether the requirements of items 16.2 et seq applied and since in the earlier version of 16.2 et seq, diseases were not known to occur in Cyprus and subsequent to Directive 98/2/EC were certified not to occur in Cyprus, the requirements of article 16.2 et seq did not apply. Moreover the fact that a plant passport was not required for citrus fruits stripped of leaves and peduncles shows that the regime of protection is "relatively low level". One reason for having the mark of origin was to enable it to be seen whether the fruit could be denied entry to the protected zones set up under article 4 (2) and Annex III (B) of the Directive. The removal of protected zones for citrus fruits under Directive 99/53/EC took away this reason for the existence of the mark of origin requirement.
14. By article 9(1) of Directive 77/93/EC the official phytosanitary certificate issued pursuant to article 7 in the case of plants to which special requirements laid down in Annex IV apply "shall have been issued in the country in which the plant, plant products and other objects originate". If those words stood alone it is plain that the certificate here could only validly be issued by the Republic of Cyprus. There was an exception to that provision but it is only "to the extent" that the special requirements "can be fulfilled also at places other than that of origin".
15. It is now accepted that the phytosanitary certificate which certifies that the plants are free of peduncles and leaves (the first requirement) can be accepted from a non-member third country where the fruits do not originate so long as they have been imported into that third country for checks and so long as they have remained in that country for a sufficient time to enable "proper checks to be completed" as the European Court held. Whether the citrus fruits still have stalks and leaves on them when inspected in a third country is something which can, if the necessary steps are taken, be accurately and authoritatively checked there and at that time. The second requirement is in one respect comparable and in another respect not comparable to the first requirement. The second requirement is that the "packaging shall bear an appropriate origin mark". If all that involves is that someone in a third country, or even someone who has inspected the fruits in a third country, should write on the packaging the name of the country from which they are believed or accepted to have originated then the special requirements are easily fulfilled. I am not satisfied however that that is all that is required. In the first place the mark must be "an appropriate origin mark". Prima facie that indicates to my mind a mark fixed by someone who can positively state what is the origin and not someone who simply relies on invoices or transport documents. That lends support to the contention that the appropriate mark can only be fixed by someone in the country of origin eg the producer, the recognised government authority (here Cyprus, not the TRNC) or the exporter.
16. I do not consider that the fact that both special requirements are contained in one phrase means that they must both be treated alike. Certifying that the fruits in front of the third country examiner have no leaves or stalks is one thing. It is within the actual knowledge of the examiner. Certifying that they have originated in a particular country is another in respect of which the third country examiner cannot make a direct personal assessment. He can only rely on shipping documents, which may only show the port of export rather than where the goods originate, or the invoices. His assessment of the invoices may be reliable if the invoices are genuine. An authentic statement is needed even more where the invoices may not be genuine. That can best come from the country of origin.
17. The alternative (that the requirement may be satisfied in a third country) is as a matter of prima facie interpretation arguable. One must then ask whether the purpose of this item 16.1 requirement in the context of the Directive as a whole requires that the origin mark should be stated on the package (and in box 5 of the phytosanitary certificate) by someone in the country of origin. In that regard it seems clear that an origin mark is required for several purposes. It informs the purchaser. It shows officials at the importation port whether the goods have come from inside or outside the Community or from another country with which for example the Community has an Association Agreement or some other trade agreement which will indicate regulations applying to it.
18. But clearly the most important purpose of both the phytosanitary certificate and the special requirement that an "appropriate origin mark" is required is to enable the authorities of the importing State to know whether the goods have come from a country where there is a risk of harmful plant organisms or disease. It is emphasised by the third recital in the preamble to Directive 92/103/EEC:
19. It is plain that the intention was to have a greater degree of protection in respect of products for which special requirements were laid down than those for which special requirements were not imposed. It seems to me that a higher degree of protection is given in a case where the origin mark is entered on the package in the country from which the plant products originally came than if the origin is recorded at a subsequent stage in a third country. That is relevant not only on first importation but on future dealings with the goods after importation and before the packaging is removed. The authenticity of the statement on the packaging may thus be more important than the statement in box 5 of the phytosanitary certificate which is retained on importation.
20. These factors seem to me to point to the need for the packaging to bear the origin mark in the country of origin. That in effect means that the mark has to be attached to or printed on the packaging there. Only there is it possible to be sure that the mark is an "appropriate" mark to achieve that purposes of the legislation.
21. This question was considered by the Advocate General in Case C-219/98. He drew attention to the fact that the special requirements merely demand that the goods bear an appropriate origin mark without any reference to the fact of origin, how it is certified or by whom. In his view "appropriate" indicated that the mark should be fixed in the country of origin. He relied on the drafting history as supporting that view. He stressed that the shipping documents only show that the goods were shipped from Cyprus rather than that they originated in Cyprus and he raised doubts as to whether it would be in any event appropriate for a third country (such as Turkey) to rely on the certification by authorities in the TRNC when such authorities are not recognised by the Community or by its Member States and with whom such cooperation is not possible.
22. The Advocate General added
23. The Court did not deal with this issue. I doubt if it is useful to speculate why it chose not to do so. It is plainly impossible to contend that the Court, if it did not expressly deal with the matter disagreed, with the Advocate General. It seems more likely that they considered that on the specific questions put to the Court that this issue did not arise. It seems to me that where the national Court finds a closely reasoned opinion of the Advocate General and does not consider that the opinion is clearly wrong it should attach considerable weight to it in the absence of an indication by the Court that the Court disagrees. The Advocate General's conclusion on item 16.1 supports the view which I have so far expressed.
24. The appellant seeks to rely on amendments made to items 16.2, 16.3 and 16.3(a) to support their case. This was not argued or referred to in the hearings before the European Court or before your Lordships on the previous occasion. The appellants cannot raise the issue without leave and the respondent opposes the grant of leave. The amendments were only published on 8 January 1998 shortly before the hearing in Anastasiou No 2 and it is understandable that they were overlooked. I consider that there are here relevant arguments which could have an effect on the eventual decision as to whether citrus fruit can or must be allowed entry into the United Kingdom.
25. Item 16.1 raised this matter and I consider it right that, despite the lateness of the application, both the issue under item 16.1 and the related question in respect of the subsequent items should be dealt with by your Lordships.
26. Item 16.2, 16.3 and 16.3(a), before the 1998 amendments provided that as a special requirement for citrus fruit originating in third countries where certain diseases were known to occur, that such fruits must have an official statement that "the fruits originate in areas known to be free from the relevant organism" or if this cannot be said that no symptoms had been shown at the place of production during the period prescribed or that they have been subject to testing.
27. In Directive 98/2/EEC of the 8 January 1998 it was recited that
In the amended item 16.1 and the following items the respective products are described as "fruits of citrus L originating in third countries".
28. The limitation to countries where the diseases where harmful organisms are "known to occur" is thus removed. Moreover the official statement referred to in items 16.2 and 16.3(a) must be that "(a) the fruits originate in a country recognised as being free from" the various diseases or that they originated in an area recognised as being free in accordance with the procedure laid down in article 16(a) and mentioned in the phytosanitary certificate referred to in articles 7 or 8 of the Directive.
29. Similar provisions apply to items 16.3 and 16.3(a).
30. There thus had to be an official statement for items 16.2 et seq that the fruits originated in the country recognised as being free from the harmful organisms and this applied to all citrus fruits, not just those originating in third countries where the harmful organisms were known to occur. The corollary was that some third countries were recognised by the Commission as being free from certain harmful organisms pathogenic to citrus as in decision 98/83/EC.
31. It seems to me that the official statement that the fruits originated in an area recognised as being free from the harmful organisms and that no symptoms have been observed in the field of production, that none of the fruits harvested in the field of production had shown symptoms or that the fruits have been packed at premises or dispatching centres registered for this purpose, can only be effectively provided in the country of origin. That in itself is an indication that what is required is an official statement issued in the country of origin. If this is so for items16.2 and 16.3 and 16.3(a) it seems to me that for the purposes of providing better (ie more effective, more reliable) protection against harmful organisms being carried into the Community, the origin mark under item 16.1 needs to be affixed in the country of origin and the special requirement as to the origin mark cannot be fulfilled also at places other than that of origin. It follows that a phytosanitary certificate required pursuant to articles 7 and 9 of Directive 77/93/EEC (now articles 7 and 9 of Directive 2000/29/EC) can only be given in the country of origin.
32. This result seems to me to satisfy not only the language but also the purpose of the Directive in seeking to eradicate harmful organisms. It does not seem to me to follow that, because item 16.2 et seq require an official statement by an official in the country of origin, that the mark of origin on the packages can be fixed in a third country in order to distinguish between the two and to avoid duplication. The mark of origin is in part to identify visibly and, it is hoped, durably the origin of the goods. But it is also to give an authentic statement of origin on which officials of the importing country can rely. That it seems to me can be best and most effectively given in the country of origin. I see no reason why the Community should not have wished to have such an authentic mark of origin from the country of origin and good reason why it should. If there is duplication in the two documentsthe package under item 16.1 and the official statement under item 16.2 et seqthat can only serve to increase the protection; both are directed to the same purpose.
33. I should add that it seems to me contrary to what I understand to be the Minister's argument that even if the protected zones have been abolished, the appropriate origin mark on the package still serves a purpose in that if harmful organisms or diseases are subsequently found the fruit can be traced back to the country of origin.
34. I recognise that this approach to items 16.2 to 16.4 is relevant to a wider range of goods than citrus fruits and that it causes serious concern to the Minister. Since we are not agreed on the proper interpretation of item 16.1 and in view of the importance of the issue under items 16.2 to 16.4 to the Minister and to others it seems to me that, regrettable though a further reference to the European Court is, it is necessary in order for the House to give judgment to decide these questions. Accordingly as the final national Court in respect of these issues the House is bound to refer them to the European Court, pursuant to article 234 of the Treaty. The questions referred should be on the lines:
Whether the official statement required by items 16.2 to 16.4 of Directive 2000/29/EC as to the country of origin must be made by an official in the country of origin or whether it may be made by an official in such other third country.”
35. Having considered your Lordships' conclusions the parties may, before the final order for reference is drawn up, make written submissions to the House as to the content of these questions if they wish to do so. The matter will then come back before the House when the reply of the European Court has been received.
36. I have read the opinions of my noble and learned friend, Lord Slynn of Hadley and Lord Hope of Craighead. In a finely balanced case I am persuaded by the reasons given by Lord Slynn and I would make the order he proposes.
LORD HOPE OF CRAIGHEAD
37. These proceedings relate to two consignments of citrus fruit originating in the part of Cyprus north of the United Nations Buffer Zone ("the northern part of Cyprus") that were shipped to the United Kingdom in March 1995 by way of a port in Turkey where the phytosanitary certificates that accompanied them on their entry to the Community were issued by the Turkish authorities.
38. In R v Minister of Agriculture, Fisheries and Food, Ex p SP Anastasiou (Pissouri) Ltd (Case C-432/92)  ECR I-3087 ("Anastasiou I") the European Court of Justice held that Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community ("the Plant Health Directive"), as amended by inter alia Council Directive 91/683/EEC and Commission Directive 92/103/EEC, precluded the acceptance by the national authorities of a Member State of phytosanitary certificates issued by authorities other than the competent authorities of the Republic of Cyprus where citrus fruit is imported from the northern part of Cyprus. It was in the light of that judgment that the exporters of the citrus fruit from the northern part of Cyprus made the arrangements for the inspection of the cargo in a Turkish port and the issuing of phytosanitary certificates there which have led to these further stages in this protracted dispute.
39. On 20 May 1998 your Lordships referred five questions to the European Court of Justice for a preliminary ruling under article 177 of the EC Treaty (now article 234 EC) on the interpretation of the Plant Health Directive relating to the acceptance by a Member State of plants originating in non-member countries which were accompanied by a phytosanitary certificate not issued by the non-member country of origin. The essential issue raised by these questions was whether, if the citrus fruit could not lawfully be imported directly into the United Kingdom with phytosanitory certificates issued in the northern part of Cyprus, they could lawfully be imported here if they were sent first to a Turkish port from which, backed by phytosanitary certificates issued in that port, they were sent on to this country.