Judgments - Regina v. Minister of Agriculture, Fisheries and Food (Respondent) Ex P S P Anastasiou (Pissouri) Limited and Others (Appellants)

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    40. On 4 July 2000 the Court issued its judgment in which it ruled that phytosanitary certificates issued by a non-member country from which the plants do not originate can be accepted provided that, among other things, "they are not subject to special requirements that can only be satisfied in their place of origin": Anastasiou and Others (Case C-219/98) 4 July 2000 ("Anastasiou II"). At a hearing on 7 December 2000 the appellants sought leave from the Appellate Committee to raise a question which had not been mentioned during the previous hearing in your Lordships' House. This was whether the special requirement in item 16.1 of Annex IV, Part A of the Plant Health Directive that the packaging of citrus fruits bear an appropriate origin mark requires an official statement of origin to be made in all cases where citrus fruit is introduced into the Community from non-member countries. Leave was given to all parties to make submissions on this question, and your Lordships are now in a position to give judgment on it having heard further argument.

    41. At the hearing before the Appellate Committee on 7 December 2000 Mr Vaughan for the appellants explained that the question which he was now seeking to raise had been brought to his attention for the first time when it was mentioned briefly in the proceedings before the European Court. It was dealt with by Advocate General Fennelly in his opinion, at the end of which he recommended that the Court include in its reply to the questions referred for a preliminary ruling the following statement:

    "The special requirement that the packaging of citrus fruit bear an appropriate origin mark cannot be fulfilled at a place other than that of origin in the case of citrus fruit stated to originate in the part of Cyprus to the north of the United Nations Buffer Zone."

    42. The European Court did not follow this recommendation, and the point was not addressed in its judgment. But Mr Vaughan said that it was nevertheless an issue that required to be resolved, especially in view of the point mentioned by the Advocate General in paragraph 46 of his opinion that proof of the origin of these products was essential in order to establish that they originated in Cyprus where none of the specified plant diseases are known to occur.

    43. At the further hearing before your Lordships on 25 June 2001 Mr Vaughan sought leave to raise yet another issue. He referred to an amendment which was made to the special requirements relating to citrus fruits in Annex IV, Part A of the Plant Health Directive by Commission Directive 98/2/EC of 8 January 1998. The question which he sought to raise was whether the effect of this amendment was that citrus fruit originating in the northern part of Cyprus may only be accepted into the Community if it is accompanied by an official statement that the fruit originates in Cyprus which has been issued in the place of origin. Mr Roth for the respondent and Mr Beloff for the interveners both submitted that leave to raise this further issue should not be granted. But, as it had been addressed by all parties in their written submissions, they were content that your Lordships should nevertheless hear argument on the point without prejudice to the question whether leave to raise it should be given.

    44. I recognise the force of the arguments against the granting of leave for this further point to be argued. As Mr Roth pointed out, the Plant Health Directive has frequently been amended. It is unsatisfactory that a dispute relating to shipments which took place in 1995 should be prolonged by the taking of new points arising from amendments which were not in force at that date. Furthermore, Directive 98/2/EC was already in force at the date of the hearing which preceded your Lordships' judgment of 20 May 1998. The appellants had the opportunity then to raise this point, but they did not do so. Nor did they bring it to the attention of the European Court during the proceedings which took place there for a preliminary ruling on the questions mentioned in that judgment. Their explanation is that the Directive escaped their notice, as it was not published in the Official Journal until after they had submitted their written case to this House.

    45. Nevertheless I consider on balance that leave to raise this point should be given. The shipments which are in question in this case were intended to solve the problem which the ruling in Anastasiou I had created for the exporters of citrus fruit from the northern part of Cyprus to the Community. As these proceedings have the characteristics of a test case, it is better that all the issues which bear upon the question whether an effective solution to that problem has been found should be dealt with now. Furthermore, the point which the appellants wish to raise as to the effect of Directive 98/2/EC is closely related to the point which they wish to raise about the appropriate origin mark for which leave has already been given. Indeed, for reasons which I shall explain later, I consider that it has a very important bearing on the question as to how the phrase "an appropriate mark of origin" ought to be interpreted. Now that attention has been drawn to this Directive its existence cannot be left out of account.

    46. I agree therefore with my noble and learned friend Lord Slynn of Hadley that both the issue under item 16.1 and the related question in respect of the subsequent items should be dealt with by your Lordships.

    47. Before I deal with the question which the appellants have raised as to the effect of Directive 98/2/EC however I wish to set out the views which I have reached on the first question, which is whether the special requirement in the Plant Health Directive that the packaging shall bear an appropriate origin mark requires an official statement of origin to be made in all cases where citrus fruit is introduced into the Community from non-member countries.

The " appropriate origin mark" in item 16.1

    48. The starting point for an examination of this question is article 12.1 of the Plant Health Directive, as amended. It provides as follows:

    "Member States shall lay down, at least as regards the introduction into their territory of the plants, plant products and other objects listed in Annex V, Part B (91/683) and coming from non-member countries:

    (a) that these plants, plant products and other objects and their packaging shall be meticulously inspected on an official basis, either in their entirety or by representative sample, and that, if necessary, the vehicles transporting them shall also be inspected meticulously on an official basis in order to make sure as far as can be determined (80/392)

    -   that they are not contaminated by the harmful organisms listed in Annex I, Part A.

    -   in the case of the plants and plant products listed in Annex II Part A, that they are not contaminated by the relevant harmful organisms listed in that part of the Annex.

    -   in the case of the plants, plant products and other objects listed in Annex IV, Part A, that they comply with the relevant special requirements indicated in that part of the Annex."

    49. Annex IV, Part A lays down special requirements for "fruits of Citrus L, Fortunella Swingle, Poncirus Raf and their hybrids, originating in third countries". I refer in the following summary to the provisions of Part A prior to their amendment by Directive 98/2/EC, as it was to their provisions in their unamended form that the question as to the meaning of the phrase "an appropriate mark of origin" was directed. Item 16.1 of Part A sets out a special requirement which applies to all fruits of this description. Items 16.2 to 16.4 of Part A set out further special requirements which apply to citrus fruits originating in countries where various harmful organisms are "known to occur". It is common ground that Cyprus is a country where none of the relevant harmful organisms listed in Annex I, Part A and Annex II, Part A relating to citrus fruits are known to occur: see paragraph 7 of AG Fennelly's opinion. So the only relevant special requirement which applies to citrus fruits originating in Cyprus is that in item 16.1, which provides:

    "Without prejudice to the prohibitions applicable to the fruits in Annex IIIB (2), (3), the fruits shall be free from peduncles and leaves and the packaging shall bear an appropriate origin mark."

    50. Article 9(1) of the Directive provides:

    "In the case of plants, plant products or other objects 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:

    -   in the case of wood, if …

    -   in other cases, to the extent that the special requirements laid down in Annex IV, Part A can be fulfilled also at places other than that of origin."

The European Court gave effect to this provision in its ruling in Anastasiou II that the Plant Health Directive permitted Member States to admit into their territory plants originating in a non-member country accompanied by a certificate issued in a non-member country from which they do not originate, provided inter alia they "are not subject to special requirements that can only be satisfied in their place of origin."

    51. If AG Fennelly was correct in concluding at the end of his opinion that the special requirement that the packaging shall bear an appropriate origin mark cannot be fulfilled at a place other than that of origin, it must follow that it was unlawful for the United Kingdom to permit the importation of citrus fruits originating in the northern part of Cyprus which were accompanied by a phytosanitary certificate issued in a Turkish port. The question as to the meaning that is to be given to the phrase "an appropriate origin mark" thus raises a point which is of fundamental importance to the application of the ruling by the European Court to the consignments of citrus fruit with which this case is concerned.

    52. While I fully recognise the respect that is due to AG Fennelly's opinion, I regard the following reasons for rejecting the conclusion which he reached as to the meaning of this phrase as compelling:

    a.    Article 9(1) of the Directive contemplates that the special requirements laid down in Annex IV, Part A include special requirements that can be fulfilled at places other than that of origin. So also does the ruling by the European Court in Anastasiou II: see paragraph 32 of the judgment on page I-10, paragraph 38 on page I-12 and the proviso to paragraph 1 of the ruling on page I-13.

    b.    Item 16.1 lays down two special requirements in a single sentence. This suggests that they ought both to be capable of being determined in the same way. It is accepted that the special requirement that the fruits shall be free of peduncles and leaves can be dealt with by means of visual inspection.

    c.    The special requirement that the packaging shall bear an appropriate origin mark is directed to a mark on the packaging. This suggests that the question whether the origin mark is "appropriate" is intended to be dealt with by inspecting the packaging.

    d.    The characteristic of a mark on the packaging is that it travels with the fruits which are inside the packaging until the fruits are unpacked. This suggests that the question whether the origin mark is "appropriate" relates to the wording of the mark and the way in which it has been fixed to the packaging, having regard to the purpose which it is intended to serve. Its purpose is to ensure that the packaging bears a durable identifier of the origin of the fruits as the packaging moves about within the Community.

    e.    The special requirement in item 16.1 is to be contrasted with the special requirements in items 16.2 to 16.4 which apply to fruits originating in countries where the relevant harmful organisms are known to occur. They refer to an "official statement" of origin. An official statement is different from a mark on the packaging. It is an official document of a kind described by the European Court in Anastasiou I which, in the event of any doubt or difficulty concerning it, must be brought to the attention of the authorities by whom it is made: see paragraph 63 of the judgment at p I-3137. The context indicates that the official statement referred to in these items must be prepared in the country of origin, and that it must be available for examination at the frontier when the fruits to which it refers enter the Community.

    f.    The amendment introduced by Directive 98/2/EC requires an "official statement" of the kind described in item 16.2 in the Annex to that Directive to be provided in addition to the special requirement set out in item 16.1 which retains its original wording. Thus, there are now two special requirements that have to be satisfied in the case of citrus fruits originating in a country which is recognised as being free from the relevant harmful organisms. The first, set out in item 16.1, is the original special requirement that "the fruits shall be free from peduncles and leaves and the packaging shall bear an appropriate mark of origin." The second, set out in item 16.2, is the new special requirement that there shall be an "official statement that … the fruits originate in a country recognised as being free from" the relevant harmful organisms.

    g.    The preamble to Directive 98/2/EC indicates that the purpose of the amendment was to modify the provisions of the original directive so that the measures aimed at protection against the introduction, on citrus fruit, of harmful organisms which are not present in the Community or in certain citrus growing zones thereof would have a better protection for the Community against these organisms. Its purpose was to provide an additional measure of protection which was not to be found in the original directive.

    h.    If AG Fennelly's conclusion as to the meaning of the phrase "an appropriate mark of origin" is sound, the amendment introduced by Directive 98/2/EC was unnecessary. In his view proof of the origin of the products was essential in order to establish that the relevant diseases did not occur in the country of origin: paragraph 46. It seemed to him that the shipping documents could not establish more than that the goods were shipped from Cyprus, as they said nothing about where the fruit was from: paragraph 49. It was with these considerations in mind that he said that the special requirement that the packaging of citrus fruit bear an appropriate origin mark could not be fulfilled at a place other than that of origin in the case of fruit originating from the northern part of Cyprus. On this view the amendment introduced by Directive 98/2/EC adds nothing of substance in this respect to what was already required by the Plant Health Directive.

    i.    The fact that Directive 98/2/EC has retained the original special requirement in item 16.1 that the packing shall bear an appropriate mark of origin while adding the further requirement in item 16.2 that there shall be an official statement of origin strongly suggests that these two requirements are intended to serve different purposes. The special requirement in item 16.2 is intended to provide increased protection at the point of entry into the Community. The special requirement in item 16.1 is intended to ensure that the packaging in which the fruits have been placed retains a durable mark of origin as they move about within the Community. It is for that purpose that the mark of origin requires to be seen, on visual inspection, to be "appropriate". This is not a special requirement that can be satisfied only in their place of origin.

    53. I intend no disrespect to AG Fennelly, as no detailed argument was addressed to him on this point by any of the parties and nothing at all was said about it in the written submissions of either the Commission or the United Kingdom, when I say that the following omissions from his discussion of the meaning of the phrase seem to me to be significant:

    a.    He does not examine anywhere in his opinion the possibility that the purpose of requiring a mark of origin on the packaging which is "appropriate" is to ensure its durability as the contents of the packaging move about within the Community.

    b.    He does not examine the contrast between the special requirement in the original item 16.1 for a mark of origin on the packaging and the special requirement in the original item 16.2 for an official statement as to the place of origin, in order to determine whether or not these two requirements were intended to serve the same purposes.

    c.    He does not mention Directive 98/2/EC which, as I have said, appears to introduce for the better protection of the Community an additional special requirement for an official statement that the fruits originate from a country recognised as being free from the relevant harmful organisms. The contents of this Directive make it all the more necessary for a meaning to be found for the phrase "an appropriate mark of origin" in item 16.1 which does not duplicate the special requirement in item 16.2 for an official statement as to the country of origin.

    54. Both the respondents and the interveners have drawn attention in their further submissions to your Lordships' House to various facts which were not mentioned by them in their written submissions to the European Court. These provide important background information about the system of plant protection that exists within the Community and help to put the special requirement as to the mark of origin into its proper context.

    55. For example, information is included in these submissions about the introduction with effect from 1 June 1993, when the single market for agricultural produce was introduced and inspection at internal borders was removed, of a requirement for a plant passport in place of a phytosanitary certificate for those plants and plant products which require a phytosanitary inspection before being moved within the Community. Products in these categories require a passport to move freely within the Community, whether or not they originate in the Community or third countries. In the case of products originating in third countries the passport carries information as to origin transcribed from the phytosanitary certificate. In the case of citrus fruits a passport is required only for those fruits with peduncles and leaves, since it is the peduncles and leaves that serve as hosts to various pests. As only citrus fruits that are free from peduncles and leaves may be imported into the Community, no passport is required for imported citrus fruits. It is needed only for citrus fruits grown in the Community which is going to circulate within the Community without the removal of their peduncles and leaves. The reason why a mark of origin has to be placed on the packaging is to show that the fruits, which are separated from their accompanying phytosanitary certificate at the point of entry, are free to circulate within the Community without a plant passport. This information suggests that the reason why the word "appropriate" has been included in the special requirement is to direct the attention of the official at the point of entry to the appearance and durability of the mark of origin once he is satisfied that the fruits are free from peduncles and leaves.

    56. Following receipt of AG Fennelly's opinion but in advance of delivery of the European Court's judgment, the interveners applied by letter for a re-hearing by the Court on this issue. Their application was refused, but it was regarded by them as having been overtaken by the judgment which gave answers in their favour to the questions which had been referred to the Court and did not deal at all with the issue about the mark of origin. I am reluctant to speculate as to why the European Court did not deal with this issue. My initial impression was that the absence of any mention of it should be regarded as neutral - that is to say, as indicating neither one way or the other as to whether the Court agreed with the opinion of the Advocate General. On reflection, I now think that it is unlikely that, if they agreed with his conclusion, they would have answered the questions which were referred to them in the same way. This is because the emphasis which the Court placed, both in its judgment and in the rulings which it made, on the fact that a phytosanitary certificate could be issued in a non-member country from which the plants did not originate if they were not subject to special requirements that could be satisfied only in their place of origin would have been wholly academic, in the case of citrus fruits, if AG Fennelly's conclusion that the special requirement of an appropriate mark of origin could be satisfied only in the place of origin was sound.

    57. I have had the advantage of reading Lord Slynn's speech in draft, and I am aware that your Lordships do not share my opinion on this issue. But, for the reasons which I have given, I am unable to accept that the meaning which your Lordships wish to give to the phrase is acte clair. With very great regret therefore I have come to the conclusion that the question as to the meaning which is to be given to this phrase in item 16.1 of Annex IV, Part A of the Plant Health Directive, both in its original form and as amended by Commission Directive 98/2/EC, must be referred to the European Court for a preliminary ruling under article 234 EC.

The "official statement" in item 16.2

    58. The amendment which was introduced by Directive 98/2/EC was directed to the special requirement for an official statement to be given in regard to citrus fruits originating in third countries. It innovated on the original special requirement in two ways. First, it extended the special requirement for an official statement to all cases where citrus fruits originating from third countries was being introduced into the Community. Secondly, it altered the previous system which depended upon an exercise of judgment by officials elsewhere as to whether fruits originated in a country where the harmful organisms were known to occur to one whereby an official statement was to be provided that they originated in a country recognised as being free from them according to the procedure laid down in article 16a of the Plant Health Directive.

    59. Two features of the amended special requirement appear to me to be important in regard to the issue which the appellants have now raised. The first is that it sets out a series of alternative statements which are required as to the country or area of origin, the state of the fruits when they were harvested, the treatment to which they have been subjected or the place where they were packed, all of which appear to require a state of knowledge on the part of the official making the statement which he could not have at first hand unless he was present in the country or place of origin. The second is that, where the alternative as to the country of origin applies - which is this case - the function of the official statement is simply to identify the country of origin. It is not for the official statement to say that the country - in this case Cyprus - has been recognised as being free of the harmful organisms in accordance with the procedure laid down in article 16a. The Commission has introduced a system of formally declaring certain countries or areas to be free from particular pests and diseases: Commission Decision 98/83. The fact that the country or area named in the official statement is a country or area which has been so recognised would seem to be a matter for determination by the person who examines the official statement at the point of entry into the Community.

    60. In the light of this analysis I consider that the effect of the amendment is that an official statement must certify the place where the fruits originated. This means that an official statement as to the country of origin in the case of citrus fruits originating in the northern part of Cyprus must be provided by an official in the country of origin. This in turn means, applying the judgment of the European Court in Anastasiou II, that the relevant phytosanitary certificate cannot be issued in a non-member country from which the fruits did not originate.

    61. On the other hand the respondents have indicated that a finding to this effect would have far-reaching implications for the phytosanitary regime as currently operated both under the EC rules and the International Plant Protection Convention. It would call into question whether officials in a third country other than the country of origin can ever issue a phytosanitary certificate. They say that this is contrary to current practice whereby, for example, the United Kingdom admits into the Community wood shipped from Canada accompanied by phytosanitary certificates issued by the Canadian authorities in which the wood is stated to be of United States origin. In view of the wider implications I consider that, as a further reference is required with regard to the issue about the appropriate mark of origin, it would be appropriate for this closely related issue also to be referred to the European Court for a preliminary ruling before a final decision is made on it by your Lordships.

    

 
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