Re Imports of Poultry Meat: E.C. Commission (France intervening) v. United

Kingdom (Ireland intervening). (Case 40/82)

Before the Court of Justice of the European

Communities

ECJ

( The President, Mertens de Wilmars C.J.; Bosco, Touffait and Due PP.C.;

Pescatore, Lord Mackenzie Stuart, O'Keeffe, Koopmans, Everling, Chloros and

Grévisse JJ.) Sig. Francesco Capotorti Advocate General.

15 July 1982

Imports. Animals. Health controls. A national import licensing system under which no permits are issued for the import of poultry or poultry products from six member-States is prohibited by Article 30 EEC. If there are health reasons for such a ban they must be justified under Article 36. [31] Agriculture. Animal health. Community law and national law. Imports. In the absence of any Community harmonisation on the subject, member-States retain their own powers to adopt and alter policies and rules relating to animal health. But where such policy affects imports from other member-States, the national powers must be exercised within the limits laid down by Community law, in particular Article 36 EEC. [33]-[34] Imports. Health controls. Protectionism. Détournement de pouvoir. Where a member-State purports to introduce health controls (amounting to a total ban) on imports of an animal food product under its inherent powers to protect health combined with Article 36 EEC, but the evidence (in particular the sudden timing, the lack of preparation and the absence of any emergency

outbreak or indeed of any incidence at all of the disease in issue) shows that the real reason was to protect domestic producers of the product, the measures will constitute a disguised restriction on imports from other member-States, contrary to Article 36 (2) EEC unless the measures are found to be no more restrictive than is necessary to protect health within the importing State. [40] The United Kingdom, under its licensing system for the import of poultry and poultry products, imposed on 1 September 1981 a ban on the import of such goods from all member-States except Ireland and Denmark, on the grounds that only those two countries applied *498 a slaughter and non-vaccination policy in relation to Newcastle disease. The import ban reflected a change of United Kingdom domestic policy from vaccination to slaughter and was introduced with only four days notice given to the E.C. Commission and the member-States. The reason for the ban was given as protection of the domestic flocks, the last recorded outbreak of the disease in Great Britain being in 1978. The Court held that the circumstances surrounding the imposition of the ban established that it was a disguised restriction on the import of poultry, particularly from France, and therefore was not protected by Article 36against illegality under Article 30 EEC. The Court postponed consideration of the special position of Northern Ireland (which had operated a similar restrictive policy since before accession, even against the rest of the United Kingdom) until it heard a similar case against Ireland. It also deferred judgment on the issue of the legality of the United Kingdom import licensing system as such until exchange of pleadings between the parties in the usual manner. Representation Richard Wainwright and Peter Oliver, of the Legal Service of the E.C. Commission, for the plaintiff Commission. Gilbert Guillaume, Director of Legal Affairs in the Ministry of Foreign Relations, assisted by Alexandre Carnelutti , for the intervening French Government. Sir Ian Perceval, Q.C., Solicitor General, Peter Scott, Q.C., and Peter Langdon-Davies for the respondent United Kingdom Government. Louis J. Dockery, Chief State Solicitor, for the intervening Irish Government. The following case was referred to in the judgment: 1. The Queen v. Henn and Darby (34/79), 14 December 1979: [1979] E.C.R. 3795, [1980] 1 C.M.L.R. 246. The following further cases were referred to by the Advocate General: 2. Tedeschi v. Denkavit Commerciale Srl (5/77), 5 October 1977: [1977] E.C.R. 1555, [1978] 1 C.M.L.R. 1. 3. Pubblico Ministero v. Ratti (148/78), 5 April 1979: [1979] E.C.R. 1629, [1980] 1 C.M.L.R. 96. 4. Denkavit Futtermittel GmbH v. Minister für Ernährung, Landwirtschaft und Forsten des Landes Nordrhein-Westfalen (251/78), 8 November 1979: [1979]

E.C.R. 3369, [1980] 3 C.M.L.R. 513. 5. Firma Joh. Eggers Sohn & Co. v. Freie Hansestadt Bremen (13/78), 12 October 1978: [1978] E.C.R. 1935, [1979] 1 C.M.L.R. 562. 6. Simmenthal SpA v. Ministero delle Finanze (35/76), 15 December 1976: [1976] E.C.R. 1871, [1977] 2 C.M.L.R. 1. 7. Re Health Control on Imported Meat: E.C. Commission v. Germany (153/78), 12 July 1979: [1979] E.C.R. 2555, [1980] 1 C.M.L.R. 198. 8. Officier Van Justitie v. de Peijper (104/75), 20 May 1976: [1976] E.C.R. 613, [1976] 2 C.M.L.R. 271 *499 . 9. International Fruit Company NV v. Producktschap voor Groenten en Fruit (51-54/71) , 15 December 1971: [1971] E.C.R. 1107. 10. Re the Export of Potatoes: E.C. Commission v. France (68/76), 16 March 1977: [1977] E.C.R. 515, [1977] 2 C.M.L.R. 161. TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Facts This application relates to the introduction in Great Britain of new national measures which are intended to combat Newcastle disease (pseudo-fowl pest) and involve restrictions on imports of poultry-meat, eggs and egg products. Newcastle disease: nature and prophylaxis It is clear from the file, and in particular from the Report of the Committee on Fowl Pest Policy, 1962 [FN1] and from the Report of the Review Panel on the Newcastle Disease Epidemic, 1970-1971 [FN2] that Newcastle disease is a particularly contagious disease which is capable of affecting virtually all types of poultry. The disease is caused by a virus which develops very rapidly in chick-embryos and in certain living cells of poultry. The virus remains active for a long period outside a living bird: for two years at very low temperatures, for more than seven weeks at normal temperatures. It is carried by birds--dead or live--by birds' eggs, by birds' excreta, and by certain animals (foxes, rats) which have been in contact with such excreta. Sea-birds (and even the wind) may, in certain climatic conditions, transport the virus. FN1 Cmnd. 1664. FN2 Cmnd. 4797. The disease appears in different forms, the acuteness of which depends on variations in virulence of the strain of virus and the resistance of the host. The course of the disease in poultry varies widely, from heavy mortality within a short time, to a more or less severe effect on growth and laying, to an infection which cannot be detected except by laboratory tests.

Serious epidemics of the disease, which appeared for the first time in Europe in 1926 in Newcastle upon Tyne, occurred during the 1960s and from 1969 to 1972. According to the information provided by the International Office of Epizootics, reproduced in the table below, since then the number of outbreaks has fallen appreciably. *500 TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE At first there was an attempt at the total eradication of Newcastle disease by the slaughter of contaminated flocks, often accompanied by financial compensation and restrictions on imports. That method gave good results in Scandinavia, particularly in Denmark, and in Ireland, where the last outbreak of the disease occurred in 1956. In other countries, the disease was controlled by the adoption of a policy of slaughter and vaccination combined or generalised vaccination, sometimes compulsory, sometimes on a voluntary basis, according to the incidence of the disease. For vaccination, two types of vaccine are used, live vaccine and inactivated vaccine. Vaccinated birds may be carriers of field virus. *501 Thus in the United Kingdom in 1964 the government abandoned the policy of eradication purely by slaughter and adopted a policy of controlling the milder forms of Newcastle disease by means of inactivated vaccines, whilst retaining the power to slaughter out cases of per-acute disease. Following the epidemic of 1970-71, live vaccine was introduced and administered by mass methods. It appeared that the level of vaccination, which was administered on a voluntary basis but periodically encouraged by the veterinary authorities, tended to decline at the same rate as the incidence of the disease was reduced. The United Kingdom legislation The United Kingdom rules in question are to be found in the Animal Health Act 1981 and the Importation of Animal Products and Poultry Products Order 1980 [FN3] as amended by the Importation of Animal Products and Poultry Products (Amendment) Order 1981. [FN4] FN3 S.I. 1980/14. FN4 S.I. 1981/1238. Under article 4 of the 1980 Order, the Ministry of Agriculture, Fisheries and Food had issued general licences which permitted importation from various countries of fresh or frozen poultry-meat into the United Kingdom. In accordance with the notice published in the London Gazette and the Edinburgh Gazette on 1 September 1981, the existing general licences were revoked with effect from 1 September 1981, and a new general licence, issued on the same day, authorised the importation of fresh or frozen poultry-meat and eggs (other than hatching eggs) from Denmark and the Republic of Ireland. Similar measures already applied in Northern Ireland.

Community trade In the Community, health control in the poultry sector was covered by Council Directive 71/118 of 15 February 1971 on health problems affecting trade in fresh poultry-meat [FN5]. FN5 [1971] O.J.Spec.Ed. 106. The last recital in the preamble to that directive is worded as follows: '... animal health provisions relating to trade in live poultry and fresh poultry-meat will be the subject of other Community directives; ... it has become apparent that the first steps should now be taken towards approximating national provisions in this field by laying down certain conditions under which member-States may prohibit or restrict the introduction of poultry-meat into their territory for animal health reasons and by providing for a Community emergency procedure within the Standing Veterinary Committee under which measures taken by a member-State could be examined in close co-operation by member-States and the Commission and, where appropriate, amended or repealed;' and Article 11 *502 provides: (1) 'Without prejudice to paragraphs (2) to (4) the animal health provisions of member-States concerning trade in live poultry and poultry-meat shall continue to apply until the entry into force of any Community provisions. (2) A member-State may, if there is a danger that animal diseases may be spread by the introduction into its territory of fresh poultry-meat from another member-State, take the following measures: (a) in the event of an outbreak of an epizootic disease in the other member-State, temporarily prohibit or restrict the introduction of fresh poultry-meat from the affected areas of that member-State; (b) if an epizootic disease becomes widespread or if there is an outbreak of another serious contagious or infectious animal disease, temporarily prohibit or restrict the introduction of fresh poultry-meat from the entire territory of that State. (3) Each member-State must immediately inform the other member-States and the Commission of the outbreak in its territory of any such disease as is referred to in paragraph (2) and of the measures taken to control it. It must also inform them immediately of the elimination of the disease. (4) Measures taken by the member-States under paragraph (2), and any repeal of such measures, must be communicated forthwith to the other member-States and to the Commission together with the reasons therefor. Under the procedure laid down in Article 12, a decision may be taken to repeal or amend those measures, in particular in order to co-ordinate them with measures adopted by other member-States. (5) If the situation envisaged in paragraph (2) arises and if it appears necessary that other member-States also apply the measures taken under that paragraph, amended, where necessary, pursuant to paragraph (4), appropriate measures shall be adopted under the procedure laid down in Article 12.' It is clear from the Eurostat Statistics for 1980 that during that year the United

Kingdom imported considerable quantities of poultry-meat and poultry products from other member-States. The value of imports of whole turkeys from other member-States rose particularly, that is from 941,000 European units of account in 1979 to 5,844,000 units in 1980. Of such imports, the value of imports of whole turkeys from France rose from 28,000 European units of account in 1979 to 4,809,000 units in 1980 and from Ireland from 258,000 units in 1979 to 966,000 units in 1980; the value of imports from Denmark changed from 653,000 European units of account in 1979 to 69,000 units in 1980. Administrative procedure By letter of 27 August 1981 the United Kingdom Government informed the Commission of its decision to re-introduce in Great Britain with effect from 1 September 1981 a policy already applied in Northern Ireland for the control of Newcastle disease, consisting in the prohibition of vaccination of poultry against that disease and in the compulsory slaughter of any poultry flock in which the disease might appear. *503 According to that letter, to ensure that the highest recognised status of freedom from Newcastle disease was maintained, the new policy also involved with effect from 1 September 1981 a prohibition of imports into Great Britain of fresh (including frozen) poultry-meat, eggs and egg products from all countries except those which were totally free of Newcastle disease, which prohibited the use of vaccine and which applied compulsory slaughter requirements in the event of an outbreak of the disease. Of the member-States of the European Communities, only Denmark and Ireland were able to satisfy those criteria. By letter of 4 September 1981, the United Kingdom Government added that, in the light of the discussions which had taken place in the Standing Veterinary Committee on 1 September 1981, it had been decided that the ban on imports would not apply to egg products which had been heat-treated during their manufacture. By letter of 11 September 1981, addressed to the United Kingdom under the first paragraph of Article 169 of the EEC Treaty, the Commission claimed that the restrictions on imports published infringed Article 30 of the EEC Treaty and requested the United Kingdom Government to submit its observations in that regard. In its letter, the Commission assumed that imports of live poultry, hatching-eggs and some exotic birds, which were all potential sources of infection of Newcastle disease, were still possible upon presentation of a licence, since the legislation applying to those products had not been changed. It stated that at the present time animal health rules relating to trade in live poultry, poultry-meat, eggs and egg products had not, apart from certain provisions of a largely procedural nature in respect of fresh poultry-meat, been harmonised at a Community level. In that regard, it referred to Article 11 (1) of Council Directive 71/118 of 15 February 1971 on health problems affecting trade in fresh poultry-meat, which states that the existing national law of member-States concerning animal health provisions for live poultry and poultry-meat are

to continue to apply. The Commission claimed that as a result the animal health measures taken by member-States for those products were still subject to Article 30 of the Treaty in so far as they restricted intra-Community trade. Indeed, according to the judgment in Case 41/76 (Donckerwolcke v. Procureur de la République [FN6]) all import restrictions and import licensing systems constituted measures having equivalent effect within the meaning of Article 30 of the Treaty. FN6 [1976] E.C.R. 1921, [1977] 2 C.M.L.R. 535. The Commission considered that the import restrictions imposed by the United Kingdom could not be justified on the grounds of the protection of animal health under Article 36 of the Treaty. In that regard it pointed out that the animal health record of the Community in relation to Newcastle disease had in recent years been *504 exceptionally good. No major outbreak had occurred since the early 1970s and the sporadic minor foyers of infection which had appeared since then had rapidly been dealt with and had not led to more widespread outbreaks either within the member-States involved or across intra-Community frontiers. The member-States subject to the import ban, particularly those which had the most substantial trade with the United Kingdom in the products concerned, namely France and the Netherlands, had had a particularly good record of freedom from the disease in recent years. In relation to vaccination, the Commission observed that in general only a proportion of the flocks in the member-States where vaccination was permitted were in fact vaccinated. Indeed, although it was usual to vaccinate breeding stock and laying hens, birds reared for their meat, especially broiler fowl, were commonly not vaccinated. Thus, vaccinated and unvaccinated flocks existed at the same time within each member-State, and although in recent years up to 60 per cent. of the United Kingdom flock had been unvaccinated, nevertheless no outbreak of Newcastle disease had been attributed to fresh poultry-meat, eggs or egg products imported from the Community. It therefore considered that the argument that a member-State which did not vaccinate against Newcastle disease necessarily had to prevent the import of meat or eggs, because the vaccine might mask wild strains of the virus, must be rejected in view of the present state of animal health within the Community. Next, the Commission commented that from the entry into force of the contested measures vaccinated United Kingdom stock would continue to be present in the United Kingdom flock, and the meat and eggs resulting from the vaccinated birds would remain on the United Kingdom market for at least a year, whilst imports of corresponding products had been banned with immediate effect. It further pointed out that the United Kingdom still permitted entry on its territory of exotic birds which constituted a much greater potential danger with regard to the spread of Newcastle disease than the products the import of which had been banned. The Commission concluded its letter by stating that the measures adopted by the United Kingdom amounted to an absolute ban unlimited in time and were: (i) out of proportion to the risks involved;

(ii) discriminatory as far as the date of their entry into force was concerned; and (iii) arbitrary, since they concerned only certain products which were alleged to be likely to spread Newcastle disease. By letter dated 2 October 1981 the United Kingdom Government replied to the views expressed by the Commission, claiming essentially that the contested measures were justified on grounds of animal health under Article 36 of the Treaty. In its reply the United *505 Kingdom Government repeated certain explanations already provided during the Standing Veterinary Committee's discussions held on 1 September 1981. First, it was noted that the United Kingdom policy on health control in general was guided, on the one hand, by the need to ensure protection of animal health at the highest practicable level consistent with internationally recognised practice and, on the other, by the United Kingdom's Community obligations. In the opinion of the United Kingdom Government, the time was right to prohibit vaccination and, for the purpose of dealing with any possible outbreaks of Newcastle disease, to introduce a slaughter with compensation policy for those parts of the United Kingdom to which that policy did not already apply. The aim of the measures adopted on 1 September 1981 was to re-establish the highest health status for the United Kingdom poultry-flock in respect of Newcastle disease; they minimised disease risks and improved the efficiency of poultry production. The measures as a whole were necessary to maintain freedom from Newcastle disease within Great Britain. The restrictions on imports constituted an essential part of the whole, in order to prevent the disease risk to the flock. In the absence of any Community provisions, they had to be imposed at national level. As to whether those measures could be adopted at a national level, the United Kingdom Government pointed out that the Commission itself affirmed that the animal health provisions relating to trade in live poultry, poultry-meat, eggs and egg products had not yet been harmonised within the Community and that, in accordance with Article 11 (1) of Council Directive 71/118, it accepted that, so long as this was so, member-States might continue to apply the measures provided for by their own national provisions. The United Kingdom Government therefore considered that the measures which it had introduced on 1 September 1981 were justifiable under Article 36 of the Treaty and Article 11 (1) of Directive 71/118 and therefore did not infringe Article 30 of the Treaty. In relation to the Commission's claim that the Community's health record on Newcastle disease was good, the United Kingdom Government observed that the reports to the International Office of Epizootics and other returns showed that there was a continuing prevalence of the disease. Moreover, there was some doubt whether all outbreaks were properly reported, in view of the varying interpretation as to what constituted an outbreak of Newcastle disease. There was ample scientific and practical evidence that vaccination might mask infection and so lead to the presence of occult virus in birds, carcases and eggs. It was therefore impossible to move to the highest standard of disease freedom which corresponded to the policy of non-vaccination and compulsory slaughter, with the

necessary *506 consequence of rendering the national flock more vulnerable, without at the same time minimising as far as possible the clear risk of re-infection. In view of the presence of field virus in other member-States, possibly masked by vaccination and liable to spread across land frontiers or by trade in poultry-meat and eggs, the import controls were a necessary support of the stringent internal measures. Therefore they were not out of proportion to the risks involved. In answer to the argument that the restrictions on imports were discriminatory purely because of the date of their entry into force, it was stated that a difference in the short term in the application of the measures in relation to domestic supplies, on the one hand, and imported produce, on the other, was inevitable and did not amount to discrimination in Community law. The new measures had to be applied at an early date both internally and to imports. Imported supplies already in cold storage in Great Britain on 1 September would continue to be sold alongside produce from vaccinated indigenous flocks, and both would diminish rapidly as the new measures took effect. To have allowed the transfer after 1 September of large quantities of imported supplies from countries which vaccinate to cold stores in Great Britain and their distribution over a period of several months would have constituted a clear and unacceptable health risk to the United Kingdom flock. Finally, in relation to the alleged arbitrary nature of the contested measures, the Government referred to the strict measures provided for by the Importation of Birds, Poultry and Hatching Eggs Order, 1979. [FN7] It added that the United Kingdom had now suspended the importation of all exotic birds and their eggs, pending the introduction of stricter controls. FN7 S.I. 1979/1702. By letter of 12 October 1981 the Commission sent to the United Kingdom Government its reasoned opinion, addressed to the United Kingdom under the first paragraph of Article 169 of the Treaty, in which it declared that, by subjecting imports from other member-States of poultry-meat, poultry products, eggs and egg products to the measures adopted in this case, the United Kingdom had failed to fulfil its obligations under Article 30 of the Treaty; it requested the United Kingdom, pursuant to the second paragraph of Article 169 of the Treaty, to take the necessary measures to comply with the reasoned opinion within five working days following notification thereof. In the reasoned opinion, the Commission repeated the grounds communicated to the United Kingdom by its letter of 11 September 1981. It stated that Article 11 (1) of Directive 71/118 did not override the prohibition contained in Article 30 of the Treaty. In relation to the risk of contamination by imports of vaccinated birds, it took the view that field virus was very rare, or even nonexistent in most member-States. In that regard, it pointed out that, *507 according to information provided by the International Office of Epizootics, only one outbreak of Newcastle disease had occurred in Great Britain since 1976, even though there had been a steady flow

of imports from other member-States and a high proportion of the British flock had not been vaccinated. In France, where, like Great Britain, a policy of non-vaccination had recently been introduced, no outbreak of Newcastle disease had occurred since 1976, even though that country also had a partly vaccinated and partly non-vaccinated flock. The prohibition of imports of the products concerned from France into Great Britain, even though the two countries were in a substantially similar situation with regard to Newcastle disease, therefore constituted arbitrary discrimination within the meaning of the second sentence of Article 36 of the Treaty. That was also the case as regards the arrangements relating to the entry into force of the contested measures. By letter of 30 October 1981, the United Kingdom Government replied to the reasoned opinion delivered by the Commission by confirming that it considered the restrictions on imports to be fully justified under Article 36 of the Treaty and that it was therefore unable to comply with the Commission's request that they should be removed. In that regard it drew attention to the fact that the same measures, that is to say the internal measures and import prohibitions, had been applied without challenge in respect of Northern Ireland, even against imports from the rest of the United Kingdom, since a slaughter and non-vaccination policy had been introduced there in 1958. Imports had been permitted into Northern Ireland only from countries of equivalent status. The United Kingdom Government further disputed whether the measures at issue had become arbitrary as a result of the recent adoption of a policy of compulsory slaughter and non-vaccination by France. Indeed, no comprehensive steps had been taken in France to deal with imports of fresh or frozen poultry-meat or eggs for human consumption. In view of the extent of international trade, that omission represented a significant disease risk. The United Kingdom could not accept as representing an effective policy domestic measures taken in isolation and without a complementary import policy similar to that which it had, itself, adopted. Written Procedure By an application lodged on 4 February 1982, the Commission brought this action under the second paragraph of Article 169 of the Treaty. By orders of 15 June 1982 the Court allowed the French Republic to intervene in support of the Commission and Ireland to intervene in support of the United Kingdom. The Commission decided not to submit a reply and the Court, upon hearing the report of the Judge-Rapporteur and the views of *508 the Advocate General, decided to open the oral procedure without any preparatory enquiry. However, it requested the parties to reply to the following questions: Commission (a) The Commission is requested to give information to the Court on the interpretation that it thinks should be given to Directive 71/118 of the Council of

15 February 1971, on health problems affecting trade in fresh poultry-meat. The Court is particularly interested to know: (i) Whether in the Commission's view the directive should be considered as harmonising exhaustively national legislation in the sense that it excludes any resort to national regulations not provided for in the directive. (ii) What in the opinion of the Commission would be the interpretation to be given to Article 11 (1) of the directive. (b) What exactly are the measures taken by the United Kingdom that the Commission considers contrary to the Treaty as far as Northern Ireland is concerned? (c) Would the Commission go more deeply into its argument that Article 36 of the Treaty prevents any systems of import licences except a system of 'general open licences'? What does the last expression mean? (d) The Commission is asked to reply to the argument that Newcastle disease subsists in latent form, masked by the use of vaccine among flocks that have been vaccinated against this illness. (e) Could the Commission give information to the Court about the system of combating poultry diseases as at present applied in Denmark? Does the system imply restrictions of imports from other member-States? United Kingdom What is to be understood by 'ring vaccination'? French Republic Pursuant to Article 21 (2) of the Statute of the Court, the French Government is invited to explain to the Court the reasons it had for re-establishing the old system of combating Newcastle disease based on vaccination in November 1981, after having introduced a different system of combating the disease based on prohibition of vaccination and compulsory slaughtering of contaminated flocks in September 1981. Moreover, the main parties and the interveners were requested to bring to the sitting an expert in poultry diseases together with their Agent. *509 Conclusions of the parties The Commission claims that the Court should declare that by prohibiting imports and adopting the contested system of import licences in the sector of poultry products, the United Kingdom has failed to fulfil its obligations under Article 30 of the Treaty.

Opinion of the Advocate General (Sig. Francesco Capotorti)

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. According to the United Kingdom, those measures are justified pursuant to Article 36 of the Treaty, in so far as they form part of a set of measures intended to protect the health and life of poultry threatened by Newcastle disease. Newcastle disease is a virus infection which may affect poultry, in particular chickens and turkeys, producing respiratory and other disturbances, retarded growth, arrested egg production and in many cases the death of the diseased bird. As a precautionary measure, many countries resort to vaccination, using vaccines produced with live virus or inactive virus. That vaccination is, however, usually carried out on an optional basis and is therefore restricted to part of the poultry flock of any particular country; moreover, the vaccinated poultry and the meat and eggs thereof may be masked carriers of the infectious virus (the so-called 'field virus'). In view of those factors, a number of countries prefer to prohibit preventive vaccination (so that any outbreak of the disease may be more easily and more readily ascertained), to slaughter the poultry in the areas where any case of disease is detected and to prohibit or subject to specified conditions the import of poultry, poultry-meat and poultry products from countries where the system of preventive vaccination is applied. In the United Kingdom, the practice followed until 1962 was that of slaughter when and where a focus of the disease was discovered, compensation being paid to producers who suffered losses; but the onerous nature of that policy induced the authorities concerned to introduce instead optional vaccination, involving the use of an inactivated vaccine, in accordance with the suggestions of the committee chaired by Sir Arnold Plant. Northern Ireland, however, did not adopt the new system; in consequence, the introduction of poultry from other parts of the United Kingdom was prohibited--and still is--in order to avoid the risks of infection. The results of the system of vaccination were good during the years in which the vaccine was most widely used (above all during the period 1965 to 1969); the number of cases of disease notified each year in fact fell considerably. In 1970 there was a negative *510 development, with the outbreak of an epidemic which gave rise to serious financial loss; the outbreak was ascribed for the most part to less widespread vaccination. [FN8] The conclusion drawn was that that method should be used to the greatest extent possible and that it was appropriate to authorise the use of live vaccines. In fact, in 1971 and 1972, the number of cases of the disease fell from more than 4,200 to 400 and continued to fall rapidly in the following years. Finally, it should be noted that, according to the statistics of the International Office of Epizootics, produced by the Commission as an annex to its reasoned opinion, only one focus of the disease has been noted in the United Kingdom in the last five years (in 1978). FN8 See paragraphs 22 to 24 of the Report of the Review Panel on the Newcastle Disease Epidemic, Annex 2 to the defence.

Nevertheless, on 27 August 1981, the Permanent Representation of the United Kingdom to the European Communities informed the Commission that the British Government, following a review of its policy to combat Newcastle disease, had decided to prohibit preventive vaccination and to re-introduce compulsory slaughter of poultry in any areas which became infected on or after 1 September 1981. The effect of that measure would be to render poultry on British farms particularly vulnerable to risks of infection resulting from imports from countries where the use of vaccine was still permitted. Therefore, imports into Great Britain of fresh or frozen poultry, eggs and egg products would not be permitted unless they came from countries which were totally free of Newcastle disease, where the use of vaccine was prohibited and the rule of compulsory slaughter was applied in the case of any outbreak of the disease (conditions which, as far as the Community is concerned, are satisfied only in Denmark and Ireland). The short period of notice was justified by the consideration that a longer period would have allowed exporters to bring into Great Britain, and to place in cold storage, large quantities of products which did not conform to the new rules, thus endangering for several months the health of unvaccinated British poultry flocks. The prohibition of importation was effectively implemented as from the stated date. However, following discussions with the Standing Veterinary Committee of the Community held in Brussels on 1 September 1981, the United Kingdom Government subsequently decided to allow the import of egg products which had undergone heat treatment during processing; batches of such products, accompanied by a veterinary certificate to the effect that such treatment had been applied, qualify for special licensing conditions. General licences for the importation of fresh or frozen poultry-meat continue, moreover, to be granted for imports from Denmark and Ireland. The objections raised by the Commission (in its letter of 11 September 1981) to the United Kingdom notification of 27 August *511 1981 did not cause the United Kingdom Government to change its approach; in fact it reiterated its view that the contested measures were to be regarded as lawful under Article 36 and it also sought to rely upon Article 11 (1) of Council Directive 71/118 of 15 February 1971. On 12 October 1981, the Commission issued, pursuant to Article 169 of the EEC Treaty, a reasoned opinion, charging the United Kingdom with infringement of Article 30 of the Treaty. By letter of 30 October 1981, the United Kingdom Permanent Representation once again reiterated its Government's view. The Commission then brought this action. The French and Irish Governments decided to intervene in the proceedings, in support of the applicant and the defendant State respectively.

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 poultry-meat 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. In order to resolve the question, regard must be had not only to Articles 30 and 36 but also to the above-mentioned Council Directive 71/118 on health problems affecting trade in fresh poultry-meat. In fact, Article 11 (1) of that directive provides that the animal health provisions of member-States concerning such trade are to 'continue to apply until the entry into force of any Community provisions'; whilst paragraphs (2) to (5) of that Article govern the procedure to be adopted by member-States 'if there is a danger that animal diseases may spread by the introduction into its territory of fresh poultry-meat from another member-State'. As regards the disputed facts which the Court is called upon to consider, it should be borne in mind that the procedure to establish an infringement, under which this action is brought, was initiated by the Commission following the United Kingdom measures of 27 August 1981 and in particular the considerable restrictions on imports decided upon on that date. It is true that the conditions whereby vaccination is prohibited, together with a prohibition of the introduction of poultry-meat from countries or areas where vaccination is carried out, existed in Northern Ireland even before 27 August 1981, but that was a restriction on the movement of goods limited to one part of the territory of the United Kingdom, which did not adversely affect imports into Great Britain and the Commission did not consider it appropriate to take action under Article 169 of the *512 EEC Treaty. Moreover, it might be considered that Article 11 (1) of Directive 71/118, which permitted member-States to maintain temporarily in force their own animal health rules regarding trade in poultry and poultry-meat, made the conditions applied in the United Kingdom at the time of accession lawful in all respects. I am therefore of the opinion that, at this stage of the proceedings, it is necessary and sufficient for the Court to consider whether or not the United Kingdom measures of 27 August 1981 are lawful under Community law. By so doing, it may dispense with any consideration of the conditions applied in Northern Ireland which, despite being to the same effect as those introduced in the United Kingdom by the above-mentioned measures, deserve to be considered separately, particularly since they were in force at the time of accession. The separate decision which I propose may be taken at a later stage, preferably when the Court adjudicates on the action brought by the Commission against Ireland--the conditions adopted in Northern Ireland and the Republic of Ireland regarding the poultry sector are essentially the same.

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 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 poultry-meat; consequently, the member-States were

precluded from making any change in their rules until the entry into force of harmonising 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-State] of fresh poultry-meat from another member-State', paragraphs (2) to (5) of Article 11 divested the member-States of any legislative powers in that respect and their authority to prohibit or limit the import of meat from other member-States 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 standpoint. Consideration of that view requires in the first place clarification of the relationship between the field of application of Article 36 of the Treaty and the directive in question, in order to establish whether or not the rules laid down in the directive should take precedence over the powers which member-States retain under Article 36. The reply is certainly affirmative, according to a consistent line of *513 decisions of the Court (judgments in Cases 5/77, Tedeschi, [FN9] 148/78, Ratti [FN10] and 251/78, Denkavit Futtermittel [FN11]). To quote the Denkavit judgment: 'Article 36 is not designed to reserve certain matters to the exclusive jurisdiction of member-States but only permits national laws to derogate from the principle of the free movement of goods to the extent to which such derogation is and continues to be justified for the attainment of the objectives referred to in that Article. Consequently when, in the application of Article 100of the Treaty, Community directives provide for the harmonisation of the measures necessary to guarantee the protection of animal and human health and when they establish procedures to check that they are observed, recourse to Article 36 is no longer justified and the appropriate checks must be carried out and the protective measures adopted within the framework outlined in the harmonising directive.' FN9 [1977] E.C.R. 1555, [1978] 1 C.M.L.R. 1At Paras. [34]-[35]. FN10 [1979] E.C.R. 1629, [1980] 1 C.M.L.R. 96At Para. [36]. FN11 [1979] E.C.R. 3369, [1980] 3 C.M.L.R. 513 At Para. [14]. In the case under consideration, there is no doubt that the directive is a harmonising directive. That fact is evident not only from its reference to Article 100 of the EEC Treaty, at the beginning of its preamble, but also from the third, fifth and last recitals. The last recital, in particular, after stating that 'animal health provisions relating to trade in live poultry and fresh poultry-meat will be the subject of other Community directives' states that: 'it has become apparent that the first steps should now be taken towards approximating national provisions in this field by laying down certain conditions under which member-States may prohibit or restrict the introduction of poultry-meat into their territory for animal health reasons and by providing for a

Community emergency procedure within the Standing Veterinary Committee under which measures taken by a member-State could be examined in close co-operation by member-States and the Commission and, where appropriate, amended or repealed'. That statement is linked with Article 11 (2)--which indicates the measures which a member-State may adopt in the event of an outbreak of an epizootic disease in another member-State--and with the second subparagraph of Article 11 (4), according to which the procedure of consultation with the Standing Veterinary Committee may be used in the light of a Community decision repealing or amending restrictive measures adopted by a member-State on the basis of Article 11 (2). The latter provision demonstrates that Directive 71/118 includes a procedure to verify observance of it, at least as far as the rules contained in Article 11 (2) are concerned. It is wrong therefore to conclude that the directive in question is irrelevant to this case, merely because the member-State involved has declared that it was exercising powers vested in it by Article 36 of the EEC Treaty; on the contrary, the most important matter is *514 observance of the directive, but of course in so far as Article 11 is found to be applicable. I must say however, in that respect, that the French Government's interpretation of that Article does not seem to me to be convincing. In my opinion, to deduce from paragraph (1) that member-States are prohibited from changing their animal health rules in the field with which we are concerned represents a distortion of the wording and purpose of that paragraph. The Community legislature confines itself to permitting application of the existing rules 'until the entry into force of any Community provisions'; but the very fact that those provisions are treated as an eventuality--and are therefore not intended to be introduced rapidly, as has, moreover, been borne out by experience--lends weight to the view that there was no prohibition of any amendment to national rules. That was recognised by the Commission, which correctly considered that it was excessive to think that a member-State may not make to its laws amendments which are inspired, for example, by new scientific information. However, although those observations persuade me to reject the view advanced by the French Government, they do not entail the consequence that any national amending measure is to be regarded as lawful by virtue of the above-mentioned Article 11 (1) of the directive. In my opinion, the only national provisions falling within the scope of that rule, whose conformity with the requirements of Article 36 of the Treaty need not therefore be verified, are those already applied as at the date of the directive (as demonstrated by the expression ' continue to apply'). There remains to be considered the scope of paragraphs (2) to (5) of Article 11 of the directive in question. It should be recognised that the last recital in its preamble, in which it is stated that (in those paragraphs, needless to say) certain conditions are laid down 'under which member-States may prohibit or restrict the introduction of poultry-meat into their territory for animal health reasons', provides an argument in support of the French view, since it attributes to the paragraphs in question the function of regulating the whole problem of limitations on poultry-meat imports imposed for health reasons. In such circumstances, the United

Kingdom measures, which certainly do not conform to the measures laid down in paragraph (2), would have to be regarded as unlawful on those grounds alone. But, in my opinion, it is important not to overlook the opening passage of that recital which states that 'animal health provisions relating to trade in live poultry and fresh poultry-meat will be the subject of other Community directives'. That wording suggest that Article 11 (2) is to be interpreted restrictively; and the result of a restrictive interpretation is the conclusion that the only State measures governed by that paragraph and the following paragraphs are measures combating an epizootic disease which has effectively broken out in another member-State. That may be *515 deduced in particular from the nature of the case provided for in subparagraphs (a) and (b) of paragraph (2) ('in the event of an outbreak of an epizootic disease ...', 'if an epizootic disease becomes widespread or if there is an outbreak of another serious contagious or infectious animal disease'). This is further confirmed by paragraph (3), by virtue of which every member-State is obliged to inform the other member-States and the Commission of 'the outbreak in its territory of any such disease as is referred to in paragraph (2) and of the measures taken to control it' and also of the elimination of the disease. Finally, it is equally significant that paragraph (5) is to be applied, 'if the situation envisaged in paragraph (2) arises ...'; only if the term 'situation' refers to the case of an outbreak of an epizootic disease, and not to a general danger of infection, do the consequences of that paragraph appear to be justified. Indeed, it seems to me that paragraphs (2) to (5) of Article 11 are not concerned with measures which introduce new domestic animal health provisions relating to trade in live poultry and fresh poultrymeat; in other words, they are not concerned with the category of measures within which the United Kingdom measures of August 1981 fall. I have already said that Article 11 (1) does not refer to circumstances of that kind; that provision must, however, be considered in the light of Article 36. Moreover, we shall see later that an argument may be inferred from Article 11 (2) of Directive 71/118 which is relevant to the interpretation of Article 36 in relation to the present case.

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'. It is appropriate by way of preliminary to summarise some of the interpretations which the Court has given to Article 36. In the first place, the Court has emphasised that the fact that that provision allows derogations means that it must be strictly interpreted (see Eggers (13/78) [FN12]: ' Article 36 is an exception to the fundamental principle of the free movement of goods and must therefore be interpreted in such a way that its scope is not extended any further than is necessary for the protection of those interests which it is intended to secure').

FN12 [1978] E.C.R. 1935, [1979] 1 C.M.L.R. 562At Para. [30]. In the second place, the Court has stated that the expression 'prohibitions or restrictions ... justified' means necessary, indeed *516 indispensable limitations (see Simmenthal (35/76) [FN13]: 'the restrictions authorised by Article 36 ... only comply with the Treaty in so far as they are justified, that is to say necessary for attainment of the objectives referred to by that provision ...' A statement to that effect is contained in the judgment in E.C. Commission v. Germany (153/78), [FN14] in which reference is made to ' restrictive measures authorised ... only in so far as they are ... necessary ...'). FN13 [1976] E.C.R. 1871, [1977] 2 C.M.L.R. 1At Para. [10] FN14 [1979] E.C.R. 2555, [1980] 1 C.M.L.R. 198 At Para. [5]. The Court has added to the foregoing on two occasions: on the one hand, it has denied that Article 36 is intended to reserve the matters provided for therein to the exclusive jurisdiction of the member-States [FN15]; on the other hand, it has made clear that: 'National rules or practices do not fall within the exceptions specified in Article 36 if the health and life of humans can be effectively protected by measures which do not restrict intra-Community trade so much'(see De Peijper (104/75) [FN16] and Denkavit Futtermittel [FN17]). FN15 See the above-mentioned judgments, Simmenthal At Para. [24], Tedeschi At Para. [34], E.C. Commission v. Germany At Para. [5]. FN16 [1976] E.C.R. 613, [1976] 2 C.M.L.R. 271At Paras. [16]-[18]. FN17 At para. [23]. Therefore, a State which relies upon Article 36 and upon which it is incumbent to prove that the restrictive measures introduced satisfy the conditions laid down in that provision [FN18] may not confine itself to stating that the measures are in fact based on one of the grounds indicated--for example, protection of the health and life of animals--but must demonstrate that those measures are necessary in order to attain the desired objective; and that it was impossible to take an alternative course of action which was equally effective and yet less liable to restrict trade. The Court, when called upon to consider whether the measures in question are lawful, must examine their merits from the point of view of their necessity and the observance of the principle of proportionality, as well as for the purpose of ascertaining whether they involve arbitrary discrimination or serve to disguise a ' protectionist'restriction on trade. FN18 See Denkavit Futtermittel At Para. [24] .

5

Turning to the present case, I should point out in the first place that 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 poultry-meat 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 *517 (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 may 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. Before proceeding with this line of enquiry, I should like to dispose of an argument emphatically put forward by the United Kingdom in the oral proceedings, namely that it is incorrect to speak of a 'ban' on imports of poultry because the other member-States which adopt the same method of combating Newcastle disease as the one now in force in the United Kingdom are fully at liberty to export their poultry products to that country. Frankly, it seems to me to be an inconsistent argument. When it adopted its new policy, the United Kingdom was well aware of the fact that only two member-States would satisfy the conditions described in its letter of 27 August 1981 and that since it had provided for the import restrictions to be brought into force almost immediately those restrictions would in any case hinder intra-Community trade until such time as all the other member-States might decide to change their system. Moreover, even though one of the member-States, France to be precise, which had a particular interest in exporting poultry-meat to the United Kingdom and which was totally free of Newcastle disease, announced that it had prohibited vaccination and decided to take compulsory slaughter measures in the event of an outbreak of the disease (16 September 1981), the United Kingdom Government added a further condition to that indicated in the above-mentioned letter of 27 August 1981, namely that imports from France were not to be admitted in any case because France for its part imported poultry from countries where the so-called method of eradication of Newcastle disease was not applied. If therefore all the other member-States wished to conform to the new British veterinary policy, the

frontiers of the Community would have to be closed to imports from any country where preventive vaccination was practised. Quite apart from the repercussions of such a course of action on trade relations with non-member countries, it is clear that that is *518 a matter for Community decisions and not for a change of policy on the part of individual member-States. Finally, the argument of which I am advocating the rejection appears to conflict with the position adopted by the United Kingdom in this case. It has sought to rely upon Article 36, recognising by implication that if that provision did not render lawful its measures of 27 August 1981 they would fall within the prohibition contained in Article 30; whereas to deny that there is a ban on imports only makes sense if it is argued that Article 30 is inapplicable. Otherwise, discussion of the matter is merely terminological and does not alter the limits of the case.

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 summarised 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. That view is contested by the Commission, which states that the system of control based on preventive vaccination provides a safeguard of at least the same security; it is also contested by the French Government which considers the control system to be more effective and emphasises that it was on those grounds that it was rapidly reintroduced into France after the change of veterinary policy which took place in September 1981 did not achieve the desired result of resumption of exports to the United Kingdom. In my opinion, the considerations to be borne in mind are the following: (a) The new policy introduced by the United Kingdom on 27 August 1981 which is, as I have said, inseparably connected with measures restricting imports, ought, if it is to be justifiable under Article 36 of the EEC Treaty, to be necessary for protection of the health and life of poultry. That view was not in fact put forward by the United Kingdom Government, which merely tried to demonstrate the technical superiority of the system of eradication. *519 (b) Great Britain had in the past (until 1962, as I mentioned at the beginning) applied the policy which it has recently resumed, and did so 'with vigour and determination' , as indicated in 1962 in the report of the committee chaired by Sir Arnold Plant. [FN19] Nevertheless, the acute and subacute forms

of Newcastle disease persisted [FN20] and the report emphasises the difficulties deriving from the existence of 'reservoirs' of infections in which the disease appears in such a mild form that it is not readily recognisable. [FN21] It seems therefore that, after 15 years of a policy of 'eradication' and not of vaccination (1947 to 1962), the same disadvantage as is today attributed to the presence of vaccinated poultry still exists. FN19 At para. 252. FN20 Para. 253. FN21 Ibid. (c) Even after the epidemic of 1970 and 1971 the United Kingdom experts remained convinced that 'The only effective means of protection for the poultry industry against Newcastle disease is to undertake a full programme of vaccination and to maintain high standards of hygiene and disease security within and between flocks. Anything else that is done, desirable though it may be, is of relatively less importance.' [FN22] FN22 Para. 2 of the Report of the Review Panel on the Newcastle Disease Epidemic, October 1971. (d) The method of compulsory vaccination, regarded as 'highly desirable' by that group of experts [FN23] was never adopted, in view of the practical difficulties connected with its application and control--and perhaps also because of its cost--but it seems clear that it would have enabled the acute forms of the disease to be effectively eradicated. That is proved by the fact that, where a foyer of the disease occurs among vulnerable poultry, under the system now adopted in Great Britain, recourse is had to 'ring vaccination' (that is to say vaccination of all the vulnerable poultry located in the area adjacent to the focus of infection) in order to limit the infection by preventing it from spreading. FN23 Plant Report at para. 25. (e) The possibility of recourse to 'ring vaccination' becoming necessary, where the disease breaks out, proves that even in a country where the ' eradication' system is applied, a situation where vaccinated and unvaccinated poultry co-exist may re-emerge, a situation which has been presented as the most serious disadvantage of the control systems. (f) The statistics of the International Office of Epizootics show that during the last three years the risk of a new outbreak of Newcastle disease has not materialised either in countries which adopt the 'eradication' system (Denmark and Ireland) or in certain countries where the control system has applied (France, Netherlands, Luxembourg and United Kingdom); however, the number of cases in the other countries in the second group has shown a clear tendency *520 to fall to zero

and in 1981 only Greece, within Western Europe, notified 12 cases of the disease. It seems to me that at least two deductions may be safely drawn from the foregoing considerations: several objective factors contradict the view that the system of 'eradication' of the disease is superior; and in any case there appear to be no grounds for regarding the adoption of that system as necessary in the United Kingdom. In my opinion that might in itself be sufficient to found the view that the United Kingdom measures at issue are not justified by Article 36.

7 As I have already had occasion to emphasise, 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. We are familiar with the United Kingdom view: the meat of vaccinated poultry imported from other countries may be a masked carrier of the field virus. It is of course necessary to presume that that meat, and in particular the poultry which provided it, have not already transmitted the disease, or at least that that disease has not manifested itself, during the period in which they were in contact with unvaccinated poultry in the country of origin; (otherwise it would be easy to locate the focus of infection and prohibit only imports from the infected area, in accordance with the system provided for in Directive 71/118). Such a case might arise, though very rarely, but the extent of the risk is reduced. The fact remains that the reasoning adopted by the United Kingdom would in itself justify a prohibition of imports of vaccinated poultry and not the extension of that prohibition to unvaccinated poultry. But the French Government has stated, and has not been contradicted on that point, that the poultry-meat exported from France to Great Britain was almost exclusively from unvaccinated poultry and was therefore susceptible to the disease. Yet it has not been explained how that meat too can conceal an active field virus. I shall now for a moment direct my attention to Article 11 of Directive 71/118, specifically to paragraph (2). Even if it does not apply to the present case (for the reasons set out earlier), the fact seems significant to me that it permits national authorities, in the event of an outbreak of an epizootic disease in another member-State, to prohibit or restrict the import only of fresh poultry-meat coming from the areas of that member-State where the disease broke out, and even then as a temporary measure. A restrictive measure limited as to area and as to time and subject to control by the Community authorities was therefore regarded by the Community *521 legislature as sufficient to ensure protection in the event of an actual outbreak of the disease. The United Kingdom, like all the other member-States, has no authority to adopt more severe measures in the event of an outbreak of Newcastle disease in another State. It would be highly incongruous if a much severer measure, consisting of prohibiting for an indefinite period all imports of poultry coming from other member-States where the control system is applied, were considered necessary, and therefore justified under

Article 36, where there is merely a permanent and general risk that the disease might re-emerge! Such a situation (which can never be entirely eliminated, in view of the numerous vectors transmitting the virus) would thus practically be placed on the same footing as the case of a widespread outbreak of an epizootic disease, which under the directive justifies prohibition of all imports from a member-State (Article 11 (2) (b)), yet with the great difference that the prohibition allowed by the directive is temporary and maintenance of it is subject to supervision by the Commission. Moreover, the course of action taken by the United Kingdom is not the only one available. An alternative exists which restricts imports to a lesser extent--that is demonstrated by the system adopted in Denmark--that is to say, in another member-State where the 'eradication' method is applied--which was described in detail in the Commission's reply to the questions put by the Court (paragraph (f)). The most interesting aspects of that system seem to me to be the following: in the case of poultry-meat from countries which use preventive vaccination, a distinction is made in the first place between products from vaccinated flocks and products from non-vaccinated flocks; in both cases, the poultry must come from an area of a defined diameter (20 km) which has been free of the disease for six months prior to the exportation and a number of samples of the poultry whose meat is imported must have undergone, at the time of slaughter, a laboratory examination producing negative results regarding Newcastle disease. Moreover, in the case of vaccinated poultry, specified vaccines must have been used; as regards unvaccinated poultry however, the laboratory examination may, in the alternative, be carried out on a sample of birds from each flock. The Commission and the French Government have stated that their efforts to persuade the United Kingdom to introduce a system similar to the Danish system have been in vain, although such efforts show that, from the Commission's point of view, the changeover to the 'eradication' system was to be regarded as permissible and that a limited restriction on imports, to ensure the success of the new system, appeared to be justified. Counsel for the United Kingdom stated during the oral proceedings that the extent of British imports of poultry (in particular from France) was so much higher than in Denmark that it was impossible to adopt the same measures. In fact, it had proved impossible to establish the difference exactly, expressing *522 the imports as a percentage of total consumption; according to a statement by Counsel for the French Government, the percentage is 5 per cent. in the United Kingdom as against 1.1 per cent. in Denmark. But in any case, the argument put forward by the United Kingdom is not in fact convincing. All that is required in the Danish system is a certificate, in fact an extension of the content of the health certificate prescribed in Article 8 of Directive 71/118; and it is not apparent what particular difficulty for the importing State might be involved in the examination of numerous certificates. If the British view were to be seen to imply a distrust of examinations carried out by laboratories in other countries, the whole health certificate system would be called in question, since it is based on local veterinary certificates. However, the meaning of the United Kingdom objections seems to me to be that a laboratory examination based on samples is

less likely to reveal the presence of the virus if it is carried out on a larger quantity of products. I believe that view to be incorrect; it is sufficient if the percentage of the imported consignments taken and examined remains the same. Furthermore, I repeat that laboratory examinations are one of the factors in the Danish system; the other consists of certificates to the effect that the area where the meat comes from has been free from the disease for six months. Finally, attention should be drawn to the 'Draft Proposal for a Council Directive on Health Problems Affecting Intra-Community Trade in Fresh Poultry-meat'; that draft was communicated to the Commission by Mr. Dalsager but has not yet been passed to the Council. The United Kingdom annexed it to its submissions (Annex 6) and held it up as a good example of an initiative on the part of the Commission intended to harmonise legislation in the area with which we are here concerned. The rationale of that draft, according to Counsel for the defendant, coincides with the attitude adopted by the United Kingdom after the 1981 measures, that is to say, that every exporting member-State must protect itself and the importing countries against any infection which might be transmitted by virus-carrying poultry. But that view clearly lends itself to the objection that whilst it is lawful for the Community institutions to follow a specific line in order to harmonise legislation, it is not lawful for a member-State to require the others to treat it as a model to be followed. In addition, I should point out that the above-mentioned draft proposal confines itself, as far as vaccination is concerned, to prohibiting the use of two types of vaccines (those prepared from velogenic strains and live virus vaccines prepared from mesogenic strains) and makes no provision regarding vaccines based on lentogenic strains, which are today regarded as the most innocuous and most effective (Article 3). Moreover, the member-States are required to adopt certain measures to combat the disease in the event of an *523 outbreak within their territory (Articles 4 to 9); and that presupposes that the disease can be localised, that it can be combated by means of slaughter of the infected poultry and disinfection and that it is possible to trace the course of the disease by means of laboratory examinations. Only when the prescribed measures to combat the disease have not been complied with may the country of destination prohibit the entry of meat from the infected area into free circulation in its territory (Article 13), whilst the temporary prohibition of all imports from a specified country is permitted if the epidemic spreads outside the said zone (Article 10 (1)). The measures restricting imports provided for in the draft proposal are therefore, as observed by the Commission, of the same order as those under Article 11 of Directive 71/118 and therefore allow the same inference to be drawn as that which led to consideration of paragraph (2) of that Article, namely that circumstances more serious than those of a general and permanent risk of a fresh outbreak of the disease are regarded as a basis for restrictions on imports which are less severe than the measures adopted by the United Kingdom.

8 The foregoing considerations seem to me to show not only that those measures,

as regards their restrictive effect on intra-Community 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 aspect: 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 the 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 4,809,000 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 under-takings 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. *524 The defendant placed great emphasis on the disastrous financial consequences of any new epidemic, but fortunately there are no signs of any approaching epidemic and no one can say what the financial consequences would be, if there were an outbreak, in the States where the control system is in force and in those which prefer the system of eradication. In short, therefore, the United Kingdom's confidence in its ability to defend itself more effectively against any future outbreaks of Newcastle disease has been paid for rather dearly by the poultry producers in the other member-States and particularly in France. Even if it is admitted that it is advantageous for the whole Community that the British poultry stock should be in the best of health--a point raised in the oral proceedings--it seems to me clear that the future results pursued by the United Kingdom measures are out of all proportion to the present and future sacrifices made by exporters of other member-States. I am of the opinion therefore that the principle of proportionality has been breached.

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 State, 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. I should point out in that regard that both the facts referred to are at variance with the grounds relied upon by the United Kingdom to justify its measures pursuant to Article 36. If the danger of infection caused by vaccinated poultry were so grave as to justify the prohibition of imports, and such a prohibition appeared necessary for protection of the health of the birds in question, it is impossible to see how the United Kingdom could at the same time consider that it has secured protection from the danger represented by the subsequent co-existence of 'national' vaccinated and unvaccinated poultry and by the gradual sale of poultry-meat from those two categories, or how it could adopt, with respect to other possible field-virus carriers, a rather less stringent policy. *525 In the first place, therefore, the circumstances described above confirm that the need for a change in veterinary policy and, in particular, the need for a total suspension of imports of poultry, did not exist. In the second place, those facts demonstrate that there was effectively arbitrary discrimination--not a difference of treatment justified by the first sentence of Article 36--to the detriment of exporters of poultry products from other member-States and to the benefit of British breeders and also of the importers of wild birds. In the third place, the health control policy adopted with regard to exotic birds confirms that there are alternatives to a total prohibition of imports. It must be acknowledged therefore that, in that respect also, the United Kingdom has infringed 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.' The object of that provision, as the Court has made clear, is to 'prevent restrictions on trade based on the grounds mentioned in the first sentence of [Article 36] from being diverted from their proper purpose and used in such a way as ... indirectly to protect certain national products' (judgment in Case 34/79, Regina v. Henn and Darby [FN24]). In essence, the restrictive measures which the State in question justifies by reliance on one of the grounds mentioned in Article 36 must not belie their true nature and constitute a cloak for protectionist measures or a boycott of products from other States. FN24 [1979] E.C.R. 3795, [1980] 1 C.M.L.R. 246. In this case, the Commission has stated that the United Kingdom, by its measures of August 1981, in effect sought to protect domestic poultry production against French competition. Imports from France in fact rose from a total value of 28,000 European units of account in 1979 to the figure mentioned above of 4,809,000 European units of account in 1980, representing more than 1.85 per

cent. of the United Kingdom's total imports of poultry from other member-States. That successful and massive competition alarmed the British poultry breeders, and in particular turkey breeders, who made themselves heard on numerous occasions during 1981, seeking Government measures to prevent or control French imports; that is shown by the press cuttings produced by the Commission and in particular the articles published in the Financial Times on 8 February 1981 ('Turkey farmers threaten French imports blockade'), of 18 May ('Poultrymen seek imports curb' and 'Boycott call on French poultry'), of 29 May ('Warning on French poultry') and of 16 July ('Minister urged to aid poultry men'). French producers were accused in particular of receiving State subsidies and of failing to comply *526 with animal health rules with the same scrupulousness as the United Kingdom breeders. At the same time, however, some journalists recognised that there were other factors in the crisis which were of a purely national nature, such as energy costs and high interest rates in the United Kingdom (see the article 'British poultry firms face closure as French expand' which appeared in the Daily Telegraph on 2 March 1981). Thus, even in the United Kingdom press, the justification on health grounds of the measures adopted on 27 August 1981 was interpreted as a pretext to overcome French competition (see the article 'Fowl play all around' in The Times of 29 August 1981). For its part, the United Kingdom has not denied in the course of these proceedings that the measures may also have been useful from the trade point of view, but has maintained that that fact did not alter its view that the measures were lawful, being based principally on the need to protect the health of the poultry. The immediate reply to that contention is that the above-mentioned provision contained in Article 36 requires a comparison to be made between the officially declared objectives of the measures in question and of any protectionist aim which they may have. Having regard to the foregoing, I am of the opinion that certain irrefutable factors support the view that the veterinary measures in question are ' simulated'. I refer to the following circumstances: (a) the protests and threats of boycott by British breeders between February and July 1981 and their pressure on the Government authorities to ensure that French imports were in some way hindered; (b) the approaches made by the United Kingdom authorities requesting the Commission to reduce French exports, basing their argument on the aid given by the French Government to poultry breeders (see interview with the United Kingdom Minister of Agriculture, Mr. Walker, reported in the above-mentioned article 'Warning on French poultry', in which it was suggested that traders should not rely upon imports of turkeys from France for Christmas); (c) the failure of those approaches, since the Commission considered the French support measures to be compatible with Community rules (see reply given by the Commission on 29 January 1982 to Written Question 896/81 by Mr. Welsh [FN25]); (d) the extremely brief period between the issue and the entry into force of the measures of 27 August 1981--with the objective consequence that it became impossible to order and secure the arrival of French turkeys for Christmas sales; (e) and the subsequent total refusal to consider alternatives with regard to measures

restricting imports. FN25 [1981] O.J. C53/2. In the light of those factors, it seems to me that there are sufficient grounds for the view that the contested measures were incompatible with Article 36, inter alia because they concealed their true protectionist nature.

*527 11 There remains to be examined the problem of the special import 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. The defendant Government states, in particular, by way of objection, that the measures on which the 'charge' is based are those adopted by the United Kingdom on 27 August 1981 (which entered into force on 1 September) which did not involve any system of licences for egg products; therefore the Commission's arguments in that respect fall outside the scope of these proceedings. That problem moreover is being dealt with in Case 124/81, now pending before the Court. With regard to that objection, I would point out that the general prohibition of the import of egg products which formed part of the restrictive measures applied as from 1 September was replaced some days later by the system of special licences; it made possible imports of such products into the United Kingdom, if they had undergone an appropriate heat treatment, on the basis of a licence issued from time to time in respect of each batch (letter of 4 September 1981 from the United Kingdom Permanent Representation to the Commission). Having been made aware by that letter of the change which had taken place, the Commission expressly referred to the restrictions on the imports of eggs and egg products, both in its letter addressed to the United Kingdom of 11 September 1981 and in its reasoned opinion of 12 October 1981. In that way, the Commission clearly intended to refer also to the system of special licences, and to give notice of its incompatibility with the Treaty. That fact moreover appears from the wording used in that letter of 11 September to describe the problems raised in Case 124/81 with regard to import licences and from the express reference in paragraph I of the reasoned opinion to the system of special licences for egg products; in the final part of that opinion, it is clearly stated that, by applying the system of import licences to the importation of egg products, the United Kingdom has infringed Article 30 of the Treaty. The objection of inadmissibility raised by the United Kingdom against that charge therefore appears unfounded. With regard to that, the defendant maintains that in order to justify the contested measure regard should be had not to the particular sector to which the licences

apply (in this case the poultry sector) but to the nature of the risks against which the licences provide protection. Since the principle of special licences has been *528 accepted by the Community in the context of measures to combat foot-and-mouth disease and swine fever, there is no reason, in the defendant's view, for ruling out the same course of action with regard to Newcastle disease. It should be noted in that connection that, regardless of any verification of the statement that that principle has been 'accepted by the Community' for other epizootic diseases, the fact should not be overlooked that foot-and-mouth disease and swine fever have been the subject of harmonising Community directives, which have introduced regulations regarding all aspects of measures to combat those diseases. That has not, as we have seen, taken place in the case of Newcastle disease, except for the limited rules laid down by Directive 71/118. It is therefore meaningless to deduce from Community directives concerning other animal diseases a 'principle' whereby special licences are permissible, to be applied by analogy in a sector essentially governed by Article 36 of the Treaty. The requirements for analogous application are not in fact satisfied. On the other hand the importer's obligation to obtain a special licence for each consignment of goods must be regarded as creating both a state of uncertainty as to the outcome of the transaction and inconvenient delays and procedural formalities. In that regard the Court has expressed the clear view that internal rules which impose, even if purely as a formality, the requirement of an import or export licence, are contrary to Articles 30 to 34 (see in particular judgment in International Fruit (No. 2) (51-54/71) [FN26] and E.C. Commission v. France [FN27]). FN26 [1971] E.C.R. 1107 At Para. [8]-[9]. FN27 [1977] E.C.R. 515, [1977] 2 C.M.L.R. 161 At Paras. [14]-[16]. Those barriers to intra-Community trade do not moreover appear to be justified in order to protect the health of animals since the procedure required for the grant of the special licence adds nothing to the safeguard provided by admission of the products pursuant to a measure of a general nature requiring documentation proving that they have been subjected to the appropriate heat treatment.

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.

*529 JUDGMENT [1] By application lodged at the Court Registry on 4 February 1982 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by adopting the import ban and the import licensing system referred to in the application, the United Kingdom has failed to fulfil its obligations under Article 30 of the EEC Treaty. I. Subject-matter of the action [2] As far as the import ban is concerned, the application states that as from 1 September 1981 the United Kingdom Government has imposed a total ban on the imports of fresh, frozen or chilled poultry-meat, eggs (other than hatching eggs) and egg products into England, Wales and Scotland from all other member-States except Denmark and Ireland. [3] According to the application, these restrictions have been imposed on the basis of the Importation of Animal Products and Poultry Products Order 1980, [FN28] as amended by amendment orders of 1980 and 1981, [FN29] which prohibits the landing in Great Britain of poultry products, including eggs and egg products, without a general or specific licence issued by the appropriate ministry under that Order. FN28 S.I. 1980/14. FN29 S.I. 1980/1934 and S.I. 1981/1238. [4] The measures imposing new restrictions on the import of poultry products with effect from 1 September 1981 were announced by a notice which was published in the London Gazette and in the Edinburgh Gazette of that date. These measures (hereinafter referred to as 'the 1981 measures' ) were to the effect that all general licences for the import of poultry products from other member-States were revoked and that new general licences were issued for the import of such products from Denmark and Ireland. These new general licences concern eggs (not intended for hatching), fresh or refrigerated carcases and part carcases derived from chickens, turkeys, ducks, geese and guinea fowl, with or without accompanying offal, and unaccompanied offals. [5] The Commission claims that the United Kingdom Government made it known, at about the same time, that it did not intend to grant any licences at all with respect to the import of poultry products, including eggs (not intended for hatching) and egg products, if they came from member-States other than Denmark and Ireland, but that it would be prepared to grant licences for the import of heat-treated egg products from any member-State. [6] The Commission further states that, although the 1981 measures apply only to imports into England, Wales and Scotland, similar restrictions have been in force since before the United Kingdom's accession to the Community in respect of imports of poultry products *530 into Northern Ireland. Under the Diseases of

Animals (Importation of Poultry) Order (Northern Ireland) 1965, [FN30] as amended by an amendment order of 1968, [FN31] imports of carcases of poultry and eggs, except, under certain conditions, when coming from Ireland, are subject to an import licensing system. In practice, no import licences are granted for imports from other member-States than Ireland and Denmark. FN30 S.I. 1965 N.I. No. 175. FN31 S.I. 1968 N.I. No. 106. [7] The United Kingdom recognises that its legislation on animal health, as far as poultry products are concerned, amounts to an import licensing system, and that it adopted the 1981 measures in the manner indicated by the Commission. It contends, however, that these measures cannot be considered as a total import ban. [8] According to the United Kingdom, the 1981 measures formed part of a number of arrangements intended to deal in a more effective way with the control of Newcastle disease in poultry. The United Kingdom Government had indeed decided to re-introduce a compulsory slaughter policy in case of any future outbreak of the disease in Great Britain, in line with the policy that was already applied in Northern Ireland. As a result, any poultry flock in which Newcastle disease was confirmed would be slaughtered as from 1 September 1981; as from that same date, the use of Newcastle disease vaccine would be stopped. The implementation of this new policy would restore the whole of the United Kingdom to the highest internationally recognised disease-free category for poultry. [9] The United Kingdom Government had been aware, however, of the extremely infectious character of Newcastle disease. With the removal of vaccine protection the British poultry flock could become totally susceptible to infections as a result of any imports from countries which might not be clear of the virus or which permitted free use of vaccine. Indeed, the use of vaccine might disguise the presence of field virus in poultry. Consequently, it was necessary to apply more stringent health requirements to imports of fresh, including frozen, poultry-meat, eggs and egg products into Great Britain, except for heat-treated egg products in which the virus cannot remain active. [10] The United Kingdom Government made it clear, therefore, that as from the date of introduction of the new policy, imports of these products could only be accepted from countries which were totally free from Newcastle disease, which prohibited the use of vaccine and which imposed compulsory slaughter requirements in the event of an outbreak of the disease. [11] Imports from any member-State meeting these three conditions would remain possible after 1 September 1981. However, the information available at the time suggested that Denmark and Ireland were the only member-States able to satisfy these requirements. *531 As any member-State is free to adopt the same system as the United Kingdom, Ireland and Denmark, the measures in question can, in the United Kingdom's opinion, not be assimilated to a total import ban. It would, in fact, be very desirable if other member-States were to

adopt the same high standards of bird health as the United Kingdom, since such a policy, if generally followed, would permit free movement of poultry and poultry products throughout the Community. II. Summary of the legal arguments [12] The Commission submits that the restriction son imports of poultry products from other member-States, except Ireland and Denmark, as practised by the United Kingdom, constitute an infringement of Article 30 of the Treaty which forbids quantititative restrictions on imports from other member-States and measures having an effect equivalent to such restrictions, which cannot be justified under Article 36 of the Treaty. [13] The Commission agrees with the United Kingdom that the highest levels of freedom from animal disease should be the objective of all member-States, but it adds that measures intended to reduce the incidence of animal disease must remain within the bounds laid down by the Treaty. [14] From this point of view, the Commission challenges in particular four aspects of the United Kingdom's legislation and practice. In the Commission's view: (a) the import licensing system restricts imports more than is necessary for the protection of animal health; (b) the import ban restricts imports more than is necessary for the protection of animal health; (c) as regards England, Wales and Scotland, the import ban constitutes a means of arbitrary discrimination within the meaning of the second sentence of Article 36; (d) as regards England, Wales and Scotland, the import ban constitutes a disguised restriction on trade between member-States within the meaning of the second sentence of Article 36. [15] The United Kingdom contends that the 1981 measures, far from constituting a means of arbitrary discrimination or a disguised restriction on trade between member-States, are fully justified under Article 36, as they are an essential part of a policy aimed at complete eradication of Newcastle disease among poultry. Indeed, such a policy would have the effect of facilitating, and not of restricting, trade with member-States which apply the same high standards of animal health as the United Kingdom. [16] As far as the import licensing system is concerned, the United Kingdom recalls that such a system has been accepted by the Community with regard to foot-and-mouth disease and to swine *532 fever. In its submission, there is no reason why a different approach should be considered in the case of Newcastle disease, as a serious outbreak of this disease would have grave economic consequences comparable to those resulting from a widespread epizootic outbreak of foot-and-mouth disease or swine fever. [17] The French Republic, intervening, supports the Commission's conclusions in so far as they are directed against the 1981 measures. In its view, these measures cannot be justified under the first sentence of Article 36 and clearly constitute a means of arbitrary discrimination and a disguised restriction on

imports of poultry products from other member-States, in particular from France. [18] Ireland, intervening, supports the United Kingdom's conclusions in so far as the import licensing system is concerned. In its view, such a system is, in itself, not contrary to Article 36, because the question whether import licensing is justified for the protection of animal health depends on the particular risks which imports of animal products involve for the health of livestock. [19] Moreover, Ireland makes it clear that, at the moment of the accession of Ireland and the United Kingdom to the Community, both Ireland and Northern Ireland applied a policy of non-vaccination and of compulsory slaughter. As a result, poultry products moved freely from Ireland to Northern Ireland and vice versa, whereas no poultry products could be imported, either into Ireland or into Northern Ireland, from Great Britain where vaccine was still in use. [20] For this reason, Ireland contends that the legal arguments raised by the Commission with regard to the system applied in Northern Ireland are the same as those which are at issue in the separate action which the Commission has brought against Ireland (Case 74/82). Ireland therefore asks the Court not to take a decision on the measures applied in Northern Ireland before Case 74/82 has been heard. III. Factual background [21] Before assessing the legal arguments, the Court thinks it useful to set out a number of facts which may have a bearing on the way in which the problems at issue should be appreciated. [22] First, there is agreement among the parties that imports of poultry-meat and poultry products into the United Kingdom from other member-States showed a remarkable rise in the years preceding the introduction of the 1981 measures. This increase concerned in particular imports of slaughtered whole turkeys; in 1980 imports of whole turkeys from France showed a steep rise as compared with those in 1979. [23] It is also agreed that by mid-1981 the United Kingdom Government and British producers were gravely concerned by the continuing increase in the importation of turkeys from France, and *533 that British poultry producers made it known that they were troubled about government subsidies which, they asserted, had been made available to French producers. In these circumstances, a certain pressure was put on the United Kingdom Government, by articles in the press and in other ways, to take action in order to reduce imports of poultry products from France. [24] Secondly, the United Kingdom does not deny that the date chosen for the introduction of the 1981 measures was such as to prevent imports of Christmas turkeys from France into Great Britain for the 1981 season, and that these imports had constituted a very substantial part of the total imports of turkeys in the preceding years. [25] It is also an established fact that France tried to retain its poultry outlets on the British market by introducing, in September 1981, a policy on Newcastle disease which was broadly similar to the one recently adopted by the United

Kingdom. As from 16 September 1981, it prohibited the use of vaccine and instituted a policy of compulsory slaughter in the event of an outbreak of disease. The British authorities refused, however, to admit French poultry products to their territory on the ground that France had not restricted poultry imports from non-member countries, notably from Spain and from some East European countries, where vaccine was still in use. The French Government maintains that it had previously been able to come to arrangements with Switzerland when outbreaks of the disease occurred in France but not in Swizerland, in such a way that French imports into that country could continue, although health controls at the frontier were substantially reinforced. [26] It appears from information given by the Commission that Denmark, although applying since 1978 a policy of non-vaccination and compulsory slaughter, allows imports of fresh poultry-meat from other member-States, but that it imposes relatively strict health controls at the frontier if the imports come from member-States where Newcastle disease has been recorded within the past 12 months or where vaccination against that disease takes place. [27] According to statistics prepared by the International Office of Epizootics, the only member-States in which some outbreaks of Newcastle disease in 1981 were recorded were Italy and Greece; in 1980 the disease was found to exist in Belgium, Germany, Italy and Greece. The latest recorded outbreak was in 1978 for Great Britain, in 1976 for France and in 1973 for Northern Ireland. The Commission stresses that these figures show a steady reduction in manifestations of the disease in the whole Community over the previous five years. [28] The parties agree that Newcastle disease may have serious economic consequences, that it is a highly infectious disease and that it is combated either by a policy aimed at controlling it and reducing its effects, by means of generalised or selective vaccination, or by a *534 policy aimed at eradicating it, under which vaccination is prohibited and any outbreak is met by compulsory slaughter of infected flocks. [29] The parties also accept that vaccination may mask the subsistence of the disease, as vaccinated birds might, without showing the symptoms of the disease, be infected with field virus carried, for example, by non-domesticated birds. For the Commission and France, however, such a risk is purely hypothetical in countries where vaccinated and non-vaccinated flocks co-exist and where no outbreak of Newcastle disease has been recorded in recent years. [30] Finally, there is agreement among the parties that in August 1981 the proportion of poultry that was vaccinated under the regulations existing at the time amounted to about 40 per cent. both in Great Britain and in France. The French Government adds that the objective of its policy at the time was to vaccinate laying hens and breeding fowl, so that exports of slaughtered chickens and turkeys from France normally involved only non-vaccinated poultry. IV. The 1981 measures [31] Whatever view may be taken of the legal machinery used by the United

Kingdom in introducing the 1981 measures, they have had the effect of preventing any imports into Great Britain of fresh and refrigerated poultry products, eggs (not intended for hatching) and egg products other than heat-treated egg products, from all other member-States except Ireland and Denmark. They are therefore to be considered as measures having an effect equivalent to quantitative restrictions, prohibited by Article 30 of the Treaty unless it is established that they are justified under Article 36 on grounds of the protection of animal health. [32] In this respect, the main argument of the United Kingdom is that the 1981 measures form an integral part of its new policy on animal health with regard to Newcastle disease and that such a change in health policy cannot be challenged under Article 36. In the division of powers between the Community and the member-States, matters of animal health remain within the exclusive competence of the member-States as long as no Community harmonisation has taken place. This would still be the case, it is claimed, even though the introduction of the new policy was greeted with relief by British poultry producers, who feared competition from French poultry on the British market. [33] This argument is correct, in as far as it is for each of the member-States to determine, and, if appropriate, to alter its policy relating to animal health. Under these circumstances, member-States are, in principle, free to adopt, with regard to the risks of Newcastle disease among poultry, either a policy of vaccination or one of non-vaccination and compulsory slaughter. [34] However, the argument of the United Kingdom disregards the fact that the effects of health policy on imports from other *535 member-States cannot exceed the limits laid down by Community law. The United Kingdom submits and the Commission accepts, that Council Directive 71/118, of 15 February 1971, on health problems affecting trade in fresh poultry-meat [FN32] merely contains, in Article 11, certain specific provisions on restriction of imports on grounds of animal health, and that these provisions do not apply to the present case. Whatever the interpretation to be given to these provisions, the Court considers that paragraphs (2) to (5) of Article 11 represent only the beginning of a process of harmonisation in this field. Therefore the matter is essentially to be considered under Article 36 of the Treaty, which expressly provides that restrictions on imports must be justified on grounds of protection of animal health, and which adds, in the second sentence, that such restrictions are not to constitute a means of arbitrary discrimination or a disguised restriction on trade between member-States. FN32 [1971] O.J.Spec.Ed. 106. [35] In reviewing the facts of the case, the Court finds it appropriate to examine first the submissions of the Commission and the French Republic to the effect that the 1981 measures, in their effects on imports from other member-States except Ireland and Denmark, amount to a disguised restriction on intra-Community trade within the meaning of the second sentence of Article 36. [36] As the Court has already observed in its judgment in Case 34/79 Henn and

Darby, [FN33] the second sentence of Article 36 is designed to prevent restrictions on trade mentioned in the first sentence of that Article from being diverted from their proper purpose and used in such a way as either to create discrimination in respect of goods originating in other member-States or indirectly to protect certain national products. FN33 [1979] E.C.R. 3795, [1980] 1 C.M.L.R. 246. [37] Certain established facts suggest that the real aim of the 1981 measures was to block, for commercial and economic reasons, imports of poultry products from other member-States, in particular from France. The United Kingdom Government had been subject to pressure from British poultry producers to block these imports. It hurriedly introduced its new policy with the result that French Christmas turkeys were excluded from the British market for the 1981 season. It did not inform the Commission and the member-States concerned in good time, as the letter in which the Commission was informed of the new measures--which took effect on 1 September 1981--was dated 27 August 1981. It did not find it necessary to discuss the effects of the new measures on imports with the Community institutions, with the Standing Veterninary Committee or with the member-States concerned. [38] It should be noted, in this context, that when the United Kingdom abandoned, in 1964, the policy of non-vaccination and compulsory slaughter conducted till then in Great Britain, in order *536 to adopt a policy of control of Newcastle disease by vaccination, this change of policy was thoroughly prepared by an elaborate report of a committee of experts, by various studies and by prolonged discussions among veterinary experts. The evidence available in the present case does not suggest that any comparable effort was made before the Government decided, in 1981, to reintroduce the policy which it had applied before 1964. The deduction must be made that the 1981 measures did not form part of a seriously considered health policy. [39] This conclusion is reinforced by the way in which the United Kingdom dealt with French demands that French poultry products should be readmitted to Great Britain after the French Republic had fulfilled the three conditions laid down by the United Kingdom Government, namely that the exporting country should be totally free from outbreaks of Newcastle disease, should prohibit vaccination and should apply a policy of compulsory slaughter in the event of any future outbreak of the disease. By refusing French imports on the ground that France had not closed its frontiers to poultry imports from non-member countries where vaccine was still in use, the United Kingdom added in fact a fourth condition to the three which it had previously stated in its letter to the Commission of 27 August 1981, and which it still states in its defence in the present case as the only applicable conditions. [40] Taken together, these facts are sufficient to establish that the 1981 measures constitute a disguised restriction on imports of poultry products from other member-States, in particular from France, unless it can be shown that, for reasons of animal health, the only possibility open to the United Kingdom was to

apply the strict measures which are at issue in this case and that, therefore, the methods prescribed by the 1981 measures for obtaining the high standards of animal health which the United Kingdom Government had in mind when it changed its policy with regard to Newcastle disease, were not more restrictive than was necessary for the protection of the health of poultry flocks in Great Britain. [41] It follows from the information given to the Court during the proceedings that there are less stringent measures for attaining the same result. Thus, the manner in which the Danish authorities deal with imports of poultry products from other member-States--even from those where recent outbreaks of Newcastle disease have been recorded--suggests that it is possible to preserve the highest standard of freedom from Newcastle disease without completely blocking imports from countries where vaccine is still in use. [42] The United Kingdom maintains that the situation obtaining in Great Britain is so much characterised by massive poultry imports that the risks for animal health created by these imports are not comparable to those incurred in countries like Denmark which have only modest poultry imports. *537 [43] This argument is not convincing. In a situation such as the one now prevailing in Great Britain, the only risk of infection of national flocks by imported poultry products resides in the possibility that some of the slaughtered birds, which normally come from non-vaccinated flocks, may have been vaccinated and may have subsequently been infected with field virus, which is somehow transmitted to a live flock. There are, moreover, no clear indications as to whether the appearance of field virus has been confirmed, during recent years, in the main poultry exporting member-States such as France and the Netherlands. [44] The United Kingdom insists that the consequences might be very serious if the risk of infection should materialise, but it admits that the chance of such an occurrence is slight, though not merely hypothetical. The Court considers that, in the situation actually prevailing not only in Great Britain, but in the Community as a whole, and in particular in the member-States which are the principal exporters of poultry products, the possibility of infection by imported poultry products would be so much due to sheer hazard that it cannot justify a complete prohibition of imports from member-States which admit the use of vaccine. [45] It follows from these considerations that, by applying measures which had the effect of preventing imports of fresh and refrigerated poultry products, including eggs (not intended for hatching) and egg products other than heat-treated egg products, into England, Wales and Scotland from any member-State other than Ireland and Denmark, the United Kingdom has failed to fulfil its obligations under the Treaty. [46] As a result, it is the duty of the United Kingdom, by virtue of Article 171 of the Treaty, to take all the necessary measures to comply with this judgment. In this context the Court has taken note of the Commission's statement that it intends to contact the British authorities in order to permit, without delay, the re-establishment of trade which has been interrupted by the 1981 measures while at the same time safeguarding animal health in conformity with the Treaty.

V. Other points at issue [47] Apart from the 1981 measures, the present action raises two further issues: first, the ban on imports of poultry products into Northern Ireland from other member-States, except Ireland and Denmark; secondly, the United Kingdom legislation which constitutes the basis of the measures taken with regard to both Great Britain and Northern Ireland, inasmuch as they embody an import licensing system. In the Commission's submission, this last issue also has a bearing on the assessment of the measures adopted with regard to imports of heat-treated egg products into England, Wales and Scotland. *538 [48] On the first point, the Court accedes to the request submitted by the Irish Government. It will not give judgment until Case 74/82, E.C. Commission v. Ireland, [FN34] which raises substantially the same problems, has been heard. FN34 See [1982] O.J. C74/7. [49] On the second point, the Court considers that it does not yet have sufficient information to be able to take a decision. By renouncing its right to lodge a reply in the written proceedings, and by concentrating its attention, during the oral proceedings, predominantly on the 1981 measures, the Commission did not fully develop its arguments on the compatibility of an import licensing system with Articles 30 and 36 of the Treaty. [50] In particular, the Commission did not elaborate its views on the United Kingdom's submission that Community directives had accepted an import licensing system with regard to animal diseases other than Newcastle disease, and on Ireland's submission that the Treaty does not forbid any import licensing system for reasons of animal health in general, as the disadvantages of such a system have to be balanced against the risks which imports of animal products involve for the health of livestock. [51] For all these reasons, it is in the interest of a proper administration of justice that the Commission should be given an opportunity to lodge its reply, within a period to be fixed by the President of the Court, on the issues which are still outstanding, that the defendant should respond to this reply and that the interveners should be given the opportunity to present such observations as they think fit. [52] The circumstance that, at present, the Court does not grant the declaration sought by the Commission with regard to the import licensing system, does not imply that this system may be used in a way leading to import restrictions substantially similar to those resulting from the 1981 measures. Order On those grounds, THE COURT, hereby: 1. Declares that by applying measures which had the effect of preventing imports of fresh and refrigerated poultry products, including eggs (not intended for hatching) and egg products other than heat-treated egg products, into England,

Wales and Scotland from any member-State other than Ireland and Denmark, the United Kingdom has failed to fulfil its obligations under the Treaty. 2. Reserves its judgment on the other issues involved in the present case and invites the Commission to lodge its reply on these issues, within a period to be fixed by the President of the Court. 3. Reserves the costs.

(c) Sweet & Maxwell Limited [1982] 3 C.M.L.R. 497 END OF DOCUMENT