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HOUSE OF LORDS (Transcript), [1999] 3 C.M.L.R. 469 HEARING-DATES:
2, 3, 4 FEBRUARY, 20 MAY 1998 20 MAY 1998 COUNSEL:
D Vaughan QC and M Hoskins for the
Appellants; P Roth QC and J Skibeck for the Respondents; M Beloff QC and R
Millett for the Intervenor PANEL:
LORDS, GOFF OF CHIEVELEY, SLYNN OF HADLEY, STEYN, HOPE OF CRAIGHEAD, HUTTON JUDGMENTBY-1:
LORD GOFF OF CHIEVELEY JUDGMENT-1:
LORD GOFF OF CHIEVELEY My Lords, I have had the advantage of reading
in draft the speech prepared by my noble and learned friend, Lord Slynn of
Hadley. I agree with it, and for the reasons which he has given I would make
the same order. JUDGMENTBY-2:
LORD SLYNN OF HADLEY JUDGMENT-2:
LORD SLYNN OF HADLEY My Lords, The appellants are producers and
exporters of citrus fruits in the Republic of Cyprus; the interveners export
citrus fruits from that part of Cyprus which is north of a buffer zone
maintained by the United Nations and which calls itself "The Turkish
Republic of Northern Cyprus" ("TRNC") over which it
seems in practice officials of the government of the Republic of Cyprus do not
have control. The interveners are owned by the TRNC. There are obviously
political and economic factors involved in the relationship between the
appellants and the interveners which are not in issue in this appeal and as to
which I express no view. Until 1994 the interveners exported
to the United Kingdom citrus products accompanied by two documents issued by
persons said to be officials of the TRNC. The first was a document known as
"EUR1," a movement certificate providing proof of origin, without
which the products could be imported into the United Kingdom, but without which
they would not have the benefit of preferential tariffs on entry into the
United Kingdom pursuant to the European Community - Cyprus Association
Agreement of 1972 and the protocols thereto of 1977 and 1987. The second document was a
phytosanitary certificate purported to be issued pursuant to Council Directive
77/93 on "Protective measures against the introduction into the Community
of organisms harmful to plants or plant products and against their spread
within the Community" (OJ 1977 No. L 26/20 as amended), a Directive
implemented in Great Britain by the Plant Health (Great Britain) Order 1993, as
amended. The Directive requires that products specified in Annex V (B) thereto
(which include citrus plants and products) coming into the Community from third
countries must be accompanied by a phytosanitary certificate stating that the
products have been inspected according to appropriate procedures and are
considered to conform to the phytosanitary regulations of the importing
country. Until 1994 the respondent admitted
citrus products from the TRNC on the basis of EUR1 and phytosanitary
certificates issued by "officials" of the TRNC. The appellants had in
the meantime on 21 May 1992 brought proceedings for judicial review in the High
Court challenging the lawfulness of the respondent's practice both in relation
to citrus products and to potatoes. The High Court referred to the European
Court of Justice questions, in summary, as to whether: (a) where citrus fruits were
imported into a Member State accompanied by (i) an EUR1 Movement Certificate
and (ii), other than in respect of lemons, a phytosanitary certificate,
respectively issued by the Turkish Community in the TRNC but not by officials
authorised by the Republic of Cyprus, a Member State was required to accept, or
precluded from accepting, those certificates; (b) it made any difference to those
answers that (i) exporters in the TRNC could not in practice obtain
certificates from the Republic of Cyprus and met a significant impediment in
exporting their products through that part of Cyprus controlled by the
government of the Republic of Cyprus; (ii) the procedures in the TRNC were as
dependable as those in the rest of Cyprus and the standard of plant health in
the TRNC was the same as in the rest of Cyprus; (iii) the difficulties were
caused by the Turkish community in the north or by officials of the Republic of
Cyprus. The interveners participated in the
oral hearing before the European Court of Justice. That Court in its judgment
of 5 July 1994 (case C-432/92) [1994] ECR 1-3087, 3139 held that the
Association Agreement and the Directive: "must be interpreted as
precluding acceptance by the national authorities of a Member State, when
citrus fruit and potatoes are imported from the part of Cyprus to the north of
the United Nations Buffer Zone, of movement and phytosanitary certificates
issued by authorities other than the competent authorities of the Republic of
Cyprus." On receipt of the Court's judgment
Popplewell J. on 11 November 1994 declared that the United Kingdom may not
accept, in relation to the import of citrus fruits from the TRNC, EUR1 and
phytosanitary certificates other than those issued by the competent authorities
of the Republic of Cyprus. That judgment is subject to appeal to the Court of
Appeal but following the judge's declaration on 11 November 1994, the
interveners took action to get their products to the United Kingdom. In reply
on 13 March 1995 the appellants asked by notice of motion in the existing
proceedings for an order restraining the respondent minister from allowing into
the United Kingdom any citrus fruits or potatoes "produced in" the
TNRC. In a judgment on 23 May 1995 dealing with that motion Popplewell J.
described the action taken by the intervener as follows: "On 15th November the
Interveners, no doubt advised as to how they could avoid the consequences of my
order, (because it is quite clear that commercially it was likely to have a
very serious effect on the growers in the TRNC,) did this: they came to an
agreement with a company in Turkey, who I shall call Citex. As I understand it,
all the interveners and Citex are substantially the same body, although they
are different companies, but if the corporate veil were lifted they would be
seen to be the same. What was arranged was that a ship carrying citrus products
from TRNC, armed with a certificate from TRNC, would call in at a Turkish port
and remain there for a short period of time, something under 24 hours, and
thereafter the boat would continue its voyage to the United Kingdom. There were
bills of lading consigning goods to Turkey and bills of lading from Turkey. What happened in Turkey was that
there was an inspection and a certificate was issued which showed that the
plants or plant products had been inspected according to appropriate procedures
and were considered to be free from quarantine, pests and practically free from
other pests and that they are considered to conform with the current
phytosanitary regulations of the importing country. It is clear that the goods were not
unloaded and were not imported into Turkey in the sense that they passed the
customs barrier." The judge granted the application in
respect of potatoes but refused it in respect of citrus fruits and his decision
was upheld by the Court of Appeal. It is that decision of the Court of Appeal
which is now an issue before your Lordships' House. The appeal is limited to
citrus products and to phytosanitary certificates, it does not involve either
potatoes or EUR1 movement certificates. The interveners submitted as a
distinct point that the notice of motion should in any event be dismissed since
it seeks relief which does not arise from, nor operates so as to enforce, the
declaratory relief granted on the application for judicial review by Popplewell
J. on 11 November 1994. This point was raised before and rejected by Popplewell
J. and though raised before was not dealt with by the Court of Appeal since
that Court ruled that the appellants failed in any event on the substance of
their appeal. The learned judge's order of 11 November declared: "that the United Kingdom may
not accept in relation to the import of citrus fruits and potatoes from the
part of Cyprus to the north of the United Nations Buffer Zone:- (1) EUR1
movement certificates: and (2) phytosanitary certificates issued under Council
Directive 77/93/EEC (as amended), other than those issued by the competent
authorities of the Republic of Cyprus." The present notice of motion,
brought in the same proceedings for judicial review, seeks an order that: "The Respondent whether by
himself, his servants or agents or otherwise howsoever do be restrained from
allowing into the United Kingdom any citrus fruit or potatoes produced in the
part of Cyprus to the north of the United Nations Buffer Zone unless
accompanied by [the two previously mentioned] certificates issued by the
competent authorities of the Republic of Cyprus." Mr Beloff QC says that the
difference between citrus fruits "from" and those "produced
in" that part of Cyprus is fundamental. If regard is to be had to the
proceedings on the application for judicial review and indeed in the European
Court of Justice it is clear that what the referring court and the European
Court had in mind was citrus fruits "exported from" Northern Cyprus. The expression "citrus fruits
from Northern Cyprus" taken by itself as a matter of ordinary language is
wide enough to cover both such fruits "originating in" or
"produced in" Cyprus as well as those "dispatched from" or
"exported from" Cyprus. Perhaps the original order could have
distinguished between the two and limited the declaration to fruits
"exported from Cyprus and imported directly into the Community". But
the fact is that it did not; a quite general expression is used. Moreover if
one looks at the substance of the matter there is no doubt that these fruits
were both produced in Cyprus and originally were exported from Cyprus. They
cannot have valid certificates from the officials in northern Cyprus (a point
common to the application for judicial review and to the motion for an
injunction) and the question, again common to both the application and the
motion, is whether a certificate from the officials of the Republic of Cyprus
is necessary. The decision to route the produce
through a Turkish port was taken as a result of the judge's declaration
following the European Court's judgment. Whether it is said to be a way of
avoiding the effect of the European Court's judgment or of complying with it,
the fact is that it was adopted in order to try to make it possible for the
Ministry of Agriculture to accept produce grown in and despatched from Cyprus
via a Turkish port. The link is so close that I do not
think it can be said that this application does not "arise from" the
declaratory relief granted on the application for judicial review. Moreover
although the matter has not been argued I am not satisfied that, as Mr Beloff
contended, the Turkish government is prejudiced by the fact that new
proceedings for judicial review were not issued or that it could not have
applied to intervene in this motion. Even if the latter is right any points
which the government wish to take could have been taken by the present
interveners. That makes it unnecessary to
consider his alternative contention that, if it had been necessary for a new
application to be made for judicial review, the appellants would have lacked
the necessary locus standi, though I am not persuaded by the brief argument
Your Lordships have heard that it is right. Nor is it necessary to deal with
the further question, apparently prompted by In re Poh [1983] 1 All ER 287,
[1983] 1 WLR 2, as to whether your Lordships' House has power to grant leave to
the appellant to apply for judicial review on the present appeal so as to avoid
the matter having to begin all over again by a fresh application for judicial
review. It is, however, right to mention that this case is different from In re
Poh since this is not an appeal from a refusal of leave by the Court of Appeal.
I would accordingly not accept Mr
Beloff's submissions. To return to the issues in the
appeal. Put shortly the question is whether, if the interveners cannot lawfully
import these citrus fruits directly into the United Kingdom with certificates
issued in the TRNC, they can do so by sending them to a Turkish port from
which, backed by phytosanitary certificates issued in that port, they are then
sent on to the United Kingdom by a Turkish company which is to all intents and
purposes the same as the interveners. Three principal questions arise on
which the appellants and the respondent, whose submissions are adopted by the
interveners, disagree. The first goes to the proper interpretation of the
Directive on a matter which, all parties appear to agree, was not covered
directly by the judgment of the European Court of Justice, since on the facts
it did not arise, and was not raised before that court as an alternative
possible course of conduct open to the interveners. The issue can be simply
put, though it needs some explanation to place it in context. It is this: for
citrus fruits to be imported into a Member State from outside the Community,
does the Plant Health Directive properly construed require that the certificate
be issued by the authorities of the country of origin of the products or may it
be issued by a third country and, if so, in what circumstances? What happened in fact here was that
two phytosanitary certificates were issued in respect of the same consignment
of goods. The first numbered 000655 and dated 11 March 1995 was issued in
Famagusta by the Plant Protection Organisation of Cyprus for that organisation
of Turkey. The place of origin of the goods was said to be Cyprus. The second
intervener was described as the consignor and the consignee was a company in
Mersin, Turkey. The certificate stated that the products "have been
inspected according to the appropriate procedures," are considered free
from the specified pests and "are considered to conform with the current
phytosanitary regulations of the importing country" ie. Turkey. The second
certificate issued on 13 March 1995 related to the same consignment and was
issued in Mersin from the Plant Protection Organisation of Turkey to that
organisation of the Netherlands. The consignor was the same company in Mersin;
the place of origin was Cyprus; the consignee was the first intervener in
London. The vessel was the same and the declaration in the second certificate
was in the same terms as in the first. The appellants, though contending
that the other two issues can be resolved in their favour without any question
of a reference to the European Court on a matter of construction arising, contend
that the Directive plainly requires that there should be a certificate from the
country of origin and that means from the competent authorities of that
country. There was no such certificate in connection with the relevant
consignment. Therefore the goods could not lawfully be accepted for importation
by the respondent. It is to be noted that the Directive
deals separately with goods originating in the Community and those originating
in other states though there are important cross references between the
separate provisions. Thus arts 6, 7 and 8 deal with goods originating in the
Community, being those products listed in Annex V A. Article 12 deals with
products coming from non-member countries and the products listed in Annex V B
which includes as item I.3 "fruits of citrus." Article 12.1 requires Member States
to make provision that the products are "inspected meticulously on an
official basis" to ensure that they are not contaminated with specified
harmful organisms and that they comply with the special requirements indicated
in Annex IV Pt A. This covers inspection by the Member State of importation.
But in addition the products "must be accompanied by the certificates
prescribed in article 7 or 8 (91/683) and that a phytosanitary certificate may
not be made out more than 14 days before the date on which the plants, plant
products or other objects leave the consignor country." Those certificates
must give information in accordance with the model contained in the Annex to
the International Plant Protection Convention of 6 December 1951 as amended and
be issued by the "authorities empowered for this purpose under the"
Convention, or in the case of non-contracting countries, on the basis of the
laws of the countries. Article 12, contend the appellants,
thus takes one back to arts 7 and 8. Article 7 provides for the proscribed
phytosanitary certificate to be issued "Where it is considered, on the
basis of the examination laid down in article 6 (1) and (2), that the
conditions therein are fulfilled." So, argue the appellants, art 7
takes one back to art 6. Article 6 provides that Member States shall lay down
"at least in respect of the introduction into another Member State of the
plants, plant products and other objects listed in Annex V Part A (91/683)
(which include as item I.1.6 "Fruits of Citrus Clementina L with peduncles
and leaves), that the latter "shall be" meticulously examined on an
official basis to make sure that they are not contaminated by specified harmful
organisms and that they comply with the relevant specified requirements.
Article 6 para 4 provides that those official examinations shall be carried out
in accordance with the following provisions: "(a) They shall extend to the
relevant plants or plant products grown, produced or used by the producer or
otherwise present on his premises as well as to the growing medium used there. (b) They shall be made on the
premises, preferably at the place of production. (c) They shall be made regularly at
appropriate times, at least once a year, and at least by visual observation,
without prejudice to the special requirements listed in Annex IV; further
action may be taken where this is provided for under paragraph 7." This clearly refers to the country
from which the goods are exported and by reason of art 12 both arts 6 and 7
will, if applicable, have to be adapted to fit products exported from
non-Community countries. The heading to Annex V reads as
follows: "Plants, plant products and
other objects which must be subjected to a plant health inspection - at the
place of production if originating in the Community, before being moved within
the Community, - in the country of origin or the consignor country, if
originating outside the Community, before being permitted to enter the
Community." Article 8 provides that where
products have been introduced into one Member State from another state and are
to be moved on to a third Member State accompanied by a phytosanitary
certificate, a further art 6 inspection is not needed. Where the products have
been split up or stored or repacked a new inspection is not necessary if
"it is officially ascertained that no change in these products has
occurred in its territory which would involve non-compliance with the
conditions laid down in article 6" when a re-forwarding certificate in the
proscribed form may be issued and if issued must be attached to the
phytosanitary certificate issued by the first Member State or a certified copy
of the latter certificate. That re-forwarding certificate must be made out not
more than 14 days before the products leave the re-forwarding country. Of considerable importance to the
argument in the appeal is art 9. That requires in the case of products to which
special requirements laid down in Annex IV, Pt A apply the official
phytosanitary certificate required pursuant to art 7 shall have been issued in
the country in which the plant, plant products and other objects originate,
save: ". . . [not relevant] . . . In other cases, to the extent that
the special requirements laid down in Annex IV, Part A can be fulfilled also at
places other than that of origin." Item 16.1 in Annex IV Pt AI,
applicable to plant products originating outside the Community, comprises
"fruits of Citrus L, Fortunella Swingle, Poncirus RaF. and their
hybrids" and provides that "the fruits shall be free from peduncles
and leaves and the packaging shall bear an appropriate origin mark." The appellants refer to the emphasis
in the Directive on inspection and certification close to the place of production.
That they say rules out an intermediate inspection. Valid certification should
only take place following "meticulous inspection" of the products, if
appropriate in their entirety. This can only be done at the place of production
other than where re-forwarding certificates are permissible or to the limited
extent provided for by art 9 in respect of specific precautions. A mere
inspection on the ship in a port is not a sufficient safeguard even if carried
out on all the containers in the ship. This approach they say is the one which
is consistent with the International Convention on Plant Control. The respondents reply further that
art 12 refers to arts 7 and 8 which must be applied and adapted for goods
coming from outside the Community. It does not refer back to art 6. Article
6(4) requires that products originating in the Community (those in Annex V Pt
A) shall be examined "on the premises, preferably at the place of
production." There is no express provision as to where the examination of
Annex V Pt B products, those originating outside the Community, should take
place. In the alternative the respondent says that once Annex IV lays down a
special requirement, as it does here in respect of stalks and leaves, the
certificate, ie. the whole phytosanitary certificate, may be given other than
at the place of origin if the special requirements can be fulfilled there.
There can only be one certificate and it is not possible to have different
certificates dealing with different matters. As to the argument on art 9, the
Court of Appeal whose decision on this point is supported by the respondents
held that by virtue of art 9 once there is a special requirement for a product
falling within Annex IV A (as here that there shall be no stalks and leaves) it
is not necessary for the consignment to be covered by a certificate from the
country of origin. This, say the appellants, is contrary to the clear provision
of art 9 that the certificate of the country of origin is only not required
"to the extent that the special requirements . . . can be fulfilled also
at places other than that of origin." (Emphasis added.) As to the rest
there must be a certificate from the country of origin. If it were otherwise
the object of the Directive to ensure control at or close to the place of
production would be defeated and the absurd result would follow that a more lax
standard would be accepted for goods coming from third countries than from
Member States where the Community can set standards particularly in regard to
matter falling within Annexes 1 and II. The appellants say further that the
respondent's whole approach is inconsistent with the current and the original
wording of art 9. In the first version of the Directive art 9 provided that the
goods listed in Annex IV Pt A needed a certificate "issued in the country
in which they originate or by a certified copy of that certificate in addition
to the certificates provided for in articles 7 and 8," yet the heading to
Annex V had, as it has now, a reference to inspection "in the country of
origin or the consignor country." The respondent replies that the
appellants have misunderstood the Directive and that it is important to trace
the changes which have been made in the wording of the Directive in order
properly to understand the current wording of Annex V and its heading. The
latter makes it clear that a certificate from a consignor country is
sufficient. The appellants have, on the other hand, to meet the respondent's
reference to the heading to Annex V where it is said that for goods originating
outside the Community the inspection may take place in "the country of
origin or the consignor country" and their argument that consequently it
is only for goods originating in the Community that the inspection must be at
the place of production. The appellants reply that this argument produces a
result inconsistent with the aim of the Directive which is to take protective
measures against harmful organisms coming into a Member State. The text of the
articles in a directive should not be controlled by the heading to an annex. Whichever side is right, it seems to
me clear that this question of the interpretation of the Directive has to be
decided before judgment can be given in the case. The matter is not covered by
the judgment of the European Court given in the earlier reference nor in any
case cited to your Lordships' House. Given the appellants' arguments, but in
the contrary sense the opinion of the judge and the Court of Appeal, the answer
is not so clear and obvious that no reference is necessary. I consider that the
House is obliged by art 177 of the Treaty of Rome to make a reference on this
issue and therefore I do not set out in more detail the arguments of the
parties elaborating the basic division between them which I believe to be
sufficiently set out in what I have said. The appellants' second point is that
in its judgment in the first Anastasiou case C 432/92 the European Court
stressed that the Directive is based on cooperation between the importing state
and the country of origin. Without such cooperation the country of origin
cannot take action to eradicate or prevent the contamination of plant products
originating in its territories. This is an essential objective also of the
International Plant Protection Convention of 6 December 1952 and of the
European and Mediterranean Plant Protection Organisation, of the latter of
which Cyprus is a member. The TRNC could not give the necessary certificate on
the facts of that case or of the present case. As the European Court put it in
its judgment: "39 Acceptance of certificates
by the customs authorities of the importing State reflects their total
confidence in the system of checking the origin of products as implemented by
the competent authorities of the exporting State. It also shows that the
importing State is in no doubt that subsequent verification, consultation and
settlement of any disputes in respect of the origin of products or the
existence of fraud will be carried out efficiently with the cooperation of the
authorities concerned. . . . 61 It should be noted that the
common system of protection against the introduction of harmful organisms in
products imported from non-member countries, laid down in Directive 77/93, is
based essentially on a system of checks carried out by experts lawfully
empowered for that purpose by the Government of the exporting State and
guaranteed by the issue of the appropriate phytosanitary certificate. The
conditions governing acceptance of those certificates as a uniform means of
proof must consequently be absolutely identical in all the Member States. . . .
63 Furthermore, any difficulty or
doubt concerning a certificate must be brought to the attention of the
authorities of the exporting State by the importing Member State. . . . It
would be impossible for an importing State to address enquiries to the
departments or officials of an entity which is not recognized, for instance
concerning contaminated products or certificates that are incorrect or have
been interfered with. Clearly only the authorities of the Republic of Cyprus
are in a position to take action following complaints connected with the
contamination of plant products exported from Cyprus." Even less, say the appellants, can
Turkey give such a certificate covering all the matters required to be
considered, even if it can certify that the fruit is free of stalks and leaves
following an inspection on the ship in the Turkish port. There is no way in
which Turkey can inspect growing plants, areas under cultivation or the picking
and packing of the fruit in order to be sure that any pests or disease are
spotted and controlled. Other than in relation to stalks and leaves there
cannot be the necessary cooperation between the Republic of Cyprus and Turkey
(even de facto between the TRNC and Turkey) to carry out the necessary
inspection. Accordingly the United Kingdom must not allow the import of citrus
products covered by a phytosanitary certificate issued by Turkey where the ship
merely called in at a Turkish port for a few hours and where the fruits were
not imported into Turkey. The most that Turkey could do was to issue a
re-forwarding certificate attached to the original or to a copy of the
phytosanitary certificate issued by the Republic of Cyprus. The respondent replies that the question
of certificates issued in a third country was neither an issue, nor addressed,
in the earlier judgment. Moreover the court was only considering cooperation as
to enquiries or doubts regarding these certificates, since those who issued the
certificate were not officials of a recognised state. There will be no
difficulty in the United Kingdom authorities consulting Turkish officials about
the certificates or about their procedures. The European Court was not
concerned with cooperation as to the effective operation of the plant health
regime. What it said has no effect on the present issue. The appellants attach much
importance to this point of cooperation based as it is on the judgment of the
European Court. If it is right they may well be entitled to the order they seek
and it is plainly necessary to decide the point before judgment can be given.
But once again it is plain that the issue, in so far as it involves sending the
goods to a third country and their onward transmission to the Community, was not
raised before the European Court of Justice. There is a real question as to how
far the statements of the Court as to cooperation should be taken to cover
third countries. The point is in any event linked to the broader question of
interpretation raised in the first point. It should in my opinion be referred
to the European Court pursuant to art 177 of the Treaty. The appellants' third point is that
on the facts there is only one reason for sending the fruits from the TRNC to
Turkey before they are sent to a Member State. That reason is to circumvent the
European Court's judgment in Anastasiou C 432/92. The interveners only applied
to take part in the proceedings before the European Court twelve days before
the hearing; they did not raise any issue relevant to the present appeal; they
adopted the present practice of sending the fruits to Citex, which in reality
is the same as the interveners, only four days after Popplewell J.'s judgment.
This is a "device" to avoid the effect of the European Court's judgment.
The respondents say that what the
interveners did was no more than to "comply with the Directive in the
light of the ruling of the Court of Justice" that examination and
certification by officials of the TRNC were not acceptable. The validity of the
Turkish certification cannot in any event be questioned in these proceedings. Contrary to the appellants'
submissions I do not consider that the interveners can be penalised for not
raising before the European Court of Justice in the earlier case the question
whether it would be lawful to route goods in the way they did. Until they had
the ruling of the European Court they did not know for certain that the
certificates issued by TRNC officials were insufficient. I do not see there is
any question of an abuse of process of the court for this matter to have been
left until after that ruling. Nor can the interveners be prevented from
changing their arrangements so as to comply with the judgment of the European
Court in the first reference so long as they do it lawfully. There are, on the other hand, cases
where the European Court has accepted that steps taken in order to
"circumvent" one legal rule are not to be allowed (see eg. TVIO SA v
Commissariaat Voor de Media (Case C-23/93) [1994] ECR I-4795; see also R v HM
Treasury and Commissioners of Inland Revenue, Ex p Daily Mail and General Trust
Plc. (Case 81/87) [1988] ECR 5483). Those cases are different from the present
but whether it is lawful to send the fruits to Turkey to obtain another
phytosanitary certificate, rather than a re-forwarding certificate, in order to
avoid the difficulty that TRNC certificates are unacceptable, is what this case
is all about. It may be that this issue will not arise if the appellants
succeed on the first or the second issue. But I do not think that it can be
said that the appellants' contention that what happened here is unacceptable
under Community law, as a way of avoiding the court's earlier judgment in
Anastasiou, is unarguable. That does not in any way involve seeking to go
behind the Turkish Certificate contrary to what was said in Aksionairnoye
Obschestvo AM Luther v James Sagor & Co. [1921] 3 KB 532. It seems to me that this point has
to be decided if the appellants fail on the first and the second issues and the
three issues are in any event so interlinked that I would refer a question on
this point also. If the European Court takes the view that this is a distinct
point on which the appellants can succeed in Community law it will have been
important to make the reference. If it takes the view that the other points
decide the case or that a lawful rather than unlawful procedure
("device") has been adopted it will be able to say so without the
reference being much extended. In any event I do not consider that
this is a case when no reference should be made because there has already been
a reference. The issues are not the same. I would accordingly refer the
following questions to the European Court in the light of written proposals and
submissions made by the three parties since the hearing before your Lordships. 1. Under art 12(1)(b) of Council
Directive 77/93/EEC of 21 December 1976 on protective measures against the
introduction into the Member States of organisms harmful to plants or plant
products as amended, ("the Directive") is a Member State entitled to
accept (and if so in what circumstances and subject to what conditions) the
introduction into its territories of plants as defined in the Directive
("plants") originating in non-Member countries and listed in Annex V,
Pt B of the Directive where those plants are accompanied only by a
phytosanitary certificate issued by a Non-Member country from which the plants
have been transported to the Community and not by a phytosanitary certificate
issued by the non-Member country of origin? 2. Does the answer to Question 1
differ, and if so how, if the relevant plants are subject to special
requirements laid down in Annex IV, Pt A, s 1 of the Directive which can be
fulfilled in non-Member countries other than that of origin within the meaning
of art 9(1) of the Directive? 3. Is the Judgment of the Court of
Justice in Case C-432/92 Anastasiou [1994] ECR I-3087 to be interpreted and
applied so as to preclude the national authorities of a Member State from
permitting the importation of citrus fruits originating in the part of Cyprus
to the north of the United Nations Buffer Zone when they are accompanied by a
phytosanitary certificate which has been issued by the authorities of another
non-Member country from which those citrus fruits have been transported to the
Community. 4. Are the answers to any of the
above questions different where: a. the relevant plants were never
imported into the non-Member country in which the phytosanitary certificate
which accompanied them to the Community was issued in the sense that they were
never unloaded from the ship in question and/or never passed the custom
barrier; and/or b. the special requirements that
applied to the relevant plants had already been satisfied in the country of
origin? 5. Are the answers to Questions 1
and 2 different where the relevant plants were submitted for the certification
in a non-Member Country other than that of origin, not for any plant health
reason, but so as not to have to obtain a phytosanitary certificate from the
authorities empowered to do so in the country of origin? JUDGMENTBY-3:
LORD STEYN JUDGMENT-3:
LORD STEYN My Lords, I have had the advantage of reading
in draft the speech prepared by my noble and learned friend, Lord Slynn of
Hadley. For the reasons he gives I would also make the order he proposes. JUDGMENTBY-4:
LORD HOPE OF CRAIGHEAD JUDGMENT-4:
LORD HOPE OF CRAIGHEAD My Lords, I have had the advantage of reading
in draft the speech prepared by my noble and learned friend, Lord Slynn of
Hadley. I agree with it, and for the reasons which he has given I would make
the same order. JUDGMENTBY-5:
LORD HUTTON JUDGMENT-5:
LORD HUTTON My Lords, I have had the advantage of reading
in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley.
I agree with it, and for the reasons which he gives I would make the order
which he proposes. DISPOSITION:
Judgment accordingly SOLICITORS:
Osborne Clarke; Ministry of Agriculture
Fisheries & Food; Theodore Goddard |