DELIVERED ON 8 NOVEMBER 1983 (*1)

Mr President,

Members of the Court,

1. The Court is once again called upon to rule on the compatibility with the EEC Treaty of national measures intended to combat Newcastle disease and other avian diseases. As the Court is aware, in September 1981 the United Kingdom imposed a total prohibition on the importation of frozen or chilled poultrymeat, eggs (except those intended for hatching) and egg products into England, Wales and Scotland from any Member State other than Ireland and Denmark. The purpose of the prohibition was to protect health and animal life. Similar restrictions on the importation of avian products into Northern Ireland have existed for the same purpose since 1938.

2. The Court gave judgment on the Commission's application against the United Kingdom (Case 40/82) on 15 July 1982. The Court held on that occasion that, by prohibiting the importation of the abovementioned products into England, Wales and Scotland, the United Kingdom had failed to fulfil its obligations under the Treaty. However, the Court reserved judgment on two other issues: namely, the prohibition on imports into Northern Ireland, because it raises problems similar to those which are the subject-matter of Case 74/82, and the legislation which constitutes the basis of the measures taken with regard to Great Britain and Northern Ireland, inasmuch as they embody an import licensing system ([1982] ECR 2793).

3. My Opinion will therefore deal with those two groups of provisions and, at the same time, with the Irish provisions on the importation of poultry products (Case 74/82). The provisions involved are in fact very similar; also similar are the grounds which constitute the basis of the applications and of the defences lodged by the two governments. I may therefore examine the opposing arguments jointly.

5. In a letter dated 24 September 1981 the Commission condemned the Irish measures as being equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty and stated that they were not justifiable under Article 36; it stated that the prohibition imposed by those measures was disproportionate to the risks which they purported to obviate, particularly in view of the Community's satisfactory record in relation to poultry diseases. Ireland did not however retreat from its position. It observed that the health situation in the Member States was less promising than the Commission had claimed. The import prohibition (which in any case was not absolute, since it did not extend to countries enjoying equivalent health standards) was therefore legitimate under Article 30.

6. On 9 November 1981 the Commission issued a reasoned opinion inviting the Irish Government to comply within five days. In particular, the Commission denied that, because it had never been vaccinated, the Irish poultry flock was more vulnerable than others and it submitted that in any event it would be possible to protect it by less drastic means; it also reaffirmed the arguments which it had put forward, albeit in summary form, against the system of import licences. In an initial reply (dated 7 December 1981) Ireland merely described as precipitous the attack made by the Commission on measures which had already been in force when Ireland acceded to the Community. It added that its legislation permitted the importation of poultry and egg products which had been subjected to heat treatment and of day-old chicks and hatching eggs under quarantine conditions and subject to strict health controls. Finally, in an addendum to that letter the Irish Government emphasized that Newcastle disease and other poultry diseases are still prevalent within the Community and stressed the risk to which the country's flock would be subjected if imports from Member States which vaccinate poultry were liberalized.

8. That is the case in Ireland and Northern Ireland. Ever since the 1930s Ireland has had recourse to slaughter, whenever an outbreak has occurred, to the prohibition of vaccination and to strict import controls. The results of that strategy have been excellent, so much so that Newcastle disease was last diagnosed in 1956 and that no other disease (infectious laryngotracheitis, fowl pox, rabies, turkey coryza and Arizona disease) has in the meantime affected the Irish poultry flock.

9. Unchanged in substance since 1938, the provisions currently in force are based on the Diseases of Animals Act 1966 and are contained in the Poultry, Poultry Carcases, Poultry Eggs and Poultry Products (Restriction on Importation) Order 1971 (SI 1971, No 139). That Order prohibits the importation of poultry, poultry carcases, poultry eggs and poultry products save under and in accordance with a licence granted by the Minister for Agriculture and Fisheries. The licence is granted if the products in question come from countries which pursue similar policies (that is to say, within the Community, the United Kingdom [Northern Ireland] and Denmark). Licences are also granted for the importation of poultry eggs and poultry products which have been cooked or heat treated at the temperature necessary to eliminate the virus.

10. Similar provisions are in force in Northern Ireland. There too recourse is had to the compulsory slaughter of all infected birds, the serological examination of poultry flocks, regular laboratory tests and strict control of imports. Such controls date back to 1933, whilst the measures relating to Newcastle disease have been applied since 1949, when it became compulsory to report outbreaks to the authorities.

11. The current provisions have their roots in the Diseases of Animals (Northern Ireland) Act 1958 and are to be found in the Diseases of Animals (Importation of Poultry) Order (Northern Ireland) 1965 (SI 1965 NI No 175). Article 4 (1) of that Order makes the importation of live poultry, poultry carcases, eggs and certain equipment for poultry-rearing subject to the possession of a licence issued by the Ministry of Agriculture. Article 4 (2) provides that the licence is to be issued if it is clear that its use will not create a danger of introducing diseases into the region: that is to say, once again, only for imports from countries which apply the same health criteria and for products which have been subjected to heat treatment. However, an exception is made for the Republic of Ireland, whose products may be imported with an “open general licence” or without a licence when they are intended for other countries.

12. Finally, the importation and use of vaccine have always been prohibited. The prohibition was not enforced from 30 November 1973 to 30 March 1974 in order to contain an epidemic of Newcastle disease. Since then the disease has manifested itself sporadically and has on each occasion been swiftly eradicated.

14. In my opinion, the objections are all unfounded and the conduct of the Commission has been fully in accordance with the Treaty. It is true that the coercive nature of the proceedings under Article 169 involves a series of safeguards and guarantees in favour of the Member States. The Court has itself emphasized the importance of the administrative stage and has held that the opportunity to submit observations on a clearly defined charge constitutes for Member States “an essential guarantee ... and ... an essential procedural requirement in proceedings relating to the finding of a failure on the part of a Member State” (judgment of 17 February 1970, Case 31/69 Commission v Italy, [1970] ECR 25, para. 13). I said the same in the first Opinion which I delivered before this Court (Case 211/81 Commission v Denmark): the entire pre-litigation procedure is designed to ensure compliance with the principle audi alteram partem.

15. Notwithstanding those considerations, the fact remains that the Irish Government was put in a position to defend itself and, ever since the first reply to the letter requesting it to submit observations, it has defended itself vigorously. In any event, it is not true that the reasoned opinion must be preceded by further consultations with the Member State and it cannot be contended that the period within which Ireland was required to comply with the Treaty was too short. As to the duration of that period the Treaty is silent. Let us concede, however, that it must be reasonable. It would not have been reasonable if the Commission had applied to the Court immediately. But it did not do so. Instead it granted Ireland an extension and applied to the Court three months after the expiry of the period.

16. A similar conclusion must be reached with regard to the discrepancies which Ireland claims to have established between the reasoned opinion and the initial letter and between the application and the pre-litigation communications. Even with regard to the licensing system, the reasoned opinion did not make allegations which, at least in general terms, were not contained in the initial letter; the Commission confined itself — and in this I see nothing unlawful — to expounding them in greater detail. As regards the application, it is true that it no longer refers to live birds or hatching eggs; but to maintain that the administrative and judicial procedures must be absolutely identical is absurd. If that were so, and if the Commission were not even able to define more closely the charges made against the Member State, the result would be to frustrate the very purpose of the pre-litigation procedure namely to allow as fruitful a dialogue as possible to take place between the Member State and the institution.

17. Equally unfounded are the objections which are connected with the substance of the case. I will observe (a) that the Commission has at no stage suggested that Directive 71/118 is unlawful and (b) that its silence on the Irish provisions during more than 10 years is of no legal consequence. It is well known that in its choice of the moment at which to contest a Member State's failure to fulfil its obligations the Commission has complete discretion. In this case it took action after the notification of the British measures of September 1981 had induced it to investigate the methods by which the other Member States protect their poultry flocks.

18. 5. The legal basis of the two actions is quite straightforward. Obviously, measures which prevent seven Member States from exporting to Ireland and Northern Ireland fresh or frozen poultrymeat and which subject any importation of poultry products to the grant of a specific licence constitute quantitative restrictions. It is equally obvious that such measures would be compatible with Community law if they fell within the scope of the derogation which Article 36 makes from the prohibition laid down in Article 30.

19. However, in addition to those provisions, the Court will have to consider a secondary source of law in order to give judgment in these two cases. I refer to the directive mentioned previously, namely Directive 71/118, in particular Article 11 thereof. Article 11 (1) provides that the animal health provisions of Member States “shall continue to apply until the entry into force of any Community provisions”. Paragraphs (2) and (5) of Article 11 state what action Member States may take if there is a danger that animal diseases may be spread by the importation of fresh poultrymeat from another Member State.

The two defendant governments interpret Article 11 (1) literally and, what is more, they look upon it as a sort of cathedral in the desert. It is argued that the contested measures pre-'exist Directive 71/118: therefore, until a Community harmonization takes place, nothing can prevent recourse to those measures. Nor may one argue, as the Commission does, that they are contrary to Article 30 and that they are not justified under Article 36 because of the non-fulfilment of the objective conditions (the risk of epizootic disease) which are capable of bringing into operation the proviso (protection of health and the life of humans) contained in that provision. It is not open to the Court to determine whether that risk exists or whether the provisions designed to prevent it are appropriate. By issuing the directive, the Council has already established that the proviso is applicable in this case and in proceedings under Article 169 its decision is not subject to judicial review.

I do not find this argument convincing. Construed in the manner which I have described, Article 11 (1) would be exorbitant in scope: that is to say, it would concern both national measures which are in accordance with the provisions of Articles 30 and 36 and national measures which are at variance with those provisions; and in the second case — which cannot be ruled out in theory — it would clearly be unlawful. It is better therefore, if only because it is more consonant with the generally recognized canons of interpretation, to interpret it restrictively: in other words, it is better to hold that the reference in that provision to preexisting measures presupposes a proviso, not written, but deducible from general principles, that such measures must be compatible with the primary sources of law. And there are other considerations too. One must look at the terms and the purpose of the directive. Taken as a whole, it seeks not to increase, but, if anything, to reduce the obstacles which national provisions impose on the free movement of fresh poultrymeat. Moreover, it is only certain health problems relating to trade in fresh poultrymeat that are governed by the directive, and always, I should say, from the point of view of the need to facilitate such trade. Of the two interpretations which I have outlined, there is no doubt that considerations of this nature tend to favour the second.

All these considerations lead to the conclusion that the Court has the power and the duty to appraise the objectives of the contested measures and to consider whether those measures are suited to the attainment of those objectives. Article 11 of the directive (which is not a cathedral in the desert, but a chapel in a landscape dominated by much more imposing legislative edifices) therefore leaves the stage and makes way for Article 36 of the Treaty.

7.As the Court knows, in derogation from Articles 30 to 34, Article 36 authorizes 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 such prohibitions or restrictions do not constitute “a means of arbitrary discrimination or a disguised restriction on trade between Member States”.

Allow me first of all to summarize the most important results arrived at by the Court in the interpretation of this provision. In the first place, the Court has emphasized that the fact that Article 36 constitutes an exception from the general rule requires that it should be construed as narrowly as possible (see judgment of 12 October 1978, Case 13/78 Eggers v Freie Hansestadt Bremen [1978] ECR 1935, para. 30: the provision “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”).

Secondly, the Court has strengthened the word “justified” which qualifies “prohibitions or restrictions”, giving it the meaning of necessary or indispensable (see judgment of 15 December 1976, Case 35/76 Simmentbal v Italian Minister for Finance [1976] ECR 1871, para. 10: “... the restrictions authorized 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 this provision ...”; see also the judgment of 12 July 1979, Case 153/78 Commission v Germany [1979] ECR 2555, para. 5, where the Court spoke of “restrictive measures authorized ... only in so far as they are ‘justified’”).

The Court has added two refinements to those principles: first, it has rejected the view that Article 36 is designed to reserve the matters referred to therein to the exclusive jurisdiction of the Member States (see paragraph 14 of the Simmen thai judgment and paragraph 5 of the judgment in Commission v Germany); secondly, the Court has held that “national rules or practices do not fall within the exceptions specified in Article 36 if the health and life of humans can as effectively be protected by measures which do not restrict intra-Community trade so much” (judgment of 20 May 1976, Case 104/75 De Peijper [1976] ECR 613, para. 17, and judgment of 8 November 1979, Denkavit Futtermittel [1979] ECR 3369, para. 23).

The consequences of these dicta are obvious. A Member State which invokes Article 36 and has the burden of proving that its restrictive measures comply with the conditions laid down cannot confine itself to stating that the measures are based on one of the grounds listed in Article 36 (for example, the protection of the health and life of animals). It must prove that the measures are essential for the attainment of the aim pursued and that there is no equally effective alternative which would create less serious obstacles to trade. For its part, the Court is required to examine whether the measures are necessary and whether they comply with the principle of proportionality; it must also of course ascertain whether they entail an arbitrary discrimination or disguise a protectionist restriction on trade.

Let us therefore examine, with the aid of these principles, the measures applied in Ireland and Northern Ireland in order to combat avian diseases and in particular Newcastle disease. The thinking of the two governments may be summarized as follows. Newcastle disease does not exist in that island; but recourse to slaughter and the prohibition of vaccination do indeed render Irish poultry particularly vulnerable to it. The prohibition of imports therefore becomes an essential expedient which it will be possible to renounce only when all the other Member States have adopted equivalent health standards. Moreover, the Commission has itself recognized that small focuses of infection continue to exist on the continent and that as late as 1981 some outbreaks occurred in Italy and Greece. It should be added that immunity of vaccinated birds sometimes conceals the presence of the so-called' “field virus”.

The Commission does not contest these facts, but amplifies them and attempts to undermine their significance by supplying further data. It points out that no epidemics have been reported since the end of the 1970s. There have merely been a few cases which have swiftly been controlled and eradicated, with the result that the infection has never spread beyond the frontiers of a single Member State. Apart from the outbreaks discovered in Greece und Italy, the International Office of Epizootics recorded 13 outbreaks in Belgium, 6 in Germany and 1 in Great Britain; however, all occurred before 1981, because in that year there were none at all. It does not seem an exaggeration therefore to speak of a more than satisfactory Community record and one which is constantly improving.

The Court is therefore faced with two radically opposing views. Which must it follow? I opt for the second view, above all because of the particularly important place which the free movement of goods occupies amongst the fundamental principles of the Community system. If all the countries which have a good record on human and animal health were able systematically to prevent imports on the ground that they are liable to spread disease, Article 30 would degenerate from a rule into an exception and we could erect a tombstone in memory of the free movement of food products. Moreover, in the present case, although the potential danger cannot be described as nonexistent, it is fading rapidly. Take, for example, vaccination. Not all the specialists concur in considering it dangerous; but, apart from that, its practical results do not appear to confirm the fears of the defendant governments.

I draw the Court's attention to four factual considerations which lead me to this conclusion:

Until September 1981 a policy of slaughter and vaccination was pursued in Great Britain; moreover, large quantities of poultry were imported from one State — France — in which vaccination was habitually practised. However, epidemics did not occur; on the contrary, between 1975 and September 1981 only 14 cases were recorded.

The Court's judgment of 15 July 1982 has liberalized trade between Great Britain and the other Member-States; several tonnes of poultry have been imported from the Netherlands and, as before, from France. Yet Newcastle disease has not reappeared.

Denmark pursues a policy of slaughter, but the measures which it adopts in order to protect its poultry flock are considerably less restrictive than the Irish measures. Yet the last recorded case of Newcastle disease occurred in 1972.

I personally am convinced that these considerations are sufficient, at least as regards Newcastle disease, to exclude the contested measures from the proviso laid down in Article 36. Let us none the less concede that a degree of risk does exist. It would still remain necessary to establish whether those measures satisfy the conditions laid down by the Court of Justice; that is to say, whether the risk can be prevented only by means of those measures, in which context the word “only” implies the unavailability of measures which are equally effective but less restrictive.

Three arguments persuade me that is not so. At the root of the first argument is the Irish and British assertion that vaccinated birds can be carriers of “field” virus. I do not challenge the truth of that assertion; I merely wish to point out that it would justify the prohibition on the importation of vaccinated poultry, but not the prohibition on the importation of poultry which has not undergone vaccination (which, as we know, is almost always optional). But the prohibition also applies to unvaccinated birds. Therefore, from this point of view at least, it cannot be described as necessary.

The second argument is a contrario. I have already referred, albeit fleetingly, to Article 11 (2) of Directive 71/118. That provision authorizes the national authorities to prohibit or restrict imports from States in which an epizootic disease has broken out; however, they may only do so temporarily and in respect of fresh poultrymeat from the affected areas. In other words, the Community legislature has imposed limits of time, space and subject-matter. Is it credible that Article 36 should authorize measures which are entirely unlimited and which, moreover, are adopted in order to counter a risk that is not specific, but general and potential?

However, the decisive argument is the third one, which is provided for us by the Danish measures. Like Ireland and Northern Ireland, Denmark pursues a policy of eradication. Notwithstanding that, its authorities do not prohibit imports. They merely require :

that the imported poultry should come from areas which have remained free of disease in the six months preceding exportation;

that the vaccines used should be of certain types;

that samples of vaccinated and unvaccinated poultry should, at the time of slaughter, have undergone a laboratory examination with negative results.

In short, it is a system of certification which, although the contents are amplified, is based on the system (veterinary certificate of health) laid down in Article 8 of Directive 71/118. Above all, it is a system which works: that is proved by the figures which I quoted in section 8 and by the fact that the United Kingdom adopted a similar system for England, Wales and Scotland following the Court's judgment of 15 July 1982.

10.The measures applied in Ireland and Northern Ireland are therefore not necessary and are also too restrictive in relation to the desired result. However, the case is not concerned solely with Newcastle disease. We must also ask ourselves whether that conclusion is equally valid for the other diseases against which those measures seek to protect the island's poultry flock.

That question requires a preliminary decision on an objection pleaded by the Commission and by France against the United Kingdom. It is argued that the United Kingdom invoked the proviso contained in Article 36 in relation to its own measures against the “various” diseases only in the rejoinder: too late, therefore, for the purposes of Article 42 (2) of the Rules of Procedure. I do not consider that objection well founded. In fact the United Kingdom's submission is not one about which one may argue whether it is new or old; it is an argument in support of the real submission which consists in invoking Article 36 on grounds of protection of health and which was undoubtedly put forward even in the pre-litigation proceedings. From its earliest days this Court has recognized that auxiliary arguments may be pleaded even in the reply and rejoinder (judgment of 12 June 1958, Case 2/57 Compagnie des Hauts Fourneaux de Chasse v High Authority [1957 and 1958] ECR 199).

Of the diseases against which Ireland and the United Kingdom purport to protect themselves, two may be ignored: rabies, which is transmitted by live animals, whilst the measures in question apply to dead poultry, and fowl pox, the symptoms of which are so clear as to be immediately recognizable. That leaves, in ascending order of gravity, Arizona disease, turkey coryza and infectious laryngotracheitis. The question which arises in connection with those diseases is quite simple. Article 8 of Directive 71/118 provides for ante mortem and post mortem inspections to ascertain whether the meat is suitable for human consumption; are those tests sufficient to guarantee that the aforesaid diseases are absent and therefore not transmissible?

The defendant governments answer that question in the negative; putting in evidence the results of various scientific studies, the Commission replies in the affirmative. Once again I find myself in agreement with the Commission, partly because its argument is solidly supported by objective evidence. In the first place, the Community boasts an excellent record on the “various” diseases. The cases reported within the Community have been few and far between. In particular, Arizona disease has not appeared for some time in the territory of the two main exporters — the Netherlands and France; coryza was not heard of in 1982 and laryngotracheitis is extremely rare (22 cases in the entire Community).

It is also significant that none of the other Member States prohibits or restricts imports in order to protect itself against those diseases. Evidently their authorities consider the risks minimal and have faith in the tests which I have referred to. That suffices, in my opinion, to justify the conclusion that, from this point of view too, the measures in force in Ireland and Northern Ireland are not proportionate to the objective pursued.

11.A final series of issues are raised by the specific import licences. The Commission asserts that, as guarantees, those licences add nothing to the certificates issued by the competent authorities in the exporting State; they are therefore excessively restrictive in relation to the aims which they pursue. The defendant governments, on the contrary, consider them to be founded on Article 11 (1) of Directive 71/118 or, in the alternative, justifiable under Article 36. There is also a specific plea put forward by the United Kingdom: it maintains that in appraising specific licences regard must be had not to the specific sector (in this case, poultry) in which they are applied, but to the nature of the risks which they seek to prevent. The Community has permitted recourse to such licences in the battle against foot-and-mouth disease and swine fever; since the resulting danger is similar there is no reason, according to the United Kingdom, to abandon that line in relation to Newcastle disease.

This argument is untenable. I have already demonstrated that Article 11 (1) does not authorize the maintenance in force of provisions which arc at variance with the system established by Articles 30 and 36. With regard to the United Kingdom's argument, it must be pointed out that every aspect of the battle against foot-and-mouth disease and swine fever has been dealt with in two harmonization directives, whereas for Newcastle disease there exist only the less complete provisions laid down by Directive 71/118. To suggest that it may be inferred from the harmonization directives that specific licences are in principle permissible is already extremely doubtful. But to suggest that such a principle may be applied by analogy to the prevention of a risk (namely Newcastle disease) which can be assessed only or essentially in the light of Article 36 is more than doubtful; it is absurd.

Let us then operate within the logic of Article 36. Obviously, to require specific licences for every consignment of goods implies a certain degree of uncertainty about the success of the operation and would, in the best of cases, cause delays. In other words, it would lead to impediments of one kind or another to intra-Community trade. Can such impediments be justified? In theory, yes; but not, as the Court has itself held, when, without reducing the effectiveness of the “protection of animal health” and without increasing “the administrative or financial burden imposed by the pursuit of that objective”, the authorities are in a position to obtain “the information which is of use to them, for example, by means of declarations signed by the importers, accompanied if necessary by the appropriate certificates” (judgment of 8 February 1983, Case 124/81 Commission v United Kingdom [1983] ECR para. 18; see also the judgments of 15 December 1971, Cases 51 to 54/71 International Fruit Company v Produktschap voor Groenten en Fruit [1971] ECR 1107, paras 8 and 9, and judgment of 16 March 1977, Case 68/76 Commission v France [1977] ECR 515, paras 14 to 16).

In my opinion, that is the position in this case. A measure of a general nature requiring documents — for example, the veterinary certificates referred to above — attesting to the health status of the products in question could provide a perfectly adequate substitute for the specific licences. Furthermore, an additional safeguard would be provided by tests on samples which would permit both States to verify whether the products conform to their legislation and to reject consignments which do not.

12.Another word must be said about the specific licences required by the United Kingdom for the importation into Great Britain of eggs and egg products which have undergone heat treatment. While these proceedings were pending the United Kingdom Government replaced those licences with a system of general licences in order to comply with the Court's judgment of 15 July 1982. However, the system was to take effect from 1 July 1983, that is to say after the expiry of the period laid down in the reasoned opinion. For that reason the Commission contests those licences and I do not believe that the Court may abstain from ruling on that issue. Naturally, I suggest that it should base its ruling on the conclusions which I was able to reach after an examination of the similar measures in force in Ireland and Northern Ireland.

Having regard to all the matters which I have considered so far, I propose that in the actions brought by the Commission against the United Kingdom by application of 4 February 1982 (Case 40/82) and against Ireland by application of 18 February 1982 (Case 74/82) the Court should: declare that, by applying restrictions on the importation of poultry-meat, eggs and egg products and by subjecting the authorization to import such products to the issue of a licence, neither measure being justified by Article 36 of the EEC Treaty, the United Kingdom and Ireland have failed to fulfil the obligation imposed by Article 30 of that Treaty.

As regards costs, I propose that the United Kingdom and Ireland should be ordered to pay the costs incurred by the Commission and the French Republic.

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(1) Translated from the Italian.