Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (40/82)

I —Facts and procedure

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 poultrymeat, eggs and egg products.

II —Conclusions of the parties

The Commission claims that the Court should:(1) 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;(2) Order the United Kingdom to pay the costs.The United Kingdom contends that the Court should dismiss the application as unfounded.

Ill —Submissions and arguments of the parties

In their written observations, the parties to the main action in essence develop the arguments already put forward during the administrative procedure.So far as the facts are concerned, the Commission of the European Communities, the applicant, adds that it has received a number of complaints concerning the restrictions on the impon of poultry products from traders who claim that they have suffered severe financial damage as a result of those restrictions.In relation to the applicability of Article 30 of the Treaty, the Commission states first that a provision of secondary law such as Article 11 (1) of Council Directive No 71/118, which provides that national animal health provisions concerning trade in poukrymeat are to continue to apply until the entry into force of any Community provisions, cannot override the prohibition contained in Article 30. It states that paragraphs (2) to (5) of Article 11 concerning temporary restrictions on trade which the Member States may adopt apply only in the event of an outbreak of an epizootic disease such as Newcasde disease.It refers to the Court's judgment of 14 December 1979 in Case 34/79, (Regina v Henn and Darby [1979] ECR 3795) and claims that an impon ban imposed by the withholding of import licences clearly constitutes a quantitative restriction on imports within the meaning of Article 30 of the EEC Treaty. Moreover, the concept of measures of equivalent effect under Article 30 of the EEC Treaty covers “a national provision which requires, even as a pure formality, import licences or any other similar procedure” (judgment of 15 December 1976 in Case 41/76, Donkerwolcke, op.cit.), since such a requirement is always liable to give rise to unnecessary delay and cause importers to incur unnecessary expense. Consequently, by the very fact that an impon licence is required to impon the poultry products referred to, the United Kingdom measures at issue constitute measures of equivalent effect within the meaning of Article 30 of the EEC Treaty.Next the Commission refers to the absence of justification of the impon restriction on the grounds of animal health under Article 36 of the Treaty. In that regard, it emphasizes the importance to be attached to animal health and recognizes the serious financial consequences of an outbreak of Newcastle disease. However, it stresses the fact that measures intended to reduce the incidence of animal disease must remain within the bounds laid down by the Treaty.In the light of the present situation in the Community, in which there is a widespread practice of keeping vaccinated and non-vaccinated flocks in a single Member State, the Commission regards the argument that vaccination may mask field virus as somewhat theoretical. Indeed, in those Member States where a significant proportion of the national flock is not vaccinated and is thus fully susceptible to Newcastle disease, the presence of the virus would undoubtedly cause outbreaks within a short space of time. Thus partial vaccination cannot mask for any appreciable length of time the presence of field virus in a country. The correctness of that view is demonstrated by the examples of France, which, before recently adopting its non-vaccination policy, had a flock consisting of 15% vaccinated and 85% unvaccinated birds, and of the United Kingdom itself, which until September 1981 had a national flock consisting of 40% vaccinated and 60% unvaccinated birds. None the less, neither country has had outbreaks of Newcastle disease for several years.This is indeed confirmed by the information provided by the International Office of Epizootics. In fact, there has been no outbreak in France and only one in Great Britain since 1976.The Commission comments that the United Kingdom Government has not adduced any evidence in support of the doubt which it has cast on the statistics provided. In that regard, it states that the International Office of Epizootics is an international organization which has approximately 100 member countries and whose function is to give information on outbreaks of animal diseases and issue recommendations as to their control; it is the only official international body to publish statistics on the number of outbreaks of these diseases in the member countries, which themselves provide the office with data.Moreover, in spite of the fact that until September 1981 Great Britain imported substantial quantities of poultry products from Member Sutes which pursued a policy of vaccination, the United Kingdom's statistics show that there has been only one outbreak in Great Britain since 1976 and it has never been reponed to the Commission that that outbreak was related to imports of poultrymeat or poultry products from other Member States.Consequently, the risk of the introduction of Newcastle disease virus into the United Kingdom is at the present time very low in respect of certain Member States and nonexistent in respect of the others. Thus the Commission considers that the impon ban constitutes a measure which is disproportionate to the aims pursued, in so far as it is more restrictive of imports than is necessary for the protection of animal health.The Commission also points out that a Member Sute which relies on Article 36 bears the burden of showing that the measure in dispute is justified under that provision (judgment of 8 November 1979 in Case 251/78 Denkavit Futtermittel v Minister für Ernährung, Landwirtschaft und Forsten [1979] ECR 3369).Furthermore, the Commission considers that the import ban is incompatible with the second sentence of Article 36 of the Treaty.In that regard, it contends first that the prohibition with immediate effect from 1 September 1981 of imports of poultry products from Member States pursuing a policy of vaccination constitutes arbitrary discrimination within the second sentence of Article 36, since the vaccinated part of the British poultry flock, which will continue to be present for approximately 12 months, may be marketed within the United Kingdom without restriction. The Commission does not accept that that discrimination is an inevitable consequence of the change of policy. Indeed, for the same reasons as were submitted above in relation to the absence of justification of the restrictive measures as such, that change is not such as to justify discriminatory treatment.That view is all the more valid in regard to imports from France, since after the recent adoption of a policy of non-vaccination in that country, France and Great Britain are in a substantially similar situation with respect to Newcastle disease. It is true that, in its reply to the reasoned opinion, the United Kingdom sought to justify its continued ban on French poultry products on the ground that the French authorities had taken no comprehensive measures to deal with imports of fresh or frozen poultrymeat and eggs for human consumption. The Commission considers, however, that the French authorities cannot be required to infringe Article 30 by adopting measures identical or similar to those adopted by the United Kingdom.The Commission also admits that there is no question of arbitrary discrimination in relation to Northern Ireland, because there the entire flock is unvaccinated and has been for some time.In relation to exotic birds, which constitute a great potential danger to the spread of Newcastle disease, the Commission considers that the subsequent suspension of imports of exotic birds as from 1 October 1981 and the introduction of a new stringent import scheme as from 18 January 1982 constitute little more than an afterthought which confirms the arbitrary nature of the measures concerning poultrymeat and egg products.With regard to the second sentence of Article 36, the Commission states secondly that the import ban constitutes a “disguised restriction on trade”. That limb or the second sentence of Article 36 is designed “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 of 14 December 1979 in Case 34/79 Henn and Darby, op.cit.).Imports of poultry, especially turkeys, into the United Kingdom have increased dramatically in recent years. As appears from reports in the British press, by 1981 British poultry producers felt particularly threatened and therefore urged the United Kingdom Government to take action. In that regard, the Commission draws attention to the fact that the new measures, announced on 27 August, were brought into force at very short notice, on 1 September 1981, that is to say immediately before the period when contracts are normally concluded for supplying the lucrative Christmas market in turkeys. In those circumstances, it would seem to the Commission that the argument concerning the protection of animal health is being used as a means of protectionism and that the import ban therefore constitutes a disguised restriction on trade.Finally, so far as the import licensing system is concerned, the Commission does not consider that “general open licences” in the sense in which that term is defined in its reply in Case 124/81, Commission v United Kingdom, at present pending before the Court, constitute measures of equivalent effect within the meaning of Article 30 of the Treaty. It considers, however, that a system of specific licences such as that established for imports of egg products which have been heat-treated, may hinder imports by causing unnecessary delays and may therefore be unjustified, particularly in so far as it provides no guarantee in addition to the health certificates issued by the authorities of the exporting Member State.The United Kingdom, the defendant, states first that its policy on combating Newcastle disease is based on considerations which are universally accepted in this field, that is, the fan that Newcastle disease may be communicated to the home flock through the importation of fresh (including frozen) poultrymeat and that the danger of contamination is increased when vaccination is practised in the exporting country. For the United Kingdom, these considerations are of particular importance because of the scale on which imports enter the country and because, of the size of its poultry flock (approximately 130 million birds, concentrated in large units). The appearance of the disease is therefore likely to lead to very serious and expensive consequences.Next, the United Kingdom recalls the historical context of the adoption of the new measures of slaughter and non-vaccination.In Great Britain, fowl pest, including fowl plague and all forms of Newcasde disease, is the only poultry disease which is officially notifiable. For many years, the competent ministry operated a policy of slaughter and compensation, which was in line with the measures taken against other dangerous virus diseases with serious economic consequences, such as foot-and-mouth and swine fever. However, following a large increase in the number and extent of outbreaks of the disease in the later 1950s and early 1960s (3000 in 1962; expenditure of UKL 8.8 million in compensation), the slaughter policy was abandoned and replaced by a policy which was intended to control the disease and was based on voluntary vaccination. For that purpose, an inactivated vaccine was initially used, in accordance with the Report of the Committee on Fowl Pest Policy, 1962, (op.cit.). Later, following the Report of the Review Panel on the Newcasde Disease Epidemic, 1970-1971, (op.cit.), it was decided to authorize the use of live vaccines.Each time, the change of policy had a good initial response in the level of voluntary vaccination, but as the incidence of disease became less there was a tendency for vaccination to decline in spite of repeated publicity by the Government. In respect of that tendency, the réintroduction of the slaughter policy combined with a system of “ring vaccination” to apply in individual cases of outbreaks of the disease was suggested in the press of the veterinary profession as early as 1974, with a view to eradicating the disease from the United Kingdom. Until 1980 the adoption of that policy, which represented the highest standard of animal health, was impossible owing to restrictions on public expenditure which precluded the grant of compensation for compulsory slaughter.However, on 20 July 1981, the British Poultry Federation handed to the Ministry of Agriculture a report of veterinary experts in the poultry industry which made a well-argued technical case for a change of policy and indicated that the industry itself would support the cost of compensation for slaughter. According to that report, the incidence of Newcastle disease had been low enough for a sufficient length of time to make it appropriate to move to the higher policy of eradication, provided that the admission of imports was limited to imports from countries which adopted equally high standards of protection.In those circumstances, the question arose whether the change to the highest standard of protection from disease for the British flock, entirely justified on the grounds of animal health, ought to be prevented by the fact that such a change of policy would involve restrictions, which were, of course very welcome to United Kingdom producers, on trade with such other countries, including certain Member Suies, as did not apply the same standards.In the submission of the United Kingdom, the grounds of animal health must be considered on their own merits. If the measures adopted are justified on grounds of animal health within the meaning of Article 36, they cannot constitute prohibited restrictions. In particular, the possible existence of other reasons for adopting such measures is irrelevant.In that regard, the United Kingdom contends that by alleging that those measures amounted to a total or absolute ban, the Commission has misstated their nature. Indeed, the United Kingdom has always been willing to issue a general open licence to any country which is totally free from Newcastle disease, prohibits the use of vaccine and applies compulsory slaughter requirements similar to those adopted by the United Kingdom in the event of an outbreak of the disease, and which also prohibits imports from other countries which have less stringent provisions for the protection of their flocks. The effect of that policy is to facilitate trade for all States which apply the same sundards as the United Kingdom; whether or not they will restrict trade will depend on matters within the control of the Member Sute concerned, not the United Kingdom.With regard to the justification of the contested measures under Article 36 of the Treaty, the United Kingdom claims that the sundards adopted and applied by it since September 1981 are the highest standards known for the protection of poultry from Newcastle disease and it should be the objective of all the Member States to reach that level. As is confirmed by the recent Community measures on swine fever (Official Journal 1980, L 325, pp. 1 and 11), it is common form to move, when circumstances permit, from control by vaccination to eradication by slaughter combined with prohibition of vaccination. The prohibition of vaccination is an inevitable part of any successful slaughter policy, because vaccinated birds can carry the disease without showing clinical signs of it. However, that does not preclude the use of “ring vaccination” when an outbreak of the disease threatens to get out of hand and cannot be dealt with effectively by means of slaughter alone.Moreover, the change to a policy of eradication by slaughter combined with prohibition of vaccination can be considered only when there is good reason to believe that a country's flock is free from field virus. A fall in the level of vaccination may be a further indication that such a change should be made, for the vaccinated remnant continues to provide a source within which the presence of field virus may be masked.Finally, if the effect of such a change is to put the whole of the flock at risk, that has the advantage that each bird is as it were a sentinel. However, it leads to the danger that every flock is vulnerable either to such field virus as there may still be in the country or to infection through imports from other countries, and this creates a potential epizootic risk which is greatest where such other countries practise vaccination and lowest where they adopt the measures adopted by the United Kingdom.According to the United Kingdom, the justification for the new policy as such is undeniable. It further considers that it must be entitled to take reasonable measures to protect its flock against the danger of infection through imports as a result of the adoption of the highest standards. In that regard, it points out that Ireland and Denmark which apply the same rules have not had one outbreak since 1972. On the other hand, according to information provided by the International Office of Epizootics, imports from countries such as Belgium, Federal Republic of Germany, Greece and Italy constitute clear risks. In relation to France, where the level of vaccination is about the same as in Great Britain, the danger results especially from the fact that, although France has adopted the same system, it continues to expose the unvaccinated part of its flock to risks from imports from other countries.With regard to the theory of disproportionality, put forward by the Commission, the United Kingdom Government considers that the Commission's view of the dangers of infection is overoptimistic. It has no misgivings about the authenticity of the information provided by the International Epizootic Office but considers that in the absence of any common veterinary criteria for the investigation of Newcastle disease, it is impossible to determine on what basis an “outbreak” of the disease is considered to have occurred in a panicu lar State, for the purpose of reporting it to that office. Accordingly, it contends that the precise position with regard to Newcastle disease within the Community is largely unknown. That state of affairs, which, moreover, indicates the need for Community harmonization on the subject, is confirmed by the fact that the Commission is unofficially circulating a proposal for a Council directive concerning inter alia problems of definition related to notification of Newcastle disease.The United Kingdom contends that when there was a policy of vaccination, the question whether or not imported poultry products came from a country where vaccination was practised was relatively unimportant. Consequently, the Commission's argument that there was only one outbreak of Newcastle disease after 1978 in spite of imports from Member States with a policy of vaccination, is not relevant.On the other hand, against the background of the combined effect of the change to the new method of non-vaccination in 1981 and the remarkable rise in imports of poultry products during 1980, the import restrictions were essential to meet a completely new situation.Moreover, far from being theoretical, the argument that vaccination can mask a virus is based on scientific research which has demonstrated that a virus may be present for up to 12 months in a vaccinated adult bird without causing visible disease. Even on the assumption made by the Commission that in a country where vaccinated and unvaccinated flocks exist alongside one another the presence of virus would cause outbreaks within a short space of time, that short space of time might be the very period in which the imports which caused the virus to be introduced to the United Kingdom are made. Moreover, the fact that the risk is, in the Commission's view, very low, is no reason why such risk should be accepted.Finally, in considering the proportionality of the contested measures, regard must be had not only to the likelihood of infection but also to the consequences if such infection does take place. As a result of the very considerable increase in the consumption of poultrymeat and other poultry products in recent years, the economic effects of such an outbreak today would be much more serious than those of the serious outbreak in England in 1970 which led to expenditure of UKL 20 million. Indeed, the United Kingdom authorities would have been lacking in their duty to protect animal health in their territory if they had not taken steps to ensure that the change of policy was accompanied by the appropriate import restrictions.So far as the Commission's argument based on the second sentence of Article 36 is concerned, the United Kingdom first contends that the allegation that the contested measures constitute arbitrary discrimination is unfounded.In that regard, it explains the difference between, on the one hand, the normal disposal over a period estimated at 12 months of vaccinated birds which are already in the country on the entry into force of the policy of non-vaccination and, on the other, the import of poultry products from countries where vaccination is still practised. Indeed, any delay in the introduction of import restrictions would have resulted in a massive influx of poultry products into cold-storage in Great Britain and would have thereby undermined the strategy chosen. In so far as the entry into force of the contested restrictions constitutes discrimination, it is therefore justified on the same grounds as the measures themselves.In relation to the assertion made in the application that Great Britain and France are in an identical situation, the United Kingdom claims that that situation prevailed only from 16 September to 24 November 1981, when France reintroduced vaccination against Newcastle disease.Concerning exotic birds, it point out that the very stringent controls which already existed allowed a short period for the consultation of those interested in the trade, before the establishment of even more stringent controls.Secondly, the United Kingdom denies that the import ban constitutes a disguised restriction on trade between Member States within the meaning of the second sentence of Article 36. It admits that it was gravely concerned by the continuing increase in the importation of turkeys from France, and in particular by the degree of subsidization available to French producers and whether it was lawful. However, the veterinary staff in the Ministry concerned concluded that the remarkable rise in imports would inevitably increase proportionately the risk of importing the disease. It is true that the level of vaccination in France was about the same as that in the United Kingdom at that time; but the experts understood that France allowed imports of poultrymeat from Eastern Europe and Spain. In those circumstances, the apparent risk of importing Newcastle disease might materialize, notwithstanding figures which suggested a low level of the disease in certain countries, such as France.Referring to the judgment of the Court of 7 April 1981 in Case 132/80, (United Foods v Belgium [1981] ECR 995), the United Kingdom contends that in the absence of Community harmonization, national measures on health control cannot in principle be regarded as measures prohibited by the Treaty. They may be regarded as disguised restrictions on trade within the meaning of Article 36 of the Treaty only in so far as certain aspects of such control exceed what is objectively justified in the interests of animal health.In that regard, the defendant confirms that the provisions of Article 11 (2) to (5) of Directive No 71/118 are not relevant in this case and that moreover, Article 11 (1) of that directive cannot derogate from Article 30 of the Treaty.Finally, in relation to the system of import licences, the United Kingdom states that in the case of open and general licences it is not necessary for the importer himself to request a licence, even as a formality.In reply to certain written questions put by the Court, the Commission explains that Denmark applies, with regard to Newcasde disease, a policy of non-vaccination and compulsory slaughter. The general conditions for import of live poultry and poultrymeat are contained in Regulation No 87 of March 10, 1978 issued by the Ministry of Agriculture; they can be summarized as follows:

The Commission considers that this import system, while it clearly involves some restrictions, is acceptable at the present time in the absence of a complete Community regime. The Danish system permits imports, whilst ensuring the highest guarantee against the risk, albeit slight, of contagion resulting from such imports.Particularly noteworthy is the close cooperation carried out with the veterinary authorities of the exporting Member State. In effect, poultrymeat, which is accompanied by a health certificate with the appropriate attestation, has access to the Danish market.Analogous provisions apply to imports of eggs from other Member States into Denmark, save that the sample laboratory examinations are not required.With regard to the measures applied in Northern Ireland, the Commission states that the Northern Irish legislation at issue is the Diseases of Animals (Importation of Poultry) Order (Northern Ireland) 1965 (SI 1965 NI No 175) as amended bv an Amendment Order of 1968 (SI NÍ No 106) and the Diseases of Animals (Northern Ireland) Order 1981 (SI 1981/1115 [NI 22]). The 1965 Order as amended stipulates that imports of carcases of poultry and eggs (as defined in the 1968 Order) are subject to an import licensing System.Article 4 (3) exempts from the licensing system eggs originating in and coming directly from Ireland, as well as poultry carcases originating in and coming from Ireland provided that such carcases are in transit to another destination. Moreover the Commission understands that it is the practice to grant impon licences for all the other products concerned from Ireland and that such licences are also granted with respect to imports of poultry carcases and eggs from Denmark. No impon licences are granted for imports from elsewhere in the Community.Linked to this system is a slaughter and non-vaccination policy which has been in existence since before accession.Consequently, the measures applied in Nonhern Ireland are the same as those now applied in Great Britain with the difference that the Nonhern Irish measures have been in existence since before accession. The Commission therefore claims that, as in the case of Great Britain, both the impon licensing scheme and the impon ban are contrary to Article 30 as regards Nonhern Ireland as well.Since the Nonhern Irish measures, like the Irish measures, have been in existence since before accession, they do not present the same degree of urgency as those in force in Great Britain. As the action against Ireland (Case 74/82) is still at the stage of the written procedure, the Commission would accept that further discussion of the Nonhern Ireland measures be similarly deferred.

IV —Oral procedure

The panies presented oral argument at the hearing on 30 June 1982The French Republic, intervening, considers that Article 11 (2) to (5) of Council Directive No 71/118, concerning temporary restrictions of trade which the Member States may adopt, only apply in the event of an outbreak of an epizootic disease. These provisions limit the power of Member States to adopt trade restrictions to that particular situation, even if Member States remain at liberty to change their internal health policy in accordance with paragraph 1. In the present case, it has been argued that there is a danger that animal diseases may be spread by the introduction, in the territory of the United Kingdom, of fresh poultry meat. Consequently, the French Government submits :hat Article 11, (2) to (5) apply. As far as vaccination is concerned, it is correct to say that 15% of the flock in France are vaccinated, if that number relates to the total flock over a period of one year. In France, however, only breeding stock and laying hens are vaccinated, not birds reared for slaughtering purposes, to be sold when they are about eight weeks old. That implies that there are about five bird generations a year. Consequently, the situation at any given moment is that about 40-45% of the French flock are vaccinated. The French Government notes that France does not export any breeding stock or laying hens to the United Kingdom. It exports carcases of birds which normally have not been vaccinated.In the French Government's submission the United Kingdom should have taken other measures than a total import ban, if it wanted to protect its own flock against any risk of infection. A system such as the one adopted in Denmark could have given sufficient protection.A similar system was applied bv Switzerland in 1972-73, when Newcastle disease still existed in France, but had disappeared in Switzerland. The Swiss authorities have applied a satisfactory system of health precautions, which they abandoned in 1978, when Newcastle disease had disappeared in France. Thus, the Swiss authorities have shown their willingness to accept further French imports, albeit with additional health controls, at a moment when a real risk of contamination with Newcastle disease existed.In the view of the French Government, the 1981 measures have only been adopted by the United Kingdom in order to protect its own producers. Repeated attempts made by the French Government to negotiate with the British authorities, after the adoption of the measures, failed. It was said either that the experts were absent, or that the matter should be discussed in Brussels. However, discussions in Brussels, in the Veterinary Committee, led to nothing at all. In the meantime, France had adopted similar measures: by Order of 16 September 1981 it had prohibited vaccination against Newcastle disease and introduced a slaughter policy. These measures did not lead to any result, as the import ban remained in force against French imports, because, it was said, France did not exclude poultry imports from Spain and some Eastern European countries where vaccine was still in use. Consequently, the new French measures were withdrawn on 24 November 1981. In fact, France met the conditions for imports of poultry that the United Kingdom Government had announced (no Newcastle disease outbreaks: non-vaccination; compulsory slaughtering) as from 16 September 1981; but then the British authorities added a fourth condition, which they had not previously announced, namely that no imports from nonmember countries into France should be allowed.Ireland, intervening, submits that the position of Northern Ireland, like that of Ireland, is a special one which derives from the special system which has long existed there. Northern Ireland, like Ireland, has adopted a policy of non-vaccination of its avian stock for very many years. In the case of Ireland, this commenced in 1938. This system was well established before British and Irish accession to the Community. Therefore, Ireland submits that the decision of the Court, if not the hearing of the Commission's case in respect of the Northern Ireland measures, should be postponed until the determination of the case against Ireland (Case 74/82). As the Commission's application was made urgent by the restriction of French turkey imports into Great Britain in September 1981, there would be no particular urgency in that part of the present proceedings which concerns Northern Ireland.Ireland adds that, in its view, Article 11 (1) of Directive 71/118 entitles Member States to maintain in force their animal health provisions concerning live poultry and poultrymeat which were in existence when the directive came into force. For Northern Ireland, this was 1 January 1973. The basis of the justification for the measures concerning Northern Ireland is, therefore, similar to that for the measures concerning Ireland, but completely different from the basis invoked by the British Government for the measures applied to the British mainland.The Advocate General delivered his opinion at the hearing on 7 July 1982.

I —Subject-matter of the action

II —Summary of the legal arguments

Ill —Factual background

IV —The 1981 measures

V —Other points at issue