OPINION OF MR ADVOCATE GENERAL MANCINI
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.
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 importlicensing system ([1982] ECR 2793).
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.
2.
I will summarize the facts of Case 74/82 only, because the facts of the other case (40/82) are already known to the Court. Having received notification of the British measures which I mentioned earlier, the Commission invited Ireland on 2 September 1981 to supply information about its rules on poultry products. What the Commission wished to know was whether Ireland also prohibited imports of fresh poultry-meat, eggs and live poultry from countries in which vaccination is used in order to combat Newcastle disease. The reply (dated 7 September 1981) was in the affirmative. Ireland admitted having adopted such measures; however, it claimed that those measures were based on Article 11 (1) of Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat (Official Journal, English Special Edition 1971 (I), p. 106).
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.
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.
3.
A few words may be said about Newcastle disease and the methods by which it is combated. It is a viral infection which affects all types of birds, in particular hens and turkeys, causing respiratory and other disorders, retarded growth, cessation of laying and, in many cases, death. In order to prevent it many countries have recourse to vaccination, using substances produced with live virus or inactivated virus. But normally that treatment is not compulsory and therefore protects only a part of the flock in a particular country. Moreover, vaccinated birds, their meat and their eggs may be carriers of the contagious virus (or, as it is known, “field virus”). In view of those risks, some countries prefer to prohibit vaccination (so that an outbreak of the disease may be recognized more easily), to order the slaughter of poultry in the zones where outbreaks occur and to prohibit or restrict the importation of poultry, poultrymeat and poultry products from countries where vaccination is practised.
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.
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 acordance 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.
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.
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.
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.
4.
The first aspect which we must examine concerns the various objections of inadmissibility pleaded by the Irish Government in Case 74/82. Ireland objects in the first place to several procedural defects which allegedly infringed its right to a fair hearing. The matters objected to are as follows : the very short periods (15 days and 5 days respectively) within which it was required to reply to the original letter and to comply with the reasoned opinion; the issue of the reasoned opinion without its having been consulted again; the different contents of the initial letter and of the reasoned opinion (import licences were mentioned only in the latter); and the discrepancies which are to be found between the application and the accusations made at the pre-litigation stage (in the former there is no longer any mention of live birds and hatching eggs). To these objections the defendant adds a further two, which are in some way connected with the substance of the case: it claims that the Commission considered Article 11 (1) of Directive 71/118 unlawful, whereas it was not open to it to take such a view in proceedings to which the Council was not a party; moreover, the fact that the Commission did not contest the Irish provisions for more than a decade raises a presumption of their conformity with Community law.
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 Membes 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.
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 Jetter 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.
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 veiy 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.
Equally unfounded arc 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.
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.
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.
6.
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
