Opinion of the Advocate-General
1 In the present proceedings for a preliminary ruling, the College van Beroep voor het Bedrijfsleven (administrative court of last instance in matters of trade and industry) has asked the Court for clarifications regarding the interpretation and validity of Council Directive 92/46/EEC of 16 June 1992 laying down health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products (hereinafter `Directive 92/46/EEC'), (1) with particular regard to Article 23 of that directive, as well as of Commission Decision 94/70/EC of 31 January 1994 drawing up a provisional list of third countries from which Member States authorise imports of raw milk, heat-treated milk and milk-based products (herineafter `Decision 94/70/EC'). (2) The Court is more specifically called upon to determine whether, for the purposes of those instruments, the Netherlands Antilles is to be regarded as a third country.
The relevant legislation
2 Directive 92/46/EEC `lays down health rules for the production and placing on the market of raw milk, heat-treated milk and of milk used in the production of milk-based products for human consumption (...)'. (3) For the purposes of this Opinion, Chapter III (Articles 22 to 26) entitled `Imports from third countries' is more particularly relevant. Article 22 provides that `the conditions applicable to imports from third countries of raw milk, heat-treated milk and milk-based products covered by this Directive must be at least equivalent to those laid down in Chapter II for Community production.'
Article 23 reads as follows:
`1. For the purposes of uniform application of Article 22, the provisions of the following paragraphs shall apply.
2. In order to be imported into the Community, milk or milk-based products must:
(a) come from a third country on the list to be drawn up in accordance with paragraph 3(a);
(b) be accompanied by a health certificate corresponding to a specimen to be drawn up in accordance with the procedure laid down in Article 31, signed by the competent authority of the exporting country and certifying that the milk or milk-based products meet the requirements of Chapter II or any additional conditions or offer the equivalent guarantees referred to in paragraph 3 and come from establishments offering the guarantees provided for in Annex B.
3. The following shall be established in accordance with the procedure laid down in Article 31:
(a) a provisional list of third countries or parts of third countries able to provide Member States and the Commission with guarantees equivalent to those provided for in Chapter II and a list of the establishments for which they are able to give these guarantees.
This provisional list shall be compiled from the lists of establishments approved and inspected by the competent authorities, once the Commission has checked that these establishments comply with the principles and general rules laid down in this Directive;
(b) updates of that list in the light of the checks provided for in paragraph 4;
(c) the specific requirements and equivalent guarantees established for third countries, which may not be more favourable than those provided for in Chapter II;
(d) the types of heat treatment to be prescribed for certain third countries presenting an animal health risk.
4. Experts from the Commission and the Member States shall carry out on-the-spot inspections to verify whether the guarantees given by the third country regarding the conditions of production and placing on the market can be considered equivalent to those applied in the Community.
The experts from the Member States responsible for these inspections shall be appointed by the Commission, acting on a proposal from the Member States.
These inspections shall be made on behalf of the Community, which shall bear the cost of any expenditure in this connection. The frequency of and procedure for these inspections, including those to be carried out in the event of a decision in accordance with paragraph 6, shall be determined in accordance with the procedure laid down in Article 31.
5. Pending the organisation of the inspections referred to in paragraph 4, national rules applicable to inspection in third countries shall continue to apply, subject to notification, through the Standing Veterinary Committee, of any failure to comply with hygiene rules found during these inspections.
6. The Council, acting by a qualified majority on a proposal from the Commission, may replace individual recognition of treatment or processing establishments by recognition, on a reciprocal basis, of establishments in a third country which are subject to effective, regular inspection by the competent authority such that the said authority is able to guarantee compliance with the requirements of paragraph 2(b)'.
Article 25 provides:
`1. Member States shall ensure that the products covered by this Directive are imported into the Community only if:
- they are accompanied by a certificate to be issued by the competent authority of the third country at the time of loading.
The specimen certificate shall be drawn up in accordance with the procedure laid down in Article 31,
- they have satisfied the checks required by Directive 90/675/EEC and 91/496/EEC (footnote).
2. Pending the establishment of detailed rules for the application of this Article, the national rules applicable to imports from third countries for which such requirements have not been adopted at Community level shall continue to apply, provided they are not more favourable than those laid down in Chapter II'.
Finally, Article 26 provides:
`[T]he lists provided for in Article 23 may include only third countries or parts of third countries:
(a) from which imports are not prohibited as a result of the existence of diseases as referred to in Annex A or of any other disease exotic to the Community or pursuant to Articles 6, 7 and 14 of Directive 72/462/EEC (footnote);
(b) which, in view of their legislation and the organisation of their competent authority and of their inspection services, the powers of such services and the supervision to which they are subject, have been recognised, in accordance with Article 3 (2) of Directive 72/462/EEC, as capable of guaranteeing the implementation of their legislation in force;
(c) the veterinary services of which are able to guarantee that health requirements at least equivalent to those laid down in Chapter II are being complied with'.
3 Decision 94/70/EC establishes the provisional list of third countries from which Member States authorise imports of raw milk, heat treated milk and milk-based products. That list, which is provided for under Article 23 of Directive 92/46/EEC, cited above, does not include the Netherlands Antilles.
4 Various provisions of the Treaty are relevant to this case. Article 227 defines the territorial scope of the Treaty and paragraph 3 thereof provides that `[T]he special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex IV to this Treaty. This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list'.
Part Four of the Treaty, entitled `Association of the overseas countries and territories' (hereafter `OCT') includes Articles 131 to 136a.
The first paragraph of Article 131 provides that `[T]he Member States agree to associate with the Community the non-European countries and territories which have special relations with Belgium, Denmark, France, Italy, the Netherlands and the United Kingdom. Those countries and territories are listed in Annex IV to the Treaty'.
Originally, the Netherlands Antilles did not appear on that list. They were inserted subsequently by Convention 64/533/EEC of 13 November 1962. (4)
Pursuant to the second paragraph of Article 131of the Treaty, the purpose of the association between the Community and the OCT is to promote the economic and social development of the overseas countries and territories and to establish close economic relations between them and the Community as a whole.
Article 132 defines the purpose of the association and lays down certain basic rules. As regards trade arrangements, Article 132(1) provides that `Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to this Treaty'.
According to the first paragraph of Article 136, `the details of and procedure for the association of the countries and territories with the Community' are to be determined by an Implementing Convention annexed to the Treaty. The second paragraph of Article 136 provides that `[B]efore the Convention referred to in the preceding paragraph expires, the Council shall, acting unanimously, lay down provisions for a further period, on the basis of the experience acquired and of the principles set out in this Treaty'.
The Council adopted a series of decisions on the basis of Article 136, the last of which is Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community. (5)
Article 100, 102 and 103 of that decision are relevant here.
The first of those articles reads:
`1. In the field of trade cooperation, the object of this Decision is to promote trade between the OCT and the Community, taking account of their respective levels of development, and also between the OCT themselves.
2. In the pursuit of this objective, particular regard shall be had to securing effective additional advantages for the OCT's trade with the Community and to improving the conditions of access for their products to the market in order to accelerate the growth of their trade and, in particular, of the flow of their exports to the Community and to ensure a better balance in trade between the parties concerned.
...'
Article 102 provides that `the Community shall not apply to imports of products originating in the OCT any quantitative restrictions or measures having equivalent effect'.
Lastly, Article 103 reads as follows:
`1. Article 102 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality or public policy, the protection of health and life of humans, animals and plants, the protection of national treasures possessing artistic, historic or archaeological value or the protection of industrial and commercial property.
2. Such prohibitions or restrictions shall in no case constitute a means of arbitrary discrimination or a disguised restriction of trade generally.
...'
The facts and the questions submitted for a preliminary ruling
5 The facts at the origin of these proceedings for a preliminary ruling arose in the context of the provisions just described. The Antillian Dairy Industry (hereafter `DADI') is an undertaking established in Curaçao, Netherlands Antilles and operating in the butter-production industry. It imports the raw materials, for its operations from Belgium and the Netherlands.
On 30 January 1995, the Verenigde Douane-Agenten BV, (hereafter `Douane- Agenten'), a company based in Rotterdam, submitted a consignment of butter originating in the Netherlands Antilles and shipped by DADI for inspection to the competent authority, the Rijksdienst voor de keuring van Vee en Vlees (hereinafter `the Service'). The Service, however, refused authorisation to import the consignment on the ground that the country of origin, the Netherlands Antilles, did not appear in the list drawn up under Decision 94/70/EEC and setting out exhaustively the third countries whose products are authorised for import into the Community.
DADI and Douane-Agenten lodged a complaint against that decision; that complaint was rejected by a new decision of the Service confirming its first decision.
The undertakings concerned therefore brought the matter before the College van Broep het Bedrijfsleven, seeking annulment of the decision and compensation for damage. The appellants in the main proceedings argued, in essence, that the Netherlands Antilles are an integral part of the Kingdom of the Netherlands and cannot be treated as third countries by the Community. Therefore, since Directive 92/46/EEC and Decision 94/70/EC apply to imports from third countries, they cannot apply to products originating in the Netherlands Antilles.
The national court stayed proceedings and referred the following questions to the Court for a preliminary ruling:
`1.A. Must the provisions of Chapter III of Directive 92/46/EEC, seen in particular in the light of Article 227, together with Articles 131 to 136, of the EC Treaty be interpreted as setting the result to be achieved - within the meaning of the third paragraph of Article 189 of the EC Treaty - by national implementing provisions which are applicable to imports into the EC of butter originating in the overseas countries and territories listed in Annex IV to the EC Treaty, including the Netherlands Antilles?
If Question 1.A. is answered in the affirmative:
1.B. Are the provisions of Chapter III of the aforementioned directive, having regard in particular to Article 132(1) of the EC Treaty and Articles 102 and 103 of Council Decision 91/482/EC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community valid in so far they relate to the imports referred to in Question 1.A.?
If Questions 1.A. and 1.B. are answered in the affirmative:
2. Must Article 23 of the aforementioned directive be interpreted as meaning that the national provisions adopted to implement that article may only be applied to the imports referred to in Question 1.A.
- after the rules relating to intra-Community trade in the goods concerned, to which, under Article 22 of that directive, the third-country rules must be at least equivalent, have fully entered into force and
- after a legally valid decision has been taken with regard to the inclusion of the country concerned on the first list mentioned in Article 23(3) and with regard to the list of approved establishments in that country?
3. Is Commission Decision 94/70/EC of 31 January 1994 valid?'
The first question
6 By its first question, the national court is asking the Court whether the OCT, and the Netherlands Antilles in particular, are to be regarded as third countries for the purposes of Chapter III of Directive 92/46/EC. In other words, the Court is called upon to determine whether the rules laid down by the directive with regard to `imports from third countries' apply also to products from the Netherlands Antilles.
In answering that question, the parties who submitted observations dwelt on the theoretical question whether, in view of the status of the OCT, those entities can be regarded as `third countries'. Two opposing propositions were put forward in that regard. Relying on the special status conferred on the OCT by the Treaty, the first proposition is to the effect that they are not third countries. The Treaty confers on those entities a special status of association, which is privileged by comparison with the status granted to any third country: it follows that the rules of the directive applicable to third countries cannot apply to the OCT. The OCT are set apart from third countries precisely by virtue of their special relationship with the Community.
The second proposition, on the contrary, equates the OCT with third countries, relying mainly on the point that, whilst they are associated with the Community, they are, however, not members. The very intent of the directive is to distinguish between the Member States, on the one hand, and all other entities which are not contracting parties to the Treaty, on the other.
7 In my opinion, the first of those propositions is to be preferred. However, I must admit that the second proposition appears, at first glance, also not to be devoid of merit. As the purpose of the directive is to lay down health rules for trade in milk and milk products, it could even be argued that the Community legislature sought to draw a distinction according to whether the products in question originate in the Member States or in other countries, be they associated or wholly unrelated to the Community: in the first case, the very fact that the product originates in a Member State ensures that the health and hygiene rules, which can be assumed to be substantially equivalent throughout the Community, have been complied with; that equivalence is lacking, however, in the case of products originating in non-Member States. Therefore, the mere fact that a product originates in a country which is not a Member State justifies the application of the legal arrangement concerning third countries provided for in Chapter III of the directive. Following that argument, it makes no difference that the `third country' is associated with the Community.
8 In the final analysis, however, it is difficult to reconcile that point of view with the special status conferred on the OCT by the Treaty.
I have already observed that the relationship between the OCT and the Community is governed by special arrangements, entitled `Association of the overseas countries and territories', established by Part Four of the Treaty. Two aspects of those special arrangements must be highlighted for our purposes. The first is the fact that the OCT are the subject of `constitutional association' arrangements placing them, so to speak, half-way between the Member States and third countries.(6) The second is the fact that, as Advocate General Ruiz-Jarabo Colomer points out in his Opinion in the Van der Kooy case, `Community law, be it primary or secondary, is not directly and automatically applicable to them (...) (7)'.
In my opinion, those considerations provide conclusive grounds for holding that the OCT - and the Netherlands Antilles in particular in this case - cannot be regarded as third countries for the purposes of Directive 92/46/EEC. The OCT are not merely third countries vis-á-vis the Community; they are associated countries enjoying, what is more, a special and privileged status conferred by association arrangements based directly on the Treaty. (8) Moreover, Community rules cannot apply automatically to the OCT without an appropriate express reference. In this case, there is no such reference. The purpose of the directive in question is not to regulate trade between the OCT and the Community in accordance with the general principles laid down in part Four of the Treaty; the directive is based purely and simply on Article 43 of the Treaty itself, no reference being made to the relevant provisions governing the legal status of the OCT. No textual argument can be derived, expressly or by implication, from the directive for holding that the legislature sought to regulate the terms of trade for products originating in the countries in question. According to the above-mentioned case-law, that fact alone precludes the application of the directive to the OCT.
In any event, a systematic reading of the Treaty supports that conclusion. That the Netherlands Antilles cannot be regarded as a third country for the purposes of the directive concerned seems to me to be the only proposition consistent with the objectives laid down in the section of the Treaty concerning the OCT. Those rules provide for a special and privileged association arrangement with the OCT and are intended, therefore, to prevent the Community from treating such territorial entities on a par with any third country. (9) It is sufficient here to mention Article 132(1) of the Treaty according to which `Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to this Treaty', and the provisions of the OCT Decision, namely Article 30 and 36, which introduce rules for the trade in goods between the OCT and the Community which are substantially similar to the rules applying to intra-Community trade. (10) What is concerned here is clearly, as it were, a `preferential' regime which would not be justified in respect of any third country. That is why, in my opinion, an interpretation of the directive placing the OCT on an equal footing with third countries is difficult to reconcile with the principles and objectives of the Treaty conferring on the OCT a special status of association distinct from the arrangement applicable to third countries.
9 In my opinion, therefore, the OCT cannot be equated with third countries in applying Directive 92/46/EEC. That does not mean, however, that they must be regarded as Member States, again - of course - in the context of the arrangement eststablished by that same directive. They are neither third countries nor Member States. Therefore, the interpretation to which I subscribe does not mean that goods of OCT origin are entitled to the same freedom of movement within the Community as goods of Community origin. I will clarify that point. Since the directive does not apply to goods of OCT origin, those goods are subject to the general arrangement instituted by the Treaty and to the relevant rules of secondary law regarding the OCT. Consequently, as the French Government correctly points out, the applicable provision is Article 102 of the OCT Decision according to which `[T]he Community shall not apply to imports of products originating in the OCT any quantitative restrictions or measures having equivalent effect'. Apart from that article, Article 103, which is couched in the same terms as Article 36 of the Treaty, is relevant. Under Article 103, the free movement of goods originating in the OCT can be restricted on health grounds. That thus allows the Member States to ensure that the goods in question comply with Community requirements in terms of health protection.
The other questions referred for a preliminary ruling
10 The national court has requested that the Court reply to the other questions only if it concludes that the products originating in the OCT fall within the scope of the arrangements laid down by Directive 92/46/EEC. In that case, the question would arise whether or not it is consistent with the special preferential status conferred on the OCT by the Treaty and the relevant rules of secondary law to equate the OCT with third countries. In view of the answer which I believe the Court must give to the first question, the issues raised by the following questions cease to exist.
Conclusion
11 In view of the foregoing, I propose that the Court answer the questions referred by the national court as follows:
The import into the Community of butter originating in the overseas countries and territories listed in Annex IV to the Treaty, and in particular in the Netherlands Antilles, does not fall within the scope of application of Chapter III of Council Directive 92/46/EEC of 16 June 1992 laying down health rules for the production and placing on the market of raw milk, heat-treated milk and milk-based products, but is governed by Council Decision 91/482/EEC of 25 July 1991 on the association of the overseas countries and territories with the European Economic Community.
(1) - OJ 1992 L 268, p.1.
(2) - OJ 1994 L 36, p. 5.
(3) - See Article 1.
(4) - JO 1964 L 150, p. 2414.
(5) - OJ 1991 L 263, p.1.
(6) - See R. Monaco: Lezioni di Organizzazione internazionale II. Diritto dell'integrazione europea, Turin, 1968, p. 406. In this regard, legal literature speaks of `association octroyée' (see G. Maganza, La convention de Lomé, in Le droit de la Communauté économique européenne - Commentaire Megret, vol. 13, Bruxelles, 1990, p. 18 and further references) to show that this is not an association status agreed and negotiated with the countries concerned, but rather an association arrangement conceded by the Member States to territorial entities which are not subjects of international law.
(7) - See the Opinion in Case C-181/97, still pending before the Court, at paragraph 26. See also Case C-260/90 Bernard Leplat v Territory of French Polynesia [1992] ECR I-643, at paragraph 10.
(8) - A further factor indicating that the OCT cannot be regarded as third countries can be derived from the Opinion of Advocate General Trabucchi in Lensing v Hauptzollamt Berlin-Packhof (Case 147/73 [1973] ECR 1543). In that case, the Advocate General considered the Republic of Guinea as being `in the position of a third country' in that it was not among the states associated with the Community under the 1969 Convention of Association and `nor is the Association Decision of the Council of 1970, laying down the present arrangements for the association of the Community with Overseas Countries and Territories dependant on Member States, addressed to the Republic of Guinea'. It follows a contrario that had the Republic of Guinea been one of the OCT, it could not have been regarded as a third country.
(9) - The fact that that is a privileged association emerges from the judgment in Case C-430/92 (Netherlands v Commission [1994] ECR I-5197, at paragraph 22), where the Court stated that the scheme of association `confers advantages on those countries and territories in order to further their economic and social development'. To the same effect, see Case 91/78 Hansen v Hauptzollamt Flensburg [1979] ECR 935, at paragraph 22, which states that the OCT decision is intended to extend to the OCT the rules relating to the free movement of goods within the Community; and, above all, Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission [1995] ECR II-2305, at paragraph 91, where the Court of First Instance observes that the OCT enjoy a more favourable status than do other countries associated with the Community.
(10) - For present purposes, it makes no difference that in its judgment in Road Air (Case C-310/95 [1997] ECR I-2229, at paragraph 40), the Court stated that Article 132 merely expresses an objective to be pursued rather than an actual equivalent status between the Member States and the OCT. Such an objective would be hard to justify with regard to a third country.
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