Regina v. Minister of Agriculture, Fisheries and Food (Respondent) Ex P S P Anastasiou (Pissouri) Limited and Others (Appellants) [2001] UKHL 71

House of Lords
[2001] UKHL 71
Between
ReginaAppellantMinister of Agriculture, Fisheries and Food Ex P S P Anastasiou (Pissouri) Limited and OthersRespondent
Before
Lord Slynn of HadleyLord SteynLord Hope of CraigheadDate 17 December 2001
[1]This is a further stage in the dispute between SP Anastasiou (Pissouri) Ltd and the Minister of Agriculture Fisheries and Food concerning the importation of citrus fruits from the northern part of Cyprus (known as the Turkish Republic of Northern Cyprus - "The TRNC") into the United Kingdom. The dispute concerned two particular shipments in March 1995 which went first to Turkey and thereafter to the United Kingdom. The two exporters of such fruits from the northern part of Cyprus have intervened in the proceedings which are of direct concern to them. The earlier stages of this litigation are set out in my speech of 20 May 1998 to which I refer.[2]In summary the first round of the litigation concerned the question whether a movement certificate and a phytosanitary certificate purporting to be issued in accordance with Community requirements were valid if issued by officials of the TRNC. Following a reference by the High Court pursuant to article 177 of the EEC Treaty, the European Court of Justice on 5 July 1994 held that the European-Cyprus Association Agreement of 1972 in respect of the movement certificate, and Council Directive 77/93/EEC (OJ 1977 No L26/20), as amended, on "protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community", in respect of the phytosanitary certificate, could not be accepted in respect of citrus fruits and potatoes imported from the TRNC unless they were issued by the competent authorities of the Republic of Cyprus: R v Minister of Agriculture, Fisheries and Food, Ex p SP Anastasiou (Pissouri) Ltd (Case C-432/92) [1994] ECR 1-3087.[3]Popplewell J on 11 November 1994 made a declaration to that effect but his decision was challenged in the Court of Appeal by the Minister. The appellants in riposte sought an order restraining the Minister from allowing into the United Kingdom citrus fruits or products "produced" in the TRNC. The consignment of citrus fruits was taken with a phytosanitary certificate issued by the TRNC to a Turkish port and after a short period of time during which there was an inspection followed by the issue of a certificate by the Turkish authorities that they conformed to the phytosanitary conditions of the importing country. The question which arose and which had not been relevant on the first round was whether this certificate issued by Turkey entitled the citrus fruits produced in the TRNC (having TRNC certificates not acceptable here) to be imported into the United Kingdom. The European Court of Justice in reply to questions referred by your Lordships House pursuant to article 177 of the EC Treaty replied by judgment of 4 July 2000 (Case C-219/98) that the said Council Directive 77/93/EEC, as amended "permits Member States to admit into their territory plants originating in a non-member country, which are subject to the issue of a phytosanitary certificate dealing, inter alia, with compliance with special requirements, where, in the absence of a certificate issued by the authorities empowered to issue certificate in the plants' country of origin, the plants are accompanied by a certificate issued in a non-member country from which they do not originate, provided that: —the plants have been imported into the territory of the country where checks have taken place before being exported from there to the Community; —the plants have remained in that country for such time and under such conditions as to enable the proper checks to be completed, and —the plants are not subject to special requirements that can only be satisfied in their place of origin."[4]The European Court further held that it was not for the Member States concerned to take account of the reason for which a phytosanitary certificate had not been issued in the country of origin of the plants in determining whether the certificate complies with the requirement of the Directive as amended.[5]When the matter came back before your Lordships the appellants contended that the citrus fruits in question were subject to special requirements that could only be satisfied in the country of origin. Without such certificate they could not be imported into the United Kingdom.[6]By article 12(1) of Directive 77/93/EEC in force at the date of the European Court's judgment citrus fruits had to be accompanied by a phytosanitary certificate as prescribed by articles 7 and 8. One of the provisions of article 7 was that the certificate must conform to the model certificate referred to, which required in box 5 that in all cases the place of origin should be indicated. By article 9 it was provided that where special requirements had been laid down in Annex IV, Part A, the official phytosanitary certificate "shall have been issued in the country in which the plant, plant products and other products originate, save [in the case of citrus fruits] to the extent that the special requirements laid down in Annex IV, Part A can be fulfilled also at places other than that of origin".[7]In effect the question which the appellants sought to raise was whether the special requirements of item 16.1 of Annex IV, Part A of Directive 77/93/EEC as amended, that the packaging of citrus fruits bear an appropriate mark of origin could be fulfilled in a place other than in the place of origin.[8]Leave was given for both written and oral arguments to be addressed on this issue. The appellants further sought to rely on the provisions of item 16.2, 16.3 and 16.3(a) of the Annex as amended by Directive 98/2/EC, both as supporting their conclusions in regard to item 16.1 and as a discrete ground.[9]These two points have to be considered separately though they are inter-related.[10]Part A of Annex IV specifies special requirements which "must be laid down by all Member States for the introduction and movement of plants, plant products and other objects into and within all Member States" and section I deals with such objects "originating outside the Community".[11]In item 16.1 in section I the objects are "Fruits of Citrus L, fortunella Swingle, poncirus Raf, and their hybrids, originating in third countries". The special requirements are "Without prejudice to the prohibitions applicable to the fruits in Annex III B(2)(3) the fruits shall be free from peduncles and leaves and the packaging shall bear an appropriate origin mark". In items 16.2, 16.3 and 16.3(a) the special requirements were that, in respect of those fruits where " Xanthomonas campestris (all strains pathogenic to Citrus) is known to occur. An official statement should be available to the effect that "the fruits originate in areas known to be free from the relevant organism" or if that could not be met that no symptoms had been observed at the place of production during a defined period, that they had not shown any symptoms and the fruits had been subjected to appropriate treatment. Such requirements were also subject to the provision of Annex III (B) relating to citrus fruits originating in third countries, the introduction of which was prohibited in certain specified zones.[12]By the Plant Health (Great Britain) Order 1993 (SI 1993/1320) Schedule 4A2 (31.1) the packaging of the citrus and other fruits specified in the Directive "shall bear an appropriate origin mark".[13]The appellants contend that the requirement that the packaging of the goods bear "the appropriate mark" must be fulfilled in the Country of origin. The Ministry contends that that is not necessary. The requirement can be fulfilled in a third country and if that is done international comity requires that no inquiry should be made as to the certification process. The phytosanitary certificate issued by a third country under article 12(1)(b) of the Directive in the form of the International Plant Protection Convention model contains a declaration of the place of origin certified by an official and an official stamp. It represents a much higher level of assurance than that offered by the "appropriate origin mark" on the packaging. The phytosanitary certificate also indicated whether the requirements of items 16.2 et seq applied and since in the earlier version of 16.2 et seq, diseases were not known to occur in Cyprus and subsequent to Directive 98/2/EC were certified not to occur in Cyprus, the requirements of article 16.2 et seq did not apply. Moreover the fact that a plant passport was not required for citrus fruits stripped of leaves and peduncles shows that the regime of protection is "relatively low level". One reason for having the mark of origin was to enable it to be seen whether the fruit could be denied entry to the protected zones set up under article 4 (2) and Annex III (B) of the Directive. The removal of protected zones for citrus fruits under Directive 99/53/EC took away this reason for the existence of the mark of origin requirement.[14]By article 9(1) of Directive 77/93/EC the official phytosanitary certificate issued pursuant to article 7 in the case of plants to which special requirements laid down in Annex IV apply "shall have been issued in the country in which the plant, plant products and other objects originate". If those words stood alone it is plain that the certificate here could only validly be issued by the Republic of Cyprus. There was an exception to that provision but it is only "to the extent" that the special requirements "can be fulfilled also at places other than that of origin".[15]It is now accepted that the phytosanitary certificate which certifies that the plants are free of peduncles and leaves (the first requirement) can be accepted from a non-member third country where the fruits do not originate so long as they have been imported into that third country for checks and so long as they have remained in that country for a sufficient time to enable "proper checks to be completed" as the European Court held. Whether the citrus fruits still have stalks and leaves on them when inspected in a third country is something which can, if the necessary steps are taken, be accurately and authoritatively checked there and at that time. The second requirement is in one respect comparable and in another respect not comparable to the first requirement. The second requirement is that the "packaging shall bear an appropriate origin mark". If all that involves is that someone in a third country, or even someone who has inspected the fruits in a third country, should write on the packaging the name of the country from which they are believed or accepted to have originated then the special requirements are easily fulfilled. I am not satisfied however that that is all that is required. In the first place the mark must be "an appropriate origin mark". Prima facie that indicates to my mind a mark fixed by someone who can positively state what is the origin and not someone who simply relies on invoices or transport documents. That lends support to the contention that the appropriate mark can only be fixed by someone in the country of origin eg the producer, the recognised government authority (here Cyprus, not the TRNC) or the exporter.[16]I do not consider that the fact that both special requirements are contained in one phrase means that they must both be treated alike. Certifying that the fruits in front of the third country examiner have no leaves or stalks is one thing. It is within the actual knowledge of the examiner. Certifying that they have originated in a particular country is another in respect of which the third country examiner cannot make a direct personal assessment. He can only rely on shipping documents, which may only show the port of export rather than where the goods originate, or the invoices. His assessment of the invoices may be reliable if the invoices are genuine. An authentic statement is needed even more where the invoices may not be genuine. That can best come from the country of origin.[17]The alternative (that the requirement may be satisfied in a third country) is as a matter of prima facie interpretation arguable. One must then ask whether the purpose of this item 16.1 requirement in the context of the Directive as a whole requires that the origin mark should be stated on the package (and in box 5 of the phytosanitary certificate) by someone in the country of origin. In that regard it seems clear that an origin mark is required for several purposes. It informs the purchaser. It shows officials at the importation port whether the goods have come from inside or outside the Community or from another country with which for example the Community has an Association Agreement or some other trade agreement which will indicate regulations applying to it.[18]But clearly the most important purpose of both the phytosanitary certificate and the special requirement that an "appropriate origin mark" is required is to enable the authorities of the importing State to know whether the goods have come from a country where there is a risk of harmful plant organisms or disease. It is emphasised by the third recital in the preamble to Directive 92/103/EEC: "Whereas Annex IV to the said Directive [the Plant Health Directive] lists special requirements which are to be met in order to have better guarantees of freedom from the above mentioned harmful organisms".[19]It is plain that the intention was to have a greater degree of protection in respect of products for which special requirements were laid down than those for which special requirements were not imposed. It seems to me that a higher degree of protection is given in a case where the origin mark is entered on the package in the country from which the plant products originally came than if the origin is recorded at a subsequent stage in a third country. That is relevant not only on first importation but on future dealings with the goods after importation and before the packaging is removed. The authenticity of the statement on the packaging may thus be more important than the statement in box 5 of the phytosanitary certificate which is retained on importation.[20]These factors seem to me to point to the need for the packaging to bear the origin mark in the country of origin. That in effect means that the mark has to be attached to or printed on the packaging there. Only there is it possible to be sure that the mark is an "appropriate" mark to achieve that purposes of the legislation.[21]This question was considered by the Advocate General in Case C-219/98. He drew attention to the fact that the special requirements merely demand that the goods bear an appropriate origin mark without any reference to the fact of origin, how it is certified or by whom. In his view "appropriate" indicated that the mark should be fixed in the country of origin. He relied on the drafting history as supporting that view. He stressed that the shipping documents only show that the goods were shipped from Cyprus rather than that they originated in Cyprus and he raised doubts as to whether it would be in any event appropriate for a third country (such as Turkey) to rely on the certification by authorities in the TRNC when such authorities are not recognised by the Community or by its Member States and with whom such cooperation is not possible.[22]The Advocate General added "I might add that an erroneous or fraudulent misattribution of origin of a single consignment of contaminated fruit could have far graver and more far-reaching consequences for plant health in the Community than the limited and essentially financial consequences of such misattribution, for tariff purposes, under the EUR 1 regime". He concluded "The special requirement that the packaging of citrus fruit bear an appropriate origin mark cannot be fulfilled at a place other than that of origin in the case of citrus fruit stated to originate in the part of Cyprus to the north of the United Nations Buffer Zone".[23]The Court did not deal with this issue. I doubt if it is useful to speculate why it chose not to do so. It is plainly impossible to contend that the Court, if it did not expressly deal with the matter disagreed, with the Advocate General. It seems more likely that they considered that on the specific questions put to the Court that this issue did not arise. It seems to me that where the national Court finds a closely reasoned opinion of the Advocate General and does not consider that the opinion is clearly wrong it should attach considerable weight to it in the absence of an indication by the Court that the Court disagrees. The Advocate General's conclusion on item 16.1 supports the view which I have so far expressed.[24]The appellant seeks to rely on amendments made to items 16.2, 16.3 and 16.3(a) to support their case. This was not argued or referred to in the hearings before the European Court or before your Lordships on the previous occasion. The appellants cannot raise the issue without leave and the respondent opposes the grant of leave. The amendments were only published on 8 January 1998 shortly before the hearing in Anastasiou No 2 and it is understandable that they were overlooked. I consider that there are here relevant arguments which could have an effect on the eventual decision as to whether citrus fruit can or must be allowed entry into the United Kingdom.[25]Item 16.1 raised this matter and I consider it right that, despite the lateness of the application, both the issue under item 16.1 and the related question in respect of the subsequent items should be dealt with by your Lordships.[26]Item 16.2, 16.3 and 16.3(a), before the 1998 amendments provided that as a special requirement for citrus fruit originating in third countries where certain diseases were known to occur, that such fruits must have an official statement that "the fruits originate in areas known to be free from the relevant organism" or if this cannot be said that no symptoms had been shown at the place of production during the period prescribed or that they have been subject to testing.[27]In Directive 98/2/EEC of the 8 January 1998 it was recited that "Whereas some provisions for protective measures aimed at protection against the introduction on citrus fruit of [certain harmful substances] which are not present in the Community or in certain Citrus growing zones thereof, should be modified to have a better protection for the Community against these harmful organisms which are already listed in Council Directive 77/93/EEC". In the amended item 16.1 and the following items the respective products are described as "fruits of citrus L … originating in third countries".[28]The limitation to countries where the diseases where harmful organisms are "known to occur" is thus removed. Moreover the official statement referred to in items 16.2 and 16.3(a) must be that "(a) the fruits originate in a country recognised as being free from" the various diseases or that they originated in an area recognised as being free in accordance with the procedure laid down in article 16(a) and mentioned in the phytosanitary certificate referred to in articles 7 or 8 of the Directive.[29]Similar provisions apply to items 16.3 and 16.3(a).[30]There thus had to be an official statement for items 16.2 et seq that the fruits originated in the country recognised as being free from the harmful organisms and this applied to all citrus fruits, not just those originating in third countries where the harmful organisms were known to occur. The corollary was that some third countries were recognised by the Commission as being free from certain harmful organisms pathogenic to citrus as in decision 98/83/EC.[31]It seems to me that the official statement that the fruits originated in an area recognised as being free from the harmful organisms and that no symptoms have been observed in the field of production, that none of the fruits harvested in the field of production had shown symptoms or that the fruits have been packed at premises or dispatching centres registered for this purpose, can only be effectively provided in the country of origin. That in itself is an indication that what is required is an official statement issued in the country of origin. If this is so for items16.2 and 16.3 and 16.3(a) it seems to me that for the purposes of providing better (ie more effective, more reliable) protection against harmful organisms being carried into the Community, the origin mark under item 16.1 needs to be affixed in the country of origin and the special requirement as to the origin mark cannot be fulfilled also at places other than that of origin. It follows that a phytosanitary certificate required pursuant to articles 7 and 9 of Directive 77/93/EEC (now articles 7 and 9 of Directive 2000/29/EC) can only be given in the country of origin.[32]This result seems to me to satisfy not only the language but also the purpose of the Directive in seeking to eradicate harmful organisms. It does not seem to me to follow that, because item 16.2 et seq require an official statement by an official in the country of origin, that the mark of origin on the packages can be fixed in a third country in order to distinguish between the two and to avoid duplication. The mark of origin is in part to identify visibly and, it is hoped, durably the origin of the goods. But it is also to give an authentic statement of origin on which officials of the importing country can rely. That it seems to me can be best and most effectively given in the country of origin. I see no reason why the Community should not have wished to have such an authentic mark of origin from the country of origin and good reason why it should. If there is duplication in the two documents—the package under item16.1 and the official statement under item16.2 et seq—that can only serve to increase the protection; both are directed to the same purpose.[33]I should add that it seems to me contrary to what I understand to be the Minister's argument that even if the protected zones have been abolished, the appropriate origin mark on the package still serves a purpose in that if harmful organisms or diseases are subsequently found the fruit can be traced back to the country of origin.[34]I recognise that this approach to items 16.2 to 16.4 is relevant to a wider range of goods than citrus fruits and that it causes serious concern to the Minister. Since we are not agreed on the proper interpretation of item16.1 and in view of the importance of the issue under items16.2 to 16.4 to the Minister and to others it seems to me that, regrettable though a further reference to the European Court is, it is necessary in order for the House to give judgment to decide these questions. Accordingly as the final national Court in respect of these issues the House is bound to refer them to the European Court, pursuant to article 234 of the Treaty. The questions referred should be on the lines: �Whether, where citrus fruit originating in one third country has been shipped to another third country, the special requirement that the packaging shall bear an appropriate origin mark pursuant to item 16.1 of Annex IVA of Directive 77/93/EEC, now Directive 2000/29/EC, can only be fulfilled in the country of origin or whether it may alternatively be fulfilled in such other third country. Whether the official statement required by items 16.2 to 16.4 of Directive 2000/29/EC as to the country of origin must be made by an official in the country of origin or whether it may be made by an official in such other third country.�[35]Having considered your Lordships' conclusions the parties may, before the final order for reference is drawn up, make written submissions to the House as to the content of these questions if they wish to do so. The matter will then come back before the House when the reply of the European Court has been received. LORD STEYN My Lords,[36]I have read the opinions of my noble and learned friend, Lord Slynn of Hadley and Lord Hope of Craighead. In a finely balanced case I am persuaded by the reasons given by Lord Slynn and I would make the order he proposes. LORD HOPE OF CRAIGHEAD My Lords,[37]These proceedings relate to two consignments of citrus fruit originating in the part of Cyprus north of the United Nations Buffer Zone ("the northern part of Cyprus") that were shipped to the United Kingdom in March 1995 by way of a port in Turkey where the phytosanitary certificates that accompanied them on their entry to the Community were issued by the Turkish authorities.[38]In R v Minister of Agriculture, Fisheries and Food, Ex p SP Anastasiou (Pissouri) Ltd (Case C-432/92) [1994] ECR I-3087 (" Anastasiou I ") the European Court of Justice held that Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community ("the Plant Health Directive"), as amended by inter alia Council Directive 91/683/EEC and Commission Directive 92/103/EEC, precluded the acceptance by the national authorities of a Member State of phytosanitary certificates issued by authorities other than the competent authorities of the Republic of Cyprus where citrus fruit is imported from the northern part of Cyprus. It was in the light of that judgment that the exporters of the citrus fruit from the northern part of Cyprus made the arrangements for the inspection of the cargo in a Turkish port and the issuing of phytosanitary certificates there which have led to these further stages in this protracted dispute.[39]On 20 May 1998 your Lordships referred five questions to the European Court of Justice for a preliminary ruling under article 177 of the EC Treaty (now article 234 EC) on the interpretation of the Plant Health Directive relating to the acceptance by a Member State of plants originating in non-member countries which were accompanied by a phytosanitary certificate not issued by the non-member country of origin. The essential issue raised by these questions was whether, if the citrus fruit could not lawfully be imported directly into the United Kingdom with phytosanitory certificates issued in the northern part of Cyprus, they could lawfully be imported here if they were sent first to a Turkish port from which, backed by phytosanitary certificates issued in that port, they were sent on to this country.[40]On 4 July 2000 the Court issued its judgment in which it ruled that phytosanitary certificates issued by a non-member country from which the plants do not originate can be accepted provided that, among other things, "they are not subject to special requirements that can only be satisfied in their place of origin": Anastasiou and Others (Case C-219/98) 4 July 2000 (" Anastasiou II "). At a hearing on 7 December 2000 the appellants sought leave from the Appellate Committee to raise a question which had not been mentioned during the previous hearing in your Lordships' House. This was whether the special requirement in item 16.1 of Annex IV, Part A of the Plant Health Directive that the packaging of citrus fruits bear an appropriate origin mark requires an official statement of origin to be made in all cases where citrus fruit is introduced into the Community from non-member countries. Leave was given to all parties to make submissions on this question, and your Lordships are now in a position to give judgment on it having heard further argument.[41]At the hearing before the Appellate Committee on 7 December 2000 Mr Vaughan for the appellants explained that the question which he was now seeking to raise had been brought to his attention for the first time when it was mentioned briefly in the proceedings before the European Court. It was dealt with by Advocate General Fennelly in his opinion, at the end of which he recommended that the Court include in its reply to the questions referred for a preliminary ruling the following statement:
"The special requirement that the packaging of citrus fruit bear an appropriate origin mark cannot be fulfilled at a place other than that of origin in the case of citrus fruit stated to originate in the part of Cyprus to the north of the United Nations Buffer Zone."
[42]The European Court did not follow this recommendation, and the point was not addressed in its judgment. But Mr Vaughan said that it was nevertheless an issue that required to be resolved, especially in view of the point mentioned by the Advocate General in paragraph 46 of his opinion that proof of the origin of these products was essential in order to establish that they originated in Cyprus where none of the specified plant diseases are known to occur.[43]At the further hearing before your Lordships on 25 June 2001 Mr Vaughan sought leave to raise yet another issue. He referred to an amendment which was made to the special requirements relating to citrus fruits in Annex IV, Part A of the Plant Health Directive by Commission Directive 98/2/EC of 8 January 1998. The question which he sought to raise was whether the effect of this amendment was that citrus fruit originating in the northern part of Cyprus may only be accepted into the Community if it is accompanied by an official statement that the fruit originates in Cyprus which has been issued in the place of origin. Mr Roth for the respondent and Mr Beloff for the interveners both submitted that leave to raise this further issue should not be granted. But, as it had been addressed by all parties in their written submissions, they were content that your Lordships should nevertheless hear argument on the point without prejudice to the question whether leave to raise it should be given.[44]I recognise the force of the arguments against the granting of leave for this further point to be argued. As Mr Roth pointed out, the Plant Health Directive has frequently been amended. It is unsatisfactory that a dispute relating to shipments which took place in 1995 should be prolonged by the taking of new points arising from amendments which were not in force at that date. Furthermore, Directive 98/2/EC was already in force at the date of the hearing which preceded your Lordships' judgment of 20 May 1998. The appellants had the opportunity then to raise this point, but they did not do so. Nor did they bring it to the attention of the European Court during the proceedings which took place there for a preliminary ruling on the questions mentioned in that judgment. Their explanation is that the Directive escaped their notice, as it was not published in the Official Journal until after they had submitted their written case to this House.[45]Nevertheless I consider on balance that leave to raise this point should be given. The shipments which are in question in this case were intended to solve the problem which the ruling in Anastasiou I had created for the exporters of citrus fruit from the northern part of Cyprus to the Community. As these proceedings have the characteristics of a test case, it is better that all the issues which bear upon the question whether an effective solution to that problem has been found should be dealt with now. Furthermore, the point which the appellants wish to raise as to the effect of Directive 98/2/EC is closely related to the point which they wish to raise about the appropriate origin mark for which leave has already been given. Indeed, for reasons which I shall explain later, I consider that it has a very important bearing on the question as to how the phrase "an appropriate mark of origin" ought to be interpreted. Now that attention has been drawn to this Directive its existence cannot be left out of account.[46]I agree therefore with my noble and learned friend Lord Slynn of Hadley that both the issue under item 16.1 and the related question in respect of the subsequent items should be dealt with by your Lordships.[47]Before I deal with the question which the appellants have raised as to the effect of Directive 98/2/EC however I wish to set out the views which I have reached on the first question, which is whether the special requirement in the Plant Health Directive that the packaging shall bear an appropriate origin mark requires an official statement of origin to be made in all cases where citrus fruit is introduced into the Community from non-member countries. The " appropriate origin mark" in item 16.1[48]The starting point for an examination of this question is article 12.1 of the Plant Health Directive, as amended. It provides as follows:
"Member States shall lay down, at least as regards the introduction into their territory of the plants, plant products and other objects listed in Annex V, Part B (91/683) and coming from non-member countries: (a) that these plants, plant products and other objects and their packaging shall be meticulously inspected on an official basis, either in their entirety or by representative sample, and that, if necessary, the vehicles transporting them shall also be inspected meticulously on an official basis in order to make sure as far as can be determined (80/392) - that they are not contaminated by the harmful organisms listed in Annex I, Part A. - in the case of the plants and plant products listed in Annex II Part A, that they are not contaminated by the relevant harmful organisms listed in that part of the Annex. - in the case of the plants, plant products and other objects listed in Annex IV, Part A, that they comply with the relevant special requirements indicated in that part of the Annex."
[49]Annex IV, Part A lays down special requirements for "fruits of Citrus L, Fortunella Swingle, Poncirus Raf and their hybrids, originating in third countries". I refer in the following summary to the provisions of Part A prior to their amendment by Directive 98/2/EC, as it was to their provisions in their unamended form that the question as to the meaning of the phrase "an appropriate mark of origin" was directed. Item16.1 of Part A sets out a special requirement which applies to all fruits of this description. Items16.2 to 16.4 of Part A set out further special requirements which apply to citrus fruits originating in countries where various harmful organisms are "known to occur". It is common ground that Cyprus is a country where none of the relevant harmful organisms listed in Annex I, Part A and Annex II, Part A relating to citrus fruits are known to occur: see paragraph 7 of AG Fennelly's opinion. So the only relevant special requirement which applies to citrus fruits originating in Cyprus is that in item 16.1, which provides:
"Without prejudice to the prohibitions applicable to the fruits in Annex IIIB (2), (3), the fruits shall be free from peduncles and leaves and the packaging shall bear an appropriate origin mark."
[50]Article 9(1) of the Directive provides:
"In the case of plants, plant products or other objects to which special requirements laid down in Annex IV, Part A apply, the official phytosanitary certificate required pursuant to article 7 shall have been issued in the country in which the plant, plant products and other objects originate, save: - in the case of wood, if … - in other cases, to the extent that the special requirements laid down in Annex IV, Part A can be fulfilled also at places other than that of origin."
The European Court gave effect to this provision in its ruling in Anastasiou II that the Plant Health Directive permitted Member States to admit into their territory plants originating in a non-member country accompanied by a certificate issued in a non-member country from which they do not originate, provided inter alia they "are not subject to special requirements that can only be satisfied in their place of origin."[51]If AG Fennelly was correct in concluding at the end of his opinion that the special requirement that the packaging shall bear an appropriate origin mark cannot be fulfilled at a place other than that of origin, it must follow that it was unlawful for the United Kingdom to permit the importation of citrus fruits originating in the northern part of Cyprus which were accompanied by a phytosanitary certificate issued in a Turkish port. The question as to the meaning that is to be given to the phrase "an appropriate origin mark" thus raises a point which is of fundamental importance to the application of the ruling by the European Court to the consignments of citrus fruit with which this case is concerned.[52]While I fully recognise the respect that is due to AG Fennelly's opinion, I regard the following reasons for rejecting the conclusion which he reached as to the meaning of this phrase as compelling:a. Article 9(1) of the Directive contemplates that the special requirements laid down in Annex IV, Part A include special requirements that can be fulfilled at places other than that of origin. So also does the ruling by the European Court in Anastasiou II : see paragraph 32 of the judgment on page I-10, paragraph 38 on page I-12 and the proviso to paragraph 1 of the ruling on page I-13.b. Item16.1 lays down two special requirements in a single sentence. This suggests that they ought both to be capable of being determined in the same way. It is accepted that the special requirement that the fruits shall be free of peduncles and leaves can be dealt with by means of visual inspection.c. The special requirement that the packaging shall bear an appropriate origin mark is directed to a mark on the packaging. This suggests that the question whether the origin mark is "appropriate" is intended to be dealt with by inspecting the packaging.d. The characteristic of a mark on the packaging is that it travels with the fruits which are inside the packaging until the fruits are unpacked. This suggests that the question whether the origin mark is "appropriate" relates to the wording of the mark and the way in which it has been fixed to the packaging, having regard to the purpose which it is intended to serve. Its purpose is to ensure that the packaging bears a durable identifier of the origin of the fruits as the packaging moves about within the Community.e. The special requirement in item 16.1 is to be contrasted with the special requirements in items16.2 to 16.4 which apply to fruits originating in countries where the relevant harmful organisms are known to occur. They refer to an "official statement" of origin. An official statement is different from a mark on the packaging. It is an official document of a kind described by the European Court in Anastasiou I which, in the event of any doubt or difficulty concerning it, must be brought to the attention of the authorities by whom it is made: see paragraph 63 of the judgment at p I-3137. The context indicates that the official statement referred to in these items must be prepared in the country of origin, and that it must be available for examination at the frontier when the fruits to which it refers enter the Community.f. The amendment introduced by Directive 98/2/EC requires an "official statement" of the kind described in item 16.2 in the Annex to that Directive to be provided in addition to the special requirement set out in item 16.1 which retains its original wording. Thus, there are now two special requirements that have to be satisfied in the case of citrus fruits originating in a country which is recognised as being free from the relevant harmful organisms. The first, set out in item 16.1, is the ori[53]I intend no disrespect to AG Fennelly, as no detailed argument was addressed to him on this point by any of the parties and nothing at all was said about it in the written submissions of either the Commission or the United Kingdom, when I say that the following omissions from his discussion of the meaning of the phrase seem to me to be significant:a. He does not examine anywhere in his opinion the possibility that the purpose of requiring a mark of origin on the packaging which is "appropriate" is to ensure its durability as the contents of the packaging move about within the Community.b. He does not examine the contrast between the special requirement in the original item16.1 for a mark of origin on the packaging and the special requirement in the original item16.2 for an official statement as to the place of origin, in order to determine whether or not these two requirements were intended to serve the same purposes.c. He does not mention Directive 98/2/EC which, as I have said, appears to introduce for the better protection of the Community an additional special requirement for an official statement that the fruits originate from a country recognised as being free from the relevant harmful organisms. The contents of this Directive make it all the more necessary for a meaning to be found for the phrase "an appropriate mark of origin" in item 16.1 which does not duplicate the special requirement in item 16.2 for an official statement as to the country of origin.[54]Both the respondents and the interveners have drawn attention in their further submissions to your Lordships' House to various facts which were not mentioned by them in their written submissions to the European Court. These provide important background information about the system of plant protection that exists within the Community and help to put the special requirement as to the mark of origin into its proper context.[55]For example, information is included in these submissions about the introduction with effect from 1 June 1993, when the single market for agricultural produce was introduced and inspection at internal borders was removed, of a requirement for a plant passport in place of a phytosanitary certificate for those plants and plant products which require a phytosanitary inspection before being moved within the Community. Products in these categories require a passport to move freely within the Community, whether or not they originate in the Community or third countries. In the case of products originating in third countries the passport carries information as to origin transcribed from the phytosanitary certificate. In the case of citrus fruits a passport is required only for those fruits with peduncles and leaves, since it is the peduncles and leaves that serve as hosts to various pests. As only citrus fruits that are free from peduncles and leaves may be imported into the Community, no passport is required for imported citrus fruits. It is needed only for citrus fruits grown in the Community which is going to circulate within the Community without the removal of their peduncles and leaves. The reason why a mark of origin has to be placed on the packaging is to show that the fruits, which are separated from their accompanying phytosanitary certificate at the point of entry, are free to circulate within the Community without a plant passport. This information suggests that the reason why the word "appropriate" has been included in the special requirement is to direct the attention of the official at the point of entry to the appearance and durability of the mark of origin once he is satisfied that the fruits are free from peduncles and leaves.[56]Following receipt of AG Fennelly's opinion but in advance of delivery of the European Court's judgment, the interveners applied by letter for a re-hearing by the Court on this issue. Their application was refused, but it was regarded by them as having been overtaken by the judgment which gave answers in their favour to the questions which had been referred to the Court and did not deal at all with the issue about the mark of origin. I am reluctant to speculate as to why the European Court did not deal with this issue. My initial impression was that the absence of any mention of it should be regarded as neutral - that is to say, as indicating neither one way or the other as to whether the Court agreed with the opinion of the Advocate General. On reflection, I now think that it is unlikely that, if they agreed with his conclusion, they would have answered the questions which were referred to them in the same way. This is because the emphasis which the Court placed, both in its judgment and in the rulings which it made, on the fact that a phytosanitary certificate could be issued in a non-member country from which the plants did not originate if they were not subject to special requirements that could be satisfied only in their place of origin would have been wholly academic, in the case of citrus fruits, if AG Fennelly's conclusion that the special requirement of an appropriate mark of origin could be satisfied only in the place of origin was sound.[57]I have had the advantage of reading Lord Slynn's speech in draft, and I am aware that your Lordships do not share my opinion on this issue. But, for the reasons which I have given, I am unable to accept that the meaning which your Lordships wish to give to the phrase is acte clair . With very great regret therefore I have come to the conclusion that the question as to the meaning which is to be given to this phrase in item16.1 of Annex IV, Part A of the Plant Health Directive, both in its original form and as amended by Commission Directive 98/2/EC, must be referred to the European Court for a preliminary ruling under article 234 EC. The "official statement" in item16.2 [58]The amendment which was introduced by Directive 98/2/EC was directed to the special requirement for an official statement to be given in regard to citrus fruits originating in third countries. It innovated on the original special requirement in two ways. First, it extended the special requirement for an official statement to all cases where citrus fruits originating from third countries was being introduced into the Community. Secondly, it altered the previous system which depended upon an exercise of judgment by officials elsewhere as to whether fruits originated in a country where the harmful organisms were known to occur to one whereby an official statement was to be provided that they originated in a country recognised as being free from them according to the procedure laid down in article 16a of the Plant Health Directive.[59]Two features of the amended special requirement appear to me to be important in regard to the issue which the appellants have now raised. The first is that it sets out a series of alternative statements which are required as to the country or area of origin, the state of the fruits when they were harvested, the treatment to which they have been subjected or the place where they were packed, all of which appear to require a state of knowledge on the part of the official making the statement which he could not have at first hand unless he was present in the country or place of origin. The second is that, where the alternative as to the country of origin applies - which is this case - the function of the official statement is simply to identify the country of origin. It is not for the official statement to say that the country - in this case Cyprus - has been recognised as being free of the harmful organisms in accordance with the procedure laid down in article 16a. The Commission has introduced a system of formally declaring certain countries or areas to be free from particular pests and diseases: Commission Decision 98/83. The fact that the country or area named in the official statement is a country or area which has been so recognised would seem to be a matter for determination by the person who examines the official statement at the point of entry into the Community.[60]In the light of this analysis I consider that the effect of the amendment is that an official statement must certify the place where the fruits originated. This means that an official statement as to the country of origin in the case of citrus fruits originating in the northern part of Cyprus must be provided by an official in the country of origin. This in turn means, applying the judgment of the European Court in Anastasiou II , that the relevant phytosanitary certificate cannot be issued in a non-member country from which the fruits did not originate.[61]On the other hand the respondents have indicated that a finding to this effect would have far-reaching implications for the phytosanitary regime as currently operated both under the EC rules and the International Plant Protection Convention. It would call into question whether officials in a third country other than the country of origin can ever issue a phytosanitary certificate. They say that this is contrary to current practice whereby, for example, the United Kingdom admits into the Community wood shipped from Canada accompanied by phytosanitary certificates issued by the Canadian authorities in which the wood is stated to be of United States origin. In view of the wider implications I consider that, as a further reference is required with regard to the issue about the appropriate mark of origin, it would be appropriate for this closely related issue also to be referred to the European Court for a preliminary ruling before a final decision is made on it by your Lordships.[62]For these reasons I would make a further reference to the European Court for a preliminary ruling as to the meaning and effect of(1) the special requirement in item16.1 of Annex IV, Part A of the Plant Health Directive that the packaging of citrus fruits bear an appropriate mark of origin and(2) the special requirement in item16.2 of Annex IV, Part A, as replaced by Commission Directive 98/2/EC, for an official statement that the citrus fruits originate in a country recognised to be free from the relevant harmful organisms. I would make the same order as that proposed by Lord Slynn.

Cited in 1 later judgment