Minister of Agriculture, Fisheries and Food, Ex parte Anastasiou (Pissouri) Ltd and Others, R v. [1998] UKHL 21 (20th May, 1998)

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I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley. I agree with it, and for the reasons which he has given I would make the same order.

The appellants are producers and exporters of citrus fruits in the Republic of Cyprus; the interveners export citrus fruits from that part of Cyprus which is north of a buffer zone maintained by the United Nations and which calls itself "The Turkish Republic of Northern Cyprus" ("TRNC") over which it seems in practice officials of the government of the Republic of Cyprus do not have control. The interveners are owned by the TRNC. There are obviously political and economic factors involved in the relationship between the appellants and the interveners which are not in issue in this appeal and as to which I express no view.

Until 1994 the interveners exported to the United Kingdom citrus products accompanied by two documents issued by persons said to be officials of the TRNC. The first was a document known as "EUR1," a movement certificate providing proof of origin, without which the products could be imported into the United Kingdom, but without which they would not have the benefit of preferential tariffs on entry into the United Kingdom pursuant to the European Community--Cyprus Association Agreement of 1972 and the protocols thereto of 1977 and 1987.

The second document was a phytosanitary certificate purported to be issued pursuant to Council Directive 77/93 on "Protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community" (O.J. 1977 No. L 26/20 as amended), a Directive implemented in Great Britain by the Plant Health (Great Britain) Order 1993, as amended. The Directive requires that products specified in Annex V (B) thereto (which include citrus plants and products) coming into the Community from third countries must be accompanied by a phytosanitary certificate stating that the products have been inspected according to appropriate procedures and are considered to conform to the phytosanitary regulations of the importing country.

Until 1994 the respondent admitted citrus products from the TRNC on the basis of EUR1 and phytosanitary certificates issued by "officials" of the TRNC. The appellants had in the meantime on 21 May 1992 brought proceedings for judicial review in the High Court challenging the lawfulness of the respondent's practice both in relation to citrus products and to potatoes. The High Court referred to the European Court of Justice questions, in summary, as to whether:

The interveners participated in the oral hearing before the European Court of Justice. That Court in its judgment of 5 July 1994 (case C-432/92) [1994] E.C.R. 1-3087, 3139 held that the Association Agreement and the Directive:

On receipt of the Court's judgment Popplewell J. on 11 November 1994 declared that the United Kingdom may not accept, in relation to the import of citrus fruits from the TRNC, EUR1 and phytosanitary certificates other than those issued by the competent authorities of the Republic of Cyprus. That judgment is subject to appeal to the Court of Appeal but following the judge's declaration on 11 November 1994, the interveners took action to get their products to the United Kingdom. In reply on 13 March 1995 the appellants asked by notice of motion in the existing proceedings for an order restraining the respondent minister from allowing into the United Kingdom any citrus fruits or potatoes "produced in" the TRNC. In a judgment on 23 May 1995 dealing with that motion Popplewell J. described the action taken by the intervener as follows:

The judge granted the application in respect of potatoes but refused it in respect of citrus fruits and his decision was upheld by the Court of Appeal. It is that decision of the Court of Appeal which is now an issue before your Lordships' House. The appeal is limited to citrus products and to phytosanitary certificates, it does not involve either potatoes or EUR1 movement certificates.

The interveners submitted as a distinct point that the notice of motion should in any event be dismissed since it seeks relief which does not arise from, nor operates so as to enforce, the declaratory relief granted on the application for judicial review by Popplewell J. on 11 November 1994. This point was raised before and rejected by Popplewell J. and though raised before was not dealt with by the Court of Appeal since that Court ruled that the appellants failed in any event on the substance of their appeal. The learned judge's order of 11 November declared:

The present notice of motion, brought in the same proceedings for judicial review, seeks an order that:

Mr. Beloff Q.C. says that the difference between citrus fruits "from" and those "produced in" that part of Cyprus is fundamental. If regard is to be had to the proceedings on the application for judicial review and indeed in the European Court of Justice it is clear that what the referring court and the European Court had in mind was citrus fruits "exported from" Northern Cyprus.

The expression "citrus fruits from Northern Cyprus" taken by itself as a matter of ordinary language is wide enough to cover both such fruits "originating in" or "produced in" Cyprus as well as those "dispatched from" or "exported from" Cyprus. Perhaps the original order could have distinguished between the two and limited the declaration to fruits "exported from Cyprus and imported directly into the Community". But the fact is that it did not; a quite general expression is used. Moreover if one looks at the substance of the matter there is no doubt that these fruits were both produced in Cyprus and originally were exported from Cyprus. They cannot have valid certificates from the officials in northern Cyprus (a point common to the application for judicial review and to the motion for an injunction) and the question, again common to both the application and the motion, is whether a certificate from the officials of the Republic of Cyprus is necessary.

The decision to route the produce through a Turkish port was taken as a result of the judge's declaration following the European Court's judgment. Whether it is said to be a way of avoiding the effect of the European Court's judgment or of complying with it, the fact is that it was adopted in order to try to make it possible for the Ministry of Agriculture to accept produce grown in and despatched from Cyprus via a Turkish port.

The link is so close that I do not think it can be said that this application does not "arise from" the declaratory relief granted on the application for judicial review. Moreover although the matter has not been argued I am not satisfied that, as Mr. Beloff contended, the Turkish government is prejudiced by the fact that new proceedings for judicial review were not issued or that it could not have applied to intervene in this motion. Even if the latter is right any points which the government wish to take could have been taken by the present interveners.

That makes it unnecessary to consider his alternative contention that, if it had been necessary for a new application to be made for judicial review, the appellants would have lacked the necessary locus standi, though I am not persuaded by the brief argument Your Lordships have heard that it is right. Nor is it necessary to deal with the further question, apparently prompted by In re Poh [1983] 1 W.L.R. 2, as to whether your Lordships' House has power to grant leave to the appellant to apply for judicial review on the present appeal so as to avoid the matter having to begin all over again by a fresh application for judicial review. It is, however, right to mention that this case is different from In re Poh since this is not an appeal from a refusal of leave by the Court of Appeal.

To return to the issues in the appeal. Put shortly the question is whether, if the interveners cannot lawfully import these citrus fruits directly into the United Kingdom with certificates issued in the TRNC, they can do so by sending them to a Turkish port from which, backed by phytosanitary certificates issued in that port, they are then sent on to the United Kingdom by a Turkish company which is to all intents and purposes the same as the interveners.

Three principal questions arise on which the appellants and the respondent, whose submissions are adopted by the interveners, disagree. The first goes to the proper interpretation of the Directive on a matter which, all parties appear to agree, was not covered directly by the judgment of the European Court of Justice, since on the facts it did not arise, and was not raised before that court as an alternative possible course of conduct open to the interveners. The issue can be simply put, though it needs some explanation to place it in context. It is this: for citrus fruits to be imported into a Member State from outside the Community, does the Plant Health Directive properly construed require that the certificate be issued by the authorities of the country of origin of the products or may it be issued by a third country and, if so, in what circumstances?

What happened in fact here was that two phytosanitary certificates were issued in respect of the same consignment of goods. The first numbered 000655 and dated 11 March 1995 was issued in Famagusta by the Plant Protection Organisation of Cyprus for that organisation of Turkey. The place of origin of the goods was said to be Cyprus. The second intervener was described as the consignor and the consignee was a company in Mersin, Turkey. The certificate stated that the products "have been inspected according to the appropriate procedures," are considered free from the specified pests and "are considered to conform with the current phytosanitary regulations of the importing country" i.e. Turkey. The second certificate issued on 13 March 1995 related to the same consignment and was issued in Mersin from the Plant Protection Organisation of Turkey to that organisation of the Netherlands. The consignor was the same company in Mersin; the place of origin was Cyprus; the consignee was the first intervener in London. The vessel was the same and the declaration in the second certificate was in the same terms as in the first.

The appellants, though contending that the other two issues can be resolved in their favour without any question of a reference to the European Court on a matter of construction arising, contend that the Directive plainly requires that there should be a certificate from the country of origin and that means from the competent authorities of that country. There was no such certificate in connection with the relevant consignment. Therefore the goods could not lawfully be accepted for importation by the respondent.

It is to be noted that the Directive deals separately with goods originating in the Community and those originating in other states though there are important cross references between the separate provisions. Thus articles 6, 7 and 8 deal with goods originating in the Community, being those products listed in Annex V A. Article 12 deals with products coming from non-member countries and the products listed in Annex V B which includes as item I.3 "fruits of citrus."

Article 12.1 requires Member States to make provision that the products are "inspected meticulously on an official basis" to ensure that they are not contaminated with specified harmful organisms and that they comply with the special requirements indicated in Annex IV Part A. This covers inspection by the Member State of importation. But in addition the products "must be accompanied by the certificates prescribed in article 7 or 8 (91/683) and that a phytosanitary certificate may not be made out more than 14 days before the date on which the plants, plant products or other objects leave the consignor country." Those certificates must give information in accordance with the model contained in the Annex to the International Plant Protection Convention of 6 December 1951 as amended and be issued by the "authorities empowered for this purpose under the" Convention, or in the case of non-contracting countries, on the basis of the laws of the countries.

Article 12, contend the appellants, thus takes one back to articles 7 and 8. Article 7 provides for the proscribed phytosanitary certificate to be issued "Where it is considered, on the basis of the examination laid down in article 6 (1) and (2), that the conditions therein are fulfilled."

So, argue the appellants, article 7 takes one back to article 6. Article 6 provides that Member States shall lay down "at least in respect of the introduction into another Member State of the plants, plant products and other objects listed in Annex V Part A (91/683) (which include as item I.1.6 "Fruits of Citrus Clementina L with peduncles and leaves), that the latter "shall be" meticulously examined on an official basis to make sure that they are not contaminated by specified harmful organisms and that they comply with the relevant specified requirements. Article 6 paragraph 4 provides that those official examinations shall be carried out in accordance with the following provisions:

This clearly refers to the country from which the goods are exported and by reason of article 12 both articles 6 and 7 will, if applicable, have to be adapted to fit products exported from non-Community countries.

Article 8 provides that where products have been introduced into one Member State from another state and are to be moved on to a third Member State accompanied by a phytosanitary certificate, a further article 6 inspection is not needed. Where the products have been split up or stored or repacked a new inspection is not necessary if "it is officially ascertained that no change in these products has occurred in its territory which would involve non-compliance with the conditions laid down in article 6" when a re-forwarding certificate in the proscribed form may be issued and if issued must be attached to the phytosanitary certificate issued by the first Member State or a certified copy of the latter certificate. That re-forwarding certificate must be made out not more than 14 days before the products leave the re-forwarding country.

Of considerable importance to the argument in the appeal is article 9. That requires in the case of products 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:

Item 16.1 in Annex IV Part AI, applicable to plant products originating outside the Community, comprises "fruits of Citrus L, Fortunella Swingle, Poncirus RaF. and their hybrids" and provides that "the fruits shall be free from peduncles and leaves and the packaging shall bear an appropriate origin mark."

The appellants refer to the emphasis in the Directive on inspection and certification close to the place of production. That they say rules out an intermediate inspection. Valid certification should only take place following "meticulous inspection" of the products, if appropriate in their entirety. This can only be done at the place of production other than where re-forwarding certificates are permissible or to the limited extent provided for by Article 9 in respect of specific precautions. A mere inspection on the ship in a port is not a sufficient safeguard even if carried out on all the containers in the ship. This approach they say is the one which is consistent with the International Convention on Plant Control.

The respondents reply further that article 12 refers to articles 7 and 8 which must be applied and adapted for goods coming from outside the Community. It does not refer back to article 6. Article 6(4) requires that products originating in the Community (those in Annex V Part A) shall be examined "on the premises, preferably at the place of production." There is no express provision as to where the examination of Annex V Part B products, those originating outside the Community, should take place. In the alternative the respondent says that once Annex IV lays down a special requirement, as it does here in respect of stalks and leaves, the certificate, i.e. the whole phytosanitary certificate, may be given other than at the place of origin if the special requirements can be fulfilled there. There can only be one certificate and it is not possible to have different certificates dealing with different matters.

As to the argument on article 9, the Court of Appeal whose decision on this point is supported by the respondents held that by virtue of article 9 once there is a special requirement for a product falling within Annex IV A (as here that there shall be no stalks and leaves) it is not necessary for the consignment to be covered by a certificate from the country of origin. This, say the appellants, is contrary to the clear provision of article 9 that the certificate of the country of origin is only not required "to the extent that the special requirements . . . can be fulfilled also at places other than that of origin." (Emphasis added.) As to the rest there must be a certificate from the country of origin. If it were otherwise the object of the Directive to ensure control at or close to the place of production would be defeated and the absurd result would follow that a more lax standard would be accepted for goods coming from third countries than from Member States where the Community can set standards particularly in regard to matter falling within Annexes 1 and II.

The appellants say further that the respondent's whole approach is inconsistent with the current and the original wording of article 9. In the first version of the Directive article 9 provided that the goods listed in Annex IV Part A needed a certificate "issued in the country in which they originate or by a certified copy of that certificate in addition to the certificates provided for in articles 7 and 8," yet the heading to Annex V had, as it has now, a reference to inspection "in the country of origin or the consignor country." The respondent replies that the appellants have misunderstood the Directive and that it is important to trace the changes which have been made in the wording of the Directive in order properly to understand the current wording of Annex V and its heading. The latter makes it clear that a certificate from a consignor country is sufficient. The appellants have, on the other hand, to meet the respondent's reference to the heading to Annex V where it is said that for goods originating outside the Community the inspection may take place in "the country of origin or the consignor country" and their argument that consequently it is only for goods originating in the Community that the inspection must be at the place of production. The appellants reply that this argument produces a result inconsistent with the aim of the Directive which is to take protective measures against harmful organisms coming into a Member State. The text of the articles in a directive should not be controlled by the heading to an annex.

Whichever side is right, it seems to me clear that this question of the interpretation of the Directive has to be decided before judgment can be given in the case. The matter is not covered by the judgment of the European Court given in the earlier reference nor in any case cited to your Lordships' House. Given the appellants' arguments, but in the contrary sense the opinion of the judge and the Court of Appeal, the answer is not so clear and obvious that no reference is necessary. I consider that the House is obliged by article 177 of the Treaty of Rome to make a reference on this issue and therefore I do not set out in more detail the arguments of the parties elaborating the basic division between them which I believe to be sufficiently set out in what I have said.

The appellants' second point is that in its judgment in the first Anastasiou case C 432/92 the European Court stressed that the Directive is based on cooperation between the importing state and the country of origin. Without such cooperation the country of origin cannot take action to eradicate or prevent the contamination of plant products originating in its territories. This is an essential objective also of the International Plant Protection Convention of 6 December 1952 and of the European and Mediterranean Plant Protection Organisation, of the latter of which Cyprus is a member. The TRNC could not give the necessary certificate on the facts of that case or of the present case. As the European Court put it in its judgment:

Even less, say the appellants, can Turkey give such a certificate covering all the matters required to be considered, even if it can certify that the fruit is free of stalks and leaves following an inspection on the ship in the Turkish port. There is no way in which Turkey can inspect growing plants, areas under cultivation or the picking and packing of the fruit in order to be sure that any pests or disease are spotted and controlled. Other than in relation to stalks and leaves there cannot be the necessary cooperation between the Republic of Cyprus and Turkey (even de facto between the TRNC and Turkey) to carry out the necessary inspection. Accordingly the United Kingdom must not allow the import of citrus products covered by a phytosanitary certificate issued by Turkey where the ship merely called in at a Turkish port for a few hours and where the fruits were not imported into Turkey. The most that Turkey could do was to issue a re-forwarding certificate attached to the original or to a copy of the phytosanitary certificate issued by the Republic of Cyprus.

The respondent replies that the question of certificates issued in a third country was neither an issue, nor addressed, in the earlier judgment. Moreover the court was only considering cooperation as to enquiries or doubts regarding these certificates, since those who issued the certificate were not officials of a recognised state. There will be no difficulty in the United Kingdom authorities consulting Turkish officials about the certificates or about their procedures. The European Court was not concerned with cooperation as to the effective operation of the plant health regime. What it said has no effect on the present issue.

The appellants attach much importance to this point of cooperation based as it is on the judgment of the European Court. If it is right they may well be entitled to the order they seek and it is plainly necessary to decide the point before judgment can be given. But once again it is plain that the issue, in so far as it involves sending the goods to a third country and their onward transmission to the Community, was not raised before the European Court of Justice. There is a real question as to how far the statements of the Court as to cooperation should be taken to cover third countries. The point is in any event linked to the broader question of interpretation raised in the first point. It should in my opinion be referred to the European Court pursuant to Article 177 of the Treaty.

The appellants' third point is that on the facts there is only one reason for sending the fruits from the TRNC to Turkey before they are sent to a Member State. That reason is to circumvent the European Court's judgment in Anastasiou C 432/92. The interveners only applied to take part in the proceedings before the European Court twelve days before the hearing; they did not raise any issue relevant to the present appeal; they adopted the present practice of sending the fruits to Citex, which in reality is the same as the interveners, only four days after Popplewell J.'s judgment. This is a "device" to avoid the effect of the European Court's judgment.

The respondents say that what the interveners did was no more than to "comply with the Directive in the light of the ruling of the Court of Justice" that examination and certification by officials of the TRNC were not acceptable. The validity of the Turkish certification cannot in any event be questioned in these proceedings.

Contrary to the appellants' submissions I do not consider that the interveners can be penalised for not raising before the European Court of Justice in the earlier case the question whether it would be lawful to route goods in the way they did. Until they had the ruling of the European Court they did not know for certain that the certificates issued by TRNC officials were insufficient. I do not see there is any question of an abuse of process of the court for this matter to have been left until after that ruling. Nor can the interveners be prevented from changing their arrangements so as to comply with the judgment of the European Court in the first reference so long as they do it lawfully.

There are, on the other hand, cases where the European Court has accepted that steps taken in order to "circumvent" one legal rule are not to be allowed (see e.g. TVIO SA v. Commissariaat Voor de Media (Case C- 23/93) [1994] ECR I-4795; see also Reg. v. H.M. Treasury and Commissioners of Inland Revenue, Ex parte Daily Mail and General Trust Plc. (Case 81/87) [1988] E.C.R. 5483). Those cases are different from the present but whether it is lawful to send the fruits to Turkey to obtain another phytosanitary certificate, rather than a re-forwarding certificate, in order to avoid the difficulty that TRNC certificates are unacceptable, is what this case is all about. It may be that this issue will not arise if the appellants succeed on the first or the second issue. But I do not think that it can be said that the appellants' contention that what happened here is unacceptable under Community law, as a way of avoiding the court's earlier judgment in Anastasiou, is unarguable. That does not in any way involve seeking to go behind the Turkish Certificate contrary to what was said in Aksionairnoye Obschestvo A.M. Luther v. James Sagor & Co. [1921] 3 K.B. 532.

It seems to me that this point has to be decided if the appellants fail on the first and the second issues and the three issues are in any event so interlinked that I would refer a question on this point also. If the European Court takes the view that this is a distinct point on which the appellants can succeed in Community law it will have been important to make the reference. If it takes the view that the other points decide the case or that a lawful rather than unlawful procedure ("device") has been adopted it will be able to say so without the reference being much extended.

In any event I do not consider that this is a case when no reference should be made because there has already been a reference. The issues are not the same. I would accordingly refer the following questions to the European Court in the light of written proposals and submissions made by the three parties since the hearing before your Lordships.

1. Under article 12(1)(b) of Council Directive 77/93/EEC of 21 December 1976 on protective measures against the introduction into the Member States of organisms harmful to plants or plant products as amended, ("the Directive") is a Member State entitled to accept (and if so in what circumstances and subject to what conditions) the introduction into its territories of plants as defined in the Directive ("plants") originating in non-Member countries and listed in Annex V, Part B of the Directive where those plants are accompanied only by a phytosanitary certificate issued by a Non-Member country from which the plants have been transported to the Community and not by a phytosanitary certificate issued by the non-Member country of origin?

2. Does the answer to Question 1 differ, and if so how, if the relevant plants are subject to special requirements laid down in Annex IV, Part A, Section 1 of the Directive which can be fulfilled in non-Member countries other than that of origin within the meaning of Article 9(1) of the Directive?

3. Is the Judgment of the Court of Justice in Case C-432/92 Anastasiou [1994] ECR I-3087 to be interpreted and applied so as to preclude the national authorities of a Member State from permitting the importation of citrus fruits originating in the part of Cyprus to the north of the United Nations Buffer Zone when they are accompanied by a phytosanitary certificate which has been issued by the authorities of another non-Member country from which those citrus fruits have been transported to the Community.

5. Are the answers to Questions 1 and 2 different where the relevant plants were submitted for the certification in a non-Member Country other than that of origin, not for any plant health reason, but so as not to have to obtain a phytosanitary certificate from the authorities empowered to do so in the country of origin?

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley. For the reasons he gives I would also make the order he proposes.

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Slynn of Hadley. I agree with it, and for the reasons which he gives I would make the order which he proposes.

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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Minister of Agriculture, Fisheries and Food, Ex parte Anastasiou (Pissouri) Ltd and Others, R v. [1998] UKHL 21 (20th May, 1998) URL: http://www.bailii.org/uk/cases/UKHL/1998/21.html Cite as: [1998] UKHL 21

United Kingdom House of Lords Decisions

Minister of Agriculture, Fisheries and Food, Ex parte Anastasiou (Pissouri) Ltd and Others, R v. [1998] UKHL 21 (20th May, 1998)