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|Judgments - Regina v. Minister of Agriculture, Fisheries and Food, Ex parte Anastasiou (Pissouri) Limited and Others
Lord Hope of Craighead Lord Hutton
LORD GOFF OF CHIEVELEY
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.
LORD SLYNN OF HADLEY
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:
(b) it made any difference to those answers that (i) exporters in the TRNC could not in practice obtain certificates from the Republic of Cyprus and met a significant impediment in exporting their products through that part of Cyprus controlled by the government of the Republic of Cyprus; (ii) the procedures in the TRNC were as dependable as those in the rest of Cyprus and the standard of plant health in the TRNC was the same as in the rest of Cyprus; (iii) the difficulties were caused by the Turkish community in the north or by officials of the Republic of Cyprus.
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)  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  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.
I would accordingly not accept Mr. Beloff's submissions.
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:
(b) They shall be made on the premises, preferably at the place of production.
(c) They shall be made regularly at appropriate times, at least once a year, and at least by visual observation, without prejudice to the special requirements listed in Annex IV; further action may be taken where this is provided for under paragraph 7."
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.
The heading to Annex V reads as follows:
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.