Rewe-Zentralfinanz EgmbH v. Direktor der Landwirtschaftskammer

(Case 4/75)

Before the Court of Justice of the European Communities

ECJ

( The President, Lecourt C.J.; Mertens de Wilmars, Lord

Mackenzie Stuart, Donner, Monaco, Pescatore, Kutscher, Sorensen and

O'Keeffe JJ.) Herr Gerhard Reischl, Advocate General

8 July 1975

On Reference from the Verwaltungsgericht Köln (Administrative Court, Cologne)

under Article 177.

(The Presiding Judge, Judge Kutscheidt; Judges Annecke and Dr. Lingmann; Hon.

Judges Dagmar Von Arnim and Banner.)

24 October 1974 Imports. Non-tariff barriers. Phyto-sanitary inspections. Phyto-sanitary inspections at the frontier which plant products, such as apples, coming from another member-State are subjected to, constitute measures having an effect equivalent to quantitative restrictions under Article 30 EEC. [5] & [9] Imports. Non-tariff barriers. Phyto-sanitary inspections. Protection of health of plants. The additional or stricter measures which may be required under Article 11 of Directive 69/466 in order to control the apple disease San José Scale and prevent it from spreading entitle member-States to make phytosanitary inspections of imported products, if effective measures are taken to prevent the distribution of contaminated domestic products also, and if there is reason to believe, e.g. on the basis of past experience, that there is a risk of a spreading of

the harmful organism if no inspection is made on importation. [9] The Court interpreted Articles 30 and 36 EEC to the effect that phyto-sanitary inspection of imported apples amounts to the equivalent of a quantitative restriction on imports; but that if there is genuine fear of the spread of a contagious fruit disease and if proper measures are taken to prevent its spread via domestic fruit then such inspections may be justified under Article 36. Representation Gert Meyer, legal adviser to the plaintiff firm, for the plaintiff. Martin Seidel for the German Government as amicus curiae. Sven Ziegler and Dieter Oldekop, legal advisers to the E.C. Commission, for the Commission as amicus curiae. *600 The following cases were referred to by the Advocate General in his opinion: 1. Procureur du Roi v. Dassonville (8/74), 11 July 1974: [1974] 2 C.M.L.R. 436, [1974] E.C.R. 837. 2. Officier Van Justitie v. Van Haaster (190/73), 30 October 1974: [1974] 2 C.M.L.R. 521, [1974] E.C.R. 1123. 3. International Fruit Co. NV v. Produktschap voor Groenten en Fruit (No. 2) (51-54/71), 15 December 1971: [1971] E.C.R. 1107. 4. Marimex SpA v. Ministero delle Finanze (29/72), 14 December 1972: [1973] C.M.L.R. 486, 18 Recueil 1309. 5. State v. Sacchi (155/73), 30 April 1974: [1974] 2 C.M.L.R. 177, [1974] E.C.R. 409. 6. Salgoil SpA v. Foreign Trade Ministry of the Italian Republic (13/68), 19 December 1968: [1969] C.M.L.R. 181, [1968] E.C.R. 453. 7. Re Import Duties on Gingerbread: EEC Commission v. Luxembourg and Belgium (2-3/62), 14 December 1962: [1963] C.M.L.R. 199, [1962] E.C.R. 425. The following further cases were referred to by the Verwaltungsgericht: 8. Bundesverfassungsgericht (1 BvR 243/63 & 216/67), 18 October 1967: 22 BVerfGE 293. 9. Bundesverfassungsgericht (2 BvR 225/69), 9 June 1971: [1971] NJW 2122. 10. Bundesverfassungsgericht (2 BvL 52/71), 29 May 1974 (Internationale Handelsgesellschaft mbH v. Einfuhr- & Vorratsstelle für Getreide & Futtermittel): [1974] 2 C.M.L.R. 540, [1974] NJW 1697. 11. NV Algemene Transport- en Expeditie-Onderneming Van Gend en Loos v. Nederlandse Administratie der Belastingen (26/62), 5 February 1963: [1963] C.M.L.R. 105, [1963] E.C.R. 1, 9 Sammlung 1. 12. Molkerei-Zentrale Westfalen-Lippe GmbH v. Hauptzollamt Paderborn (28/67), 3 April 1968: [1968] C.M.L.R. 187, [1968] E.C.R. 143, 14 Sammlung 215. 13. S.A.C.E. v. Italian Ministry of Finance (33/70), 17 December 1970: [1971] C.M.L.R. 123, [1970] E.C.R. 1213, 16 Sammlung 1213.

14. Rewe-Zentralfinanz Egmbh v. Direktor der Landwirtschaftskammer Westfalen-Lippe (39/73), 11 October 1973: [1977] 1 C.M.L.R. 630, [1973] E.C.R. 1039. 15. Franz Grad v. Finanzamt Traunstein (9/70), 6 October 1970: [1971] C.M.L.R. 1, [1970] E.C.R. 825, 16 Sammlung 825. 16. Fink-Frucht GmbH v. Hauptzollamt München-Landsbergerstrasse (27/67), 4 April 1968: [1968] C.M.L.R. 228, [1968] E.C.R. 223, 14 Sammlung 333. TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE *601 Facts This case, which was brought under Article 177 of the EEC Treaty, concerns the concept of 'measures having equivalent effect to quantitative restrictions on imports'. The questions posed by the court making the order for reference-- the Verwaltungsgericht Köln--concern Articles 30 and 36 of the Treaty in relation to the phytosanitary examination provided for by German legislation on the import of certain agricultural products, such as apples. Under the Pflanzenbeschauverordnung (Regulations for plant inspection) certain fruits and vegetables imported into Germany are subject to an official phytosanitary examination when they cross the frontier. By a judgment of 11 October 1973 in Case 39/73, [FN1] the Court of Justice of the European Communities held that the pecuniary charge imposed on such an examination was a 'charge having an effect equivalent to customs duties' within the meaning of the EEC Treaty and prohibited by Articles 9 and 12 thereof. The Bundesverwaltungsgericht followed this decision in a judgment of 8 March 1974. FN1 [1973] E.C.R. 1039. The main action concerns the legality of this examination, considered from the point of view of 'quantitative restrictions on imports' and 'measures having equivalent effect', within the meaning of Articles 30 et seq. of the Treaty. On 29 October 1973 Rewe-Zentralfinanz refused to submit a batch of apples from France to the phytosanitary examination, on the grounds that such examination was prohibited by Article 30 of the Treaty as a measure having equivalent effect to a quantitative restriction on imports. As, in these circumstances, the German customs authorities refused to authorise the importation of the products in dispute and required the carrier to leave the country, Rewe-Zentralfinanz submitted the consignment to the examination in question but, at the same time, lodged an administrative appeal against this refusal on the grounds set out above. The parties submitted the following argument to the Verwaltungsgericht, Köln: For the appellant: The respondent's decision was a measure of like effect to a quantitative import restriction and therefore illegal. Such examination is not permitted even in exceptional cases by Article 36 (1) of the Treaty and is

therefore not 'justified' within the meaning of that Article in view of the likelihood of the pest's spreading into Germany by natural processes from the climatically similar zone of France. Moreover, such examination constitutes an 'arbitrary discrimination' within the meaning of Article 36 (2) of the Treaty, since German-produced apples are subjected only to spot-checks or to quality checks, and since examination of imported *602 apples involves an added financial burden in the form of extra charges by the carrier. The respondent's decision was therefore illegal and/or void and/or should be annulled. For the respondent: Pest-control examination is permissible under Article 36 of the Treaty on the basis of public safety and order, and in order to combat pests which could create a serious threat to national fruit production if they moved beyond the natural obstacles of their area of origin. The International Plant Protection Convention expressly permits the examination on import of particular consignments of plants or plant products. Even if the pests in question could not survive a full year in the Central European climate, even a brief and temporary infestation would be dangerous. Though there had been isolated natural infestations in the Federal Republic, what was sought by examination was to avoid intensification of the risk involved in any spreading of the San José bug, which has hitherto been successfully contained in the South-West of Germany. National fruit-growers are obliged to notify pests under the Pflanzenschutzgesetz [FN2] of 10 May 1968, [FN3] but compulsory examination of national production would not be justified by the likely low degree of success. Apples are specifically exempted from this duty to notify under the Verordnung zur Bekämpfung der San-José-Schildlaus [FN4] of 20 April 1972 [FN5] because of the practical difficulty of ascertaining the location of the plants concerned. Examination is therefore either voluntary and on request, or part of general agreements within the trade. The differential treatment of national and imported products, far from being arbitrary, rather arises from the nature of the situation. FN2 Plant Protection Act. FN3 [1968] 1 BGB 352. FN4 (West German) Regulation on Combating the San José Bug. FN5 [1972] 1 BGB 629. The Verwaltungsgericht then accepted a suggestion put forward by the plaintiff and, by order of 24 October 1974, decided to stay the proceedings and to refer to the Court of Justice under Article 177 of the EEC Treaty the following questions: (1) Do 'quantitative restrictions on imports and all measures having equivalent effect' within the meaning of Article 30 of the EEC Treaty include the obligation to have plant products (here, apples) inspected on import, at the importer's expense, for contamination with certain harmful organisms if refusal to allow the phytosanitary examination means that import of the goods will be prohibited? (2) Is the first sentence of Article 36 of the EEC Treaty to be interpreted in such a

way as to make phytosanitary examinations imposed at the frontier under domestic law to prevent the introduction of San José Scale ' justified' within the meaning of the first sentence of Article 36 of the EEC Treaty even after the issue of theCouncil Directive of 8 December 1969 *603 on control of San José Scale (69/466/EEC, Official Journal, 24 December 1969, XII--1969, No. L. 323/5)? (3) Is the obligatory phytosanitary inspection on the importation of foreign apples 'arbitrary discrimination' within the meaning of the second sentence of Article 36 of the EEC Treaty if apples produced in the Federal Republic of Germany are not subject to a similar requirement of inspection when dispatched within the country?'

JUDGMENT (of the Verwaltungsgericht Köln) [1] The Court regards as necessary a preliminary ruling of the European Court of Justice under Articles 177 (1) (a) and 177 (2) of the EEC Treaty on the questions referred, because the determination of the case depends on how they are answered, and these questions require clarification by the European Court of Justice. [2] This emerges from the following considerations: [3] A. The action initiated by the appellant is admissible as a Fortsetzungsfeststellungsklage [FN6] under section 113 (1) (iv) of the Verwaltungsgerichtsordnung (VwGO) [FN7] of 21 January 1960. [FN8] Under this rule, a court on application gives a declaratory judgment that the administrative act was unlawful if the plaintiff has a legitimate interest in this finding, and the administrative act has already been completed. This provision is also to be applied if the administrative act is already completed before the institution of proceedings. [FN9] FN6 Action for a declaration of illegality after the event. FN7 Rules of Procedure of the Verwaltungsgericht. FN8 [1960] 1 BGB 17. FN9 Cf. Redeker/von Oertzen, Kommentar zur Vwgo, 4th ed. 1971: p. 113, para. 113 et seq. [4] 1. Here, the administrative act--the exclusion of the apples from import--was already completed before the institution of proceedings, by reason of the fact that the appellant had the consignment re-presented to the Pflanzenbeschaudienst [FN10] and examined. FN10 Plant Inspection Service. [5] 2. It cannot be raised as an objection to the admissibility of the Fortsetzungsfestellungsklage [FN11] that the appellant could not have initiated any Anfechtungsklage [FN12] under section 42 (1) of the

Verwaltungsgerichtsordnung (VwGO) [FN13] because the addressee of the adminstrative act was not the appellant company, but its carrier, the firm of Merkelbach. For the appellant company has asserted that it is injured in its rights by the administrative act because, on account of the exclusion of the consignment of apples from import, its right to unhindered use of its property is impaired. [FN14] FN11 Action for a declaration of illegality after the event. FN12 Action challenging an administrative decision. FN13 Rules of Procedure of the Verwaltungsgericht. FN14 Cf. on this point: Eyermann-Fröhler, Kommentar zur Vwgo *604 , 6th ed. 1974: p. 42, para. 94 et seq. [6] 3. Nor is the Fortsetzungsfeststellungsklage inadmissible on the grounds that there have been no preliminary proceedings in accordance with sections 68 et seq. of the VwGO. [FN15] The holding of preliminary proceedings is only a prerequisite [FN16] for a judgment on the facts in an Anfechtungsklage [FN17] or a Verpflichtungsklage. [FN18] FN15 Rules of Procedure of the Verwaltungsgericht. FN16 Cf. Redeker/von Oertzen, op. cit. FN17 Action challenging an administrative decision. FN18 Action to compel the carrying out of an administrative act. [7] 4. The appellant company also has a legitimate interest in a finding that the administrative act was illegal, because, having regard to the view of the law taken by the respondent, there is a danger that it must also in future have apples which are imported from France examined by the plant inspection authorities. [FN19] FN19 Cf. Eyermann-Fröhler, op. Cit.: P. 113, Para. 41 et Seq. [8] B. The action is well-founded even if the obligation as to plant hygiene examination of the apples--with the consequence of exclusion from import if the examination is refused--is not reconcilable with the provisions of Articles 30 and 36 of the EEC Treaty. [9] 1. With the ratification and entry into force of the EEC Treaty, [FN20] there came into being, in accordance with section 24 (1) of the Constitution (GG), an autonomous EEC system of law whose effects extend into the national system of law and which is to be applied by the German courts. This means that, since the

coming into force of the EEC Treaty, the Community law created by it overlaps and supersedes contrary national law. [FN21] FN20 Article 247 of the Treaty; Bekanntmachung of 27 December 1957: [1957] II BGB 1. FN21 Case law of the European Court of Justice: cf. International Fruit Company NV v. Produktschap Voor Groenten en Fruit (No. 2) (51-54/71), 15 December 1971: [1971] 17 Recueil 1107; [1972] NJW 1023; cf. Bundesverfassungsgericht: (1 BvR 243/63 and 216/67), 18 October 1967: 22 BVerfGE 293, at p. 296; (2 BvR 225/69), 9 June 1971 [1971] NJW 2122, at p. 2124; but cf., on the relation between basic rights and community law, also Bundesverfassungsgericht: Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel (2 Bvl 52/72), 29 May 1974: [1974] 2 C.M.L.R. 540; [1974] NJW 1697 et seq. [10] As against this, the respondent cannot invoke the fact that Article VI (1) (c) of the International Plant Protection Convention expressly permits examination of particular consignments of plants and plant products on import. In relation to Community law, this Convention can at most form part of the national law of the Federal Republic of Germany. [FN22] FN22 Cf. Maunz-Dürig-Herzog, Kommentar Zum Grundgesetz, Art. 25, Para. 29. [11] 2. In accordance with Article 8 (1) of the EEC Treaty, the rule contained in Article 30 of the Treaty has direct effect after the expiry of the transitional period on 31 December 1969, that is, not only do these rules bind the contracting parties to the EEC Treaty, but any citizen of the Common Market may assert the unlawfulness of an administrative act on the grounds that it violates Article 30 of the EEC Treaty. To that extent, the citizen possesses a subjective public right. [FN23] FN23 Cf. Graf, der Begriff 'Massnahmen Gleicher Wirkung Wie Mengenmässige Einfuhrbeschränkungen' In dem Ewg- Vertrag (1972), P. 3 F. and P. 16. F. et Seq.; Ehle-Meier, Efg-Warenverkehr, Aussenhandel-Zölle-Subventionen (1971), p. 103 et seq.; Schmitt-Von Sydow, 'Anmerkung Zum Urteil des Eugh Vom 15.12.1971-- Rechtssache 51-54/71,' [1972] NWJ 1023 f.; Ehlermann in Groeben-Boeckh, Handbuch für Europäische Wirtschaft, Part 117, March 1973, prelim. note 4 to Articles 30-36, and note 12 to Article 30; Ulmer, 'Zum Verbot Mittelbarer Einfuhrbeschränkungen Im Ewg-Vertrag,' [1973] AWD 349, footnote 2 et seq. [12] (a) For the rule contained in Article 30 of the Treaty is by its nature calculated to produce direct legal relations between the member-States and individuals subject to their law. [FN24]

FN24 Cf. European Court: NV Algemene Transport- En Expeditieonderneming Van Gend En Loos v. Nederlandse Administratie Der Belastingen (26/62), 5 February 1963: [1963] C.M.L.R. 105; 9 Sammlung 1 et seq., at p. 26; Molkerei-Zentrale Westfalen-Lippe GmbH v. Hauptzollamt Paderborn (28/67), 3 April 1968: [1968] C.M.L.R. 187; 14 Sammlung 215 et seq., at p. 230; Daig, 'Die Rechtsprechung des Eugh zur Unmittelbaren Wirkung Von Ewg-Bestimmungen Auf Die Rechtsbeziehungen Zwischen Mitgliedsstaaten und Gemeinschaftsbürgern,' [1970] EuR 1 et seq., at p. 29; Grabitz, 'Entscheidungen und Rechtlinien Als Unmittelbar Wirksames Gemeinschaftsrecht.' [1971] EuR 1 et seq. and 14 f. [13] (b) It cannot be raised as an objection to the direct effect of Article 30 of the Treaty that the concept of 'measures of like effect' is vague and that the rule can therefore have direct effect only in respect of the prohibition of quantitative restrictions. In the judgment of 19 December 1968, in Case 13/68, [FN25] which was concerned with the direct effect of Articles 31 and 32 (1) of the EEC Treaty, and in the judgment of 17 December 1970, in Case 33/70, [FN26] in which direct effect was accorded as from the end of the period of transition to Article 9, which is comparable with Article 30, the European Court of Justice did not limit direct effect to quotas or import and export duties and taxes and thus did not except the rules from direct applicability in so far as they relate to measures of like effect or taxes of like effect. The fact that these concepts require interpretation [FN27] in no way deprives them of the clarity and certainty necessary for direct effect. [FN28] Nor does the reference in Article 30 of the Treaty to the 'provisions hereinafter contained' detract from the clarity of the rule contained in the Article. For this limitation relates unambiguously to the period of transition and to Articles 36 and 37 of the Treaty. [FN29] FN25 Salgoil SpA v. Foreign Trade Ministry of the Italian Republic (13/68), 19 December 1968: [1969] C.M.L.R. 181, 14 Sammlung 679 *605 et seq. FN26 S.A.C.E. v. Italian Ministry of Finance (33/70), 17 December 1970: [1971] C.M.L.R. 123, 16 Sammlung 1213 et seq. at p. 1225. FN27 As to taxes of like effect to import duties, cf. European Court: Rewezentralfinanz eGmbH v. Direktor Der Landwirtschaftskammer Westfalfn-Lippe (39/73), 11 October 1973: 19 Sammlung 1039. FN28 As to this requirement, cf. European Court: NV Algemene Transport en Expeditieonderneming Van Gend en Loos v. Nederlandse Administraie der Belastingen (26/62), 5 February 1963: Sammlung, loc. cit. at p. 25 f.; Molkerei-Zentrale Westfalen-Lippe GmbH v. Hauptzollamt Paderborn (28/67), 3 April 1968: Sammlung, loc. cit. at p. 230; Franz Grad v. Finanzamt Traunstein (9/70), 6 October 1970: [1971] C.M.L.R. 1; 16 Sammlung 825 et seq.; Daig, Loc. Cit., P. 25; Grabitz, Loc. Cit., P. 17.

FN29 Grabitz, Loc. Cit., P. 16. [14] (c) Nor does the fact that the provision of Article 30 of the Treaty is open to interpretation alone justify the assumption that the member-States and the Community organs possess a discretion in the application of the norm, with the consequence that no direct effect attaches to Article 30 of the Treaty. [FN30] For the provision's openness to interpretation does not alter the fact that no measures by the member-States or the Community organs are needed in order to carry out or implement it. The rule contained in Article 30 of the Treaty--and this is already clear from the wording of the rule: 'are ... prohibited'--rather operates entirely of itself within the scope to be ascertained by interpretation. [FN31] FN30 Cf. European Court: Molkerei-Zentrale Westfalen-Lippe GmbH v. Hauptzollamt Paderborn (28/67), 3 April 1968: Sammlung, loc. cit. at 234; Salgoil SpA v. Foreign Trade Ministry of the Italian Republic (13/68), 19 December 1968: [1969] C.M.L.R. 181; 14 Sammlung 679 et seq.; Daig, Loc. Cit., P. 25 et Seq. FN31 Cf. European Court: Salgoil SpA v. Foreign Trade Ministry of the Italian Republic (13/68), 19 December 1968: Sammlung, loc. cit. at p. 691; Fink-Frucht GmbH v. Hauptzollamt München-Landsbergerstrasse (27/67), 4 April 1968: [1968] C.M.L.R. 228; 14 Sammlung 333 et seq. at p. 346; Daig, Loc. Cit., P. 27 et Seq.; Grabitz, Loc. Cit., P. 17 et Seq. [15] 3. Articles 30 and 36 of the Treaty also apply to trade in agricultural products. [FN32] For according to Article 38 (2) of the Treaty, the rules for the establishment of the Common Market are applicable in so far as there is no provision to the contrary in Articles 39-46 of the Treaty. There is, however, no divergent provision to be found in these rules. FN32 Cf. Ehle-Meier, op. Cit., P. 140; Ehlermann In Groben-Boeckh, op. Cit., Note 13 to Article 36 et Seq.; contra, Wohlfahrt-Everling-Glaesner-Sprung, Die Europäische Wirtschaftsgemeinschaft, 1960: According to Note 1 to Article 36, this rule does not apply to agricultural goods, and according to Note 4 to Article 36, the Pflanzenschutzgesetz (Plant Protection Act) and the Reblausgesetz (Vine Bug Act) remain untouched by the EEC Treaty. [16] C. If then the resolution of the legal dispute is dependent on the interpretation of Articles 30 and 36 of the Treaty, then the reference questions, in view of the great variety of opinions [FN33] advanced on the matter, require clarification by the European Court of Justice. FN33 Cf. Graf, op. Cit., P. 125, WHO Regards Mere Discrimination As A Measure of Like Effect; Seidel, 'der Ewg-Rechtliche Begriff der 'Massnahme Gleicher Wirkung Wie Eine Mengenmässige Beschränkung,' [1967] NJW 2081, at p. 2086, who demands additionally the effect of diminution of imports; Ehle-

Meier, op. Cit., P. 131, WHO Regard the Criterion of Discrimination As Unworkable and Rather Only See As A Measure of Like Effect Measures Which Obstruct or Prevent the Goods from Crossing the Border; Ulmer, Loc. Cit., P. 361, WHO Is Concerned with Whether A State Measure Is Necessary to Achieve An Aim Legitimate In Itself and with the relation between Import-Inhibiting Effect and Aim Pursued; cf. also the Commission Directive of 22 December 1969 ([1970] J.O. L13/29). [17] In this context, in the Court's view, it also matters in any case that the appellant company can only have the plant protection examination carried out at particular border-crossings, that transport of the goods is at least temporarily delayed by the plant protection inspection, that consignments of goods are totally excluded from import in the event of pest infestation, and that the importer must *606 himself bear the costs passed on to him by the carrier for presentation to the Pflanzenschutzdienst. [FN34] FN34 Plant Protection Service. [18] (1) With regard to the second question referred, the Court inclines towards the view that, even after the issuing of the directive referred to, the plant protection measures in question are justified within the meaning of Article 36 (1) of the Treaty even if the plant protection measures mentioned in the directive are implemented in a uniform manner in the member-States. For it could never be excluded that, despite appropriate controls, infested plants or plant products may not be discovered. In the Court's view, the potential dangers from importation of pests justify the plant protection measures permissible under the Pflanzenbeschauverordnung. [FN35] FN35 (West German) Regulation on Plant Inspection. [19] (2) With regard to the third question referred, the Court inclines to the view that the plant protection measures do not constitute an arbitrary discrimination within the meaning of Article 36 (2) of the Treaty. For it must be taken into account that an entirely non-discriminatory plant protection examination is not possible in view of the variety of situations arising in the import of foreign goods and the movement of national goods within the territory of the Federal Republic of Germany. Under these circumstances, it may be meaningful, appropriate and non-discriminatory for foreign apples to be subjected to pest-control examination at the border, but for the plant protection measures in respect of national goods to limit themselves to the area of cultivation. [20] It is true that, under the Verordnung zur Bekämpfung der San-José-Schildlaus, [FN36] the cultivation areas are not to be checked regularly, but that control measures are to be taken only on the basis of corresponding notifications of infestation. But it must be taken into consideration that there is a duty to notify and that breach of that duty to notify attracts a penalty.

FN36 (West German) Regulation on Combating the San José Bug. [21] In the Court's view, there is no counter-argument in the fact that, according to the case law of the European Court of Justice, Article 36 of the Treaty is concerned with a clearly defined special situation which is not suited to being extended in application, [FN37] since what is involved here is merely the interpretation of the criterion 'arbitrary discrimination' and not an extending application of the rule contained in Article 36 of the EEC Treaty. FN37 Cf. Salgoil (13/68): 14 Sammlung 679, 681. [22] This decision to stay and refer is unappealable.

Opinion of the Advocate General (Herr Gerhard Reischl) Any person who wishes to import into the Federal Republic of Germany certain plants or plant products which are or may be *607 carriers of certain harmful organisms must submit them to an official phytosanitary examination at the frontier. This results from the German Regulation of 23 August 1957 on measures for the prevention of the introduction of pathogenic organisms or pests which are dangerous to cultivated plants, known as the regulation on phytosanitary inspection (Pflanzenbeschauverordnung), in the version existing on 11 May 1970. This requirement also applies in particular to the import of apples and is intended, inter alia, to prevent the introduction of San José Scale, a particularly dangerous and persistent pest, the conditions for whose existence are present throughout the whole Community and which has already spread through Italy and France, as well as Southern Germany. The question before us in the present action is whether certain provisions of Community law affect the legality of this requirement, at least as far as concerns imports from other member-States. Rewe, the applicant in the main action which gave rise to this reference, considers this to be the case. In October 1973 Rewe sought to import apples from France into the Federal Republic of Germany. For the batch in question it was able to submit the official French certificate of conformity with the phytosanitary regulations required under section 7 of the Pflanzenbeschauverordnung. When Rewe refused to submit the goods to a phytosanitary examination permission to import was refused by decision of 29 October 1973. It is the legality of this decision which is at issue in the contentious administrative proceedings which were promptly initiated by Rewe. The fact that it later submitted the batch for phytosanitary examination in order to allow the importation to take place is of no further interest to us in this instance. In justification of its point of view that the compulsory phytosanitary examination is unlawful, Rewe relies on the prohibition on measures having effect equivalent to quantitative restrictions on imports contained in the Treaty (Article 30) and in Article 22 of Council Regulation 1035/72 of 18 May 1972 on the common organisation of the market in fruits and vegetables. It considers that the phytosanitary examination prescribed by German law constitutes an obstacle to

imports within the meaning of the above-mentioned provisions and the established case law thereon. It is also unjustified under Article 36 of the Treaty, that is, under the provision that Articles 30 to 34 shall not preclude restrictions on imports justified on the ground of the protection of the health of plants. In fact, examinations such as those carried out in this case are unnecessary, inter alia because the pathogenic organisms controlled are to be found both in France and in Germany and also because such an inspection constitutes arbitrary discrimination within the meaning of the second sentence of Article 36, as homegrown apples are not similarly subject to an examination governed *608 by legislation specifically designed with reference to certain plant diseases. In the light of these grounds of complaint, by order of 24 October 1974, the court hearing the action brought by Rewe stayed the proceedings and referred to the Court of Justice for a preliminary ruling pursuant to Article 177 of the EEC Treaty the following three questions: [The Advocate General repeated the questions, and continued:] I consider that the following reply must be given to these questions:

1. The first question The first question refers in part to 'quantitative restrictions on imports'. However, as in the EEC Treaty quantitative restrictions on imports are synonymous with quotas--as the Commission has pointed out--and as, in this instance, it is clear that no direct quantitative restriction on imports exists, I need give no further explanation of this concept, as the question must be examined solely from the point of view of a 'measure having equivalent effect'. In the light of what has been said on this first point in the proceedings, I do not consider its examination to present any particular difficulties. The judgment in Procureur du Roi v. Dassonville (8/74) [FN38] is of primary importance here. According to this case 'all trading rules enacted by member-States which are capable of hindering directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions'. Similar terms were also used in the Court's judgment in Officier Van Justitie v. Van Haaster (190/73). [FN39] This definition is clearly extremely rigorous and far- reaching, since it does not refer to the actual effects of the measures in question. Moreover, according to another judgment, the extent of the consequences of trading rules of this kind is not decisive. This may be inferred from what was laid down in International Fruit Company NV v. Produktschap voor Groenten en Fruit (No. 2) (51-54/71) [FN40] according to which, in intra-Community trade, the purely formal maintenance in force of a licensing system (toutes licences accordées) constitutes a measure having equivalent effect. Moreover, in this connection there must be taken into account the judgments in which it was emphasised that the basic principle of the Treaty is the abolition of all obstacles to the free movement of goods between the member-States (cf. for example SpA Marimex v. Italian Finance Authorities (29/72) [FN41] and Van Haaster). I can therefore state with certainty *609 that the concept of a 'measure having equivalent effect' also applies in principle to rules which subject each batch of imported plants or plant products--including the

packing and the method of transport used--to an obligatory phytosanitary inspection, even where the importation is not refused. It must not be forgotten that such rules result in certain delays, in particular because they impose the use of certain frontier crossing points, and that they also give rise to expenses which the transporter charges in respect of submitting the products to the plant health authorities. FN38 [1974] E.C.R. 837, [1974] 2 C.M.L.R. 436. FN39 [1974] E.C.R. 1123, [1974] 2 C.M.L.R. 521. FN40 17 Recueil 1107. FN41 18 Recueil 1318, [1973] C.M.L.R. 486. In my opinion, as a result of this finding it is superfluous to consider within the context of the first question Commission Directive 70/50 of 22 December 1969 on the abolition of measures which have an effect equivalent to quantitative restrictions on imports [FN42] and the definitions contained therein, to which the Court has already had recourse in other cases (cf. for example Sacchi (155/73)). [FN43] At all events, the significance of the Directive with regard to the questions which concern us may be left open for the moment, since certain decisive criteria under that Directive--the equal treatment of home-grown and imported products and the requirement that the rules be in proportion to the object pursued--will have to be considered during the examination of Article 36 of the Treaty, that is, in relation to the second and third questions. FN42 [1970] O.J. Spec. Ed. 17. FN43 [1974] E.C.R. 409, [1974] 2 C.M.L.R. 177. Furthermore, my above conclusion clearly demonstrates the indefensible nature of the restrictive point of view of the Federal Government, which maintains that there must be an appreciable impediment to trade and that one could not speak of an obstacle to trade where, as in the present case, the effects of a body of rules are only insignificant. In this connection it must be acknowledged--as the Commission has done--that procedures at the frontier which have no effect on the importation, such as normal inspections by the police or statistical declarations, clearly cannot constitute measures having equivalent effect. For this purpose, however, it is not necessary to resort to a concept which is so difficult to define and, therefore, dangerous, as that of 'noticeableness'. That concept was developed in the case law on competition law, that is, in relation to matters which are governed essentially by private law. On the other hand, as regards the removal of obstacles of a public law nature to the movement of goods, which is governed by other objectives of the Treaty, the case law soon specified, for example, in

relation to certain charges having an effect equivalent to customs duties or as regards the formal maintenance in force of a licensing system--that this subject is governed by strict principles and that there is no room for a margin of discretion such as that advocated by the Federal Government. Moreover, it is beyond doubt that even *610 where such procedures as the phytosanitary inspection at the frontier are carried out during the normal hours of opening and then only in the form of random checks, where, consequently, they do not as a general rule prevent expeditious clearance at widely-separated posts designated for this purpose, it is still difficult for them to be regarded as totally insignificant impediments to importation. Such procedures cannot, therefore, be justified on the ground that the insignificance of their effects renders Article 30 of the EEC Treaty inapplicable, but, at the most--if no recourse is had to the above-mentioned Commission Directive 70/50--with the aid of Article 36 of the EEC Treaty to which the other questions submitted by the Verwaltungsgericht refer.

2. The second question The emphasis in the second question is on whether phytosanitary examinations at the frontier in order to prevent the introduction of San José Scale are justified within the meaning of the first sentence of Article 36 of the EEC Treaty even after the issue of the Council Directive of 8 December 1969 on the control of San José Scale. [FN44] From what was said in the course of the proceedings it has become clear that the consideration of this point must be extended to cover other aspects, in particular--and the wording of Article 36 gives occasion for this--the question of whether this type of examination is justified in principle. FN44 [1969] II O. J. Spec. Ed. 565. In order to consider this wider aspect of the problem the information concerning the parasite in question put before us in the course of the proceedings is clearly of great interest. It seems to be very dangerous; once it is established in a particular place it appears practically impossible to eradicate it completely. The climatic conditions for its propagation exist throughout the whole Community. It has already appeared--to different degrees-- in Italy, France and a limited area of Southern Germany. The danger posed by this organism has also led the European and Mediterranean Plant Protection Organisation, a regional organisation established within the context of the FAO, to fix a zero tolerance level for it and explains the particular concern of the Federal Government, which fears for the security of the large North German nurseries with their considerable economic importance. However, the Commission has rightly pointed out that the damage represented by this parasite generally or in the abstract is not sufficient for the application of Article 36. As the Court of Justice has often stated (cf. for example, Salgoil v. Italian Ministry of Foreign Trade (13/68) [FN45] and SpA Marimex v. Italian Finance Authorities (29/72) [FN46]), the provision in question constitutes an *611 exception and therefore calls for a narrow interpretation even as regards the

concept of measures which are 'justified'. FN45 [1968] E.C.R. 453, [1969] C.M.L.R. 181. FN46 18 Recueil 1318, [1973] C.M.L.R. 486. Phytosanitary measures can therefore only be justified if, without them, the state of health in the member-State in question would be threatened. In other words, there must be a serious risk that the products subject to the inspection may be contaminated. In the present plant protection situation in the Community this risk cannot be excluded a priori as regards the harmful organisms in question, since the legislation in the various member-States on the control and prevention of plant diseases and harmful organisms is still greatly varied. However, the justification of the measures in question calls in addition for the situation to be further defined and distinguished and in practice there is no decisive factor to prevent this. This means that a member-State which takes protective measures against the introduction of harmful organisms must justify the existence of the said measures by taking into account the area of origin, the measures of control adopted there, that is, of the existing rate of infection, as well, where applicable, of seasonal peculiarities which may have an influence on the seriousness of the threat. If such a consideration shows that importations from certain countries which are carried out at certain periods present almost no risk for home-grown plants, it will be difficult to justify on a general level the carrying out of phytosanitary inspections at the frontier on a regular and undiscriminating basis. In this connection it is also interesting to consider--as has been particularly emphasised by the plaintiff in the main action--whether, as is the case in the Federal Republic of Germany, the importation is subject to the production of an official certificate of accordance with the phytosanitary regulations, issued by the exporting country and certifying that the goods are not contaminated and that the regulations of the importing country have also been observed. This fact alone is evidence against the existence of a real danger. However, as the reciprocal recognition of this type of certificate is not yet obligatory within the Community, additional inspections at the frontier cannot be regarded as illegal where there is sufficient evidence for doubting whether such certificates are equally reliable, for example, where it is possible to observe that over a considerable period in a series of cases and in spite of the official certificate the goods imported have not been free of contamination by pathogenic organisms. During the proceedings the question was also raised whether importance must be attached to the fact that under Regulation 1035/72 on the common organisation of the market in fruit and vegetables, the imported product is subject at the frontier to a check on its quality and its marketing class. This question is not simply to be dismissed out of hand, as unjustified, as it is conceivable, since the fruit which carries pathogenic organisms is of *612 lower quality, that such an inspection enables the risk of introducing harmful organisms to be met. In the final analysis I consider that it is difficult to maintain on the basis of this

consideration that additional phytosanitary examinations are superfluous, as the types of inspection mentioned are in fact carried out by different departments and from different points of view, that is, the quality check does not offer the same guarantee of the absence of contamination as does a specialised and thorough phytosanitary examination. Having said this, there finally remains to be examined--and here I come to the heart of the second question--whether, even after the adoption of the Council Directive on the control of San José Scale, phytosanitary inspections carried out at the frontier under national law may still be justified within the meaning of Article 36. As you are aware, the plaintiff in the main action contests this vigorously. It considers that the above-mentioned Council directive has settled this problem uniformly and exhaustively for the whole of the Community. It maintains that this directive lays down the principle of the control of the parasite, without regard to national frontiers, and that an inspection of the trade in host plants and parts of plants may only be carried out at the order of the contaminated areas and the safety zones. Moreover, the structure of the directive clearly shows that the danger created by plant fruits is considered to be smaller, as even the transfer of fruit originating in a contaminated area is not subject to any obligatory examination. It concludes from this that the additional inspections held at the national frontiers must be regarded as contrary to the aims of the directive because they amount to establishing additional principles and that, according to the criteria laid down in this directive they cannot be regarded as necessary. Like the Federal Government and the Commission I consider this point of view to be incorrect. As regards the argument that the Council directive does not prevent national inspections being held at the frontier, it must be pointed out first of all that the directive only lays down minimum measures to control San José Scale and prevent it from spreading. As is shown by Article 11, it expressly allows for the adoption of additional and stricter provisions, even to prevent the spread of the parasite if such provisions are considered to be necessary. The directive thus lays down no uniform system of measures for the control of the organism; it allows different risks of contamination to exist and it is therefore impossible to maintain, for this reason alone, that inspections held at the frontier are in principle incompatible with it. Another important factor is that the directive is clearly confined to internal measures. It does not deal with the question of inspections at the frontier, as is shown by its fourth recital alone, which reads as follows: *613 'Whereas protective measures to prevent the introduction of harmful organisms into individual member-States would only have a limited effect if such organisms were not controlled simultaneously and methodically throughout the Community and were not prevented from spreading'; That this point of view is correct is, moreover, borne out by the fact that as early as 1965 the Commission drew up a proposal for a Council directive on protective measures against the introduction into the member-States of organisms harmful to plants. A document dated January 1973 shows that, at the present stage of

the discussions on this text, the adoption of protective measures against the introduction of harmful organisms into the member-States is still regarded as necessary in principle. The abolition of inspections carried out at the frontier in the recipient State is only planned to take place gradually, when the supervision carried out in the despatching State inspires sufficient confidence, and even in the final version of the regulations it is intended that inspections may still be carried out at the frontier on certain grounds. I can therefore say without hesitation--and with this I shall bring my consideration of the second question to an end--that the justification for the phytosanitary inspections at the frontier cannot be contested by reference to the Council Directive of 8 December 1969 and the expiry of the period for its implementation provided for therein.

3. The third question Finally, the third question concerns the reservation contained in Article 36 of the EEC Treaty by which the restrictions on imports referred to therein shall not constitute a means of arbitrary discrimination. It is therefore necessary to consider whether the phytosanitary inspection of foreign apples held without exception on importation constitutes arbitrary discrimination within the meaning of Article 36, where no similar examination requirement exists in relation to apples produced in the Federal Republic of Germany when they are despatched within that country. In this connection the Federal government argues first of all that, according to the German regulation on the control of San José Scale of 20 April 1972 which was adopted in implementation of the Council directive of 8 December 1969, home-grown products are treated in a comparable manner as, taking everything into account, the marketing of the apples is subject to a similar requirement. It says that by virtue of the requirement of notification which is incumbent upon the owners of plants, the inspection carried out by the plant protection department concerns the source plants and that, where they are needed, the measures of control necessary are taken on the plant itself. On a reasonable view of the question as a whole it cannot be said that the imported products are treated differently nor, therefore, that there is any discrimination. *614 I consider that it has rightly been replied to this that in examining the existence of an alleged discriminatory situation it is not permissible to make such generalised comparison, which would make the inspection difficult and might give rise to infringements of the prohibition on discrimination. Reference must rather be made solely to the ultimate use proposed for the products in question in each case and whether, from this point of view, they bear an equivalent burden. This is clearly shown by the case law developed in relation to Articles 12 and 95 (cf. especially EEC Commission v. Luxembourg and Belgium (2-3/62), [FN47] SpA Marimex v. Italian Finance Authorities). It is difficult to put forward a different rule in relation to the application of Article 36. FN47 Re Import Duties on Gingerbread [1962] E.C.R. 425, [1963] C.M.L.R. 199.

The court making the order for reference was thus quite justified in pointing out that, when they are marketed, home-grown apples are not subject to any supervision corresponding to the inspections at the frontier. As the owners of home-grown fruit are also not subject to any requirement of notification and control, inequality of treatment clearly exists and the only question which may therefore arise is whether, in spite of that, it is not possible to speak of discrimination. If the problem is considered from this point of view it immediately becomes clear that the question of discrimination cannot simply be ruled out--as the plaintiff maintains--where the inspection held at the frontier forms part of a general system of national regulations governing plant protection which applies systematically, on the basis of the same criteria, to all products, that is, where the criteria applied are those developed within the context of the case law on problems involving the law relating to fiscal charges (cf. for example Marimex). That this point of view would be undoubtedly too narrow is shown, for example, by a case in which only imports, to the exclusion of the home-grown products, give rise to a risk of damage, because no contamination exists within the national territory. Thus, as the Commission maintains on the basis of certain expressions used in Article 2 (r) of its Directive of 22 December 1969, the decisive factor can only be whether the different treatment is required by the factual situation. On this point, the considerations put forward by the Federal Government also are certainly of importance. It maintains that within the country the parasite is controlled effectively on the plant itself within the small contaminated area. It considers that it is not necessary to provide for additional inspections when the products are marketed, although section 19 of the German Plant Protection Act (Pflanzenschutzgesetz) in principle allows such examinations to be made where other measures prove insufficient. As, however, in the case of imported products it is impossible to *615 take comparable measures to protect German plants, that is, measures directed to the plant itself, the only solution is to inspect the imported fruits. If the treatment of both imported and homegrown products were to be absolutely identical it would mean that within the country the effective measures of control directed to the plant itself would have to be replaced by less effective controls when the products are marketed, which no one could regard as sensible. I consider that the justification of this argument cannot be doubted. However, like the Commission, I believe that it is not sufficient in itself. It must rather be explained in detail in the manner suggested by the Commission. The compulsory inspection on importation, which is not matched by any internal inspection when the goods are marketed, can in fact only be justified where there is an actual difference in the situation as regards the seriousness of the risk. The decisive factor is therefore how the risk of contamination and of introducing the parasite appears at the time of importation. If a reasonable assessment of this risk by the member-State in question, which clearly, since this is a difficult assessment to make, enjoys a considerable margin of discretion and which must take into account the frequency of the contamination and the effectiveness of the measures of control applied in the area of origin concerned, shows that the

imported products give rise to a greater risk, a phytosanitary inspection at the frontier may be justified, but only in such a case. In view of what has been submitted in the course of the proceedings one cannot escape the impression that at the time in question, as regards imports of apples from France, some justification existed. Ultimately, however, such a finding cannot be made within the context of the present proceedings, that is, in a request for a preliminary ruling under Article 177. It is a matter solely for the court dealing with the main action which will, if appropriate, have to carry out the necessary inquiries on this point. 4. In the light of the foregoing, I suggest that you should give the following answers to the questions referred by the Verwaltungsgericht Köln: (a) The obligation to have plant products inspected on import from other member-States, in order to establish whether they are contaminated with certain harmful organisms, with the consequence that refusal to consent to the phytosanitary examination means that the import of the goods will be prohibited, is calculated, where no corresponding inspections are carried out when domestic products are marketed within the country, to make importation more difficult and costly and must therefore be considered, apart from the exceptions laid down under Community law, as a measure having equivalent effect within the meaning of the EEC Treaty. *616 (b) Such examinations may be justified within the meaning of Article 36 of the EEC Treaty where a serious risk exists of introducing the parasite without such a protective measure, that is to say, where a danger to the state of health of the domestic plant is to be feared; in this connection account must be taken of the area of origin of the goods, the efficiency of the measures of control which are applied there, the reliability of the certificates of conformity with the phytosanitary regulations issued by the country of origin and, where applicable, of the seasonal variations of the risk. They may be justified even after the date by which the member-States were obliged to observe the minimum provisions laid down in the Council Directive of 8 December 1969 on the control of San José Scale. (c) The compulsory phytosanitary inspection of apples of foreign origin which takes place on the importation of this fruit from another member-State does not always constitute a means of arbitrary discrimination within the meaning of Article 36 because apples produced within the importing country are not subject, on despatch, to a similar compulsory inspection. The different treatment is permissible where the protection of the health of plants in a possible area of contamination within the national territory is ensured by adequate effective measures and where, on the basis of a reasonable assessment carried out in the light of the factors set out under (b), it may be assumed that the imported products present a greater risk of contamination and of introducing the parasite. JUDGMENT (of the European Court) [1] By an order of 24 October 1974 received at the Court Registry on 13 January 1975, the Verwaltungsgericht Köln raised under Article 177 of the EEC Treaty

certain questions on the interpretation of Articles 30 and 36 of the Treaty establishing the European Economic Community and concerning the free movement of goods. These questions were raised in the course of an action before that court concerning the permissibility under the EEC Treaty of phytosanitary inspections carried out at the frontier by a member-State on imports of apples from another member-State. [2] The first question enquires whether phytosanitary inspections at the frontier which imports of plant products, such as apples, coming from another member-State are required to undergo must be regarded as measures having an effect equivalent to quantitative restrictions on imports, within the meaning of Article 30 of the EEC Treaty. The second and third questions enquire principally whether such inspections may be justified under Article 36 of the EEC Treaty after the implementation of Council Directive 69/466 of 8 December *617 1969 on the control of San José Scale and whether, particularly as regards the importation of apples, they constitute 'a means of arbitrary discrimination' within the meaning of the said Article 36, on the ground that similar domestic products are not subject to compulsory inspections for the purpose of distribution within the country. As these questions are connected they must be examined together. [3] Article 30 of the Treaty prohibits quantitative restrictions on imports and all measures having equivalent effect between member-States. For the purposes of this prohibition it is enough for the measures in question to be capable of acting as a direct or indirect, real or potential hindrance to imports between member-States. In accordance with Article 2 (2) of Commission Directive 70/50 of 22 December 1969 [FN48] measures having equivalent effect are those which make imports subject to a condition which is required in respect of imported products only or a condition differing from that required for domestic products and more difficult to satisfy. FN48 [1970] J.O. L13/29. [4] It is clear from the questions put that the phytosanitary inspections in question only concern importations of plant products and that similar domestic products, such as apples, are not subject to comparable compulsory examinations for the purpose of distribution. These inspections thus amount to a condition which is required in respect of imported products only, within the meaning of Article 2 (2) of the above-mentioned directive. Moreover, as a result, in particular, of the delays inherent in the inspections and the additional transport costs which the importer may incur thereby, the inspections in question are likely to make importation more difficult or more costly. [5] It follows that phytosanitary inspections at the frontier which plant products, such as apples, coming from another member-State are required to undergo, constitute measures having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty, and are prohibited under that provision subject to the exceptions laid down by Community law. [6] Under the first sentence of Article 36 of the Treaty, the provisions of Articles 30 to 34 are not to preclude restrictions on imports and, therefore, measures

having equivalent effect, which are justified for reasons of protection of the health of plants. Council Directive 69/466/EEC of 8 December 1969 [FN49] on the control of San José Scale, lays down a series of provisions which are common to all the member-States of the Community. The purpose of this Directive is to introduce certain minimum measures common to all the member-States by which certain harmful organisms may be controlled ' simultaneously and methodically' throughout the Community and prevented from spreading. At the same time the Directive, which was adopted under Articles 43 and 100 of the Treaty, forms part of the measures *618 intended to remove obstacles to the free movement of agricultural products within the Common Market. FN49 [1969] J.O. L323/5. [7] Its fourth recital shows, however, that the measures laid down are intended to supplement and not to replace the protective measures taken against the introduction of harmful organisms into each member-State. By authorising those States to adopt such additional or stricter provisions as may be required to control San José Scale or to prevent it from spreading, Article 11 reserves to them the power to maintain such measures in force to the extent necessary. In the light of the current Community rules in this matter, a phytosanitary inspection carried out by a member-State on the importation of plant products constitutes, in principle, one of the restrictions on imports which are justified under the first sentence of Article 36 of the Treaty. [8] However, the restrictions on imports referred to in the first sentence of Article 36 cannot be accepted under the second sentence of that Article if they constitute a means of arbitrary discrimination. The fact that plant products imported from another member-State are subject to a phytosanitary inspection although domestic products are not subject to an equivalent examination when they are despatched within the member-State might constitute arbitrary discrimination within the meaning of the above-mentioned provision. Therefore, the phytosanitary inspection of imported products which are shown to originate in areas other than those referred to in Article 3 of Council Directive 69/466 may constitute an additional or stricter measure which is not justified by Article 11 of that directive and should be regarded as a means of arbitrary discrimination within the meaning of the second sentence of Article 36 of the Treaty. The different treatment of imported and domestic products, based on the need to prevent the spread of the harmful organism could not, however, be regarded as arbitrary discrimination if effective measures are taken in order to prevent the distribution of contaminated domestic products and if there is reason to believe, in particular on the basis of previous experience, that there is a risk of the harmful organism's spreading if no inspection is held on importation. [9] The reply to the questions put must therefore be that a requirement to submit imports of plant products, such as apples, from another member-State to a phytosanitary inspection at the frontier in order to establish whether such products are carriers of certain organisms harmful to plants constitutes a measure having an effect equivalent to quantitative restrictions within the

meaning of Article 30 of the Treaty and is prohibited under that provision, subject to the exceptions laid down in Article 36 of the Treaty. The additional or stricter provisions which may be required under Article 11 of Council Directive 69/466 of 8 December 1969 in order to control San José Scale and prevent it from spreading entitle the member-States to make phytosanitary inspections of imported products *619 if effective measures are taken in order to prevent the distribution of contaminated domestic products and if there is reason to believe, in particular on the basis of previous experience, that there is a risk of the harmful organism's spreading if no inspection is held on importation. Costs [10] The costs incurred by the Federal Republic of Germany and the Commission of the EEC, which both submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision as to costs is a matter for that court. Order On those grounds, THE COURT, in answer to the question referred to it by the Verwaltungsgericht Köln, by order of that court dated 24 October 1974, HEREBY RULES: 1. A requirement to submit imports of plant products, such as apples, from another member-State to a phytosanitary inspection at the frontier in order to establish whether such products are carriers of certain organisms harmful to plants constitutes a measure having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the Treaty and is prohibited under that provision, subject to the exceptions laid down in Article 36 of the Treaty. 2. The additional or stricter provisions which may be required under Article 11 of Council Directive 69/466 of 8 December 1969 in order to control San José Scale and prevent it from spreading entitle the member-States to make phytosanitary inspections of imported products if effective measures are taken in order to prevent the distribution of contaminated domestic products and if there is reason to believe, in particular on the basis of previous experience, that there is a risk of the harmful organism's spreading if no inspection is held on importation.

(c) Sweet & Maxwell Limited [1977] 1 C.M.L.R. 599 END OF DOCUMENT