Regina v. Minister of Agriculture, Fisheries and Food, Ex parte Anastasiou (Pissouri) Ltd and Others

A final national court must refer a necessary question of Community law to the European Court of Justice where the answer is not sufficiently clear and existing authority does not resolve it. An earlier reference in the same proceedings does not prevent a further reference on materially different issues.

Questions concerning third-country phytosanitary certification required a reference. They included whether certification must come from the country of origin, the effect of special requirements capable of fulfilment elsewhere, the importance of cooperation with the originating state, and whether routing produce through another country solely to obtain certification constituted an impermissible circumvention.

Citrus fruit grown and dispatched from northern Cyprus could not enter the United Kingdom with phytosanitary certificates issued by officials there. The exporters consequently routed consignments through Turkey, where the fruit remained aboard ship and Turkish authorities issued new certificates.

Popplewell J refused to restrain imports of the citrus fruit under those arrangements, and the Court of Appeal upheld that decision. The producers and exporters from the Republic of Cyprus appealed. The central issues were whether Council Directive 77/93/EEC permitted certification by an intermediate non-member country and whether the arrangements constituted an impermissible circumvention of Community law.

1. Reference made to the European Court of Justice. Lord Slynn of Hadley delivered the leading speech. Lord Goff of Chieveley, Lord Steyn, Lord Hope of Craighead and Lord Hutton agreed with it and with the proposed order.

2. Per Lord Slynn, the application for restraint properly arose from the declaratory relief already granted in the judicial review proceedings. The earlier declaration used the general expression citrus fruit “from” northern Cyprus. That expression was wide enough to include fruit produced there and subsequently routed through Turkey. The new arrangements were adopted in direct response to the declaration, and the substantive question remained whether a certificate from the competent authorities of the Republic of Cyprus was necessary.

3. The proper construction of Council Directive 77/93/EEC was necessary to decide the appeal. Its provisions left a genuine uncertainty over whether fruit originating outside the Community required a phytosanitary certificate from the country of origin or could be certified in an intermediate consignor country. It was also unclear how article 9 affected products subject to special requirements capable of fulfilment away from their place of origin. The answer was not so clear and obvious that a reference could be avoided.

4. The scope of the required cooperation between the importing state and the country of origin also remained unresolved. The earlier European judgment had addressed certificates issued by authorities of an unrecognised entity, but had not determined the position where produce was transported through another recognised non-member country and certified there.

5. The interveners committed no abuse of process merely by failing to propose the Turkish arrangements during the earlier reference. They remained free to alter their arrangements to comply with the earlier judgment, provided that the new procedure was lawful. Nevertheless, Community authority recognised that some steps intended to circumvent a legal rule could be ineffective. Whether this routing and certification arrangement was an impermissible device was arguable and interlinked with the questions of construction.

6. Article 177 of the Treaty of Rome therefore obliged the House to refer five questions covering third-country certification, special requirements, the earlier European judgment, the absence of importation into Turkey, and certification sought solely to avoid obtaining a certificate from the country of origin.

1. House of Lords: Unanimously referred questions of Community law to the European Court of Justice before final determination of the appeal.

2. Court of Appeal: Upheld Popplewell J's refusal to grant restraint concerning citrus fruit.

3. High Court: Popplewell J refused restraint concerning citrus fruit, although he granted relief concerning potatoes. In the earlier stage of the judicial review, he had declared that the United Kingdom could not accept movement or phytosanitary certificates issued by authorities other than the competent authorities of the Republic of Cyprus.