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

The House of Lords considered whether phytosanitary certificates required by Council Directive 77/93/EEC (the Plant Health Directive) for plants originating outside the Community must be issued by the authorities of the country of origin or may lawfully be issued by a third country through which the consignment is routed. The key legal issues were the correct construction of Articles 6, 7, 8, 9 and 12 of the Directive and the relationship of those provisions to Annex IV Part A and Annex V, Part B. The court held that those questions were not covered by the European Court of Justice's earlier judgment in Case C-432/92 and were not so plain that no reference under Article 177 of the Treaty of Rome was required. It therefore referred specific questions of Community law to the Court of Justice for a preliminary ruling. The House also considered whether the routing of consignments through a third country could amount to an unlawful device to circumvent Community law and concluded that that distinct issue likewise required a reference.

This was an appeal from a decision arising out of earlier judicial review proceedings concerning the admission into the United Kingdom of citrus fruit consignments purportedly accompanied by phytosanitary certificates issued by authorities in the Turkish Republic of Northern Cyprus (TRNC). The European Court of Justice had previously held in Case C-432/92 that movement and phytosanitary certificates issued by authorities other than the competent authorities of the Republic of Cyprus could not be accepted for consignments exported directly from northern Cyprus. Following that judgment Popplewell J. declared that the United Kingdom may not accept EUR1 movement certificates or phytosanitary certificates other than those issued by the competent authorities of the Republic of Cyprus in respect of citrus fruits and potatoes exported from the part of Cyprus north of the UN buffer zone.

After the declaration, interveners began routing consignments via a Turkish port where Turkish phytosanitary certificates were issued without unloading the goods into Turkey. The appellants sought an injunction restraining the Secretary of State from allowing into the United Kingdom any citrus fruit or potatoes produced in northern Cyprus unless accompanied by the specified certificates issued by the competent authorities of the Republic of Cyprus. The Court of Appeal had upheld Popplewell J.'s refusal to grant the injunction for citrus fruits. The House of Lords heard an appeal limited to citrus fruits and phytosanitary certificates.

• Nature of the application: appellate challenge to the Court of Appeal's decision and a request in the proceedings for an injunction restraining importation of citrus fruit not accompanied by Republic of Cyprus-issued certificates.
• Issues framed: (i) whether the Directive requires certificates to be issued by the authorities of the country of origin or permits certification in a third country and if so in what circumstances (Article 12 read with Articles 6–9 and Annexes IV and V); (ii) whether the cooperation principle identified in the earlier ECJ judgment precludes certification by a third country in circumstances where effective cooperation with the country of origin is impossible; (iii) whether routing consignments through a third country to obtain a new phytosanitary certificate can be an unlawful device to circumvent Community law.
• Court’s reasoning: the House analysed the Directive’s structure (distinguishing goods originating in the Community and in third countries), the cross-references between Article 12 and Articles 6–9, and the special requirements in Annex IV Part A. The court concluded that these questions of interpretation were not resolved by the earlier ECJ judgment and were not so obvious as to dispense with a preliminary reference under Article 177. The House therefore formulated and referred five specific questions to the Court of Justice, including questions directed to the effect of routing through a third country and to factual permutations (e.g. whether the goods had been unloaded or customs-cleared in the third country).

The House rejected procedural objections that the appellants’ motion did not arise out of the earlier declaration and held that the substantive issues required a preliminary ruling from the Court of Justice.

This was an appellate hearing in which the House of Lords did not resolve the substantive questions itself but decided that the matters of Community law raised — in particular the interpretation of Articles 6, 7, 8, 9 and 12 of Council Directive 77/93/EEC and the lawfulness of routing consignments through a third country to obtain phytosanitary certificates — were not plainly answered by existing ECJ authority. For those reasons the House made a reference to the Court of Justice under Article 177 of the Treaty of Rome, asking five specific questions. The court rejected the procedural objections to the motion and considered that the question of possible circumvention also required a reference.

High Court (Popplewell J.) made a declaration on 11 November 1994 that the United Kingdom may not accept EUR1 movement certificates or phytosanitary certificates other than those issued by the competent authorities of the Republic of Cyprus for citrus fruits and potatoes exported from the part of Cyprus north of the UN buffer zone. The European Court of Justice previously decided Case C-432/92 (Anastasiou) [1994] ECR I-3087 addressing acceptance of certificates issued by TRNC authorities. The Court of Appeal upheld Popplewell J.'s decision in relation to citrus fruits; the present appeal was to the House of Lords ([1998] UKHL 21), which referred questions to the Court of Justice under Article 177 of the Treaty of Rome.