R v The Minister for Agriculture, Fisheries and Food and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE POPPLEWELL |
| Judgment Date | 23 May 1995 |
| Judgment citation (vLex) | [1995] EWHC J0523-13 |
| Date | 23 May 1995 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 1132-92 |
[1995] EWHC J0523-13
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Crown Court List)
Before: Mr Justice Popplewell
CO 1132-92
MR D VAUGHAN QC and MR M CLOUGH (Instructed by Allen & Overy Solicitors, 9 Cheapside, London EC2) appeared on behalf of the Applicants.
MR P ROTH (Instructed by (The Solicitors, Ministry of Agriculture, Fisheries and Food, Whitehall, London SW1) appeared on behalf of the Respondents.
MR R MILLETT (Instructed by Theodore Goddard, 150 Aldersgate Street, London EC1A 4EJ) appeared on behalf of the Interveners.
(As Approved)
Tuesday, 23rd May 1995.
Nothing I say is intended to have any political connotation.
This is an application, in effect, for an injunction against the Ministry of Agriculture, Fisheries and Food whether by himself his servants, agents or otherwise howsoever, to restrain them from allowing into the United Kingdom any citrus fruit or potatoes produced in the part of Cyprus to the North of the United Nations Buffer Zone unless accompanied by certificates issued by the authorities of the Republic of Cyprus namely, EUR 1 Movement Certificates and 2 Phytosanitary Certificates issued under Council Directive 77/93/EEC as amended. I make it clear that in so far as this part of the judgment is concerned, I am concerned with citrus products and phytosanitary certificates.
The background to this case can be quite shortly stated. The Applicants consist of 13 producers and exporters of citrus products from the Republic of Cyprus. Cyprus is presently divided into two parts:
in the north is the Turkish Republic of Northern Cyprus (TRNC) which is not recognised by any country save for Turkey; the remainder is under the control of and governed by the Republic of Cyprus.
The Interveners are two companies, one registered in TRNC and the other in the United Kingdom. They are both substantial importers of citrus fruits. The history of this litigation, again, can be shortly stated. The Applicants sought leave to apply for judicial review against MAFF in June 1992, and the purpose of the application was to prevent MAFF from accepting both EUR 1 Movement Certificates and Phytosanitary Certificates issued by the TRNC or people, in fact, acting on their behalf.
As a result the matter went to Europe, and the European Court decided that citrus fruit imported into the United Kingdom from Cyprus had to have certificates from the Republic of Cyprus, and that certificates issued by the TRNC or on their behalf were not acceptable.
After the judgment of the European Court the matter came back to me on an application by the Interveners that I should refer the matter back to Europe, alternatively, that I should interfere with the judgment, to put it in its broadest sense. I declined to do any of those things and gave a ruling, as a result of which the parties agreed a declaration.
"…that the United Kingdom may not accept in relation to the import of citrus fruits and potatoes from the part of Cyprus to the North of the United Nations Buffer Zone"
I interpose that is TRNC.
"(1) EUR 1 movement certificates; and
(2) phytosanitary certificates issued under Council Directive 77/93/EEC (as amended), other than those issued by the competent authorities of the Republic of Cyprus"
I refused leave to appeal. The Court of Appeal have given leave though the matter has not yet been heard.
I gave that judgment on 11th November. On 15th November the Interveners, no doubt advised as to how they could avoid the consequences of my order, (because it is quite clear that commercially it was likely to have a very serious effect on the growers in the TRNC,) did this: they came to an agreement with a company in Turkey, who I shall call Citex. As I understand it, all the interveners and Citex are substantially the same body, although they are different companies, but if the corporate veil were lifted they would be seen to be the same. What was arranged was that a ship carrying citrus products from TRNC, armed with a certificate from TRNC, would call in at a Turkish port and remain there for a short period of time, something under 24 hours, and thereafter the boat would continue its voyage to the United Kingdom. There were bills of lading consigning goods to Turkey and bills of lading from Turkey.
What happened in Turkey was that there was an inspection and a certificate was issued which showed that the plants or plant products had been inspected according to appropriate procedures and were considered to be free from quarantine, pests and practically free from other pests and that they are considered to conform with the current phytosanitary regulations of the importing country.
It is clear that the goods were not unloaded and were not imported into Turkey in the sense that they passed the customs barrier.
Mr Vaughan cast considerable doubt on the efficacy of that inspection, but on this application it seems impossible for me to go behind that certificate. What is argued is this: that the Turkish authorities had no legal basis upon which to issue that certificate. That is a legitimate criticism. It is not a legitimate criticism that they could not have actually carried out the inspection which they say they did, certainly not in these proceedings.
I indicated during the course of argument that it seemed to me that the issue in this case depended on whether the Turkish authorities, under the Directive, had the power to issue the certificate which they did.
A further argument was addressed to me this morning on the application of the Plant Health (Great Britain) Order 1993 and in particular Regulation 11.
Mr Millett, on behalf of the Interveners, does not accept that it is quite such a simple point as I observed, during the course of argument; namely, whether the Turkish authorities had the right to issue a certificate. He argued that the decision of the European Court and my judgment were simply that imports into the United Kingdom had to be accompanied by a Republic of Cyprus certificate, but did not deal with the question of citrus products coming from Turkey. If the Applicants wanted to challenge that they would have to start fresh proceedings and these proceedings were wholly inappropriate. I will deal with that argument in due course.
The Directive which, in my judgment, effectively governs this case is the Plant Health Directive 77/93/EEC. Article I reads as follows:
"This Directive concerns protective measures against the introduction into the Member States from other Member States or non-member countries of organisms which are harmful to plants or plant products."
There had been, before this Directive, an International Plant Protection Convention, signed in Rome on 6th December 1951, which has been amended from time to time.
In relation to phytosanitary certificates the current article is Article V which reads:
"1. Each contracting party shall make arrangements for the issuance of phytosanitary certificates to accord with the plant protection regulations of other contracting parties, and in conformity with the following provisions:
(a) Inspection shall be carried out and certificates issued only by or under the authority of technically qualified and duly authorized officers and in such circumstances and with such knowledge and information available to those officers that the authorities of importing countries may accept such certificates with confidence as dependable documents.
(b) Each certificate for the export or re-export of plants or plant products shall be as worded in the Annex to this Conviction."
The certificates annexed are similar to the certificates in the instant case. They are similar to the certificates in the Directive.
Article 3 of the Directive says this:
"Member States shall ban the introduction into their territory of the harmful organisms listed in Annex I, Part A."
Annex I, Part A contains a formidable list of insects, mites and nematodes which shall be banned. I do not propose to attempt to set them out. There is a very long list.
Article 3 subparagraph 2 says:
"Member States shall ban the introduction into their territory of the plants and plant products listed in Annex II, Part A…."
Annex II, Part A are also:
"Harmful organisms whose introduction into, and whose spread within, all Member States shall be banned if they are present on certain plants or plant products"
There are two species which might appear to have some relevance, Aleurocanthus, which is number 2, which may affect the plants of citrus, but is not relevant to the fruit, and number 25, Scirtothrips aurantii Faure which may affect the plants of citrus fruit, and there are numbers 23, 24, 26 and 27 which might affect the plant of citrus fruit.
There are other things like bacteria and fungi which may affect the plants.
Article 4:
"Member States shall ban the introduction into their territory of the plants or plant products listed in Annex III, Part A."
I need not set that out.
Article 5:
"Member States shall ban the introduction into their territory of the plants, plant products and other objects listed in Annex IV, Part A, unless the relevant special requirements indicated in that part of the Annex are met."
Annex IV, Part A is dealt with in another article, but it is convenient to mention it now. Annex IV, Part A reads:
"Special requirements which must be laid down...
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