Opinion of the Advocate General — ECLI:EU:C:1997:346
Date: 1997-07-09
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Fruit and vegetables;Free movement of goods;Measures having equivalent effect;Quantitative restrictions
Procedure: Action for failure to fulfil obligations - successful
Origin: France

summary of the facts submitted by the Commission, which is not contested by the French Government, there are particular periods of the year which are primarily concerned and there are places which are particularly vulnerable where incidents have occurred on several occasions during one and the same year. 46. Since 1993 acts of violence and vandalism have not been directed solely at the means of transport of agricultural products but have extended to the wholesale and retail sector for those products. 47. Further serious incidents of the same type also occurred in 1996 and 1997. 48. Moreover, it is not denied that when such incidents occurred the French police were either not present on the spot, despite the fact that in certain cases the competent authorities had been warned of the imminence of demonstrations by farmers, or did not intervene, even where they far outnumbered the perpetrators of the disturbances. Furthermore, the actions in question were not always rapid, surprise actions by demonstrators who then immediately took flight, since in certain cases the disruption continued for several hours. 49. Furthermore, it is undisputed that a number of acts of vandalism were filmed by television cameras, that the demonstrators' faces were often not covered and that the groups of farmers responsible for the violent demonstrations are known to the police. 50. Notwithstanding this, it is common ground that only a very small number of the persons who participated in those serious breaches of public order has been identified and prosecuted. 51. Thus, as regards the numerous acts of vandalism committed between April and August 1993, the French authorities have been able to cite only a single case of criminal prosecution. 52. In the light of all the foregoing factors, the Court, while not discounting the difficulties faced by the competent authorities in dealing with situations of the type in question in this case, cannot but find that, having regard to the frequency and seriousness of the incidents cited by the Commission, the measures adopted by the French Government were manifestly inadequate to ensure freedom of intra-Community trade in agricultural products on its territory by preventing and effectively dissuading the perpetrators of the offences in question from committing and repeating them. 53. That finding is all the more compelling since the damage and threats to which the Commission refers not only affect the importation into or transit in France of the products directly affected by the violent acts, but are also such as to create a climate of insecurity which has a deterrent effect on trade flows as a whole. 54. The above finding is in no way affected by the French Government's argument that the situation of French farmers was so difficult that there were reasonable grounds for fearing that more determined action by the competent authorities might provoke violent reactions by those concerned, which would lead to still more serious breaches of public order or even to social conflict. 55. Apprehension of internal difficulties cannot justify a failure by a Member State to apply Community law correctly (see, to that effect, Case C-52/95 Commission v France [1995] ECR I-4443, paragraph 38). 56. It is for the Member State concerned, unless it can show that action on its part would have consequences for public order with which it could not cope by using the means at its disposal, to adopt all appropriate measures to guarantee the full scope and effect of Community law so as to ensure its proper implementation in the interests of all economic operators. 57. In the present case the French Government has adduced no concrete evidence proving the existence of a danger to public order with which it could not cope. 58. Moreover, although it is not impossible that the threat of serious disruption to public order may, in appropriate cases, justify non-intervention by the police, that argument can, on any view, be put forward only with respect to a specific incident and not, as in this case, in a general way covering all the incidents cited by the Commission. 59. As regards the fact that the French Republic has assumed responsibility for the losses caused to the victims, this cannot be put forward as an argument by the French Government in order to escape its obligations under Community law. 60. Even though compensation can provide reparation for at least part of the loss or damage sustained by the economic operators concerned, the provision of such compensation does not mean that the Member State has fulfilled its obligations. 61. Nor is it possible to accept the arguments based on the very difficult socio-economic context of the French market in fruit and vegetables after the accession of the Kingdom of Spain. 62. It is settled case-law that economic grounds can never serve as justification for barriers prohibited by Article 30 of the Treaty (see, inter alia, Case 288/83 Commission v Ireland [1985] ECR 1761, paragraph 28). 63. As regards the suggestion by the French Government, in support of those arguments, that the destabilization of the French market for fruit and vegetables was brought about by unfair practices, and even infringements of Community law, by Spanish producers, it must be remembered that a Member State may not unilaterally adopt protective measures or conduct itself in such a way as to obviateany breach by another Member State of rules of Community law (see, to that effect, Case C-5/94 R v MAFF, ex parte Hedley Lomas [1996] ECR I-2553, paragraph 20). 64. This must be so a fortiori in the sphere of the common agricultural policy, where it is for the Community alone to adopt, if necessary, the measures required in order to deal with difficulties which some economic operators may be experiencing, in particular following a new accession. 65. Having regard to all the foregoing considerations, it must be concluded that in the present case the French Government has manifestly and persistently abstained from adopting appropriate and adequate measures to put an end to the acts of vandalism which jeopardize the free movement on its territory of certain agricultural products originating in other Member States and to prevent the recurrence of such acts. 66. Consequently, it must be held that, by failing to adopt all necessary and proportionate measures in order to prevent the free movement of fruit and vegetables from being obstructed by actions by private individuals, the French Government has failed to fulfil its obligations under Article 30, in conjunction with Article 5, of the Treaty and under the common organizations of the markets in agricultural products. Costs 67. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the French Republic has been unsuccessful, it must be ordered to pay the costs. Under Article 69(4) of those rules the Member States and the institutions which have intervened in the case must bear their own costs. On those grounds, THE COURT hereby: 1. Declares that, by failing to adopt all necessary and proportionate measures in order to prevent the free movement of fruit and vegetables from being obstructed by actions by private individuals, the French Republic has failed to fulfil its obligations under Article 30 of the EC Treaty, in conjunction with Article 5 of that Treaty, and under the common organizations of the markets in agricultural products; 2. Orders the French Republic to pay the costs; 3. Orders the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland to bear their own costs. Rodríguez Iglesias Gulmann Ragnemalm Wathelet Schintgen Mancini Moitinho de Almeida Kapteyn Murray Edward Puissochet Hirsch Jann Delivered in open court in Luxembourg on 9 December 1997. R. Grass G.C. Rodríguez Iglesias Registrar President 1: Language of the case: French.