61977C0052
OPINION OF MR ADVOCATE-GENERAL WARNER
DELIVERED ON 9 NOVEMBER 1977
My Lords,
This case comes before the Court by way of a reference for a preliminary ruling by the Tribunale of Saluzzo. The plaintiff in the proceedings before that Court is Mr Leonce Cayrol, who carries on business as an importer and exporter of fruit and vegetables at Bélarga, in the Département of the Hérault, in France. The defendant is Rivoira Giovanni & Figli s.n.c, a firm which carries on a similar business at Verzuolo in Italy. The events leading up to the litigation between them, and indeed the nature of that litigation, are, as was pointed out to us by Counsel for the Defendant, reminiscent of those in Case 22/76 Import Gadgets v LAMP [1976] ECR 1371.
In December 1970 and again in December 1971 the defendant imported into Italy a quantity of Spanish table grapes. In so doing the defendant complied in Italy with the necessary import formalities and paid the appropriate duty under the Common Customs Tariff. The defendant sorted the grapes, eliminating those of defective quality, re-packed them, and affixed to them the mark of the Italian Istituto Nazionale per il Commercio Estero (the ‘ICE’). It resold a total of 186865 kgs of the grapes to the plaintiff, who imported them into France. On their importation into France, the grapes were accompanied by an ICE certificate. The plaintiff declared them to the French Customs as being of Italian origin. In August 1972, however, as the result of enquiries made at his premises, the French Customs discovered their true origin.
That same month, whether by coincidence or otherwise, the Italian police investigated the affairs of the defendant firm, with the result that three members of that firm were prosecuted before the Pretore of Saluzzo for putting an Italian national mark on Spanish grapes. That prosecution however failed. On 19 February 1974 the Pretore dismissed the charge, holding that the processes (sorting and packing) applied by the defendant to the grapes in Italy were sufficient to make them an Italian product, by virtue of Article 5 of Council Regulation (EEC) No 802/68 on the common definition of the concept of the origin of goods. In this the Pretore was in my opinion mistaken — consider Case 49/76 Gesellschaft für Überseehandel mbH v Handelskammer Hamburg [1977] ECR 41. The Pretore further held that, in any event, the ICE mark was an indication of quality and not of origin. In that too he was, as a matter of Community law, to some extent mistaken, as I shall in due course show.
The plaintiff, the defendant firm and the three members of that firm were also prosecuted by the French customs authorities before the Tribunal de Grande Instance of Montpellier on the basis that the importation of Spanish grapes into France was at the time subject to a quota which had been exhausted, so that such importation was prohibited, and that they had evaded that prohibition by giving a wrong indication of the origin of the grapes. On 26 January 1976 the Tribunal found them guilty of having imported prohibited goods by means of a false declaration as to their origin and (inter alia) fined them FF 532435, the value of the grapes, in lieu of forfeiture, plus a further FF 1064870, stated in the Judgment to be four times the value of the grapes though it is, I think only twice.
It appears that, of the accused in the proceedings before the Tribunal de Grande Instance, only the plaintiff appeared and was represented. The Judgment of this Court in Case 41/76 Donckerwoleke v Procureur de la République [1967] ECR 1921 had not of course then been delivered, and the only defence put forward on behalf of the plaintiff before the Tribunal de Grande Instance was that, by virtue of Article 5 of Regulation No 802/68, the grapes should be regarded as having been of Italian origin. The Tribunal, unlike the Pretore of Saluzzo, rejected that contention.
Following his conviction, the plaintiff reached a settlement with the French customs authorities, under which he agreed to pay a reduced fine of 175000. He then brought the present action before the Tribunale of Saluzzo in which he claims damages against the defendant, on the ground that it was the latter's use of the ICE mark and certificate that led to his troubles. By way of defence to the action, points are taken on behalf of the defendant as to whether France was entitled at the material time to restrict imports of Spanish grapes, or at all events to restrict imports of such grapes in free circulation in Italy, and as to the sanctions that a French court could properly impose on an importer for giving wrong information as to the origin of such grapes. The questions referred to this Court by the Tribunale reflect those points.
I mentioned that the defendant firm and its members had been convicted before the Tribunal de Grande Instance of Montpellier in their absence. This, it seems, was because they had not been notified of the proceedings before the Tribunal. Upon being notified of its Judgment they applied to have it set aside, with the result, so we were told at the hearing, that the case against them is to be re-heard on the 18th of next month. Thus, for them, the Judgment of this Court in the present case will be of importance not only in the Italian civil proceedings but also in the French criminal proceedings.
The first point to be considered is whether France was entitled in December 1970 and December 1971 to prohibit imports of Spanish grapes. As to this two Community acts are relevant, namely:
(1)
Council Regulation (EEC) No 2513/69 of 9 December 1969 on the coordination and unification of the rules relating to imports of fruit and vegetables applied by each Member State with regard to third countries (now superseded by Council Regulation (EEC) No 1035/72 of 18 May 1972, which is a consolidating Regulation on the common organization of the market in fruit and vegetables); and
(2)
the Agreement between the Community and Spain signed at Luxembourg on 29 June 1970, which is annexed to Council Regulation (EEC) No 1524/70 of 20 July 1970, and came into force on 1 October 1970.
Article 1 of Regulation No 2513/69, so far as relevant, prohibited the application of any quantitative restriction or measure having equivalent effect on imports from third countries of most fruit and vegetables, but excepted from that prohibition certain products, listed in an Annex, for the periods there specified. Those products included table grapes for the period 1 July — 31 January. The exception was itself subject to a proviso that Member States should apply to such products no quantitative restrictions or measures having equivalent effect other than those which they applied during the year preceding 1 January 1970, nor should they make such measures more restrictive. Member States fulfilling those conditions and proposing to avail themselves of the exception were to notify the Commission thereof before the beginning of each relevant year. Under this provision, France notified, in respect of each of the years 1970 and 1971, that it proposed to impose, in respect of Spanish table grapes, a quota of FF 5 million for the period mid-November to 31 January. Such quotas had, I understand, previously been imposed, in conformity with a bilateral Agreement between France and Spain, in order to protect French growers of late varieties of grapes.
Under Article 2 (1) of the Agreement between the Community and Spain, the importation of Spanish products into the Community is governed by the provisions of Annex I to the Agreement. Article 1 of that Annex provides so far as material:
‘Imports into the Community of products originating in Spain which are covered by the provisions of this Annex … shall be admitted without quantitative restrictions.’
In the main, the subsequent provisions of the Annex provide for reductions, in respect of specified products, in the duties prescribed by the Common Customs Tariff, in many cases within an annual Community tariff quota. In the case of two kinds of product, both listed in Article 11 of the Annex, namely tomatoes and fresh grapes, the reduction provided for (50 % in each case) is to be made only during a particular period. In the case of tomatoes that period is (in effect) the months of January and February, in the case of grapes it is those of January, February and March. The question is whether Article 1 of the Annex is (as the Commission contends) to be interpreted on the footing that those products are ‘covered by the provisions of’ the Annex only during those periods respectively or whether on the contrary (as the defendant contends) the mere fact that a product is mentioned anywhere in the Annex, for any purpose, means that it is ‘covered by’ those provisions. If the Commission is right Member States remained, subject to the provisions of Regulation No 2513/69, entitled to impose quantitative restrictions on imports of Spanish grapes during the period April — December (both inclusive) in any year, whereas if the defendant is right, they were precluded from imposing any quantitative restrictions on imports of such grapes at any time whatever after 1 October 1970.
Your Lordships have read and heard the powerful arguments put forward in support of the defendant's contention, and I need not rehearse them. I should, I think, for my part have been inclined to accept them, had it not been for the point made on behalf of the Commission that the interpretation of the Agreement thus urged upon the Court on behalf of the defendant is inconsistent with the interpretation actually given to it in practice by the parties to it.
We were told by the Commission that France was not the only Member State to have imposed quantitative restrictions on imports of Spanish grapes. Belgium and Luxembourg have done so too. In order to protect the Belgian producers of hothouse grapes (in the Overijse area), the importation of Spanish grapes into the territory of the Belgo-Luxembourg Economic Union is prohibited from July to December (inclusive) in every year. That prohibition, unlike the French quotas, has been bolstered by successive Decisions of the Commission under Article 115 of the Treaty, authorizing Belgium and Luxembourg “not to apply Community treatment” to Spanish grapes in free circulation in other Member States. (The Decisions in question are listed in the Commission's written Observations, at p. 11). It appears that there has never been any complaint or protest by the Spanish Government about any of those measures. Moreover the Commission has annexed to its written Observations a copy of a “Note Verbale”, dated 16 March 1972, addressed to the Commission by the Spanish Mission to the European Communities which evinces the Spanish Government's acceptance of the fact that the Agreement does not have the effect contended for by the defendant.
In that connexion the Commission referred us to Article 31 of the Convention on the Law of Treaties signed at Vienna on 23 May 1969, which provides:
“1.   A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context.
2.   …
3.   There shall be taken into account together with the context:
(a)
…
(b)
any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
…”
The Commission concedes of course that that Convention is not yet in force, that it has been signed by only five Member States of the Community (Denmark, the Federal Republic of Germany, Italy, Luxembourg and the United Kingdom) and ratified so far by only three of them; and, moreover, that, in terms, it is applicable only to treaties between States. Nonetheless, having regard to its genesis, the Convention can be taken to represent “the better view” as to what the generally accepted rules of International Law are on the topic. Indeed that that is so was not questioned on behalf of the defendant. Counsel for the defendant confined themselves, in that respect, to saying that paragraph 3 (b) of Article 31 could only be invoked where there was an ambiguity in the treaty in question. I do not for my part think that that is correct (see the discussion of the point in an article by F. G. Jacobs “Varieties of Approach to Treaty Interpretation: with special reference to the Draft Convention on the Law of Treaties before the Vienna Diplomatic Conference”, in the International and Comparative Law Quarterly, April 1969, p. 318 et seq.). But in any case I think that Article 1 of Annex I to the Agreement here in question is ambiguous. Counsel for the defendant also submitted that, for a number of reasons, the evidence adduced by the Commission, and in particular the Note Verbale of 16 March 1972, did not reliably and convincingly establish the attitude of the Spanish Government. But I think it did.
So, in my opinion, France could lawfully, in December 1970 and December 1971, enforce its quota on imports of table grapes from Spain.
But of course we are here concerned not with imports into France from Spain, but with imports of grapes, albeit grapes of Spanish origin, which were in free circulation in Italy. As to that it is, I think, necessary to reassert certain principles that have been expounded by the Court more than once, and in particular in the Donckerwolcke case.
By virtue of Article 9 of the Treaty, the Community is based upon a customs union covering all trade in goods between Member States, and the provisions adopted for the liberalization of intra-Community trade apply both to products originating in Member States and to products originating in third countries that are in free circulation in any Member State (the latter being defined by Article 10). The result of that assimilation is that the provisions of Article 30 concerning the elimination of quantitative restrictions and all measures having equivalent effect are, as a rule, applicable without distinction to products originating in the Community and to products of non-Community origin in free circulation in a Member State.
The assimilation to products originating in the Community of products “in free circulation” originating outside it can, however, only take full effect if the latter are subject to the same conditions as to importation in all Member States. It is one of the purposes of Article 113 of the Treaty to secure that uniformity, by means of the establishment of a common commercial policy. The fact that, despite the expiry of the transitional period, the establishment of that common policy has not yet been fully achieved, i.e. that the importation of certain kinds of goods from certain third countries is not yet subject to the same conditions in all Member States, results in the possibility of deflections of trade (as, in this case, the importation of Spanish grapes into France via Italy). In order to avoid such results, Article 115 gives the Commission power to “recommend the methods for the requisite cooperation between Member States” and, failing this, power to authorize a Member State to take protective measures, particularly in the form of derogation from the principle of free circulation within the Community of products originating in a third country that are in free circulation in any Member State. In the absence however of a specific recommendation or authorization by the Commission under Article 115, a Member State is not entitled to derogate from that principle.
Thus, in my opinion, France, which never made any application to the Commission under Article 115, let alone received any recommendation or authorization from the Commission under that Article, in respect of Spanish grapes, was not entitled to prohibit the importation of such grapes from Italy if they were in free circulation there. To say that is not to say, however, that the French customs authorities were entirely precluded from concerning themselves with the origin of table grapes imported into France from another Member State, or that the French Courts were precluded from punishing those who deliberately or recklessly misled the Customs as to the origin of such grapes.
In the first place a Member State which, consistently with Community law, temporarily retains a distinct policy as to imports of a particular kind of product from a particular third country (as France did, at least in 1970 and 1971, in relation to Spanish grapes) is entitled, within limits, to retain “monitoring measures” in relation to trade in that product. Those limits were clearly laid down by the Court in the Donckerwolcke case, and I discerned no disagreement about them as between the Commission and the defendant (on whose behalfs only Observations were submitted in the present case).
On behalf of the defendant it was strenuously argued that the conclusion of the Agreement between the Community and Spain amounted to the adoption by the Member States of a common policy on imports from Spain, with the result that Article 115 could no longer be invoked in relation to goods of Spanish origin. The implication was, as I understood the argument, that national monitoring measures were no longer permissible in relation to such goods. It is of course, as I said in Case 29/75 Kaufhof v Commission [1967] ECR 431, at p. 448, an unexceptionable proposition that there is no room for the continued application of Article 115 in any sphere of trade where a common policy has been adopted. But the conclusion by the Community of a commercial Agreement with a third country that still leaves open the possibility for individual Member States to subject imports from that country of particular products to different conditions cannot constitute the adoption of a common policy, in the relevant sense, in relation to those products.
So I am of the opinion that the French customs authorities and the French Courts were, in 1970 and 1971, entitled to enforce French monitoring measures in respect of table grapes, within the limits laid down in the Donckerwolcke case. As to those limits, I need do no more than quote from the Judgment. After defining the context in which such measures might be retained, the Court said (in paragraphs 33 — 39 of the Judgment):
“Within the context thus defined the Member States are not prevented from requiring from an importer a declaration concerning the actual origin of the goods in question even in the case of goods put into free circulation in another Member State and covered by a Community movement certificate.
In these circumstances it may be admitted that knowledge of that origin is necessary both for the Member State concerned, so that it may determine the scope of commercial policy measures which it is authorized to adopt pursuant to the Treaty, and for the Commission, for the purpose of exercising the right of supervision and decision conferred on it by Article 115.
Nevertheless the Member States may not require from the importer more in this respect than an indication of the origin of the products in so far as he knows it or may reasonably be expected to know it.
In addition the fact that the importer did not comply with the obligation to declare the real origin of goods cannot give rise to the application of penalties which are disproportionate taking account of the purely administrative nature of the contravention.
In this respect seizure of the goods or any pecuniary penalty fixed according to the value of the goods would certainly be incompatible with the provisions of the Treaty as being equivalent to an obstacle to the free movement of goods.
In general terms any administrative or penal measure which goes beyond what is strictly necessary for the purposes of enabling the importing Member State to obtain reasonably complete and accurate information on the movement of goods falling within specific measures of commercial policy must be regarded as a measure having an effect equivalent to a quantitative restriction prohibited by the Treaty.
A fortiori the requirement of an import licence for the introduction into a Member State of goods put into free circulation in another Member State is incompatible with the provisions of the Treaty in so far as the goods are not the subject of a derogation properly authorized by the Commission by virtue of the second sentence of the first paragraph of Article 115”.
A difference between this case and the Donckerwolcke case is that some of the importations into France in this case, namely those that occurred in December 1971, occurred after the entry into force of Commission Decision No 71/202/ EEC of 12 May 1971 (OJ L 121 of 3. 6. 1971) “empowering Member States to take interim protective measures with regard to the importation of certain products originating in third countries and put into free circulation in other Member States”. Article 1 of that Decision contains the following passages:
“1.   Member States are hereby empowered to make the importation of products originating in third countries and put into free circulation in other Member States subject to the granting of an import authorization where:
—
the importation into the Member State in question of such products directly from the third country concerned is subject, in conformity with the Treaty, to quantitative restrictions …; and
—
deflection of trade is to be feared because of divergence between these measures and the measures of commercial policy applied in other Member States.
…
2.   A Member State may require an applicant for an import authorization to supply all relevant information concerning the description of the product, its origin and price, and the quantity or value of goods which it is proposed to import, and also information concerning the free circulation of the product in another Member State.”
Those provisions, on the face of them, are inconsistent with the Treaty as interpreted by the Court in the Donckerwolcke case and, indeed, as Mr Advocate-General Capotorti pointed out in that case [1967] ECR at pp. 1948 — 1949], with the earlier Judgment of the Court in Cases 51 to 54/71 International Fruit Company NV v Produktschap voor Groenten en Fruit [1971] 2 ECR 1107. I respectfully agree with Mr Advocate-General Capotorti that, to the extent that the Decision of the Commission is inconsistent with those Judgments of the Court, it cannot be relied upon. In particular a Member State may not resort to “import authorizations” for imports from another Member State when no specific recommendation or authorization by the Commission under Article 115 is in force.
As respects trade in fruit and vegetables there is another purpose for which Member States are empowered, and indeed required, to concern themselves with the origin of goods imported from other Member States, namely quality control.
As I mentioned earlier, Regulation No 1035/72 consolidated the previous legislation of the Council on the common organization of the market in fruit and vegetables. But, since we are here concerned with events that occurred before the adoption of that Regulation, I must refer to the previous legislation.
It began with Council Regulation No 23 of 4 April 1962 (OJ, Special Edition 1959-1962, p. 97) which initiated the progressive establishment of that organization. That Regulation provided, by Article 2 (1), for common quality standards to be laid down for products within that organization and, by Article 2 (2), that:
“Products to which quality standards apply shall be accepted for trade between Member States only if they conform to these quality standards. They shall be accepted for import from third countries only if they conform to the said quality standards or to standards that are at least equivalent. The Commission shall take the necessary steps to give effect to this paragraph.”
Article 3 (1) provided that the quality standards should be gradually applied to fruit and vegetables offered for sale on the home market of the producer Member State, and Article 5 provided that an exporting Member State should submit products intended for export to another Member State to a quality control before they left its territory. Article 5 continued:
“The supervisory body designated by the exporting Member State shall issue for each lot a certificate stating the quality and certifying that the quality and classification of the products correspond at the time of inspection to the quality standards. The certificate shall accompany the goods to their destination.
(2)   The importing Member State may verify, through the competent supervisory body, that the classification of the product coming from another Member State is in accordance with the quality stated on the certificate delivered by the supervisory body of the exporting Member State”.
Article 6 provided, putting it shortly, that detailed rules for the application of Article 5 should be adopted by the “Management Committee procedure”.
Council Regulation No 23 was followed by Commission Regulation No 58, which laid down common quality standards for, among other products, table grapes. These were contained in Annex I/7 to that Regulation. Section I of Annex I/7 defined, by reference to a list, the varieties of grapes to which the standard applied. Section II laid down the actual “Quality Requirements”. Under heading “A. General” it stated: “The purpose of the standard is to define the quality requirements for table grapes at the dispatching stage, after preparation and packaging”. Under heading “C. Classification” it stated in the case of each class that. “In shape, size and colouring the bunches must be typical of the variety, allowing for the district in which they are grown, and have no defects”. Section VI, which was entitled “Marking”, required each package to bear among other particulars “legibly and indelibly marked on the outside” the “District of origin, or national, regional or local trade name”.
The Commission, in the course of a very detailed and interesting account, given in its written Observations, of the procedures that would be applicable to the grapes here in question as they moved from Spain to Italy and thence to France, referred to two Decisions of the Council of the OECD, dated respectively 30 July 1963 and 28 July 1964, copies of which are annexed to its Observations. It is clear that much of the subsequent Community legislation reflects those Decisions. Nonetheless, I do not think it necessary, at all events in this case, to take up Your Lordships' time in analysing their contents, except to say that the first of those decisions prescribed a form of ‘control certificate’ for use under the OECD scheme for the application of international standards for fruit and vegetables.
The Commission also referred to its own Regulation No 80/63/EEC of 31 July 1963 on ‘quality inspection of fruit and vegetables imported from third countries’. Since we are here concerned only with questions arising in relation to importations from Italy into France, I need not trouble Your Lordships with the details of that Regulation either. It is, however, interesting to note that its Annex names as the authorities responsible for inspection in France the ‘Ministère de l'agriculture, Service de la repression des fraudes’ and the ‘Ministère des finances, Direction générale des douanes’, and as the authority so responsible in Italy the ICE.
Council Regulation No 158/66/EEC of 25 October 1966 provided, by Article 1 (1), that products for which quality standards had been established should not be displayed or offered for sale, sold, delivered or marketed in any other manner within the Community unless they conformed to the standards. Exceptions were made to that rule by Article 1 (2) and (3), in particular for ‘products consigned to processing plants’. By Article 4 retailers were required, among other things, to display clearly the information specified in the quality standards as to the origin of products. Article 5 provided that, in order to establish whether products conformed to the provisions of the Regulation, a check should be made by sampling at all marketing stages, and during transport, by the authorities appointed by each Member State. A check should preferably be made prior to dispatch from the production areas when the goods were being packed or loaded. The same Article required each Member State to communicate to the other Member States and to the Commission the names of the authorities that they had appointed to be responsible for such checking. The Court has not been told which authority or authorities were appointed for that purpose in France, and in particular whether they included the Customs. Lastly, Article 8 of the Regulation provided that Member States should take all appropriate measures to penalize infringements of the provisions of the Regulation, and should notify the Commission of such measures.
Regulation No 158/66 was supplemented by two Regulations of the Commission, namely Regulation No 93/67/EEC of 3 May 1967 and Regulation (EEC) No 2638/69 of 24 December 1969 (OJ L 327 of 30. 12. 1969). Article 3 of the former provided inter alia that where items inspected failed to comply with the rules in force ‘the inspector shall, without prejudice to the penalties provided for in Article 8 of Regulation No 158/66/EEC, require them to be brought into conformity with these rules if the goods concerned are for sale within the meaning of Article 1 of Regulation No 158/66/EEC’. Article 1 (1) of Regulation No 2638/69 provided that, prior to the dispatch of any relevant goods from a ‘forwarding area’, the consignor should notify the inspector. (The ‘forwarding areas’ were defined in Annex I to the Regulation and together covered the whole territory of the Community). Articles 1 (3), 2 (1) and 3 provided between them that, where inspection was carried out on dispatch from the forwarding area, a certificate to accompany the goods, in the form shown in Annex II, should be issued by the inspector. The form in Annex II was modelled on the OECD form of ‘control certificate’. It appears to have been such a certificate that was issued by the ICE in respect of each consignment in the present case. Article 5 provided, among other things:
‘Any Member State on whose territory a consignment of goods coming from another Member State is judged not to conform to the regulations in force shall notify that Member State immediately of the irregularity.’
The effect of that legislation can, I think, be summarized as follows:
(1)
The quality standards for table grapes required that each package should be marked with their ‘District of origin, or national, regional or local trade name’. The reference there to their ‘District of origin’ must be, in view of the terms of the classification standards, a reference to the district in which they were grown, in this case somewhere in Spain.
(2)
Primarily, inspection of fruit and vegetables to check their conformity with the quality standards was to take place before their dispatch from the relevant forwarding area, in this case the northernmost such area in Italy, and they were thenceforth to be accompanied by the certificate issued by the inspecting authority for that area, in this case the ICE.
(3)
Spot checks might however be carried out at any marketing stage and during transport. In particular a check could be made at the stage of importation from one Member State into another. Such a check carried out in the importing Member State could however be carried out only by or on behalf of an authority appointed by that State under Article 5 of Regulation No 158/66.
(4)
If, on such a check, the goods were found not to conform to the standards, the inspector could require them to be brought into conformity with them, e.g. by an alteration of classification or of their marks. If this was impossible they must be consigned to a destination for which the standards did not apply, e.g. a processing plant. In addition the importer would be liable to penalties under the measures notified by the Member State concerned under Article 8 of Regulation No 158/66. That Member State was not however authorized to subject him to other penalties or to prohibit the importation of the goods.
(5)
As hardly needs to be said, Member States were not entitled, in administering the legislation, and particularly in imposing penalties, to discriminate as between importers of fruit and vegetables from other Member States and traders in home-grown produce.
I can now turn to the questions referred to the Court by the Tribunale of Saluzzo, which are these:
‘1.
May Article 115 of the EEC Treaty, which permits derogations from the prohibition on quantitative restrictions referred to in Article 30, be relied upon by Member States in connexion with products originating in a third country which are covered by a Community import system pursuant to a commercial agreement concluded by the EEC with the said third country?
2.
Should Article 1 of Annex I to the Agreement between the European Economic Community and Spain referred to in Regulation (EEC) No 1524/70 be interpreted to mean that from the date of the entry into force of the agreement, that is, 1 October 1970, the Member States were no longer empowered to introduce directly (on the basis of bilateral commercial agreements previously concluded with Spain) quantitative restrictions of whatever nature, including import quotas, with regard to products originating in Spain (and in particular those mentioned in Article 11 of Annex I to the Agreement between the EEC and Spain, tariff heading 08.04, fresh table grapes) throughout all the months of the year?
3.
Does the fact that the importation of products in free circulation is made subject to the production of certificates of origin or other means of identifying the origin of the products referred to above constitute a measure having an effect equivalent to a quantitative restriction, prohibited by Article 30 of the Treaty?
4.
If the reply to the question above is in the affirmative: May Member States derogate from the prohibition laid down in Article 30 and require certificates of origin for all goods coming from other Member States (including goods in free circulation) before the date of the adoption by the Commission of an enabling decision under Article 115 of the EEC Treaty?
5.
Do the provisions of Regulation No 58/62 of the Commission of 7 July 1962, laying down common quality standards for certain fruit and vegetables, and in particular Annex I (7) (concerning specification of the district of production or trade name of the product table grapes), which impose obligations solely for the protection of the final consumer, and compliance with which can be established only at the relevant marketing stage, constitute customs measures, that is, measures permitting Member States to render intra-Community trade subject to production at the frontier of documents relating to the origin of products in free circulation coming from other Member States?
6.
In any event, in the case of a failure to comply with the quality standards laid down in the abovementioned Regulation No 58/62, does the fact that a Member State applies to imported products the penal ties prescribed for the infringement of customs legislation and to domestic products the penalties (which are, moreover, lighter) prescribed for the infringement of trade regulations, constitute a measure having equivalent effect prohibited by Article 30?’
I would answer those questions as follows:
(1)
Where a commercial agreement concluded between the EEC and a third country does not exclude the possibility of a particular Member State subjecting imports of a particular kind of goods from that country to measures of commercial policy differing from those applicable in other Member States, Article 115 of the EEC Treaty may, where appropriate, be invoked by that Member State in relation to such goods in free circulation in other Member States.
(2)
Article 1 of Annex I to the Agreement between the EEC and Spain referred to in Regulation (EEC) No 1524/70 does not preclude a Member State from imposing quantitative restrictions on imports from Spain of fresh grapes during the period April — December (both inclusive) in any year.
(3)
and (4) Where measures of commercial policy taken by a Member State in accordance with the Treaty in respect of a particular kind of goods are such that that Member State may be entitled to invoke Article 115 in respect of such goods, that Member State may require from an importer of such goods from another Member State an indication of their origin in so far as he knows it or may reasonably be expected to know it, even where the goods are in free circulation in that other Member State and where no specific authorization under Article 115 has yet been given.
(5)
Regulation (EEC) No 2638/69 required goods to which the quality standards established by Annex I (7) of Regulation No 58 applied to be accompanied, if they had been inspected prior to dispatch, by a certificate of the type thereby prescribed. On importation of the goods from one Member State into another, an inspection of them could be carried out by or on behalf of any authority appointed by the importing Member State under Article 5 of Regulation No 158/66/EEC, to check their conformity with the standards, including the requirement that they should be marked with their district of origin, or national, regional or local trade name. If the goods were found not to conform to the standards, the inspector could require them to be brought into conformity or consigned to a destination for which the standards did not apply.
(6)
In cases of failure to comply with the quality standards, a Member State was entitled and bound to impose such penalties as might be appropriate under the measures referred to in Article 8 of Regulation No 158/66/EEC, and was bound to do so without discriminating between cases relating to products imported from other Member States and those relating to domestic products.