61976CJ0068_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 68/76
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, SVEN ZIEGLER AND JEAN AMPHOUX, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, MARIO CERVINO, BATIMENT JEAN MONNET, KIRCHBERG,
APPLICANT,
V FRENCH REPUBLIC, REPRESENTED BY NOEL MUSEUX, ACTING AS AGENT, AND BY P . COSTE, ACTING AS ASSISTANT AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES SIDRE AT THE FRENCH EMBASSY, 2 RUE BERTHOLET,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT THE FRENCH REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE EEC TREATY, AND IN PARTICULAR ARTICLE 34 THEREOF, IN THAT, SINCE 25 OCTOBER 1975, IT HAS RENDERED EXPORTS TO THE OTHER MEMBER STATES OF POTATOES UNDER SUBHEADING 07.01 A III ( B ) OF THE COMMON CUSTOMS TARIFF CONDITIONAL UPON SUBMISSION OF AN EXPORT DECLARATION ENDORSED BY THE FONDS D ' ORIENTATION ET DE REGULARISATION DES MARCHES AGRICOLES ( FUND FOR THE GUIDANCE AND STABILIZATION OF AGRICULTURAL MARKETS, HEREINAFTER REFERRED TO AS ' FORMA ' ), THE ISSUE OF SUCH ENDORSEMENTS BEING SUBJECT TO DELAYS,
Grounds
1 BY APPLICATION DATED 16 JULY 1976 SUBMITTED PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 169 OF THE EEC TREATY, THE COMMISSION HAS REQUESTED THE COURT TO DECLARE THAT BY RENDERING EXPORTS TO THE OTHER MEMBER STATES OF POTATOES COVERED BY SUBHEADING 07.01 A III ( B ) OF THE COMMON CUSTOMS TARIFF CONDITIONAL SINCE 25 OCTOBER 1975 UPON SUBMISSION OF AN EXPORT DECLARATION ENDORSED BY THE FONDS D ' ORIENTATION ET DE REGULARISATION DES MARCHES AGRICOLES ( FUND FOR THE GUIDANCE AND STABILIZATION OF AGRICULTURAL MARKETS, HEREINAFTER REFERRED TO AS ' THE FORMA ' ), THE FRENCH REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY AND IN PARTICULAR ARTICLE 34 THEREOF .
2 AS A RESULT OF THE SHARP DECREASE IN THE PRODUCTION OF POTATOES WHICH OCCURRED IN NORTHERN EUROPE IN 1975 THE FRENCH GOVERNMENT, BY A NOTICE PUBLISHED IN THE JOURNAL OFFICIEL DE LA REPUBLIQUE FRANCAISE ON 25 OCTOBER 1975, MADE EXPORTS OF POTATOES, THAT IS TO SAY, POTATOES OTHER THAN NEW POTATOES AND THOSE INTENDED FOR THE MANUFACTURE OF POTATO STARCH, CONDITIONAL UPON SUBMISSION OF THE SAID DECLARATION .
3 IN INFORMATION BULLETINS NOS 702 AND 703 OF 8 AND 15 NOVEMBER 1975, THE FRENCH MINISTRY FOR AGRICULTURE STATED THAT THAT MEASURE WAS INTENDED TO ' RESTRAIN '
AND TO ' STABILIZE '
EXPORTS OF POTATOES AND THAT A QUOTA WOULD BE FIXED EACH WEEK BY THE MINISTRY FOR ECONOMIC AFFAIRS AND FINANCE ' IN RESPECT OF THE GRANTING OF EXPORT APPLICATIONS ' .
4 INFORMATION BULLETIN NO 703 OUTLINED, MORE PARTICULARLY, A SYSTEM OF QUOTAS, THE SIZE OF WHICH WAS TO BE DETERMINED IN RELATION TO MARKET DEVELOPMENTS, PRIORITY BEING GIVEN TO THE NEEDS OF SEVERAL STATES, INCLUDING TWO MEMBER STATES OF THE COMMUNITY .
5 BEFORE ADOPTING THE MEASURE AT ISSUE THE FRENCH REPUBLIC INFORMED THE COMMISSION, BY TELEX MESSAGE, THAT IT INTENDED TO SUBJECT EXPORTS OF POTATOES TO A ' MONITORING '
PROCEDURE, STATING THAT THE ACTION TO BE TAKEN ON COMPLETION OF THE FORMALITIES WOULD BE AUTOMATIC .
6 THE COMMISSION CONSIDERED THAT THE FRENCH MEASURE WAS INTENDED NOT ONLY TO MONITOR SALES AT THE COMMUNITY FRONTIER BUT ALSO TO MONITOR INTRA-COMMUNITY TRADE AND THAT, FURTHERMORE, THE FRENCH REPUBLIC WAS IN FACT INTRODUCING THE MEASURE AS A PROCEDURE FOR AUTHORIZATION AND THE IMPOSITION OF QUOTA RESTRICTIONS, AND THE COMMISSION THEREFORE COMMENCED PROCEEDINGS UNDER ARTICLE 169 OF THE TREATY .
7 IN ITS REPLY TO THE COMMISSION ' S REASONED OPINION, SENT TO THE FRENCH GOVERNMENT ON 24 MARCH 1976, THE LATTER STATED THAT, AS REGARDS EXPORTS TO MEMBER STATES, THE MEASURE WAS NO MORE THAN A MERE STATISTICAL ONE .
8 IN ITS DEFENCE BEFORE THE COURT THE FRENCH REPUBLIC HAS CLAIMED THAT, SINCE IT AMOUNTED TO A STATISTICAL CHECK, THE MEASURE IN QUESTION CANNOT BE SAID TO BE A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON EXPORTS BETWEEN MEMBER STATES WITHIN THE MEANING OF ARTICLE 34 .
9 IT IS CLAIMED THAT THE CONTENT OF THE INFORMATION BULLETINS, WHICH WERE INTENDED FOR ' INTERNAL USE ', THAT IS TO SAY TO ' SATISFY CERTAIN CATEGORIES OF PUBLIC OPINION ', CANNOT TAKE PRECEDENCE OVER THE OFFICIAL ATTITUDE OF THE FRENCH GOVERNMENT WHICH WAS THAT, AS REGARDS INTRA-COMMUNITY TRADE, THE ACTION TO BE TAKEN ON COMPLETION OF THE FORMALITIES WAS TO BE AUTOMATIC .
10 HOWEVER, THESE COMMENTS IN NO WAY ANSWER THE QUESTION OF THE OBJECTIVE SCOPE OF THE MEASURE ADOPTED BY THE FRENCH AUTHORITIES .
11 THERE IS NOTHING IN THE NOTICE TO EXPORTERS AND THE BULLETINS TO INDICATE THAT EXPORTS TO MEMBER STATES WERE TO BE TREATED DIFFERENTLY FROM EXPORTS TO THIRD COUNTRIES .
12 AS REGARDS THE LATTER, THE FRENCH GOVERNMENT DOES NOT CONTEST THAT THE MEASURE AT ISSUE HAD THE OBJECT AND EFFECT OF RESTRAINING EXPORTS .
13 ON THE CONTRARY, THE TITLE OF THE MEASURE AT ISSUE : ' NOTICE TO EXPORTERS TO ALL COUNTRIES OF CERTAIN CATEGORIES OF POTATOES '
COULD NOT ENABLE THOSE CONCERNED TO CONCLUDE THAT ONLY EXPORTS TO THIRD COUNTRIES WOULD BE AFFECTED .
14 AS THE COURT STATED IN ITS JUDGMENT OF 15 DECEMBER 1971, IN JOINED CASES 51 TO 54/71 ( INTERNATIONAL FRUIT COMPANY NV AND OTHERS V PRODUKTSCHAP VOOR GROENTEN EN FRUIT ( 1971 ) ECR 1107 ), APART FROM THE EXCEPTIONS FOR WHICH PROVISION IS MADE BY COMMUNITY LAW ITSELF ARTICLES 30 AND 34 PRECLUDE THE APPLICATION TO INTRA-COMMUNITY TRADE OF A NATIONAL PROVISION WHICH REQUIRES, EVEN PURELY AS A FORMALITY, IMPORT OR EXPORT LICENCES OR ANY OTHER SIMILAR PROCEDURE .
15 ACCORDINGLY, EVEN IF IN CONNEXION WITH INTRA-COMMUNITY TRADE THE FORMA GRANTED ITS ENDORSEMENT WITHOUT DELAY AND FOR ALL QUANTITIES REQUESTED, AND EVEN IF THE OBJECT OF THE MEASURE WAS MERELY TO ASCERTAIN THE INTENTIONS OF EXPORTERS, IT MUST BE HELD TO BE A MEASURE HAVING AN EFFECT EQUIVALENT TO A QUANTITATIVE RESTRICTION ON EXPORTS .
16 INDEED THE IMPOSITION OF ANY SPECIAL EXPORT FORMALITY CONSTITUTES AN OBSTACLE TO TRADE BY THE DELAY WHICH IT INVOLVES AND THE DISSUASIVE EFFECT THAT IT HAS UPON EXPORTERS .
17 IN THE ALTERNATIVE, THE FRENCH REPUBLIC CLAIMS THAT, IN THE ABSENCE OF ANY APPROPRIATE COMMUNITY MEASURES AND IN RESPECT OF AN AGRICULTURAL PRODUCT WHICH IS NOT YET COVERED BY A COMMON ORGANIZATION OF THE MARKET, THE MEMBER STATES MAY ADOPT MEASURES IN DEROGATION FROM THE COMMON RULES, THAT IS TO SAY, THE RULES ON THE FREE MOVEMENT OF GOODS PURSUANT TO ARTICLE 39 ET SEQ . OF THE TREATY, PROVIDED THAT SUCH DEROGATIVE MEASURES ARE OF A CONJUNCTURAL NATURE, ARE PROPORTIONAL TO THE LEGITIMATE OBJECTIVE PURSUED AND ARE SUBJECT TO REVIEW BY THE COURTS .
18 THE FRENCH GOVERNMENT STATES THAT ALTHOUGH ARTICLE 34 PROHIBITS ALL MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS ON EXPORTS THE MEASURE WHICH IT HAS ADOPTED SHOULD NOT BE CONSIDERED SOLELY IN THE LIGHT OF ARTICLE 34 .
19 SINCE POTATOES ARE AGRICULTURAL PRODUCTS, AS REFERRED TO IN ARTICLES 38 TO 46 OF THE TREATY, IT IS CLAIMED THAT THE MEASURE AT ISSUE IS JUSTIFIED PURSUANT TO THE EXCEPTIONS WHICH MAY BE MADE ON THE BASIS OF THOSE ARTICLES TO THE RULES CONCERNING THE FREE MOVEMENT OF GOODS .
20 ARTICLE 38 ( 1 ) PROVIDES THAT THE COMMON MARKET SHALL EXTEND TO AGRICULTURE AND TRADE IN AGRICULTURAL PRODUCTS, WHILE PARAGRAPH ( 2 ) STATES THAT, SAVE AS OTHERWISE PROVIDED IN ARTICLES 39 TO 46, THE RULES LAID DOWN FOR THE ESTABLISHMENT OF THE COMMON MARKET SHALL APPLY TO AGRICULTURAL PRODUCTS .
21 ACCORDINGLY, FOLLOWING THE END OF THE TRANSITIONAL PERIOD, THE PROVISIONS OF ARTICLES 39 TO 46 CANNOT BE RELIED UPON IN JUSTIFICATION OF A UNILATERAL DEROGATION FROM THE REQUIREMENTS OF ARTICLE 34 OF THE TREATY, EVEN IN RESPECT OF AN AGRICULTURAL PRODUCT FOR WHICH NO COMMON ORGANIZATION OF THE MARKET HAS YET BEEN ESTABLISHED .
22 THEREFORE THE ABSENCE OF SUCH AN ORGANIZATION DOES NOT AMOUNT TO A LEGAL VACUUM WHICH THE MEMBER STATES ARE ENTITLED TO FILL, SINCE ARTICLES 39 TO 46 OF THE TREATY REMAIN APPLICABLE .
23 IT IS PRECISELY BECAUSE OF THE TRANSFER OF POWERS TO A COMMUNITY AND THE FUNDAMENTAL PURPOSE OF THAT TRANSFER THAT, FOLLOWING THE END OF THE TRANSITIONAL PERIOD, PROBLEMS SUCH AS THAT WITH WHICH THIS CASE IS CONCERNED MAY BE SOLVED SOLELY BY COMMUNITY MEASURES DRAWN UP IN THE INTERESTS OF ALL PRODUCERS AND CONSUMERS WITHIN THE COMMUNITY .
24 IT MUST, THEREFORE, BE RECOGNIZED THAT BY RENDERING EXPORTS TO THE OTHER MEMBER STATES OF POTATOES COVERED BY SUBHEADING 07.01 A III ( B ) OF THE COMMON CUSTOMS TARIFF CONDITIONAL SINCE 25 OCTOBER 1975 UPON SUBMISSION OF AN EXPORT DECLARATION PREVIOUSLY ENDORSED BY THE FORMA, THE FRENCH REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 34 OF THE EEC TREATY .
Decision on costs
COSTS
25 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
26 THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DECLARES THAT BY RENDERING EXPORTS TO THE OTHER MEMBER STATES OF POTATOES COVERED BY SUBHEADING 07.01 A III ( B ) OF THE COMMON CUSTOMS TARIFF CONDITIONAL SINCE 25 OCTOBER 1975 UPON SUBMISSION OF AN EXPORT DECLARATION PREVIOUSLY ENDORSED BY THE FONDS D ' ORIENTATION ET DE REGULARISATION DES MARCHES AGRICOLES THE FRENCH REPUBLIC HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 34 OF THE EEC TREATY ;
2 . ORDERS THE DEFENDANT TO PAY THE COSTS .