61978CJ0231_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 231/78
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY RICHARD WAINWRIGHT, A MEMBER OF ITS LEGAL SERVICE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
APPLICANT,
V
UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, REPRESENTED BY W . H . GODWIN, ASSISTANT TREASURY SOLICITOR, ACTING AS AGENT, ASSISTED BY LEONARD BROMLEY Q.C . AND P . G . LANGDON-DAVIES, COUNSEL, LONDON, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BRITISH EMBASSY,
DEFENDANT,
AND
REPUBLIC OF FRANCE, REPRESENTED BY GUY LADREIT DE LACHARRIERE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY,
INTERVENER,
Subject of the case
APPLICATION FOR A RULING THAT THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND HAS FAILED TO FULFIL AN OBLIGATION UNDER THE EEC TREATY BY NOT REPEALING OR AMENDING THE PROVISIONS WITH REGARD TO RESTRICTIONS ON THE IMPORTATION OF MAIN-CROP POTATOES,
Grounds
1BY AN APPLICATION LODGED ON 19 OCTOBER 1978, THE COMMISSION OF THE EUROPEAN COMMUNITIES SOUGHT A DECLARATION UNDER ARTICLE 169 OF THE EEC TREATY THAT THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND HAD FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY BY NOT REPEALING OR AMENDING THE PROVISIONS OF ITS NATIONAL LAW WHICH HAVE THE EFFECT OF RESTRICTING IMPORTS OF MAIN-CROP POTATOES BEFORE THE END OF 1977, THE TIME-LIMIT LAID DOWN IN ARTICLE 9 OF THE ACT CONCERNING THE CONDITIONS OF ACCESSION AND THE ADJUSTMENTS TO THE TREATIES, ANNEXED TO THE TREATY OF 22 JANUARY 1972 CONCERNING THE ACCESSION OF THE KINGDOM OF DENMARK, IRELAND AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND TO THE EUROPEAN ECONOMIC COMMUNITY AND TO THE EUROPEAN ATOMIC ENERGY COMMUNITY ( HEREINAFTER REFERRED TO AS THE ACT OF ACCESSION ).
2THE COMMISSION STATES THAT, BEFORE ITS ACCESSION TO THE COMMUNITY, THERE EXISTED IN THE UNITED KINGDOM A NATIONAL ORGANIZATION OF THE MARKET IN POTATOES COMPRISING INTER ALIA A CONTROL ON IMPORTS AND EXPORTS OF MAIN-CROP POTATOES . IN 1977, THE COMMISSION NOTIFIED THE GOVERNMENT OF THE UNITED KINGDOM THAT UNDER ARTICLE 9 ( 2 ) OF THE ACT OF ACCESSION THE RESTRICTIONS ON THE IMPORTATION OF THE SAID PRODUCT HAT TO BE BROUGHT TO AN END . NEVERTHELESS, ON 28 DECEMBER 1977, THE BRITISH MINISTRY OF AGRICULTURE ANNOUNCED THAT THE BAN ON IMPORTS OF POTATOES INTO THE UNITED KINGDOM WOULD CONTINUE UNTIL FURTHER NOTICE .
3ACCORDING TO THE COMMISSION, SINCE THE TRANSITIONAL MEASURE FOR WHICH PROVISION IS MADE IN ARTICLE 60 ( 2 ) OF THE ACT OF ACCESSION EXPIRED, BY VIRTUE OF ARTICLE 9 ( 2 ) OF THAT ACT, AT THE END OF 1977, THE UNITED KINGDOM BY CONTINUING TO PROHIBIT IMPORTS OF POTATOES AFTER THAT DATE HAS FAILED TO FULFIL ITS OBLIGATIONS UNDER ARTICLE 30 OF THE TREATY .
4IN ITS DEFENCE, THE GOVERNMENT OF THE UNITED KINGDOM, SUPPORTED BY THE GOVERNMENT OF THE FRENCH REPUBLIC, INTERVENING IN THE CASE, SUBMITS THAT UNDER ARTICLE 60 ( 2 ) OF THE ACT OF ACCESSION IT IS ENTITLED TO MAINTAIN THE QUANTITATIVE RESTRICTIONS REFERRED TO UNTIL THE IMPLEMENTATION OF A COMMON ORGANIZATION OF THE MARKET FOR POTATOES . SINCE POTATOES ARE NOT YET COVERED BY ANY COMMON ORGANIZATION OF THE MARKET, THE UNITED KINGDOM CAN MAINTAIN ITS NATIONAL ORGANIZATION FOR THAT SECTOR .
5ARTICLE 60 OF THE ACT OF ACCESSION PROVIDES :
' ' 1 . IN RESPECT OF PRODUCTS COVERED, ON THE DATE OF ACCESSION, BY A COMMON ORGANIZATION OF THE MARKET, THE SYSTEM APPLICABLE IN THE COMMUNITY AS ORIGINALLY CONSTITUTED IN RESPECT OF CUSTOMS DUTIES AND CHARGES HAVING EQUIVALENT EFFECT AND QUANTITATIVE RESTRICTIONS AND MEASURES HAVING EQUIVALENT EFFECT SHALL, SUBJECT TO ARTICLES 55 AND 59, APPLY IN THE NEW MEMBER STATES FROM 1 FEBRUARY 1973 .
2 . IN RESPECT OF PRODUCTS NOT COVERED, ON THE DATE OF ACCESSION, BY A COMMON ORGANIZATION OF THE MARKET, THE PROVISIONS OF TITLE 1 CONCERNING THE PROGRESSIVE ABOLITION OF CHARGES HAVING EQUIVALENT EFFECT TO CUSTOMS DUTIES AND OF QUANTITATIVE RESTRICTIONS AND MEASURES HAVING EQUIVALENT EFFECT SHALL NOT APPLY TO THOSE CHARGES, RESTRICTIONS AND MEASURES IF THEY FORM PART OF A NATIONAL MARKET ORGANIZATION ON THE DATE OF ACCESSION .
THIS PROVISION SHALL APPLY ONLY TO THE EXTENT NECESSARY TO ENSURE THE MAINTENANCE OF THE NATIONAL ORGANIZATION AND UNTIL THE COMMON ORGANIZATION OF THE MARKET FOR THESE PRODUCTS IS IMPLEMENTED .
3 . . . . ' ' .
6THAT ARTICLE UNQUESTIONABLY CONSTITUTES A DEROGATION FROM ARTICLE 42, WHICH IS WORDED AS FOLLOWS :
' ' QUANTITATIVE RESTRICTIONS ON IMPORTS AND EXPORTS SHALL, FROM THE DATE OF ACCESSION, BE ABOLISHED BETWEEN THE COMMUNITY AS ORIGINALLY CONSTITUTED AND THE NEW MEMBER STATES AND BETWEEN THE NEW MEMBER STATES THEMSELVES .
MEASURES HAVING EQUIVALENT EFFECT TO SUCH RESTRICTIONS SHALL BE ABOLISHED BY 1 JANUARY 1975 AT THE LATEST ' ' .
7THE PROVISIONS OF ARTICLES 42 AND 60 CITED ABOVE ARE APPLICATIONS OF THE GENERAL RULE LAID DOWN IN ARTICLE 9 OF THE ACT, WHICH PROVIDES :
' ' 1 . IN ORDER TO FACILITATE THE ADJUSTMENT OF THE NEW MEMBER STATES TO THE RULES IN FORCE WITHIN THE COMMUNITIES, THE APPLICATION OF THE ORIGINAL TREATIES AND ACTS ADOPTED BY THE INSTITUTIONS SHALL, AS A TRANSITIONAL MEASURE, BE SUBJECT TO THE DEROGATIONS PROVIDED FOR IN THIS ACT .
2 . SUBJECT TO THE DATES, TIME-LIMITS AND SPECIAL PROVISIONS PROVIDED FOR IN THIS ACT, THE APPLICATION OF THE TRANSITIONAL MEASURES SHALL TERMINATE AT THE END OF 1977 ' ' .
8THE PARTIES DISAGREE OVER THE INTERPRETATION OF ARTICLES 9 AND 60 . THE GOVERNMENTS OF THE UNITED KINGDOM AND THE FRENCH REPUBLIC CONSIDER THAT ARTICLE 60 ( 2 ) CONSTITUTES A SPECIAL PROVISION WITHIN THE MEANING OF ARTICLE 9 ( 2 ), SO THAT THE TIME-LIMIT OF THE END OF 1977 IS INAPPLICABLE IN THIS MATTER . FOR ITS PART, THE COMMISSION TAKES THE VIEW THAT, ALTHOUGH ARTICLE 60 ( 2 ) CONSTITUTES A DEROGATION FROM ARTICLE 42 OF THE ACT, IT CANNOT BE DESIGNATED AS A ' ' SPECIAL PROVISION ' '
WITHIN THE MEANING OF ARTICLE 9 ( 2 ), SO THAT THERE CAN BE NO RESTRICTION ON THE APPLICABILITY OF THE TERMINATING DATE LAID DOWN IN THIS LAST PROVISION . THEREFORE IT IS NECESSARY TO EXAMINE THIS DIFFERENCE OF OPINION .
9ALTHOUGH THE WORDING OF ARTICLE 60 ( 2 ) CONSIDERED IN ISOLATION MAY APPEAR TO BEAR OUT THE INTERPRETATION PROPOSED BY THE GOVERNMENT OF THE UNITED KINGDOM, THAT INTERPRETATION CANNOT BE UPHELD IN THE LIGHT OF THE GENERAL SYSTEM OF THE ACT OF ACCESSION AND OF ITS RELATIONSHIP WITH THE PROVISIONS OF THE EEC TREATY . IT WOULD, MOREOVER, LEAD TO UNACCEPTABLE CONSEQUENCES AS REGARDS THE EQUALITY OF THE MEMBER STATES IN RELATION TO CERTAIN RULES ESSENTIAL FOR THE PROPER FUNCTIONING OF THE COMMON MARKET .
10ARTICLE 2 OF THE ACT OF ACCESSION PROVIDES :
' ' FROM THE DATE OF ACCESSION, THE PROVISIONS OF THE ORIGINAL TREATIES AND THE ACTS ADOPTED BY THE INSTITUTIONS OF THE COMMUNITIES SHALL BE BINDING ON THE NEW MEMBER STATES AND SHALL APPLY IN THOSE STATES UNDER THE CONDITIONS LAID DOWN IN THOSE TREATIES AND IN THIS ACT ' ' .
11THIS PROVISION MAKES IT CLEAR THAT THE INTEGRATION OF THE NEW MEMBER STATES INTO THE COMMUNITY IS THE FUNDAMENTAL OBJECTIVE OF THAT ACT . WITH THIS IN VIEW, ARTICLE 9 ( 1 ) OF THE ACT PROVIDES THAT IT IS ONLY ' ' IN ORDER TO FACILITATE THE ADJUSTMENT OF THE NEW MEMBER STATES TO THE RULES IN FORCE WITHIN THE COMMUNITIES ' '
THAT ' ' THE APPLICATION OF THE ORIGINAL TREATIES AND ACTS ADOPTED BY THE INSTITUTIONS SHALL, AS A TRANSITIONAL MEASURE, BE SUBJECT TO THE DEROGATIONS PROVIDED FOR IN THIS ACT ' ' . THE TRANSITIONAL PERIOD LAID DOWN IN THE TREATY HAD EXPIRED BEFORE ACCESSION AND THE TREATY HAD ALREADY BECOME FULLY OPERATIVE : FOR THE NEW MEMBER STATES THE ACT OF ACCESSION LAID DOWN ONLY CLEARLY SPECIFIED TIME-LIMITS AND CONDITIONS IN ORDER TO FACILITATE THEIR ADJUSTMENT TO THE RULES IN FORCE WITHIN THE COMMUNITY .
12THEREFORE THE PROVISIONS OF THE ACT OF ACCESSION MUST BE INTERPRETED HAVING REGARD TO THE FOUNDATIONS AND THE SYSTEM OF THE COMMUNITY, AS ESTABLISHED BY THE TREATY . IN PARTICULAR, THE PROVISIONS OF THE ACT OF ACCESSION RELATING TO QUANTITATIVE RESTRICTIONS AND MEASURES HAVING EQUIVALENT EFFECT CANNOT BE INTERPRETED IN ISOLATION FROM THE PROVISIONS OF THE TREATY RELATING TO THESE MATTERS . AS ARTICLE 60 CONCERNS AGRICULTURAL PRODUCTS IT MUST ALSO BE INTERPRETED IN THE LIGHT OF THE PROVISIONS OF THE TREATY RELATING TO THE COMMON AGRICULTURAL POLICY, WITH THE IMPLEMENTATION OF WHICH THAT ARTICLE IS PLAINLY CONCERNED .
13AS REGARDS THE ELIMINATION OF QUANTITATIVE RESTRICTIONS, THE ESTABLISHMENT OF A COMMON MARKET MUST, ACCORDING TO ARTICLE 3 ( A ) OF THE TREATY, INCLUDE FIRST OF ALL ' ' THE ELIMINATION, AS BETWEEN MEMBER STATES, OF CUSTOMS DUTIES AND OF QUANTITATIVE RESTRICTIONS ON THE IMPORT AND EXPORT OF GOODS, AND OF ALL OTHER MEASURES HAVING EQUIVALENT EFFECT ' ' . ARTICLES 30 ET SEQ . PROVIDE FOR THE COMPLETE ELIMINATION, DURING THE TRANSITIONAL PERIOD, OF QUANTITATIVE RESTRICTIONS AND ALL MEASURES HAVING EQUIVALENT EFFECT BETWEEN MEMBER STATES . THE IMPORTANCE OF THAT PROHIBITION FOR THE ACHIEVEMENT OF FREEDOM OF TRADE BETWEEN MEMBER STATES PRECLUDES ANY BROAD INTERPRETATION OF THE RESERVATIONS OR DEROGATIONS IN THAT CONNEXION PROVIDED FOR IN THE ACT OF ACCESSION .
14AS REGARDS THE RELATIONSHIP BETWEEN THAT PROHIBITION AND THE COMMON AGRICULTURAL POLICY, ARTICLE 38 ( 2 ) OF THE TREATY PROVIDES THAT THE RULES LAID DOWN FOR THE ESTABLISHMENT OF THE COMMON MARKET, AND HENCE THOSE RELATING TO THE ELIMINATION OF QUANTITATIVE RESTRICTIONS, SHALL APPLY TO AGRICULTURAL PRODUCTS, SAVE AS OTHERWISE PROVIDED IN THE TITLE ON AGRICULTURE . ARTICLE 40 FIXED THE END OF THE TRANSITIONAL PERIOD AS THE TIME-LIMIT FOR THE IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY, BUT ARTICLES 43 TO 46 ALLOWED THE MEMBER STATES TO RETAIN ON A PROVISIONAL BASIS THE EXISTING NATIONAL ORGANIZATIONS . ARTICLE 38 ( 4 ), WHICH PROVIDES THAT ' ' THE OPERATION AND DEVELOPMENT OF THE COMMON MARKET FOR AGRICULTURAL PRODUCTS MUST BE ACCOMPANIED BY THE ESTABLISHMENT OF A COMMON AGRICULTURAL POLICY AMONG THE MEMBER STATES ' ', MAKES CLEAR THE INTENTION TO GIVE PRIORITY TO THE OPERATION AND DEVELOPMENT OF THE COMMON MARKET BY OBLIGING THE INSTITUTIONS AND THE MEMBER STATES TO ESTABLISH A COMMON AGRICULTURAL POLICY AT A CORRESPONDING RATE OF PROGRESS . SINCE ARTICLES 40 AND 41 OF THE TREATY PRESCRIBE DIFFERENT FORMS FOR THE ESTABLISHMENT OF A COMMON ORGANIZATION OF AGRICULTURAL MARKETS AND DO NOT PRECLUDE EVEN FUNDAMENTAL ALTERATIONS OF THAT ORGANIZATION AFTER THE EXPIRY OF THE TRANSITIONAL PERIOD, THE CONTINUANCE OF ALLEGED DEFICIENCIES IN THE ESTABLISHMENT OF THE COMMON AGRICULTURAL POLICY CANNOT, THEREFORE, AFTER THE END OF THAT PERIOD, PREVENT THE APPLICATION OF THE RULES LAID DOWN FOR THE ESTABLISHMENT OF THE COMMON MARKET, AND IN PARTICULAR THE APPLICATION OF THE RULE PROHIBITING QUANTITATIVE RESTRICTIONS .
15IT FOLLOWS, AS THE COURT HELD IN ITS JUDGMENT OF 2 DECEMBER 1974 IN CASE 48/74 CHARMASSON ( 1974 ) ECR 1383, THAT AFTER THE EXPIRY OF THE TRANSITIONAL PERIOD THE OPERATION OF A NATIONAL MARKET ORGANIZATION CAN NO LONGER PREVENT FULL EFFECT BEING GIVEN TO THE PROVISIONS OF THE TREATY RELATING TO THE ELIMINATION OF QUANTITATIVE RESTRICTIONS AND ALL MEASURES HAVING EQUIVALENT EFFECT, THE REQUIREMENTS OF THE MARKETS CONCERNED IN THIS RESPECT THENCEFORWARD BECOMING THE RESPONSIBILITY OF THE COMMUNITY INSTITUTIONS . THE EXPIRY OF THE TRANSITIONAL PERIOD LAID DOWN BY THE TREATY MEANT THAT, FROM THAT TIME, THOSE MATTERS AND AREAS EXPLICITLY ATTRIBUTED TO THE COMMUNITY CAME UNDER COMMUNITY JURISDICTION, SO THAT IF IT WERE STILL NECESSARY TO HAVE RECOURSE TO SPECIAL MEASURES, THESE COULD NO LONGER BE DETERMINED UNILATERALLY BY THE MEMBER STATES CONCERNED, BUT HAD TO BE ADOPTED WITHIN THE FRAMEWORK OF THE COMMUNITY SYSTEM DESIGNED TO ENSURE THAT THE GENERAL INTEREST OF THE COMMUNITY WOULD BE PROTECTED .
16IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT, ALTHOUGH ARTICLE 60 ( 2 ) OF THE ACT OF ACCESSION UNQUESTIONABLY CONSTITUTES A DEROGATION FROM THE RULE LAID DOWN IN ARTICLE 42, IT CANNOT BE REGARDED AS BEING IN ADDITION A ' ' SPECIAL PROVISION ' '
WITHIN THE MEANING OF ARTICLE 9 ( 2 ) OF THAT ACT . SINCE ARTICLE 9 ( 2 ) LAYS DOWN AS A PRINCIPLE OF THE ACT OF ACCESSION THAT ' ' THE APPLICATION OF THE TRANSITIONAL MEASURES SHALL TERMINATE AT THE END OF 1977 ' ', THE RESERVATION WHICH IT MAKES CANNOT BE GIVEN A BROAD INTERPRETATION . ON THE CONTRARY, THAT RESERVATION IS TO BE INTERPRETED AS RELATING ONLY TO SPECIAL PROVISIONS WHICH ARE CLEARLY DELIMITED AND DETERMINED IN TIME AND NOT TO A PROVISION, SUCH AS ARTICLE 60 ( 2 ), WHICH REFERS TO AN UNCERTAIN FUTURE EVENT .
17THIS CONCLUSION IS CONFIRMED BY A CONSIDERATION OF THE CONSEQUENCES WHICH WOULD ENSUE FROM THE ALTERNATIVE INTERPRETATION ADVOCATED BY THE UNITED KINGDOM . IN A MATTER AS ESSENTIAL FOR THE PROPER FUNCTIONING OF THE COMMON MARKET AS THE ELIMINATION OF QUANTITATIVE RESTRICTIONS, THE ACT OF ACCESSION CANNOT BE INTERPRETED AS HAVING ESTABLISHED FOR AN INDEFINITE PERIOD IN FAVOUR OF THE NEW MEMBER STATES A LEGAL POSITION DIFFERENT FROM THAT LAID DOWN BY THE TREATY FOR THE ORIGINAL MEMBER STATES . IF ARTICLE 60 ( 2 ) WERE REGARDED AS A ' ' SPECIAL PROVISION ' '
WITHIN THE MEANING OF ARTICLE 9 ( 2 ) OF THE ACT OF ACCESSION, IT WOULD IN EFFECT ESTABLISH A PERSISTING INEQUALITY BETWEEN THE ORIGINAL MEMBER STATES AND THE NEW MEMBER STATES, THE LATTER BEING IN A POSITION TO PREVENT OR RESTRICT THE IMPORTATION OF CERTAIN AGRICULTURAL PRODUCTS COMING FROM THE COMMUNITY, WHEREAS THE FORMER WOULD BE OBLIGED UNDER THE TREATY TO REFRAIN FROM ANY RESTRICTION ON IMPORTS OF THE SAME PRODUCTS, EVEN IF THEY CAME FROM A NEW MEMBER STATE WHICH WAS MAKING USE OF ARTICLE 60 ( 2 ). ALTHOUGH IT WAS JUSTIFIED FOR THE ORIGINAL MEMBER STATES PROVISIONALLY TO ACCEPT SUCH INEQUALITIES, IT WOULD BE CONTRARY TO THE PRINCIPLE OF THE EQUALITY OF THE MEMBER STATES BEFORE COMMUNITY LAW TO ACCEPT THAT SUCH INEQUALITIES COULD CONTINUE INDEFINITELY .
18IT FOLLOWS THAT THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY, IN PARTICULAR ARTICLE 30 THEREOF, TOGETHER WITH THE ACT OF ACCESSION, BY NOT REPEALING OR AMENDING BEFORE THE END OF 1977 THE PROVISIONS OF ITS NATIONAL LAW WHICH HAVE THE EFFECT OF RESTRICTING IMPORTS OF POTATOES .
Decision on costs
COSTS
19ARTICLE 69 ( 2 ) OF THE RULES OF PORCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . SINCE THE DEFENDANT HAS BEEN UNSUCCESSFUL, IT SHOULD BE ORDERED TO PAY THE COSTS . SINCE, AS REGARDS THE INTERVENTION, THE COMMISSION ASKED ONLY FOR THE INTERVENER TO BE ORDERED TO BEAR ITS OWN COSTS, THE PARTIES SHOULD BE ORDERED PURSUANT TO THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE TO BEAR THEIR OWN COSTS ARISING FROM THE INTERVENTION .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DECLARES THAT THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY, IN PARTICULAR ARTICLE 30 THEREOF, TOGETHER WITH THE ACT OF ACCESSION, BY NOT REPEALING OR AMENDING BEFORE THE END OF 1977 THE PROVISIONS OF ITS NATIONAL LAW WHICH HAVE THE EFFECT OF RESTRICTING IMPORTS OF POTATOES ;
2 . ORDERS THE DEFENDANT TO PAY THE COSTS, EXCEPT THOSE ARISING FROM THE INTERVENTION ;
3 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS ARISING FROM THE INTERVENTION .