61982C0042(01)
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN
DELIVERED ON 2 MARCH 1982
My Lords,
On 4 February 1982 the Commission lodged at the Court an application under Article 169 of the EEC Treaty for a declaration that France had failed to fulfil its obligations under the Treaty by subjecting imports of Italian wines, into France, to delays which exceeded by a considerable margin those necessary for the purpose of checking whether the wine should be admitted into France.
Last evening the Court heard representations on an application by the Commission that the Court should grant interim measures of relief pursuant to Article 186 of the EEC Treaty and Article 83 of the Rules of Procedure pending determination of the main action. That application for interim measures is supported by the Government of Italy and resisted by the Republic of France. In view of the nature of the application it seemed right that I should give my opinion at once.
The interim relief sought is for an order requiring France to suspend the systematic examination of Italian wines at the point of entry whilst permitting spot checks, including analyses of wines, on condition that such checks are completed within 15 days and secondly, an order requiring France to clear through customs, immediately,
consignments currently detained, provided that the requisite documents are in order. If the documents are not in order it is asked that importations should only be delayed for such period as is strictly necessary to allow the documents to be put right unless fraud or some other defect in the wines is alleged.
The case is economically and politically an important one. The Court has been told of the importance of the case, from the Italian point of view, of allowing wines to be admitted into France without restrictions which are unjustified under Community rules, and, from the French side, of preventing wines from coming in which may not be what they claim to be or which are not imponed in compliance with the relevant rules.
Two things seem clear and to be accepted by all those concerned. Firstly, substantial quantities of Italian wine have been imported into France and there has been an increase, in such importations, put by France at 8% in a year as at January 1982. Secondly, in trie last few months controls have been exercised by the French authorities which have led to delays in the importation of Italian wine in bulk into France. The delays have at times been substantial — in some cases as much as four months. The quantities of wine involved are also substantial. The French authorities justify the controls on two grounds. Firstly they say that it is important to prevent contaminated wines, which may be injurious to health, from being imported; and secondly they say that to prevent fraud, or to prevent defective wines being imported, it is right to check that the documents covering the importation are in due form.
There is a sharp dispute as to whether these controls are necessary and justified; as to why they are being applied; as to what is their effect on the free movement of goods in the Community and in particular on the importation of Italian wines into France.
It is plain, as the French Government submits, that these disputes are not to be resolved at this stage on an application for interim relief. Nothing which 1 say is intended to indicate a concluded view as to the ultimate merits of the dispute.
None the less the claim made by the Commission, and supported by the Italian Government, has to be examined to see whether any case of an infringement of Community rules is put forward which would justify the Court in granting interim measures of any kind.
The Commission's case is that France is imposing restrictions on imports which violate Article 30 of the Treaty. In addition to the delays on the release of Italian wine into France which have in fact occurred, the Commission has referred to three documents. The first is the minutes of a meeting of 10 July 19S0 of the Comité National du Commerce Communautaire des Vins et Spiritueux. Those minutes refer to the problem being caused in France by the imports of Italian wine of a strength of less than 13 degrees proof. They propose measures of self-restraint to keep quantities down and they record a formal guarantee purported to be given by public authorities that such wines, if imported by traders other than members of the Comité, will not be admitted until after a delay of four months. The second and third documents are circulars purporting to constitute evidence of transactions between the Comité and the French Government in the summer of 1981. One of these (Annex XV to the main application) records that the Comité, on the basis of six years' experience of operating measures of self-restraint in the imports of Italian wine, proposed a monthly limit of 425000 hectolitres for the coming season and relied on public authorities in return to ensure that bodies not represented on the Comité should not undermine the effect of the self-limitation. The other circular (Annex XVI to the main application) informed members of the Ministers' decision to release wines blocked at the border at the rate of 120000 hectolitres per week between 19 October and 13 December 1981, in return for an agreement by the Comité that there would be a totai ban on imports from 25 October 1981 until dates in November or December 1981, such dates to depend on the date of arrival of the goods in France.
It is not accepted by Counsel for the French Government that there was any bargain to this effect but, on the basis of the documents and the delays which occurred, to which I have referred, the Commission initiated two separate proceedings.
Firstly, by letter dated 7 September 1981, the Commission claimed that imports of Italian wines into France were subject to delays of one month, in cases where the wine was 13 degrees proof or more, to four months, where wine was less than 13 degrees proof, and that this was done by the French authorities in order to penalize importers who were not practising self-restraint pursuant to the policy set out in the Circular of the Comité National.
The French Government's reply was that these measures were justified in the interests of public health and in order to guard against fraud. The Government referred, in its reply, to serious incidents involving attempts to import contaminated wine in March and July 1981. The Commission however, delivered a reasoned opinion confirming its view. The French Government's reply was that it had decided to operate system of spot checks which in November 1981 was said to be conducted on the basis of one check per 10 imports or thereabouts. The Court has not seen real evidence that this was done; rather, in its observations in this case the French Government has referred to the fact that spot checks have not been made of more than three out of four consignments.
The second complaint related to the contention that the French authorities had denied the admission of Italian wine on the basis that documentary requirements were not being satisfied, pursuant to Commission Regulation No 1153/75 of 30 April 1975 (OJ L 113, p. 1), Council Regulation No 355/79 of 5 February 1979 (OJ L 54, p. 1) and Council Regulation No 359/79 of 5 February 1979 (OJ L 54, p. 136); whereas the Commission contended that the defects which were alleged by the French authorities were not such as in law to warrant the exclusion of Italian wines from France. Following a reasoned opinion from the Commission, the French Government informed the Commission that an agreement was reached in Pisa on 13 October 1981 between the French and Italian authorities to the effect that 1068000 hectolitres of wine, blocked because of alleged inadequate documentation, would be released within two months, i.e. by 15 December 1981.
There were apparently at the same time difficulties on the ground. Press reports referred to damage being inflicted on consignments of Italian wine arriving in France. The Commission asked the French authorities what they were doing about the limitation. The French Government in reply wanted to know what the Commission was doing to change the Community price mechanism which it was said failed to give French producers adequate protection.
On 2 February 1982, the French authorities sent to the Commission a telex which reads in part as follows:
“Serious disquiet has developed in the wine-producing area of the Midi following the steep rise in imports of Italian wines during the month of January 1982 at prices substantially lower than those of the market. Consequently, on 30 January the Government took the necessary measures to ensure that the competent administrative authorities will conduct more numerous analyses of quality ...”
In support of its application for interim measures of relief, the Commission contends as follows:
(i)
that its main application stands a reasonable chance of succeeding,
(ii)
that the conduct of the French authorities is likely to cause serious and incontestable damage which will be irreparable in the absence of interim relief, and
(iii)
that the case calls for urgent action in view of the risk of irremediable loss.
The French Government contends, on the other hand, that the first of these arguments is erroneous or irrelevant, since it entails prejudging the main action.
It is well established that the Court will not, in an application for interim measures of relief, prejudge the issues in the main action (I refer to Case 26/76 R Metro SB Großmarkte v Commission [1976] ECR 1353 and Case 91/76 R Joëlle de Lacroix v Court [1976] ECR 1563). Those were cases against an institution of the Community but the principle must apply with equal force where a claim is made against a Member State. The fact, however, that the Court enquires as to whether the case put forward in the main action is prima facie sound, or arguable or even strongly arguable, and is so satisfied, does not mean that it has prejudged the ultimate decision. That the Court considers even that the case is strongly arguable at the stage of an application for interim measures is not incompatible with an ultimate finding that the case which is put forward fails. Such an interim conclusion does not in any way prejudge the merits of the issues in the main action.
In my opinion, in this case, the Commission has established an arguable or prima facie case that Article 3C of the Treaty has been violated. That case is not destroyed for the purposes of the present proceedings by a reference to Article 36 of the Treaty. The Commission does not contend that there cannot be checks for the protection of health. What it says is that such checks cannot lawfully be such as to cause greater delay than is required for the protection of health and that here the delays which result from the checks are greater than are reasonably justified. They spring essentially from a desire to control the rate of imports. No evidence has been produced to show that at the end of 1981 and in early 1982 there were real risks to health which justified the increasingly detailed enquiries; and the Court has been told that in 1980, the previous year the quantity of rejected wine was 30000 hectolitres out of a total of something like 4500000 hectolitres of wine. This claim, on the basis of the protection of health, may be made out at the final hearing: it has not, to my mind, been made out at the present time so as to undermine the prima facie claim.
Nor, in my opinion, has the claim that documentary requirements were unsatisfied dislodged the Commission's prima facie case. A principal point made was that the Member State of origin was not specified in the accompanying form. That, however is not specifically required on the particular form used (VA 1) in contradistinction to the form required to be used for importations from third countries (form VA 4). Even assuming, as I do, that the French Government is right that there were defects, in the forms supplied (in that, for example, the necessary stamp did not appear clearly or at all in the relevant section of the form), the Commission can still validly argue that the irregularities alleged do not warrant the kind of delays which have occurred.
Has the Commission shown that serious and irreparable damage will be caused if interim relief is not granted? In my opinion it has. There is more here than an interference with the free movement of goods, serious though that is in the context of Community trade. The quantities involved are substantial and the effect of detention of the goods on exporters and importers as individuals, is potentially capable of serious effects. I am not satisfied by the argument that some importers may leave their wine in bond for a long time. What is important here is the inhibition on their ability to take their wine, on arrival, or within a reasonably short time of its arrival in France.
If it had been shown that financial loss, resulting from the delays, was recoverable under Community law or under French law, it might be doubted whether such loss was “irreparable”. It has not been so shown. There is clearly a possible loss, either for exporter or for importer, of interest on capital, on profit if margins fall, even the chance of selling the wine at all. Such losses are capable of arising, are difficult to quantify and are not shown to be likely to be covered by a claim under either Community or French law. I consider that the loss which has been referred to is both serious and irreparable for the purposes of this kind of application.
I am also satisfied that the possibility of loss calls for urgent action — the third points taken by the Commission. Stocks were released by the end of 1981; and in November and December for whatever reason, no new stocks were tendered for import, or detained. Substantial quantities of wine are, however, once again blocked. If the Court had been told that there was any real possibility of an agreement to release the goods within the foreseeable future relief should perhaps be refused. It has not been so told. The indications appear to be to the contrary.
There remains the other side of the coin. Has it been shown that the continuation of the present restrictions is justified to prevent damage in France which ought to be prevented? I am not aware of anysubstantial evidence of a risk to health which would be run if the wine were released after a reasonable period of time and after a reasonable number of checks in accordance with the earlier practice. There has been reference to the importation of wine which was contaminated because it was carried in a vehicle which had previously carried kerosene, and to other similar incidents. These are not, however, of recent origin, nor were they such as to prompt the French authorities to require more than one test in 10, as recentlv as November 1981. Moreover it has to be remembered that the Commission is not saying that there should be no spot checks. It is a question of fact and degree as to how many are justified. I do not consider that the delavs which have occurred have been shown to be justified by the risks to health which is alleged.
At the end of the day I am influenced by the fact in 1980 Italian wine could go through the French customs on average in two weeks, allowing for the time needed to examine documents and to analyse the wine so far as was considered necessary. There may have been cases where initial tests prompted further inquirv so that more time was needed, but basically the Court is told, that the average was 15 days. I am not satisfied that new factors have been shown which justify the change in policy causing the delay which is now complained of. On the face of it, at this stage, the only real reason which has been shown was a desire to keep out Italian wine for economic or perhaps political reasons. This is not a reason which can be justified under the Treaty. Whilst accepting, and indeed asserting, that France may at the hearing justify what was done, it seems to me that the Court ought, in this case, to exercise its jurisdiction to grant interim measures.
Such measures must, however, be sufficiently precise so that all concerned know what is required. It is not right that vague criteria should be indicated as to how imports should be dealt with. Indications as to “reasonable conduct” may lead only to debate; general suggestions, whether made expressly or implicitly, that improper reasons for delay should be avoided can only tend to prejudice the issue at the trial and inflame the situation meanwhile. I would, moreover accept that it is for the French authorities and not for the Court to decide what percentage of consignments should be tested and how the tests should be carried out. 1 would not on the evidence before the Coun. make an order conditional on any percentage number of tests of inspection. In mv opinion where the documents are accepted by the French authorities to be in order, the Court can best assist the attainment of the objectives of the Treaty by indicating, in the context of all the facts in the case, the period within which the goods must be dealt with before they are cleared for release, including such tests as are thought to be necessary.
I do not accept that the analyses which have to be made require a four-month delay or anything like that period. Nor is the suggestion of one month for all cases fully made out. On the other hand, it would be unreasonable not to take into account that there is a backlog and that some tests are justified. Accordingly. I consider that where the documents are in order, the matter ought to be dealt with (including the taking of any necessaryanalyses or tests) within a period of 21 days. I would include in that 21-day order the goods which are presently held.
Where it is alleged that the documentation is defective, in other words, that the appropriate accompanying form has not been duly completed under Article 1 of Regulation No 1153/75, different considerations arise. It is clearly not intended in the legislation that documentary requirements, particularly in relation to minor matters, should be used as an excuse for delays really based on other motives. On the other hand, clearly the Court should not order a Member State to admit goods where the documents do not comply with the Regulations. Although I am not satisfied that Form VA 1 for inter-Community trade, requires the country of origin to be stated, I do not think that the Court should order by interim measures that “substantial” or “effective” or “important” matters should be sufficiently stated and that other requirements should be ignored before goods are admitted. It is implied in the requirements as to correct formalities in the documentation that an importer should know within a reasonable time if objection is taken so that he can deal with it. In the interim period pending the judgment of the Court in this case and balancing the interests of both Member States, I consider that such objection should be communicated to the importer or his agent within three days of the date of lodgment of the documents and that, if objection is taken, the documents which need to be regularized should in that period be supplied to the importer or his agent. If there is a defect it can then be put right. If the importer fails to procure the correction of the defect he cannot complain of the subsequent deiav.
Accordingly I would make an order on the following lines:
Until the judgment in this case or further order, the Republic of France shall admit consignments of wine which have been or which are hereafter presented for impon from Italy into France within 21 days of such presentation, unless satisfied within that period that there exists reason to justify the prohibition or restriction of such importation in accordance with Commission Regulation No 1153/75 of 30 April 1975 or Article 36 of the EEC Treaty: in the event that objection is taken that the accompanying document referred to in Article 1 of such Regulation (or any other document) has not been duly completed, notification of such alleged defects shall be communicated to the importer or his agent within three days of the presentation of the document, and the defective document shall be supplied within the like period.
The costs of this application should in my opinion be reserved until the final judgment in the case.