OPINION OF MR WARNER — JOINED CASES80 AND 81/77
41 As these proceedings are, in so far as the parties to the main action are
concerned, in the nature of a step in the action pending before the national
court, costs are a matter for that court.
On those grounds,
THE COURT,
in answer to the questions submitted to it by the Tribunal d'Instance,
Bourg-en-Bresse, by judgments of 30 June 1977, hereby rules:
Article 31 (2) of Regulation No 816/70 in so far as it authorizes
producer Member States to prescribe and levy, in intra-Community
trade in the products covered by the organization of the market which
that regulation sets up, charges having an effect equivalent to customs
duties, is incompatible with Article 13, in particular paragraph (2)
thereof, and with Articles 38 to 46 of the Treaty and is consequently
invalid.
Kutscher Sørensen Bosco Donner Mertens de Wilmars
Pescatore Mackenzie Stuart O'Keeffe Touffait
Delivered in open court in Luxembourg on 20 April 1978.
A. Van Houtte
Registrar
H. Kutscher
President
OPINION OF MR ADVOCATE GENERAL WARNER
DELIVERED ON 15 MARCH 1978
My Lords,
In 1975 there was an exceptional influx
of Italian wine onto the French market.
It is common ground that that influx
was due, at all events in the main, first
to the fact that in 1973 and 1974 the
weather had been such that yields had
948
COMMISSIONNAIRES RÉUNIS ν RECEVEUR DES DOUANES
been high both in France and in Italy
and secondly to successivedevaluations
of the Italian lira. The French
Government has alleged that it was due
also to a failure on the part of the
Italian authorities to establish and
operate satisfactorily the administrative
mechanisms necessary for the
management of the market in wine as
envisaged by Council Regulation (EEC)
No 816/70 of 28 April 1970 (Official
Journal L 99 of 5 March 1970) "laying
down additional provisions for the
common organization of the market in
wine".
With a view to limiting that influx, the
French Government, on 11 September
1975, instituted by decree (Decree No
75/846) a charge on table wines and
wines suitable for yielding table wines,
coming from Italy, imported in
containers of more than two litres. The
charge was calculated on the volume
and the alcoholic strength of the wines.
Its amount was fixed at FF 1.13 per
degree/hectolitre. It is common ground
that the charge was one having
equivalent effect to a customs duty.
As the decree itself recited, the French
Government relied, in introducing the
charge, on Article 31 of Regulation No
816/70. Paragraph 1 of that Article was,
so far as relevant, expressed to prohibit
the levying, in the internal trade of the
Community, of any charge having
equivalent effect to a customs duty. In
fact of course that provision was otiose.
The Regulation having been adopted
after the end of the transitional period,
the prohibition already existed by the
direct effect of Articles 9 and 12 of the
Treaty. Article 31 (2) was in these
terms:
"By way of derogation from the
provisions of paragraph 1, so long as all
the administrative mechanisms necessary
for the management of the market in
wine are not in application — with the
exception, until 31 December 1971, of
the viticultural land register — producer
Member States shall be authorized in
order to avoid disturbances on their
markets to take measuresthat may limit
imports from another Member State.
These measures shall be communicated
to the Commission, which shall decide
without delay whether to maintain,
amend or abolish such measures."
On the same day as it adopted the
decree the French Government
informed the Commission of it by telex.
On 15 September 1975, the Commission
wrote to the French Government
expressing the opinion that it was not
entided to rely on Article 31 (2),
because that provision had, by then,
ceased to be operative, the
administrative mechanisms necessary for
the management of the market in wine
being in application in all Member
States. That being so, the Commission
said, it would not be appropriate for it
to take a decision of the kind envisaged
by the second subparagraph of Article
31 (2) and it asked the French
Government to revoke its decree.
The French Government having
declined so to do, the Commission
initiated proceedings against the French
Republic under Article 169 of the
Treaty and eventually brought an action
in this Court against it under that
Article, Case 117/75. Before that action
came to a hearing, however, the French
Government (by Decree No 76/287 of
31 March 1976) repealed the decree of
11 September 1975 as from 1 April
1976. Thereupon the action was
discontinued.
By Council Regulation (EEC) No
1160/76 of 17 May 1976, a Regulation
which made numerous amendments of
greater and lesser importance to Regu­
lation No 816/70, Article 31 (2) was
expressly repealed.
There are now, so we were told, some
40 actions pending in various French
Courts in which importers of Italian
wines into France who were, during the
949
OPINION OF MR WARNER — JOINED CASES10 AND 81/77
period when the decree of 11 September
1975 was in force, required to pay the
charge thereby imposed, are seeking
from the French Customs restitution of
the sums paid by them in respect of it.
The present cases come before this
Court by way of references for pre­
liminary rulings made by the Tribunal
d'Instance of Bourg-en-Bresse in two of
those actions. They are therefore in the
nature of test cases.
The questions referred to the Court by
the Tribunal d'Instance are these:
"(1) Did Article 31 (2) of Council Regu­
lation No 816/70 accord with the
EEC Treaty, having regard to the
fact that that provision authorized
measures contrary to the rules of
the Treaty on the free movement
of goods applicable after the end of
the transitional period?
(2) If the answer to the foregoing
question is in the affirmative, were
the provisions of Article 31 (2) of
the said Regulation still applicable
on 11 September 1975, having
regard to the possibility that all the
administrative mechanisms necess­
ary for the management of the
market in wine had been set up?"
As regards the first question, there are
four rival contentions.
The Plaintiffs contend that, under the
Treaty, the Council had no power, after
the end of the transitional period, to
legislate in such a way as to authorize
Member States to impose charges
having equivalent effect to customs
duties in internal Community trade.
At the other extreme, the French
Government contends that the way in
which agriculture is dealt with in the
Treaty, and in particular the unique
provisions relating to it contained in
Title II of Part Two of the Treaty, must
be taken to indicate (having regard to
those obvious characteristics of agri­
culture that distinguish it from other
economic activities, such as its vul­
nerability to the vagaries of the
weather) that the authors of the Treaty
intended it to be treated as an
exceptional sector, and that the Council
should, in its case, have a general power
to derogate from the rules that would
otherwise be applicable under the
Treaty. The French Government draws
particular attention to Article 38 (2) of
the Treaty, under which "the rules laid
down for the establishment of the
common market" are to apply to agri­
cultural products "save as otherwise
provided in Articles 39 to 46", and to
Article 39 (2), which provides that "In
working out the common agricultural
policy and the special methods for its
application, account shall be taken of
among other things "the particular
nature of agricultural activity, which
results from the social structure of agri­
culture and from structural and natural
disparities between the various agri­
cultural regions".
The Council and the Commission
advance intermediate contentions,
though not the same one.
The Council contends that it has, when
instituting a common organization of
the market in any agricultural product
or group of agricultural products, a
limited power to derogate from the
general rules of the Treaty, limited in
that the power does not permit the
Council to go beyond the adoption of
measures that are both ancillary and
temporary ("mesures temporaires d'ac-
compagnement" was the expression
used).
The Commission's contention is more
restrictive. It is that the Council had
power, when instituting the common
organization of a market at or about
the end of the transitional period, to
prescribe transitional provisions
applicable until the end of the then
current marketing year. Thus, the
Commission contends, Article 31 (2)
could only have been valid if it had
been limited to operate until 1
950
COMMISSIONAIRES REUNIS v RECEVEUR DES DOUANES
September 1970, which was the date of
the beginning of the next "wine­
growing year" after the adoption of
Regulation No 816/70.
In argument, a number of Judgments of
this Court were cited as supporting this
or that contention. I think it will be
convenient if, subject to one exception,
I discuss those Judgments in their
chronological order.
Case 17/67 Neumann v HZA Hof [1967]
ECR 441 (Rec. 1967, p. 571) which was
cited on behalf of the French
Government and of the Council, does
not, in my opinion, lend support to the
contention of either of them. The
question there was whether levies on
imports from third countries instituted
by Council Regulations establishing the
common organization of a market (that
in poultry meat) were lawful. It was
argued for an importer that they were
not because they were incompatible
with the Articles of the Treaty setting
up the Common Customs Tariff. The
Court rejected that argument. It held
that such levies came within Article 40
(3) of the Treaty as being "measures
required to attain the ... regulation of
prices ... and common machinery for
stabilising imports or exports". They
were therefore within the saving clause
of Article 38 (2). Thus, for the principle
of that decision to be held to apply
here, it would be necessaryto be able to
point to a. provision in Articles 39 to 46
which, either expressly or by necessary
implication, authorized the institution,
as part of a common organization of a
market, of charges having an effect
equivalent to customs duties in trade
between Member States. I can see none,
nor did either the French Government
or the Council attempt to point to any.
Certainly Article 40 (3) cannot be held
to constitute such a provision, since it
goes on to provide that a common
organization "shall exclude any discri­
mination between producers or
consumers within the Community".
Case 82/71 the SAIL case [1972] 1
ECR 119 was much relied upon, not
least by the Commission, which saw in
that case the authority for its contention
that the Council had a power of dero­
gation that was limited to
"overstepping" the end of the
transitional period for the rest of the
then current marketing year ("un
depassement technique"). A close
reading of the Judgment reveals,
however, that the Court confined itself
there to holding, as a matter of interpret­
ation of the Council Regulations auth­
orizing Italy temporarily to retain its
"milk centre" system, that that authoriz­
ation had expired at the relevant time.
The Court did not deal with the
question of its validity. The case is
therefore, in my opinion, of no
relevance here.
To the three cases on monetary
compensatory amounts decided by the
Court on 24 October 1973, namely
Case 5/73, the first Balkan case [1973]
2 ECR 1091, Case 9/73 Schlüter v HZA
Lörrach, ibid. p. 1135 and Case 10/73
Rewe-Zentral v HZA Kehl, ibid. p.
1175, I had occasion to refer recently in
Case 29/77, the third Roquette case
[1977] ECR 1835. I there pointed out
that those cases, and others, were
authority for saying that the
fundamental purpose of the system of
m.c.a.'s was to prevent changes in
exchange rates from immediately
affecting agricultural prices in terms of
national currencies in such a way as to
disturb the functioning of the common
organizations of markets. Such distur­
bances of trade could be of two kinds.
The first kind was direct disturbance of
intervention arrangements, such as had
occurred in consequence of the deva­
luation of the French franc in 1969,
when German traders bought cereals in
France for re-sale to the German
intervention agency at a profit, and did
so in such quantities as to threaten to
exhaust that agency's storage capacity.
The second kind of disturbance
951
OPINION OF MR WARNER — JOINED CASES 8C AND 31/77
consisted in the diversion of trade
between the Community and third
countries, in particular the diversion of
imports through Member Slates with
devalued currencies in search of lower
levies and the diversion of exports
through Member States with revalued
currencies in search of higher refunds.
One can therefore say that, in those
cases, the Court recognized the
existence in the Council of a power to
institute as between Member States
charges having an effect equivalent to
customs duties in so far as that was
essential to ensure the proper
functioning of common organizations
of markets.
Case 153/73 Holtz & Willemsen v
Council and Commission [1974] 1 ECR
675 is in my opinion the most pertinent
of the cases that were cited. It was an
action for damages under the second
paragraph of Article 215 of the Treaty,
in which a German oil-miller, relying on
Article 7 thereof and on the prohibition
of discrimination in Article 40 (3),
challenged the validity of a special
temporary subsidy instituted by the
Council in favour of Italian oil-millers
as part of the common organization of
the market in oils and fats. The Court
upheld the validity of that subsidy on
the narrow ground that, at its initiation,
the common organization of a market
might contain gaps the difficulties
caused by which the Council could
lessen by means of provisional measures.
It is to be observed, first, that the case
went to the verge of the law, inasmuch
as the Court recorded that it had not
found the explanation given by the
Defendants "altogether satisfactory"
and, secondly, that the Court
considered that the "provisional nature"
of the measure had been "respected"
because the Council put an end to it
after the 1973/74 marketing year.
The reason why I think that case par­
ticularly pertinent is this. At the time of
the adoption of Regulation No 816/70,
the administrative mechanisms necessary
for the management of the market in
wine existed in certain Member States,
notably in France (which had had until
then a national organization of that
market) but they did not exist in other
Member States, notably Italy. The
Council was therefore faced with a
choice. It could either wait to bring the
common organization of the market
into force until those administrative
mechanisms had been established in all
Member States; or it could bring that
organization into force at once, with a
provision affording a safeguard against
its undue malfunction so long as those
mechanisms were not operative in all
Member States. It chose the latter
course. That that was the genesis of
Article 31 (2) may be inferred in pan
from paragraph 2 of the reasoned
opinion of 29 October 1975 delivered
by the Commission to the French
Government in the Article 169
proceedings and in pan from the obser­
vations of the Council in the present
case. (It appeared perhaps even more
clearly from the Commission's
application in Case 117/75, but I would
hesitate to refer Your Lordships to that
document as it does not, strictly
speaking, form pan of the papers in the
present case). That having been the
position, it seemsto me that the validity
of Article 31 (2) at its inception can be
upheld on the principle of the decisionin the Holtz & Willemsen case: at the
outset, the organization established by
Regulation No 816/70 contained a gap,
inasmuch as the necessary mechanisms
for its functioning did not exist in some
Member States, so that it was open to
the Council to lessenthe difficulties that
that gap might cause by provisional
measures. That comes fairly close to
accepting the Council's contention in
the present case, but it does not go all
the way to doing so.
There was much discussion of Case
48/74, the Charmasson case [1974] 2
ECR 1383. In my opinion the main
952
COMMISSIONNAIRES RÉUNIS » RECEVEUR DES DOUANES
relevance of that case is that the Court
there considered, not for the first time,
the interpretation that ought to be given
to Article 38 (2) of the Treaty. The
Court held that it appeared from that
provision, "particularly if considered in
conjunction with Article 42", that agri­
cultural products were, in the absence
of any contrary provision, "subject to
the rules relating to the establishment of
the common market". Article 42, Your
Lordships remember, is concerned with
the application "to production of and
trade in agricultural products" of the
provisions of the Treaty "relating to
rules on competition". It provides that
those rules shall apply to such
production and trade "only to the
extent determined by the Council". The
inference from that Judgment is,
therefore, again, that, before the
Council can be held to have a discretion
to exclude those rules in any particular
respect, there has to be shown to be,
somewhere in Articles 39 to 46 of the
Treaty, a provision conferring that
discretion on it. So the case is authority
against the French Government's
contention.
But it was relied upon by the Plaintiffs
and by the Commission as authority for
the view that, after the end of the
transitional period, there was no power
at all, even for a Community
Institution, to derogate in any way from
the general rules of the Treaty except
those relating to competition and except
(per the Commission) to the extent of
the "dépassement technique" to which I
have referred. That, in my opinion, goes
too far. As I ventured to point out in
Case 29/75 Kaufhof v Commission
[1976] ECR at p. 450, it must be borne
in mind that the events giving rise to the
Charmasson case had occurred during
the transitional period and that the
actual question with which the Court
was there concerned (so far as relevent
here) was as to the extent to which the
existence in a Member State, during
that period, of a national organization
of the market for a particular product
precluded the application in that State
of Article 33 of the Treaty, which
provided for the progressive abolition
during that period of import quotas as
between Member States. In dealing with
that question the Court adverted to
what was to be the position after the
end of the transitional period. But, as to
that, apart from making the general
observations on the interpretation of
Article 38 (2) that I have mentioned, the
Coun said no more than that a Member
State would not then be entitled to rely
on the de facto absence of a common
organization of the market in a
particular product as justifying it in
maintaining restrictions on imports from
other Member States under its own
market organization.
I now depart slightly from the chro­
nological order of the authorities so as
to deal together with Case 46/76
Bauhuis v Netherlands [1977] ECR 5
and Case 89/76 Commission v
Netherlands [1977] ECR 1355. With all
respect to those who cited them it seems
to me manifest that those cases are not
in point. They were concerned with
charges imposed to meet the cost of
inspections provided for, in the first
case, by Council Directive No
64/432 /EEC (Official Journal L 121 of
29. July 1964) "on animal health
problems affecting intra-Community
trade in bovine animals and swine" and,
in the second case, by the International
Plant Protection Convention. As I had
occasion to mention recently in Case
70/77 Simmenthal v Amministrazione
delle Finanze (in which the Coun has
not yet delivered judgment) what
underlay the decision of the Coun in
each of those caseswas that, in each of
them, the system of inspections in
question had as its object and effect to
facilitate trade between the States to
which it applied. That being so, it could
not be held that charges imposed to
meet the cost of such inspections had an
effect equivalent to customs duties.
953
OPINION OF MR WARNER — JOINED CASES80 AND 81/77
Here, on the other hand, it is, and
always has been, common ground that
the charge imposed by the French
Government purportedly in pursuance
of Article 31 (2) of Regulation No
816/70 was one having an effect
equivalent to a customs duty. Indeed
Article 31 (2) related only to such
charges.
Lastly we were referred to Case 68/76
Commission v France [1977] ECR 515,
in paragraph 21 of the Judgment in
which the Court, after referring to the
terms of Article 38 (1) and (2) of the
Treaty, said:
"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 agri­
cultural product for which no common
organization of the market has yet been
established."
It was submitted on behalf of the
French Government and of the Council
that it could be inferred, from the use
there of the word "unilateral", that the
Court would not have regarded as
unlawful a similar derogation made in
pursuance of a measure adopted by the
Community. In my opinion, however,
the only inference that it is safe to draw
is that the Court was not there
concerned to pronounce on anything
other than unilateral derogations. Of
greater moment, to my mind, in that
case, is the conclusion of Mr Advocate
General Capotorti that "While ... it is
true that the common organizations of
the market give rise to intervention on
the agricultural market by public auth­
orities to an extent which would not be
permissible in the industrial field, those
organizations still have to abide by the
fundamental principle of the freedom of
trade throughout the Community" (see
[1977] ECR at p. 539).
Before I sum up what appears to me to
be the effect of those authorities, I
should I think mention that the French
Government referred to four instances
where, it said, the Council had enacted
provisions derogating from the general
rule of the free movement of goods
within the Community, the suggestion
being, so I understood, that, since the
Council had enacted those provisions, it
must have had power to do so. The first
instance was that of the subsidy that
was in question in the Holtz 6
Willemsen case. The other three (in
relation to which no decision of the
Coun was cited) were drawn
respectively from the common organiz­
ation of the market in fruit and
vegetables, from that of the sugar
market, and from the legislation on
fisheries. The Commission submitted
that, in fact, in none of those three
instances was there truly a derogation
from the rule as to the free movement
of goods. I do not propose to enter into
the question whether there was or was
not. To my mind it cannot assist the
Court in determining what is, on the
true interpretation of the Treaty, the
scope of the Council's powers, to know
what in fact the Council regarded as
being within its powers in particular
instances.
In my opinion the effect of the auth­
orities may be summarized as follows.
There is no authority that supports the
French Governement's contention, and
some authority against it. This is not
surprising since it is a contention that
flies in the face of Article 38 (2) of the
Treaty. The saving clause is for that
which is "provided in Articles 39 to 46",
not for whatever may be provided by
the Council. I would therefore reject
that contention.
There is authority inconsistent with the
other extreme contention, that of the
Plaintiffs, notably in the m.c.a. cases
and in the Holz & Willemsen case. I
would acordingly reject that contention
too.
954
COMMISSIONNAIRES RÉUNIS v RECEVEUR DES DOUANES
There is no authority that supports the
contention of the Commission; and the
m.c.a. and Holz & Willemsen cases are
inconsistent with it too. Moreover that
contention, which rests neither on any
express provision of the Treaty nor on
any known rule of interpretation,
whould produce an arbitrary result. So I
would reject it also.
There is authority to support the
contention of the Council, but not in
the wide terms in which it was
formulated. In order to justify the
inclusion by the Council, in any
legislation relating to the common
organization of agricultural markets, of
a provision derogating from the general
rules of the Treaty, in circumstances not
expressly provided for anywhere in
Articles 39 to 46, it must be shown not
only that that provision is auxiliary and
temporaly, but also that, in view of a
particular factual situation, the
provision is necessary, and goes no
further than is necessary, to afford a
safeguard against the malfunctioning of
such organization. That is the effect of
the m.c.a. and Holtz & Willemsen cases,
and it must be right because the power
for the Council to derogate from the
rules of the Treaty in such circum­
stances being an implied power, implied
in Article 43 of the Treaty, it cannot be
wider than is necessary for the
attainment of the objectives for which
the express powers contained in that
Article are conferred (consider para. I
(3) of the reasoning of the Court in its
Opinion given on 26 April 1977 under
Article 228 (1) of the Treaty in the
matter of the draft 'Agreement
establishing a European laying-up fund
for inland waterway vessels'[1977] ECR,
at p. 755).
I should add — although perhaps this
goes without saying — that, even where
it is shown that a provision derogating
from the general rules of the Treaty is
necessary as a temporary safeguard
against the malfunctioning of the
common organization of a market, the
power of the Council to enact such a
provision does not, in my opinion,
include power to delegate any wide
discretion to Member States. The
operation of the provision must remain
under the control of the Community
itself.
For the reasons I have already stated, I
am of the opinion that, at the time
when Regulation No 816/70 was
adopted, a situation existed which
warranted the inclusion in that Regu­
lation of Article 31 (2). Moreover the
second subparagraph of that provision
was designed to ensure that its
operation remained under the control of
the Commission. I am accordingly of
the opinion that, at its inception, Article
31 (2) was valid, and that Your
Lordships should so rule in answer to
the first question referred to the Court
by the Tribunal d'Instance of
Bourg-en-Bresse.
I turn to the second question.
As to that the French Government
submits first that Article 31 (2) must
have remained in force in September
1975 because it was not repealed until
May 1976. The French Government
argues that, since that provision was
contained in a Council Regulation, its
applicability could be brought to an end
only by an act of the Council. In
support of that view the French
Government refers to the fact that the
minutes of the Meeting of the Council
held on 27 and 28 April 1970, when
Regulation No 816/70 was adopted,
contained a declaration to the effect
that "the Commission would consider,
at the beginning of the next wine­
growing year, whether, in each Member
State, all the mechanisms necessary for
the management of the market in wine,
within the framework of the common
organization of that market, had been
established in such a way that their due
functioning could be ensured; and
would report its findings to the
Council". The French Government also
955
OPINION OF MR WARNER — JOINED CASES80 AND 81/77
relies on the views expressed by certain
members of the Council at subsequent
meetings of it.
In my opinion that submission should be
rejected. By its own terms Article 31 (2)
was limited to operate only "so long as
all the administrative mechanisms
necessary for the management of the
market in wine are not in application".
Indeed, had it not been for that
limitation, Article 31 (2) would, I think,
having regard to the reasons that
warranted its inclusion in Regulation
No 816/70, have been void as being in
excess of what it lay within the power
of the Council to enact. The difficulty
arises from the fact that the Regulation
did not specify by whom and in what
manner it should be ascertained when
the condition subsequent expressed in
the limitation was satisfied. It cannot,
however, be deduced from that that
such ascertainment should be a matter
for the Council. Having regard to the
terms of, respectively, Articles 145 an
155 of the Treaty, it is not to the
Council, but to the Commission, that
pertains the function of ensuring that
measures taken by the Institutions
pursuant to the Treaty are applied.
There are a number of reasons why the
declaration contained in the Council's
Minutes cannot have had the effect
suggested by the French Government.
First, and most obviously, such a
declaration is not an act having
legislative force and, even if it were, it
could not alter the provisions of the
Treaty as to the respective functions of
the Council and of the Commission. It
was submitted on behalf of the French
Government that the declaration might
be invoked, under the heading of
"travaux préparatoires", as an aid to the
interpretation of Regulation No 816/70.
But no amount of such aid would
enable one to interpret the Regulation
in a way inconsistent with the Treaty.
Moreover, whatever may be the value in
general of "travaux préparatoires" in
the interpretation of Council Regu­
lations — and, as Your Lordships
know, I doubt if they can have any —
they certainly cannot be invoked when
unpublished. (I would refer in that
connexion to what I said in Case 28/76
Milac v HZA Freiburg [1976] ECR at
p. 1664 and in Case 109/76 Blottner v
Nieuwe Algemene Bedrijfsvereniging
[1977] ECR, at p. 1154). It was also
submitted on behalf of the French
Government (at the hearing) that the
declaration might be held to have had
legal effect by virtue of the principle in
Case 81/72 Commission v Council
[1973] 1 ECR, 575. But that principle is
only that a declaration of the Council
may, in certain circumstances, give rise
to legitimate expectations which the law
will protect. It is difficult to see that the
declaration here in question can have
given rise to any legitimate expectation
on anyone's part. At all event the
French Government did not mention
any. Lastly, the terms of the declaration
were narrow in scope. They called upon
the Commission to give consideration to
a matter that it would have been its
duty to consider anyway and to "report
its findings to the Council". Nothing
was said about the purpose of that
report. It could well have been
envisaged as being for information only.
Furthermore, the declaration called
upon the Commission to give
consideration to that matter only once,
i.e. at the beginning of the next wine­
growing year. Nothing was said as to
what was to happen if the Commission
found (as indeed, in the events, it did)
that, at that time, the administrative
mechanisms in question had not been
fully established in all Member States.
Thus the question remains when, in
fact, all the administrative mechanisms
necessary for the management of the
market in wine came to be "in
application". If they were in application
before May 1976, the repeal then of
Article 31 (2) was merely the
elimination of statutory dead wood — a
familiar enough process.
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COMMISSIONNAIRES RÉUNIS v RECEVEUR DES DOUANES
It was submitted on behalf of the
French Government that that question
was not of a kind that it was within the
jurisdiction of this Court to resolve in
proceedings under Article 177 of the
Treaty. We were referred to two
Judgments one, dated 29 April 1977, of
the Tribunal d'Instance of Marseille and
the other, dated 29 June 1977, of the
Tribunal d'Instance of Sète, in two
others of the 40 or so casesthat I have
mentioned, in which those Courts
(unlike the Tribunal d'Instance of
Bourg-en-Bresse) took that view, and
ordered experts' reports on the question
whether those administrative
mechanisms had been set up in Italy by
11 September 1975.
There again I have come to the
conclusion that the submission of the
French Government must be rejected,
with the consequencethat the Judgment
of the Tribunal d'Instance of Marseille
and that of the Tribunal d'Instance of
Setewere mistaken.
If I am right in thinking that, by virtue
of Article 155 of the Treaty, it lay, in
the first instance, with the Commission,
and with the Commission alone, to
determine when those administrative
mechanisms had been set up and were
functioning, it could not alter anyone's
rights whether or not in fact the
Commission took any formal decision
on the matter. If the Commission issued
such a decision, it would be open to
challenge by the Council or by any
Member State under Article 173 of the
Treaty. Alternatively its validity would
be open to review under Article 177, on
a reference from any Court or Tribunal
in any Member State. In either case it
would be for this Court to decide,
according to the evidence, whether the
decision of the Commission was
sustainable. As I pointed out in Cases
51, 86 & 96/75 EMI v CBS [1976] ECR
at p. 854, it is open to this Court, on a
reference under Article 177 as to the
validity of any act of a Community
Institution, to admit evidence on any
issueof fact affecting such validity.
The omission of the Commission to
issue any such decision (at all events
before 15 September 1975) could, in
theory, be attributed to any one of three
reasons. (I say "at all events before 15
September 1975", because the
Commission's letter of that date to the
French Government might be regarded
as embodying such a decision). The first
possible reason would be that the
Commission overlooked its obligations
under the Treaty. The second would be
that the Commission did not consider
itself obliged to take any formal
decision until a practical situation arose
in which it became necessary to do so.
The third would be that the
Commission was not satisfied until May
1976 that the requisite administrative
mechanisms were in application. We
know, from what we have been told on
behalf of the Commission itself, that the
last was not the case. Therefore the
reason must have been one of the first
two. Neither of them could operate so
as to result in a transfer of the ultimate
jurisdiction on the essential question
from this Court to the national Courts
of Member States. As it was put on
behalf of the Commission in the course
of argument, although we are here
concerned with the duration of the
validity of a provision of Community
legislation, rather than with the question
of its validity from the outset, the
question is still one about its validity. It
is not a question as to the application of
Community law to the circumstances of
a particular case, which, in the context
of Article 177, would be a matter
exclusively for the national Courts. In
saying that I do not, of course,
overlook that an inferior Court in a
Member State has a discretion to decide
itself, without reference to this Court, a
question concerning the validity of a
provision of Community Regulation.
But, on any appeal against its decision
to a Court against whose decisions there
is no judicial remedy under national
law, a reference to this Court there
957
OPINION OF MR WARNER — JOINED CASES IS AND 81/77
must be. Ultimate jurisdiction on such a
question thus lies with this Court.
So I turn to the evidence.
In the Article 169 proceedings (Case
117/75) the French Government made a
number of allegations to the effect that,
by September 1975, the mechanisms
necessary for the management of the
market in wine had still not been fully
set up in Italy, or at all events were not
functioning there properly. The Court
asked the French Government whether
it proposed to put in any evidence to
substantiate those allegations. In
response to that invitation the French
Government put in a bundle of
documents consisting in part of
dispatches from the French Embassy in
Rome, in part of cuttings from Italian
newspapers and in part of extracts from
the "Gazzetta Ufficiale della Republica
Italiana". In its written observations in
the present cases the French
Government repeated much the same
allegations, again without preferring
any evidence. The Court invited it to
say whether it would agree to that
bundle of documents being transferred
from the file in Case 117/75 to the file
in the present cases.To that course the
French Government assented. It did not
however rely on those documents in
argument. Having perused them, I have
come to the conclusion that they are of
negligible evidentiary value.
The rest of the evidence consists of
documents put in by the Commission
and by the Council
Of those the first that is relevant is the
report made by the Commission to the
Council pursuant to the declaration
contained in the minutes of the meeting
of the Council of 27 and 28 April 1970.
That report was dated 27 July 1971. Its
conclusions were expressed in the
following terms:
"— Les instruments nécessaires à la
gestion du marché viti-vinicole
semblent, pour la plus grande
partie, être mis en place par les
États membres.
— Les dates à partir desquelles les
instruments nécessairesont été mis
en place different d'un État
membre à l'autre. Pour des raisons
d'ordre administratif il a été
relativement plus facile de procéder
à une mise en place rapide de ces
instruments dans certain Etats
membres qui, avant l'entrée en
vigueur de ('organisation commune
du marché viti-vinicole possédaient
déjà, dans le cadre national, les
instruments correspondants."
In other words the Commission could
not find, at that date, that the
mechanisms in question had been fully
established in all Member States, and in
particular could not find that they had
been so established in Italy.
The Commission's report was
successively considered by the Council's
Working Party on Wine and by its
Special Committee on Agriculture. The
former's report is dated 14 February
1972, the latter's 23 February 1972.
Both concluded, in the light of further
information that had been received
since the date of the Commission's
report, that the mechanisms necessary
for the management of the market in
wine had been established in the
Member Statesby 31 December 1971.
It was argued on behalf of the French
Government that those reports shoujd
be ignored because the Working Party
on Wine and the Special Committee on
Agriculture were simply non-statutory
bodies set up by the Council to assist it
in its tasks, so that they had no power
to bind their master, the Council itself.
If, however, I am right in thinking that
the competence of the Council did not
extend to adjudicating upon the
question whether the condition sub­
sequent contained in Article 31 (2) of
Regulation No 816/70 had been
satisfied at any particular time, that
argument is beside the point. The
relevance of those reports is that, having
been made by specialized bodies (I
958
COMMISSIONNAIRES RÉUNIS v RECEVEUR DES DOUANES
hesitate to use the word "expert") on
which all the Member States and the
Commission were represented, they
constitute evidence and, I would think,
strong evidence, that in fact that
condition was satisfied when they said it
was. There is no suggestion that the
reports were other than unanimous.
The French Government also refers to
what happened at two subsequent
meetings of the Council.
Of those meetings the first was that
held on 29 and 30 May 1972, when the
reports of the Commission and of the
Special Committee on Agriculture were
considered. The minutes of that meeting
are before the Court. Formally, the
Council confined itself to taking note of
the report of the Commission. During
the course of the discussion, however,
the French Minister of Agriculture had
said that he could not believe that all
the mechanisms in question were in
application, because daily experience
showed that difficulties were still being
encountered on the wine market. It was
"politically" impossible for him to
accept that the Council should declare
Article 31 (2) spent. In answer to a
question from the President, he
confirmed that what he meant was that,
whilst those mechanisms had been
established, they were not functioning
adequately. The Member of the
Commission present stated that the
provisions of Regulation No 816/70
had been applied. Whether those
provisions needed modification or
improvement was another matter.
The second meeting of the Council
referred to by the French Government
was that held on 9 September 1975, that
is just before the adoption by that
Government of the decree here in
question. The minutes of that meeting
too are before the Court. At the start of
the meeting the French Minister of Agri­
culture drew attention to the
disturbance caused in the French wine
market by the depreciation of the Italian
lira. He suggested the re-introduction of
m.c.a.'s. That suggestion was however
rejected. The French delegation then
put forward the suggestion that Article
31 (2) should be invoked on the footing
that the Council had so far failed to
agree on the measures necessary to
improve the common organization of
the market in wine, although it had, by
a Resolution of 21 April 1975 (Official
Journal C 90 of 23 April 1975)
committed itself to doing so by 1
August 1975. The French Government
relies strongly on the fact that, not only
a number of other Members of the
Council but also the responsible
Member of the Commission (Mr
Lardinois), who was present, accepted
that such a solution might be possible. It
is fair to say however that they accepted
it only reluctantly and as one element in
a possible "political package", the
feasibility of which would need to be
examined by the Commission, there
being doubts about its practicability and
about its legality. In the events the
solution was rejected, because other
Members of the Council were opposed
to it on both political and legal grounds.
It is, incidentally, noteworthy that a
number of them expressed, as I have
done, the view that it was for the
Commission to say when the condition
subsequent in Article 31 (2) had been
satisfied.
In my opinion one cannot deduce from
the proceedings at those two meetings
of the Council that, in September 1975,
the condition subsequent in Article 31
(2) had still not been satisfied. One may
deduce from them, and from much else
in the documents placed before the
Court by the Commission and by the
Council, that the common organization
of the market as established by Regu­
lation No 816/70 was in need of
improvement. It was indeed improved,
later, by Regulation No 1160/76. But
Article 31 (2) cannot, in my opinion, be
interpreted as meaning that the right of
a Member State to take measuresthere-
959
OPINION OF MR WARNER — JOINED CASES8C AND 81/77
under was to remain exerciseable, not
only so long as the mechanisms
necessary to give effect to Regulation
No 816/70 itself were not in
application, but also so long as it might
appear that the provisions of that Regu­
lation were imperfect.
There is one other piece of evidence to
which I should refer.
On 15 September 1975, Mr Lardinois
held a press conference in Brussels at
which he expounded the considered
view of the Commission. In the course
of doing so, he outlined the measures
that the Commission itself had taken to
alleviate the situation on the wine
market. One of them was the dispatch
to the Italian Government of a letter
asking it to accelerate the payment of
sums due to producers and traders
under the common organization of that
market (e.g. refunds, storage aids,
distillation premia, etc.). He said that
such payments, though normally
effected in Member States within two
months, took closer to a year to effect
in Italy, and that that had an adverse
effect on the market. This, in some
measure, supports the view of the
French Government that some of the
relevant administrative mechanisms
were not functioning properly in Italy.
Administrative inefficiency is however, I
apprehend, albeit regrettable, more or
less endemic in all our countries. Often
it causes hardship, sometimes grave
hardship. The remedies against it vary
from country to country. There are
ombudsmen, there are courts, there is
the press and there are parliamentary
questions. At the Community level we
rely particularly on Article 169 of the
Treaty. But one cannot, I think, hold
that a temporary provision in a Council
Regulation establishing a common
organization of the market in an agri­
cultural product, derogating, in order to
meet a particular factual situation, from
the general rules of the Treaty, such as
was, if I am right, Article 31 (2) of
Regulation No 816/70, may be
regarded as still capable of being
invoked, five years after the entry into
force of that Regulation, simply in
order to afford a remedy against
administrative inefficiency.
I am therefore of the opinion that Your Lordships should, in answer to the
second question referred to the Court by the Tribunal d'Instance of Bourg-
en-Bresse, rule that the provisions of Article 31 (2) of Regulation
No 816/70 had ceasedto be applicable before 11 September 1975.
960