61978CJ0225_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 225/78,
REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE TRIBUNAL CORRECTIONNEL ( CRIMINAL COURT ), BESANCON, FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN
PROCUREUR DE LA REPUBLIQUE ( PUBLIC PROSECUTOR ), BESANCON,
AND
MR BOUHELIER AND OTHERS
Subject of the case
ON THE INTERPRETATION OF THE CONCEPT OF QUANTITATIVE RESTRICTIONS ON EXPORTS AND MEASURES HAVING EQUIVALENT EFFECT IN RESPECT OF NON-MEMBER COUNTRIES WITH WHICH THE COMMUNITY HAS CONCLUDED INTERNATIONAL AGREEMENTS RELATING TO TRADE IN GOODS,
Grounds
1 BY A JUDGMENT OF 29 SEPTEMBER 1978, WHICH WAS RECEIVED AT THE COURT REGISTRY ON 9 OCTOBER 1978, THE TRIBUNAL CORRECTIONNEL ( CRIMINAL COURT ), BESANCON, SUBMITTED TO THE COURT OF JUSTICE, PURSUANT TO ARTICLE 177 OF THE EEC TREATY, SEVERAL QUESTIONS ON THE INTERPRETATION OF THREE AGREEMENTS OR CONVENTIONS CONCLUDED BETWEEN THE EUROPEAN COMMUNITY AND GREECE, SPAIN
AND AUSTRIA . THESE QUESTIONS AROSE IN THE CONTEXT OF CRIMINAL PROCEEDINGS FOR FORGERY AND UTTERING OF FORGED DOCUMENTS AND INFRINGEMENTS OF CUSTOMS LEGISLATION AGAINST MR BOUHELIER AND OTHERS . THAT JUDGMENT FOLLOWS AN EARLIER JUDGMENT OF 19 MAY 1976 BY THE SAME COURT, CONCERNING THE SAME ACCUSED AND THE SAME CHARGES, WHICH WAS BASED ON THE FOLLOWING FACTS :
2 THE FRENCH LAW NO 48-1228 OF 22 JULY 1948 LAID DOWN THE CONSTITUTION OF TECHNICAL CENTRES FOR INDUSTRY WHOSE MAIN OBJECT WAS TO ENSURE HIGH STANDARDS OF QUALITY IN INDUSTRY, AND A MINISTERIAL DECREE OF 22 APRIL 1949, ADOPTED PURSUANT TO THAT LAW, SET UP A TECHNICAL CENTRE FOR INDUSTRY - A PUBLIC UTILITY INSTITUTION - CALLED CETEHOR, THE MAIN TASK OF WHICH IS TO CONTROL THE QUALITY OF LEVER-ESCAPEMENT WATCHES AND WATCH MOVEMENTS INTENDED FOR EXPORT . TWO NOTICES TO EXPORTERS FROM THE MINISTRY OF FINANCE AND ECONOMIC AFFAIRS, DATED 30 OCTOBER 1962 AND 24 NOVEMBER 1964, REQUIRE A LICENCE FOR THE EXPORT OF SUCH WATCHES AND WATCH MOVEMENTS EXCEPT FOR ARTICLES ACCOMPANIED BY A STANDARDS CERTIFICATE ISSUED BY CETEHOR, WHICH THEN REPLACES THE EXPORT LICENCE .
3 DURING 1972 THE ACCUSED BOUHELIER AND OTHERS FORGED INSPECTION CERTIFICATES ISSUED BY CETEHOR AND, UNDER COVER OF THOSE FORGED DOCUMENTS, EXPORTED LEVER-ESCAPEMENT WATCHES TO OTHER MEMBER STATES .
4 ACCORDINGLY THE JUDGMENT OF 19 MAY 1976 SUBMITTED TO THE COURT OF JUSTICE A REFERENCE FOR A PRELIMINARY RULING ON THE INTERPRETATION OF ARTICLE 34 OF THE TREATY, AND THE COURT, BY A JUDGMENT OF 3 FEBRUARY 1977 (( 1977 ) ECR 197 ) RULED :
' ' THE EXPRESSION ' QUANTITATIVE RESTRICTIONS ON EXPORTS AND ANY MEASURES HAVING EQUIVALENT EFFECT '
CONTAINED IN ARTICLE 34 OF THE EEC TREATY MUST BE UNDERSTOOD AS APPLYING TO RULES ADOPTED BY A MEMBER STATE WHICH REQUIRE IN RESPECT ONLY OF THE EXPORT OF CERTAIN GOODS EITHER A LICENCE OR A STANDARDS CERTIFICATE WHICH IS ISSUED IN PLACE OF SUCH LICENCE AND MAY BE REFUSED IF THE QUALITY DOES NOT CONFORM TO CERTAIN STANDARDS LAID DOWN BY THE BODY ISSUING THE SAID CERTIFICATE, EVEN IF SUCH CERTIFICATE DOES NOT GIVE RISE TO THE IMPOSITION OF A CHARGE . ' '
5 FOLLOWING THAT JUDGMENT, THE TRIBUNAL CORRECTIONNEL, BESANCON, BY A JUDGMENT OF 29 SEPTEMBER 1978 DISCHARGED THE ACCUSED ON THE COUNTS OF
FORGERY AND UTTERING FORGED CERTIFICATES FOR THE PURPOSE OF EXPORTS TO MEMBER STATES OF THE EEC, BUT AS THE ACCUSED WERE ALSO CHARGED WITH THE SAME OFFENCES IN RELATION TO EXPORTS OF WATCHES AND WATCH MOVEMENTS TO GREECE, SPAIN AND AUSTRIA - NON-MEMBER COUNTRIES LINKED TO THE COMMUNITY BY AGREEMENTS - THE NATIONAL COURT SUBMITTED THREE QUESTIONS TO THE COURT OF JUSTICE :
' ' 1 . WHETHER ITS INTERPRETATION OF ARTICLES 6, 28 AND 29 OF THE ASSOCIATION AGREEMENT CONCLUDED ON 9 JULY 1961 BETWEEN THE EUROPEAN COMMUNITY AND GREECE ALLOWS A MEMBER STATE OF THE EEC TO REQUIRE FROM ITS EXPORTERS TO GREECE EITHER AN EXPORT LICENCE OR A CERTIFICATE IN PLACE THEREOF, WHERE SUCH CERTIFICATE DOES NOT GIVE RISE TO THE IMPOSITION OF A CHARGE AND MAY BE REFUSED ONLY IF THE QUALITY OF THE GOODS DOES NOT CONFORM TO THE STANDARDS LAID DOWN BY THE BODY ISSUING THE CERTIFICATE ;
2 . WHETHER ITS INTERPRETATION OF THE TERMS OF THE AGREEMENT CONCLUDED ON 29 JUNE 1970 BETWEEN THE EEC AND SPAIN, IN PARTICULAR ARTICLES 1, 8 AND 12 THEREOF, ALLOWS A MEMBER STATE OF THE EEC TO REQUIRE FROM ITS EXPORTERS TO SPAIN EITHER AN EXPORT LICENCE OR A CERTIFICATE IN PLACE THEREOF, WHERE SUCH CERTIFICATE DOES NOT GIVE RISE TO THE IMPOSITION OF A CHARGE AND MAY BE REFUSED ONLY IF THE QUALITY OF THE GOODS DOES NOT CONFORM TO THE STANDARDS LAID DOWN BY THE BODY ISSUING THE CERTIFICATE ;
AND, IN PARTICULAR, WHETHER OR NOT THE REQUIREMENT OF SUCH CERTIFICATE CONSTITUTES A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE ;
3 . WHETHER ITS INTERPRETATION OF THE TERMS OF THE INTERIM AGREEMENT CONCLUDED ON 22 JULY 1972 BETWEEN THE EEC AND THE REPUBLIC OF AUSTRIA, IN PARTICULAR ARTICLES 10 AND 16 THEREOF, ALLOWS A MEMBER STATE OF THE EEC TO REQUIRE FROM ITS EXPORTERS TO AUSTRIA EITHER AN EXPORT LICENCE OR A CERTIFICATE IN PLACE THEREOF, WHERE SUCH CERTIFICATE DOES NOT GIVE RISE TO THE IMPOSITION OF A CHARGE AND MAY BE REFUSED ONLY IF THE QUALITY OF THE GOODS DOES NOT CONFORM TO THE STANDARDS LAID DOWN BY THE BODY ISSUING THE CERTIFICATE ;
AND, IN PARTICULAR, WHETHER OR NOT THE REQUIREMENT OF SUCH CERTIFICATE CONSTITUTES A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE ' ' .
6 WITH REGARD TO THOSE QUESTIONS, IT MUST BE EMPHASIZED THAT THE VIEW ADOPTED BY THE COURT IN ITS JUDGMENT OF 3 FEBRUARY 1977 CONCERNS INTRA-COMMUNITY RELATIONS, THE CHARACTERISTIC FEATURE OF WHICH IS A COMPLETE LIBERALIZATION OF TRADE, AS A RESULT OF THE ABOLITION OF ALL OBSTACLES TO IMPORTS AND EXPORTS . THOSE PROVISIONS CANNOT AS SUCH BE TRANSPOSED TO RELATIONS WITH NON-MEMBER COUNTRIES . THE QUESTION OF ABOLISHING QUANTITATIVE RESTRICTIONS AND MEASURES HAVING EQUIVALENT EFFECT IN RELATIONS WITH THE THREE NON-MEMBER COUNTRIES REFERRED TO BY THE NATIONAL COURT - GREECE, SPAIN AND AUSTRIA - MUST BE CONSIDERED IN THE LIGHT OF THE AGREEMENTS IN FORCE BETWEEN THE COMMUNITY AND THE STATES IN QUESTION . AS THOSE PROVISIONS ARE NOT IDENTICAL, THE CASE OF EXPORTS TO EACH OF THOSE COUNTRIES MUST BE EXAMINED SEPARATELY .
7 ARTICLE 28 ( 1 ) OF THE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE EEC AND GREECE ON 9 JULY 1961 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION, SECOND SERIES, I ( 1 ) P . 4 ) PROVIDES THAT ' ' QUANTITATIVE RESTRICTIONS ON EXPORTS, AND ALL MEASURES HAVING EQUIVALENT EFFECT, SHALL BE PROHIBITED BETWEEN THE CONTRACTING PARTIES ' ' . THE WORDING OF THAT PROVISION IS SIMILAR TO THAT OF ARTICLE 34 ( 1 ) OF THE TREATY .
8 HOWEVER, IT SHOULD BE NOTED THAT, BY VIRTUE OF THE SECOND SUBPARAGRAPH OF ARTICLE 28 ( 1 ), THAT PROVISION WAS NOT IMPLEMENTED UNTIL THE END OF THE TRANSITIONAL PERIOD PROVIDED FOR IN ARTICLE 6 OF THE AGREEMENT, THAT IS TO SAY AFTER 1 NOVEMBER 1974 . THEREFORE IT DID NOT TAKE EFFECT UNTIL THE END OF THAT PERIOD . IT COULD ONLY HAVE TAKEN EFFECT EARLIER AS A RESULT OF A RECOMMENDATION OF THE COUNCIL OF ASSOCIATION, ADOPTED IN ACCORDANCE WITH ARTICLE 29 OF THE AGREEMENT ; IN THE ABSENCE OF SUCH A RECOMMENDATION, UNTIL 1 NOVEMBER 1974, AND HENCE AT THE MATERIAL TIME, THERE WAS NO OBLIGATION ON THE COMMUNITY AND ITS MEMBER STATES TO ABOLISH, AS REGARDS TRADE WITH GREECE, CONTROLS OF THE TYPE WHICH THE DEFENDANTS IN THE MAIN ACTION ARE ACCUSED OF INFRINGING .
9 THE OBJECT OF THE AGREEMENT BETWEEN THE COMMUNITY AND SPAIN CONCLUDED ON 29 JUNE 1970 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION, SECOND SERIES, I ( 1 ), P . 269 ) IS THE PROGRESSIVE ELIMINATION OF OBSTACLES TO THE MAIN BODY OF TRADE BETWEEN THE CONTRACTING PARTIES . ARTICLE 12 OF THAT AGREEMENT PROVIDES THAT THE PROVISIONS OF THE SAID AGREEMENT ' ' SHALL NOT PRECLUDE PROHIBITIONS OR RESTRICTIONS ON IMPORTS, EXPORTS OR GOODS IN TRANSIT JUSTIFIED ON GROUNDS OF PUBLIC MORALITY, PUBLIC POLICY OR PUBLIC SECURITY ; THE PROTECTION OF HEALTH AND LIFE OF HUMANS, ANIMALS OR PLANTS ; THE PROTECTION OF NATIONAL TREASURES POSSESSING ARTISTIC, HISTORIC OR ARCHAEOLOGICAL VALUE ; OR THE PROTECTION OF
INDUSTRIAL AND COMMERCIAL PROPERTY . SUCH PROHIBITIONS OR RESTRICTIONS SHALL NOT, HOWEVER, CONSTITUTE A MEANS OF ARBITRARY DISCRIMINATION OR A DISGUISED RESTRICTION ON TRADE ' ' .
10 ARTICLE 12 OF THE AGREEMENT DOES NOT CONCERN QUALITY CONTROLS SUCH AS THOSE INVOLVED IN THE CASE BEFORE THE NATIONAL COURT . THEREFORE THAT PROVISION IS NOT APPLICABLE TO THIS CASE . MOREOVER IT SHOULD BE NOTED THAT THE AGREEMENT DOES NOT CONTAIN ANY PROVISION RELATING TO THE PROHIBITION OF QUANTITATIVE RESTRICTIONS ON EXPORTS, OR OF MEASURES HAVING EQUIVALENT EFFECT . IN THOSE CIRCUMSTANCES, THE AGREEMENT DOES NOT IMPOSE ANY OBLIGATION ON THE COMMUNITY OR ITS MEMBER STATES AS REGARDS THE ABOLITION OF SUCH MEASURES .
11 FINALLY, THE INTERIM AGREEMENT CONCLUDED ON 22 JULY 1972 BETWEEN THE COMMUNITY AND AUSTRIA ( JOURNAL OFFICIEL, 29 SEPTEMBER 1972, L 223, P . 1 ) WHICH CAME INTO FORCE ON 2 OCTOBER 1972 CANNOT BE INVOKED TO CALL IN QUESTION THE APPLICATION OF THE DISPUTED FRENCH RULES WITH REGARD TO EXPORTS OF WATCHES TO AUSTRIA . IN FACT, ARTICLE 10 OF THAT INTERIM AGREEMENT PROHIBITS FURTHER QUANTITATIVE RESTRICTIONS, WHICH DOES NOT OBLIGE THE PARTIES TO ABOLISH THE EXISTING RESTRICTIONS .
MOREOVER, ARTICLE 16 OF THE SAID AGREEMENT, THE CONTENT AND WORDING OF WHICH CORRESPOND TO ARTICLE 12, QUOTED ABOVE, OF THE AGREEMENT CONCLUDED WITH SPAIN, MUST BE INTERPRETED IN THE SAME SPIRIT AS THAT AGREEMENT AS SET OUT ABOVE .
Decision on costs
COSTS
12 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER ),
IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE TRIBUNAL CORRECTIONNEL, BESANCON, BY A JUDGMENT OF 29 SEPTEMBER 1978, HEREBY RULES :
THE APPLICATION DURING 1972 OF THE RULES OF A MEMBER STATE REQUIRING FOR THE EXPORT OF CERTAIN GOODS TO NON-MEMBER COUNTRIES A LICENCE OR
ALTERNATIVELY A STANDARDS CERTIFICATE, WHICH MAY BE REFUSED IF THE QUALITY IS NOT IN ACCORDANCE WITH CERTAIN PROVISIONS LAID DOWN BY THE AUTHORITY ISSUING THE CERTIFICATE AND WHICH DOES NOT GIVE RISE TO THE IMPOSITION OF ANY CHARGE, WAS NOT INCOMPATIBLE WITH THE AGREEMENT ESTABLISHING AN ASSOCIATION BETWEEN THE COMMUNITY AND GREECE CONCLUDED ON 9 JULY 1961, OR WITH THE AGREEMENT BETWEEN THE COMMUNITY AND SPAIN CONCLUDED ON 29 JUNE 1970, OR WITH THE INTERIM AGREEMENT CONCLUDED BETWEEN THE COMMUNITY AND AUSTRIA ON 22 JULY 1972 .