Opinion of Mr Advocate General Sir Gordon Slynn delivered on 14 January 1988. - Commission of the European Communities v French Republic. - Failure of a State to fulfil its obligations - Free movement of goods - Substitutes for milk powder and concentrated milk. - Case 216/84.



European Court reports 1988 Page 00793



Opinion of the Advocate-General

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My Lords,

When I delivered my first Opinion in this case, I came to the conclusion that Article 1 of the French Law of 29 June 1934, restricting the sale and importation of certain milk substitute products, was contrary to Article 30 of the Treaty . Just over a year after I gave that Opinion the Council adopted a Regulation, No 1898/87 of 2 July 1987, on the protection of designations used in marketing of milk and milk products ( Official Journal 1987, L 182, p . 36 ). The French Government submitted to the Court that the adoption of that regulation was a new factor which ought to be taken into account in the present case .

That regulation recites that, "Member States having already taken national measures to curb the manufacture and marketing of these products (( which appears to mean milk substitute products, though it may mean both milk and milk substitute products )) on their territory must maintain their regulations, in compliance with the general rules of the Treaty, until the end of the fifth 12-month period of application of the supplementary levy in the milk sector ". I draw the Court' s attention to the fact that the English version is imperative (" must maintain ") and it seems to me different from the French text, where it is merely said : "il convient que les Etats membres ... maintiennent leur réglementation ". It also seems to be somewhat different from the German text, which I read as being exhortatory rather than mandatory in the use of the word "sollten" in the last recital .

The article of the regulation which is of principal interest in the present proceedings is Article 5 which provides that, "Member States may, until the end of the fifth period of application of Article 5c of Regulation ( EEC ) No 804/68 and in compliance with the general provisions of the Treaty, maintain their national regulations which restrict the manufacture and marketing in their territory of products not fulfilling the conditions referred to in Article 2 of this regulation ".

The Court, by letter of 10 December 1987, accordingly invited the Republic of France and the Commission to address themselves to the questions ( 1 ) whether Article 5 had retroactive effect and ( 2 ), if so, what was the effect of that Article in relation to the action now before the Court .

The regulation is concerned and only concerned, as I read it, with the protection of designations used in the marketing of milk and milk products . Article 2 of the regulation defines "milk" and "milk products" and makes rules as to what may be called "milk" and what designations may be used for milk products . Article 5, which was not in the Commission' s original proposal, is somewhat loosely worded . It appears to be concerned to authorize the maintenance of national regulations forbidding the use of the designations specified (" milk" and so on ) except for milk and milk products as defined in the regulation . It permits national regulations already in force at the date of coming into effect of the regulation to be maintained . It clearly does not authorize the introduction of new regulations . Its precise effect may be of some doubt . It is perhaps rather strange that a Community regulation should seek to authorize the maintenance of what is already lawful under Community law . Its intention, however, appears to be to make a declaration as to what Member States may do pending the subsequent report of the Commission and the adoption of new rules under Article 4 .

The first question is whether this provision can have retroactive effect at all . One suggestion made is that the use of the word "maintain" in some way makes lawful that which was done in the past . That seems to me to be a quite untenable argument . The word "maintain" is plainly related to the keeping in force for the future of what is already in existence .

Provisions of this kind do not, as a matter of Community law, have retrospective or retroactive effect unless they so provide expressly or by necessary implication . The Court' s position is very clear and is to be found in Case 98/78 Racke v Hauptzollamt Mainz (( 1979 )) ECR 69, at p . 86 and Case 99/78 Decker v Hauptzollamt Landau (( 1979 )) ECR 101 at p . 111 in these terms : "Although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected ".

In this case there is no express provision as to retroactivity . I cannot find that there is any need or justification for inferring from the structure and from the aims of the regulation as a whole that it should have such retroactive effect . It is sufficient for the purpose of the regulation that what was already in existence may be maintained to restrict the manufacture and marketing of milk and milk products not fulfilling the conditions referred to in Article 2 of the regulation, pending the adoption of rules under Article 4 and notwithstanding the other provisions of the regulation . Accordingly, in my view, this provision clearly has effect only from the date when it came into force, prospectively and only for the period which is specified, that is until the end of the fifth period of application of Article 5c of Regulation No 804/68 ( Official Journal English Special Edition 1968(I ), p . 176, as amended ).

If that is right and the provision can have no retroactive effect it obviously cannot affect the application of the Commission to the effect that at the date of the application and up to July 1987 the French rules were contrary to Article 30 of the Treaty .

There is, however, another point, which seems to me to be of no less importance . Article 5 clearly provides as an overriding provision that Member States may only maintain such national regulations as are "in compliance with the general provisions of the Treaty ". In my view those "general provisions" clearly include the prohibitions on the barriers to the free movement of goods across Member States' frontiers which are contained in Article 30 . Accordingly, once it is established that a national regulation constitutes a measure equivalent to a quantitative restriction, it is not one which can lawfully be maintained in accordance with Article 5 . It seems to me quite impossible for a provision of this kind to authorize national regulations which are in violation of Article 30 of the Treaty . If Article 5 were to be interpreted differently, it seems to me that there would be considerable doubt as to whether the article was valid at all . However, that question on my interpretation does not arise . This overriding provision would prevent national regulations from being maintained in contravention of Article 30, even if the view were taken that the regulation could in some way have retroactive effect .

Counsel for France today has referred in some detail to the upward trend in the imports of milk substitute products into the Community and to the concern which is felt by the dairy sector at those imports . Those matters were referred to in the previous hearing . It seems to me that, although they may explain why this regulation has been adopted, they cannot have any effect on its interpretation .

Accordingly, I conclude in the present reopened proceedings that the result which I reached in the earlier Opinion is not affected by the new regulation and I would make the same order as before, both as to the substance and as to the costs, including the costs of today' s proceedings .