OPINION OF MR ADVOCATE GENERAL MAYRAS

DELIVERED ON 6 MARCH 1979 ( 1 )

Mr President,

Members of the Court,

This case under Article 169 of the EEC Treaty is the appropriate framework within which to decide the abstract question which was referred to this Court in the Meijer case by the High Court, Queen's Bench Division, Commercial Court, in London. That case was lodged at the Court Registry on 19 May 1978, I gave my opinion on it on 22 November 1978, and the case is still pending before the Court at the date of this opinion. The present action is between the true protagonists, that is to say the Commission, which is responsible under Article 155 of the Treaty for ensuring that the provisions of the Treaty are applied, and the Government of the United Kingdom, which adopted the measure which gives Meijer B.V. among others cause for complaint.

Before the opening of the oral procedure, the French Government applied for leave to intervene in support of the conclusions of the Government of the United Kingdom, pursuant to Article 93 of the Rules of Procedure. By an order of 15 January 1979, the Court allowed the intervention, and the French Government submitted observations which are very similar to those which it put forward in reply to an application by the Commission, lodged under No 232/78, for a ruling that the French Republic had failed to fulfil its obligations under Articles 12 and 30 of the Treaty of Rome by continuing to apply a restrictive national system to the importation of sheepmeat from the United Kingdom after 1 January 1978.

I should like to stress from the outset the objective nature of this intervention. It might have been thought that the French Government, whose economic interests in the potato sector are not very different from those of the Netherlands Government, would rather have submitted observations having the same tenor as those of the Netherlands Government. France is also an important producer of potatoes, and when prices fall in Rotterdam they also fall in Arras. Likewise, it is significant that the Government of the United Kingdom did not intervene in support of the Commission's conclusions in the aforementioned Case No 232/78, although its interests in the sector lie in the same direction as the arguments put forward by that institution. It therefore appears that the two governments share the same opinion on the interpretation which should be given to Article 60 of the Act of Accession, whatever the economic interests at issue may be.

As I said in relation to the Meijer case, the opinion which I delivered in that case necessarily pre-determines my position in the present case, consideration of which cannot lead me to change my opinion on the interpretation of the relevant provisions of the Act of Accession. Furthermore, the Commission waived its right to reply, which made a rejoinder from the United Kingdom unnecessary. However, as the Commission submitted further observations following the French Government's observations by way of intervention, I feel I must add the following.

The Commission states that as early as July 1975 it wrote to the governments of all the Member States drawing their attention to the implications of the judgement in the Charmasson case, and that its point of view concerning free movement of potatoes was accepted by ail the new Member States except the United Kingdom. However, in my view, the fact that the Commission felt that it could draw these conclusions and that two of the new Member States did accept its point of view is a matter of fact which has no effect in law on the proper interpretation of the Act of Accession.

Similarly, the case-law cited by the Commission (judgment of 21 March 1974 in Case 151/73, Ireland v Council [1974] ECR 285; judgments of 31 October 1974 in Case 15/74 Centra/arm v Sterling Drug and in Case 16/74 Centrafarm v Winthrop [1974] ECR 1147 and 1183; judgment of 16 March 1977 in Case 68/76 Commission v France [1977] ECR 515) concerns either products covered by a common organization of the market or industrial products or, finally, restrictions on exports from one of the original Member States.

On the other hand, the Commission now expressly admits that under the Act of Accession there is not a single transitional period but rather a series of transitional mesasures intended to facilitate the adjustment of the new Member States to the rules in force within the Communities. It maintains, however, that at the time when it was drafted, Article 60 was not regarded as constituting a transitional measure. Together with the Agent of the United Kingdom, I find it impossible to accept this argument: that article appears in Part Four of the Act, which bears the very title ‘Transitional Measures’. Article 60 (1) applies the rules of the Treaty concerning freedom of movement to products covered by a common organization of the market only as from 1 February 1973, and even then only subject to the imposition of ‘compensatory amounts’; the question of ‘immediate effect’ could arise only if that application had taken effect as from1 January 1973.

In support of its argument, the Commission maintains, in essence, that the words ‘until the common organization of the market for these products is implemented’ are redundant. Once again, I cannot accept this point of view: the authors of the Act of Accession weighed their words carefully after long negotiations.

Finally, in particular in its oral observations, the Commission attempted to clear up what it refers to as a certain number of ‘misunderstandings’ underlying the comments which I made in my aforementioned opinion on the lack of consistency which I felt I perceived between its arguments in the present dispute and the attitude which it adopted in relation to its ‘legislative’ proposals.

Without wishing to prolong a discussion which is not appropriate to this stage of the proceedings, I must say that I do not think that those statements affect the reasoning which I put forward to the effect that if Community transitional measures were considered necessary even after the introduction of a definitive common organization of the market, then in the absence of such an organization the existing national organization could not suddenly be suppressed without any transition. Although it may by considered in certain countries that everything is in order and that the market operates well even without a common organization, in other countries a different view may legitimately be taken.

What I meant to say in analysing the work in progress concerning the establishment of common organizations of the market in potatoes, sheepmeat, and ethyl alcohol of agricultural origin was that common organizations of the market were in fact considered desirable by the Community authorities responsible for those agricultural products, and that for that very reason it was not believed in those circles that those sectors could operate satisfactorily, as regards the pursuit of the aims set out in Article 39 of the Treaty, on the basis of the general rules on free movement of goods alone. I have since learnt that the Commission has withdrawn its proposal for a definitive organization of the market in sheepmeat, but that does not change anything on this point.

The Commission states that since 1 January 1978 differences in producer prices for potatoes have grown considerably smaller in all the Member States and that the abolition of the restrictions imposed in the United Kingdom would not have such a dramatic effect for producers in that country. However, as the Agent of the United Kingdom appositely pointed out, this was not the case when the Commission delivered its reasoned opinion, and it is by no means guaranteed that it will always be the case. At all events, the interpretation of the Act of Accession can no more depend upon a particular short-term economic situation than upon correspondence exchanged with Member States.

In this connexion I would point out that the measures adopted by the United Kingdom formed part of a national market organization at the date of accession. In answer to a question which the Court put to it, the Commission admitted, as indeed it had already acknowledged in its application (page 10, item 20), that ‘it may even be the case that such restrictions are necessary to ensure the maintenance of the national organization in its present form, since it is likely that the removal of import restrictions in a time of surplus would force the British Government to abandon their system of intervention buying’. This not altogether unequivocal answer cannot reverse the burden of proof incumbent upon the Commission. I would add that a national system designed directly to assist potato producers in the United Kingdom by means of minimum prices or deficiency payments or more or less concealed aid notified under more or less irregular circumstances is, from the point of view of Netherlands exporters, hardly preferable to the present system.

I shall recall ad abundantiam the main arguments which in my opinion show that, at the time of the negotiations which led to accession, the authors of Article 9 of the Act deliberately departed from the wording of Article 8 (7) of the Treaty of Rome:

The period of five years (1 January 1973 to 1 January 1978) was much shorter than the period of 12 years laid down by the corresponding provisions of the EEC Treaty; by comparison, a period of ten years is currently envisaged for the accession of Spain.

The choice of the words used in drafting Article 9 of the Act requires a more flexible interpretation than that of the words used in Article 8 of the EEC Treaty. As the Agent of the French Government suggested, the present dispute may have the result that in the negotiations on enlargement the authors will, at least in the agricultural sector, make the transition from one stage to another depend much more explicitly not on the automatic expiry of a certain period but on the finding that the essential part of the objectives specifically fixed for each stage has actually been achieved and that the undertakings given have been honoured, if necessary by making systematic use of safeguard clauses or by postponing certain actions sine die.

The whole system of Part Four of the Act of Accession is based on a body of specific ‘transitional’ measures. Of course this does not mean that according to this interpretation the measures adopted by the United Kingdom can be maintained indefinitely. That would be the case only if certain Member States persisted, from a position of strength, in agreeing only to a common organization offering no equivalent guarantees for the employment and the standard of living of producers in countries having a national organization. In this area, as in others, compromises will have to be found, and I have no doubt that the politicians responsible will show the necessary imagination.

In the meantime, it is inevitable that disparities should continue to exist between the original States and the new Member States, but this situation results not from the Act of Accession but from the decision in Charmasson.

Does it necessarily follow from this that the original Member States can legitimately take retaliatory measures against potatoes coming from the United Kingdom?

So far as reciprocity is concerned, such a situation could be justified by the consideration that the original Member States adopted only equivalent obligations in relation to the new States, and that the pace of and procedure for the elimination of quantitative restrictions must be the same for all the States.

However, for the purpose of deciding this case, I do not think that it is necessary to go further into this question, which remains highly academic because, in my view, there is no possibility of United Kingdom producers being able to compete with Netherlands producers on their home ground and because the potato war will probably never happen.

For the reasons which I have already set out, I consider therefore that Article 60 (2) of the Act of Accession continues to operate until a common organization of the market for potatoes is implemented, since it was not the purpose or effect of Article 9 of the Act to impose a uniform transitional period but only to provide for certain transitional measures which do not expire at the end of 1977 except where dates, time-limits and special provisions have not provided otherwise in accordance with Article 9 (2). Accordingly, the applicability of Article 60 (2), which constitutes a special provision within the meaning of Article 9 (2) of the Act, is not limited in time to 31 December 1977.

My opinion is that the application should be dismissed and that the Commission should be ordered to bear the costs, including those arising from the intervention.

( 1 ) Translated from the French.