2.

In addition—and this is the second observation called for by the argument put forward by the Italian Government—in order to ascertain the scope of the decision in dispute and whether it may be reconciled with reservations which would reduce its scope, one must examine the legal nature of this decision and its place in the system established by the Treaty. On this point, there can be no doubt. It is a decision taken under Article 235 of the Treaty, which, once made, has all the effects attributed to a decision by Article 189. There is no need to recall that under Article 235 if action by the Community should prove necessary to attain, in the course of the operation of the Common Market, one of the objectives of the Community and the Treaty has not provided the necessary powers the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, take the ‘appropriate measures’. This occurred in this instance. If reference is made to the reasons for the decision in dispute, it can be seen that one of the objectives of the Community is to realize the establishment of the Common Market within the shortest possible period, that action by the Community is necessary for this purpose and that as the Treaty has not provided the necessary powers in specific provisions it is necessary to resort to Article 235 of the Treaty. It refers to the Commission's proposal and to the opinion of the Assembly. It was on this basis that the Council adopted its decision, Article 4 of which states that it is addressed to the Member States. The form taken by the Council's action under Article 235 may of course vary according to the circumstances, since this article refers to ‘appropriate measures’. It may be a regulation (cf. for example Regulation No 167/64/EEC of the Council of 30 October 1964 on the levy applicable to certain blends of milk products and certain preparations containing butter, Official Journal No 173 of 31 December 1964, p. 2752/64). It may also be, as in this instance, a decision within the meaning of Article 189 and therefore ‘binding in its entirety upon those to whom it is addressed’. Such decisions are, of course, subject to special procedures and require the unanimous consent of the Council, but once these conditions have been fulfilled—and they are in the present case—it falls within the scope of the ordinary law set out in Article 189. Consequently, I am unable to share the opinion expressed at the hearing by the Agent of the Italian Republic when he referred to ‘this agreement which is called a decision, but which is in fact an international agreement’. To do so would lead you on to the shifting ground of decisions taken by the representatives of the governments of the Member States in Council, such as the two previous Acceleration Decisions of 12 May 1960 and 15 May 1962. However, contrary to what happened on that occasion, we are here dealing with a measure adopted by a, wholly and exclusively Community institution, which, once it has been adopted, is binding upon those to whom it is addressed, that is, upon the Member States. Such an act cannot give rise to any refusal to implement it or to any reservations on the part of those Member States, and the only remedy open to them is that provided under Article 173. If any additional proof was sought that the measure adopted by the Council is really a decision within the precise meaning of Article 189 it would be sufficient to refer to the terms used in the various language versions of this provision. This measure is called an ‘Entscheidung’ in German and ‘Beschikking’ in Dutch, which are the terms used in Article 189, whereas, for example, the wider and less precise terms ‘Beschluss’ and ‘Besluit’ have been used for the acceleration decisions taken by the representatives of the governments of the Member States in Council. However that may be, the wording of the decision in dispute is perfectly clear. Apart from the agricultural products listed in Annex II, it applies to all commodities covered by the customs tariff; it provides for no exception, restriction, qualification or period of grace for any product whatsoever, in particular for lead and zinc. In accordance with your established principles it is unnecessary to refer to the preliminary discussions; it is sufficient to apply the provision as it stands.