4.

It is necessary to consider the nature of the application for the adoption of interim measures made by the Commission against the French Government in the light of what has just been said. It is true that the application is joined to a main action: as has been seen, it is made in relation to Joined Cases 24 and 97/80. But is it possible to say that it remains within the scope of those cases? From the point of view of the aim the answer must be in the affirmative: the aim is practically the same as that of the aforesaid cases. More precisely the two Cases 24 and 97/80 seek a declaration from the Court that the French Republic has infringed Article 171 of the EEC Treaty by not complying with the judgment of the Court of 25 September 1979 and has continued to disregard the obligations imposed by Articles 12 and 30 of the EEC Treaty; the application for interim measures seeks an order from the Court that the French Republic should cease to apply any restrictive system of imports of mutton and lamb, that is to say put an end to the infringement of the said Articles 12 and 30. From the point of view of the aim pursued however, the application in question seems to exceed the scope of the aforesaid cases. The Commission has admitted that it is seeking to obtain compliance with the judgment of 25 September 1979, but an order to comply with that judgment must be final and not interim. In other words the independent nature and binding force of the judgment which has already been given by the Court accords ill with the proposition that the Court itself may order enforcement thereof until the date of the new judgment; such limitation in time is however inherent in the nature of interim measures. It may be objected that the Commission is persuaded that by bringing Joined Cases 24 and 97/80 it will obtain from the Court a judgment recognizing the infringement by France of Article 171 of the EEC Treaty and requiring it once again to dismantle its national organization of the market in mutton and lamb. But while we must recognize the necessity for a second judgment based on Article 171 where a Member State has not complied with an earlier judgment of the Court — for as is known the Community institutions have no means of enforcement — it is not logically possible on the other hand to justify the interposition between the two judgments, both of which are final, of an order for the same purpose but of a temporary nature. A second kind of difficulty arises in the present case in connexion with the relationship between the application for the adoption of interim measures and the decision on the main application. I ‘have said that the issue, having regard to the positions adopted by the parties, concerns not the obligation to comply with the judgment of 25 September 1979, which the French Republic recognizes, but the time aspect of that obligation: that is, whether it is possible to accept that that Member State has a certain period of time (and if so what) to comply with the said judgment. Now it is clear that the order for interim measures sought by the Commission would resolve that problem immediately: the French case in the main application would be by implication rejected by an order to adopt “sans délai” all domestic measures in accordance with the judgment whilst according to the defendant, Article 171 allows a “délai raisonnable” for taking such measures. However, the principle that an interim measure cannot prejudice the definitive decision in the action seems to me to prevent in the present case acceding to the application of the Commission. It is not possible to answer that the judgment of 25 September 1979 has already rejected the French claim to maintain the national organization of the market in mutton and lamb so long as no common organization of the market has been set up in that sector (second sentence of paragraph 8 of the decision). In fact this finding by the Court is one of the fundamental premises on which it relied in declaring the infringement by France of Articles 12 and 30 of the EEC Treaty as from 1 January 1978; but I do not think that the same finding also resolved the question of the time for complying with the judgment. That question, as the parties have in the meantime recognized, has aspects of a general interest and in any event could be resolved in this case on the basis of criteria other than either automatic and immediate compliance with the judgment or postponement of compliance until the establishment of a common organization of the market. I observe in this respect that during the oral procedure the Commission did not deny that it was necessary for Member States to have a certain period in which to comply with judgments which require them to adopt domestic measures; it preferred to state that the six months which have passed since the judgment have given sufficient time for compliance. The Commission has also asked the Court to resolve the question of “délai raisonnable” and stated in its application for the adoption of interim measures (foot of page 8) that it was “very much in the interest of'the Commission to ask the Court to bring this uncertainty to an end by defining more clearly the point which it left open in its judgment in Case 232/78”. It seems clear to me in any event that such a clearer definition can be given by the Court only in the main judgment and the claim to resolve this central issue in the dispute by means of the procdure for urgent interim measures is in clear contrast to the nature of those measures as I have previously explained. Finally it is worth noting that the Commission's application which seeks an order to stop applying any restrictions on imports of mutton and lamb, would give rise, if granted, to a situation which could scarcely be reversed (both for economic and social reasons) and would not be merely temporary. It is true that the final dismantling of the organization of the market in question would be quite consistent with the said judgment in Case 232/78 and would be capable of putting an end to the issue between the Commission and the French Republic, but for that very reason it is not possible for the judicial means sought to achieve such result to be the instrument of the interim measure. I do not need to stress the point: it is clear that the inconveniences that I have so far pointed out are the related and cumulative aspects of a single phenomenon which I would describe as the improper use of the procedural instrument of interim measures.