4.

From the considerations set out above it may be established that the financing of the Irish Goods Council by the Irish Government is not an action which may be assessed independently in the light of Community law but is only part of the evidence of the connection between the Government and the Council. Therefore I do not share the view expressed in the Commission's reply to the questions put to it by the Court to the effect that such financing of itself constitutes a measure having equivalent effect within the meaning of Article 30. It is certainly not the public financing of the Irish Goods Council that impedes imports from other Member States; rather, there is a danger that certain activities of the Council may adversely affect intra-Community trade, and public financing is an important factor in relation to the question of the link between those activities and the Irish Government. Having clarified that point, we must now broach the central issue in this case: namely, whether an advertising campaign for the promotion of domestic products, which may be considered to be attributable to the government of a Member State, either because it is conducted by an institution financed and controlled by that government or because it is supported by ministers' speeches and technical cooperation on the pan of the public authorities, is covered by the prohibition on measures having an effect equivalent to quantitative restrictions on imports (Article 30 of the EEC Treaty). I will state at once that, in my opinion, the problem cannot be resolved on the basis of the arguments put forward by the Commission and derived from the provisions of Commission Directive No 70/50 of 22 December 1969 on the abolition of measures which have an effect equivalent to quantitative restrictions on imports and are not covered by other provisions adopted in pursuance of the EEC Treaty. According to Article 2 (2), the direttive covers “... measures which favour domestic products or grant them a preference, other than an aid, to which conditions may or may not be attached”; that definition includes in particular, as is stated in Article 2 (3) (k), measures which “hinder the purchase by private individuals of imported products only, or encourage, ( 2 ) require or give preference to the purchase of domestic products only”. The second recital in the preamble to the directive states that for these purposes “‘recommendations’ ( 2 ) means any instruments issuing from a public authority which, while not legally binding on the addressees thereof, cause them to pursue a certain conduct”. In fact, even if the provision contained in Article 2 (3) (k) could be regarded as containing a form of legislative interpretation of the term “measures having equivalent effect” in Article 30 of the EEC Treaty (that is to say, a form of interpretation which is generally binding in effect), there would be reason to doubt whether the advertising conducted in this case by an institution which is connected with the Irish Government but does not have the power of a public authority, could be described as a recommendation issuing from a public authority and capable of determining the conduct of the addressees: that type of measure is reminiscent rather of a recommendation made by a public office to dependent offices in order to persuade them to buy only domestic products. But in any event the better view is that the Commission did not have the power to define by its own rules the concept of measures having an effect equivalent to a quantitative restriction. The directive in question was adopted by the Commission on the basis of Article 33 (7) of the EEC Treaty; reference is in fact made to that provision both in the first recital in the preamble and in the title of the directive (where it is stated that the directive is “based on the provisions of Article 33 (7)”). That provision states that: “The Commission shall issue directives establishing the procedure and timetable in accordance with which Member States shall abolish, as between themselves, any measures in existence when this Treaty enters into force which have an effect equivalent to quotas.” Thus the usk entrusted to the Commission consisted only in laying down the procedure and the timeuble for the abolition of measures having equivalent effect. It does not seem to me that that implied that the Commission was entitled to determine the scope of the term “measures” in Article 30. On that point the Commission observes that, because in order to lay down the timeuble and procedure for the abolition of such measures it was essential to define the scope of the words “measures having an effect equivalent to quantiutive restrictions”, it was for the Commission itself to implement Article 30 even in this subsuntive sense. However, I do not think that such an argument can be accepted. It is one thing to issue procedural rules — which, according to the second paragraph of Article 32 are to have effect only during the transitional period — and another to adopt measures relating to the substantive scope of a provision as complicated as Article 30. Nor is it valid to object, as does the Commission, that the Member States have never challenged the 1969 directive: a measure which is illegal on the ground of lack of competence cannot be made legal by the Member States' acquiescence, and, moreover, up to now there has never been litigation which has called in question the compatibility with Article 30 of non-binding intervention on the part of the public authorities. I therefore remain of the opinion that the guidelines included in Commission Directive No 70/50 can have no bearing on die problem to be solved in this case; they merely demonstrate the Commission's consistency in its interpretation of Article 30.