2.

In my view, it is however extremely doubtful whether, as the United Kingdom believes, the provision may still be regarded after the expiry of the transitional period as authorizing the adoption of national measures which are intended to neutralize unlawful action taken unilaterally by a Member State. It may indeed be tempting to use Article 46 to that end, since the imposition of countervailing charges is unquestionably an effective method of swiftly eliminating distortions of competition caused by unlawful conduct. However, I am extremely reluctant, to attach such a construction to the provision, principally on grounds related to the general scheme of the Treaty. In that connexion, I will again point out that in Charmasson ( 7 )the Court of Justice already had to consider inter alia whether, after the expiry of the transitional period, “the existence ... of a national market organization within the meaning of Articles 43, 45 and 46 of the Treaty” in a Member State could preclude the application of one of the provisions on the free movement of goods. In answer to that question it was stated that a national market organization could preclude the application of the provisions on the free movement of goods only until the end of the transitional period and that after the expiry of that period those provisions must be fully effective. That means that no rule of a national market organization and no measure having equivalent effect may be maintained in force after the expiry of the transitional period, if it is incompatible with the Treaty provisions on the free movement of goods. If the export subsidies granted for agricultural alcohol in 1976 within the framework of the French alcohol monopoly are to be regarded as equivalent to a body, within the meaning of the second subparagraph of Article 37 (1) ot the EEC Treaty, through which a Member State either directly or indirectly determines or at least appreciably influences trade between the Member States, then, on the basis of the judgments in Manghera, ( 8 )REWE ( 9 ) and Miritz, ( 10 ) the subsidies should have been adjusted at the latest by the end of the transitional period provided for in Article 37, since from that time the prohibition of discrimination contained in that article has been fully effective and has been applicable in the agricultural sphere, even where there is not yet a common organization of the market. Since therefore, after the expiry of the transitional period, national market organizations or rules having equivalent effect which do not conform to the Treaty are no longer permitted, even where there is no common organization of the market, Article 46, according to its original conception, was from that time on deprived of its significance in that respect. In particular, in the light of the decisions referred to, that provision may not be interpreted as meaning that Member States are authorized to maintain rules contrary to the Treaty even after the expiry of the transitional period by way of derogation from Article 38 (2), according to which “the rules laid down for the establishment of the common market shall apply to agricultural products”. Thus in Charmasson, ( 7 ) the Potatoes case ( 11 ) and Ramel ( 12 ) the Court of Justice expressed the view that, especially with regard to measures which are not compatible with the common agricultural policy, Article 46 expressly concerns only the temporary maintenance of national market organizations during the transitional period. Conversely, even though the question was admittedly not crucial in those cases, it can be inferred from those decisions that, contrary to the opinion expressed by the United Kingdom, Article 46 may no longer be used to counter aids granted in breach of the Treaty. A number of important considerations support that view, which is shared by the plaintiff in the main proceedings and by the Commission. In the first place it must be noted that Article 38 (2) of the EEC Treaty declares that the provisions on the free movement of goods are in principle applicable also to agriculture except where Articles 39 to 46 provide otherwise. However, as the Court held inter alia in the judgments in Joined Cases 90 and 91/63 ( 13 ) and in Ramel ( 14 ) any exception to that principle must be strictly construed and clearly laid down. Furthermore, as the Court held inter alia in Cbarmasson, ( 15 ) derogations which a national market organization may effect from the general rules of the Treaty are only permissible provisionally, to the extent necessary to ensure the functioning of the organization, without impeding the adaptations which are involved in the establishment of the common agricultural policy. In the light of that consideration it is, in my view, unacceptable to extend the meaning of Article 46 beyond its wording and to interpret it as meaning that it can be applied also to acts of the Member States which are contrary to the Treaty. The general system of the Treaty and the division of powers between the Community and the Member States, as expressed inter alia in the procedure for dealing with breaches of the Treaty, also militates against such an extensive interpretation. Article 155 appoints the Commission custodian of the Treaty. Under Article 169 it must institute proceedings when it considers that a Member State has failed to fulfil its obligations under the Treaty. In contrast to the procedure provided for in Article 46, the formal proceedings under Article 169 include procedural guarantees for Member States which are accused of infringing the Treaty. If the Court finds that the Treaty has been infringed, under Article 171 the Member State concerned is required to take the necessary measures to comply with the judgment of the Court. In principle no provision is made, if I have understood the matter correctly, for self-help measures adopted by the Commission or the other Member States against conduct contrary to the Treaty. If Article 46 may be applied to Member States' conduct which is contrary to the Treaty, the effect, namely the removal of that conduct, would be one not provided for by the Treaty. Dealing with a further argument advanced by the United Kingdom, I doubt whether Article 115 in particular may be called in aid to support an opposing view. Article 115 of the EEC Treaty does indeed provide that the Commission may authorize Member States to take the necessary protective measures; that however is based on the assumption that the threat of a deflection of trade arises from measures adopted by the Member States “in accordance with this Treaty”. Moreover, there is in general no reason why certain agricultural products, in respect of which the Council, in breach of its obligations under the Treaty, has so far failed to provide any market organization, should be placed in a particularly favourable position as regards national aids by the application of Article 46, whilst a similar procedure is excluded for agricultural products for which a common organization of the market exists and for all industrial products. It is also difficult to explain why in exactly those circumstances the Commission possesses especially far-reaching powers and why the Member States authorized to levy countervailing charges should obtain a more favourable position than that to which they are entitled under the Treaty. Since, after the expiry of the transitional period, market organizations which do not conform to the Treaty are no longer permissible, it cannot be claimed that action under Article 46 in application of the general rules of the Treaty appears necessary for the functioning of those rules. Nor is it possible to disregard the risk referred to by the Commission and the plaintiff in the main proceedings that the application of Article 46 to unlawful conduct on the part of Member States could impede the adaptations which are involved in the establishment of a common organization of the market. Certain Member States' interest in the creation of a common organization might diminish, since where such an organization existed proceedings could be instituted against unlawful national aids only under Article 92 or Article 169 of the Treaty; the procedure under Article 46 could no longer be used. If moreover the Commission were given the power to remedy the consequences of a breach of the Treaty by means of the measures provided for in Article 46, that could considerably reduce the force of the obligation on the Member States' to eliminate a breach of the Treaty as soon as possible in the interest of the functioning of the Community, because there would exist an alternative solution. Finally, the view advanced by the British Government, according to which Article 46 can still be applied in order to counter disturbances of the markets resulting from national measures, finds no support whatsoever in the Kind ( 16 ) judgment. In that case the Court of Justice merely recognized the legality of a charge levied on exports which was intended to compensate for. a slaughter premium based on Community rules and therefore granted in accordance with the Treaty. Article 46 does not however, as has been shown, authorize Member States to maintain after the expiry of the transitional period measures which are contrary to the provisions on the free movement of goods. Consequently, for those reasons, I agree with the national court that Article 46 of the EEC Treaty cannot be seen as authorizing measures to counter such distortions of competition as may arise from unlawful conduct on the part of Member States.