2.

The case-law of this Court leaves no room for doubt that the prohibition of measures having an effect equivalent to quantitative restrictions on exports laid down in Article 34 (1) of the EEC Treaty prevents Member States from requiring a customs licence even if it is issued automatically on application and free of charge. I call the Court's attention to the decision in the International Fruit Company case (judgment of 15 December 1971 in Joined Cases 51 to 54/71 [1971] ECR 1107) in which it is stated that, apart from the exceptions for which provision is made by Community law itself, Articles 30 and 34 (1) of the Treaty preclude the application to intra-Community trade of a national provision which requires, even as a pure formality, import or export licences or any other similar procedure. This principle, which was laid down in relation to a case in which the national authorities automatically issued licences or readily granted exemption from the duty to apply for them was recently reaffirmed, in its entirety, in the judgment of 15 December 1976 in the case of Criel (née Donckerwolcke) (Case 41/76). There is no question in the present case of the exporter's complying with a mere formality. As we have seen, the exportation of the products concerned is in every case subject, at least in practice, to the issue by a special organization of a certificate declaring that the goods conform to specific quality standards. It is clear from this that the obstacle to the freedom of movement of the goods is more serious than in a case where exports or imports are subject to application for a licence which is then automatically issued. If the imposition of this simple formality must in any case be regarded as a measure having an effect equivalent to a quantitative restriction prohibited by the Treaty, the same must a fortiori apply to the duty to obtain a certificate of quality or a licence which in practice requires the quality of the goods to be checked. The discriminatory nature of this duty is clear from the fact that it affects only goods for export and not products marketed in French territory. It is scarcely necessary to point out that the derogative provision in Article 36 of the Treaty cannot be relied upon since the imposition of restrictive measures on exports in order to safeguard the quality of a product is not among the restrictions on imports or exports exceptionally authorized by that clause. Nevertheless, the question arises whether the public interest which the inspection in question is designed to serve may enable its legality to be acknowledged on other grounds. In my opinion in the case of Criel (nee Donckerwolcke) (Case 41/76) I stated that to treat as contrary to Article 30 of the Treaty any measure whatsoever which has a restrictive effect on intra-Community trade or which makes it more difficult or cumbersome would be to underestimate the importance of the purpose of the individual measures or, to be more precise, the relationship between the restrictive effects and any purpose which may be in accordance with a Community interest. In this connexion I referred to the fact that in the Kramer case, the Court held that national measures involving a limitation of fishing activities with a view to conserving the resources of the sea do not constitute measures having an effect equivalent to a quantitative restriction, even if the immediate effect of such measures is to reduce the volume of output and therefore of trade (judgment of 14 July 1976 in Joined Cases 3, 4 and 6/76). In the light of these recent decisions the question arises whether the same answer should not apply to commercial rules designed to guarantee the high quality of national products intended for export. According to the representative of the French Government, the object of the rules at issue is not to restrict French exports but to guarantee the quality of the product exported and to protect the reputation of national products abroad while at the same time providing the Community consumer with a guarantee. In the case-law of the Court an interesting precedent is to be found in the judgment of 26 February 1975 in Case 63/74 (Cadsky v Istituto Nazionale per il Commercio Estero [1975] ECR 290) concerning a pecuniary charge imposed on exporters in connexion with a quality control carried out by a Member State on products for export alone, coupled with a prohibition on the export of products which did not meet the standard of quality provided for by national law. In that decision, the Court recognized the possibility that, in the absence of Community rules as to quality, an obstacle of this kind to the free movement of goods might be considered legal. However, apart from the merely hypothetical nature of such a possibility, it must be borne in mind that that case involved a control relating to fruit and vegetable products and that in that field Community provisions on the organization of the markets usually include common rules as to quality which apply to the marketing of all products subject to them, whether intended for export or for internal consumption in the country where they are produced. The special features of the rules in the agricultural sector and the maintenance of national legislation until it is replaced by a common organization may explain why the Court indicated that, pending Community rules, a quality control might be lawful. But it would be quite contrary to the tenor and the context of the decision quoted to interpret it as recognizing outside the special field of agriculture and despite the absence of Community rules as to quality, the legality of compulsory national quality controls solely on products for export. In saying this I have, of course, no intention of denying the usefulness of rules as to quality. Even if they were applied merely to exports, this might be perfectly compatible with the Treaty if they were applied so as to leave the exporters and producers concerned free to undergo inspection voluntarily in order to enhance the reputation of their products in the same way as was seen in the case of the application of the national quality mark referred to in the above mentioned Cadsky case (opinion of Mr Advocate-General Trabucchi, [1975] ECR 296). But a compulsory inspection on the outcome of which the State makes the exportation of the product dependent cannot be permitted, at least in cases where this inspection is not also applicable to all products intended to be marketed within the country. Any difference in the treatment of products on the basis of their destination conflicts with the fundamental unity of the common market.