III —

Let me now turn to considerations of a more strictly legal nature. The problem before the Court is whether Article 60 (2) of the Act concerning the Conditions of Accession and the Adjustments to the Treaties, generally known as the ‘Act of Accession’, annexed to the Treaty of Brussels of 22 January 1972 signifies that the Treaty rules relating to the free movement of goods can be relied on in the new Member States after 31 December 1977 with regard to agricultural products which are not covered by a common organization of the markets and which come from the original member countries whereas the same agricultural products are subject to a national organization in the new Member States. With regard to industrial products (Title I of Part Four of the Act of Accession — ‘Free movement of goods’) the first paragraph of Article 42 of the Act provides that quantitative restrictions on imports and exports shall, from the date of accession, be abolished between the Community as originally constituted and the new Member States. The second paragraph of Article 42 provides that: ‘Measures having equivalent effect to such restrictions shall be abolished by 1 January 1975, at the latest’. As regards agricultural products (Title II of Part Four of the Act of Accession) the immediate application pure and simple of Community law in its entirety to the new Member States was even more unthinkable. It was for that reason that a number of provisions both general (Chapter 1) and particular relating to certain common organizations of markets (Chapter 2) introduce amendments in sectors where that appears indispensable. Article 52 provides that the prices to be applied in each new Member State shall be aligned with the level of the common prices in six stages, the last of which is to end on 31 December 1977: Article 52 (4) provides ‘The common prices shall be applied in the new Member States by 1 January 1978 at the latest’. Simultaneously Article 59 lays down a time-table for the reduction of customs duties on imports between the Community as originally constituted and the new Member States; the progressive reduction is intended to result in the complete abolition of duties on 1 January 1978 on which date the new Member States are to apply in full the Common Customs Tariff. Article 60 of the Act, however, draws a distinction both for customs duties and charges having equivalent effect and for quantitative restrictions and measures having equivalent effect between ‘products covered, on the date of accession, by a common organization of the market’ and products which, on the same date, are not so covered. The rules relating to customs duties and charges having equivalent effect for the former products are, as from 1 February 1973, those applicable in the Community as originally constituted subject to the provisions of Articles 55 and 59 which deal essentially with ‘accession’ compensatory amounts, that is to say, amounts charged or granted in order to permit trade between the new and the original Member States as the price rules are progressively aligned between them. Article 60 (1) constitutes, for measures having an effect equivalent to customs duties, a derogation from the general rules of Article 36 of the Act. The date of 1 February 1973 is that prescribed by Article 151 of the Act for the application to the new Member States of the Community agricultural rules. As regards quantitative restrictions and measures having equivalent effect Article 60 similarly derogates from the general rules of Article 42 and lays down that they shall be abolished in their entirety by 1 February 1973. On the other hand for products which, on the date of accession, were not covered by a common organization of the market Article 60 (2) provides: ‘… the provisions of Title I concerning the progressive abolition of charges having equivalent effect to customs duties and of quantitative restrictions and measures having equivalent effect shall not apply to those charges, restrictions and measures if they form part of a national market organization on the date of accession. This provision shall apply only to the extent necessary to ensure the maintenance of the national organization and until the common organization of the market for these products is implemented.’ In the context of Article 60 (2), the provision whereby in respect of products not covered, on the date of accession, by a common organization of the market, the provisions of Title I concerning the progressive abolition of charges having an effect equivalent to customs duties and of quantitative restrictions and measures having equivalent effect shall not apply, can refer only to those quantitative restrictions or measures having equivalent effect which, as between the original Member States and the new States, had to be abolished in accordance with the conditions laid down by the second subparagraph of Article 60 (2). It would appear therefore that Article 42 of the Act has no effect on the prohibition of imports which are necessary in order to ensure the maintenance of a national market organization. This is subject to the principle inherent in the Treaty and the Act whereby the provisions of the Treaties establishing the European Communities relating to the free movement of goods, and, in particular, of Article 30 of the EEC Treaty, are applicable as from the accession of the new Member States save as expressly otherwise provided. However whilst the retention of those taxes, restrictions and measures is lawful until the implementation of the common organization of the markets it is lawful only in so far as it is necessary to ensure the maintenance of the national organization, which is clearly emphasized, as was observed by the British Government, by the German version of this text which literally translated reads: “Subparagraph 1 shall apply until the implementation of the common organization of the market for these products and” — a limitation on that unconditional proposition — “only in so far as it is necessary to maintain the national organization of the market”. Article 60 (2) does not specify who has jurisdiction to determine to what extent the retention in whole or in part of the charges, restrictions and measures in question is necessary. The view may be taken that it is for the national authorities to decide on this point subject to the power of supervision of the Community institutions. These provisions are of considerable importance. The text expressly recognizes that, at the time when the accession took effect, on 1 January 1973, there existed products which were still subject to a national organization of the market as was moreover self-evident (cf. also point 2 of Protocol No 19 on spirituous beverages obtained from cereals). To some extent it “legalizes” the situation by recognizing that it has legal effects even after 1 January 1970, the date on which the transitional period under Article 8 (7) of the EEC Treaty expired. A first question arises: should the date of 31 December 1977 referred to in Articles 52 and 59 of the Act of Accession be regarded as the end of a transitional period in the sense that the application in full of the Treaty rules must be automatically accepted from that date even if on 1 January 1978 the national organization has not been replaced by a common organization? In general the negotiators took pains to prevent, save in exceptional circumstances, the duration of the application of transitional measures from exceeding five years. That is expressed in Article 9 of the Act of Accession the second paragraph of which provides: “Subject to the dates, time-limits and special provisions provided for in this Act, the application of the transitional measures shall terminate at the end of 1977.” As Mr Puissochet wrote in his work on “L'élargissement des Communautés Européennes” (The enlargement of the European Communities — p. 201 et seq.)“Article 9 complies with the principle recognized in the course of the negotiations whereby the difficulties which could ensue in the new Member State from pure and simple accession must be resolved not by definitive amendments to secondary legislation but by mere transitional derogations from that legislation. It thus serves a two-fold function: it reduces temporarily the scope of Articles 2, 3 and 4 of the Act by recognizing the existence of derogating provisions, it states that those provisions may be only of a transitional nature and that their application must, in principle, terminate at the end of 1977… Even where no specific date is fixed for the expiry of certain derogating measures, the recognition of the transitional nature of the measure in question has the effect of suggesting that it will one day be terminated. It thus constitutes an indication of policy and even an undertaking on the part of the competent institutions of the Community not to allow it to be prolonged indefinitely if the final date in Article 9 (2) is not applicable”. The article is in a way the counterpart of Article 8 (7) of the EEC Treaty. The date of 31 December 1977 in principle clearly marks the end of the period for which transitional measures are foreseen on condition that they were for a limited duration and does not relate only to the provisions of Articles 52 and 59. However, substantial differences in wording may be observed between the two texts. Article 8 of the EEC Treaty which provides for the progressive establishment of the Common Market over a transitional period of 12 years (which could have been extended to 15 years although this was not done) provides in paragraph 7: “Save for the exceptions or derogations provided for in this Treaty, the expiry of the transitional period shall constitute the latest date by which all the rules laid down must enter into force and all the measures required for establishing the Common Market must be implemented.” As we know the French Government relied on that provision in particular to demand and obtain the establishment of the common agricultural policy before 1 January 1970. Article 9 (2) of the Act of Accession, which is the corresponding provision, was negotiated in a different context: in the course of the negotiations, as the High Contracting Parties were evidently not unaware, the completion of the establishment of the Common Market was far from being achieved, in particular by virtue of the fact that a large number of the regulations or directives which were necessary for that achievement had not yet been adopted (right of establishment, value added tax etc.). Even in agriculture certain sectors had not yet been “organized”. Article 9 (2) of the Act of Accession uses the words “subject to the dates, time-limits and special provisions provided for in this Act …”. The term “special provisions” may certainly be interpreted more flexibly. The same is true of the words “the application of the transitional measures shall terminate at the end of 1977” if it is compared with Article 8 (7) of the EEC Treaty, “the expiry of the transitional period shall constitute the latest date by which all the rules laid down must enter into force …” The United Kingdom and French Governments lay great emphasis on this aspea of the matter as was done by Mr Puissochet in his above-mentioned work (p. 47 et seq.): the Act “provides for transitional measures” and not for a true “transitional period” of fixed duration as was possible in the original Treaties … Neither Article 9 nor any other provision of the Act of Accession uses the term “transitional period”. Indeed the system adopted is not that of a transitional period which is comparable for example to that existing in the EEC by virtue of Article 8 of the Treaty of Rome. It is true that the various transitional measures are certainly not unconnected. In particular the negotiators took pains to establish a parallelism described as “adequate” between the tempo and calendar of the dismantling of tariffs within the Community and for moving towards the Common Customs Tariff on the one hand and the tempo for the application by the new Member States of all the elements of the common agricultural policy, in particular the prices which are characteristic of it, on the other. However in the case of accession there exists a series of transitional measures in various fields the durations of which may differ. Whilst the most important of those measures lasts for approximately five years there are shorter periods (for example for the liberalization of capital movements (Articles 121 to 126)) but more especially longer periods. In this respect reference may be made to the financial provisions (Article 131 provides for the possibility of extending until 31 December 1979 the application of transitional measures by introducing special correctives described during the negotiations as “post-transitional correctives”), the measures relating to fishing (Articles 100 to 103 which provide for exceptional rules for at least ten years) and Protocol No 18 concerning dairy products from New Zealand. All the same in agreement with Mr Puissochet (p. 201) it must further be noted that the purpose of a good number of the transitional measures and of almost all those relating to agriculture is to ensure the progressive application not of the provisions of the Treaty itself but of the provisions of secondary legislation existing at the time of accession; these measures constitute temporary derogations from the principle of the immediate and general application of secondary legislation in the new Member States. Nevertheless the second paragraph of Article 9 reflects the negotiators' hesitation about abandoning altogether the concept of ‘transitional period’. The traces are to be found, as we have seen, in the wording used in that provision. That paragraph provides that the application of transitional measures shall terminate at the end of 1977 by which is meant 31 December 1977, that is to say, five years after accession. Nevertheless that provision does not constitute a rule which can be directly implemented. Indeed the final date of the end of 1977 is only laid down ‘subject to the dates, time-limits and special provisions’ provided for in the Act of Accession. The reference to dates and time-limits is clear. The term ‘special provisions’ is very much more vague. Apparently it can refer only to the provisions contained in various parts of the Act of Accession whereby the negotiators concluded some of the most difficult discussions by using intentionally vague terms. That is the case for the determination of the rules applicable to fishing after 31 December 1982; it is also the case in my opinion for Article 60 (2). Article 9, contained in Part One of the Act of Accession entitled ‘Principles’, and also Article 60, contained in Part Four entitled ‘Transitional Measures’ under Title II ‘Agriculture’, are based on a selective conception of dates, time-limits and special provisions which must be complied with or implemented in their entirety by the end of 1977 at the latest but subject to the express provisions of the Act of Accession itself. There exists not a transitional period but some selective transitional measures. If the view of the Commission, supported by the Netherlands Government, is correct the second subparagraph of Article 60 (2) should have been worded as follows: ‘This provision shall apply only to the extent necessary to ensure the maintenance of the national organization and until 31 December 1977 at the latest’. The phrase ‘and until the common organization of the market for these products is implemented’ would have been completely superfluous or, as Mr Advocate General J.-P. Warner said in his opinion in the Charmasson case (Case 48/74 Charmasson v Minister for Economic Affairs and Finance [1974] 2 ECR 1383 at p. 1401): ‘Article 60 (2) of that Act … indeed would make nonsense on any other view’. In my opinion as well that wording corresponds much more closely to the interpretation which, as the Commission recognizes, prevailed at the time of the negotiations that the interpretation which the Commission claims to deduce ‘a posteriori’ from the Charmasson judgment. At this point I can say that Article 60 (2) signifies two things: (1) until 31 December 1977 quantitative restrictions remain lawful in so far as they are necessary in the view of the new Member State concerned in order to ensure the maintenance of its national organization of the market; (2) after 31 December 1977 the restrictions remain lawful in so far as, in the opinion of the Council deciding by qualified majority, the common organization does not offer equivalent guarantees for employment and the standard of living of the producers concerned and in so far as the ‘legislature’ has not consequently substituted a common organization for the national organizations but only to the extent necessary to ensure that that objective is complied with. With regard to the Act of Accession it can reasonably be argued that the application of Article 60 which constitutes a ‘special provision’ within the meaning of Article 9 (2) is subject to the conditions defined by it, that is to say in the perfectly explicit words of the second subparagraph of Article 60 (2) ‘until the common organization of the market… is implemented’ and only ‘to the extent necessary to ensure the maintenance of the national organization’. The legal link which is thus set up between the abolition of the national organization and its replacement by a common organization is so clear that it must permit and even necessitate the maintenance of the national organization after 1 January 1978 if, contrary to the EEC Treaty but as was to be feared from 1 January 1973, the common organization was not implemented on that date. Only what is replaced is destroyed.