2.

In this connexion Article 60 (2) of the Act of Accession is relevant. It reads: ‘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 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 pan 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 this connexion there arises the question, to which the Commission in the first place limited its assessment, whether it is still possible to rely on Article 60 (2), even after the expiration of the time-limit laid down in Article 9 (2) of the Act of Accession, that is to say after 1977, in other words whether therefore Article 60 (2) may be regarded as one of the ‘special provisions’ within the meaning of Article 9 (2) which provides that: ‘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’. The French Government energetically advocates this view. Referring to the preparatory work for the Act of Accession it points out that the principle of a transitional period was not laid down in that Act as it was in Article 8 of the EEC Treaty. The Act of Accession provides in Part Four thereof and also in annexes and protocols only for various transitional measures to which periods of varying duration either have applied or still apply. It is especially important to bear in mind that Article 9 (2) not only mentions a basic time-limit but also contains reservations in respect of which the vague concept ‘special provisions’ is significant. Article 60 (2) must be regarded as one such special provision. Having regard to substantial structural differences and divergences in the agricultural policy, which, as has been demonstrated by the price differences, became apparent precisely in the case of mutton and lamb, it is an important transitional measure for agriculture. If it is compared with Article 45 of the EEC Treaty and if it is borne in mind that Article 60 (2) — unlike the other special provisions which contain a formal temporal limitation — does not mention a date, then it only remains to conclude that the case-law relating to the EEC Treaty itself, which was developed by the Court in its judgment in the Charmasson case (Case 48/74 [1974] 2 ECR 1383) is not a precedent applicable to the Act of Accession, that consequently even after the expiration of the time-limit laid down in Article 9 (2) the principle of the free movement of goods cannot be relied on as against a national organization of the market as long as there is no common organization of the market in the relevant sector. The Commission opposes that argument in this case as it has already done in Case 118/78 C.J. Meijer B.V. v Department of Trade; Ministry of Agriculture, Fisheries and Foods and Commissioners of Customs and Excise, judgment of 29 March 1979 and in Case 231/78, which dealt with import restrictions in the context of the British organization of the market in potatoes. It consistently puts forward the view that national obstacles to trade cannot in any circumstances be justified after the end of 1977 by reference to the existence of a national organization of the market and to Article 60 (2) of the Act of Accession. As far as concerns this difference of opinion I need only call attention to the fact that in the judgment in Case 231/78, in the elaboration of which the French arguments to which I have referred were before the Court, because France intervened in that case in support of the United Kingdom, the Court upheld the Commission's view. If I correctly understand the position there were three considerations to which the Court attached importance in coming to its decisions. First the general system of the Act of Accession had to be taken into consideration and then the relationship between Article 60 and the general Treaty provisions relating to the foundation and structure of the Community and also to the principles underlying the common agricultural policy had to be borne in mind, and finally account had to be taken of the principle of equal treatment of Member States in the light of the fundamental rules for the proper functioning of the Common Market. This led to the basic finding that the rules relating to the proper functioning of the Common Market take precedence and that the reservations connected therewith and the derogations therefrom are in any case not to be given a wide interpretation. This led further to the conclusion that, because special provisions within the meaning of Article 9 (2) presuppose a specific temporal limitation, Article 60 (2) cannot be regarded as such a special provision, and this made it clear that measures which impede the free movement of goods can no longer be justified by reference to special national organizations of the market after the expiration of the period laid down in Article 9 (2), that is to say after 1977. The Court went out of its. way to emphasize that should there be gaps in the common agricultural policy after that date they must not be allowed to constitute an obstacle to the implementation of the general rules applicable to the Common Market; if after the expiration of the said period special measures proved to be still necessary, they could not in any case be adopted unilaterally and with reference to national organizations of the market. Those considerations in fact also point the way to the solution of the present dispute in the sense that since 1 January 1978 there has no longer been any legal justification for the retention of the French restrictions relating inter alia to imports of mutton and lamb from the United Kingdom. However I should like as well to consider some additional arguments put forward by the French Government during the oral procedure, which in its opinion must lead to a different view of the matter. Thus the French Government has submitted that the problems connected with the French organization of the market in mutton and lamb differ from those which arose in Case 231/78. It states that it is of primary importance to bear in mind that the negotiations concerning the common organization of the market are at a very far advanced stage and that an early conclusion of them may be expected. This is material in relation to certain wording used in the judgment in Case 231/78 according to which national market organizations and obstacles to trade connected therewith could not continue to exist for an ‘indefinite period’. However, this argument has really no prospect of success. Although in the judgment of Case 231/78 the principle was evolved that derogations from the general rules under Article 60 (2) are not permissible after the end of 1977, the question whether for the time being there is no prospect at all of the abolition of national organizations of the market or whether — as is most likely to be the case with mutton and lamb — they will be replaced relatively soon after the expiration of the transitional period laid down in Article 9 (2) can naturally not be decisive, since in this connexion there is not the slightest reservation discernible. The French Government also referred to the trend of prices in the United Kingdom, on the one hand, and in France, on the other hand, which has been approximately the same during the last few years and has linked to this trend the expectation that soon conditions would prevail which would permit the free movement of goods even if the French rules remain in force. However, according to the principles laid down in the said judgment this must also be irrelevant, because it is impossible to proceed on the basis that the Act of Accession grants a supplementary time-limit having regard to economic trends for measures which themselves contravene the Treaty. Furthermore it must not be overlooked — quite apart from the fact that in any case the obligation to apply for an import licence is to be regarded as an unlawful measure having an effect equivalent to a quantitative restriction on imports — that even at the present time considerable price differences are still to be discerned and that it can by no means be said for certain when these differences will be reduced to an amount which makes the levying of an import charge and a temporary ban on imports unnecessary. The French Government also draws attention to the fact that there is also a national organization of the market in mutton and lamb in the United Kingdom which has clearly not been modified and that this is in breach of the principle of equal treatment. Quoting figures which are certainly impressive it points out that the effect of abolishing the French measures would be fierce competition from cheap British mutton and lamb which would constitute a considerable threat to the economy in certain less-favoured areas of France. On this point it must on the one hand be said that Community law certainly does not require national market organizations to be abolished but merely that obstacles to the free movement of goods connected therewith be removed. It comes therefore as no surprise that, as far as concerns the British organization of the market in mutton and lamb, which clearly does not include any import arrangements, no such modifications are called for as in the case of the French organization of the market which actually impedes imports. It is, on the other hand, by no means certain that the expected effects on the pattern of the French economy, if the Commission's argument is accepted, will materialize to the extent which is feared. In fact it must not be forgotten — as has also been unambiguously stressed in the Court's judgment in Case 231/78 — that Community law precludes only unilateral national measures after the end of the transitional period; it does not on the other hand in any way preclude measures adopted by the Community — for example in the form of aids, which have already been contemplated in a Commission proposal — if warranted by the circumstances. Finally the French Government has also submitted — and it regards this as running to some extent counter to a strict interpretation of Article 60 (2) of the Act of Accession — that the Community institutions even after the expiration of the transitional period have come down in favour of a flexible application of Community provisions relating to agriculture and in this connexion the derogations from Regulation No 1422/78 or the lowering of the price of British butter by means of aids may be recalled; furthermore there has been no hesitation in regarding Article 102 of the Act of Accession, which is concerned with measures for the protection of fishing grounds, in spite of its imprecise wording, as a ‘special provision’ which permits derogations from Article 9. In this connexion — in so far as Article 102 of the Act of Accession is concerned — it is sufficient to point out that this provision by reason of its manifest temporal limitation — which is the issue according to Case 231/78 — may unhesitatingly be regarded as a ‘special provision’ within the meaning of Article 9 (2) of the Act of Accession. As for the rest it is, on the one hand, sufficient to reflect that in no case was there any question of obstacles to trade, that is of a breach of the important principle of the free movement of goods and, on the other hand, it is also important to bear in mind that the Court is not concerned with national measures which have been adopted unilaterally but with derogations from Community rules which the Community institutions have authorized. So it only remains for me to conclude that, with reference to the Commission's application in its original form, the Court should declare that, by continuing to apply its national system to imports of mutton and lamb from the United Kingdom after 1 January 1978, the French Republic has failed to fulfil its obligations under Article 12 and Article 30 of the EEC Treaty.