CUSTOMS DUTIES BETWEEN MEMBER STATES, IS NOT COMPULSORY . THUS THEIR VIEW IS THAT, SINCE THE CONTESTED MEASURES FORM AN INTEGRAL PART OF THE ORGANIZATION OF THE BELGIAN AND LUXEMBOURG MARKETS FOR MILK PRODUCTS, THEY ARE NOT CAUGHT BY ARTICLE 12 SO LONG AS A COMMON ORGANIZATION OF THE SAID MARKETS HAS NOT ENTERED INTO FORCE .
A DISTINCTION SHOULD BE DRAWN BETWEEN THE PROHIBITION IN ARTICLE 12 ON CREATING ANY NEW CUSTOMS DUTIES OR INCREASING EXISTING ONES AND THE SUBSEQUENT PROVISIONS CONCERNING THE PROGRESSIVE ABOLITION OF CUSTOMS DUTIES BETWEEN MEMBER STATES . THE ONLY PROBLEM IS WHETHER THE INTRODUCTION OF NEW CUSTOMS DUTIES ON AGRICULTURAL PRODUCTS IS CAUGHT BY ARTICLE 12 .
IT FOLLOWS THAT, INSOFAR AS THE DEFENDANTS CASE IS DESIGNED TO PROVE THAT THE PROGRESSIVE ELIMINATION OF CUSTOMS DUTIES IN THE SPHERE OF AGRICULTURE COULD ONLY TAKE PLACE PARALLEL WITH THE SUBSTITUTION OF A COMMON ORGANIZATION OF THE AGRICULTURAL MARKET FOR NATIONAL MARKET ORGANIZATIONS, IT IS NOT RELEVANT HERE .
ARTICLE 12 PROHIBITS THE INTRODUCTION OF NEW CUSTOMS BARRIERS, SO AS TO FACILITATE THE INTEGRATION OF NATIONAL MARKETS AND THE ESTABLISHMENT OF A COMMON MARKET . WITHOUT CONSTITUTING OF ITSELF A MEASURE REMOVING ECONOMIC PROTECTION, THIS PROHIBITION OF ANY NEW FORM OF PROTECTION BY WAY OF CUSTOMS DUTIES CONSTITUTES AN ESSENTIAL REQUIREMENT BOTH FOR THE SUBSTITUTION OF A COMMON MARKET FOR THE DIFFERENT NATIONAL MARKETS AND FOR THE SUBSTITUTION OF A COMMON AGRICULTURAL ORGANIZATION FOR THE NATIONAL ORGANIZATIONS . THUS ARTICLE 12 CONSTITUTES A FUNDAMENTAL RULE AND ANY POSSIBLE EXCEPTION, WHICH IN ANY EVENT MUST BE STRICTLY CONSTRUED, MUST BE CLEARLY LAID DOWN .
ARTICLES 39 TO 46 OF THE TREATY DO NOT CONTAIN ANY PROVISION EXPLICITLY CONTRARY TO THE PROHIBITION OF NEW CUSTOMS BARRIERS IN THE AGRICULTURAL SECTOR . ON THE CONTRARY, ARTICLE 44 WHICH, IN TERMS SIMILAR TO THOSE OF ARTICLE 13, DECREES THE ' PROGRESSIVE ABOLITION OF CUSTOMS DUTIES ', WHILST PROVIDING FOR A POSSIBLE EXEMPTION FROM THE PROVISIONS CONCERNING THE ELIMINATION OF CUSTOMS DUTIES, CONTAINS NOTHING FROM WHICH ANY SORT OF EXCEPTION TO THE PRINCIPLE LAID DOWN IN ARTICLE 12 CAN BE INFERRED .
FURTHERMORE ARTICLE 44 ( 2 ), WHICH PROVIDES THAT MINIMUM PRICES SHALL NOT CAUSE A REDUCTION OF THE TRADE EXISTING BETWEEN MEMBER STATES, IS BASED ON A CONCERN IDENTICAL TO THAT SHOWN IN ARTICLE 12 . THE SAME IS TRUE OF ARTICLE 45, PARAGRAPH ( 2 ) OF WHICH PROVIDES THAT, AS REGARDS QUANTITIES, THE AGREEMENTS CONTEMPLATED SHALL BE BASED ON THE AVERAGE VOLUME OF TRADE DURING THE THREE YEARS BEFORE THE ENTRY INTO FORCE OF THE TREATY, AND PROVIDES FOR AN APPROPRIATE INCREASE .
THUS ARTICLES 39 TO 46 CONTAIN NOTHING CONFERRING EXEMPTION FROM ARTICLE 12 .
HOWEVER, THE DEFENDANTS ALLEGE THAT SUCH A CONCLUSION MISCONTRUES THE NATURE AND FUNCTIONING OF NATIONAL MARKET ORGANIZATIONS . THEY ASSERT THAT THE RIGHT GIVEN TO MEMBER STATES TO MAINTAN THE SAID ORGANIZATIONS IMPLIES THAT THEY ARE FREE TO AVAIL THEMSELVES NOT ONLY OF THE MEANS USED AT THE DATE WHEN THE