REFERENCE CONTAINED IN ARTICLE 41 OF THE ASSOCIATION AGREEMENT TO ARTICLE 44 OF THE TREATY DOES NOT PROVIDE ANYTHING TO SUPPORT THE OPPOSITE VIEW; FOR A LIMITATION ON THE DURATION OF THE MEASURES PROVIDED FOR DOES NOT COME UNDER THE PRINCIPLES REFERRED TO IN THIS PROVISION OF THE TREATY . IF THE COUNCIL IN OTHER CIRCUMSTANCES HAS PROVIDED SUCH A LIMITATION IN AN IMPLEMENTATION PROVISION THAT DOES NOT MEAN THAT THIS PROVISION WAS REQUIRED BY ARTICLE 44 NOR IN CONSEQUENCE THERETO BY ARTICLE 41 OF THE ASSOCIATION AGREEMENT .
21 IN THE VIEW OF THE PLAINTIFF IN THE MAIN ACTION, THE PROTECTIVE MEASURE OUGHT TO HAVE BEEN LIMITED TO IMPORTS INTENDED FOR ITALY AND FRANCE SINCE THE DISTURBANCES WERE MAINLY IN THESE TWO MARKETS .
22 SUCH A LIMITATION HOWEVER WOULD HAVE JEOPARDIZED THE EFFECTIVENESS OF THE MEASURE BY REASON OF THE FREE TRADE EXISTING UNDER THE TREATY . A LARGE PART OF THE ITALIAN PRODUCTION OF TOMATO CONCENTRATE IS NAMELY INTENDED TO BE SOLD IN THE OTHER COUNTRIES OF THE COMMON MARKET WHERE IT WOULD HAVE MET THE COMPETITION OF THE CHEAP IMPORTS FROM THIRD COUNTRIES . THIS CRITICISM IS THUS NOT PERTINENT .
D - THE PROHIBITIVE EFFECT OF THE DISPUTED MEASURE ( THIRD QUESTION )
23 THE THIRD QUESTION IS WHETHER THE VALIDITY OF THE DISPUTED PROVISION IS NOT AFFECTED BY REASON THAT IT HAS A PROHIBITIVE EFFECT .
24 ACCORDING TO THE EIGHTH RECITAL IN REGULATION NO 1643/71 THE PROTECTIVE MEASURES MUST BE SO REGULATED THAT THEY DO NOT ADVERSLY AFFECT IMPORTS IN CONDITIONS IN WHICH THEY DO NOT PREJUDICE THE MARKET SITUATION BY REASON OF THEIR BEING ADMITTED . APPARENTLY THE COMMISSION FIXED THE MINIMUM PRICE TOO HIGH IN THE ANNEX TO REGULATION NO 1643/71 SINCE IT BASED IT ON A COST PRICE SUPPLIED BY THE ITALIAN GOVERNMENT AND ADOPTED WITHOUT EXAMINATION OF 36 UNITS OF ACCOUNT PER 100 KG AT THE FACTORY .
25 THE LEVEL OF THE MINIMUM PRICES MUST, AS THE COURT MAKING REFERENCE RIGHTLY POINTS OUT, RELATE TO THE DESIRED PRICE LEVEL WITHIN THE COMMUNITY . THE COMMISSION ALLEGES THAT THE COMPUTATION FACTORS OF THE COST PRICE OF 36 UNITS OF ACCOUNT WHICH IT SETS OUT IN ITS PLEADING WERE KNOWN TO IT AND THAT IT SAW NO REASON TO DOUBT ITS CORRECTNESS . THE PLAINTIFF HAS ADDUCED NOTHING CONCRETE TO PERMIT CONCLUSIONS AS TO THE INCORRECTNESS OF THE DATA OF THE ITALIAN GOVERNMENT . SINCE THIS COST PRICE LAY SLIGHTLY ABOVE THE INTERVENTION PRICE IT OUGHT, IN SPITE OF THE UNCERTAINTY FACTOR, WHICH IS INHERENT IN SUCH PROVISIONS DIRECTED TO FUTURE DEVELOPMENT, TO BE ACCEPTED .
26 THE COMMISSION HAS RIGHTLY TAKEN AS A BASIS THE ITALIAN COSTS SINCE ITALY IS BY FAR THE MOST IMPORTANT PRODUCER IN THE COMMUNITY . HAVING REGARD ON THE ONE HAND TO THE COST PRICE AND ON THE OTHER TO THE OFFER PRICE ON THE WORLD MARKET IN THE REGION OF 25 U . A . PER 100 KG IT HAS FIXED THE MINIMUM