OF REGULATION NO 26 , NO EVIDENCE HAS BEEN PRODUCED , NOR HAS RESEARCH ON MY PART BEEN ABLE TO THROW UP ANY DECISION OF THE COMMON MARKET COMMISSION RELATING TO THE EXEMPTION OF THE BOARD FROM THE OPERATION OF ARTICLE 85 OF THE TREATY OF ROME .
( 3)IF IT IS A ' STATE MONOPOLY OF A COMMERCIAL CHARACTER ' DOES IT FALL WITHIN THE MEANING OF ARTICLE 37 ( 1 ) OF THE TREATY OF ROME SO AS TO GAIN THE PROTECTION OF ARTICLE 44 OF THE TREATY OF ACCESSION WHICH PROVIDES FOR A TRANSITION PERIOD UP TO 31 DECEMBER 1977?
( 4)IF IT IS A ' STATE MONOPOLY OF A COMMERCIAL CHARACTER ' WITHIN ARTICLE 37 OF THE TREATY OF ROME AND THE PERIOD OF GRACE FOR ADJUSTMENT DOES NOT EXPIRE UNTIL 31 DECEMBER 1977 , DOES THIS SAVE IT FROM THE IMMEDIATE EFFECT OF ARTICLES 85 AND 86 UNTIL THAT DATE? OR CAN IT BE ARGUED THAT ' UNDERTAKINGS ' WITHIN THE MEANING OF ARTICLES 85 AND 86 CAN BE CONSTRUED TO INCLUDE STATE MONOPOLIES? COUNSEL FOR THE BOARD ARGUED THAT THE TERM ' UNDERTAKINGS ' IS NOT DEFINED BUT IS USED AS DISTINCT FROM ' STATE MONOPOLIES ' .
( 5)DO THE BOARD ' S ACTIVITIES FALL WITHIN THE PROVISIONS OF ARTICLE 85 ( 3 ) SO AS TO EXEMPT IT FROM THE PROVISIONS OF PARAGRAPH ( 1)? THIS POINT WAS NOT RAISED . IF THE BOARD IS EXEMPT FROM THE APPLICATION OF ARTICLE 85 BY THE OPERATION OF PARAGRAPH ( 3 ) IT HAS NO NEED TO FALL BACK ON THE ' TRANSITIONAL PERIOD ' ARGUMENT .
( 6)AND WHAT ABOUT ARTICLE 8 OF THE TREATY OF ROME WHICH PROVIDES THAT -
( 1 ) THE COMMON MARKET SHALL BE PROGRESSIVELY ESTABLISHED DURING A TRANSITIONAL PERIOD OF 12 YEARS ; AND
( 2)TO EACH STAGE THERE SHALL BE ASSIGNED A SET OF ACTIONS TO BE INITIATED AND CARRIED THROUGH CONCURRENTLY . ' ?
DOES THIS PROVISION AFFECT THE PRESENT CASE?
16THE BOARD APPEALED BY WAY OF CASE STATED AGAINST THIS JUDGMENT TO THE NORTHERN IRELAND COURT OF APPEAL , BELFAST , ASKING WHETHER THE MAGISTRATE ' S COURT WAS LEGALLY ENTITLED TO REFER THE MATTER TO THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES AND WHETHER A QUESTION REGARDING THE INTERPRETATION OF THE TREATY HAD IN FACT ARISEN IN THE PROCEEDINGS BEFORE THE MAGISTRATE ' S COURT ; IF THE ANSWER WAS IN THE AFFIRMATIVE , WHETHER A DECISION ON THAT POINT WAS NECESSARY TO ENABLE THE MAGISTRATE TO GIVE JUDGMENT ; AND FINALLY WHETHER THE MAGISTRATE ' S COURT HAD PROPERLY EXERCISED ITS DISCRETION TO REFER THE MATTER TO THE COURT OF JUSTICE .
17THE COURT OF APPEAL , AFTER SETTING OUT THE GROUNDS WHICH LED THE RESIDENT MAGISTRATE TO MAKE USE OF THE PROCEDURE FOR A PRELIMINARY RULING UNDER ARTICLE 177 , AND TAKING THE VIEW THAT IT WAS WITHIN THE MAGISTRATE ' S DISCRETION TO CLARIFY THE LEGAL QUESTIONS RELATING TO