CELEX: 61977CC0080
Language: en
Date: 1978-03-15
Title: Opinion of Mr Advocate General Warner delivered on 15 March 1978. # Société Les Commissionnaires Réunis SARL v Receveur des douanes ; SARL Les fils de Henri Ramel v Receveur des douanes. # References for a preliminary ruling: Tribunal d'instance de Bourg-en-Bresse - France. # French tax on Italian wines. # Joined cases 80 and 81/77.

OPINION OF MR WARNER — JOINED CASES 80 AND 81/77
41  As these proceedings are, in so far as the parties to the main action are
     concerned, in the nature of a step in the action pending before the national
     court, costs are a matter for that court.
    On those grounds,
    THE COURT,
    in answer to the questions submitted to it by the Tribunal d'Instance,
    Bourg-en-Bresse, by judgments of 30 June 1977, hereby rules:
          Article 31 (2) of Regulation No 816/70 in so far as it authorizes
          producer Member States to prescribe and levy, in intra-Community
          trade in the products covered by the organization of the market which
          that regulation sets up, charges having an effect equivalent to customs
          duties, is incompatible with Article 13, in particular paragraph (2)
          thereof, and with Articles 38 to 46 of the Treaty and is consequently
          invalid.
    Kutscher         Sørensen        Bosco          Donner         Mertens de Wilmars
          Pescatore         Mackenzie Stuart           O'Keeffe           Touffait
    Delivered in open court in Luxembourg on 20 April 1978.
   A. Van Houtte                                                           H. Kutscher
    Registrar                                                                  President
               OPINION OF MR ADVOCATE GENERAL WARNER
                         DELIVERED ON 15 MARCH 1978
   My Lords,                                   It is common ground that that influx
                                               was due, at all events in the main, first
   In 1975 there was an exceptional influx     to the fact that in  1973 and 1974 the
   of Italian wine onto the French market.     weather had been such that yields had
   948
 ---pagebreak---                      COMMISSIONNAIRES RÉUNIS ν RECEVEUR DES DOUANES
been high both in France and in Italy             Member       States    shall  be   authorized   in
and secondly to successive devaluations           order    to    avoid    disturbances    on   their
of    the    Italian    lira.    The     French   markets to take measures that may limit
Government has alleged that it was due            imports from another Member State.
also to a failure on the part of the              These measures shall be communicated
Italian   authorities      to   establish   and
                                                  to the Commission, which shall decide
operate satisfactorily the administrative         without      delay     whether     to   maintain,
mechanisms         necessary        for      the  amend or abolish such measures."
management of the market in wine as
envisaged by Council Regulation (EEC)             On the same day as it adopted the
                                                  decree        the       French       Government
No 816/70 of 28 April 1970 (Official
Journal L 99 of 5 March 1970) "laying             informed the Commission of it by telex.
down additional provisions for the                On 15 September 1975, the Commission
common organization of the market in              wrote      to    the      French     Government
wine".                                            expressing the opinion that it was not
With a view to limiting that influx, the          entided to rely on Article 31 (2),
French Government, on 11 September                because that provision had, by then,
1975, instituted by decree (Decree No             ceased        to       be      operative,      the
75/846) a charge on table wines and               administrative mechanisms necessary for
wines suitable for yielding table wines,          the management of the market in wine
coming      from      Italy,     imported      in being in application in all Member
containers of more than two litres. The           States. That being so, the Commission
charge was calculated on the volume               said, it would not be appropriate for it
and the alcoholic strength of the wines.          to take a decision of the kind envisaged
Its amount was fixed at FF 1.13 per               by the second subparagraph of Article
degree/hectolitre. It is common ground            31     (2)    and     it asked the French
                                                  Government to revoke its decree.
that the charge was               one     having
equivalent effect to a customs duty.              The        French        Government         having
As the decree itself recited, the French          declined      so   to    do,   the   Commission
Government relied, in introducing the             initiated proceedings against the French
charge, on Article 31 of Regulation No            Republic under Article 169 of the
816/70. Paragraph 1 of that Article was,          Treaty and eventually brought an action
so far as relevant, expressed to prohibit         in this Court against it under that
                                                  Article, Case 117/75. Before that action
the levying, in the internal trade of the
Community, of any charge having                   came to a hearing, however, the French
equivalent effect to a customs duty. In           Government (by Decree No 76/287 of
fact of course that provision was otiose.          31 March 1976) repealed the decree of
The Regulation having been adopted                 11   September 1975 as from              1  April
after the end of the transitional period,          1976.     Thereupon         the    action    was
                                                  discontinued.
the prohibition already existed by the
direct effect of Articles 9 and 12 of the          By Council Regulation (EEC) No
Treaty.   Article    31     (2) was    in  these   1160/76 of 17 May 1976, a Regulation
terms:                                            which     made    numerous       amendments of
"By way of derogation from the                    greater and lesser importance to Regu­
                                                   lation No 816/70, Article 31 (2) was
provisions of paragraph 1, so long as all
the administrative mechanisms necessary            expressly repealed.
for the management of the market in               There are now, so we were told, some
wine are not in application — with the             40 actions pending in various French
exception, until 31 December 1971, of              Courts in which importers of Italian
the viticultural land register — producer         wines into France who were, during the
                                                                                                 949
 ---pagebreak---                          OPINION OF MR WARNER — JOINED CASES 10 AND 81/77
   period when the decree of 11 September            nerability to the vagaries of the
   1975 was in force, required to pay the            weather) that the authors of the Treaty
  charge thereby imposed, are seeking                intended      it      to    be    treated      as    an
  from the French Customs restitution of             exceptional sector, and that the Council
  the sums paid by them in respect of it.            should, in its case, have a general power
  The present cases come before this                 to derogate from the rules that would
  Court by way of references for pre­                otherwise be applicable under the
  liminary rulings made by the Tribunal             Treaty. The French Government draws
  d'Instance of Bourg-en-Bresse in two of            particular attention to Article 38 (2) of
  those actions. They are therefore in the          the Treaty, under which "the rules laid
  nature of test cases.                             down      for     the      establishment       of    the
  The questions referred to the Court by            common market" are to apply to agri­
  the Tribunal d'Instance are these:                cultural products "save as otherwise
                                                    provided in Articles 39 to 46", and to
  "(1) Did Article 31 (2) of Council Regu­
         lation No 816/70 accord with the
                                                    Article 39 (2), which provides that "In
                                                    working out the common agricultural
         EEC Treaty, having regard to the
                                                    policy and the special methods for its
         fact that that provision authorized
                                                    application, account shall be taken of
         measures contrary to the rules of
                                                    among other things "the particular
        the Treaty on the free movement
                                                    nature of agricultural activity, which
        of goods applicable after the end of
                                                    results from the social structure of agri­
         the transitional period?                   culture and from structural and natural
    (2) If the answer to the foregoing              disparities    between         the    various     agri­
        question is in the affirmative, were        cultural regions".
        the provisions of Article 31 (2) of
                                                   The     Council           and     the    Commission
        the said Regulation still applicable
                                                   advance          intermediate            contentions,
        on 11 September 1975, having
        regard to the possibility that all the     though not the same one.
        administrative      mechanisms    necess­  The Council contends that it has, when
        ary for the management of the              instituting a common organization of
        market in wine had been set up?"           the market in any agricultural product
                                                   or group of agricultural products, a
 As regards the first question, there are          limited power to derogate from the
 four rival contentions.                          general rules of the Treaty, limited in
 The Plaintiffs contend that, under the           that the power does not permit the
 Treaty, the Council had no power, after          Council to go beyond the adoption of
 the end of the transitional period, to           measures that are both ancillary and
 legislate in such a way as to authorize          temporary ("mesures temporaires d'ac-
 Member States to impose charges                  compagnement" was the expression
 having equivalent effect to customs              used).
duties in internal Community trade.               The     Commission's          contention      is   more
At     the    other     extreme,   the    French  restrictive.    It    is   that   the   Council      had
Government contends that the way in               power, when instituting the common
which agriculture is dealt with in the            organization of a market at or about
Treaty, and in particular the unique              the end of the transitional period, to
provisions relating to it contained in            prescribe            transitional           provisions
Title II of Part Two of the Treaty, must          applicable until the end of the then
be taken to indicate (having regard to            current marketing year. Thus, the
those obvious characteristics of agri­            Commission          contends,        Article   31     (2)
culture that distinguish it from other            could only have been valid if it had
economic       activities,   such  as  its  vul­  been     limited          to    operate      until      1
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 ---pagebreak---                     COMMISSIONAIRES REUNIS v RECEVEUR DES DOUANES
September 1970, which was the date of          Case 82/71 the SAIL case [1972] 1
the beginning of the next "wine­               ECR 119 was much relied upon, not
growing year" after the adoption of            least by the Commission, which saw in
Regulation No 816/70.                          that case the authority for its contention
                                               that the Council had a power of dero­
In argument, a number of Judgments of
                                               gation       that        was        limited         to
this Court were cited as supporting this
or  that   contention.  I  think    it will be
                                               "overstepping"          the      end       of     the
                                               transitional period for the rest of the
convenient if, subject to one exception,
                                               then current          marketing        year ("un
I discuss those Judgments in their
                                               depassement          technique").        A      close
chronological order.
                                               reading     of the Judgment                  reveals,
 Case 17/67 Neumann v HZA Hof [1967]           however, that the Court confined itself
ECR 441 (Rec. 1967, p. 571) which was          there to holding, as a matter of interpret­
cited     on   behalf     of    the    French  ation of the Council Regulations auth­
Government and of the Council, does            orizing Italy temporarily to retain its
not, in my opinion, lend support to the        "milk centre" system, that that authoriz­
contention    of   either    of   them.    The ation had expired at the relevant time.
question there was whether levies on           The    Court      did     not    deal    with     the
imports from third countries instituted        question    of    its   validity.   The     case     is
by Council Regulations establishing the        therefore,     in      my     opinion,      of     no
common organization of a market (that          relevance here.
in poultry meat) were lawful. It was           To the three cases on                    monetary
argued for an importer that they were          compensatory amounts decided by the
not because they were incompatible             Court on 24 October 1973, namely
with the Articles of the Treaty setting        Case 5/73, the first Balkan case [1973]
up the Common Customs Tariff. The              2 ECR 1091, Case 9/73 Schlüter v HZA
Court rejected that argument. It held          Lörrach, ibid. p. 1135 and Case 10/73
that such levies came within Article 40
                                               Rewe-Zentral v HZA Kehl, ibid. p.
(3) of the Treaty as being "measures           1175, I had occasion to refer recently in
required to attain the ... regulation of       Case 29/77, the third Roquette case
prices ... and common machinery for            [1977] ECR 1835. I there pointed out
stabilising imports or exports". They          that   those     cases,     and    others,      were
were therefore within the saving clause        authority       for       saying       that       the
of Article 38 (2). Thus, for the principle     fundamental purpose of the system of
of that decision to be held to apply           m.c.a.'s was to prevent changes in
here, it would be necessary to be able to      exchange       rates       from       immediately
point to a. provision in Articles 39 to 46     affecting agricultural prices in terms of
which, either expressly or by necessary        national currencies in such a way as to
implication, authorized the institution,       disturb the functioning of the common
as part of a common organization of a          organizations of markets. Such distur­
market, of charges having an effect            bances of trade could be of two kinds.
equivalent to customs duties in trade          The first kind was direct disturbance of
between Member States. I can see none,         intervention arrangements, such as had
nor did either the     French    Government    occurred in consequence of the deva­
or the Council attempt to point to any.        luation   of the      French     franc    in   1969,
Certainly Article 40 (3) cannot be held        when German traders bought cereals in
to constitute such a provision, since it       France    for     re-sale     to    the    German
goes on to provide that a common               intervention agency at a profit, and did
organization "shall exclude any discri­        so in such quantities as to threaten to
mination      between        producers      or exhaust that agency's storage capacity.
consumers within the Community".               The     second        kind      of     disturbance
                                                                                                951
 ---pagebreak---                             OPINION OF MR WARNER — JOINED CASES 8C AND 31 /77
   consisted     in    the     diversion    of   trade    the administrative mechanisms necessary
   between the Community and third                        for the management of the market in
   countries, in particular the diversion of              wine existed in certain Member States,
   imports through Member Slates with                     notably in France (which had had until
   devalued currencies in search of lower                 then a national organization of that
   levies and the diversion of exports                    market) but they did not exist in other
   through Member States with revalued                    Member States, notably Italy. The
   currencies in search of higher refunds.                Council   was     therefore   faced    with   a
                                                         choice. It could either wait to bring the
   One can therefore say that, in those
                                                         common organization of the market
   cases,    the       Court      recognized       the   into   force    until   those   administrative
   existence in the Council of a power to
                                                         mechanisms had been established in all
   institute   as     between      Member       States
                                                         Member States; or it could bring that
   charges having an effect equivalent to
  customs     duties     in   so  far  as   that was     organization into force at once, with a
                                                         provision affording a safeguard against
  essential       to      ensure      the      proper
                                                         its undue malfunction so long as those
  functioning of common               organizations
  of markets.
                                                        mechanisms were not operative in all
                                                        Member       States.   It   chose    the   latter
  Case     153/73       Holtz     &    Willemsen     v  course. That that was the genesis of
   Council and Commission [1974] 1 ECR                  Article 31 (2) may be inferred in pan
  675 is in my opinion the most pertinent               from paragraph 2 of the reasoned
  of the cases that were cited. It was an               opinion of 29 October 1975 delivered
  action for damages under the second                   by the Commission to the French
  paragraph of Article 215 of the Treaty,               Government         in     the    Article     169
  in which a German oil-miller, relying on              proceedings and in pan from the obser­
 Article 7 thereof and on the prohibition               vations of the Council in the present
  of    discrimination       in   Article    40   (3),  case. (It appeared perhaps even more
 challenged        the validity of a special            clearly      from       the     Commission's
 temporary        subsidy instituted by the             application in Case 117/75, but I would
 Council in favour of Italian oil-millers               hesitate to refer Your Lordships to that
 as part of the common organization of                  document       as it does not, strictly
 the market in oils and fats. The Court                 speaking, form pan of the papers in the
 upheld the validity of that subsidy on                present case). That having been the
 the narrow ground that, at its initiation,            position, it seems to me that the validity
 the common organization of a market                   of Article 31 (2) at its inception can be
 might contain gaps the difficulties                   upheld on the principle of the decision
 caused by which the Council could                     in the Holtz &         Willemsen case: at the
 lessen by means of provisional measures.              outset, the organization established by
 It is to be observed, first, that the case            Regulation No 816/70 contained a gap,
went to the verge of the law, inasmuch                 inasmuch as the necessary mechanisms
 as the Court recorded that it had not                 for its functioning did not exist in some
found the explanation given by the                     Member States, so that it was open to
Defendants           "altogether      satisfactory"    the Council to lessen the difficulties that
and,       secondly,         that     the      Court   that gap might cause by provisional
considered that the "provisional nature"               measures. That comes fairly close to
of the measure had been "respected"                    accepting the Council's contention in
because the Council put an end to it                   the present case, but it does not go all
after the 1973/74 marketing year.                      the way to doing so.
The reason why I think that case par­                  There     was   much     discussion    of  Case
ticularly pertinent is this. At the time of            48/74, the Charmasson case [1974] 2
the adoption of Regulation No 816/70,                  ECR 1383. In my opinion the main
952
 ---pagebreak---                         COMMISSIONNAIRES RÉUNIS » RECEVEUR DES DOUANES
relevance of that case is that the Court          of the market for a particular product
there considered, not for the first time,         precluded the application in that State
the interpretation that ought to be given         of Article 33 of the Treaty, which
to Article 38 (2) of the Treaty. The              provided for the progressive abolition
Court held that it appeared from that             during that period of import quotas as
provision, "particularly if considered in         between Member States. In dealing with
conjunction with       Article 42", that agri­    that question the Court adverted to
cultural products       were, in the absence      what was to be the position after the
of any contrary         provision, "subject to    end of the transitional period. But, as to
the rules relating     to the establishment of    that, apart from making the general
the common market". Article 42, Your              observations on the interpretation of
Lordships remember, is concerned with             Article 38 (2) that I have mentioned, the
the application "to production of and             Coun said no more than that a Member
trade in agricultural products" of the            State would not then be entitled to rely
provisions of the Treaty "relating to             on the de facto absence of a common
rules on competition". It provides that           organization of the market in a
those      rules     shall   apply    to    such  particular product as justifying it in
production and trade "only to the                 maintaining restrictions on imports from
extent determined by the Council". The            other    Member       States   under   its  own
inference       from     that Judgment        is, market organization.
therefore,       again,    that,   before    the  I now depart slightly from the chro­
Council can be held to have a discretion
                                                  nological order of the authorities so as
to exclude those rules in any particular          to deal together with Case 46/76
respect, there has to be shown to be,             Bauhuis v Netherlands [1977] ECR 5
somewhere in Articles 39 to 46 of the
                                                  and      Case       89/76      Commission      v
Treaty, a provision conferring that               Netherlands [1977] ECR 1355. With all
discretion on it. So the case is authority        respect to those who cited them it seems
against       the     French      Government's    to me manifest that those cases are not
contention.
                                                  in point. They were concerned with
But it was relied upon by the Plaintiffs          charges imposed to meet the cost of
and by the Commission as authority for            inspections provided for, in the first
the view       that,  after   the  end   of  the  case,     by      Council      Directive     No
transitional period, there was no power           64/432/EEC (Official Journal L 121 of
at    all,     even     for     a   Community     29. July 1964) "on animal health
Institution, to derogate in any way from          problems        affecting    intra-Community
the general rules of the Treaty except            trade in bovine animals and swine" and,
those relating to competition and except          in the second case, by the International
(per the Commission) to the extent of             Plant Protection Convention. As I            had
the "dépassement technique" to which I            occasion to mention recently in Case
have referred. That, in my opinion, goes          70/77      Simmenthal      v  Amministrazione
too far. As I ventured to point out in            delle Finanze (in which the Coun has
Case 29/75 Kaufhof v Commission                   not yet delivered judgment) what
[1976] ECR at p. 450, it must be borne            underlay the decision of the Coun in
in mind that the events giving rise to the        each of those cases was that, in each of
Charmasson case had occurred during               them, the system of inspections in
the transitional period and that the              question had as its object and effect to
actual question with which the Court              facilitate   trade   between    the   States  to
was there concerned (so far as relevent           which it applied. That being so, it could
here) was as to the extent to which the           not be held that charges imposed to
existence in a Member State, during               meet the cost of such inspections had an
that period, of a national organization           effect equivalent to customs duties.
                                                                                               953
 ---pagebreak---                         OPINION OF MR WARNER — JOINED CASES 80 AND 81/77
    Here,    on   the other hand,     it   is, and       should I think mention that the French
    always has been, common ground that                  Government        referred   to  four instances
    the charge imposed by the French                     where, it said, the Council had enacted
    Government purportedly in pursuance                  provisions derogating from the general
   of Article 31 (2) of Regulation No                    rule of the free movement of goods
   816/70 was one having an effect                      within the Community, the suggestion
   equivalent to a customs duty. Indeed                 being, so I understood, that, since the
   Article    31   (2) related   only    to    such     Council had enacted those provisions, it
   charges.                                             must have had power to do so. The first
   Lastly we were referred to Case 68/76                instance was that of the subsidy that
   Commission v France [1977] ECR 515,                 was in question in the Holtz 6
   in paragraph 21 of the Judgment in                    Willemsen      case.    The   other   three    (in
                                                       relation     to   which     no  decision   of   the
  which the Court, after referring to the
  terms of Article 38 (1) and (2) of the               Coun          was       cited)    were       drawn
  Treaty, said:                                        respectively from the common organiz­
                                                       ation      of   the     market    in   fruit   and
  "Accordingly, following the end of the
  transitional period, the provisions of               vegetables, from that of the sugar
  Articles 39 to 46 cannot be relied upon              market, and from the legislation on
                                                       fisheries.     The     Commission       submitted
  in justification of a unilateral derogation
                                                      that,     in   fact,  in   none   of those three
  from the requirements of Article 34 of
  the Treaty, even in respect of an agri­             instances was there truly a derogation
                                                      from the rule as to the free movement
  cultural product for which no common
  organization of the market has yet been             of goods. I do not propose to enter into
  established."                                       the question whether there was or was
                                                      not. To my mind it cannot assist the
  It    was   submitted   on   behalf     of   the
                                                      Court in determining what is, on the
  French Government and of the Council
                                                      true interpretation of the Treaty, the
 that it could be inferred, from the use
                                                      scope of the Council's powers, to know
 there of the word "unilateral", that the
                                                     what in fact the Council regarded as
 Court would not have regarded as
                                                     being within its powers in particular
 unlawful a similar derogation made in               instances.
 pursuance of a measure adopted by the
 Community. In my opinion, however,                  In my opinion the effect of the auth­
 the only inference that it is safe to draw          orities may be summarized as follows.
 is     that   the   Court   was    not      there
                                                     There is no authority that supports the
 concerned to pronounce on anything
                                                     French Governement's contention, and
 other than unilateral derogations. Of
                                                     some authority against it. This is not
 greater moment, to my mind, in that
 case, is the conclusion of Mr Advocate              surprising since it is a contention that
 General Capotorti that "While ... it is             flies in the face of Article 38 (2) of the
true that the common organizations of                Treaty. The saving clause is for that
the market give rise to intervention on             which is "provided in Articles 39 to 46",
the agricultural market by public auth­              not for whatever may be provided by
orities to an extent which would not be             the Council. I would therefore reject
                                                    that contention.
permissible in the industrial field, those
organizations still have to abide by the            There is authority inconsistent with the
fundamental principle of the freedom of             other extreme contention, that of the
trade throughout the Community" (see                Plaintiffs, notably in the m.c.a. cases
[1977] ECR at p. 539).                              and      in   the   Holz    &   Willemsen case.     I
Before I sum up what appears to me to               would acordingly reject that contention
be     the   effect of those    authorities,     I  too.
954
 ---pagebreak---                        COMMISSIONNAIRES RÉUNIS v RECEVEUR DES DOUANES
  There is no authority that supports the        power of the Council to enact such a
  contention of the Commission; and the          provision does not, in my opinion,
  m.c.a. and Holz & Willemsen cases are          include power to delegate any wide
  inconsistent with it too. Moreover that        discretion       to   Member        States.     The
  contention, which rests neither on any         operation of the provision must remain
  express provision of the Treaty nor on         under      the   control   of   the   Community
  any known rule of interpretation,              itself.
  whould produce an arbitrary result. So I
                                                 For the reasons I have already stated, I
  would reject it also.
                                                 am of the opinion that, at the time
  There is authority to support the             when         Regulation      No 816/70 was
  contention of the Council, but not in         adopted, a situation existed which
  the   wide    terms    in   which     it was
                                                warranted the inclusion in that Regu­
  formulated. In order to justify the           lation of Article 31         (2). Moreover the
  inclusion by the Council, in any              second subparagraph of that provision
  legislation relating to the common            was       designed      to     ensure      that   its
  organization of agricultural markets, of      operation remained under the control of
  a provision derogating from the general       the Commission. I am accordingly of
  rules of the Treaty, in circumstances not     the opinion that, at its inception, Article
 expressly provided for anywhere in             31      (2)    was    valid,    and    that    Your
 Articles 39 to 46, it must be shown not        Lordships should so rule in answer to
 only that that provision is auxiliary and      the first question referred to the Court
 temporaly, but also that, in view of a         by       the      Tribunal       d'Instance       of
 particular      factual     situation,    the  Bourg-en-Bresse.
 provision is necessary, and goes no
 further than is necessary, to afford a         I turn to the second question.
 safeguard against the malfunctioning of       As      to    that   the   French      Government
 such organization. That is the effect of       submits first that Article 31             (2)   must
 the m.c.a. and Holtz & Willemsen cases,        have remained in force in September
 and it must be right because the power         1975 because it was not repealed until
 for the Council to derogate from the           May 1976. The French Government
 rules of the Treaty in such circum­            argues that, since that provision was
 stances being an implied power, implied       contained in a Council Regulation, its
 in Article 43 of the Treaty, it cannot be      applicability could be brought to an end
 wider than is necessary for the               only by an act of the Council. In
 attainment of the objectives for which        support of that view the French
 the express powers contained in that          Government refers to the fact that the
 Article are conferred (consider para. I       minutes of the Meeting of the Council
 (3) of the reasoning of the Court in its      held on 27 and 28 April 1970, when
 Opinion given on 26 April 1977 under          Regulation No 816/70 was adopted,
 Article 228 (1) of the Treaty in the          contained        a  declaration     to   the   effect
 matter      of    the     draft    'Agreement that "the Commission would consider,
 establishing a European laying-up fund        at the beginning of the next wine­
for inland waterway vessels' [1977] ECR,       growing year, whether, in each Member
 at p. 755).                                   State, all the mechanisms necessary for
I should add — although perhaps this           the management of the market in wine,
goes without saying — that, even where         within the framework of the                common
it is shown that a provision derogating        organization of that market, had been
from the general rules of the Treaty is        established in such a way that their due
necessary as a temporary safeguard             functioning could be ensured; and
against the malfunctioning of the              would report its              findings       to the
common organization of a market, the           Council". The French Government also
                                                                                                955
 ---pagebreak---                         OPINION OF MR WARNER — JOINED CASES 80 AND 81/77
   relies on the views expressed by certain          lations — and, as Your Lordships
   members of the Council at subsequent              know, I doubt if they can have any —
   meetings of it.                                   they certainly cannot be invoked when
   In my opinion that submission should be           unpublished. (I would refer in that
                                                    connexion to what I said in Case 28/76
   rejected. By its own terms Article 31 (2)
  was limited to operate only "so long as           Milac v HZA Freiburg [1976] ECR at
   all    the   administrative      mechanisms      p. 1664 and in Case 109/76 Blottner v
  necessary for the management of the               Nieuwe Algemene               Bedrijfsvereniging
  market in wine are not in application".           [1977] ECR, at p. 1154). It was also
                                                    submitted       on     behalf   of   the   French
  Indeed, had it not been for that
  limitation, Article 31 (2) would, I think,        Government (at the hearing) that the
  having regard to the reasons that                 declaration might be held to have had
  warranted its inclusion in Regulation             legal effect by virtue of the principle in
                                                    Case     81/72        Commission      v   Council
  No 816/70, have been void as being in
  excess of what     it lay within the power        [1973] 1 ECR, 575. But that principle is
  of the Council     to enact. The difficulty       only that a declaration of the Council
  arises from the    fact that the Regulation       may, in certain circumstances, give rise
  did not specify     by whom and in what           to legitimate expectations which the law
  manner it should       be  ascertained when       will protect. It is difficult to see that the
  the condition subsequent expressed           in   declaration here in question can have
  the limitation was satisfied. It cannot,          given rise to any legitimate expectation
  however, be deduced from that that                on anyone's part. At all event the
  such   ascertainment should be        a matter    French    Government         did   not    mention
  for the Council. Having regard to the            any. Lastly, the terms of the declaration
 terms of, respectively, Articles 145 an           were narrow in scope. They called upon
  155 of the Treaty, it is not to the              the Commission to give consideration to
 Council, but to the Commission, that              a   matter     that    it would   have    been   its
 pertains the function of ensuring that            duty to consider anyway and to "report
 measures taken by the Institutions                its findings to the Council". Nothing
 pursuant to the Treaty are applied.               was said about the purpose of that
                                                   report.      It   could      well    have     been
 There are a number of reasons why the
 declaration    contained    in  the   Council's   envisaged as being for information only.
                                                   Furthermore,          the   declaration      called
 Minutes      cannot   have    had   the   effect
                                                   upon       the       Commission         to     give
 suggested by the French Government.
                                                   consideration to that matter only once,
 First, and most obviously, such a
                                                   i.e. at the beginning of the next wine­
 declaration is not an act having
                                                   growing year. Nothing was said as to
 legislative force and, even if it were, it
                                                  what was to happen if the Commission
 could not alter the provisions of the
                                                   found (as indeed, in the events, it did)
Treaty as to the respective functions of
the Council and of the Commission. It
                                                  that,    at   that    time,   the   administrative
was submitted on behalf of the French             mechanisms in question had not been
                                                  fully established in all Member States.
Government that the declaration might
be invoked, under the heading of                  Thus     the     question    remains when,        in
"travaux préparatoires", as an aid to the         fact, all the administrative mechanisms
interpretation of Regulation No 816/70.           necessary for the management of the
But     no    amount    of  such    aid   would   market       in    wine     came     to    be   "in
enable one to interpret the Regulation            application". If they were in application
in a way inconsistent with the Treaty.            before May 1976, the repeal then of
Moreover, whatever may be the value in            Article      31      (2)    was      merely     the
general of "travaux préparatoires" in             elimination of statutory dead wood — a
the interpretation of Council Regu­               familiar enough process.
956
 ---pagebreak---                        COMMISSIONNAIRES RÉUNIS v RECEVEUR DES DOUANES
 It  was   submitted       on   behalf    of  the  The    omission     of    the   Commission       to
 French Government that that question              issue any such decision (at all events
 was not of a kind that it was within the          before 15 September 1975) could, in
jurisdiction of this Court to resolve in           theory, be attributed to any one of three
 proceedings under Article 177 of the              reasons. (I say "at all events before 15
Treaty. We were referred to two                    September         1975",         because       the
Judgments one, dated 29 April 1977, of             Commission's letter of that date to the
 the Tribunal d'Instance of Marseille and
                                                   French Government might be regarded
 the other, dated 29 June 1977, of the             as embodying such a decision). The first
Tribunal    d'Instance       of  Sète,   in  two   possible reason would be that the
 others of the 40 or so cases that I have
                                                   Commission overlooked its obligations
 mentioned,     in     which     those    Courts   under the Treaty. The second would be
 (unlike   the    Tribunal      d'Instance     of  that the    Commission        did   not consider
 Bourg-en-Bresse) took that view, and              itself obliged to take any formal
ordered experts' reports on the question           decision until a practical situation arose
whether           those           administrative
                                                   in which it became necessary to do so.
mechanisms had been set up in Italy by            The       third     would        be    that     the
 11 September 1975.
                                                   Commission was not satisfied until May
There     again    I    have    come     to   the   1976 that the requisite administrative
conclusion    that    the   submission    of  the
                                                   mechanisms were in application. We
French    Government must be            rejected,  know, from what we have been told on
with the consequence that the Judgment            behalf of the Commission itself, that the
of the Tribunal d'Instance of Marseille
                                                   last  was    not  the    case.    Therefore    the
and that of the Tribunal d'Instance of
                                                  reason must have been one of the first
Sete were mistaken.
                                                  two. Neither of them could operate so
If I am right in thinking that, by virtue         as to result in a transfer of the ultimate
of Article 155 of the Treaty, it lay, in          jurisdiction     on   the    essential    question
the first instance, with the Commission,          from this Court to the national Courts
and with the Commission alone, to
                                                  of Member States. As it was put on
determine     when       those    administrative
                                                  behalf of the Commission in the course
mechanisms had been set up and were               of    argument,     although       we   are    here
functioning, it could not alter anyone's          concerned       with    the    duration    of   the
rights whether or not in fact the
                                                  validity of a provision of Community
Commission took any formal decision
on the matter. If the Commission issued
                                                  legislation, rather than with the question
                                                  of its validity from the outset, the
such a decision, it would be open to
                                                  question is still one about its validity. It
challenge by the Council or by any
Member State under Article 173 of the             is not a question as to the application of
Treaty. Alternatively its validity would          Community law to the circumstances of
                                                  a particular case, which, in the context
be open to review under Article 177, on
                                                  of    Article    177,    would      be  a   matter
a reference from any Court or Tribunal
in any Member State. In either case it            exclusively for the national Courts. In
would    be   for    this   Court    to   decide, saying that I do not, of course,
                                                  overlook     that   an    inferior    Court   in   a
according to the evidence, whether the
decision     of    the      Commission       was  Member State has a discretion to decide
sustainable. As I pointed out in Cases            itself, without reference to this Court, a
51, 86 & 96/75 EMI v CBS [1976] ECR               question concerning the validity of a
at p. 854, it is open to this Court, on a         provision of Community Regulation.
reference   under Article       177   as  to the  But, on any appeal against its decision
validity of any act of a Community                to a Court against whose decisions there
Institution, to admit evidence on any             is   no judicial     remedy under national
issue of fact affecting such validity.            law,    a  reference     to   this   Court there
                                                                                                 957
 ---pagebreak---                         OPINION OF MR WARNER — JOINED CASES IS AND 81/77
  must be. Ultimate jurisdiction on such a             — Les dates à partir desquelles                    les
  question thus lies with this Court.                      instruments nécessaires ont été mis
  So I turn to the evidence.                               en     place     different      d'un        État
                                                           membre à l'autre. Pour des raisons
  In the Article      169 proceedings (Case                d'ordre      administratif       il    a      été
   117/75) the French Government made a
                                                           relativement plus facile de procéder
  number of allegations to the effect that,
                                                           à une mise en place rapide de ces
  by September 1975, the mechanisms                        instruments        dans     certain       Etats
  necessary for the management of the
                                                           membres qui, avant l'entrée en
  market in wine had still not been fully
                                                          vigueur de ('organisation commune
  set up in Italy, or at all events were not
                                                          du marché viti-vinicole possédaient
  functioning there properly. The Court
  asked the French Government whether                     déjà,    dans    le   cadre    national,       les
                                                          instruments correspondants."
  it proposed to put in any evidence to
  substantiate     those      allegations.      In
                                                     In other words        the   Commission        could
  response to that invitation the French
                                                     not    find,    at    that    date,     that       the
 Government put           in    a bundle        of
 documents       consisting      in    part     of   mechanisms in question had been fully
                                                     established in all Member States, and in
 dispatches from the French Embassy in
 Rome, in part of cuttings from Italian              particular could not find that they had
 newspapers and in part of extracts from            been so established in Italy.
 the "Gazzetta Ufficiale della Republica            The        Commission's            report         was
 Italiana". In its written observations in          successively considered by the Council's
 the     present       cases      the    French     Working Party on Wine and by its
 Government repeated much the same                  Special Committee on Agriculture. The
 allegations, again without preferring              former's report is          dated    14    February
 any evidence. The Court invited it to               1972, the latter's 23 February 1972.
 say whether it would agree to that                 Both concluded, in the light of further
 bundle of documents being transferred              information       that     had    been     received
 from the file in Case 117/75 to the file           since    the   date    of    the    Commission's
 in the present cases. To that course the           report, that the mechanisms necessary
 French Government assented. It did not
                                                    for the management of the market in
 however rely on those documents in                 wine     had     been      established      in     the
 argument. Having perused them, I have              Member States by 31 December 1971.
come to the conclusion that they are of
                                                    It was argued on behalf of the French
negligible evidentiary value.
                                                    Government that those reports shoujd
The    rest   of  the   evidence    consists   of
                                                   be ignored because the Working Party
documents put in by the Commission                 on Wine and the Special Committee on
and by the Council                                 Agriculture were simply non-statutory
Of those the first that is relevant is the         bodies set up by the Council to assist it
report made by the Commission to the               in its tasks, so that they had no power
Council pursuant to the declaration                to bind their master, the Council itself.
contained in the minutes of the meeting            If, however, I am right in thinking that
of the Council of 27 and 28 April 1970.            the competence of the Council did not
That report was dated 27 July 1971. Its            extend       to    adjudicating        upon        the
conclusions were expressed in                the   question whether the condition sub­
following terms:                                   sequent contained in Article 31 (2) of
"— Les      instruments      nécessaires   à   la  Regulation        No       816/70      had       been
      gestion du        marché viti-vinicole       satisfied at any particular time, that
      semblent, pour la plus grande                argument is beside the point. The
      partie, être mis en place par les            relevance of those reports is that, having
      États membres.                               been made by specialized bodies (I
958
 ---pagebreak---                      COMMISSIONNAIRES RÉUNIS v RECEVEUR DES DOUANES
hesitate to use the word "expert") on             lira. He suggested the re-introduction of
which   all the    Member States and the          m.c.a.'s. That suggestion was however
Commission were represented, they                 rejected. The French delegation then
constitute evidence and, I would think,           put forward the suggestion that Article
strong    evidence,     that   in   fact    that  31 (2) should be invoked on the footing
condition was satisfied when they said it         that the Council      had   so far failed to
was. There is no suggestion that the              agree on the measures necessary to
reports were other than unanimous.                improve the common organization of
The French Government also refers to              the market in wine, although it had, by
                                                  a Resolution of 21 April 1975 (Official
what     happened      at   two    subsequent     Journal C 90 of 23 April                1975)
meetings of the Council.
                                                  committed itself to doing so by 1
Of those meetings the first was that              August 1975. The French Government
held on 29 and 30 May 1972, when the              relies strongly on the fact that, not only
reports of the Commission and of the              a    number   of  other   Members      of  the
Special Committee on Agriculture were             Council     but    also     the    responsible
considered. The minutes of that meeting           Member       of   the    Commission       (Mr
are before the Court. Formally, the               Lardinois), who was present, accepted
Council confined itself to taking note of         that such a solution might be possible. It
the report of the Commission. During              is fair to say however that they accepted
the course of the discussion, however,            it only reluctantly and as one element in
the French Minister of Agriculture had            a possible "political package", the
said that he could not believe that all           feasibility of which would need to be
the mechanisms in question were in                examined by the Commission, there
application, because daily experience             being doubts about its practicability and
showed that difficulties were still being         about its legality. In the events the
encountered on the wine market. It was            solution   was    rejected,   because    other
"politically" impossible for him to               Members of the Council were opposed
accept that the Council should declare            to it on both political and legal grounds.
Article 31     (2) spent. In answer to a          It is, incidentally, noteworthy that a
question      from     the    President,      he  number of them expressed, as I have
confirmed that what he meant was that,            done, the view that it was for the
whilst    those    mechanisms      had     been   Commission to say when the condition
established, they were not functioning            subsequent in Article 31 (2) had been
adequately.      The      Member       of    the  satisfied.
Commission present stated that the
                                                   In my opinion one cannot deduce from
provisions of Regulation No 816/70
                                                  the proceedings at those two meetings
 had been        applied. Whether those           of the Council that, in September 1975,
provisions      needed     modification       or
                                                  the condition subsequent in Article 31
 improvement was another matter.                   (2) had still not been satisfied. One may
The second meeting of the Council                  deduce from them, and from much else
referred to by the French Government               in the documents placed before the
was that held on 9 September 1975, that            Court by the Commission and by the
 is just before the adoption by that               Council, that the common organization
Government        of  the    decree    here    in of the market as established by Regu­
question. The minutes of that meeting              lation   No    816/70    was   in   need    of
too are before the Court. At the start of          improvement. It was indeed improved,
the meeting the French Minister of Agri­           later, by Regulation No 1160/76. But
culture      drew      attention      to     the  Article 31 (2) cannot, in my opinion, be
 disturbance caused in the French wine             interpreted as meaning that the right of
 market by the depreciation of the Italian         a Member State to take measures there-
                                                                                             959
 ---pagebreak---                          OPINION OF MR WARNER — JOINED CASES 8C AND 81/77
   under was to remain exerciseable, not             measure,  supports    the   view   of  the
   only so long as the mechanisms                    French  Government     that some   of the
   necessary to give effect to Regulation           relevant    administrative      mechanisms
   No      816/70      itself   were     not   in   were not functioning properly in Italy.
   application, but also so long as it might        Administrative inefficiency is however, I
   appear that the provisions of that Regu­         apprehend, albeit regrettable, more or
   lation were imperfect.                           less endemic in all our countries. Often
   There is one other piece of evidence to          it causes hardship, sometimes grave
   which I should refer.                            hardship. The remedies against it vary
   On 15 September 1975, Mr Lardinois              from country to country. There are
   held a press conference in Brussels at          ombudsmen, there are courts, there is
  which     he    expounded     the   considered   the press and there are parliamentary
  view of the Commission. In the course            questions. At the Community level we
  of doing so, he outlined the measures            rely particularly on Article 169 of the
  that the Commission itself had taken to          Treaty. But one cannot, I think, hold
  alleviate    the   situation   on   the   wine   that a temporary provision in a Council
  market. One of them was the dispatch             Regulation    establishing     a   common
  to   the  Italian  Government of a letter        organization of the market in an agri­
  asking it to accelerate the payment of           cultural product, derogating, in order to
 sums due to producers and traders                 meet a particular factual situation, from
 under the common organization of that            the general rules of the Treaty, such as
 market (e.g. refunds, storage aids,              was, if I am right, Article 31 (2) of
 distillation premia, etc.). He said that         Regulation     No      816/70,     may    be
 such      payments,        though     normally   regarded as still capable of being
 effected    in   Member States within two        invoked, five years after the entry into
 months, took closer to a year to effect          force of that Regulation, simply in
 in Italy, and that that had an adverse           order to afford a remedy against
 effect on      the  market.    This,  in some    administrative inefficiency.
 I am therefore of the opinion that Your Lordships should, in answer to the
 second question referred to the Court by the Tribunal d'Instance of Bourg-
 en-Bresse, rule that the provisions of Article 31 (2) of Regulation
 No 816/70 had ceased to be applicable before 11 September 1975.
960